Cornealius v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was charged in a multi-count indictment with the murder and aggravated robbery of Manuel Carrillo, the murder and aggravated robbery of Francisca Rincón-Garza, the murder and aggravated robbery of Abraham Moisés Ramos Vargas, and the attempted capital murder of Julio Gallegos. Pursuant to a plea agreement, appellant waived his right to a jury and entered a plea of guilty to aggravated robbery as alleged in count two, aggravated robbery as alleged in count four, murder as alleged in count five, and attempted capital murder as alleged in count seven. The trial court found appellant guilty and in each case sentenced him to 45 years confinement in the Institutional Division of the Texas Department of Criminal Justice. The conviction was affirmed on appeal. Cornealius v. State, 870 S.W.2d 169 (Tex.App.—Houston [14th] 1994). We granted appellant’s petition for discretionary review to determine whether the Court of Appeals erred in determining that there was no connection between appellant’s illegal arrest and appellant’s subsequent statement. We will affirm.

On August 27,1991, during the commission of an aggravated robbery in a house located at 115 Boyles in Houston, Texas, three persons were murdered and another seriously wounded. During the subsequent investigation, the police learned that three males had participated in the robbery and murders. On November 6, 1991, Officer Allan Brown arrested Kenneth Brown and obtained a statement from him regarding his involvement in the crimes. Kenneth Brown identified one of the individuals who had participated in the crimes as “Tootie”, but refused to identify the other individual because it was his cousin. The police later learned that “Tootie” was Deandrea Allen.

The next day Deandrea Allen was arrested by Officer Brown. Deandrea Allen then gave a statement that his two cohorts in crime were “Peaches”, who was later determined to be Kenneth Brown, and Kenneth’s cousin, the appellant. Based upon this information, Officer Brown proceeded to appellant’s grandmother’s house at approximately 7:30 p.m. where he observed two men standing on the front porch. The police officers approached the front porch and asked the two men if either of them happened to be Clifton Cornealius. Appellant answered that he was and was then placed under arrest. Appellant’s subsequent confession was the subject of a motion to suppress which was denied by the trial court.

The Court of Appeals found that the police possessed probable cause to believe that appellant had participated in the murders and that the police did not need an arrest warrant to take appellant into custody pursuant to V.T.C.A Family Code, Section 52.01(a)(1)-(4) since he was a juvenile. Cornealius, 870 S.W.2d at 171. The Court of Appeals held that appellant’s arrest was unlawful under the Fourth Amendment in that he was arrested without a warrant on his grandmother’s front porch. Id. at 173. However, the Court of Appeals went on to hold that the taint of the unlawful arrest was sufficiently attenuated to permit the introduction of appellant’s confession. Id. at 174.

Appellant claims that the Court of Appeal’s opinion ignores this Court’s decisions in Comer v. State, 776 S.W.2d 191 (Tex.Cr.App.1989) and Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986). However, under both Bell and Comer there can be no connection between the “illegal arrest” and appellant’s subsequent statement if the arrest was not illegal. See Comer, 776 S.W.2d at 193; Bell, 724 S.W.2d at 787.

In order to address the question of whether the Court of Appeals erred in determining that there was no connection between appellant’s illegal arrest and appellant’s subsequent statement, we must consider the threshold question of whether appellant was illegally seized under the Fourth Amendment and Article I, Section 9 of the Texas Constitution.

We agree with the Court of Appeals that the police possessed probable cause to believe that appellant had participated in the murders and that the police did not need an arrest warrant to take appellant into custody since he was a juvenile. Cornealius, 870 S.W.2d at 171. However, we hold that the Court of Appeals was erroneous in its finding that appellant’s arrest was unlawful under the Fourth Amendment in that he was arrested without a warrant on his grandmother’s front porch. Id. at 173.

Nothing in our Constitutions prevent a police officer from addressing questions to citizens on the street; it follows that nothing would prevent him from knocking politely on any closed door. Rodriguez v. State, 653 S.W.2d 305, 307 (Tex.Cr.App.1983). This Court has held that anyone, be it law enforcement officer or common citizen, has the right to approach an appellant’s front door. Bower v. State, 769 S.W.2d 887, 897 (Tex.Cr.App.), cert. denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). In Bower, we further said:

“Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably ... to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof-whether the questioner be a pollster, a salesman, or an officer of the law.”

Id. (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964).)

The United States Court of Appeals for the Ninth Circuit has recently addressed the issue of whether an arrest at the open threshold of a dwelling requires a warrant if the arrestee has voluntarily exposed himself to the arresting officer. U.S. v. Vaneaton, 49 F.3d 1423 (9th Cir.1995). In that case police officers went to a motel without a warrant in order to ascertain if the defendant was there, and if he was, to arrest him. The officers found that the defendant was registered at the motel, went to his room, and knocked on the door. The defendant looked out a window, saw the uniformed officers, and then opened the door. The police asked him if he was Jack Vaneaton and the defendant responded that he was. He was then placed under arrest. A majority of the Court held that the arrest did not violate the Fourth Amendment in that the defendant voluntarily exposed himself to warrantless arrest by freely opening the door to the police. Id.

In the case before us the officers approached appellant’s grandmother’s house and observed two males out on the front porch. The officers simply asked if either one of them was Clifton Comealius, and appellant voluntarily responded. At this point appellant was legally arrested under Section 52 of the Family Code. Appellant’s arrest under this fact situation violated neither the United States nor the Texas Constitutions.

Although the Court of Appeals erred in finding appellant’s arrest to be illegal, they did not err in finding that the trial court properly denied appellant’s motion to suppress his written confession. Accordingly, the judgment of the Court of Appeals is affirmed.

OVERSTREET, J., concurs in the result.

. The dissent would have us ignore the question of the legality of appellant’s arrest because “the conclusion is not challenged.” The dissent also writes that "|T]o reach an issue that has not been raised, briefed or argued is patently unfair.” This assertion is not true.

The State uses over a page out of three and one-half pages of the arguments and authorities section of its brief to argue that the arrest was not illegal. The appellant argues that the Court of Appeals “agreed with appellant’s contention that appellant's arrest was in violation of the United States and Texas Constitutions.” However, another of the appellant’s main arguments is that there was police misconduct and that it was "flagrant," citing Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986) and Comer v. State, 776 S.W.2d 191 (Tex.Cr.App.1989). Both sides challenged the holding of the Court of Appeals regarding the legality of the arrest, as well as the presence and flagrancy of any police misconduct. The issue was raised, briefed, and argued by both sides.