### 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

M E M O R A N D U M O P I N I O N

This Court previously affirmed appellant William Ethridge Hill’s convictions for

arson and murder. H ill 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 publicat ion). 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. H ill 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 police1 In our previous opinion, we incorrectly stated that appellant was arrested at this time for arson

and murder.

2 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 re sidence 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 issue d 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 1 1:00 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. S ee 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 had3

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

detec tive Robert Reed was obtaining a fugitive warrant for appellant’s arrest. At 11:04, minutes

after appe llant 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 mov e d 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 cr edit 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 t he 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 underst ood by appellant before he signed it. In our previous opinion, we overruled

appellant’s points of error challenging the admission of his oral statements. S ee 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.4 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 auth orizing 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. S ee 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. S ee 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 or2 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).

5 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. H eard 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. S ee 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 M iranda warnings

were given, (2) the temporal proximity of the arrest and the confe ssion, (3) the presence of

intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. D owthitt

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. J uarez v. State , 758

S.W.2d 722, 780 (Tex. Crim. App. 1988).6 The first factor wei ghs 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. H all

, 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. M aixner 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

Alle n’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

circum stances weigh in appellant’s favor. S ee Bell v. State

, 724 S.W.2d 780, 788-89 (Tex. Crim.

App. 1986).

We believe that th e “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 a3 In his supplemental reply brief filed in this Court on October 28, 2003, appellant seeks for the

first tim e 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).

7 fugitive at al l 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 t he arrest. There is no evidence to suggest that the course of appellant’s questioning would

ha ve 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. S ee

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