Starkey v. State

• Decision Date: 27 September 1985
• Docket Number: No. 05-84-00836-CR,05-84-00836-CR
• Parties: David Lewis STARKEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 805

704 S.W.2d 805

David Lewis STARKEY, Appellant, v. The STATE of Texas, Appellee.

No. 05-84-00836-CR.

Court of Appeals of Texas,

Dallas.

Sept. 27, 1985.

J. Stephen Cooper, Bruder & Cooper, Dallas, for appellant.

Anne B. Wetherholt, Asst. Dist. Atty., Dallas, for appellee.

Before SPARLING, ALLEN and MALONEY, JJ.

SPARLING, Justice.

Appellant was convicted of murder and sentenced to forty years' imprisonment. Appellant contends that the court erred by (1) permitting the State to amend the substance of the indictment; (2) admitting a confession that was the fruit of an illegal arrest; (3) overruling his objection to prosecutorial argument; and (4) improperly charging the jury on the law of parties. We disagree and affirm.

Amendment to Indictment

Appellant's indictment stated, in pertinent part:

Defendant ... did then and there intentionally and knowingly cause the death of [the complainant] by shooting him with a firearm, and the said defendant supplied the firearm which was used to cause the death of the said complainant.

On the day of trial, over appellant's objection, the court granted the State's motion to strike from the indictment the words "and the said defendant supplied the firearm which was used to cause the death of the said complainant." Appellant argues that the amendment was one of substance, violating TEX.CODE CRIM.PROC.ANN. art. 28.10 (Vernon 1966):

Any matter of form in an indictment ... may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.

See Burrell v. State, 526 S.W.2d 799, 801 (Tex.Crim.App.1975); 22 TEX.JUR.3d Criminal Law § 2282 (1982).

The rule, although stated simply, is complex in its application. Unnecessary words or allegations in an indictment may be rejected as surplusage if they are not descriptive of that which is legally essential to the validity of the indictment. Franklin v. State, 659 S.W.2d 831, 833 (Tex.Crim.App.1983) (en banc); Windham v. State, 638 S.W.2d 486, 487 (Tex.Crim.App.1982) (en banc); Etchieson v. State, 653 S.W.2d 930, 933 (Tex.App.--Dallas 1983, pet. ref'd). If, however, unnecessary matter in an indictment is descriptive of that which is legally essential to charge a crime, it must be proven as alleged. Clark v. State, 665 S.W.2d 476, 484 (Tex.Crim.App.1984); Franklin, 659 S.W.2d at 833; Franklin v. State, 682 S.W.2d 426, 427 (Tex.App.--Houston [1st Dist.] 1984). Thus, the issue is whether the deleted language is descriptive or explanatory of an allegation legally essential to charge the offense of murder or whether it is mere surplusage.

Specification of each element of the offense is legally essential to a valid indictment. TEX.CODE CRIM.PROC.ANN. art. 21.02, subdiv. 7 (Vernon 1966). A person commits murder if he intentionally or knowingly causes the death of an individual. TEX.PENAL CODE ANN. § 19.02(a)(1) (Vernon 1974). Thus, the elements of murder are (1) a person (2) intentionally or knowingly (3) caused the death of an individual. Each properly was charged in the instant indictment.

Appellant argues that the State's theory was that appellant ordered a third person to kill the victim and that he--appellant--provided the firearm used in the homicide. He thus contends that the deleted language was descriptive or explanatory of the required culpability or of causation. We disagree.

The State introduced evidence to prove appellant was a party to the offense of murder. A person is criminally responsible for an offense committed by the conduct of another if, "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." TEX.PENAL CODE ANN § 7.02(a)(2) (Vernon 1974). A person criminally responsible for an offense committed by another may be charged with an offense without allegations in the indictment of facts on which responsibility as a party is based. Aston v. State, 656 S.W.2d 453, 455-56 (Tex.Crim.App.1983) (en banc); Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978) (en banc); Ortiz v. State, 680 S.W.2d 659, 663 (Tex.App.--Houston [1st Dist.] 1984, no pet.); Robinson v. State, 665 S.W.2d 826, 828 (Tex.App.--Austin 1984, pet. ref'd).

The deleted language was descriptive of appellant's complicity as a party to the offense and not of the culpable mental state or states, the result of the conduct, or the manner and means by which the offense was committed. Thus, since allegations in an indictment of responsibility as a party are not essential, the language importing responsibility as a party was not descriptive of anything essential to the validity of the indictment. See, e.g., Craig v. State, 480 S.W.2d 680, 685 (Tex.Crim.App.1972) (allegation in indictment for robbery by firearms that defendant acted together with another was surplusage). Accordingly, we hold that the language was mere surplusage, validly deleted by amendment.

Illegal Arrest

Early in the afternoon on March 12, 1984, a Plano police officer stopped the car in which appellant was driving for an invalid safety inspection sticker. The officer, upon learning of an outstanding arrest warrant from Cedar Hill, arrested appellant, administered Miranda warnings, and took appellant before a Plano magistrate. On the same day, appellant was taken to Cedar Hill where a police officer and a magistrate read him his Miranda rights and appellant made an unsuccessful attempt to contact his attorney.

Appellant contends that his arrest was illegal. We agree. The affidavit underlying the arrest warrant contained the following assertions of fact:

January 12, 1984, a body of a white male, identified later by finger prints to be Daryl Lynn Burnett, DOB: 04/19/56, was found in an isolated field South of Parkerville Rd, East of Joe Wilson Rd, in Cedar Hill, Dallas County, Texas. The victim had been shot to death and all identification removed from the body. During the investigation it was learned from family members, by Officers, that the victim was known to always carry a billfold, containing assorted personal items and possessions. This billfold was not found on the body or in the area where the victim's body was discovered. Investigation has also revealed that the victim owed the Suspect an unknown amount of money. The Suspect has boasted on several occasions in the presence of different individuals that he, the suspect, killed the victim, Daryl Lynn Burnett.

It is believed the suspect knowingly or intentionally caused the death of Daryl Lynn Burnett, by shooting him several times, and removing the personal effects from the victim to satisfy the debt. I believe this information furnished by a fellow Peace Officer is credible.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court abandoned the "two-pronged test" enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and substituted a "totality of the circumstances" approach for determining the reliability of hearsay information. Gates, 103 S.Ct. at 2328. Aguilar required articulation of the underlying circumstances from which the informant concluded the suspect was engaged in criminal activity and the underlying circumstances from which the officer concluded that the informant was credible and the information reliable. Although the Court in Gates rejected the rigidity of the Aguilar test, the two prongs still inform our decision whether, based on the totality of the circumstances, the officers had a substantial basis for suspecting appellant was involved in criminal activity. See also Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); United States v. Peyko, 717 F.2d 741, 743 (2d Cir.1983).

Sufficient information must be presented to the magistrate to allow him or her to make an independent assessment of probable cause. Gates, 103 S.Ct. at 2322. Except for an oblique reference to an unnamed police officer, the affiant in the instant affidavit did not state facts indicating the source of his assertions, the statements of independent corroboration are minimal, and the conclusory statement that, in the affiant's belief, the police officer is "credible" is insufficient. Accordingly, we conclude that the arrest warrant was invalid and the arrest illegal.

Tainted Confession

Otherwise tainted evidence is admissible if the connection between the illegal arrest and the means through which the confession was secured has "become so attenuated as to dissipate the taint." Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963); Houltin, 566 F.2d at 1030; Armstong v. State, 550 S.W.2d 25, 31 (Tex.Crim.App.1976) (on motion for rehearing). Thus, we must determine "whether, granting establishment of the primary illegality, the evidence to which objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417-18. A confession obtained through custodial interrogation after illegal arrest should be excluded unless the confession is sufficiently an act of free will to purge the primary taint. Oregon v. Estad, --- U.S. ----, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 2667, 13 L.Ed.2d 314 (1982); United States v. Webster, 750 F.2d 307, 324 (5th Cir.1984); Sweeten v. State, 667 S.W.2d 779, 781 (Tex.Crim.App.1984) (en banc). Factors that elucidate the extent of attenuation, if any, include temporal proximity of the illegal arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Taylor, 457 U.S. at 690, 102 S.Ct. at 2667, Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975); Gregg v. State, 667 S.W.2d 125, 128 (Tex.Crim.App.1984) (en...