This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

cases on frisk (Cases on Frisk)

• A pat-down search can not be justified as a matter of routine. O'Hara v State (September 20, 2000, No. 412-99)

• Pat-down search was not invalid for failure of officer to testify he was afraid of def or felt he was in any danger. Regardless of whether officer stated he was afraid, the validity of the search must be analyzed by determining whether the facts available to officer at time of search would warrant a reasonably cautious person to believe that the action taken was appropriate. There is no legal requirement that a policeman must feel scared by the threat of danger. Under an objective analysis, it does not matter whether officer testified that he was afraid or was not afraid. O'Hara v State (September 20, 2000, No. 412-99)

• The additional intrusion that accompanies a Terry frisk is only justified where the officer can point to specific and articulable facts which reasonably lead him to conclude that the suspect might possess a weapon. Carmouche v State, 10 S.W.3d 323 (Jan. 26, 2000)

cases on lawful frisk: scope (Cases on Frisk)

• Viewing the evidence in a light most favorable to the trial court’s ruling, it supported finding that officer was concerned for his safety when he frisked def, and such a belief was objectively reasonable in light of the circumstances. Officer stopped def pursuant to an articulable suspicion that def was trafficking in cocaine. Based on this limited knowledge of def’s suspected activities, the officers justifiably approached def with caution. No merit to contention that by reaching into def's pocket and recovering the money, officer exceeded the scope of his authority under Terry, where officer testified that he immediately recognized the bulge in def’s pocket as money. The seizure of the money fell within the “plain feel” exception to the Fourth Amendment’s warrant requirement. No privacy interest in addition to that already implicated by the Terry frisk was infringed upon when officer withdrew what he already knew was money from def’s pocket. Carmouche v State, 10 S.W.3d 323 (Jan. 26, 2000)

cases on lawful frisk: stopped car (Cases on Frisk)

• Officer had lawful basis for pat-down search where he had probable cause to arrest def for Transportation Code violations before he conducted search of def's person and he had reasonable belief based on observation and experience that def had a knife, where he observed clip on def's pocket that he suspected was connected to a knife. Glazner v State (October 19, 2005, No. PD-0998-04)

• Where officer was alone in the middle of the night, and def had been wearing a knife, officer was objectively justified in patting def down for his own safety. [Facts: Officer was sitting alone in his patrol car at 3:30 a.m. in a rural area when he noticed def's truck drive by with malfunctioning clearance lights. He stopped the truck and conducted his standard safety inspection. During the investigation, officer asked for and was refused permission to search def's suitcase. Officer noticed that def was wearing a belt knife, but he allowed def to wear it throughout the inspection. Some portions of that inspection involved officer and def being in close proximity to each other. After the inspection was complete, officer told def to get his paperwork and they would go back to the patrol car for officer to write his report. Officer asked def to leave the knife in the truck, and def complied. When they got to the patrol car, officer told def that he would "let" him sit inside the car while officer wrote the report, but before he could do so, he would need to pat him down to be sure he did not have any weapons. Officer testified that it was his "standard procedure" when writing an inspection report to have the individual sit inside his patrol car while he wrote it, but only after he first patted the person down for safety. When officer patted def down, he found marijuana. He arrested def and later found cocaine. Pat-down could not be held lawful under matter-of-routine claim, but was upheld as justified for officer's safety.] O'Hara v State (September 20, 2000, No. 412-99)

stop or detention not arrest (Cases on Arrest without Warrant)

• It was not error to deny motion to suppress on claim detention evolved into an unlawful arrest. Investigative detention in instant case did not evolve into an arrest. To extent def was restrained, the restraint did not exceed scope of a Terry "stop and frisk." Officer escorted def to his patrol car "to question him further about his being out" and "to investigate if he may have been involved in the shots being fired in the area in some way, shape, or form." He handcuffed def because he feared for his own safety. These safety concerns were reasonable, given the circumstances: it was early in the morning; officer had encountered def in an area where gunfire had been reported; def exhibited suspicious behavior and lied in response to officer's questions; and officer was alone in patrol car with def without a bulletproof partition between front and back seats. The investigative detention did not evolve into an arrest simply because def was escorted to the patrol car and handcuffed. Officer did only what was reasonably necessary to ensure his own safety while investigating def's possible involvement in the gunfire. Balentine v State (April 3, 2002, No. 73,490)

preserving arrest issue (Cases on Arrest without Warrant)

• Post-conv habeas corpus challenge to arrest was forfeited by failure to raise issue on direct appeal. Ex parte Grigsby (June 23, 2004, No. 74,964)

burden to justify arrest (Cases on Arrest without Warrant)

• Where state did not present theory to the trial court (that even if the warrantless arrest was illegal, it did not taint the search pursuant to the warrant), state could not rely on that theory on appeal. State v Steelman (October 23, 2002, Nos. 1022-00 & 1023-00)

rules on probable cause for arrest (Cases on Arrest without Warrant)

• The standards for a warrantless entry into a home differ from those for a warrantless arrest. Each action requires the police to meet two distinct hurdles. In both situations the first hurdle involves the existence of probable cause to believe that some offense has been or is being committed, but differs depending on whether probable cause points to a person (arrest) or a location (search). The second hurdle differs depending on whether the officer is crossing the threshold of a home without a warrant to investigate an offense, or he is making a warrantless arrest. Under Texas law, a police officer must have both probable cause with respect to the person being arrested, plus statutory authority to make that arrest. To establish probable cause to arrest, the evidence must show that at the moment of arrest 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. There is a significant difference between (1) probable cause to believe that someone has committed an offense and (2) probable cause to believe that this particular person has committed an offense. Probable cause to arrest must point toward the specific person being arrested. Second, the officer who lacks a warrant to arrest must have statutory authority to make such a warrantless arrest. On the other hand, when the question is probable cause to cross the threshold of a private residence, probable cause may point to the location, but not necessarily a specific person. Again, the State must leap two hurdles. Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. Probable cause that points toward the location (but not necessarily any particular person) is the first hurdle. The second hurdle is that exigent circumstances, those which justify an immediate need to enter a residence without first obtaining a search warrant, must also exist. If either probable cause or exigent circumstances are not established, a warrantless entry will not pass muster under the Fourth Amendment. Parker v State (April 12, 2006, PD-0250-05)

• A mere anonymous tip, standing alone, does not constitute probable cause. State v Steelman (October 23, 2002, Nos. 1022-00 & 1023-00)

• The odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home. State v Steelman (October 23, 2002, Nos. 1022-00 & 1023-00)

• Failure to meet the presumption of 31.04(b)(2) does not mean that theft of service is not or cannot be proven. Specifically for purposes of instant case, failure to have probable cause or reasonable suspicion to believe that the 31.04(b)(2) presumption is met does not preclude the existence of the requisite level of suspicion to believe an offense has been committed under 31.04(a)(3). State v Larue (October 4, 2000, Nos. 37-00 & 38-00)

notes (Cases on Lawful Arrest without Warrant)

• It was not error to deny motion to suppress on claim arrest was unlawful because officer did not have arrest warrant. Officer had probable cause and arrest was made on a public highway, so no warrant was required. Busby v State, 990 S.W.2d 263 (March 31, 1999)

after stop detention (Cases on Unlawful Arrest without Warrant)

• Arrest for failure to identify, 38.02 PC, was illegal because officer did not decide to arrest or detain def until after alleged failure to identify. Crutsinger v State (May 10, 2006, AP-74,769)

• It was reversible error to deny motion to suppress def's statement made after arrest without probable cause, where officer arrested def for DWI but did not testify to any facts showing probable cause to arrest for DWI. Officer relied on statements to him by sheriff's deputies who had arrived at scene before officer, but deputies did not testify at trial and arresting officer did not testify to any facts observed by him or related to him by deputies. Unexplained opinions of deputies related to officer at scene did not show probable cause where deputies did not articulate supporting facts on which they based their opinions and arresting officer lacked any personal knowledge about accident or circs surrounding it and did not testify to any observations of def supporting showing probable cause. Torres v State (December 7, 2005, No. PD-1322-04)

not error (Cases on Fruits of Arrest)

• It was not error to deny motion to suppress evid obtained after illegal arrest where taint of arrest was sufficiently attenuated, where (1) def was first given his warnings when he was arrested; he was again read his warnings prior to officer's interview; at that time officer also had def show that he waived his rights by signing a warning form; finally def again received his legal warnings at the beginning of his tape-recorded statement; (2) less than one hour to an hour and a half elapsed between def's arrest and his interview with officer, arguably weighing in def's favor, but very shortly after officer stepped out of the holding room, def became emotional, stated that he had "messed up," and asked to speak to the officer; def's request was a product of his own free will and an intervening circumstance weighing heavily in state's favor; and (3) the official misconduct was not purposeful or flagrant; evid collected by police before def's arrest showed that he was directly connected to the use of a credit card stolen from murder victim; because police did not observe the illegal use directly, they were required to obtain a warrant in order to arrest def for credit card abuse or show a reason why a warrant was not necessary; though they did neither, fact remained that police arguably had enough information to get a warrant based upon probable cause; fact that def was improperly arrested on a different charge, which officer thought was correct under the circumstances, did not make the conduct purposeful or flagrant. Crutsinger v State (May 10, 2006, AP-74,769)

community caretaking function (Cases on Authority of Officer)

• Where record reflected that officer was concerned both that def was tired and that def may have been drunk, trial court, as exclusive judge of credibility and finder of fact, could have concluded that officer was primarily motivated by community caretaking concerns, but court still had to determine whether officer's belief that def needed help was reasonable. In instant case, nature and level of distress exhibited by def was extremely low: def drove over side stripe of road for 20 feet at 52 mph, which took less than one second, and after that occurrence officer followed def for over a mile before stopping him and in that distance observed no other behavior that could indicate fatigue or a traffic violation; other factors were not suff to authorize stop. Officer's exercise of community caretaking function was not reasonable. Corbin v State (June 5, 2002, No. 94-01)

• Once it is determined that an officer is primarily motivated by his community caretaking function, it must then be determined whether the officer's belief that the defendant needs help is reasonable. In evaluating whether an officer reasonably believes that a person needs help, courts may look to a list of four non-exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and 4) to what extent the individual, if not assisted, presented a danger to himself or others. Because the purpose of the community caretaking exception is to allow an officer to "seize" and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight. The greater the nature and level of distress exhibited, the more likely the police involvement will be a reasonable exercise of the community caretaking function. This is not to say that the weight of the first factor alone will always be dispositive. In fact, the remaining three factors help to give more definition to the first factor. A particular level of exhibited distress may be seen as more or less serious depending on the presence or absence of the remaining three factors. Corbin v State (June 5, 2002, No. 94-01)

authority of officer (Cases on Authority of Officer)

• The "hot pursuit" doctrine does not necessarily (though it will usually) involve some element of a chase. Yeager v State (April 2, 2003, No. 1555-00)

• Under the "hot pursuit" doctrine, the relevant consideration in instant case was whether the initial "pursuit" was lawfully initiated on the ground of suspicion. Probable cause to arrest was not required. Yeager v State (April 2, 2003, No. 1555-00)

officer conduct lawful (Cases on Authority of Officer)

• No merit to contention city police officer lacked authority to stop def's car because he was outside his jurisdiction, where officer had authority under 14.03(g) and 14.03(d) when he stopped def based on probable cause to believe DWI was underway. Brother v State (June 29, 2005, No. PD-1820-02)

• It was not error to deny motion to suppress on claim officers acted outside their geographic jurisdiction; evid supported conclusion officers acted under hot pursuit doctrine. There was an immediate and continuous pursuit of def from the scene of a crime when the police began and continued to follow def for DWI. Here, the police "pursuit" of def was lawfully initiated on the ground of suspicion because it began within the officers' geographic boundary and it was based at least on reasonable suspicion that def was driving while intoxicated. Assuming def had standing to challenge the officers' authority to detain him outside their geographic boundary, his initial detention was lawful under the "hot pursuit" doctrine. Finally, the officers' timing of the investigative detention outside their geographic boundary is irrelevant under the "hot pursuit" doctrine. The relevant consideration is that the officers' conduct ultimately resulting in def's initial detention and subsequent arrest was lawfully initiated on the ground of suspicion. Yeager v State (April 2, 2003, No. 1555-00)

presenting issue (Cases on Arrest under Warrant)

• Post-conv habeas corpus challenge to arrest was forfeited by failure to raise issue on direct appeal. Ex parte Grigsby (June 23, 2004, No. 74,964)

- affidavit insuff (Cases on Arrest under Warrant)

• Arrest warrant affidavit did not provide probable cause to believe def committed murders, where facts that could be derived from affidavit were: (1) three dead bodies were discovered in a mobile home; (2) the victims were def's wife and her two children; (3) def had recently been released from jail and was living with the victims in the mobile home where the bodies were found; (4) def's wife's car was missing from the scene; (5) the victims were killed with a gun and def was in possession of a gun; (6) an unsigned note stating "I am guilty of murder, incest, hatred, fraud, theft, jealously [sic], and envy" was found inside the mobile home on an envelope addressed to def; (7) def had previously assaulted another woman; (8) def's wife's car was parked outside of his girlfriend's apartment; (9) at 2 a.m., def asked his girlfriend to check to see if there was anything unusual outside of her apartment; and (10) when approached by officers outside of her apartment, def's girlfriend told the officers that def was inside her apartment, that he was armed with a pistol and had access to a rifle and another pistol, that he had been staying with her for several days, and that he had been driving his wife's car. [But no reversible error was presented where only evid produced from execution of warrant was def's statement, and that statement was not tainted by his illegal arrest.] Hankins v State (April 21, 2004, No. 74,369)