Hernandez v. State

600 S.W.2d 793, 1980 Tex. Crim. App. LEXIS 1052

• Court: Court of Criminal Appeals of Texas
• Decided: January 16, 1980
• Docket: 62309
• Status: Published

Opinions

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for possession of heroin. Punishment was assessed at imprisonment for six years.

In his sole ground of error, appellant complains of the trial court’s denial of his motion to suppress. He contends that the evidence seized was the fruit of an unlawful stop. We agree with appellant’s contention and reverse.

A police officer stopped the car that appellant was driving. This stop was pursuant to a capias for appellant’s arrest. After the stop, the officer searched the car and seized certain evidence. This evidence became the subject of appellant’s motion to suppress.

The capias for appellant’s arrest resulted from a surety withdrawal on a bond. This capias was issued by a deputy clerk of the County Court at Law, Taylor County. Appellant contends that in seeking to withdraw from the bond, the surety failed to comply with the requirements of Article 17.19, V.A.C.C.P. Appellant further contends that this failure rendered the capias invalid, which made the stop pursuant to the capias unlawful.

Article 17.19 provides as follows:

Any surety, desiring to surrender his principal,- may upon making affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from such court or magistrate a warrant of arrest for such principal, which shall be executed as in other cases.

In the present case, contrary to the statutory requirement, the surety obtained a capi-as rather than an arrest warrant. In addition, the capias was obtained from a deputy clerk rather than the court or magistrate before which the prosecution was pending.

Appellant contends that the statute should be strictly construed. He relies on two cases discussing Article 17.19 and its immediate predecessor. These cases require that the statute be strictly followed. Austin v. State, 541 S.W.2d 162 (Tex.Cr.App.1976); Pfeil v. State, 118 Tex.Cr.R. 124, 40 S.W.2d 120, 123 (1931). In support of his position appellant argues that Article 17.19 reflects the Legislature’s determination that the decision to restrict a citizen’s liberty should be made by a neutral and detached magistrate.

The State urges that Article 17.19 should be liberally construed, and thus the surety’s failure to comply strictly with Article 17.19 did not invalidate the capias. The State relies on two cases discussing predecessors to Article 17.9. These cases hold that the predecessor statutes should be liberally interpreted. Wells v. State, 100 Tex.Cr.R. 73, 271 S.W. 918 (1925); Whitner v. State, 38 Tex.Cr.R. 146, 41 S.W. 595 (1897). The State also urges that this Court’s opinion in McConathy v. State, 545 S.W.2d 166 (Tex.Cr.App.1977), relegates the decision to issue the arrest warrant to a ministerial act, which a court clerk could perform by issuing a capias. In McConathy we found that the trial court had no authority to refuse issuance of the arrest warrant after the affidavit required by Article 17.19 had been filed.

Whitner, supra, parallels the present case insofar as the surety obtained a capias from the court clerk rather than an arrest warrant from the judge or magistrate. The crucial distinction in Whitner, however, is that when the surety obtained a capias from the clerk, the court was not in session. In upholding the procedure followed, Whit-ner emphasized that requiring strict compliance with the statute when the court was not in session would leave the surety without a remedy. The circumstances that led Whitner to engraft an exception on the prior statute are not present in the instant case.

Whatever the merit of the State’s policy argument, based on McConathy, supra, we think it properly should be addressed to the Legislature. Whatever the wisdom of this Court’s holding in Whitner, supra, 82 years ago, we decline to encroach further on the Legislature’s domain. We agree with Pfeil, supra, that this Court is “without right or power to do otherwise than follow the plain mandate of the statute.” By obtaining a capias from the court clerk rather than an arrest warrant from the judge or magistrate, the surety violated the plain mandate of Article 17.19. We conclude that the surety’s failure to comply with the requirements of Article 17.19 rendered the capias invalid, which made the stop pursuant to the capias unlawful. Austin, supra; see Ex parte Grisaffi, 140 Tex. Cr.R. 253, 144 S.W. 547 (1940); Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

Since the stop was unlawful and the evidence seized was a fruit of that illegality, appellant’s motion to suppress should have been granted.¹ Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App.1977); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973).

The judgment is reversed and the cause remanded.

1 . The dissenting opinion argues that the evidence seized as a result of the unlawful stop nonetheless should have been admissible under the reasoning of Michigan v. DeFiiiippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Notwithstanding this argument, two independent grounds preclude the admission of this evidence. First, there is no basis for a claim of good faith reliance on established law, and thus the reasoning of DeFiiiippo is inapplicable. The holding of Whitner, supra, was that a surety could obtain a capias from the court clerk only when the court was not in session. In the present case there was no showing that the court was out of session or even that the judge was unavailable. Contrary to intimations in the dissenting opinion, McConathy, supra, in no way expands the holding of Whitner. The surety’s actions were clearly outside the narrow statutory exception created by Whitner and were in direct violation of the terms of Article 17.19. Second, the evidence in this case was obtained in violation of a state statute and was inadmissible as a matter of state law under Article 38.23, V.A.C.C.P.