### In The C ou rt o f A p p ea ls Si x t h Appe l l at e Di st r i c t o f Te x as a t Te x ar ka na

______________________________ No . 0 6- 09 -0 00 76 -C R

______________________________ RONAL D SHI PP, Appellant

V. THE STATE OF TEXAS, Appellee
On Appea l from the 294th J udicial District Court

Van Z andt County , Texas Trial Court No. 14911

B e f o r e M o r r i s s , C
. J. , C a

rt e r an d M o s e l e y , JJ. Me mor and

um O pin ion

by Chi e f Jus tic e Mo rr issThe Te x as Court of Crim inal Appea ls gr anted a n out-of-time a

ppeal in this case from the 1 1994 judgme nt such that we may addre ss the merits of this appeal. See Ex parte Shipp , No. AP-76,061, 2008 WL 5245337 (Tex. Crim. App. Dec. 17, 2008) (not desig nated f or publication). This case was tra

nsfer red to this Court from the Twelfth District Court of Appeals in Ty ler 2 as par t of the Texas Supreme Court’s docke t equalization prog ram. See T EX . G OV ' T C ODE ANN . § 73.001 (Ve rnon 2005). We are not a war e of any conflict betwee n the prec edent of the Tyler court a nd the pre cede nt of this Court on any issue rele vant in this appeal. See T EX . R. A PP . P. 41.3. Shipp was convicted of the offense of murder and receive d life imprisonment in the Texas 3 Depa rtment of Criminal J ustice—Institut ional Division. 2 MEMORANDUM OPI

NI ON I n the fa ll o f

1 9 9 3 , We n dy

L an dr e th w a s dr iv in g h e r

d a u g h te r , Sh e il a

Pr a te r , an d

s ister, 1 Cha rl ott e Cle m, a lon g a Va

n Z andt County ro a d, wh e n Ron a ld Shi pp ov e rt oo k L and re th’ s v e hic le 2 with his truck, shot out the rear g lass of her vehicle, c aused a cra sh betwee n the two vehicle s, shot and killed L andre th, shot C l em i n t h e arm, and kidnapped a nd rape d Prater, his for

mer g irlfriend. Arre sted hours later

without the benef

it of an arrest warra

nt, Shipp ultimately pled guilty to having
mur de re d L a nd

re th. Hi s p le a

wa s e nte re d und e r a

ple a a g re e me nt b y

wh ic h h e re ta ine d th e ri g ht t o 3
c o n te s t t h e d e n ia l o f

h is mo ti o nto s u

p p r e s s h is c o n f

e s s io n , th e f

r u it o f h is w ar r an tl e s s ar

r e s t. We aff irm the t rial cour

t’s judgme nt beca

use we find that the trial cour t’s ruling—that Shipp’s arre st was based on pr obable c ause—is amply supported by

this recor d. Be fore setting out our a

naly sis of the sole issue on appe al, we pr ovide a b i t m ore of the
un de rl y ingfa c ts.3

Clem was aslee p in the car when he r sister ale rted he r that a truc k was a pproac hing w ithout lights on. Whil e the truck wa s passing them, Clem and Prater hear d a g unshot followed by shattering of the re ar w indow. They rec og nized the driver of the truck a s Shipp, P rate r’s e x -boy friend of four to five y ear s. The truc k maneuve red in front of L andre th’s vehicle, suddenly stopped, and c aused L andre th’s vehicle to hit Shipp’s truck. Shipp g ot out of the truck, ra n to L andre th, and pointed a g un a t he r. Cle m he ard

Pr a te r s c reamin g a s Sh ipp ne xt g ra bb e d Pr a te r a

nd he ld h e r at g un

po int
. After Shipp ins tructed Prater to g et into his truck, he shot L andre th in the chest at close ra ng e and also shot Clem in t he ar

m. After Shipp drove awa y , Clem realized L andreth was dea d. Clem ran to a nea rby home and c alled 9-1- 1. Clem was transpor ted to the hospital. At approximately

4:00 a.m., police off

icer s found L andre th’s body beside her aba ndoned ca r. Captain Rock Ellis arrived a t the s cene , was given Shi pp’s name as t he suspect by Clem, and wa s informed of

Prater’ s kidnapping . An all-points bulletin, is sued ar ound 4:30 a.m., descr ibed Shipp’s bla c k F or d Ra

ng e r p ic ku

p tr uc k a nd wa rn e d th a t Sh ipp wa s a

rm e d a nd da ng e ro us . Ac c or din g to P rate r, a ft e r S hip p r a pe d h e r, he stop ped at

a g a s st a tio n to g e t so me thi ngto drink. Whil e he w as inside, Prater esca ped in the truc k and ende d up at t h e Athens Pol ice Depa rtment. Ellis traveled to Athens to intervie w Prater at appr ox imately 5:30 or 6:00 a.m. Prater descr ibed the kidnappingand also re ported be ing r aped by Shipp. After rec eiving inf

o r ma ti o n from people who had spotted Shipp running on foot, Ellis “called in the dog s f

r o m t h e T e xa s p r is o ns y s te m. We w e r e tr y in g to s e t u

p s e v e r a l d if

f e r e n t m an h u n ts .”Miranda v. Arizona , 384 U.S. 436 (1966). 4 I t appea red that Shipp also had warr ants outstanding f rom other c ounties at the t i m e of 5 arr aig nment. 4 E l l i s s t at edh e w as “a n s we ri n g qu e s t i o n s o r go i n g t o d i ff er en tl o ca t i o n s wh er e p o t en t i al s i gh t i n gs
wer e.” A t last, Ellis was told “ther e wa s a per son at t h e T er re l l S tate Hospital wa nt[ ing] to turn himself in report[ing] to be Ronald Gly n S h i p p . ” S hipp was appr ehende d by the Ter rell Police De pa rtme nt ar ound 11 :15 a .m. El lis tr ans po rt e d Ship p b a c k to Va n Z andt Co un ty

and pr e se nte d h im to M a g istrate B re nd a

Sanf or d, wh o a dv ise d Sh ipp of his Miranda rig hts and issued a w arr ant for

4 his arre st. Shipp waived his rig hts in writing and c onfesse d to the murder.

5 Counsel moved to suppress Shipp’s confe ssion on the gr ound that it was the fruit of an illega l
arr est w it h o u t w ar r an t. Wh e n a s k e d a t th e h e ar in g w h y E ll is d id n o t o b ta in a w ar r an t b e f o re the
arr est, he stated Shipp wa s a flig ht r isk a nd “[w]e were trying to a pprehe nd him. I just didn't have tim e to c ome ou t of the fi e ld and g o in and sit do wn and wr ite .” He te sti fi e d, “ Iha d e ve ry man in the field I could get try ing to locate the suspect .
. . there was a manhunt g oing on. I didn't have time. Iwas fe arf

ul of any body coming in contact with him.” I n denying the motion to s uppress, the tria l court found that pr o bable c ause e x isted for Shi pp ’s de te nti on , th a t he wa s a de qu a te ly a dv ise d o f h is r ig hts , th a t he vo lun tari ly and int e lli g e ntl y waived the m, and that the conf ession was a lso voluntary
. Trial courts’ decisions t o deny motions t o suppress ar e re viewed f or abuse of discre tion. Oles
v . S tat e , 993 S.W .2d 103, 106 (T ex . C ri m . Ap p. 1999); Vi lla rre al v . S tat e , 935 S.W .2d 134, 1385

(T e x. Cr im. Ap p. 19 96 ); Ma y so ne t v . S tat e , 91 S.W. 3d 36 5, 36 9 (T e x. Ap p. —T e xar ka na 20 02 , p e t.
re f’ d) . Because th e tr ial c ourt is the e xclu siv e tr ie r o f f a c t and jud g e of wi tne ss c re dib ili ty

a t a suppression hear ing, we aff ord almost total de fer ence to its determination of fac ts supported by the
rec ord. Sta te v . R os s , 32 S.W. 3d 85 3, 85 6 (T e x. Cr im. Ap p. 20 00 ); Car mo uc he v . S

tat e , 10 S.W .3d 323, 327 (Tex. Crim. App. 2000); Gu zm an v . S tat e , 9 5 5 S. W. 2 d 8 5 , 8 9 ( T e x. Cr im
. A p p . 1 9 9 7 )
. We also aff ord such de fer ence to a trial cour t’s ruling on application of law to fac t questions, also known as mix ed questions of lawand fa ct, if the re solution of those questions turn s on an eva luation of
cre dibilit y

and deme anor. Miller v. Fe nton , 474 U.S. 104 (1985). On the othe r hand, the trial court’ s
a pp lic a tio n o f t

he law o f s e arc h a

nd se izur e to the fa c ts and tho se qu e sti on s no t tur nin g on c re dib ili ty and deme anor a

re r eviewe d de novo. Ro ss , 32 S.W .3d at 856; He rn an de z v . S tat e , 957 S.W .2d 851, 852 (Tex. Crim. App. 1998); Maysone t , 91 S.W .3d at 369. Since all evidenc e is viewe d in the light most favor able to the tria l court’ s ru l i n g, we are obligated to uphold it if that ruling was supported by the re cord a nd was c orre ct under

any theory of law applica

ble to the ca se. Ro ss , 32 S.W .3d at 856; Carmouche , 10 S.W .3d at 327; Sta te v . B all ar d , 98 7 S. W.2 d 8 89 , 8 91 (T e x. Cr im. Ap p. 19 99 ); Maysone t , 91 S.W .3d at 369. At the outset, we presume that police conduct wa s proper . Ga ine s v . S tat e , 888 S.W .2d 504, 508 (Tex. App.—El Paso 1994, no pet.). I n order to defe at the pre sumption of the office r’s prope r conduct, Shipp was re quired to first produc e evide nce to establish that a sea rch or seizure occ urre d without a war

rant. Id. (c i t i n g Simmons v. United States , 390 U.S. 377, 389–90 (1968)). In this case,Th e re is n o in dic a tio n Sh ipp wa s f re e to l e a ve the po lic e de pa rtme nt. 6 6 Shipp met thi s burden by

establishing that he was a rre sted without a war

rant. Id. Thus, the burde n shifted to the Stat e t o p ro v e, by a pre pondera

nce of the evidenc e, the r easona bleness of Shipp’s
arr est. Id. Shi pp wa s f

ir st a rr e ste d b y Te rr e ll p oli c e ba se d on the a ll- po int s b ull e tin
. A p oli c e br oa dc a st 6 may be suff icient to provide an off

icer with probable c ause to stop per sons matching the desc ription fo r i nv e sti g a tor

y purp os e s if

ba se d o n r e lia

ble inf or ma tio n fur

nis he d by a wi tne ss to a cr imi na l a c t. Id. a t 50 9. Th e tes t as to proba ble c a us e in s uc h c a se s is wh e the r t he re qu e sti ngof

fi c e r w a s in possession of sufficie nt knowledg e to constitute probabl e ca use. Id. ; W

e e k s v . S tat e , 417 S.W .2d 716, 718 (Tex. Crim. App. 1967). On a pp e a l, S hip p c ite s A rt ic le 14 .0 4 o f the Te xas Cod e of Cr imi na l Pr oc e dure fo r t he ru le that a pea ce of

fice r can pursue a

nd arr est a pe rson without a war rant if he or she “ is shown satisfac tory

proof, upon the r epre sentation of a cre dible person, that a felony has bee n committed and the offe nder is about to esc ape.” See T EX . C ODE C R IM . P R OC . ANN . art. 14.04 (Ve rnon 2005). Shipp focuse s on the time elapsing betwee n when L andre th’s body was fo u n d an d when Shipp was
arr e ste d. Hi s ma in c on te nti on is th at of fi c e rs ha d p le nty

of op po rt un ity to o bta in a

wa rr a nt,
e sp e c ia lly sin c e Shi pp wa s d e ta ine d at th e Te rr e ll Po lic e De pa rtme nt. Thus , Sh ipp c on te nd s th e State cannot mee t its burden to demonstrate he was “ about to esca pe.”7

The State re sponds to Shi pp’s argument using Article 14.04 of the Te x as Code of Criminal Pr oc e dure . T he tr ial cou rt , beli e vin g El lis ’ t e sti mony , c ou ld h a ve de te rm ine d Sh ipp “ wa s h ig hly mobile and could h av e ea s i l y esca ped dete ction had police not inter vened” at the hospital. See Hug he s v . S tat e , 2 4 S
. W
. 3 d

8 3 3 , 8 3 9 ( T e x. C r i m . A p p . 2 0 0 2 )
. “ I tw o u l d h a v e b e e nu n r e a s o n a

b le to brea k pursuit, abandon the fre sh trail of a r ece ntly committed crime, a

nd forc e police to a cquire
an ar rest wa rra nt” in hopes that Shipp would remain at the hospital unde tained. Id
. I t ha s lo ngbe e n th e rul e in thi s State that a wa rr antl e ss a

rr e st c an b e jus tif

ie d b y pr ob a ble
cause to believe that the suspect has committed, or i s committing, an of fense
. Am or es v . S

tat e , 816 S.W. 2d 40 7, 41 6 (T e x. Cr im . Ap p. 19 91 ); Rh oa de s v . S tat e , 8 4 S. W. 3 d

1 0 , 1 4 ( T e x. App.—Texarkana

2002, no pet.). Ar

ticle 14.01(b) of

the Tex as Code of Criminal Procedur e provides that “a

peac e off icer may arr est an off

ender without a war rant for any offe nse committed in his presenc e or w ithin his view.” T EX . C ODE C R IM . P R OC . ANN . art. 14.01(b) (Ve rnon 2005). The Texas Court of Criminal Appe als has been clea r in its interpr etation of this rule a nd has stated that the test for pr o b ab l e ca u s e for a wa rra ntless arre st under Ar

ticle 14.01(b) is “ [w] hether at that
mom e nt t he fa c ts a nd c ir c ums tanc e s wi thi n the of fi c e r’ s k no wl e dg e and

of wh ic h h e ha d r e a so na

bly trustworthy

information suffic ient to w arr ant a prudent man in be lieving that the ar rested pe rson had committed or was c ommitt ing a n offe nse.” Be v e rly

v . S tat e , 7 92 S.W. 2d

10 3, 10 4– 05 (T e x. Cr im. Ap p . 1 9 9 0 ) ( ci t i n g Be c k

v . O hio , 3 79 U. S. 8 9 ( 19 64 )) ; Rhoades , 84 S.W .3d at 14.8

I t is clear that an offic er c an make a wa rra ntless arre st for an of

fense that was c ommitt ed at
an ea rlier time, eve n wher e the of fice r did not persona lly

see the offe ns e b ei n g committed. Akins
v . S tat e , 2 0 2 S
. W
. 3 d

8 7 9 , 8 8 9 (T ex . Ap p . — Fo rt W o rt h 2 0 0 6 , p et
. re f’ d ) ( ci t i n g Be v e rly , 792 S.W .2d at 104–05). An office r may rely on lay persons, witnesse s, or cr edible informa nts in making the
overa ll probable c ause a ssessment. See Lun de v . S tat e , 736 S.W .2d 665, 667 (Tex
. Crim. App. 1987); Akins , 2 02 S.W. 3d a t 89 7. Thus , the bo tto m li ne is that, i f a n o ff ic e r h a s r e a so na

bly trustworthy information which, when coupled with the office r’s persona l obse rvations, establishes pr ob a ble c a us e to b e lie ve that an of

fe ns e is be ing or ha s b e e n c omm itt e d, the wa rr ant e xce pti on

wi ll apply
. Se e Be v e rly , 792 S.W .2d at 104–05. Wh et h er p ro b able c ause e x ists is deter mined by consideringthe totality

of the c ircumstance s. Amores , 816 S.W .2d at 413. He re , E lli s h a d a

fe w pe rso nal ob se rv a tio ns and a c on sid e ra

ble a mou nt o f r e a so na

bly trustworthy

information, which tog ether provided him probable cause for his ar rest of Shipp. After rec eiving the initial re port of the shooting, Ellis drove to the crime sc ene a nd observe d L andre th’s damag ed and disa bled vehicle as we ll a s L andre th’s dead body , which ac cordingto other
re po rt s in the re c or d w a s c le arl y

sh ow ingthe signs of a sh ot g un bla st t o th e c he st. I t w a s c le a r t o Ell i s t h at t h ere had bee n a shooting , based on the wound to L andre th and the shotg un shells ly ing
near by . Ellis was told that S hipp was the shooter and that Shipp wa s in a black For d Rang er pic kup truck with a w hite fema le kidnap victim. About 4:30 a.m, Ellis put out an all-points bulletin for Shipp indic a ti n g th a t h e w a s ar me d an d d an g e r o u s . So o nth e r e a f te r , E ll is r e c e iv e d

a r e p o rt t h atWhil e we find no indication that Ellis knew the following information at the time he a rre sted 7 Shipp, Clem also g ave a statement putting the murder wea pon in Shipp’s hand. Since Prater dr ove Shipp’s truck to the Athens Police Depa rtment afte r her esca

pe and told them of the c ircumstance s and of Shipp’s ac t ions, office rs there had re trieved f rom Shipp’s truck the “shor t barre l shotgun believed to be the wea

pon used in the shooting.” Al so , A rt ic le 14 .0 3( a )( 1) of the Te xas Cod e of Cr imi na l Pr oc e dure a uth or ize s a

wa rr a ntl e ss 8 ar re s t of persons f

ound in suspicious places and unde r circ umstances whic h rea sonably show that such per sons have be en g uilty of some fe lony
. T h i s ar t i cle r equire s “the func tional equivalent of probable cause to believe that a particula r per son has committed a felony .” J oh ns on v . S

tat e , 722 S.W .2d 417, 421 (Tex. Crim. App. 1986), overruled in part on ot her grounds by Mc Ke nn a v . S

tat e , 78 0 S.W.2 d 7 97 (T e x. Cr im. Ap p. 19 89 ); see T EX . C ODE C R IM . P R OC . ANN . art. 1 4
. 03 (Ve rnon Supp. 2009). Ag ain, Shipp was found at “Terre ll State Hospital [and] wanted to turn himself in.” Hospitals have been f

ound to be suspicious place s by Texas courts. Dy ar

v . S tat e , 125 S.W .3d 460, 46 8 ( Te x. Cr im. Ap p. 20 03 ). The fa c t th a t Sh ipp wa s f ound in a ho sp ita l, c ou

ple d w ithhis re po rt e dly

wa nti ngto t ur n h ims e lf in, and the re ma ini ngc ir c ums tanc e s, c ou ld a lso have g ive n E lli s 9 Shipp’s kidnap victim, P rate r, wa s located at the Athens Police D epar tment, to which Ellis went and interviewe d her. Prater told Ellis that she had be en kidnappe d and ra ped by Shipp. P rate r also g ave Ellis a st atement in which she stated t hat S hipp had shot L andre th. Sti ll later, Ellis rece ived a r eport that Shipp was at Ter

rell State Hospital wantingto turn himself in or chec k himself in. Ellis asked Terr ell pol i ce t o h o l d S hipp until El lis could ge t there. Ellis went to Ter rell, ar rested Shipp, and transporte d him back to Athens, where—a fewhours later —Shipp was taken be fore Sanford, who
re a d h im h is r ig hts be fo re a state me nt w a s ta

ke n f ro m hi m. We c on c lud e that a

rea so na ble of fi c e r i n E lli s’ po sit ion wo uld have pr ob a

ble c a us e to 7 deter mine Shipp had committed an offe nse, such that a war rant was not r equire d for his ar rest. See Be v e rly , 7 9 2 S
. W.2d at 104–05. Thus, based on the totality of the c ircumstance s in this case, the tr ia l c ourt wa s ju sti fi e d in

fi nd ingthat th e arr e st w a s le g a l. 8probable cause that Shipp was g uilty of a f elony such that the wa

rr an t ex ce p t ion applied to the Terr ell Police Depa

rtment’s ar

rest. 10 B e c a us e the arr e st w a s le g a l, S hip p’ s v olu nta ry c on fe ssi on

wa s v a lid ly a dmi tte d a s the fr uit of a le g a l arr e st. Ac c or din g ly , w e fi nd that th e tr ial cou rt di d not a bu se its dis c re tio n in

fa ili ngto suppress the c onfession. We a ff ir m th e jud g me nt o f t

he tr ia l c ourt
.

J o s h R
. M o r r i s s , III Chief J ustice Date Submitted: Dec ember 3, 2009 Date D ecide d: Dec ember 15, 2009 Do No t Pu

bli sh