Hernandez v. State

OPINION ON STATE’S MOTION FOR REHEARING

CLINTON, Judge.

In its initial brief on original submission the State, speaking through her Criminal District Attorney of Taylor County, conceded:

“. . Since the only reason the officers stopped Appellant’s automobile was their possession of the capias for his arrest, if the stop and detention is [sic] illegal, then any fruits found as a result of the illegal stop would likewise be inadmissible. Wong Sun v. U. S., 371 U.S. 471 [ 83 S.Ct. 407 , 9 L.Ed.2d 441 ] (1963); *797 State v. Lowery [Lowery v. State], 499 S.W.2d 160 (Tex.Crim.App.1973).” 1

It was this issue of state law that was addressed by the panel on original submission, and both the majority and the dissenting opinions agreed that the arrest of appellant was unlawful because a capias rather than a warrant was issued by a clerk rather than rendered by the court, in twofold violation of Article 17.19, V.A.C.C.P. 2

Now in its motion for rehearing the State, this time speaking through our State Prosecuting Attorney, builds on the foundation laid by the dissenting opinion on original submission and, with emphasis supplied by him, asserts:

“. . . The question is whether the illegality of the capias was so firmly established in the law that a reasonably prudent officer would have recognized it and would have been correspondingly deterred from making the arrest and search."

Thus, after almost one hundred and twenty five years experience under the plain statutory provision, 3 it is seriously suggested that its mandate may be avoided on the notion that a peace officer, trained and expected to follow the law, may be excused from doing so by attributing to him knowledge and understanding of two prior decisions of the Court which are said by only some of its members to hold that the statutory provision does not mean what its simple language states. The theory must be rejected here for as we comprehend the two opinions upon which it is asserted he was “entitled to rely,” had the arresting officer known of them and relied on them, he would not have made the arrest on the flawed capias.

First, Whitner v. State, 38 Tex.Cr.R. 146 , 41 S.W. 595 (1897). The sine qua non of the issue in that case is that the capias was obtained from the clerk of the court out of term. 4 That is simply not the case before us: The instant capias was issued November 16, 1978 5 — during a statutorily specified term of the County Court at Law of Taylor County. 6 Thus, the facts, the issue and the holding of Whitner v. State are entirely different; yet, as an exception, it also teaches the general rule of regularity.

*798 Invoking the second case, McConathy v. State, 545 S.W.2d 166 (Tex.Cr.App.1977), is even more egregious. The essential conclusion there stated is “that all statutes dealing with the surrender of the principal must be read in light of Article 2372p-3, § 13(a),” V.A.C.S. That conclusion is fitting for Dallas County, from which the appeal in the case came, as well as other counties to which the act providing for licensing and regulating bail bondsmen is applicable — but in November 1978 Taylor County was not one of them. 7 Thus, the statute underlying the conclusion in McConathy, supra, may not be imported into Taylor County proceedings. Of all people, an Abilene peace officer should know that.

The dissenting opinion on rehearing alludes to language in Whitner v. State, supra, that “a more liberal construction of the statutes should be adopted,” and surely that is what the Whitner court did in holding the affidavit may be filed and presented out of term. 8 But the Court had stated before 9 and reiterated after 10 Whitner that “[a] strict compliance with one or the other modes above indicated is necessary to a valid surrender.” Indeed in Pfeil v. State, 118 Tex.Cr.R. 124 , 40 S.W.2d 120 (1931), the Court canvassed all extant prior opinions, including Whitner v. State, supra, and concluded, id., at 122:

“It is true that in one or two of the cases cited it has been said that the statute is to be liberally construed, but none of said cases cited overrule the holdings of the court in the cases of Roberts et a1. v. State, and Woodring & Howard v. State, supra, and we have found no authority contrary to the doctrine stated in said cases. We believe the same is the law . . .”

Likewise, today we adhere to the early enunciated “strict compliance” doctrine that with only slight aberration has been constantly applied by the Court to the mandate of Article 17.19, supra. 11 As issued, the purported capias did not authorize the arrest in question.

The notion suggested by our State Prosecuting Attorney is bottomed on the exclusionary rule fashioned by federal constitutional law, some of which is alluded to in the dissenting opinion. But the contested arrest is neither assailed as nor found by us to be violative of the Constitution of the United States; hence the federal exclusionary rule is not involved, and the federal decisions dealing with it are of no moment.

*799 What we have is an arrest violative of a state statute and consequential seizure of materials pursuant to the invalid arrest. Under state law the putative evidence thus seized was not admissible; it should have been, and must now be, suppressed.

This suppression is required by Article 38.28, V.A.C.C.P. which provides in pertinent part:

“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal ease.”

The terms of Article 38.23 are mandatory. Jordan v. State, 562 S.W.2d 472 (Tex.Cr.App.1978); Ex parte Sims, 565 S.W.2d 45, 49 (Tex.Cr.App.1977) (Douglas, J., dissenting). Because appellant’s arrest plainly violated Article 17.19, the clear mandate of Article 38.23 requires suppressing evidence seized pursuant to this arrest.

In Irvin v. State, 563 S.W.2d 920 (Tex.Cr.App.1978), the trial court admitted evidence obtained pursuant to an arrest that violated Chapter 14, V.A.C.C.P. This Court reversed, holding the evidence inadmissible under Article 38.23.

In Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976), the trial court admitted evidence obtained in violation of Chapter 14, V.A.C.C.P. This Court reversed, holding the evidence inadmissible under Article 38.23.

As cases collected in the margin show, 12 evidence obtained in violation of state statutes must be suppressed under Article 38.23, even though this evidence was not acquired in violation of the federal constitution. The laws of the State of Texas require us to hold that the trial court erred in overruling appellant’s motion to suppress. 13 This Court is “without right or power to do otherwise than follow the plain mandate of the statute.” Pfeil, supra.

The State’s motion for rehearing must be, and is, overruled.

. One officer at the Abilene Police Department actually made the stop at the instance of another. The officer testified that the requesting officer arrived as appellant was being removed from his car and stated the basis for the request: “We had a county warrant on the Defendant.” All agree that purported authority for the arrest and concomitant search is really a capias issued by a deputy clerk of Taylor County Court at Law; it is addressed “To any Sheriff of the State of Texas . . ” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

. In pertinent part, Article 17.19 reads as follows:

“Any surety, desiring to surrender his principal, may upon making an affidavit of such intention before the court . . before which the prosecution is pending, obtain from such court ... a warrant of arrest for such principal . .

. Predecessors to Article 17.19, supra, have been in the code of criminal procedure in substantially the same language since the Old Code of 1856.

. The opinion recites at 41 S.W. 596 that the surety “went before M. H. Royston, the clerk of said court (there not being then a term of said court), and made an affidavit of his desire and purpose to make surrender of . his principal . .

The contentions of appellants, summarized by the Court at 41 S.W. 597 , were “that in article 321 the required affidavit is to be made before a court or magistrate, and that as the affidavit was made out of term time before the clerk, and without even any order before the clerk, it was absolutely void, and did not authorize the clerk to issue the writ for the arrest

Looking to companion provisions for surrender “at any other time than during a term of the court,” the majority of the Court believed they “serve to favor the construction that the affidavit can be made when the court is not in session,” obviously meaning out of term time, id.

. A date the calendar shows was a Thursday.

. So far as applicable here Article 1970-343, creating the court, provides in Section 4 that its terms shall begin on the third Monday of, inter alia, October and December of each year and “shall continue in session until and including the Saturday next preceding the beginning” of the next term.

. By Acts 1975, 64th Leg., p. 1194, ch. 451, the bottom side of the population bracket “according to the last preceding federal census” was lowered from 150,000 to 124,000 effective June 19, 1975; it is now 110,000, Article 2372p-3, supra, §§ 3(c), 5(a), and 12(b). We are informed by the brief of the Criminal District Attorney in this cause that which we judicially know; “The federal census of 1970 showed Taylor County to have a population of less than 124,000 . . . ” The State, accordingly, concedes that the act “does not apply to Taylor County.”

. The dissenting opinion also cites Wells v. State, 100 Tex.Cr.R. 73 , 271 S.W. 918 (1925) for the same proposition, and clearly in dicta the Court did “observe” the attitude as stated in Whitner . However, the irony of Wells is the deed rather than the word, for the Court rejected the liberal construction urged by the appealing bondsmen and affirmed the judgment of forfeiture.

. Roberts v. State, 4 Tex.App. 129 <1878).

. Woodring & Howard v. State, 53 Tex.Cr.R. 17 , 108 S.W. 371 (Tex.Cr.App.1908).

. What we determine in this cause in no way implicates Article 2372p-3, V.A.C.S. for, as already demonstrated ante, its provisions were not in effect in Taylor County when the instant arrest and search were made. Nor, for the same reason, does our conclusion here demean principles of McConathy v. State, supra; but it is observed that, even though the judge to whom the “surrender” affidavit is presented be without discretion in responding to it, still the statute contemplates that the judge will see to it that a proper warrant, directed to appropriately designated peace officers, is issued and, if so advised, indicate any modification in the amount or nature of bail required upon execution of the warrant, and generally oversee the whole procedure to the end that the salutary purposes of Article 17.19, supra, are effectuated. The functions thus contemplated are too judicial in character to be relegated to clerical performance. See Articles 15.01 and 15.02 describing a warrant of arrest and its requisites.

. In Cruz v. State, 586 S.W.2d 861 (Tex.Cr.App.1979), the trial court admitted evidence obtained in violation of Article 38.10, V.A.C. C.P. This Court reversed, holding the evidence inadmissible under Article 38.23.

. The dissent relies on United States v. Caceres, 440 U.S. 741 , 99 S.Ct. 1465 , 59 L.Ed.2d 733 (1979), to support its conclusion that the exclusionary rule should not apply. As noted previously, the federal exclusionary rule has no application to a case where evidence was obtained in violation of a state statute; Article 38.23 controls. However, if federal law were to apply, United States v. Caceres provides no support for the dissenting position.

The Court in Caceres was careful to point out that it was not dealing with a case where a statute had been violated:

A court’s duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law . . .

In this cáse, however, unlike Bridges v. Wixon [ 326 U.S. 135 , 65 S.Ct. 1443 , 89 L.Ed. 2103 ], the agency was not required by the Constitution or by statute to adopt any particular procedures or rules before engaging in consensual monitoring and recording .

* * * * * *

Since no statute was violated by the recording of respondent’s conversations, this Court’s decision in Miller v. United States, 357 U.S. 301 , 78 S.Ct. 1190 , 2 L.Ed.2d 1332 , is likewise inapplicable.

99 S.Ct. 1465, 1470 , 1473 n. 21 (1979). In Caceres the evidence at issue was obtained in violation of self-imposed agency procedure, not, as in the present case, a statute. The Court in Caceres clearly indicated that if a statute had been violated, the evidence would have been inadmissible.

On original submission, the dissent relied on Michigan v. DeFiliippo, 443 U.S. 31 , 99 S.Ct. 2627 , 61 L.Ed.2d 343 (1979), to support its conclusion that the federal exclusionary rule should not apply. On State’s motion for rehearing, the dissent does not even cite DeFil- iippo; patently the rationale of DeFiliippo is wholly inapposite.

DeFiliippo involved good faith reliance on an ordinance that was later declared unconstitutional. The present case involves the violation of a statute whose constitutionality has never been questioned. Moreover, the circumstances of the present case provide no support for a claim of good faith. As noted in the majority opinion on original submission, the related actions directly violated the express language of Article 17.19. These actions clearly fell outside the narrow exception permitted by Whitner v. State, supra.