author: DOUGLAS, Judge. W. C. DAVIS, Judge, PHILLIPS, Judge,

text:
    Robert Preston HAMEL, Appellant, v. The STATE of Texas, Appellee.
    No. 55462.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.
    Rehearing En Banc Denied June 20, 1979.

      Georgé R. Schilter and Allen C. Isbell, Houston, for appellant.
    Ronald L. Wilson, Dist. Atty., and David P. Walker, Asst. Dist. Atty., Galveston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of possession of heroin. Punishment, enhanced by one prior felony conviction, was assessed by the jury at twenty years. The sufficiency of the evidence is not challenged.

Appellant first contends that an incriminating oral statement which was made by him and introduced at trial was the fruit of an unlawful arrest and therefore inadmissible.

On November 28, 1975, appellant’s apartment in Texas City was under surveillance by police officer Frank Fleming. At that time, appellant was suspected of burglary and trafficking in narcotics. At 4:00 p. m., appellant left his apartment with Viola McComb, Larry Ellis and Joyce Ellis. The four drove in appellant’s car to a Woolco department store and went inside. Officer Fleming followed, waited in the parking lot and radioed to Officer Deril Oliver to assist him. Both officers saw appellant exit the store alone with something in his hand, look around him and walk to the ear. He drove the car to the store entrance where he stopped and continued to look around. Viola McComb, Larry Ellis and Joyce Ellis emerged from the store next. All had objects in their hands and continually looked over their shoulders in a suspicious manner; Larry Ellis appeared to be telling Joyce Ellis to hurry up and get into the ear.

On cross-examination Officer Oliver testified:

“First of all, when Hamel went by himself, alone, took the car out of the parking lot, put it up to the main entrance; subsequently Viola came out in a hurry, looking over her shoulder.
“Just a minute or two later, the other two parties came out. They, too, rushed to the automobile, they, too, acted as if they were looking over their shoulder to see if anyone was coming after them.
“We felt something occurred in the store but we didn’t know what. We had a pretty good idea.”

At the request of Officer Fleming, appellant’s car was stopped by Officer Oliver’s marked patrol unit on Palmer Highway. Officer Oliver testified that appellant’s car was stopped because the officers thought that there was a possibility that the four were shoplifting. On the front console and rear floorboard arresting officers found numerous new, small items with Woolco price tags on them; they were not, however, in bags as if they had been bought. The four were then arrested for shoplifting.

Appellant was taken before Texas City Justice of the Peace Bishop and given the statutory warnings which he stated he understood. Following his admonishment by the magistrate appellant was informed by police officers that his apartment had been under surveillance and that they suspected that it contained narcotics and stolen property. Appellant agreed to sign a consent to search but was not induced to do so by threats, coercion, or physical abuse of any kind. After signing the consent to search, appellant stated to officers: “You’re going to find it anyhow. I will tell you there’s some stuff there.” He related that police would find heroin in the bathroom linen closet and further stated that the heroin belonged to him and not to Viola McComb with whom he had been living. Appellant requested that Officers Fleming and Oliver not charge McComb with possession of heroin, to which request they agreed. A search of appellant’s apartment produced two plastic syringes and a red balloon containing heroin which were found in the bathroom in the precise spot where appellant told police they had been hidden.

Officer Fleming testified that at the time he radioed Officer Oliver to stop appellant’s car he had no evidence that appellant had committed a breach of peace or felony upon which he could have obtained a warrant. For this reason, appellant contends his arrest was not made upon probable cause and that the incriminating statement made by him thereafter was inadmissible.

While this Court has previously held that the inarticulate hunch, suspicion, or good faith of an officer will not constitute probable cause for arrest, search or detention, Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973) considerably more than an inarticulate hunch existed in the present case. Appellant’s apartment had been watched for a considerable period of time by officers acting upon informant’s tips that drug sales were being negotiated inside. Appellant had previous convictions for selling heroin, for burglary, and was further known to Officers Fleming and Oliver as the subject of numerous burglary investigations. Appellant’s behavior as a “wheel man” in front of the Woolco store was suspicious, as was the hurried, nervous and watchful behavior of appellant and his companions, all of whom went into the store empty handed but emerged carrying objects in their hands. Such circumstances, while falling short of probable cause, nevertheless justified Officer Oliver’s temporary detention of appellant’s car. Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Baity v. State, 455 S.W.2d 305, cert. denied 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 (1970). Upon detaining appellant and his passengers, Officers Oliver and Fleming saw, lying in the car in plain view, new merchandise which had Woolco price tags but which were not in bags as they would normally be if they had been purchased. At this point the officers were empowered to arrest appellant without a warrant pursuant to Article 14.03, V.A.C.C.P., which provides:

“Any peace officer may arrest, without warrant, 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.

Warrantless arrests pursuant to Article 14.-03 under circumstances comparable to those of the present case have been approved by this Court in Castillo v. State, 494 S.W.2d 844 (Tex.Cr.App.1973); Kwant v. State, 472 S.W.2d 781 (Tex.Cr.App.1971); Baity v. State, supra; Alaniz v. State, 458 S.W.2d 813 (Tex.Cr.App.1970); and Stuart v. State, 447 S.W.2d 923 (Tex.Cr.App.1969).

We conclude that appellant’s detention and arrest without a warrant were proper. Even if it had not been, that fact alone would not render appellant’s oral statement inadmissible absent a causal connection between the arrest and the confession. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975). In the present case appellant was arrested for shoplifting. After being properly informed of his rights, however, he freely and voluntarily admitted possessing heroin, an unrelated offense. His oral admission led officers to fruits of the crime. Where, as in this case, the requirements of Article 38.22, V.A.C.C.P., are complied with, the defendant acts of his own free will and his statement has not resulted from the arrest itself, his confession is not vitiated by an unlawful arrest. Pearson v. State, 414 S.W.2d 675 (Tex.Cr.App.1967).

He also complains of the admission of heroin into evidence for the same reasons previously advanced. We have already determined that appellant’s arrest was lawful. The heroin found in the consensual search of his apartment was not tainted and inadmissible evidence.

Appellant next argues that the court erred in admitting both the heroin and his oral confession into evidence on the grounds that the consent to search was not voluntarily given but, rather, induced by a promise not to charge Viola McComb with possession of heroin.

The record reflects that Officers Fleming and Oliver promised not to file a possession charge against Viola McComb after appellant’s consent to search had already been executed. Such consent preceded the officers’ promise and was not given in response to it or to any kind of physical or mental coercion. The evidence was lawfully obtained; no error is shown.

Hamel next complains that his conviction should be reversed because of his and appointed defense counsel’s failure to waive in writing the ten day trial preparation period as required by Article 26.04(b), V.A.C.C.P.

Counsel was appointed on April 19, 1976, and the instant case was tried on April 22, 1976. The record actually reflects that defense counsel was originally retained by appellant in January of 1976 and that he continued to represent appellant in a retained capacity until April 19 when appellant executed a pauper’s oath. Although ambiguous on this point, the record seems to indicate that the trial court appointed defense counsel to continue as appellant’s attorney on April 21. Both appellant and counsel orally waived additional time and counsel stated to the court that he had represented the appellant in the case for some time, had examined the district attorney’s file and was completely knowledgeable about the case.

The purpose of Article 26.04(b) is to guarantee an indigent accused that he and his appointed attorney will have reasonable time in which to prepare a defense.Thus, this Court has gone beyond the appointment time and looked to actual preparation time in determining whether the dictates of Article 26.04(b) have been satisfied. Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975); Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975); McBride v. State, 519 S.W.2d 433 (Tex.Cr.App.1974); Davis v. State, 513 S.W.2d 928 (Tex.Cr.App.1974). Defense counsel conceded that he had had more than three months to prepare for trial. There is no showing that additional time was needed, requested or wanted. See King v. State, 466 S.W.2d 322 (Tex.Cr.App.1971). Under these facts reversal is not required.

Appellant argues that the court erred in overruling his motion for mistrial following the testimony of Officer Fleming that appellant was arrested and charged with shoplifting. Appellant’s objection was sustained and a requested jury instruction to disregard was given. Error, if any, was cured. Sternlight v. State, 540 S.W.2d 704 (Tex.Cr.App.1976); Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976); Marlow v. State, 537 S.W.2d 8 (Tex.Cr.App.1976).

Grounds of error eight and nine complain of the prosecution’s failure to lay a proper predicate for the introduction of State’s Exhibits one and two. These exhibits were, respectively, the statutory warning read by Judge Bishop and the written consent to search executed by appellant. Appellant asserts that such documents were not properly authenticated under the Business Records Act, V.A.T.S., Article 3737e. This contention is without merit. Officer Fleming identified State’s Exhibits one and two as the magistrate’s warning and consent to search which were signed by Judge Bishop in his presence on November 28, 1975 and which had remained in his constructive custody since that time. A predicate for their admission was sufficiently laid. Gonzales v. State, 494 S.W.2d 912 (Tex.Cr.App.1973). The ground of error is overruled.

No error having been shown, the judgment is affirmed.

W. C. DAVIS, Judge,

concurring.

I agree with the result reached in Judge Douglas’ majority opinion. However, I would add that the authority to arrest in this situation could be derived from Art. 14.03 or Art. 18.16, Vernon’s Ann.C.C.P.

The point at which the majority and dissent take separate roads is in the determination of the existence of probable cause to arrest, following an investigatory stop. Everyone agrees that the detention to investigate a possible theft was justified.

The dissent argues that the investigation by the officers did not result in additional information which would permit an arrest under Art. 14.03. On this point, the dissent argues that the only supportive evidence found during the investigation was the presence of several unbagged items with the store’s price tag still affixed. “It is common knowledge,” states the dissent, “that many people, for a variety of reasons, decline to have their goods bagged after purchasing them legitimately.”

The dissent overlooks one other supportive fact which is also common knowledge. This fact, when considered with the total circumstances, provides probable cause to arrest under either Article 14.03 or Article 18.16, Vernon’s Ann.C.C.P.

During the course of their investigation, the officers observed several unbagged items with the price tags still affixed. Two of these items, a bottle of cologne and writing tablets, were observed in the floorboard of the vehicle, a Ford Mustang. Surely, it is equally a matter of common knowledge that persons who have legitimately purchased new writing tablets do not place them uncovered in the floorboard of a Ford Mustang occupied by four people where they are assured of becoming soiled. The reasonable inference from such activity is an attempt to conceal, and thus is supportive of probable cause. Brown v. State, 481 S.W.2d 106 at 110 (Tex.Cr.App.1972).

Can it be doubted on the facts in this record that appellant and his companions could have been required to return to the store for further inquiry. Such a detention could only be characterized as an arrest. Instead, the officers chose to take appellant before a magistrate and, whether knowingly or not, complied with the procedures of Art. 18.16, Vernon’s Ann.C.C.P.

Having concluded that appellant’s arrest was valid under either Art. 14.03 or Art. 18.16, I agree with the majority upholding the consent search which produced the heroin.

PHILLIPS, Judge,

dissenting.

In disposing of appellant’s grounds of error which challenge the admissibility of his oral statement and evidence seized pursuant to his consent to search, because of an illegal arrest, the majority concludes that the arrest and detention were proper.

In disposing of appellant’s contention concerning the admissibility of his oral statement, the majority uses a standard of review previously applied only to determining whether a statement or confession is admissible when given without benefit of a magistrate’s warning. To succeed on such a contention, the appellant has traditionally been held to the burden of establishing a causal relationship between the lack of warnings and the giving of the confession. The majority ignores the rule of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The majority, as did the Illinois Supreme Court in Brown v. Illinois, supra, views the problem as primarily one of voluntariness. That case held that a confession given following an illegal arrest was inadmissible unless the State proved the taint of the illegal arrest was sufficiently attenuated. That Court ruled that Miranda warnings were a factor, but alone did not attenuate the taint of an illegal arrest. See also Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The case is not even mentioned by the majority.

The majority concludes that the warrant-less arrest of the appellant and his passengers was authorized under Article 14.03, V.A.C.C.P.

No motion to suppress the evidence or the confession was filed prior to trial. However, prior to the two involved police officers testifying to the confession and consent to search and what the search revealed, the jury was excused and a hearing conducted before the trial judge during which an objection was entered to the admissibility of the evidence involved. The evidence consisted of a balloon of heroin found in an apartment occupied by the appellant and the appellant’s statement to the police that they would find heroin in a particular place in the apartment. An examination of the witnesses outside the presence of the jury revealed that the appellant’s apartment was under surveillance because he was suspected of trafficking in narcotics. At approximately 4 p. m. the appellant and three others were observed leaving the apartment and travelling by automobile to a Woolco Department Store. All four entered the store. After the four had entered the store, Officer Oliver arrived at the scene at the request of Officer Fleming. They both observed the appellant leave the store with “something” in his hands and go to his car. He drove the car to the front of the Woolco store and waited for the .three others. Next came Viola McComb who entered the car. Then the Ellises exited and proceeded to the car. The police officers testified that McComb and the Ellises appeared to be in a hurry and looked around them as they exited the Woolco store. It was also adduced that all four people exited the store with items in hand, but not in bags. The four then'departed and the police officers radioed for another marked patrol unit to stop the appellant’s vehicle on Palmer Highway. After the vehicle was stopped, the police officers approached and observed in open view several items with Woolco price tags in the front and back of the vehicle. The four were then arrested for shoplifting and transported to the Texas City Police Department. Only the appellant was then taken before a magistrate for purposes of being warned of his rights. See Article 15.17, V.A.C.C.P. After receiving these warnings, the appellant executed a consent form for the search of his residence and made the complained of statement.

The first question to be addressed is whether the police officers had probable cause to stop the appellant and his vehicle for investigative purposes.

“. . . Probable cause for an officer to detain a person temporarily for investigative purposes exists where the circumstances reasonably indicate that that particular person either has or is preparing to commit a crime.7 .
7. Circumstances falling short of probable cause for an arrest may justify temporary detention for purposes of investigation, since an investigative stop is considered to be a lesser intrusion upon the personal security of the individual than is an arrest. [Citations omitted.]” Brown v. State, 481 S.W.2d 106 at 110.

The police officers testified that they were familiar with the appellant through their previous investigations of burglaries and his reputation for trafficking in narcotics. One of the police officers testified that he knew appellant to be a thief. However, they denied any awareness of the appellant being engaged in shoplifting previous to this occasion. The question then becomes whether the nature of the appellant’s and the three others’ conduct in exiting the Woolco store warranted the police officers in stopping their vehicle for investigative purposes. Since an investigative stop is a lesser intrusion, more leeway is given to the police officers’ discretion. We cannot conclude that it was unreasonable for the officers to stop the appellant for investigative purposes under the circumstances described here.

The next order of inquiry is to determine whether after this authorized stop for investigative purposes the police officers had probable cause to arrest the appellant. The only evidence adduced as to what the police officers discovered after the investigative stop was the fact that there were items in the automobile with Woolco price tags on them. There is no evidence of any inquiry concerning sales receipts by the police officers. Based merely on the observation of these items in the vehicle, the appellant and the others were arrested.

“Probable cause for an arrest exists where, at that moment, the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime. [Footnote and citations omitted.]” Id. at 110.

The majority attempts to uphold this arrest on the basis of Article 14.03, V.A.C.C.P. It is clear from a reading of that provision that an arrest without a warrant is authorized when the peace officer finds persons “in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, . . . The majority goes on to note that “[Warrantless arrests pursuant to Article 14.03 under circumstances comparable to those of the present case have been approved by this Court in Castillo v. State, 494 S.W.2d 844 (Tex.Cr.App.1973); Kwant v. State, 472 S.W.2d 781 (Tex.Cr.App.1971); Baity v. State, [455 S.W.2d 305]; Alaniz v. State, 458 S.W.2d 813 (Tex.Cr.App.1970); and Stuart v. State, 447 S.W.2d 923 (Tex.Cr. App.1969).” A cursory review of the authorities relied upon by the majority for the proposition set forth clearly shows those cases to be inapposite. In Castillo, supra, two men were observed by the police officer at 12:35 a.m. in an alley in El Paso walking rapidly towards a parked auto. After driving off, the police officer stopped them and asked for identification. He observed that they were perspiring, had bloodstained and dirty clothing, and gave conflicting stories for their presence in the alley. After calling another unit, it was discovered that a meat company door was forced open and a cold side of beef, an adding machine and calculator were found in the alley. The two men were then arrested. In Kwant, supra, police officers set up surveillance of an apartment after receiving a tip that there was approximately 90 pounds of marihuana in the apartment. The police officers arrested a male who left the apartment with a bag and found it to contain marihuana. Later, the appellant arrived on a motorcycle and another individual arrived in a Corvair, empty-handed. They both left the apartment together and put two bags in the trunk and left. After radioing this information to other officers, the Corvair was followed, stopped, and a search of the trunk revealed the bags to contain marihuana. An arrest was then effected. In Baity, supra, a police officer with 13 years’ experience observed a man enter an alley and suddenly turn back out at 4:56 a. m. in the downtown area, walking fast with his coat pulled up tight. The police officer recognized the defendant from previous theft and burglary arrests. He then stopped the appellant and observed a nail bar (crowbar) under the defendant’s coat. After observing another object concealed in the coat, the police officer asked what it was and the appellant indicated it was a coin box. The police officer took the appellant to a nearby cafeteria and observed pry marks on a vending machine and noticed the coin box missing. This Court concluded that the investigative stop of the appellant was appropriate under the circumstances, as I have concluded already in this ease, but that there was no search since the evidence involved was in plain view. The Court merely directed the reader’s attention to Article 14.03, V.A.C.C.P., and the inherent right to search an arrestee incident to his arrest. There was no language indicating that the conclusion of the Court was predicated on the authority to arrest without a warrant under Article 14.03, supra. In Alaniz, supra, police officers were driving down a gravel “lovers’ lane,” known for parking and drinking, at approximately 5 p. m. when they observed a pickup truck and station wagon occupied by two men parked on the side of the road. As they made the second passby, they observed the appellant throw a paper out. The police officers retrieved the paper and found it to contain marihuana. Alaniz was arrested. In Stuart, supra, the police officers observed the appellant running from a clothing store with suits of clothes in hand at 1:30 a. m.

In the case at bar, the appellant was observed exiting a Woolco store during business hours, picking up three of his companions that he arrived with, carrying items not in bags, and driving off. There is no testimony that any traffic violations were committed by the appellant. He was then stopped on Palmer Highway. By no stretch of the imagination can this be considered a “suspicious place.” Further, the circumstances here, although deemed sufficient to authorize a stop, are not sufficient to authorize an arrest. The discovery of the items to contain Woolco price tags adds nothing to the previous observations and cannot be considered sufficient to justify the appellant’s arrest. The police officers testified that they had no knowledge of anything being stolen from the Woolco Department Store nor did they observe any felony or breach of the peace committed in their presence. Furthermore, the circumstances described in this record cannot be construed to provide “reasonable ground[s] to suppose the property to be stolen, . . . .” The majority places great emphasis on the fact that the items were not bagged. It is common knowledge that many people, for ■ a variety of reasons, decline to have their goods bagged after purchasing them legitimately. Therefore, there was no probable cause to arrest the appellant under Article 18.16 or 14.03, V.A.C.C.P. The police officers testified that no offense was committed within their view, therefore negating any basis for an arrest under Article 14.01, V.A.C.C.P. There was no representation by any credible person that a felony had been committed and that the appellant was about to escape in order to justify an arrest under Article 14.04, V.A.C.C.P. Thus, I must conclude that this arrest was lacking in probable cause and was therefore unlawful.

We turn now to the determination of what effect this unlawful arrest had upon the appellant’s purported consent to search his home. As this Court stated in Armstrong v. State, 550 S.W.2d 25:

“The ‘fruit of the poisonous tree’ doctrine explained at length in Wong Sun v. United States, [supra, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)], serves to exclude as evidence not only the direct products but also the indirect products of Fourth Amendment violations. Evidence is not classified as a fruit requiring exclusion, however, merely because it would not have been discovered ‘but for’ the primary invasion.
‘Rather, the more apt question in such a case is “whether^ granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ Wong Sun v. United States, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455.
“When it has been established that there was an illegal seizure, the State ‘has the ultimate burden of persuasion to show that its evidence is untainted .
[B]ut at the same time [the defendant] . must go forward with specific evidence demonstrating taint.’ Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).” Armstrong v. State, supra, at 31.

Again, from the same case:

“And it has been said that consent by the defendant, if sufficiently an act of free will to purge the primary taint of the unlawful arrest or detention (Wong Sun v. United States, supra, 371 U.S. at 486, 83 S.Ct. at 416) may produce the requisite degree of ‘attenuation.’ [Citations omitted.]” (Emphasis added.)
“The issue of whether consent to a search' was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); [Citations omitted].” Armstrong v. State, supra, at 31-32.

The record in this cause reflects that the appellant was arrested at approximately 4:50 p. m. on November 28, 1975. The record does not disclose whether the appellant was given his Miranda warnings at that time. There is an indication in the record that the arresting officer advised the appellant of his right to an appointed attorney, his right to an examining trial, his right to terminate the interview at any time, his right not to make a statement but that any statement made could be used against him and that the appellant understood these warnings. The record further reflects that at 5:50 p. m. on the same day the appellant was advised, by a magistrate, of his rights under Article 15.17, V.A.C.C.P. The arresting police officers were present while the warnings were given and testified that the appellant indicated he understood the warnings. At approximately 5:55 p. m., the appellant executed his “Waiver of Search” form. It is noted that this consent form does not reflect that the appellant was advised of his right to refuse a search. The record also reflects that the appellant was never warned of his right to refuse such a search. The record also reflects that the appellant had previously been convicted for the unlawful sale of heroin and burglary on the same day in 1972. Of additional significance to the determination of whether the appellant’s consent to search was a sufficient act of free will to purge the primary taint or was an exploitation of the initial taint is the testimony of the arresting officers that the appellant was the only one taken before a magistrate for statutory warnings “[B]ecause he was the one we wanted to talk to.” The police officers admitted that they had a special interest in the appellant for narcotics. Appellant contends throughout his brief that this arrest was a pretext arrest in order to effectuate what the police officers could not otherwise do, i. e., search the appellant’s house. Finally, it is noted that the consent form was executed in the office of the magistrate and was signed by the magistrate.

The case of Brown v. Illinois, 422 U.S. 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), is instructive in disposing of appellant’s contention concerning the consent to search as a fruit of the illegal arrest. The court in Brown v. Illinois, supra, wrote:

“The Miranda warnings are an important factor, to be sure, in determining whether the confession [consent] is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession [consent], the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. See Wong Sun v. U. S., [supra, 371 U.S., at 491, 83 S.Ct., at 419], The voluntariness of the statement [consent] is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution.” [Citations and footnotes omitted.] Id., U.S. at 603-604, 95 S.Ct. at 2261-2262.

In the case at hand, the consent form was signed an hour and five minutes after the illegal arrest. The only intervening circumstances were the delivery of the warnings under Article 15.17, V.A.C.C.P., and the questioning of the appellant by the officers. Furthermore, the testimony of these officers indicates, as the record did in Brown, that the illegal arrest had “a quality of purposefulness.” The arrest was investigatory in purpose and the officers indicated that one of their interests was to investigate their suspicions of the appellant as a drug trafficker. There is no indication of any warning given concerning the appellant’s right to refuse the search. It is clear such a warning is not required when noncustodial consent to search is sought. See Schneckloth v. Bustamonte, supra. It is also not necessary in this State after an arrest, but is good police practice. See DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.). As the Supreme Court stated in Brown v. Illinois, supra:

“Wong Sun thus mandates consideration of a statement’s [consent] admissibility in light of the distinct policies and interests of the Fourth Amendment.” 422 U.S. at 602, 95 S.Ct. at 2261.

Those policies were identified as deterrence of lawless conduct by officers of the law and the protection of judicial integrity. Although the federal courts have abdicated to some degree from the latter justification, there is no reason for this Court to turn a blind eye to the question of integrity. Thus, we must conclude that the policies of our Article I, Section 9 include both the Fourth Amendment policy of deterring unlawful police conduct and the independent interest of maintaining the integrity of our State courts from utilization of unlawfully obtained evidence. See also Article 38.23, V.A.C.C.P.

I would conclude that the consent to search form executed by the appellant in this case was a direct exploitation of his initial unlawful arrest and there were no sufficient intervening circumstances or other occurrences, within the totality of circumstances confronting the appellant, which made his consent a sufficient act of free will to purge the primary taint of his unlawful arrest. Thus, the consent form executed by the appellant and the evidence seized by the officers pursuant to that consent should have been excluded by the trial court. The failure to exclude such evidence constitutes reversible error, for without it appellant’s oral statement to the police officers could not have been corroborated, assuming for the moment that that confession was admissible. See Article 38.-22(l)(e), V.A.C.C.P. The evidence was unquestionably incriminatory and harmful.

Turning now to the admissibility of appellant’s oral statement to the police officers telling them where the “stuff” would be in his residence and that the “stuff” was heroin, I must conclude that that statement was a direct result of the police officers’ exploitation of their initial unlawful arrest. Brown v. Illinois, supra, applies with even more force to this issue and mandates my conclusion. I would also hold that that confession was inadmissible as the fruit of the officers’ breach of Article I, Section 9 of the Texas Constitution.

The inescapable conclusion is that appellant’s conviction should be reversed. For the foregoing reasons I strongly dissent.

      . The sufficient justification for a police stop in the present case may be contrasted with lack thereof in Jones v. State, 567 S.W.2d 209 (Tex.Cr.App.1978), in which a temporary detention was held to be unlawful where appellant was merely walking fast in the company of two black men, put something into his pocket when he saw a police car, and was not known to police as having engaged in or been associated with criminal activity of any kind.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . State’s Exhibit No. 2:
      "WAIVSR OF SEARCH"
      STATS OF TSXAS COUNTY OF GALVSCTON

      Sworn to and subscribed before mejhis the day of I /⅜- — ' , A. D., 1Í?/.

      . We understand that the failure to warn an individual of this right to be free from unreasonable searches and seizures is not fatal to consent given under noncustodial circumstances. See Schneckloth v. Bustamonte, supra. However, it is an important evidentiary factor in determining whether the consent was a sufficient act of free will to purge the primary taint of this illegal arrest.

      . If the warnings were alone sufficient to purge the taint of unlawful arrests, the warnings would become a “cure-all” for violations of the Fourth Amendment to the U.S. Constitution and Article I, Section 9, Texas Constitution.

      . See Article 38.23(c), V.A.C.C.P., effective August 29, 1977.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge.

license: Public Domain

text:
    Ex parte Jay J. ARMES, Appellant.
    Nos. 60990, 60991.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 18, 1979.
    Rehearing En Banc Denied July 3, 1979.

      Dick Stengel, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and William J. Ellis, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an appeal from an order denying the appellant’s request for habeas corpus relief. Relief was sought from a summons directing the appellant to appear as a witness in California pursuant to an order entered under Art. 24.28, V.A.C.C.P.

Cause No. 60,990 (Cause No. 32,770-205 in the trial court) contains the record from the hearing in which the appellant was ordered to appear in California as a witness. This record contains no application for ha-beas corpus relief nor any order denying that relief. The only order of the trial court reflected by this record is an order for a summons directing Armes to appear in California.

In Armes v. State, Tex.Cr.App., 573 S.W.2d 7, this Court considered a purported appeal from a previous order for Armes to appear in California as a witness regarding this same matter. This Court held that there is no right to a direct appeal from a court order entered pursuant to Art. 24.28, supra, compelling the witness’ attendance.

The current posture of the record in Cause No. 60,990 presents nothing more than a purported appeal from an order entered pursuant to Art. 24.28, supra. No appeal lies from such an order. Cause No. 60,990 is dismissed.

Cause No. 60,991 (Cause No. 32,923-205 in the trial court) contains an application for a writ of habeas corpus and an order denying the relief sought. The record further reflects that timely notice of appeal was given.

In Armes v. State, supra, this Court also considered an appeal from the trial court’s denial of habeas corpus relief. This Court, noting that the appellant was not in custody and under no restraint, held that the habeas corpus question was moot. In the present case, however, the appellant was ordered to post a $10,000 bond to ensure his appearance as a witness.

In Ex parte Trillo, 540 S.W.2d 728, this Court held that a person was under restraint for habeas corpus purposes when released on bond or bail. Thus, appellant is under restraint, and Cause No. 60,991 is properly before us.

The record reflects that on January 24, 1979, the State filed a “Petition to Secure Attendance of Witness.” This petition alleged that all requisites under Art. 24.28, supra, had been complied with by the requesting state, and sought to have an order entered directing Armes to appear in San Diego County, California, on April 11, 1979, at 9:00 a. m.

Attached to the petition and incorporated by reference was a Certificate of the Superior Court of San Diego County, California, requesting the attendance of Armes to testify at a grand jury proceeding. The status of this court as a court of record and the authenticity of the judge’s signature were sworn to by the clerk of the court in a separate certificate. The judge’s certificate, in summary, stated that:

“1. An investigation into a certain murder was pending with the San Diego County Grand Jury;
“2. That Armes, who resides in El Paso County, Texas, is ‘a necessary and material witness’ in that murder investigation;
“3. That Armes is a material and necessary witness for the reasons set out in an attached affidavit;
“4. That the proper payment for transportation and per diem for the three days which the witness’ presence would be required is tendered;
“5. That Armes would be protected from arrest or service of process in California and the states through which he would travel;
“6. That the State of California requests Texas to take Armes into custody and be delivered to an officer of California to assure the appearance of the witness.”

An attached affidavit executed by Richard Huffman, Chief Deputy District Attorney for San Diego County, set out in detail the factual basis for the Superior Court’s finding that Armes was a material witness. According to this affidavit, Armes had been hired by a San Diego citizens committee to investigate the murder now being investigated by the grand jury. The affidavit further states that after conducting his investigation in California Armes made representations that he knew who the murderer was. This affidavit detailed previous attempts to secure this witness’ attendance.

A tender of proper compensation accompanied the judge’s certificate. After a hearing the trial court ordered Armes to appear as a witness in California, and Ar-mes posted a bond to secure his attendance. Armes’ application for habeas corpus relief was denied, which is now the basis of this appeal.

This ease presents a question of first impression regarding the requisites necessary to compel a person in this state to appear as a witness in a criminal proceeding in - a sister state. A brief discussion of the general procedure to be used, in addition to the specific grounds of error urged by the petitioner, is thus in order.

Article 24.28, Sec. 3, supra, sets out the procedure to be used when a sister state requests the compulsory attendance of a witness in a criminal matter. This statute provides for the following steps in the courts of this state. See, New York v. O’Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959).

Upon the state’s filing of a petition, the trial court in the county in which the witness is located sets a hearing on the Art. 24.28 request if:

1. It is shown that the demanding state has enacted a reciprocal act to Art. 24.28, supra; and
2. A judge of a court of record in that demanding state certifies under seal
(a) that the witness sought is a material witness
(b) in a criminal prosecution or grand jury investigation
(c) and will be required for a specific number of days.

See, Art. 24.28, Sec. 3(a), supra. If these requisites are met, the trial court sets a time and place for the hearing and orders the witness to appear at the hearing.

After this hearing the trial court can enter an order directing the witness to appear in the requesting state only if it determines that:

1. The witness is material and necessary to the criminal proceeding or grand jury investigation; and
2. The witness will not be caused undue hardship if compelled to attend the proceeding in the sister state; and
3. The witness is protected from arrest and service of civil and criminal process in the demanding state and all states through which the witness must pass.

Art. 24.28, Sec. 3(b), supra.

Article 24.28, Sec. 3(d), imposes the sanctions for the failure of a witness to appear in the requesting state. A prerequisite for imposition of these sanctions is that the requesting state must have tendered compensation for the trip as required by Art. 35.27, V.A.C.C.P.

Appellant contends that the facts contained in the certificate from the requesting state standing alone are insufficient to support the trial court’s determination that he is a material and necessary witness. As set out above, this finding is a prerequisite to ordering the witness to appear in the requesting state.

Article 24.28, Sec. 3(b), supra, provides that the judge’s certificate from the requesting state is prima facie evidence of all the facts stated therein. The appellant testified at the hearing that he had no knowledge or information regarding the investigation in an effort to rebut this prima facie showing. Appellant correctly states that there are no cases in this jurisdiction on this issue, and cites decisions of sister states in support of his contention.

The Illinois enactment of the Uniform Act to Secure Attendance of Witnesses from Without the State was interpreted in In re Grothe, 59 Ill.App.2d 1, 208 N.E.2d 581 (Ill.App., 1965). In Grothe, the court stated that the determination of whether the witness was material and necessary was to be made by the local court rather than by the court of the requesting state. The court held that the local court must refuse the request when the facts set forth in the certificate are insufficient to support a finding that the witness is material and necessary and no additional evidence is offered. See, In re Stamler, 279 App.Div. 908, 111 N.Y.S.2d 313 (Sup.Ct., 1952).

Other jurisdictions have come to the opposite conclusion in interpreting the same act, however. In re Cooper, 127 N.J.L. 312, 22 A.2d 532 (1942). In Cooper, the court observed that the question of materiality of the witness should be the decision of the requesting court as that question would turn on the law of that jurisdiction and the issues presented in that criminal proceeding. Thus, the court found that the assertion of materiality by the requesting state in the certificate was sufficient to support a finding in the local court that the witness was material and necessary. Accord, Epstein v. New York, 157 So.2d 705 (Fla.Dist.Ct.App., 1963).

The purpose of Art. 24.28, supra, is to provide for an efficient means for our courts to compel the attendance of out-of-state witnesses in criminal matters. To achieve this purpose, the Legislature also provided the necessary reciprocal procedure for sister states to gain the attendance of witnesses from this state.

To require the requesting state to again litigate in our courts its judicial finding that the witness is material and necessary would not promote the purpose of this statute. As stated by the Supreme Court in O’Neill, “Comity among the states, an end particularly to be cherished when the object is enforcement of internal criminal laws, is not to be defeated by a priori restrictive view of state power.” 359 U.S. at 11-12, 79 S.Ct. at 571. Thus, this Court’s interpretation of Art. 24.28, supra, should reflect the same deference to the judicial determinations made in sister states that we would expect to be given to judicial determinations made in the courts of this state.

We hold that the certificate from the requesting state setting out that the witness is material and necessary is sufficient to support the trial court’s finding of that fact.

In holding that the trial court should accept the determination of the requesting state, we are mindful of our duty to ensure the citizens and inhabitants of this state due process of law and freedom from unfounded interruption to their lives. Other provisions of Art. 24.28, supra, are sufficient to discharge this obligation, however.

Article 24.28, Sec. 3(d), supra, provides that the requesting state must compensate the witness as set forth in Art. 35.27, supra. This protects the witness from financial hardship as a result of his compelled attendance.

Further, the requesting state must specify the exact number of days the witness’ attendance will be required. A request for attendance that imposed an undue hardship on the witness because of excessive duration could be denied by the local court.

Finally, this procedure cannot be used as a subterfuge to compel the witness’ presence for other purposes. The witness is protected against arrest and service of process during his attendance. See, Wright v. State, 500 P.2d 582 (Okl.Cr.App., 1972).

Appellant next contends that the trial court erred in finding that no undue hardship would be suffered if appellant were compelled to appear and testify before the San Diego County grand jury. Appellant maintains that his testimony and that of his treating physician showed that the trip would cause him undue hardship.

Dr. Bill Dickey testified that the appellant had been admitted to the hospital on January 21, 1979, and later released on January 27, 1979. Dr. Dickey stated that the appellant was still under his supervision and care on February 13, 1979, the date of the doctor’s testimony. According to the doctor, appellant’s medical problems required that he maintain a completely bland diet. Although the doctor stated that this food could only be obtained at a hospital or specially prepared at home, he did not elaborate on the types or requisite preparation of this food.

Dr. Dickey concluded that he would advise his patient against taking the trip to California on the basis of the harmful effect of a stressful situation and the dietary problems.

On cross-examination the doctor admitted that some of the symptoms complained of by the appellant were incapable of objective confirmation. Dr. Dickey also stated that the condition of the appellant would not prevent him from appearing at the local hearing, and further that by the middle of April the petitioner would be able to go to his office five days a week. Finally, the doctor stated that the most important consideration as to the effects of the travel would be the available food.

Appellant testified that the travel would cause him undue hardship because of the unavailability of food prepared as required for his diet.

Other jurisdictions have placed the burden of proving undue hardship on the witness seeking to avoid testifying in the requesting state. Terl v. Maryland, 237 So.2d 830 (Fla.Dist.Ct.App., 1970). Cf. Epstein v. New York, supra. We agree with this rule. It is logically the witness’ burden to come forward with evidence of any undue hardship, not the State’s duty to negate the existence of undue hardship.

The trial court acts as the trier of fact in hearings under Art. 24.28, supra. As the trier of fact the trial court must pass on the credibility of the witnesses and determine the weight to be given the evidence before it. See, Grant v. State, Tex.Cr.App., 566 S.W.2d 954; Reed v. State, Tex.Cr.App., 533 S.W.2d 35.

In the present ease the testimony of the doctor was somewhat equivocal and failed to elaborate on why the foods necessary would not be available in California. We further note that the petitioner appeared at the hearing and the trial court had an opportunity to observe his condition. We find no error in the trial court’s holding that the attendance of the appellant to testify would not cause him undue hardship.

Appellant finally contends that a finding of materiality was barred by a previous finding that he was not a material witness. Appellant maintains that either double jeopardy or res judicata would bar this subsequent finding. This contention requires a brief history of this litigation.

On May 25, 1978, the State filed a petition, Cause No. 78-3083, to secure the attendance of Armes as a witness in California regarding the same San Diego Grand Jury investigation involved here. Attached to this petition was a certificate dated May 19, 1978, from the Honorable Judge Franklin B. Orfield, Superior Court for San Diego County. A hearing was held in the 34th District Court of El Paso County on May 31, 1978. The court entered an order for summons stating that Armes was a material witness, his attendance to testify would not cause undue hardship, and Armes would be protected from arrest and service of process during this trip. A summons was issued ordering Armes to appear in San Diego, California, on June 14, 1978.

On June 8, 1978, Armes filed an application for writ of habeas corpus, Cause No. 32118-34. A hearing was held on June 9, 1978, and relief was denied.

Both the trial court’s order for summons, Cause No. 78-3083, and the denial of habeas corpus relief, Cause No. 32118-34, were “appealed” to this Court. On October 18, 1978, this Court dismissed both purported appeals. Armes v. State, 573 S.W.2d 7.

On November 7, 1978, the State again filed a petition to secure the attendance of Armes as a witness in California (Cause No. 32564). This petition was filed in the 34th District Court. The record next shows a “First Amended Petition to Secure Attendance of Witness,” Cause No. 32564-205, filed in the 205th District Court of El Paso County. Attached to this petition was a certificate from Judge Orfield, dated October 24, 1978, and including a clerk’s certificate and the petition filed in California in order to obtain the certificate from Judge Orfield.

On December 14, 1978, the State filed a “Second Amended Petition” in Cause No. 32,564-205 with certificate from Judge Or-field dated December 5,1978, and his clerk’s certificate. The petition filed in California to obtain Judge Orfield’s December 5th certificate was not attached.

A hearing was held in Cause No. 32,564-205 on January 17, 1979. The transcription of the court reporter’s notes from that hearing reflects that Judge Orfield’s December 5th certificate had originally included the petition filed in California to obtain his certificate. This portion of his certificate had been lost, however. At the conclusion of the hearing the trial court denied the State petition in Cause No. 32,564-205.

On January 25, 1978, a judgment of dismissal was entered in Cause No. 32,564-205 on the motion of the El Paso District Attorney. The reason for this dismissal was set out as:

“The Court, having read the pleadings, heard and examined the evidence, and heard the argument of counsel finds that the certificate fails to state any facts to show that Jay J. Armes is a material and necessary witness.”

On January 24, 1978, the State had filed another petition to secure the attendance of this witness, Cause No. 32,770-205. Attached to this petition was a certificate dated January 18,1979, from the Honorable Judge William A. Yale, Superior Court of San Diego County, a certificate from the clerk of Judge Yale’s court, an affidavit from the grand jury foreman, and the petition filed in California to obtain Judge Yale’s certificate. The subsequent proceedings in Cause No. 32,770-205 and the application for a writ of habeas corpus, Cause No. 32,923-205, are the subject of the present view.

Appellant’s reliance on double jeopardy is misplaced. Our laws forbid a person from being put twice in jeopardy for the same offense. See, Art. 1.10, V.A.C.C.P.; Tex.Const. Art. I, Sec. 14; U.S.Const., Amend. Y. In the present proceeding, however, no criminal adjudication was involved. Appellant was not being tried for an offense. The possible outcome of this hearing did not include criminal sanctions.

Although later related proceedings might impose criminal sanctions for the failure to obey the court’s order, the court’s order for the witness to appear was not a criminal adjudication. We find no merit to appellant’s double jeopardy claim.

Likewise, we find petitioner’s claim of res judicata inapplicable here. First, were we to find res judicata applicable, it would work to the petitioner’s detriment. As set out above, petitioner was adjudged a material witness in May of 1978. To apply res judicata would hold that the subsequent finding that petitioner was not a material witness was barred by the prior finding that he was.

Further, res judicata applies only where it is shown that the following elements exist: “identity of parties, issues, subject matter, relief sought and cause of action.” Franklin v. Rainey, 556 S.W.2d 583 (Tex.Civ.App.—Dallas, 1977, no writ), and cases cited therein. In the present case, each attempt to secure the witness’ attendance requested that he appear on a different date. Thus, the specific relief sought in each of the three attempts to secure his attendance was different. Res judicata does not apply.

The purported appeal in Cause No. 60,990 is dismissed. The trial court’s order denying relief in Cause No. 60,991 is affirmed.


author: ODOM, Judge.

text:
    Steven Carroll ISAM & Gary Wayne Medley, Appellant, v. The STATE of Texas, Appellee.
    Nos. 60341, 60342.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 2, 1979.
    Rehearings En Banc Denied July 3, 1979.

      Robert E. Fitzgerald, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Maridell J. Templeton and Brad K. Lollar, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These are appeals from convictions for possession of a usable amount of marihuana of less than four ounces and more than two ounces, a misdemeanor. Punishment was assessed in appellant Isam’s case at a $200 fine and three days in jail. Medley’s punishment was assessed at 20 days in jail and a $300 fine.

On November 17, 1977, both cases were called for a hearing on motions to suppress the marihuana. At the conclusion of that hearing the court withheld its ruling to allow briefs on the issue to be prepared and filed. The motion to suppress was denied on December 6. According to the transcribed court reporter’s notes, Isam appeared on the following April 20 and entered his plea of guilty. According to the docket sheet and judgment, however, this happened on April 24. Sentence was pronounced on May 12. Appellant Medley entered a guilty plea in his case on May 15 and was sentenced July 13. Notice of appeal was entered in each case.

The events in these cases occurred after the effective date of the amendment to Art. 44.02, V.A.C.C.P., which now provides:

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attor- ■ ney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.”

We are today particularly concerned with that' portion of Art. 44.02 that allows appeal “on those matters which have been raised by written motion filed prior to trial.”

In Ferguson v. State, Tex.Cr.App., 571 S.W.2d 908, the Court was confronted with a similar situation. On that occasion, appeal was taken from a felony conviction for gambling promotion in which a guilty plea was entered after the defendant’s motion to suppress was overruled. The Court wrote:

“. . After his plea was accepted by the trial court, appellant took the witness stand and judicially confessed that he committed the offense as alleged against him in the indictment. No evidence seized pursuant to the challenged search warrant was introduced, and no such evidence was used to support appellant’s conviction. Where no evidence obtained as a result of a search is introduced in evidence, no error with respect to such search is presented for review. Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.). Furthermore, a judicial confession is alone sufficient to sustain a conviction on a guilty plea under Art. 1.15, V.A.C.C.P. Cevalles v. State, 513 S.W.2d 865 (Tex.Cr.App.).
“It appears from the proceedings in the trial court that appellant contemplated review in this court pursuant to that portion of Art. 44.02, supra, that speaks of an appeal ‘on those matters which have been raised by written motion filed prior to trial.” In Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.), the Court wrote:
“ ‘Appellant contends that the court was in error in admitting evidence obtained as the result of an illegal search and seizure. Where a plea of guilty is voluntarily and understanding^ made, all non-jurisdictional defects including claimed deprivation of federal due process are waived. Soto v. State, Tex.Cr.App., 456 S.W.2d 389; Fierro v. State, Tex.Cr.App., 437 S.W.2d 833. See also, Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.).
“The legislature appears to have abrogated this rule regarding the effect of a guilty plea in cases of plea bargains before the court, as is its prerogative. Such a procedure may be expected to conserve judicial resources by encouraging guilty pleas in cases where the only contested issue between the parties is some matter such as the lawfulness of a search, volun-tariness of a confession, competency to stand trial, sufficiency of the indictment, or other matter that may be raised by written motion filed prior to trial. To this extent the amendment of Article 44.-02 supersedes the prior case law as stated in Helms, supra.
“This new practice, however, does not change the rule in Stiggers v. State, supra, relied on here. If the guilty plea is supported by evidence (see Art. 1.15, supra) independently of the matter contested in the pre-trial motion, then any erroneous ruling on that motion does not vitiate the conviction. . . . ”

Of particular importance in that case was that none of the fruits of the challenged search and seizure were relied on to support the conviction and that the defendant took the witness stand and judicially confessed to the offense. This case presents a completely different situation in that the offense is a misdemeanor instead of a felony, so different rules apply to the guilty plea. The essential difference is reflected in this excerpt from Brown v. State, Tex.Cr.App., 507 S.W.2d 235:

“Article 27.14, Vernon’s Ann.C.C.P., does provide in part:
“ ‘A plea of “guilty” or a plea of “nolo contendere” in a misdemeanor case may be made either by the defendant or his counsel in open court; in such case, the defendant or his counsel may waive a jury, and the punishment may be assessed by the court either upon or without evidence, at the discretion of the court. . . ’
“It is well established under this statute and its forerunners that where the plea of guilty in a misdemeanor case is before the court the trial court is not required to hear evidence on a plea of guilty. Ex parte Clinnard, supra, 145 Tex.Cr.R. 460, 169 S.W.2d 181; Letterman v. State, 146 Tex.Cr.R. 37, 171 S.W.2d 349 (1943); Ex parte Bostick, 81 Tex.Cr.R. 411, 196 S.W. 531 (1917); Burton v. State, 112 Tex.Cr.R. 334, 16 S.W.2d 828 (1929); Palomo v. State, 249 S.W.2d 211 (Tex.Cr.App.1952); Bruce v. State, 419 S.W.2d 646 (Tex.Cr.App.1967); Carter v. State, 400 S.W.2d 571 (Tex.Cr.App.1966); Foster v. State, 422 S.W.2d 447 (Tex.Cr.App.1967); Albrecht v. State, 424 S.W.2d 447 (Tex.Cr.App.1968). It has been held that by such plea of guilty the defendant admits every element of the offense charged. Ex parte Clinnard, supra.”

Were the rule that a guilty plea to a misdemeanor “admits every element of the offense charged” to be applied with the same effect as the judicial confession rule was in Ferguson, supra, then the purpose of Article 44.02, supra, would be frustrated in misdemeanor cases. The purpose of “encouraging guilty pleas in cases where the only contested issue between the parties is some matter such as the lawfulness of a search [or] voluntariness of a confession” would be thwarted because in every misdemeanor case in which such an issue was raised the issue would be forfeited by the guilty plea. In a felony case a guilty plea does not work such a forfeiture because under the requirements of Article 1.15, V.A. C.C.P., evidence must be presented to support the plea. Thus, if the defendant elects not to make a judicial confession, and if the seized evidence to which a pre-trial motion to suppress was directed is used by the state to meet that statutory burden, then the issue raised by the motion may be pursued despite the subsequent guilty plea.

Because one purpose of Art. 44.02, supra, is to encourage guilty pleas where a search and seizure (or other pretrial motion) is the only matter that the defendant wishes to pursue, we hold that the rule quoted above from Brown v. State does not apply to’ an appeal from a misdemeanor guilty plea that challenges the ruling on such a pretrial motion. Accordingly, we hold that appellants may challenge the adverse ruling on their motions to suppress even though they subsequently entered guilty pleas to the misdemeanor charges against them.

The single ground of error in each of these appeals is that the officers did not have probable cause nor was it reasonable under the facts and circumstances to search the appellants’ vehicle. The testimony at the hearing on the motion to suppress revealed that S. M. Sederwall and J. M. George, both employed by the City of Garland as police officers, testified that while they were off duty moving a stove in one of the officer’s pick-up truck, they spotted the appellants travelling the opposite direction and smoking what appeared to be a marihuana cigarette. The officer specifically testified that the cigarette was handrolled with both ends being pinched and the middle was held by the index finger and thumb of Medley, the driver. He testified that he saw Medley pass the cigarette to Isam, the passenger. In the opinion of the officer, this appeared to be the marihuana cigarette. He made a U-turn at the first opportunity and began following the vehicle. Subsequently, the appellants’ vehicle stopped at a red light, at which time officer George, who was riding as a passenger, got out of his vehicle and approached the appellants’ vehicle. He testified that, at the time he approached the vehicle, he smelled the odor of marihuana. At that time he directed Medley to pull over to the side of the road. They placed the appellants under arrest and a search of the vehicle disclosed several baggies of marihuana.

The thrust of appellants’ argument seems to be that the officers’ observation of their vehicle as it passed in the opposite direction was not sufficient to justify turning their truck around and following them and then approaching their vehicle where they smelled the odor of marihuana. It is appellants’ contention that the officers’ action of moving towards the vehicle was in fact “investigative and violated the appellants’ constitutional rights.” We disagree. The record does not indicate the officers intended to arrest or even stop the appellants until after officer George approached the vehicle while it was stopped by a traffic light The appellants’ vehicle was not stopped by any overt action on the part of the police officers. Only after they stopped at the traffic light was the officer able to approach the vehicle and he noticed the odor of marihuana. At that point, the officer testified he directed the appellants to pull over to the side of the street and get out of the car. The arrest and subsequent search by the officer was reasonable. Article 14.01(b), Vernon’s Ann.C.C.P. provides:

“A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”

See, Thomas v. State, Tex.Cr.App., 493 S.W.2d 957; Duff v. State, Tex.Cr.App., 546 S.W.2d 283; Sanchez v. State, 582 S.W.2d 813.

The judgments are affirmed.


author: DALLY, Judge. CLINTON, Judge,

text:
    John Ray EARNHART, Appellant, v. The STATE of Texas, Appellee.
    No. 57245.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 20, 1979.

      Joe M. Joiner, Sherman, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.

      Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for murder. The punishment was assessed at imprisonment for twenty years.

Appellant challenges the sufficiency of the evidence to support the conviction; complains of the admission in evidence of statements made by the appellant; complains of the prosecutor’s argument to the jury; and contends that the trial court erroneously communicated an additional instruction to the jurors after their deliberation began.

Appellant and his brother, James Edwin Earnhart, were convicted of murdering Spurgeon Elkins at appellant’s home in Grayson County, on November 30, 1974. The two men were tried together, but filed separate appeals; the conviction of James Edwin Earnhart was recently reversed in Earnhart v. State, Tex.Cr.App., 575 S.W.2d 551 (1979). A detailed statement of the facts of the offense is included in that opinion, and the reader is referred to that account as a supplement to the facts set out here.

At 9:00 p. m. on November 30, 1974, Grayson County Deputy Sheriff Hal Curtis received a telephone call from the Whites-boro Police Department concerning a call they had received. As a result of the conversation Curtis called the Earnhart residence, and asked who was speaking; the speaker responded, “John Earnhart.” Curtis then asked the speaker if he had a problem at the residence, and the speaker answered, “Hell, yes, I do. There has been a man killed in my house.”

At 9:30 p. m. Grayson County Deputy Sheriffs Don Teague and Troy Adams arrived at the Earnhart residence simultaneously with police officers from Whites-boro and Collinsville, two highway patrol officers, and ambulance personnel. A Justice of the Peace, M. H. Richards, had arrived shortly before. Adams testified, and was corroborated by Teague, that when they arrived appellant came out of the house to meet them and said:

“Come in here. The son of a bitch drove in here in that pickup there with that camper on it, bleeding like a stuck hog, and he’s laid down in my bed and died.”

Appellant stated that he did not know the deceased; appellant’s brother told the officers that he knew the deceased.

Adams checked the deceased’s pickup for evidence of blood, but found none. Teague checked the engine; it was cold. Appellant told Teague that the deceased had driven in two hours previously, which would have been 7:30 p. m. Teague testified that he had driven by the house earlier that day at 4:00 p. m. and had seen the deceased’s pickup parked out front. Richards, who was a mortician as well as a Justice of the Peace, testified that when he saw the deceased at 9:00 p. m., the deceased had been dead for four to five hours.

Teague testified that the Earnhart brothers became suspects when they told him that no one else had been at the house. Teague also testified that on other occasions he had seen both brothers at the house, but he believed appellant actually lived at the house. Appellant referred to the house as “my house.”

When the officers entered the house they found the deceased lying on a bed in the living room. There was blood on the bed, a large puddle of blood under an easy chair in the living room, and blood in various other parts of the room and in other rooms in the house. Teague testified that one of the deceased’s eyes was blue and swollen, and there was a hole in the top of his head. According to Adams the house was in “quite a turmoil,” and there were beer cans and a gin bottle littering the floor. Both brothers appeared to be drunk; Teague testified that appellant was “drunk crazy, wild,” whereas his brother Jim was cooperative.

Both brothers were arrested and taken to jail. Before leaving, appellant, who was wearing only an undershirt, went to a back bedroom to get a shirt. According to Adams appellant picked up a green shirt as if to put it on, then said, “It’s got blood on it. I want to get a clean one.” When Adams asked appellant if that was his shirt, appellant replied that it was.

The next day officers thoroughly investigated the scene of the crime. They found a .22 rifle stained with blood in a bedroom, six spent .22 cartridges in the living room, and three lead bullets. One of the bullets was lying on the floor of the living room, and the other two were imbedded in a wall, apparently after having been fired through one of the living room doors.

Allen Jones, a Dallas County firearms examiner, testified that two of the bullets were too mutilated to determine whether they had been fired from the rifle found in the house. The other bullet had “major and minor class characteristics” in common with the rifle, but it lacked sufficiently detailed striations to conclusively determine that it had been fired from the weapon. The gun was in operating condition. Jones testified that two of the cartridges had been discharged by the weapon, but he could not tell whether the other four cartridges had.

Sarah Williams, an employee of the Dallas County Criminal Investigation Laboratory, testified that she compared blood samples taken from the Earnhart brothers, the deceased, and the scene of the offense. According to Williams the brothers’ blood samples were identical in type, and the deceased’s blood type was different from the brothers. Both types were found in the blood sample taken from the barrel of the rifle. Appellant had cut his left thumb badly while shutting off a chain saw the day before the offense occurred; according to Teague the thumb was still bleeding and appellant was holding it when he and Adams arrived at the scene. Appellant’s brother had hurt his ribs, but was not bleeding. A blood sample taken from the puddle of blood beneath the easy chair matched the deceased’s blood type, as did a blood sample from the green shirt which appellant tried to pick up.

Dr. Vincent DeMayo, a Dallas County medical examiner, testified that the deceased received a gunshot wound from a .22 caliber weapon in the right frontal region of his scalp, and the wound was the cause of the deceased’s death. A .22 caliber bullet, too mutilated to be of use for comparison purposes, was removed from the deceased’s head. DeMayo stated that the muzzle of the weapon was in contact with the deceased’s head when it was discharged, and that the weapon was held at “a shallow angle, pointing downward and backwards.” According to DeMayo the wound would have caused the deceased to be paralyzed on the left side, and it was “highly improbable” that he could have moved after being wounded. The deceased’s left knee was scraped, and DeMayo testified that the scrape could have been caused by dragging the knee across a hard surface. The alcohol content in the deceased’s blood was .289, which DeMayo stated approached the point of alcoholic unconsciousness.

Blood was found, in addition to the living room, in the hall and the bathroom. Gray-son County Chief Deputy Sheriff Shelby Bowling testified on the basis of the splashes or “fingers” formed by the blood as it hit the floor, that the trail of blood began in the easy chair, led from there out of the living room, down the hall to the bathroom, and back to the bed in the living room where the deceased was found.

Appellant contends that the evidence adduced does not support the conviction. Summarizing, the deceased died in appellant’s house from a gunshot wound caused by a .22 caliber weapon. A .22 caliber rifle found in the house was shown to have been discharged at least twice at the appellant’s house. Appellant made a suspicious exculpatory statement immediately upon the arrival of peace officers. The evidence showed that the statement was false, and the statement was inconsistent with a statement previously made by appellant to another officer over the telephone. The latter statement acknowledged that someone had been killed in appellant’s house. Appellant evidenced ownership of a shirt which was stained with blood of the same type as the victim’s blood. No one besides the Earnhart brothers and the deceased were at the house at the time of the offense. This evidence weighs more strongly against appellant than it does against his brother. See Earnhart v. State, supra. We find that the evidence, viewed in a light most favorable to the State, is sufficient to support the jury’s finding of guilt. Compare Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973); Baker v. State, 447 S.W.2d 172 (Tex.Cr.App.1969).

Appellant contends that it was error to admit statements made by appellant and his brother after they had been arrested and before they had been informed of their constitutional rights. Specifically, appellant complains of Adams’ testimony that when appellant picked up the green shirt he said, “That’s got blood on it, I don’t want to wear that . . .I’d like to get a clean shirt,” and the appellant’s affirmative response when Adams asked him if it was his shirt. Appellant objected to this testimony; the trial court sustained his objection, and instructed the jury to disregard the testimony. Appellant did not request a mistrial. A hearing outside the presence of the jury was held, and it was established that at the time of the statement appellant had not been advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Subsequently, Adams testified before the jury as follows:

“Q. And after he was placed under arrest, what did you then do?
“A. I accompanied him into the back room, or the southwest bedroom of the house. He wanted to get a shirt.
“Q. What did you observe him do?
“A. He picked up a shirt from a box in the southeast bedroom.
“Q. What did he do with this shirt?
“A. He picked the shirt up to put it on. Then, he said, ‘It’s got blood on it. I want to get a clean one.’
“MR. JOINER: I still object to that statement.
“THE COURT: All right. We will overrule the objection.”

It was later elicited, without objection, that when Adams asked appellant whether the shirt was his, appellant replied, “Yes, it was his.”

Appellant’s statement to the effect that the shirt had blood on it, and he wanted another one, was a voluntary statement, not in response to any inquiry by Adams, and not the product of interrogation. Such voluntary statements are admissible. See Art. 38.22(5), V.A.C.C.P.; Larocca v. State, 479 S.W.2d 669 (Tex.Cr.App.1972); Walker v. State, 470 S.W.2d 669 (Tex.Cr.App.1971). Adams’ testimony that appellant picked up the shirt to put it on, and then put on a clean shirt, was also admissible. This evidence clearly showed that the green shirt was appellant’s. The admission of appellant’s response to Adams’ question was harmless error beyond a reasonable doubt. See Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976); Bridger v. State, 503 S.W.2d 801 (Tex.Cr.App.1974). Moreover, appellant waived the error. His objection to Adams’ original testimony was sustained, and he did not request a mistrial; Adams’ subsequent testimony as to appellant’s response was elicited without objection.

Appellant does not point to the admission of any other statements made by appellant or his brother, in violation of Art. 38.22, supra, and we find none in the record. This ground of error is overruled.

Appellant complains of the admission in evidence of the telephone conversation between appellant and Deputy Sheriff Curtis. Appellant objected to the admission of the conversation at trial on the grounds that Curtis could not identify appellant as the speaker, except by the speaker’s reference to himself as “John Earnhart.” In admitting the contents of a telephone conversation, the identity of the speaker is sufficiently established if the message reveals that the speaker has knowledge of facts that only the speaker would be likely to know. Gleason v. Davis, 155 Tex. 467, 289 S.W.2d 228 (1956). Here appellant told Curtis facts concerning the death of the deceased that only he or his brother would know. Also, identity is established if a call is made to a business office over a line maintained by it for business purposes and the speaker represents that he is the one called, and there is no proof to the contrary. See Gleason v. Davis, supra; Spolane v. Coy, 153 S.W.2d 672 (Tex.Civ.App.1941). Curtis testified that he called the number listed as Earnhart Septic Tank, on Highway 377, north of Pottsboro. See also Woods v. State, 478 S.W.2d 541 (Tex.Cr.App.1972); Churchill v. State, 167 Tex.Cr.R. 26, 317 S.W.2d 541 (Tex.Cr.App.1958); Burnett v. State, 162 Tex.Cr.R. 1, 280 S.W.2d 260 (Tex.Cr.App.1955).

The statement made by appellant to Curtis was hearsay, but was admissible as an admission. Moreover, there was no objection at trial that the conversation was hearsay. No error is shown.

During jury argument the prosecutor made the following comment:

“Ladies and gentlemen, I told you on the first day you came into this courtroom that I was only required to prove that these defendants killed Spurgeon Le-dale Elkins by shooting him with a gun.
I don’t have to tell you why. If I knew why, I would tell you, but I wasn’t there. There were only three people there. By John Ray Earnhart’s own words, no one else was there but his brother Jim Earn-hart and this dead man.
“MR. JOINER: We object to that. That is not a proper argument, not a proper statement. We object to his making a statement like that.
“THE COURT: All right. Ladies and gentlemen, I will overrule the objection with this instruction. The deductions which Counsel make are deductions from the evidence as they remember it. You, of course, will remember the evidence as it was presented. What they say is not evidence.”

Appellant contends that the statement constituted a comment on his failure to testify. Appellant’s objection was general, and appellant did not notify the trial court of the grounds for his objection. Appellant did not clarify the grounds for his objection after the trial court gave its instruction to the jury, or press for further relief. No error is preserved.

Appellant contends that the prosecutor went outside the record and made a comment on appellant’s right to remain silent when he stated that “. . . aiding a person overtly is no different from one of them saying, T will tell the story and don’t you say a word.’ ” Appellant objected at trial on the grounds that the statement was outside the record. The objection was sustained, and appellant did not request an instruction to disregard or a mistrial. Appellant’s contention is overruled.

Appellant complains of another remark by the prosecutor immediately following the last remark. However, appellant did not object to the remark, and no error is preserved.

After the jury began deliberating they sent a note to the court asking whether it was possible to give each defendant a different sentence. The trial court responded with the following written statement:

“MEMBERS OF THE JURY:
“I have your communication reading as follows:
“ ‘Is it possible to give each defendant a different sentence?’
“In answer thereto, you are instructed that you have been provided with separate charges as to each defendant. You will be governed by the law contained therein and return a separate verdict as to each defendant.
“You will retire to consider your verdict.”

Appellant contends that the answer given constituted an additional charge to the jury, and the trial court failed to answer the question in the proper manner. The answer simply referred the jury to the charges they already had before them. A referral to the original charge is not considered an additional instruction. Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967); Pigg v. State, 162 Tex.Cr.R. 521, 287 S.W.2d 673 (Tex.Cr.App.1956). The trial court submitted the written answer to the State and appellant for objections before sending it in to the jury. Appellant’s counsel expressly waived the reading of the answer in open court. The requirements of Art. 36.27, V.A. C.C.P. regarding communications with the jury were satisfied. See Hardeman v. State, 552 S.W.2d 433 (Tex.Cr.App.1977); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974). No error is shown.

The judgment is affirmed.

CLINTON, Judge,

dissenting.

This circumstantial evidence case was tainted with its trait of weakness from the moment Deputy Sheriffs Don Teague and Troy Adams independently and for different reasons surmised that the Earnhart brothers were culpable.

Teague said that the Earnharts became suspects when “they told me that no one else had been there;” for his part, Adams said they became suspects when it appeared, from the lack of blood in his pickup truck and all the blood inside the house that Elkins had not been hurt before he got to the house. Acting on their respective suspicions the deputies observed the body of the deceased — neither realizing that the deceased had been shot — engaged the brothers in conversation and made a limited inspection of the immediate area of the room where the body was found. It was the careful search the following day, along with detailed examination, of the premises which produced the forensic evidence and related testimony of the searching officers and expert witnesses. The facts and circumstances thus derived are summarized in the opinion in this case supplemented by the detailed statement in the case of brother James Earnhart.

From the testimony it seems that all conversation leading up to the Earnhart brothers being told they were under arrest occurred in the same room where the body of the deceased was found and examined. Whenever it appeared that the officers were going to take the brothers to jail and before either one had been given a Miranda warning, appellant expressed to Adams his desire to go to a back room and get a shirt; Adams accompanied him and as appellant picked up a shirt out of a “clothes box” Adams heard him say, “That’s got blood on it, I don’t want to wear that.” Adams then asked, “Is that yours?” and appellant replied, “Yes” and, further saying he wanted a clean shirt, he obtained one.

Adams was responding to a question asking where else he had observed blood and when his response was given, appellant immediately objected “to all this testimony” stating, “The man was under arrest and has not received any warnings, and we would like the jury not to consider any of this testimony.” The trial court sustained that objection, instructed the jury not to consider the last answer “relative to what Mr. Earnhart said” and upon request of appellant instructed Adams just to answer the questions. The State obtained a bench conference after which the trial court excused the jury and asked the State to develop the “time factor” further. After some testimony and dialogue, during which the prosecutor represented, erroneously, as it turned out, that Teague had previously properly warned appellant, the State insisted that statements of appellant were spontaneous, res gestae of the arrest and not an oral confession; whereupon the trial court adjourned court to “take a look at this” and thereafter announced he would overrule the objection but let appellant clearly develop that at the time in question appellant “never had been warned of his rights.”

In his second ground of error, appellant complains, inter alia, of admission of his statements in the back or southwest bedroom, pointing to legislative concern reflected by Articles 15.17 and 38.22, V.A.C. C.P. and citing Lopez v. State, 384 S.W.2d 345 (Tex.Cr.App.1964). Conceding the point, still one problem confronting appellant and this Court is that in his final question to Adams on recross examination as to his questioning James Earnhart, appellant got a reply to the effect that Adams did not ask James anything, followed by a non-responsive reiteration that Adams “did ask John Ray if that was his shirt;” whereupon — without objection — the State asked Adams what was appellant’s reply to the last question and Adams quoted appellant as saying, “Yes, it was his.” Under the circumstances of earlier objections and the hearing and ruling of the trial court outside presence of the jury, Art. 40.09, § 6(d)(3), V.A.C.C.P., obviates renewing an objection in presence of the jury, Price v. State, 460 S.W.2d 420 (Tex.Cr.App.1970).

Admitting the statement of ownership of the shirt was error of constitutional dimension, Smith v. State, 507 S.W.2d 779 (Tex.Cr.App.1974). But the question remains whether error in admitting the statement was harmless beyond a reasonable doubt within the latitude afforded a reviewing court by Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) that is definitively analyzed in Bridger v. State, 503 S.W.2d 801, 804-805 (Tex.Cr.App.1974). Having thoroughly read the record and summarized its salient features elsewhere or by reference to the opinion in No. 57,138, I am persuaded that evidence of guilt of our appellant in this circumstantial case is only slightly above the level of insufficiency to convict his brother: his blood type on the rifle that was thought to be but, in view of expert testimony that all he could say about the fatal projectile was that it was .22 caliber, was not proved to be, the murder weapon; his seemingly but not necessarily inconsistent reports to peace officers as to arrival and cause of condition of deceased; his occupancy of the house in which a trail of blood spots suggest movement of Elkins from a chair in the living room to the bathroom and back to a bed in the living room — these factors, along with evidence of blood of deceased on the soiled shirt, appear to be highlights of what the prosecutor told the jury “is a difficult case and I am sure that your decision will be difficult.”

In these circumstances, I am not convinced that impact of evidence that appellant admitted ownership of the bloody shirt on the minds of the average jurors would be so slight as to be harmless beyond a reasonable doubt or that the verdict would have been the same had the tainted evidence not been admitted. To the contrary, there is more than a reasonable possibility that the evidence complained of contributed to the conviction; cf. Myre v. State, 545 S.W.2d 820, 827 (Tex.Cr.App.1977); Cunningham v. State, 500 S.W.2d 820, 824 (Tex.Cr.App.1973). See also Gonzales v. State, 581 S.W.2d 690 (Tex.Cr.App.1979). The majority would have it that because appellant picked up the green shirt and, upon observing its condition, cast it aside, his acts “clearly showed that the green shirt” was his. The majority perceives today what the deputy sheriff standing next to appellant that night plainly did not. Adams asking the question, “Is that yours?” belies the hindsight perception of the majority. I agree with Deputy Adams that, given the described condition of the house and its occupants that night, merely because appellant picked up a shirt out of a “clothes box” did not mean that it was his shirt. Just as Deputy Adams felt he had to ask the question in order to learn the fact of ownership, so we should deny him the fruits of the constitutionally impermissible inquiry.

For the violation of constitutional rights, I would reverse and remand.

      . Adams admitted that he did not warn them but thought Teague may have; whereupon the prosecutor expressed a desire to call Teague to show a warning before appellant was moved from the “southeast” room; in his testimony Teague “couldn’t say” that either was warned in the house but that he had given the warnings when he “already had them in the car.”

      . According to expert opinion, blood on the shirt was compatible with blood of deceased.