Bain v. State

TEAGUE, Judge,

dissenting.

Today, we witness the bastard child that two judges of this Court gave birth to in Woodward v. State, 668 S.W.2d 337 (Tex. *59 Cr.App.1982), 1 reaching puberty. It will be most interesting to see what the bastard child looks like when it reaches full manhood.

Because I am unable to agree that this Court should buy the damaged and unrepairable merchandise the State is selling in this cause, namely, appellant’s confession, and having found that the opinion authored by Chief Justice Reynolds of the Amarillo Court of Appeals has adequately discussed the issue, and correctly held that the trial court erred in admitting into evidence appellant’s written confession, I adopt that opinion as my dissenting opinion. It is attached hereto.

However, under the law as it exists at this time, the erroneous admission into evidence of appellant’s confession was trial error. Thus, the cause should be remanded to the trial court for retrial. Because the majority does not order the cause remanded to the trial court for retrial, I respectfully dissent.

APPENDIX

NO. 07-82-0110-CR

IN THE COURT OP APPEALS

FOR THE SEVENTH SUPREME JUDICIAL DISTRICT

OP TEXAS, AT AMARILLO PANEL A

NOVEMBER 7, 1983

THOMAS J. BAIN, APPELLANT V.

THE STATE OF TEXAS, APPELLEE

FROM THE DISTRICT COURT OF DAL-LAM COUNTY; 69TH JUDICIAL DISTRICT; NO. 2739; HONORABLE BILL SHEEHAN, JUDGE

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

REYNOLDS, Chief Justice.

Appellant Thomas J. Bain was convicted by a jury of the murder of James Lang-ford. Punishment was assessed by the jury at confinement for life in the Texas Department of Corrections. Among appellant’s twelve grounds of error are his first-ground contention that the trial court erred in admitting into evidence his written statement because it resulted from an illegal arrest, and his seventh-ground contention that the court erred in denying his motion for instructed verdict because there is no evidence, independent of his unlawfully-obtained confession, to support the conviction. These contentions, measured by the appellate record, must be sustained, making the other grounds of error immaterial and requiring a reversal and acquittal.

The record developed at the pre-trial hearing on appellant’s motion to suppress his written statement reflects that the body of James Langford was discovered by Dal-hart police officers at approximately 10:30 a.m. on Sunday, 26 April 1981, near a grain elevator in Dalhart. That Langford had been murdered was evidenced by numerous stab wounds to his chest, contusions and bruises about his face indicating that he had been severely beaten, and the binding of his hands with a leather shoelace to a piece of machinery associated with the grain elevator. The officers decided that Langford had been killed the preceding afternoon, but neither they nor the pathologist could establish the precise time of death.

Found at the scene, a site frequented by transients, were various personal effects, including a pair of blood-stained brown corduroy pants, a blue jacket and a beflowered plastic sack. When the investigation revealed no eyewitness to the murder, the officers, suspecting that the murder involved transients, turned their investigation toward Dalhart’s “rescue mission,” where transients are afforded lodging.

From diverse guests at the mission, most of whom are unidentified in the record, the *60 officers learned that: one William Hall, who albeit using an alternate name at trial was determined to be appellant, and George Erwin, late residents of the mission, had not been seen there since the evening of April 25 or morning of April 26; Hall had cryptically commented the preceding day that he had “skinned” his knuckle warding off a man attempting to appropriate his and Erwin’s wine, venturing further that the nameless miscreant “wouldn’t do that again”; Hall and Erwin had been seen the preceding day in the company of Lang-ford near the site where Langford’s body later was discovered; and Hall had worn brown corduroy pants in the past and possessed a plastic sack with floral design. Thereupon, the officers deduced that Hall and Erwin were suspects in Langford’s murder; however, the officers made no effort to secure an arrest warrant or otherwise consult a magistrate after their attempts to contact the district attorney and the county attorney proved unsuccessful.

Between 5:00 and 5:30 p.m. on April 26, Frank Coulson, the constable in Texline, some 36 miles from Dalhart, was informed of the Langford murder by Dallam County deputy sheriff E.H. Little, who alerted Coulson to apprehend appellant and Erwin, they being suspects in the murder, in the event they were, or either was, encountered. At approximately 10:30 p.m., after Coulson’s survey of potential respite sites for the suspects proved fruitless, he was advised by a dispatcher at the Burlington Northern railroad yard in Texline that an unauthorized man was observed on one of the trains at the yard. With the assistance of two Burlington trainmen, one of whom was armed, Coulson, also armed, located appellant shortly after midnight behind a panel in one of the train engines, and removed him from the train without incident.

Coulson thereupon placed appellant under arrest, handcuffed him, and positioned him in his patrol ear, without advising appellant of the offense(s) for which he had been arrested. Notifying Dalhart police of appellant’s apprehension and requesting further instructions, Coulson was directed to transport appellant to police headquarters in Dalhart. Appellant was fully compliant with authority, but volunteered nothing en route to Dalhart.

Midway between Texline and Dalhart, the Coulson patrol car was stopped by Deputy Little, who inquired of Coulson whether appellant had been informed of his Miranda [Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966)] rights. Coulson responded negatively and Little read the rights from a form, although appellant still was uninformed of the official reason for his arrest.

Upon his arrival at the Dalhart police station after a journey of 37 minutes duration, appellant was booked into jail for, at Coulson’s direction, “trespassing,” and again read his Miranda rights. Notwithstanding the booking, it was conceded by Coulson and the other participating officers that they never entertained an intention to actually prosecute appellant for trespassing. Indeed, Coulson and Robert Tregal-las, one of the trainmen assisting in appellant’s arrest, testified that the uninvited transporting of transients, a commonplace occurrence, customarily was benignly tolerated, and occasionally facilitated.

At approximately 1:30 a.m. on April 27, one-half hour after appellant’s incarceration, Dalhart police captain Eddie Bias arrived “to take a statement from (appellant).” Bias acknowledged that he was not concerned in any measure with the “trespass,” and intended at the outset to confine his inquiry to the murder. Removing appellant to his office, Bias also read appellant his Miranda warnings, and, after preliminary mention by Bias of Langford’s murder, appellant volunteered his statement, which incriminated him and Erwin. During appellant’s narrative, Bias took notes from which the statement was prepared. The statement was typed on a form which recited, in the heading, the admonishments prescribed by Tex. Code Crim. Pro. Ann. art. 38.22 § 2(a)(1) — (5), inclusive, (Vernon 1979), and, at both the heading and the bottom, a waiver of these enunciated rights. Appellant signed the typed state *61 ment at 3:15 a.m. At approximately 5:00 p.m. on April 27, some 17 hours after his arrest and after an indictment was returned against him, appellant was brought before a magistrate.

Following the suppression hearing, the trial court made and filed findings of fact and conclusions of law. As material to the contentions dispositive of the appeal, the court included in its factual findings a finding that appellant’s confession was freely and voluntarily made and is admissible, and concluded from all of its factual findings that: appellant’s arrest was unauthorized because no probable cause existed for the issuance of a warrant for arrest; the connection between appellant’s unauthorized arrest and his confession was sufficiently attenuated by intervening circumstances of two periods of time — viz., one of approximately 35 minutes for the trip from Texline to Dalhart, and the other of approximately 30 minutes while appellant was in the jail cell pending Captain Bias’ arrival — to permit the use of the statement at trial; and the confession taken from appellant was not obtained by the exploitation of an illegal arrest and should be admitted into evidence.

The trial evidence did not include the pre-trial evidence tending to connect appellant with the murder scene. Appellant’s written statement was admitted into evidence over objections, among others, that it was not shown to have been freely and voluntarily given, and it was shown to be the product of an unlawful arrest in violation of appellant’s rights under the Fourth and Fifth Amendments of the Constitution of the United States.

The court’s finding that appellant’s statement was freely and voluntarily made has been attacked by appellant with, and defended by the State in response to, a ground of error, but it is unnecessary to reach the ground and decide that issue. The court, as the sole fact finder at the pre-trial suppression hearing, concluded from its factual findings that appellant’s arrest was unauthorized for lack of probable cause; the conclusion is supported by the record and not disputed by the State; and, therefore, the illegal arrest determination is conclusive. Green v. State, 615 S.W.2d 700, 707 (Tex.Cr.App.), cert. denied, 454 U.S. 952 , 102 S.Ct. 490 , 70 L.Ed.2d 258 (1981). Thus, even though the court found that appellant’s statement met the Fifth Amendment standard of voluntariness, the finding is merely a threshold requirement for a Fourth Amendment analysis whether the State met its burden of establishing that the statement was not the product of appellant’s illegal arrest and detention. Dunaway v. New York, 442 U.S. 200, 217 , 99 S.Ct. 2248, 2259 , 60 L.Ed.2d 824 (1979); Green v. State, supra, at 707-08.

The analysis of the recorded facts to determine whether a confession was obtained by exploitation of an illegal arrest is guided by the premier, albeit not exclusive, factors identified in Brown v. Illinois, 422 U.S. 590, 603-04 , 95 S.Ct. 2254, 2261-62 , 45 L.Ed.2d 416 (1975), re-affirmed in Dunaway v. New York, supra, 442 U.S. at 218 , 99 S.Ct. at 2259 , and accorded controlling effect in our jurisdiction. See, e.g., Ussery v. State, 651 S.W.2d 767, 771 (Tex.Cr.App.1983); Green v. State, supra, at 708. Those factors are: (1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct.

Miranda warnings were given to appellant; but, although the warnings are an important factor to be considered, they alone are not sufficient to deter or remedy a Fourth Amendment violation or break the causal connection between an illegal arrest and a confession. Brown v. Illinois, supra, 422 U.S. at 603 , 95 S.Ct. 2261 . The temporal proximity of appellant’s unauthorized arrest and his confession was approximately sixty-five minutes, a lapse of time the trial court considered as two periods of time which, the court concluded, were intervening circumstances that sufficiently attenuated the connection between appellant’s arrest and his confession to permit the admission of the confession into evi *62 dence. In reality, the lapse of time is a factor distinct from the factor of intervening circumstances, and the court made no other finding of intervening circumstances; indeed, this record reveals no intervening circumstances of significance. It follows, then, that the trial court’s conclusion that the connection between appellant’s unauthorized arrest and his confession was sufficiently attenuated by the intervening lapse of sixty-five minutes has no basis in the record and is erroneous. Accord, Hale v. Henderson, 485 F.2d 266, 268 (6th Cir.1973), ce rt. denied, 415 U.S. 930 , 94 S.Ct. 1442 , 39 L.Ed.2d 489 (1974).

Resultantly, the time factor itself, in the absence of any significant intervening circumstances, admits that appellant’s confession was produced by his illegal arrest and detention, and, therefore, was not shown to be admissible. Brown v. Illinois, supra, 422 U.S. at 604-05 , 95 S.Ct. at 2262 ; Ussery v. State, supra, at 771; Green v. State, supra, at 709. This determination is enforced by the evidence that the purpose of the official conduct, a fourth-factor consideration, was patently investigatory in nature. The arrest was without probable cause and the reason given for it was specious; the detention obviously was for the extraction of the confession, the only evidence of appellant’s culpability produced at trial. Even conceding that the officers acted in good faith, their good faith cannot justify a violation of the Fourth Amendment. Dunaway v. New York, supra, 442 U.S. at 218-19 , 99 S.Ct. at 2259-60 ; Brown v. Illinois, supra, 422 U.S. at 605 , 95 S.Ct. at 2262 ; Ussery v. State, supra, at 771; Green v. State, supra, at 708-09.

The factual situation in this appeal may be said to be a replica of the factual situations in Dunaway v. New York, supra, Brown v. Illinois, supra, Ussery v. State, supra, and Green v. State, supra. In each of those cases, as here, the defendant was arrested without probable cause, illegally detained for the purpose of investigation during a period of time — one hour in Duna-way, two hours in Brown, one hour to one and one-half hours in Ussery , and three and one-half hours in Green — until, without the intervention of any significant circumstance, a confession was obtained. In each of those cases, the court held, as we hold here, that the State failed to sustain its burden of showing the confession was admissible. Thus, the trial court’s conclusion that the confession was not obtained by the exploitation of an illegal arrest is without support in the record, and the court erred in admitting appellant’s statement into evidence before the jury.

Other than appellant’s statement, the State adduced no evidence of probative force before the jury to establish his guilt of the offense charged. Given this posture of the record, there can be no further prosecution of appellant on the indictment. Burks v. United States, 437 U.S. 1, 11 , 98 S.Ct. 2141, 2147 , 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 24 , 98 S.Ct. 2151, 2154 , 57 L.Ed.2d 15 (1978).

Accordingly, the judgment of conviction is reversed and a judgment of acquittal is here rendered.

. See fn. 2 of Judge Clinton’s dissenting opinion that he filed in this cause.