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RUSSELL LEE GANT v. STATE TEXAS (03/23/83)

March 23, 1983

RUSSELL LEE GANT, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE



Petition for Discretionary Review from the Court of Appeals, Tenth Supreme Judicial District of Texas McLennan County.

En Banc. Sam Houston Clinton, Judge. Marvin O. Teague, Judge.

Author: Clinton

Sam Houston CLINTON, Judge

In an unpublished opinion the Waco Court of Appeals affirmed a judgment of conviction based on a jury verdict finding appellant guilty of murder and assessing his punishment at confinement for a term of forty five years. To do so the Court overruled five grounds of error presented by appellant, the adverse rulings on two of which are so stoutly challenged in his petition for discretionary review that we granted it in order to address them: first, his substantial constitutional claim that his invalid arrest rendered his resultant confession inadmissible was erroneously rejected by the court through its own misreading and faulty application of the opinion of this Court in Cannady v. State, 582 S.W.2d 467 (Tex.Cr.App. 1979) and, second, in any event, the court wrongfully overruled his contention that from his confession there should have been excised his account of "an extraneous offense" since it bore "no relation to this particular offense." We will place the challenged arrest in its factual setting, drawing on testimony taken at a midtrial hearing.*fn1

A rather remarkable bit of investigative work on the next day after the homicide by McLennan County Deputy Sheriff Edward Torres led him to a construction job site in Waco and a personal conversation with an uncle of appellant. Later that relative called Deputy Torres from Lampasas and informed him that appellant and his cousin were in Lampasas and asked if Torres still wanted to talk to them; when Torres affirmed that he did, the uncle said he would drive them to Waco promptly.*fn2

All agree that when appellant and his cousin, Ted Ryan, were brought to his office by Ryan's father, Torres made clear that they had not been charged with any offense, that they did not have to talk if they did not want to, but since he was investigating the death of a friend of theirs, he needed to talk to them. According to Torres both were also given an "investigation warning" by a local magistrate, and a copy thereof in the record reflects such a warning being given at 6:35 p.m. January 30, 1980. Content of the conversation that followed was not developed by the State, but after it was concluded on a seemingly unproductive note, Ryan was allowed to go, whereas appellant was arrested, detained and jailed on "a warrant sent to us from Lampasas"*fn3 said to be for the offense of misdemeanor theft. The confession appellant sees as tainted by that arrest was obtained about twenty nine hours later, at approximately midnight January 31, 1980, and post we have more to say about intervening events.

The problem presented at this point is that neither party ever produced the Lampasas County warrant with a supporting affidavit, if any. When it became apparent that it constituted the only basis for arresting him, appellant objected to any further testimony by Deputy Torres or admission of any statement "on the grounds that the affidavit and warrant on which [appellant] was held has not been produced in court... We challenge the very existence of any warrant, unless produced... in this Court. And we're relying on Cannady v. State, 582 S.W.2d 467. Therefore, the arrest was illegal, and any subsequent statement given by appellant is the fruit of a poisonous tree."

The prosecutor took the position that once it is shown to be a voluntary statement it is admissible "regardless of the legality of the arrest, so long as the statement is not a result of the arrest." Whereupon the trial court overruled appellant's objection.

Though ultimately the State's position is incorrect, Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Green v. State, 615 S.W.2d 700 (Tex.Cr.App. 1981), the threshold question is which party was charged with producing the warrant and getting it in the record for purposes of appellate determination of validity of arrest of appellant pursuant to the warrant. Both rely on selective portions of the Cannady opinion, as did the Court of Appeals. However, strictly viewed, Cannady is not controlling for either party since it involves a search warrant. Still, the rules reiterated there may well be applicable to seizure of the person purportedly made under an arrest warrant that leads to a confession, in that principles of the Fourth Amendment to the United States Constitution and of Article I, § 9, Bill of Rights in the Texas Constitution are thereby implicated. Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982); see Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979).

It is axiomatic that like a search of the person without a warrant, subject to well delineated exceptions not applicable here,*fn4 a warrantless arrest is constitutionally and statutorily prohibited. Fourth Amendment; Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971); Taylor v. Alabama, supra; Article I, § 9; Article 1.06, V.A.C.C.P.; Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214 (1943).

When an arrest is thus challenged that the burden falls on the State to justify the arrest and its consequences is the lesson taught by too many leading decisions that have dealt with the issue, e.g., Whiteley v. Warden, supra, 401 U.S. at 570; Brown v. Illinois, supra, 422 U.S. at 604-605; Dowdy v. State, 534 S.W.2d 336, 339 (Tex.Cr.App. 1976). When that justification is authority by warrant, implicit in the opinions of such cases as Haynes v. State, 468 S.W.2d 375 (Tex.Cr.App. 1971) is that the purported warrant must be produced for inspection of the trial court for a determination of its sufficiency, as was done there, id., at 378:

"The records reflect that the four felony arrest warrants were introduced into evidence. They are valid on their faces."

See also Dusek v. State, 467 S.W.2d 270 (Tex.Cr.App. 1971), in which a stipulation was substituted for three of four original warrants and the fourth was an exhibit, thus satisfying a contention that "before the officers testified as to the arrest and search" the State was required to present the warrants for inspection by the court, id., at 271. The Court noted that the authorities relied on by the appellant to support his contention dealt with a search rather than an arrest warrant, but did not suggest they are inapposite.

Accordingly, we find there is no principled reason to distinguished between a search and an arrest in applying the rules restated in Cannady v. State, supra. Therefore, we hold that when an accused objects to admission of evidence on the ground that it is tainted by a warrantless arrest and the State relies on an arrest warrant, in the absence of waiver, reviewable error will result unless the record reflects that the arrest warrant was exhibited to the trial judge for a ruling. Cannady, supra, at 469. Unlike the record in Cannady, there is no showing in the record before the Court that the purported Lampasas County arrest warrant was ever exhibited to the trial judge. Thus, the corollary rule - that if appellant desires an appellate review of the warrant and supporting affidavit, if any, he must offer a copy thereof for the record - never came into play in the case at bar. Appellant's objection to validity of his arrest should have been sustained. See Vines v. State, 397 S.W.2d 868 (Tex.Cr.App. 1966) and Skiles v. State, 109 Tex. Crim. 6, 2 S.W.2d 436 (1928), two of several authorities cited by the Court in Cannady.

Having found that the trial court erred in that respect means only that we must now examine the circumstances surrounding acquisition of a written confession from appellant in the light of his being held in jail on an arrest not shown to be lawful Green v. State, supra; Dowdy v. State, supra, at 339. The key factors to be examined in light of the evidence are those set forth in Brown v. Illinois, supra.

After Torres allowed cousin Ted Ryan to leave, the nineteen year old appellant was booked into the McLennan County Jail on the Lampasas County warrant. But Torres merely "believed" that appellant was warned by a magistrate concerning that charge - we have no written warning in the record.*fn5 Nor does it appear that proceedings mandated and contemplated by Articles 15.18 and 15.19, V.A.C.C.P. were held.*fn6

At some point during their discussion on Wednesday evening, January 30, Torres had asked appellant if he would object to "going on a polygraph;" since the latter did not, the next day, Thursday, Torres removed appellant from the McLennan County Jail and took him to a DPS polygraph operator in Waco. At completion of the examination the operator told appellant and Torres that appellant "knew more than he was saying" about the murder under investigation. Returning to the McLennan County Jail, Torres told appellant, "I probably would [want to talk to him some more]," and, according to Torres, appellant said that "he had something to tell me anyway." However, Torres replied that since it was late in the evening for appellant to "go upstairs to his cell and get some rest and get something to eat," and Torres would talk to him later.

The record, primarily testimony of Torres, is far from clear about how he and other officers came to converse with appellant again. It appears that about 11:00 p.m. Thursday night Torres "went up and talked to him again" after warning him, and at that point appellant "told me what he had done." Torres "brought [appellant] downstairs" and before the confession in question was reduced to writing somehow, somewhere "caused [appellant] to be warned" by the same magistrate that had given the "investigation warning" on Wednesday. (Though both parties referred to a State's Exhibit No. 12 being dated January 31, with "murder being handwritten "at the bottom of it," and a time of "11:50 p.m.," that exhibit is not in the record before us, and the confession itself recites only that appellant had been warned by the magistrate "at 6:35 p.m.... on the 30 day of January, 1980" - in other words when the "investigation warning" had been given.)

Thereafter, as we understand it, appellant started talking about events leading up to the killing and a police record secretary attempted to write it down in longhand, but when appellant became dissatisfied with that procedure he volunteered to and did proceed to write the rest of his statement in his own words - consuming three and a half legal size pages. His own statement was then typed on the standard confession form alluded to above. The latter concludes: "Furthermore if one word is [sic] added to or taken from this statement; I will completely retract every word." We observe that the typed version is faithful to what appellant wrote in his own hand, revealing meticulous details of events and occurrences before, leading up to, during and after the deceased was literally assassinated by appellant - exonerating entirely his cousin, Ted Ryan.

We find the taint of the presumptively illegal arrest of appellant at the McLennan County Jail, though not purged alone by Miranda warnings, Brown v. Illinois, supra, 422 U.S. at 601-602, was removed by the time and circumstances under which the confession was ultimately given. Thus, there could be no doubt of the purpose of his being driven by his uncle, along with his cousin, from Lampasas to McLennan County Sheriff's Office. Though he may well have been surprised at being held on the Lampasas County warrant while Ryan was released to return to Lampasas, he willingly agreed to submit to a polygraph examination concerning his implication in the murder of a friend. As a practical matter, then, that Torres failed to take appellant before a magistrate for fixing of bail with respect to the outstanding misdemeanor theft charge pending in Lampasas is not particularly flagrant misconduct. Overnight and, so far as appears, well into the Thursday, though still confined, appellant was not interrogated, and he did not remark about any particular event occurring in the interim. The agreed visit to the polygraph operator and his test seem routine, and while no doubt troubled by the conclusion that he "knew more than he was saying," appellant was not subjected to follow-up questioning about that. Torres even declined an opportunity to inquire what it was that appellant had to tell him, suggesting that appellant first eat and refresh himself. Later, after Torres returned and again warned him, appellant simply told Torres what he had done.*fn7 Shortly thereafter, appellant was writing out in his own hand an expansive account of the entire episode.*fn8

We conclude that his confession was not obtained by exploitation of an illegal arrest and that the trial court did not err in admitting it into evidence. Dowdy v. State, 534 S.W.2d 336, 339-340 (Tex.Cr.App. 1976); cf. Green v. State, supra. Accordingly, for these reasons the fourth ground ...


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