Coleman v. State
This text of 362 S.W.3d 866 (Coleman v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
DISSENTING OPINION
This appeal requires us to decide whether an offense was committed within the arresting officer’s presence or view, as required by Code of Criminal Procedure article 14.03(g)(2), when the police officer conducting the warrantless arrest did not personally observe the traffic violation, but was instead informed about it by another officer.1 This exception to the warrant requirement — that the offense be committed in the officer’s presence or within the officer’s view — has been the law in Texas since the original 1856 Code of Criminal Procedure.2 Because the plain [867]*867meaning of the statute does not allow such a warrantless arrest and the Court ignores the plain-meaning rule of statutory interpretation set out by the Court of Criminal Appeals in Boykin v. State, I respectfully dissent.3
This Court in Gonzales v. State misinterpreted the plain meaning of Code of Criminal Procedure article 14.01 to allow a peace officer who did not see the offense to arrest the offender without a warrant: “Even though Officer Guerra was the only officer to have seen the commission of the offense, it is sufficient that he saw the offense and communicated his knowledge to other officers, giving them authority to act on the information and to effect an arrest.” Gonzales, 688 S.W.2d 41, 45 (Tex.App.-Houston [1st Dist.] 1982, pet. refd). This opinion was cited in an unpublished opinion by this Court and subsequently criticized by three judges of the Court of Criminal Appeals. McGowan v. State, No. 01-83-00190-CR (Tex.App.-Houston [1st Dist.] Dec. 16, 1988) (not designated for publication), pet. ref'd, 689 S.W.2d 224 (Tex.Crim.App.1985) (Clinton, J., dissenting, joined by Teague and Miller, JJ.).
In Astran v. State, Officer Wilson, who actually viewed the offense, was undercover at the time, purchasing heroin from the defendant. Astran, 799 S.W.2d 761, 762 (Tex.Crim.App.1990). After making his purchase, Wilson radioed the other officers “a detailed description of [defendant], which included [his] height, weight, and location.” Id. The defendant was arrested, but Wilson did not actually conduct or witness the arrest. Id. Ultimately, the court held that “[a]s long as the facts show that the viewing officer effectively participated in the arrest and was fully aware of the circumstances of the arrest, then Art. 14.01 is satisfied.” Id. at 764. The court further held that Wilson did not have to personally make the arrest because his “participation in and awareness of the circumstances of the arrest made him ‘just as much a participant in [defendant’s] arrest [868]*868as if he has seized the [defendant] himself.” Id. Under Astran, our opinion in Gonzales is clearly a misstatement of the law.
I, however, believe that Astran is also an incorrect statement of the law and agree with Judge Teague’s dissent in that case:
After carefully reconsidering whether Willis v. State, 669 S.W.2d 728 (Tex.Cr.App.1984), upon which the majority opinion in this cause so heavily relies, was correctly decided, I have now concluded that it was wrongly decided, and should be expressly overruled. Other cases, such as Beverly v. State, 792 S.W.2d 103 (Tex.Cr.App.1990), which adhere to the extremely flawed principle of law enunciated in Willis, supra, should also be expressly overruled.
Chapter Fourteen of the Code of Criminal Procedure enumerates the only exceptions when a peace officer is authorized to arrest another individual without a warrant. Art. 14.01(b), V.A.C.C.P., the only statute that was implicated in Willis, supra, and the only statute that is implicated in this cause, expressly provides: “A peace officer may arrest an offender without a warrant for any offense committed in the presence or within his view.” As plainly seen, the statute is clearly written. It provides that a peace officer may arrest without a warrant if, in his presence or within his view, he witnesses the commission of any criminal offense. There is nothing within that statute that allows one or more third parties to make an arrest on the basis of information supplied by the officer in whose presence or within whose view the offense was committed. This Court clearly erred in Willis in applying the informant analogy to the statute. See, however, Art. 14.04, V.A.C.C.P. Art. 14.01(b), supra, which by its very wording obviously places the focus of attention on whether the offense was committed within the presence or within the view of the arresting officer, and not on what information a peace officer might have relayed to another peace officer, who makes the actual arrest. The question in this cause is not whether the arresting officer might have had probable cause to make the arrest; instead, the issue is whether the arresting officer was authorized to make the arrest pursuant to the terms of Art. 14.01(b), supra, and it matters not whether the officer, who relayed to the officer who made the actual arrest, had “probable cause,” or either saw or did not see the arrest take place.
I find that when it comes to interpreting Art. 14.01(b), supra, Justice Burgess of the Beaumont Court of Appeals, who wrote that Court’s majority opinion in Beverly v. State, 764 S.W.2d 353, 354-355 (Tex.App.-Beaumont 1989), hit the nail on the head when he stated the following in that opinion:
For a warrantless arrest pursuant to article 14.01, [to be valid] however, probable cause for arrest must arise from facts within the arresting officer’s own knowledge and observations, not from hearsay information. (My emphasis.)
Also see and compare Art. 14.02, V.A.C.C.P., regarding the power of a magistrate to order a warrantless arrest to be made when a felony or breach of the peace has been committed in his presence or within his view. See also Judge Clinton’s succinctly written dissenting opinion in this Court’s opinion of Beverly, supra: “[T]he majority construction of Art. 14.01(b) is contrary to the plain language and intendment thereof.”
[869]*869In this instance, other than being told by the officer in whose presence a felony was committed to arrest a particularly described individual, who turned out to be the appellant, there is no evidence that reflects or indicates that the officer who made the actual arrest of appellant was authorized to arrest appellant pursuant to Art. 14.01(b), supra.
I believe that what this Court’s majority does today, as it did in Willis, supra, and Beverly, supra, is to act legislatively, and not judicially, and, in essence, to actually vote to repeal Art. 14.01(b), supra. This Court, however, in this instance, has not been given authority by the voters of this State to act legislatively.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
362 S.W.3d 866, 2012 Tex. App. LEXIS 4522, 2012 WL 1466558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-state-texapp-2012.