Harper v. State

¶1(dissenting).

¶2In his first two grounds of error appellant contends a statement made by him to an officer while he was under arrest resulted from custodial interrogation. He urges that both Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, Vernon’s Ann.C.C.P. were violated.

¶3The opinion prepared for the court by Judge Morrison recognizes the error, but would hold the error harmless in view of the overwhelming evidence of guilt. I wish I could concur that the error was harmless, but I cannot, and I cannot agree with the concurring opinion that the statement was “in no way inculpatory” and that while appellant was not free to go he was not under arrest.

¶4A short resumé of the facts is necessary.

¶5William Dinkins, owner of a 1971 red Volkswagen, testified on December 18, 1973, he took his vehicle to a Volkswagen dealer in Dallas for a tune-up and repair and turned the car over to Cliff Autrey, a service adviser. Autrey testified that it was discovered later that afternoon the car had been taken from the dealer’s lot. He related he did not give anyone permission to take the car from the lot. There was no witness to the taking.

¶6Dallas Police Officer Jack Swafford testified about 2 p. m. on January 12, 1974, almost a month after the alleged offense, he was assisting a driver’s license checkpoint by insuring that motorists did not avoid the checkpoint. He related he saw a 1971 red Volkswagen approach the checkpoint and go almost through the intersection and then make a sudden left turn at a higher than normal speed. Swafford testified he stepped out of his police vehicle and signaled the car to stop, which it did. The appellant was identified as the driver of the car and was unable to produce a driver’s *779license or any identification, though he gave his name. The officer noticed the car had only one rear license plate, and he stepped to his patrol vehicle and checked on the registration and was informed by the dispatcher that the license number was registered to a Toyota rather than a Volkswagen. After five or ten minutes, he returned to the Volkswagen and asked the appellant to whom the car belonged and, over objection, was permitted to testify that appellant replied the car belonged to his sister, Mary Richardson. The officer testified that at the time of the questioning the appellant was not free to leave, that he was under investigation for a criminal offense — having no driver’s license. While other officers who had arrived were taking appellant to the address where he claimed he lived, Officer Swafford observed the vehicle identification number, normally visible through the windshield of the car, had been pried off. After appellant’s return and it was learned he had pointed out a vacant house as his address, appellant was arrested for “theft.”

¶7The owner’s manual and his address were found in the car. Dinkins was called and recovered his vehicle.

¶8At the time of the complained of statement, the appellant was obviously under arrest for failure to exhibit a driver’s license in violation of Article 6687b, Sec. 13, Vernon’s Ann.C.S. He was not free to leave. Upon his return to the Volkswagen, the officer was also aware that the vehicle bore license plates registered to a different motor vehicle, which was a violation of Article 6675b-7, Vernon’s Ann.C.S.,1 although he testified he had not yet determined whether he would charge anyone with “theft” of the vehicle.

¶9Custodial interrogation was defined in Mirandaas “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” See also Ancira v. State, 516 S.W.2d 924 (Tex.Cr.App.1974). And such custodial interrogation is not limited to police station house interrogation. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

¶10This court in Ancira, supra, further cited with approval United States v. Phelps, 443 F.2d 246 (5th Cir. 1971), where it was stated:

“ . . . (W)e have noted several significant factors which should be considered in determining whether or not a defendant is in custody. For example, probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant have all been deemed relevant.” Miranda v. Arizona, 384 U.S. at p. 444, 86 S.Ct. at p. 1602.

¶11Further, it is provided in Article 15.22, Vernon’s Ann.C.C.P.:

“A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.”

¶12In the instant case there clearly was probable cause to arrest for failure to exhibit a driver’s license, which the officer did. In addition, there was probable cause to arrest when it was discovered the Volkswagen bore a license plate issued to a Toyota, and the officer repeatedly testified that at the time of his questioning the appellant was not free to go. While the officer had not yet decided to arrest anyone for “theft” or unauthorized use of a motor vehicle, it is clear that such investigation, under the circumstances, had begun to focus upon the *780appellant and he had already been placed under restraint.

¶13No warnings having been given, I would conclude that appellant’s statement as to the ownership of the automobile given during custodial interrogation was not admissible in light of Miranda, nor under the provisions of Article 38.22, Vernon’s Ann.C.C.P. The fact that the appellant was under arrest for other offenses and not free to go distinguishes the instant case from a general investigation into an unsolved crime [see Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), and cases there cited] as well as those cases upholding the admissibility of statements made within the ambit of a general on-the-scene investigatory process. See Tilley v. State, 462 S.W.2d 594 (Tex.Cr.App.1971); Higgins v. State, 473 S.W.2d 493 (Tex.Cr.App.1971); Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975). And it is likewise distinguishable from those cases where the individual was not under arrest when the statements were made. See Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975); Graham v. State, 486 S.W.2d 92 (Tex.Cr.App.1972).

¶14Further, it is noted that the oral inculpa-tory statement admitted was not within any of the exceptions pertaining to oral confessions or statements within the ambit of Article 38.22, Vernon’s Ann.C.C.P. Although the statement was not in the mode of a classical confession, it would never have been offered by the State unless it tended to show his guilt — that he had lied about the ownership of the car. Under our time honored interpretation of our confession statute, such statement was not admissible as evidence. See Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973); Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973); Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971).

¶15As stated in Dover v. State, 81 Tex.Cr.R. 545, 197 S.W. 192 (1917):

“The purpose and effect of this statute is to prevent the prosecution from using against the accused the testimony of the officer having him under arrest to a verbal statement made by the accused which the state seeks to use to prove his guilt.” (Emphasis Supplied) See also Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163 (1931).

¶16In the instant case there were no witnesses to the actual taking. The most damaging testimony to the appellant was that he was in possession of the vehicle bearing the wrong license plates almost a month after the taking. In order to bolster its case, the State offered the complained of testimony to show that in addition to possession he lied to the officer as to the ownership of the car. I cannot agree that the error in admitting the statement made under arrest was harmless error beyond a reasonable doubt because of other evidence of guilt which was overwhelming under the circumstances presented. It is interesting to note that not a single case cited in support of such holding involved a violation of Mirandaor Article 38.22, supra.

¶17I dissent.