West v. State

• Decision Date: 17 September 1986
• Docket Number: No. 69,109,69,109
• Parties: Robert Wallace WEST, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 511

720 S.W.2d 511

Robert Wallace WEST, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 69,109.

Court of Criminal Appeals of Texas En Banc.

Sept. 17, 1986.

Robert A. Scardino, Jr., Houston, Larry P. Urquhart, Brenham, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., Carl Hobbs and Wilford Anderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

Appellant was convicted of capital murder. Upon the jury's return of affirmative answers to the punishment questions, Art. 37.071 V.A.C.C.P., punishment was assessed at death.

Appellant contends that the court erred in permitting the introduction into evidence of his confession. The contention is based upon his allegations that his arrest was unlawful and that the confession was the fruit of that arrest.

The arrest resulted from the immediate investigation of the offense, which occurred in the victim's room at an apartment motel in Houston. Officers were called to the scene by witnesses who had, while socializing in a breezeway just outside the hall that led to the victim's room, heard noises similar to the repeated slamming of a door emanating from the victim's room and had then seen a man, whose clothing appeared to be wet with blood, leaving the room and walking through a set of glass doors and then up a stairway that led to the building's second floor. The three had then entered the building and the victim's apartment and discovered her body. After the police arrived and observed the scene of the offense, one of the officers approached the three witnesses who had summoned them in order to begin an investigation of the case.

At about that time a fourth person, who had not been present at the time of the offense but who believed that she recognized the person described by the three witnesses as one who was staying in apartment 447A of the motel, approached the officer with that information. The officers then proceeded to that apartment, which was in the direction in which the suspect had gone, in order to investigate further. Upon knocking at the door, the officers were greeted by appellant's companion; appellant was visible about eight feet behind the door, wearing only a pair of shorts.

Appellant and his companion were asked to step into the hall. They complied, and appellant, who fit the description given by the witnesses, was thereupon arrested. His companion, whose room it was, gave his consent to the officers to enter and search. ¹ Shortly thereafter, the witnesses were brought upstairs, and they identified appellant as the man they had seen leaving the victim's apartment.

Appellant contends that his arrest was unlawful for two reasons. His first contention is that there was no probable cause to believe that he had committed the crime at the time he was arrested. Although the blue jeans had not yet been discovered at that time, and appellant had not yet been positively identified, he matched the description of the suspect given to the police by three eyewitnesses, ² and he was found in an apartment in the direction in which the suspect had fled. Further, although his companion was fully dressed, appellant was dressed only in a pair of shorts, shortly after the suspect had been seen in blood-soaked clothing. ³ We find the contention that the arrest was without probable cause to be without merit.

Appellant's second stated reason for holding the arrest unlawful is more problematic. Appellant contends the warrantless arrest was not authorized under Chapter 14, V.A.C.C.P. Arrests without warrant are authorized only under the conditions specified by Articles 14.01--14.04, V.A.C.C.P. Arts. 14.01 and 14.02 deal with offenses occurring within the view of peace officers and magistrates, respectively, and are not pertinent to the instant case. Art. 14.03 provides that:

Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.

It would require a conscious distortion of the concept of "suspicious places" to find the arrest of appellant in the motel apartment occupied by his companion to be authorized under this provision, and the State makes no claim that the instant arrest was so authorized.

The State relies instead upon Art. 14.04. That Art. provides that:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

Appellant takes issue with the State's assertion that the police officers had information which led them reasonably to believe that appellant was about to escape and that there was therefore no time to procure a warrant. Appellant cites: Pearson v. State, 657 S.W.2d 120 (Tex.Cr.App.1983); English v. State, 647 S.W.2d 667 (Tex.Cr.App.1983); Hogan v. State, 631 S.W.2d 159 (Tex.Cr.App.1982); Hardison v. State, 597 S.W.2d 355 (Tex.Cr.App.1980); and Green v. State, 594 S.W.2d 72 (Tex.Cr.App.1980). The State's rejoinder relies upon King v. State, 631 S.W.2d 486 (Tex.Cr.App.1982). cert. den. 459 U.S. 928, 103 S.Ct. 238, 74 L.Ed.2d 188.

In Pearson, officers, upon receiving information from an informant that an employee of a bar had shortly before been in possession of tinfoil packets containing heroin, immediately proceeded to the bar and asked the employee to step outside to talk. Once outside, they arrested the suspect without further ado. This Court reversed the conviction, stating that no proof had been adduced that the officers had acted "upon satisfactory proof from representations by a credible person that the appellant was about to escape, so that there was no time to procure a warrant." The opinion adverted to the holding in Hardison, a case in which police officers who had been told that the suspect was selling heroin capsules which he kept in his hatband approached him on the sidewalk and asked to see his hat. The officers did not testify to having feared that the suspect might escape or to having believed themselves to have had insufficient time to procure a warrant. But in Hardison the opinion stated that "a showing that the offender is about to escape is indispensable...." 597 S.W.2d 357. That rule was discarded in Fry v. State, 639 S.W.2d 463 (Tex.Cr.App.1982), and replaced by the holding that Art. 14.04 "merely requires a showing that the officer was acting upon satisfactory proof...." rather than a showing that the offender was actually escaping. 639 S.W.2d at 476. In Pearson, the Court emphasized that even this lesser burden had not been met.

In Hogan, the Court was presented with a fact situation that clearly negated any possible contention that the officers had acted in the belief that the suspect might be about to escape. The arresting officer admitted in his testimony that he had no such belief. To have claimed otherwise would have been to dissemble, for "after having been given the name of appellant, a physical description of him and a fairly good idea where he might be found, [the officers] spent approximately three hours driving to downtown Houston, booking the complaining witness for public intoxication and then taking a thirty minute dinner break." 631 S.W.2d at 161.

Green and English are factually more similar to the instant case than are the cases discussed ante. In Green, an officer who stopped the defendants for a traffic violation took the serial number of a weapon in their possession. Upon discovering that the weapon had been reported stolen, the officer kept an eye out for the defendants' car, which he espied outside a motel. The officer found that the defendants had registered at the motel and had given a fictitious address, which he testified was in violation of a city ordinance. The officer proceeded to the defendants' room to arrest them; while there, he saw a quantity of heroin which the defendants were charged with possessing. The crux of the appeal was the legality of the arrest. The Court found that the alleged violation of the ordinance did not support the arrests because the ordinance had not been proved up, and also found that the arrest was not supportable with respect to the stolen weapon under the theory that the offense occurred in the officer's presence because of the time that had passed since the officer had made the observation. More germane to the instant case, the Court held that the arrests were not authorized by Art. 14.04 because there was no evidence that the defendants were about to escape. (Although the case appears to have been decided under the former rule as announced in Hardison, supra, there was apparently no evidence that the officer believed that the defendants were about to escape. The holding in Green effectively counters the State's contention that the mere fact that appellant was found in a motel frequented by transients would support the belief that appellant was about to escape.)

In English, officers investigating an aggravated robbery saw, at an apartment complex, the car used by the robbers. Asking the whereabouts of the car's owner, they were directed to an apartment in the complex. When the officers knocked on the apartment door, a woman answered the door and stated that the owner was in jail, but that she and her husband had use of the car. She refused to call for her husband, who she said was asleep, but when the officers heard a noise described variously as "bumping", "banging", or "rustling", they entered the apartment and arrested the appellant. This Court held that the facts adduced did not support the inference that the defendant was escaping, and reversed the conviction because a...