holding that there was a rational inference from the evidence that the defendant was in a public place although no one saw the defendant physically in a public place; evidence was that the defendant had jumped fences of private residences, officers lost sight of him and searched surrounding areas, and the defendant was later found at the original location
How later courts described this case
- holding that there was a rational inference from the evidence that the defendant was in a public place although no one saw the defendant physically in a public place; evidence was that the defendant had jumped fences of private residences, officers lost sight of him and searched surrounding areas, and the defendant was later found at the original location
- holding trial court could infer that appellant appeared in public place and there was probable cause to arrest appellant for public intoxication when appellant was caught in side yard of private residence after he had climbed over fence and tried to escape through adjoining neighbors’ yards
- holding, by not objecting, appellant failed to preserve error regarding complaints that prosecutor misstated the law, argued matters outside the record, and repeatedly attempted to inflame the jury during closing arguments and thereby violated his Eighth and Fourteenth Amendment rights
- holding that an objection is required to preserve a claim that a prosecutor’s closing argument violated the Eighth and Fourteenth Amendments when he “misstated the law, argued matters outside the record, and repeatedly attempted to inflame the jury during closing arguments”
Written by the judges who cited it.
The opinion
BAIRD, Justice,
concurring.
The majority resolves appellant’s first point of error by stating: “... based upon the evidence before the trial court, the inferences the trial court could draw from the record are enough to support a finding that appellant appeared in a public place ... and that there was probable cause to arrest appellant for public intoxication.” Majority Op. 52-3. I cannot agree that a yard of a prívate residence is a “public place” as contemplated by the Legislature when Tex.Penal Code Ann. § 42.08(a) was enacted.
I.
At the hearing on appellant’s motion to suppress evidence, appellant’s sister, Amelia Sebedra, testified appellant came to her home during the early morning hours of August 3, 1986. Appellant requested Sebedra and her husband drive him to a cousin’s home in Comanche and stated he had killed “an old lady and a guy who tried to defend her.” During the drive to Comanche, appellant related that he had sold his soul to the Devil and the Devil instructed him to Idll six people. Appellant stated he had to kill four more people. Appellant had a lot of money with him and offered Sebedra fifty dollars. Appellant’s face and neck were scratched and his shirt had blood on it. After asking Sebe-dra to look at him, appellant stated he was Satan. Appellant’s actions became so strange that Sebedra and her husband stopped their vehicle to calm appellant.
After leaving appellant at their cousin’s home, Sebedra and her husband left to call appellant’s parents. Sebedra then went to the Sheriffs office where she described appellant’s behavior and statements to Comanche Police Officer McDonald and asked *65 McDonald to apprehend appellant. McDonald initially refused, stating the blood on appellant’s shirt could be from a fight. However, at Sebedra’s persistence, McDonald followed her to her cousin’s home. As the police arrived appellant left through a back door, but was arrested when he returned. 1
Appellant’s cousin, Elvira Liendo, testified Sebedra and her husband brought appellant to her home in the early morning hours of August 3,1986. Upon learning that Sebedra left, appellant became angry and stated he would kill her. Appellant further informed Liendo he had killed a lady in Hamilton. When Officer McDonald arrived at her home, appellant left through the back door. Liendo testified she gave McDonald appellant’s bloody shirt. Finally, Liendo testified appellant was arrested when he returned to her home.
Officer McDonald testified he met with Sabedra and her husband during the early morning of August 3, 1986. Sabedra stated she and her husband had just driven appellant from Hamilton to a cousin’s residence in Comanche. She informed him that appellant was drunk, belligerent and appeared to have blood on his shirt. Further, she related that appellant stated “he killed some people ... [and] had to get away from there [Hamilton].”
McDonald further testified he followed Sebedra to the Liendo’s home. When McDonald arrived, several people came from the house stating “he’s in the back yard.” McDonald looked around the comer of the house and observed a man going over the fence. Giving chase, McDonald climbed the fence but did not see the man.
McDonald called for backup and returned to talk to appellant’s relatives, who stated:
... [appellant] was drunk, acting crazy. He had talked about killing some people in Hamilton, said he was going to have to kill some more before he got away from Comanche, and they were — they stated they were scared of him.
McDonald testified that, during this conversation, Liendo gave him appellant’s bloody shirt. When other policemen arrived, the search for appellant continued. Policemen checked the public streets, alleys and buildings in the immediate area but were unable to locate appellant. When McDonald drove back to the Liendo’s residence he was informed appellant was again in the back yard. McDonald found appellant standing in the yard on the North side of the house. Appellant wore no shirt, was belligerent, and smelled strongly of alcohol. Observing the way appellant was “standing, swaying and swerving,” McDonald determined appellant was intoxicated and arrested appellant for public intoxication. McDonald testified the only place he ever saw appellant was in the yard on the north side of Liendo’s home.
II.
Appellant’s first point of error is based upon the trial judge’s denial of his motion to suppress evidence obtained as a result of a warrantless arrest. Appellant contends the trial judge erred in denying appellant’s motion to suppress the evidence obtained as a result of his warrantless arrest for public intoxication. As we stated in Fry v. State, 639 S.W.2d 463 (Tex.Cr.App.1982):
In Texas, a peace officer’s authority to make a warrantless arrest is controlled exclusively by statute. The Code of Criminal Procedure authorizes very few exceptions to the general requirement that a peace officer obtain a warrant before making an arrest.
Id., 639 S.W.2d at 465 (citations and footnotes omitted). Thus, the State held the burden of proving appellant’s arrest fell within one of the statutory exceptions included Tex.Code Crim.Proc.Ann. art. 14. The State contends appellant’s warrantless arrest was proper under either Tex.Code Crim.Proc. Ann. arts. 14.01(b) or 14.03(a)(1).
*66 A.
I assume, from the extensive discussion of public intoxication in the majority opinion, the majority finds appellant’s warrantless arrest was proper under art. 14.01(b). Majority Op., pp. 52-53. However, appellant’s war-rantless arrest cannot be justified by art. 14.01(b), which provides:
A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
Id. 2 Appellant did not violate Tex.Penal Code Ann. § 42.08(a), public intoxication, in McDonald’s presence because McDonald never observed appellant in a public place. Tex.Penal Code Ann. § 42.08(a) provides:
(a) An individual commits an offense [Public Intoxication] if the individual appears in a public place under the influence of alcohol or any other substance, to the degree that the individual may endanger himself or another.
Id. (Emphasis added.) Tex.Penal Code Ann. § 1.07(a)(40) 3 defines “public place”:
“Public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.
Under this definition, I cannot conclude appellant “appear[ed] in a public place.” Lien-do’s home was a private residence and did not fit any of the illustrations provided by § 1.07(a)(40). Further, there is no evidence the public, or a substantial group of the public, had access to Liendo’s yard.
In Pugh v. State, 55 Tex.Crim. 462 , 117 S.W. 817 (Tex.Cr.App.1909), the defendant was convicted of “being drunk in a public place.” Id. The State’s evidence demonstrated Pugh attended a social gathering held at a private residence and was arrested when he was discovered “lying down in the yard apparently sick.” Id. We held:
... A private residence cannot be a public place within the terms of our statute, nor at any time, unless it is made public by being thrown open for access to the public.... Nor does the mere fact that a few invited guests attended the gathering of a friend at the private residence of their friend constitute that gathering a public one, or the residence a public place.... It may be questioned that the evidence is sufficient even to show that appellant was drunk; but clearly it excludes the idea that, if he was drunk, it was a public place.
Id., 117 S.W. at 818 . Therefore, under art. 1.07(a)(40) and our settled case law, the yard of a private residence is not a public place.
This failure of the State’s proof prompts the majority to judicially create a “rule of inference” to satisfy the State’s burden. Apparently, the majority believes the trial judge, and therefore this Court, may infer appellant was in a public place because: 1) appellant climbed a fence between two private residences; and, 2) law enforcement officers were unable to locate appellant by searching the public streets, alleys and braid-ings in the immediate area. Majority Op., pp. 51-53. Therefore, the majority concludes McDonald had probable cause to arrest appellant for public intoxication. Notwithstanding this newly created rule, art. 14.01(b) requires the offense to have been committed within the officer’s view. Because McDonald never observed appellant in a public place, appellant’s arrest was not justified under art. 14.01(b).
B.
The State further contends appellant’s arrest was lawful under art. 14.03(a)(1), which provides:
(a) Any peace officer may arrest, without warrant:
(1) 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....
However, the State fails to argue in their brief why this arrest was justified under art. *67 14.03(a)(1). 4 After reviewing the record, I do not believe appellant’s arrest falls within the art. 14.03(a)(1) exception.
We have held that “circumstances which reasonably show that such person have been guilty of some felony ...” is the constitutional equivalent to probable cause to believe that a particular person has committed a felony. Muniz v. State, 851 S.W.2d 238, 251 (Tex.Cr.App.1992). Further, “few, if any, places are suspicious in and of themselves.” Id. It is only when additional facts are available to policemen, along with reasonable inferences from those facts, which arouse suspicion, that a place may become a suspicious place. Id. See, Lara v. State, 469 S.W.2d 177, 179 (Tex.Cr.App.1971); and, Muniz, 851 S.W.2d at 251 .
In the instant case, McDonald did not feel he had probable cause to arrest appellant for a felony. Such is evident in McDonald’s explanation to Sebedra that he could not arrest appellant because appellant’s dress and behavior was consistent with innocent activity. See, I, supra. See also, Torres v. State, 868 S.W.2d 798, 803 (Tex.Cr.App.1993). Further, Sebedra’s report to McDonald did not establish probable cause to believe appellant had committed a felony. McDonald did not know Sebedra and could not vouch for her credibility. We have held information provided by a police broadcast or an anonymous phone call is insufficient, standing alone, to establish probable cause for an arrest. See, Amores v. State, 816 S.W.2d 407, 415 (Tex.Cr.App.1991); Rojas v. State, 797 S.W.2d 41, 43 (Tex.Cr.App.1990); Glass v. State, 681 S.W.2d 599 (Tex.Cr.App.1984); Ferguson v. State, 573 S.W.2d 516, 522 (Tex.Cr.App.1978); Ablon v. State, 537 S.W.2d 267, 269 (Tex.Cr.App.1976); and, Mann v. State, 525 S.W.2d 174, 176 (Tex.Cr.App.1975). A report by a citizen, whose credibility is unknown, is akin to an anonymous phone call and may not establish probable cause. Smith v. State, 739 S.W.2d 848, 852 (Tex.Cr.App.1987). McDonald made no attempt to determine whether a murder had occurred in Hamilton or whether there was another explanation for appellant’s reported behavior.
The instant case is similar to Smith, supra, where a police officer was dispatched to the Tip Top Club to investigate a fight. Upon his arrival the officer stopped to talk with three citizens outside the club. When the defendant came out of the club the citizens yelled “He has a gun.” The officer gave Chase and arrested the defendant for public intoxication. Smith, 739 S.W.2d at 850-851 . We held the arrest illegal;
We have carefully examined ... the Code of Criminal Procedure ... but do not find there in where any of the listed statutory exceptions might be applied to this case. [Smith] was never shown to have been committing a felony, a misdemeanor, or an offense against the public peace in the presence or within the view of [the officer]. There is no evidence that might reflect or indicate that when [the officer] first saw him [Smith] was located in a suspicious place and under circumstances which might have reasonably shown that he was guilty of some felony or breach of the peace, or was threatening or was about to commit some criminal offense.
⅜ ⅜ ⅜ ⅜ ⅝ ⅜
Given the facts of this case, the information that [the officer] had when he first came into contact with [Smith] was, for purposes of establishing probable cause to arrest, no better than if the females had made an anonymous telephone call to him and told him that there had been a fight inside the club and that appellant had a gun.
Id., 739 S.W.2d at 852 . In the instant case, because the statements made by Sebedra *68 and Liendo were no more credible than an anonymous phone call reporting the same facts, McDonald had no basis upon which he could establish a reasonable belief that a felony or breach of the peace had been committed. Further, there is nothing suspicious about appellant’s presence at his cousin’s home or yard. Appellant’s arrest was not authorized by art. 14.03(a)(1).
Therefore, appellant’s warrantless arrest does not fall within any of the exceptions to our general requirement that a peace office must have a warrant before making an arrest.
III.
Having found appellant’s arrest to be illegal, the next inquiry is whether the trial judge erred in overruling appellant’s motion to suppress. Appellant’s motion does not state what evidence should be suppressed as a result of his illegal arrest. However, appellant contends, on appeal, the trial judge should have suppressed appellant’s statements to a Comanche County jailer and certain physical evidence obtained while he was in custody.
A.
Appellant’s Statement
After appellant’s arrest, McDonald transported appellant to the Comanche County Jail and informed appellant of his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Beth White was the jailer assigned to book the prisoners. Unaware of appellant’s earlier statements to Sebedra and Liendo, or the incidents which occurred at Liendo’s home, White proceeded to book appellant into the jail. When White attempted to place appellant in the “drunk tank” he stated: “Don’t put me in with anybody else. I’ll kill them. I have already — it won’t bother me to kill them, I have already killed somebody.” Appellant then explained he had stabbed someone to death in Hamilton. White moved appellant to an individual cell and recorded his statements in the jail log.
Evidence will not be excluded simply because it is obtained after an illegal arrest. Bell v. State, 12A S.W.2d 780, 787 (Tex.Cr. App.1986). To determine whether the trial-judge correctly denied appellant’s motion to suppress appellant’s statements to White, we must review the circumstances surrounding the statements to determine whether they are sufficiently attenuated from the taint of the illegal arrest. Id.; Maixner v. State, 753 S.W.2d 151, 155 (Tex.Cr.App.1988); and, Johnson v. State, 871 S.W.2d 744, 751 (Tex.Cr.App.1994). In Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), the Supreme Court provided four relevant factors to assist in our determination:
(1) whether or not the accused received Miranda warnings;
(2) the temporal proximity of the arrest and the [statements]
(3) the presence of intervening circumstances; and
(4) the purpose and flagrancy of the official conduct.
Brown, 422 U.S. at 604-605 , 95 S.Ct. at 2261-2262 .
In the instant case appellant received his Miranda warnings prior to his statements. However, the statements occurred shortly after appellant’s arrest and there were no intervening circumstances. Therefore, while the first factor militates in favor of the admissibility of appellant’s statements, the second and third factors militate against the admission of appellant’s statements. But I believe the fourth factor is determinative in the instant ease. There is nothing in the record to suggest McDonald had any underlying purpose in arresting appellant or that the illegal arrest was particularly flagrant. Appellant’s statements did not result from custodial interrogation. Instead, the statements were made to a jailer who was unaware of the circumstances of appellant’s arrest or of appellant’s statements to Sebedra and Liendo. Indeed, White was following established procedure at the Comanche County Jail attempting to place an intoxicated prisoner into the “drunk tank.” White had no reason to suspect appellant of any other offense and was not investigating any offense. Therefore, appellant’s statements are sufficiently attenuated from his illegal *69 arrest because appellant received Ms Miranda warnings and there is a complete absence of any improper purpose or flagrant police misconduct. The trial judge did not err in overruling appellant’s motion to suppress his statements to WMte.-
B.
The Physical Evidence
The record indicates that on the day of appellant’s arrest, a Hamilton County Justice of the Peace issued a warrant for appellant’s arrest on capital murder charges. The warrant was served on appellant in the Comanche County Jail and appellant was taken before a Comanche County Justice of the Peace and informed of Ms legal rights. 5 The Justice of the Peace executed a form entitled “Warning of Rights” indicating appellant was informed of these rights and appellant executed the same form indicating he understood them. Appellant was thereafter transported to, and booked into, the Hamilton County Jail. After arriving at the Hamilton County Jail, appellant agreed to provide samples of his head and pubic hair. The next day appellant was again informed of Ms legal rights by a Hamilton County Justice of the Peace. Subsequent to tMs second warning, appellant consented to the production of samples of Ms blood and saliva, and later provided additional samples of Ms head and pubic hair.
The physical evidence was seized after the Hamilton County Justice of the Peace issued a capital murder arrest warrant. In Cook v. State, 858 S.W.2d 467 (Tex.Cr.App.1993), the defendant challenged the legality of his arrest and contended the trial judge erred by failing to suppress the victim’s watch and wallet which were found on the defendant. However, a warrant for Cook’s arrest was issued prior to the seizure of the evidence. We stated:
[Cook] does not contest the validity of the warrant. Therefore, the record does not support [Cook’s] contention that the seizure of the watch and the wallet were the result of an illegal search and arrest.
Id., 858 S.W.2d at 473 . Our reasomng in Cook is applicable to the instant case. The physical evidence was not seized until after the arrest warrant from Hamilton County was executed and appellant does not contest the validity of that warrant. Therefore, the trial judge did not err in overruling appellant’s motion to suppress the physical evidence.
IY.
Appellant’s warrantless arrest did not meet the requirements of Tex.Penal Code Ann. § 14.01(b) or § 14.03(a)(1), and was, therefore illegal. However, the trial judge correctly overruled appellant’s motion to suppress. Therefore, I concur in the majority’s resolution of appellant’s first point of error and join only the judgment of the Court.
CLINTON, J., joins tMs opirnon.
. Sebedra's written statement was admitted at the hearing on appellant's motion to suppress. In her statement, Sabedra states appellant left and hid in a tree when the police arrived.
. All emphasis is supplied unless otherwise indicated.
. Formerly, Tex.Penal Code Ann. § 1.07(a)(29).
. The State's total argument in relation to this issue is:
... Given the conversation that Officer McDonald had had with Appellant’s sister and brother-in-law, Amelia and Jesse Sabedra; given the information that Elvira Liendo had furnished to him; given the bloody tee shirt that had been given to him by Elvira Liendo; and given the action of Appellant in crawling over the fence and running away when the officer arrived on the scene, Appellant was found by Officer McDonald in a suspicious place and under circumstances which reasonably showed that Appellant was guilty of some felony or breach of the peace, or threatened, or was about to commit some offense against the laws.
State’s Brief, pg. 19.
. Appellant was informed: 1) he was charged in Hamilton County with capital murder; 2) he had the right to retain a lawyer to represent him prior to any questioning, or, if he was to poor to retain a lawyer, he could request the appointment of a lawyer; 3) he had the right to remain silent; 4) he did not have to make any statement and any statement that he made may be used against him; 5) he had the right to stop any interview at any time; 6) he had the right to an examining trial; and 7) that bail was denied. See, Tex.Code Crim.Proc.Ann. art. 15.17.