AT AUSTIN
NO. 3-91-158-CR
JESSE LOUIS GARDNER,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
NO. 7468, HONORABLE DAN R. BECK, JUDGE PRESIDING
Jesse Louis Gardner appeals his conviction for burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(3) (1989). In a single point of error Gardner complains that the trial court erred in admitting fingerprint evidence obtained as a result of an illegal, warrantless arrest. We will reverse the conviction and remand the cause for a new trial.
Before 7:30 a.m. on October 8, 1990, the Robert Bruening family left their residence in rural Fayette County near the town of Shelby. Shelby is in Austin County near the Fayette County line. The Bruening residence is located just off County Road 222 near the intersection of that road and FM 389.
Robert Bruening's brother, Aurel "Buster" Bruening, came to the residence about 2:00 p.m. that day to work on a fence. As he arrived he noticed an unfamiliar, dark brown car, occupied by a "strange" man who "had glasses on, and had a little hat pulled over his eyes," parked alongside the county road opposite the drive to the residence. As Aurel turned into the drive, the vehicle drove away, heading on County Road 222 in the direction away from FM 389 toward some woods. In that direction, County Road 222 meets another road about three miles away. Soon thereafter, Aurel fired several gunshots "at a fish crane" eating the fish in his brother's fish pond. When he fired the shots, the car apparently turned around, because it returned, heading toward FM 389. Aurel never saw the car again and never saw anything to connect Gardner to the car or its driver.
After the car drove away, and about ten or fifteen minutes after Aurel arrived at the residence, Aurel saw a black man wearing camouflage pants, whom he later identified as appellant Jesse Louis Gardner, walking on County Road 222 toward FM 389. Aurel testified that he thought this was unusual because "it was a black man. There is no black man lives within eight or ten miles from that area." His suspicions aroused by the strange car and the stranger walking down the road, Aurel drove around looking for the car he had seen earlier in order to record its license number. In doing so, he drove past Gardner walking on the side of the road.
Aurel was unsuccessful in finding the car, but he discovered two pillowcases containing items he recognized as belonging to his brother, including a Nintendo game, a VCR, two jewelry boxes and a Polaroid camera. The pillowcases were in a ditch alongside County Road 222 about forty to fifty yards from the drive to the residence in the direction of the woods. Aurel then called the Fayette County Sheriff's Department to report a burglary.
As Aurel continued to drive around the area, he saw Gardner, walking toward Shelby on FM 389. He asked a local businessman to call the Austin County Sheriff's Department "to have this man picked up."
Aurel returned to the residence and discovered the back door had been kicked in. He summoned Fayette County deputy Mike Noak, who had responded to the call about the pillowcases in the ditch, to observe where the burglar entered the residence. About 3:30 p.m., Noak requested that the Fayette County dispatcher alert Fayette and Austin County law enforcement personnel of Gardner's description; both Austin and Washington County personnel responded.
Around 6:30 p.m., Robert Bruening saw a black man wearing camouflage pants walking on FM 389 near the Austin and Washington County line. Because the man fit Aurel's description of the stranger Aurel had seen walking past the residence, Robert called the Austin and Washington County sheriff's departments. Shortly thereafter deputies Mike Randermann and Randy Kettler of the Washington County Sheriff's Department intercepted Gardner walking toward Brenham on FM 389 about two and one-half miles from Shelby and about one-half mile inside the Austin County line. They arrested, handcuffed, and held him approximately twenty minutes until Deputy Noak arrived and assumed his custody.
After Gardner's arrest, a Fayette County jailer fingerprinted him. A deputy investigator for the Fayette County Sheriff's Department identified similarities between one of Gardner's prints and a latent print he lifted from the stolen Polaroid camera. A latent-print examiner for the Department of Public Safety later confirmed that Gardner's fingerprint matched the print found on the camera.
Gardner testified at trial and explained that he and two male acquaintances from Houston, known to him only as "Mo and Larry," came to Shelby looking for yardwork. That morning Gardner had been showing off money he received in settlement of a personal-injury claim. The men robbed and abandoned him. Gardner started walking toward Brenham where he planned to call someone from home to come and pick him up. It was a hot day and Gardner was thirsty, so as he walked along he watched the roadside for a bottle or something to fill with drinking water. Gardner spotted the pillowcases in the ditch and looked inside to see if there was some sort of a bottle inside. That, he claims, is how his fingerprint came to be on the camera.
The State indicted Gardner for alleged unlawful entry of a habitation without the effective consent of the owner. Before trial, Gardner filed a motion to suppress evidence challenging the lawfulness of his arrest and the admissibility of all evidence derived from it. There was no pretrial hearing on the motion, but both parties filed briefs. The trial court overruled the motion during the trial, permitting the State to introduce into evidence Gardner's fingerprints, and both the deputy investigator's and the latent-print examiner's testimony that Gardner's fingerprint was on the Polaroid camera stolen in the burglary.
In his only point of error, Gardner complains that the trial court erred in admitting the fingerprint evidence because Gardner's fingerprints were obtained after his warrantless arrest, and probable cause for the arrest did not exist.
As a general rule, a police officer must obtain an arrest warrant before taking someone into custody. Dejarnette v. State, 732 S.W.2d 346, 349 (Tex. Crim. App. 1987); Honeycutt v. State, 499 S.W.2d 662, 663-64 (Tex. Crim. App. 1973). Chapter fourteen of the Code of Criminal Procedure governs the exclusive situations in which a police officer may make an arrest without first obtaining an arrest warrant. Wilson v. State, 621 S.W.2d 799, 803-04 (Tex. Crim. App. 1981). Article 14.03(a)(1) permits a peace officer to arrest "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." Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Supp. 1992) (emphasis added). Article 14.04 permits a warrantless arrest "[w]here it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to pursue a warrant." Tex. Code Crim. Proc. Ann. art. 14.04 (1977) (emphasis added). The lawfulness of Gardner's arrest depends on the applicability of one of these statutes and the presence of probable cause at the point of Gardner's initial detention; "satisfactory proof" is the equivalent of constitutional probable cause. See Earley v. State, 635 S.W.2d 528, 531-32 (Tex. Crim. App. 1982).
The test for probable cause to effect a warrantless arrest is whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense. (1) Garrison v. State, 726 S.W.2d 134, 137 (Tex. Crim. App. 1987). Once the accused objects to the adequacy of probable cause for this warrantless arrest, the State has the burden to present facts establishing the lawfulness of the arrest. Id. at 137.
The constitutional validity of a warrantless arrest can be decided only by the specific factual situation in each individual case. Honeycutt, 499 S.W.2d at 665; Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972). When several officers are involved in an investigation, and one officer makes an arrest solely on the request of another officer, determination of whether probable cause exists requires review of the sum of information known to all of the cooperating officers at the time of the arrest. Garrison, 726 S.W.2d at 137; see also Colston v. State, 511 S.W.2d 10, 12 (Tex. Crim. App. 1974).
The State failed to meet its burden of establishing that probable cause existed for Gardner's arrest. The State claims that article 14.03(a)(1) authorized the warrantless arrest because the burglary occurred in a rural, sparsely populated area, Gardner was a stranger in the area, and he was on foot near the scene of the burglary with "no apparent business in the area other than that he was escaping from the scene of the crime." However, "[i]n determining whether a warrantless arrest may be justified under Article 14.03(a)(1) . . . [the Court of Criminal Appeals] has held that where events are as consistent with innocent activity as with criminal activity, the detention of a suspect based on those events is unlawful." Hoag v. State, 728 S.W.2d 375, 379 (Tex. Crim. App. 1987); Glass v. State, 681 S.W.2d 599 (Tex. Crim. App. 1984). Gardner was walking on a public road in broad daylight. His demeanor did not indicate that he was nervous or anxious, and he did not attempt to flee or hide, even when Aurel fired gunshots and drove past him several times, or when the police approached to arrest him. His actions were as consistent with innocent as with criminal activity and did not justify a warrantless arrest under article 14.03(a)(1).
For article 14.04 to justify the arrest, the State must show the officers had satisfactory proof that: (1) a felony had been committed; (2) the appellant was the offender; and (3) the appellant was about to escape. DeJarnette, 732 S.W.2d at 349; see also Sklar v. State, 764 S.W.2d 778, 780 (Tex. Crim. App. 1987).
Noak had sufficient proof to satisfy the first element of article 14.04; Aurel reported that his brother's house had been burglarized, and Noak retrieved the pillowcases stuffed with stolen items from the ditch and observed the broken door frame.
The facts are not sufficient, however, to warrant a prudent man in believing that Gardner was the offender, as required by both article 14.04 and article 14.03(a)(1). In addition to the facts above, to establish probable cause the State argues: (1) Aurel is a lifelong Shelby resident whose credibility has never been challenged; (2) Gardner fit Aurel's description of the burglar; (3) the ditch where Aurel found the pillowcases was overgrown with sticker bushes and Gardner's clothing also was covered with stickers; and (4) Aurel positively identified Gardner after the arrest.
The State's brief in response to defendant's motion to suppress evidence states "Buster reported the burglary to Noak and described the suspect . . . . Noak relayed the description to the dispatcher with instructions to alert authorities in neighboring Austin County." At trial Noak testified that Aurel told him a burglary had occurred at Aurel's brother's residence and "they told me it was a black male about six foot, wearing camouflage pants, and that he was walking toward Shelby."
This tip does not relate "satisfactory proof" from which Noak could reasonably determine that Gardner was the offender. Because Noak based his probable-cause assessment on information received from an informant, probable cause for the warrantless arrest must be supported by information sufficient to allow a magistrate to determine probable cause for the issuance of a search warrant. Wilson, 621 S.W.2d at 804. To support the issuance of a warrant based on an informant's tip, identification of a particular person as the offender must be made in the officer's presence or must show that the person making the identification was known to the officer as an eyewitness to the commission of the offense, or must state underlying facts supporting the informant's conclusion that the person committed the offense. See Lowery v. State, 499 S.W.2d 160, 163 (Tex. Crim. App. 1973). Noak's statements do not establish that Aurel related to Noak the underlying facts supporting his conclusion that Gardner committed the offense. Without knowledge of these underlying facts, the fact that Noak believed Aurel to be a credible person whose credibility had never been challenged or that Gardner fit Aurel's description of the burglar is not controlling.
Even if we assume that Aurel related all of the afternoon's events to Noak, the facts are still insufficient to show probable cause for arresting Gardner under either article 14.04 or article 14.03(a)(1). Gardner was not the only person Aurel saw near the residence; Aurel also saw the strange brown car with its strange driver parked at the entrance to the drive. The driver moved the car when Aurel appeared and drove away when Aurel shot the gun. Aurel suspected that Gardner and the man in the car were accomplices; however, Aurel did not see Gardner get in or out of the car, he did not see the car stop by Gardner, and he did not see Gardner standing near the car or speaking to the driver. Neither did Aurel see Gardner near the residence. Further, no evidence established that Gardner's presence in the area coincided with the time of the burglary. The burglary could have occurred any time between 7:30 a.m. and 2:00 p.m. Aurel saw Gardner walking on County Road 222 toward the drive to the residence about 2:15 p.m. Without such proximity in time, it would be unreasonable to conclude that a person seen walking on the road was necessarily the offender. See Glass, 681 S.W.2d at 601. Moreover, Aurel became suspicious even before he discovered the burglary. Inarticulate hunches and suspicions are not enough to justify a warrantless arrest. Honeycutt, 499 S.W.2d at 665.
That both the pillowcases and Gardner's clothing were covered with stickers, that Aurel positively identified Gardner after the arrest, and that Gardner's fingerprint was found on the camera add nothing. Probable cause must exist at the time of the arrest; information gained after the arrest cannot be used to bolster probable cause. (2) Wilson, 621 S.W.2d at 804; Colston, 511 S.W.2d at 13.
The State agrees Gardner's fingerprints were not admissible unless he was lawfully arrested. Since the arrest was unlawful, fingerprints taken after the arrest were inadmissible and could not be used to make a comparison to the latent fingerprint found on the stolen camera. See Tex. Code Crim. Proc. Ann. art. 38.23 (Supp. 1992); Davis v. Mississippi, 394 U.S. 721 (1969). Both the fingerprints and the latent-print examiner's testimony should have been excluded.
Finally, we consider whether the error in admitting the fingerprint evidence was harmful. A judgment will not be reversed for admission of evidence that did not injure the accused. Tex. R. App. P. Ann 81(b)(2) (Pamph. 1992); Prior v. State, 647 S.W.2d 956, 959 (Tex. Crim. App. 1983). The test for harmful error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction or affected the punishment. Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989); Self v. State, 709 S.W.2d 662, 668 (Tex. Crim. App. 1986).
Without evidence connecting Gardner's fingerprint to the one on the stolen camera, the only proof linking Gardner to the burglary was his walking on the road in front of the scene of the crime on the day of the offense. The State concedes that it could not have obtained Gardner's fingerprints without the arrest and that the fingerprint evidence contributed to the conviction. Therefore, improper admission of this evidence harmed Gardner and the conviction must be reversed. See Tex. R. App. P. Ann. 81(b)(2) (this Court must reverse the conviction unless it can determine beyond a reasonable doubt that improper admission of the evidence made no contribution to the conviction); Mallory v. State, 752 S.W.2d 566, 569-70 (Tex. Crim. App. 1988); Powell v. State, 778 S.W.2d 484, 486 (Tex. App. 1989, no pet.).
We sustain Gardner's point of error, reverse the judgment, and remand the cause for a new trial.
Marilyn Aboussie, Justice
[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]
Reversed and Remanded
Filed: July 1, 1992
[Do Not Publish]
1. The State concedes this was a warrantless arrest and not an investigative stop. Compare Tex. Code Crim. Proc. Ann. art 15.22 ("A person is arrested when he has been actually placed under restraint or taken into custody . . . by an officer . . . arresting without a warrant.") and Hoag v. State, 728 S.W.2d 375, 379 (Tex. Crim. App. 1987) ("An arrest is complete when a person's liberty of movement is restricted or restrained.") with Terry v. Ohio, 392 U.S. 1 (1968). Circumstances short of probable cause for arrest may justify a temporary detention for investigation and questioning. Baity v. State, 455 S.W.2d 305, 308 (Tex. Crim. App.), cert. denied, 400 U.S. 918 (1970).
2. It is unclear from the State's appellate brief whether the "sticker" evidence was gained before or after Gardner's arrest. Trial testimony indicates it was discovered after arrest. In any event, Noak testified that the roadside was overgrown with sticker bushes and that a pedestrian stepping off the paved road would get stickers. Thus, this fact is as consistent with innocent activity as with criminal activity and does not further the conclusion that Gardner committed any offense.