Townsley v. State

• Decision Date: 22 June 1983
• Docket Number: No. 583-82,583-82
• Citation: 652 S.W.2d 791
• Parties: Larry Lee TOWNSLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 791

652 S.W.2d 791

Larry Lee TOWNSLEY, Appellant, v. The STATE of Texas, Appellee.

No. 583-82.

Court of Criminal Appeals of Texas En Banc.

June 22, 1983.

Steve Brittain, John K. Dietz, Austin, for appellant.

Ronald Earle, Dist. Atty. and James M. Connolley, Asst. Dist. Atty., Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

After finding appellant guilty of murder, the jury assessed punishment at ninety-nine years. The conviction was affirmed by the Court of Appeals for the Third Supreme Judicial District (Austin). We granted appellant's petition for discretionary review in order to examine the Court of Appeals' holding that appellant's three written confessions were not tainted by appellant's illegal arrest.

Appellant was convicted of murdering Pauline Blair, his girlfriend, late in the evening of November 9, 1980, by intending to permanently disfigure her and, "committing an act clearly dangerous to human life, to-wit: causing Pauline Blair to inhale and ingest ether, thereby causing the death of Pauline Blair."

The deceased's body was discovered at her trailer home by co-workers at approximately 9:00 a.m., on Monday, November 10. The police arrived shortly thereafter. Sergeant Gary Richards of the Austin Police Department was in charge of the investigation.

Portions of the deceased's hair had been cut off and left on her pillow. Acid had been poured on the deceased's face, disfiguring it, and her pubic hair had been set on fire.

The police learned from the trailer park manager that appellant lived with the deceased. The manager had last seen him on the previous Friday when appellant paid the deceased's utility bill.

About this time, appellant pulled up in his vehicle. He was with his mother and brother who had accompanied him to Austin from Brownwood. Appellant was questioned for ten minutes and was asked to come down to the police station with his relatives. Appellant agreed to this request. The trial court found that appellant voluntarily went to the police station.

At approximately 11:00 a.m., appellant and the officers arrived at police headquarters. Appellant was questioned in one interview room and his mother in another. Appellant was in a five-by-seven foot room with no windows and the door locked. He was given Miranda warnings and questioned from 11:00 a.m. to 2:00 p.m. by Sergeant Gary Fleming.

Appellant's mother left the station at about 2:00 p.m. She asked to speak with appellant in order to borrow gas money. Appellant was allowed to speak with his mother for a few minutes in the hall outside the interview room in the presence of officers. Appellant then returned to the interview room where he was questioned by Sergeant Richards until 4:00 p.m. Sergeant Richards gave appellant the Miranda warnings.

As soon as appellant arrived at the station the police ran a warrant check to see if there was anything they could hold him for so that he could be questioned. The undisputed testimony of Sergeant Fleming was that some outstanding traffic commitments were discovered and that appellant was not free to leave as of 11:30 a.m.

At approximately 4:00 p.m., appellant demanded to be charged or released. (At 3:30 p.m. Sergeant Richards had given him another Miranda warning.) Sergeant Richards took appellant to the booking desk to be booked into jail for the traffic commitments. Sergeant Richards placed a hold on appellant for investigation of homicide.

Appellant's traffic fines totaled $56.00 and appellant, who had over $100.00, offered to pay the fines in order to secure his release. Sergeant Richards told appellant that he could not be released due to the hold for investigation of homicide. Appellant was not taken before a magistrate.

After appellant was booked into jail at 4:00 p.m. on the 10th, he was placed in a cell. He was not interrogated again until 9:00 p.m. Sergeant Lloyd Polk interrogated appellant from 9:00 p.m. to 10:30 p.m. Sergeant Richards took over the questioning between 10:30 p.m. and 12:30 a.m.

On the morning of November 11, Sergeant Richards and Sergeant Polk took appellant from his cell at 9:35. Appellant was taken before Austin Municipal Court Judge David Phillips for a magistrate's warning at 10:37 a.m. Appellant was told he was being held for suspicion and investigation of murder.

After the warning, appellant was taken back to the homicide detail. Appellant stayed in the homicide detail until 3:30 p.m. when Sergeants Richards and Polk escorted him to Central Texas Polygraph. There is conflicting testimony about what transpired during appellant's stay at the homicide detail. The trier of fact appears to have resolved the conflict in favor of the State. Accepting the State's version of events, appellant asked not to be put back in his cell. He was allowed to remain with the officers in the homicide detail. Within that area he was free to do as he pleased. He talked with officers, but not about the homicide. He was shown an electric blanket cord thought to have been used to bind the deceased.

At Central Texas Polygraph appellant was examined by former Austin Police Operator Doug Ferris until approximately 5:45 p.m. Sergeant Richards chose Ferris because he was the most competent examiner available. Appellant was left alone with Ferris.

All are agreed that when appellant left the examination room he was crying and visibly upset. At this time, on the parking lot at Central Texas Polygraph appellant orally admitted his involvement in the deceased's death.

Sergeant Richards told appellant that in most instances an oral confession cannot be used against a defendant in Texas courts. Sergeant Richards took appellant back to the homicide division and then to dinner at a Mexican restaurant. At 7:30 p.m. Sergeant Richards and appellant went back to the homicide detail. Appellant requested to speak to a district attorney.

Travis County Assistant District Attorney Larry Black arrived at the police station around 9:00 p.m. Black also informed appellant that in most instances an oral confession cannot be used against a defendant. Appellant posed several questions to Black concerning which of various homicide statutes he might be prosecuted under and what kind of treatment he was likely to receive.

The taking of the first written statement began at 9:20 p.m. on the 11th of November and was completed at 12:30 a.m.

Following the filing of a formal complaint, Sergeant Richards, appellant, Black and three officers went to Highway 183 to search for evidence appellant had disposed of. Appellant and the others returned to the police station sometime between 3:30 and 4:00 a.m.

Between 1:00 and 2:00 p.m. on November 12, appellant gave a second written statement.

After the taking of the second written statement, and up until the afternoon of November 14, appellant, though in custody and in the presence of officers at all times, was allowed greater freedom of movement. He was allowed to go to the deceased's trailer for a change of clothes. Several times he was allowed to visit the deceased at a funeral parlor. He was sometimes given permission to stay out of his cell and remain in the homicide division. On one such occasion appellant signed a consent to search for blood and hair samples which were later taken at a hospital.

Appellant also accompanied Sergeant Richards and other officers to Brownwood to visit the store where appellant purchased the ether allegedly used to kill the deceased. Statements were taken from appellant's family members. Appellant was allowed to visit his family at the Brownwood Police Station.

On the afternoon of the 14th, appellant was taken before a magistrate and warned of the formal charges filed against him on the morning of the 12th.

Later, appellant was questioned further by Sergeant Richards and was allowed to see his wife at 3:00 p.m.

Sergeant Richards did not see appellant again until 9:00 a.m. on November 17. Sergeant Richards wanted a third written statement from appellant, so that he could have all of the information together in one statement. The third statement was taken at this time, with appellant changing his story when Sergeant Richards indicated that something was false. After the taking of the third statement appellant requested an attorney. ¹

The Court of Appeals' opinion assumes that appellant was not illegally arrested until he unsuccessfully attempted to pay his traffic fines at 4:00 p.m. on November 10. We agree with this proposition. Though the officers looked for outstanding warrants in order to hold appellant for further questioning regarding his girlfriend's murder, appellant's detention between 11:30 a.m. and 4:00 p.m. was based at least in part on two outstanding traffic commitments. See Dodson v. State, 646 S.W.2d 177.

The Court of Appeals also assumes that no probable cause existed to arrest appellant for the murder of his girlfriend until he orally confessed on the night of the 11th. We disagree with this assessment.

In order to determine when or if probable cause existed on the 10th, a detailed review of the information in police hands is required.

The police were in possession of the following facts by 4:00 p.m. on the 10th:

(1) There was a sticky matted substance on appellant's boots. Embedded in the substance was cut human hair which, according to Sergeant Fleming, appeared to match the cut hair found on the deceased's pillow.

(2) Appellant stated that he was in the mobile home with the deceased late in the evening on the 9th. He thus placed himself at the scene of the crime, in the presence of the victim, close to when the crime occurred.

(3) There was some discoloration on the tip of one of appellant's boots. Sergeant Fleming thought the discoloration "could possibly have been made by whatever caustic material" was poured over the deceased's body.

(4)...