Jackson v. State

649 S.W.2d 317, 1983 Tex. App. LEXIS 4033
Court of Appeals of Texas·Decided February 24, 1983·No. No. 07-81-0127-CR·Published·Cited by 5 cases

Opinion

REYNOLDS, Chief Justice.

Appellant Randy Jackson was convicted of aggravated robbery by a jury which assessed his punishment at confinement for twenty (20) years. The court rendered judgment and pronounced sentence accordingly.

Appellant seeks a reversal of the judgment of conviction on two grounds: (1) the erroneous admission into evidence of a photograph of a scar on his leg, and (2) the erroneous overruling of his objection to the State’s characterization of the case as “garbage.” The complained of actions, albeit erroneous, do not, under the facts of this cause, amount to reversible error. Affirmed.

The sufficiency of the evidence to support the conviction is not challenged. It suffices to record that during a series of provocative acts and without the effective consent of the victim, appellant, with the aid of another person, robbed the victim of money while brandishing a six- to eight-inch knife.

Two women whom appellant involved in his actions testified that he had a large burn scar on his left leg; each identified a photograph taken of a scar on appellant’s left leg by a police officer as the scar or as similar to the scar they had seen on appellant’s leg during the robbery interval. The photograph, identified by the photographer, was admitted into evidence over appellant’s “objections which were urged before the Court, previously.” The previous objection, stated at a pre-trial suppression hearing, was that appellant “was in custody and under arrest at the time.” On appeal, appellant contends that the court reversibly erred in admitting the photograph over his objection because the photograph was the fruit of an illegal warrantless arrest.

As a threshhold matter unmentioned by the State, we notice that the objective basis of the ground now advanced on appeal does not comport to the objection voiced to the trial court. There is an at once apparent and vast difference between a trial court objection to the admission of evidence merely because the defendant was in custody and an appellate contention grounded on an inadmissibility of evidence resulting from an illegal arrest. The former is a general objection which offers no reason to exclude the evidence; the latter is a specific objection which evinces a constitutional bar [319]*319to the receipt of evidence. It is axiomatic that the appellate ground of error must comport to the objection voiced at trial; otherwise, the appellate ground of error presents nothing for review. Rovinsky v. State, 605 S.W.2d 578, 580 (Tex.Cr.App.1980); Crocker v. State, 573 S.W.2d 190, 205 (Tex.Cr.App.1978).

Nonetheless, it reasonably appears from the record that the court understood one of appellant’s contentions at the pre-trial suppression hearing was that the photograph was obtained as the result of an illegal arrest; consequently, appellant’s initial objection enabled the court to understand the precise question and make an informed ruling. Given this premise, the objection made at trial was sufficient to preserve the error now advanced on appeal, Roberts v. State, 545 S.W.2d 157, 158 (Tex.Cr.App.1977), which we will entertain.

The State defends the court’s admission of the photograph on three theories: the arrest was legal; however, if the arrest is deemed improper, the photograph was obtained by means sufficiently distinguishable from, and purged of any taint of, the arrest; but, in the event the admission of the photograph was error, the error was harmless. In our view, only the last theory has validity under the facts of this cause.

In theorizing that the arrest was legal, the State argues the applicability of Article 14.04 of the Texas Code of Criminal Procedure Annotated (Vernon 1977), which reads:

Where 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 procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

Thus, the question is whether there is satisfactory proof that the arresting officer reasonably believed that appellant was about to escape when he made the warrantless arrest, so that there was no time to procure the arrest warrant. Absent that showing, a warrantless arrest is not authorized by the statute. Fry v. State, 639 S.W.2d 463, 469 (Tex.Cr.App.1982).

The robbery underlying appellant’s conviction occurred at a motel. Eight days later at approximately 12:30 a.m., an attempted robbery at an apartment complex was reported to the police. Some eight or nine hours later, an officer on patrol, who had been briefed on the report, was notified via radio that the suspect was in a car in the parking lot on the apartment complex. The officer proceeded to the parking lot where he was met by another officer. After searching the lot without finding anyone, the officers were approached by the attempted robbery victim. The intended victim, who had reported to police that appellant was the one who attempted the robbery, told the officers that appellant had gone into the apartment where appellant lived.

The arresting officer made no attempt to procure an arrest warrant even though he knew that the district attorney’s office had a policy of having an assistant on call at all times to facilitate the acquirement of an arrest warrant. Moreover, the arresting officer was experienced in keeping a location under surveillance while warrants for arrest were being obtained.

The officers proceeded to the apartment and knocked on the door. Appellant opened the door, identified himself and, according to the arresting officer, invited the officers into the apartment. Appellant was arrested.

The arresting officer testified, and reiterated, that appellant did not attempt to flee or escape in his presence; but, upon his third examination by the State, the officer replied, in answer to a leading question, “Yes, sir, I had reasonable grounds to believe [this man might be trying to flee the scene of a burglary, and a robbery].” The grounds were not articulated.

Appellant was taken to the police department where he was given the Miranda [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] warning. Appellant, saying that he did not want to talk with the warning officer and wanted to [320]*320terminate the interview, called his attorney. About thirty or forty minutes later, the warning officer, together with two other officers, went to the jail and told appellant that they wanted to see the scar on his leg. One of the officers then took the picture of appellant’s scarred leg, the admission of which appellant contends was reversible error.

The evidence developed in this record, as summarized above, falls far short of satisfactory proof that appellant was about to escape. Finding appellant, whose identity was known, in his home in the vicinity of, and some eight to nine hours after, the attempted robbery, without any objective manifestations of preparations or an attempt to escape, militates against a satisfactory showing that appellant was about to escape.

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Jackson v. State, 649 S.W.2d 317, 1983 Tex. App. LEXIS 4033 (Tex. Ct. App. 1983).

649 S.W.2d 317 (Jackson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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