holding “that where ... officers who reasonably believe that further investigation of an offense may be necessary in order to justify the issuance of a warrant, and where those officers undertake that investigation lawfully and without impinging upon reasonable expectations of privacy, and where that investigation leads to the receipt of information which in combination with their other information constitutes probable cause to arrest the suspect, but that information is obtained in the presence of the suspect under circumstances which would lead the officers reasonably to believe that the suspect would take flight if given the opportunity to do so, the officers are authorized by article 14.04 to arrest the suspect without first procuring a warrant.”
How later courts described this case
- holding “that where ... officers who reasonably believe that further investigation of an offense may be necessary in order to justify the issuance of a warrant, and where those officers undertake that investigation lawfully and without impinging upon reasonable expectations of privacy, and where that investigation leads to the receipt of information which in combination with their other information constitutes probable cause to arrest the suspect, but that information is obtained in the presence of the suspect under circumstances which would lead the officers reasonably to believe that the suspect would take flight if given the opportunity to do so, the officers are authorized by article 14.04 to arrest the suspect without first procuring a warrant.”
- holding that appellant failed to meet his burden to attack collaterally prior convictions because he did not produce all 2 records to show absence of jury waiver or evidence that law requires such waiver to be reflected on face of judgment
- holding that in a collateral attack, the burden is on the party attacking the validity of a conviction to show that the entire record is silent as to jury waiver
- declining to view information given by citizens who report a crime and freely share information with police with the same suspicion usually reserved for anonymous police informants with an unproven record of reliability
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
All that Fry v. State, 639 S.W.2d 463 (Tex.Cr.App.1982) did was to point out the obvious proposition that what' V.A.C.C.P., Art. 14.04 requires is not an objective showing that a suspect is in fact about to escape. What is “indispensible” after Fry is the showing that police officers believe upon “satisfactory ’proof” that he is about to escape. This does not mean, however, that the officers do not have to believe that the escape of their suspect is imminent. Otherwise officers would be allowed to arrest without warrant even when they reasonably believe they have time to procure one. The majority now sanctions warrant-less arrest under the terms of Art. 14.04, supra, where officers by their own conduct “create a high probability that [their suspect] would in fact attempt to escape.” P. 515. It is hard to imagine a holding more likely to render Art. 14.04, supra, “nugatory.”
In support of its analysis the majority relies heavily upon this writer’s opinion, writing for the en banc Court, in King v. State, 631 S.W.2d 486 (Tex.Cr.App.1982). The majority perceives that in holding as we did in King we were merely “influenced by the fact that King was arrested while driving the truck.” At p. 515. Careful consideration of that opinion reveals that the majority grievously errs in this respect.
From the fact that King knew or likely must have known that police were looking for him, coupled with probable cause to believe he was in fact their man, “a suspicion that he would attempt to elude the police was well founded.” 631 S.W.2d at 497 . But a mere “suspicion,” however well founded, does not constitute “satisfactory proof.” In Earley v. State, 635 S.W.2d 528, 531 (Tex.Cr.App.1982) it was observed that “[t]he legislative prescription of what must be ‘shown by satisfactory proof’ is the legal equivalent of constitutional probable cause.” Even a well founded, hence a reasonable suspicion does not amount to probable cause. How then could it serve to establish “satisfactory proof” that King was about to escape? The answer is that it did not, at least not by itself. In fact it was not until ten minutes after “the convergence of all these facts, when appellant appeared, entered the pickup and drove away, [that] the ‘factual situation’ indicating he was about to escape became ‘concrete.’ ” See Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973). Thus it is readily apparent that King’s having begun *521 to leave in the pickup was the dispositive fact, under the circumstances, establishing “satisfactory proof” upon which the officers could reasonably believe he was about to escape.
It is true that the “concrete facts” which must be “spread on the record” do not have to show an accused was in fact about to escape. Fry v. State, supra. Nevertheless there must be concrete facts to support the officers belief that the accused would escape, and imminently. In King the officers’ suspicions became concrete, and the imminence of his escape manifest, only when King began to leave in the truck.
In the instant case there is no such concrete fact to substantiate police suspicion that appellant was about to escape. True, once they had presented themselves at appellant’s door and expressed an interest in him in connection with the offense, there would certainly have been grounds to suspect he might flee. By my understanding of the record, however, the arresting officers had already arrested appellant before they made their purpose known to him. In doing so they also pretermitted any chance that, once appellant found he was discovered, he would himself substantiate their suspicions by, e.g., packing his belongings and leaving. In fact, even after having alerted him to their belief he was the culprit, there is no reason officers could not have “staked out” appellant’s room, until either a warrant was obtained or he manifested some objective indication that he did not intend to be found by the time a warrant could be secured. * Cf. English v. State, 647 S.W.2d 667, 671 (Tex.Cr.App.1983)
That “officers reasonably ... believe that the suspect would take flight if given the opportunity to do so,” P. 518, does not amount to “satisfactory proof” justifying the belief that such escape is in fact imminent. While it may well be that “the officers took what must have seemed to them to be the reasonable and logical course,” P. 518, no amount of good police work can circumvent the clear dictates of Art. 14.04, supra.
I dissent.
Truly now the Court has abandoned any effect ever given to the language of the statute which provides the "peace officer may, without a warrant, pursue and arrest the accused." See Fry v. State, supra, at 471 (Clinton, J., concurring in opinion on original submission).