William Ethridge Hill, Jr. v. State ( 2003 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REMAND
NO. 03-01-00232-CR
NO. 03-01-00233-CR
William Ethridge Hill, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 0981472 & 0981493, HONORABLE BOB PERKINS, JUDGE PRESIDING
MEMORANDUM OPINION
This Court previously affirmed appellant William Ethridge Hill’s convictions for
arson and murder. Hill v. State, Nos. 03-01-00232-CR & 03-01-00233-CR, 2002 Tex. App. LEXIS
8534 (Tex. App.—Austin Dec. 5, 2002) (not designated for publication). On his petition for
discretionary review, appellant urged (among other things) that we failed to address every issue
raised in his brief. After granting only this ground for review, the court of criminal appeals
summarily remanded the appeal to this Court to address appellant’s sixth point of error. Hill v. State,
Nos. 2220-02 & 2221-02 (Tex. Crim. App. June 11, 2003) (not designated for publication). By this
point, appellant contends the district court should have suppressed his written statement to the police
because it was the tainted fruit of an unlawful arrest. We will overrule this contention and reaffirm
the judgments of conviction.
Background
William Allen’s body was found in the remains of his burned residence on the
morning of October 2, 1997. The fire was determined to be arson, and Allen’s death was ruled a
homicide following an autopsy. Investigating officers learned that appellant had lived in Allen’s
house, was seen entering and leaving the house only minutes before the fire was discovered, and left
Austin for Maryland on the day of the fire. Austin police officer Mark Gilchrest contacted appellant
later that month, and appellant agreed to be interviewed in Maryland.
Armed with a capias for appellant’s arrest issued after he was indicted for the
unrelated offense of credit card abuse, Gilchrest traveled to Maryland on October 28. The next day,
appellant voluntarily met with Gilchrest and Agent Ed Roach of the Federal Bureau of Investigation
at the offices of the Montgomery County, Maryland, police department. The interview began at 5:20
p.m., lasted until 11:00 p.m., and was videotaped in its entirety. Appellant was not under arrest
when the interview began. After about one hour, Gilchrest orally advised appellant of his rights, but
failed to tell him that any statement he made might be used against him in court. See Miranda v.
Arizona, 384 U.S. 436, 444 (1966); Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (West 1979).
After two more hours of questioning, at about 8:30 p.m., Gilchrest informed appellant that he was
under arrest for credit card abuse.1 Soon thereafter, appellant admitted for the first time that he had
1
In our previous opinion, we incorrectly stated that appellant was arrested at this time for arson
and murder.
2
been at Allen’s house on the morning of the fire. At 9:45 p.m., Gilchrest began to type a written
statement on his portable computer for appellant’s signature. This took about an hour, during which
Gilchrest and Roach continued to question appellant. The final, printed statement contained all of
the warnings required by article 38.22, section 2(a). Appellant signed the statement at 11:00 p.m.
While Gilchrest and Roach were interviewing appellant, Montgomery County
detective Robert Reed was obtaining a fugitive warrant for appellant’s arrest. At 11:04, minutes
after appellant signed the written statement, Reed told appellant that he was under arrest as a
fugitive. Appellant was then taken before a magistrate, who signed the fugitive warrant and
delivered a copy to appellant after midnight.
Appellant moved to suppress both his videotaped oral statements and the written
statement. The district court found that appellant had not been in custody during the interview until
Gilchrest told him he was arrested for credit card abuse. Therefore, the court overruled the
suppression motion with respect to appellant’s oral statements prior to the arrest, but granted it as
to the subsequent oral statements because appellant had not been fully advised of his rights. The
court refused to suppress the written statement, finding that the printed statutory warnings had been
read and understood by appellant before he signed it. In our previous opinion, we overruled
appellant’s points of error challenging the admission of his oral statements. See Hill, slip op. at 4-7,
LEXIS 8534 at *5-10. We also addressed and rejected some of appellant’s arguments challenging
the admission of the written statement. See id., slip op. at 7-10, LEXIS 8534 at *10-16. The only
unaddressed point of error, and the only issue now before us, is appellant’s contention that his
written statement was tainted by an unlawful arrest.
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Discussion
Appellant argues that his arrest for credit card abuse was unlawful for three reasons:
(1) the authority to arrest granted by the Travis County capias did not extend beyond the borders of
Texas; (2) Gilchrest did not have the jurisdictional authority to arrest him in Maryland; and (3) there
were no exigent circumstances authorizing Gilchrest to arrest him pursuant to code of criminal
procedure article 14.04. Tex. Code Crim. Proc. Ann. art. 14.04 (West 1977) (arrest of escaping
felon). The State concedes that the capias was ineffective outside Texas. See Tex. Code Crim. Proc.
Ann. art. 15.06 (West Supp. 2003). We agree with the State, however, that Gilchrest was authorized
to arrest appellant without a warrant pursuant to the Uniform Criminal Extradition Act. See id. art.
51.13 (West 1979). For this reason, it is unnecessary to decide whether article 14.04 applies in this
cause. We also conclude that even if the challenged arrest were unlawful, the taint was attenuated
when appellant signed his written statement.
Was appellant unlawfully arrested?
Under indictment in Texas for the felony of credit card abuse and having been found
in Maryland, appellant was a fugitive within the meaning of the Uniform Criminal Extradition Act.
See Ex parte Sanchez, 987 S.W.2d 951, 952-53 (Tex. App.—Austin 1999, pet. ref’d, untimely filed).
In a memorandum to the district court in support of his motion to suppress, appellant conceded that
the Texas capias was sufficient probable cause to obtain a fugitive warrant in Maryland for the
purpose of extradition. Appellant’s memorandum went on, however, to mistakenly assert that a
fugitive warrant was the only lawful basis for arresting him. To the contrary, the uniform act as
adopted in Texas provides that “a person may be lawfully [arrested] . . . by any peace officer or
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private person, without a warrant upon reasonable information that the accused stands charged in the
courts of a State with a crime punishable by death or imprisonment for a term exceeding one year.”
Tex. Code Crim. Proc. Ann. art. 51.13, § 14 (West 1979).2 Section 14 authorizes the arrest of a
fugitive without a warrant. Heard v. State, 701 S.W.2d 298, 302 (Tex. App.—Houston [14th Dist.]
1985, pet. ref’d). Moreover, the statute authorizes the arrest of a fugitive by a private person.
Because Gilchrest had reasonable information that appellant was accused of a felony in Texas, he
was authorized to arrest appellant even though he was outside his territorial jurisdiction and did not
have a warrant. See United States v. Johnson, 815 F.2d 309, 313-14 (5th Cir. 1987). Appellant’s
contention that the arrest was unlawful therefore fails.
Was the taint, if any, attenuated?
We will also consider whether appellant’s written confession was admissible even
if the arrest was improper. This requires us to consider four factors: (1) whether Miranda warnings
were given, (2) the temporal proximity of the arrest and the confession, (3) the presence of
intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. Dowthitt
v. State, 931 S.W.2d 244, 261 (Tex. Crim. App. 1996). These factors do not necessarily carry equal
weight, and it is not required that each factor be resolved in the State’s favor. Juarez v. State, 758
S.W.2d 722, 780 (Tex. Crim. App. 1988).
2
Appellant’s memorandum to the district court specifically cited article 51.13, section 14.
Appellant did not cite, offer evidence regarding, or ask the district court to take judicial notice of the
law of Maryland. Under the circumstances, we may presume that the relevant Maryland law is the
same as the law of Texas. Crane v. State, 786 S.W.2d 338, 346, n.1 (Tex. Crim. App. 1990).
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The first factor weighs in favor of the State. The written statement began with a
listing of the rights afforded by Miranda and article 38.22, and a recitation that appellant fully
understood those rights. In our earlier opinion, we rejected appellant’s contention that these written
warnings were a nullity because he had been told that they basically consisted of the same, imperfect
warnings he had previously been given orally. Hall, slip op. at 9-10, LEXIS 8534 at * 14. Although
not alone sufficient to attenuate the taint of an unlawful arrest, advising a defendant of his Miranda
rights is an important factor favoring the admission of a subsequent statement. Maixner v. State, 753
S.W.2d 151, 156 (Tex. Crim. App. 1988).
Prior to being told he was under arrest, appellant had adamantly denied being at
Allen’s house on the morning of the fire. After Gilchrest told him he was arrested, however,
appellant almost immediately changed his story and admitted being at the house. During subsequent
questioning, appellant elaborated on his activities at the crucial time and ultimately admitted that he
knocked Allen to the floor before he left the house. He continued to deny setting the fire and insisted
that Allen was conscious when he last saw him. These facts were incorporated into the written
statement appellant signed two-and-a-half hours after being told he was arrested. We conclude that
the temporal proximity of the arrest and the written statement and the absence of intervening
circumstances weigh in appellant’s favor. See Bell v. State, 724 S.W.2d 780, 788-89 (Tex. Crim.
App. 1986).
We believe that the “purpose and flagrancy” factor is determinative. This is not a
case in which a police officer deliberately arrested a suspect without probable cause for the purpose
of engaging in a fishing expedition or inducing a confession. Appellant voluntarily went to the
police station for questioning. Based on the capias, there was probable cause to arrest him as a
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fugitive at all relevant times. The only arguable basis for concluding that the arrest was unlawful
was Gilchrest’s lack of authority as a law enforcement officer in Maryland.3 Appellant appears to
concede that Agent Roach, who was present when Gilchrest announced that appellant was under
arrest, and either of the two Maryland police officers who transported him to the station could have
made the arrest. There is no evidence to suggest that the course of appellant’s questioning would
have been altered in any way if Roach, rather than Gilchrest, had informed appellant that he was
under arrest. Even if Gilchrest personally lacked authority to arrest appellant, the arrest was not
under the circumstances an act of purposeful or flagrant misconduct so serious as to taint what was
otherwise shown to be a voluntary written statement given in full compliance with article 38.22. See
Self v. State, 709 S.W.2d 662, 667-68 (Tex. Crim. App. 1986).
We overrule point of error six. Having previously overruled appellant’s other points
of error, we again affirm the judgments of conviction.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Kidd and Puryear
Affirmed
Filed: November 6, 2003
Do Not Publish
3
In his supplemental reply brief filed in this Court on October 28, 2003, appellant seeks for the
first time to rely on the law of Maryland. In Maryland, a law enforcement officer may arrest a
fugitive without a warrant on the same basis as in Texas. Md. Code Ann., Crim. Proc. § 9-114(a)
(2002). Section 9-114 is substantively identical to its statutory predecessor in effect at the time
appellant was arrested. See former Md. Ann. Code, art. 41, § 2-214 (1957).
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