Foster v. State

677 S.W.2d 507, 1984 Tex. Crim. App. LEXIS 708

• Court: Court of Criminal Appeals of Texas
• Decided: July 11, 1984
• Docket: 285-83
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant’s conviction for theft was reversed and remanded by the court of appeals in Foster v. State, 648 S.W.2d 31 (Tex.App.—Dallas 1983). After review of the record, we are of the opinion the court of appeals reached the correct result in finding a confession, obtained after an illegal arrest, to be inadmissible.

In its petition, the State argues the court of appeals was wrong in finding that appellant’s occupation was not an “intervening circumstance” attenuating the taint of an illegal arrest. Appellant was a former assistant district attorney who was, at the time of his arrest, a practicing criminal defense lawyer. Certainly a lawyer would be more cognizant than most of the significance of Miranda warnings, but his understanding would bear on the threshold Fifth Amendment question of the voluntariness of the confession. It is well settled that Miranda warnings alone do not make the “act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.” Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975); see Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1981.)

Thus, even assuming appellant had an enlightened understanding of Miranda warnings, three considerations remain: (1) the temporal proximity of the arrest and confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of official misconduct. Brown, Green, supra. The fact appellant was a lawyer did not necessarily determine the time lapse between arrest and confession nor equip him for coping with official misconduct, and the record reveals no intervening events.

We note here that the court of appeals concluded that an “intervening circumstance must be something occurring after the arrest and before the confession to break any causal effect.” To obviate any confusion, we point out that an event or circumstance need not actually “occur” after the arrest, but rather it must manifest itself so as significantly to intervene and thus attenuate the taint of an illegal arrest. See generally Brown v. Illinois, supra; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); and Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982).

In this vein, the dissent argues that appellant was anxious to confess before he was arrested, and this anxiety manifested during interrogation and was thus an intervening circumstance. Judge Campbell finds appellant wished to confess because a police officer testified that while driving to the station, appellant said “he felt better now that he was caught” and he could “put all this” behind him.

However, the circumstances as a whole do not support Judge Campbell’s conclusion. The fact it took several hours and many shufflings from room to room before the police obtained an inculpating statement belies the conclusion that appellant was eagerly awaiting an opportunity to confess. The record establishes that when he arrived at the central district police station, an officer attempted to interrogate him; appellant said he did not wish to make a statement; rather, he wanted to see his lawyer, Wes Reed. Sometime later, Sgt. Parker, a homicide detective who knew appellant, came to the station and explained to him that Jim Barclow from the District Attorney’s Office had asked him to come over and personally talk to appellant. Appellant said he wished to speak to Wes Reed. Parker said things might not go as well if he talked to his lawyer first. Appellant said he was not interested in talking. After this conversation he was taken across the hall and left alone for about 30 minutes. Then he was taken back to Parker. Parker again said he had been in touch with Jim Barclow and he wanted to discuss the case with appellant. Appellant discussed the facts of his arrest with Parker and again said he wanted to talk to Wes Reed. Parker again said it would be better to talk to Reed later. Appellant was again taken to a room and left alone for approximately 30 minutes. Then he was taken back to Parker. Parker told him Jim Barclow was going to be in charge of the case, and “they” were more interested in getting the matter cleared up. Appellant testified he finally gave the confession because Parker told him Jim Barclow was going to handle the matter. From all this it is not reasonable to conclude appellant was “anxious to confess.”

The above rendition also serves to underscore the fact appellant’s status as a lawyer did not serve to protect him from police overtures and tactics. Indeed, it may have worked against him because the police apparently made him feel as if he were one of them, and his arrest was merely a “matter that needed to be cleared up.” Because he had been an assistant district attorney, and Jim Barclow’s name was used in the manner discussed ante, the police wanted him to sense he was still part of the law enforcement fraternity. In sum, the approaches were ingratiatory in nature, calculated to raise false hopes in appellant.

Further, his occupation could have hardly prevented the following: After the illegal arrest and while seated in the police unit at the scene, appellant briefly spoke through a window of the unit with an attorney about obtaining bail. Then, as the court of appeals remarked, he was driven “to the ‘central district’ police station, a different location from the police headquarters where the interrogation officer normally worked,” at which place he was first interrogated. Accordingly, Reed, the attorney with whom he had spoken, appellant testified, “could not locate me.” Thus we see that no matter how well trained in the law an accused may be, such training does not prevent the police from frustrating efforts to assert constitutional rights.

Therefore, we find the court of appeals was correct in concluding that the State did not meet its burden of showing that appellant’s statements, hard on the heels of an illegal arrest, were admissible.¹ However, the court of appeals did not determine whether the admission of the questioned confession constituted prejudicial error requiring reversal of appellant’s conviction. See Jordan v. State, 576 S.W.2d 825 (Tex.Cr.App.1979). Thus, we remand this case to the court of appeals for that determination.

1 . Heavy is that burden, but the Supreme Court has insisted the State must establish that "intervening events broke the connection between illegal detention and confession," Dunaway v. New York, 442 U.S. 200, 219, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). (Emphasis added.)