Smith v. State

• Citation: 507 S.W.2d 779
• Decision Date: 27 March 1974
• Docket Number: No. 47765,47765
• Parties: Louis Wallace SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 779

507 S.W.2d 779

Louis Wallace SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 47765.

Court of Criminal Appeals of Texas.

March 27, 1974.

Rehearing Denied April 24, 1974.

Melvyn Carson Bruder and Barry P. Helft (Court appointed on appeal only), Dallas, for appellant.

Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted, in a trial before a jury, of burglary. Punishment, enhanced under the provisions of Article 63, Vernon's Ann.P.C., was assessed at life imprisonment.

Appellant initially contends the trial court erred in admitting over objection inculpatory statements made to police officers at the time of arrest.

The record reflects that at 2:40 A.M. on December 21, 1971, two Dallas police officers on patrol observed appellant coming out of a hole in the shattered glass door of a service station in Dallas. Appellant fled on foot but was discovered in about twenty minutes lying face down in a nearby creek bed. He was immediately placed under arrest and questioned by one of the officers, without first having been given warnings in accordance with Miranda v. Arizona, 483 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Appellant was asked what he was doing at the gas station, and answered that he was prying on the cigarette machine. This statement was made when appellant was under arrest, had not been warned of his right to remain silent, and was in direct response to questioning by the officer inquiring into the offense. Neither the close juxtaposition in time to the arrest nor the exicted, nervous state of appellant can change that fact.

Article 38.22, 1(f), Vernon's Ann.C.C.P., which provides in part:

'Nothing contained herein shall preclude the admissibility . . . of any statement that is res gestae of the arrest or of the offense,'

is simply not relevant. The statement is not held inadmissible for failure to comply with Article 38.22, supra, but rather for constitutional reasons.

Although it was said in Miles v. State, Tex.Cr.App., 488 S.W.2d 790, that the res gestae rule is independent of, superior to and cannot be limited by the rules relating to confessions or admissions after arrest (see also Jones v. State, Tex.Cr.App., 458 S.W.2d 654; Spann v. State, Tex.Cr.App., 448 S.W.2d 128; Fisk v. State, Tex.Cr.App., 432 S.W.2d 912), the only reasonable reading of this statement is that it refers to statutory and common law rules of evidence regarding the admissibility of confessions. Certainly no one would suggest that the res gestae rule is superior to and cannot be limited by constitutional requirements! Yet that is precisely what is at issue in this case: the requirements of Miranda and the United States Constitution, not the requirements of Article 38.22, V.A.C.C.P.

Of course it has also been said, in Jones, supra, and elsewhere, that the admission of res gestae statements is not limited by Miranda, supra. In Hill v. State, Tex.Cr.App., 420 S.W.2d 408, for example, it was said:

'Further, we do not interpret the rule laid down in Miranda v. State of Arizona (supra) as excluding res gestae statements Such as the one made under the circumsance here described.' (Emphasis added.)

Obviously this court was not saying that any statement that is res gestae, regardless of how that rule may be formulated, ¹ is admissible regardless of the requirements of Miranda. Quite the contrary, it was held that on the facts of that case Miranda did not require exclusion of the admitted statement. The initial question is Not whether the statement is res gestae, but rather, whether Miranda requires exclusion. If Miranda does not requir exclusion, then the next question is whether some other rule, such as Article 38.22, supra, will require its exclusion, or such, as res gestae, will permit its introduction. In the instant case, having concluded that Miranda requires exclusion, the inquiry regarding admissibility ends, and the rule of Article 38.22, 1(f), supra, is of no relevance.

Not having been warned of his rights, the direct and responsive answer to in-custody interrogation was inadmissible.

We further observe that Ricondo v. State, Tex.Cr.App., 475 S.W.2d 793 is not in point. In that case, the deceased, who made the complained of statement, had been beaten for two and a half hours, made the statement within minutes after the beatings ended as soon as he saw he was talking to a guard, and died within an hour after the statement. It was stated that on the facts of that case 'This clearly appears to be a statement where the event is speaking through the person rather than the person speaking about the event.' By no stretch of the imagination can it be said that in the instant case the event was speaking through the appellant. We do not intend to enshrine or give special significance to this phrase of the event speaking through the person, but it does express well how different the facts in Ricondo, supra, are from those before us here.

Miles v. State, supra, was decided on the basis of Article 38.22, Sec. 1(f), supra, not on Miranda, and specifically stated, 'The officer's question was neither leading nor suggestive of an answer.'

Additionally, in response to the dissenting opinions, we note that, even if Miranda were not at issue, the challenged statement was not res gestae of the arrest. The closeness in time to an arrest is not alone sufficient to render a statement res gestae thereof. If this were so, there would be no need to give Miranda warnings until booking at the station house, and thorough interrogation immediately upon arrest without warnings would be the most likely occasion to obtain admissable oral statements. But answers to interrogation following upon the heels of an arrest are not sufficient to constitute res gestae. 'The statement must be the natural and spontaneous outgrowth of the main fact,' Hamilton v. State, 138 Tex.Cr.R. 205, 135 S.W.2d 476. But in this case the statement simply was not spontaneous, nor even an unreasponsive answer to a non-incriminatory type of question. ²

The judgment is reversed and the cause remanded.

MORRISON, Judge (dissenting).

I would uphold the trial court's finding that the oral confession was res gestae. The majority opinion appears to feel that the determining factor is that the appellant's statements were in response to the officer's questions.

In Miles v. State, Tex.Cr.App., 488 S.W.2d 790, the confession was held admissible even though made in response to questions. Compare the questions asked in Miles with those asked in the instant case:

Miles:

'Duncan asked appellant if he had been at the scene, and appellant answered affirmatively. The officer then inquired of appellant, 'What happened?', and he responded, 'I cut the boys."

Instant case:

'I asked him how come he didn't come out when I called for him to come out . . . He said that he was afraid I would shoot him. I (then) asked him what he was doing at the gas station . . . He stated that he was prying on the cigarette machine.'

The questions in the instant case are not more leading and suggestive than in the Miles case, and the answers are no more or no less responsive.

In Miles v. State, supra, we said:

'Nevertheless, even after an arrest, and where such statements are made in response to an inquiry, such testimony is admissible, if all the elements that make the statements a part of the res gestae are present.'

The fact that an oral confession is made in response to an arresting officer's questions, even if leading and suggestive, is only one factor to be considered in determining whether the confession is res gestae. The majority is apparently adopting a rigid rule of exclusion and overemphasizing this one factor. Other factors significant in the instant case are time between arrest and the statement, appellant's nervousness, fear, and excitement. The issue is to be determined by the totality of the circumstances that only a trial court is in a position to adequately perceive. There is a valid basis in the evidence for the trial court's finding that the statements were res gestae.

The majority also appears to disparage the res gestae of an arrest as distinguished from the res gestae of the offense. Howell v. State, 171 Tex.Cr.R. 545, 352 S.W.2d 110, is a good example of a res gestae confession of an arrest held admissible, and is very close to the fact situation in the instant case.

I respectfully dissent to the reversal of this conviction.

DOUGLAS, Judge (dissenting).

The proposed opinion prepared by Judge H. P. Green, a special commissioner of this Court, is adopted as a part of the dissenting opinion. Omitting certain formal parts, it is as follows:

'The sufficiency of the evidence is not challenged.

'Appellant initially assigns as error the admission in evidence of two inculpatory statements of appellant made to two police officers at the time of the arrest. He contends that permitting such statements to be introduced is in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and of Articles 38.22 and 38.23, V.A.C.C.P.

'The record reflects that at about 2:40 A.M. on December 21, 1971, two Dallas police officers on patrol observed appellant coming out of a hole in the shattered glass door of a service station in Dallas. Appellant fled on foot into a creek bed with one of the officers in pursuit. By aid of a helicopter, appellant was discovered within 20 minutes lying face down among some weeds. He was immediately placed under arrest, at which time in answer to questions he made certain oral statements to the officers.

'A hearing was had in the absence of the jury to determine the admissibility of these statements. Officer McBee, one of the arresting officers, stated that appellant was discovered lying face down, about 30 feet from the station, in some grass within 15...