“The initial question is [n]ot whether the statement is res gestae, but rather, whether Miranda requires exclusion. If Miranda does not [require] exclusion, then the next question is whether some other rule, such as Article 38.22 . . . will require its exclusion, or such, as res gestae, will permit its introduction.”
How later courts described this case
- “The initial question is [n]ot whether the statement is res gestae, but rather, whether Miranda requires exclusion. If Miranda does not [require] exclusion, then the next question is whether some other rule, such as Article 38.22 . . . will require its exclusion, or such, as res gestae, will permit its introduction.”
Written by the judges who cited it.
The opinion
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, T cut the boys.’ ”
*782
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 ges-tae. 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.