IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1215-19

JESSE ADRIAN MARTINEZ, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW

FROM THE EIGHTH COURT OF APPEALS

EL PASO COUNTY

KEEL, J., delivered the opinion of the Court in which HERVEY, 

RICHARDSON, NEWELL, WALKER, SLAUGHTER, and MCCLURE, JJ., joined. YEARY, 

J., concurred. KELLER, P.J., dissented.

O P I N I O N

After the trial court denied his motion to suppress his confession, Appellant pled 

guilty to murder and was sentenced to 30 years in prison. On appeal he challenged the 

suppression ruling, claiming that his confession was the product of his illegal arrest. The 

court of appeals held that the taint was sufficiently attenuated under Brown v. Illinois, 

422 U.S. 590 (1975), and affirmed the trial court. Martinez v. State, 589 S.W.3d 869 
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(Tex. App.C El Paso 2019).

We granted review to determine whether the court of appeals misapplied the fourfactor test from Brown and whether the court of appeals= finding of probable cause was 

based on opinions rather than facts in conflict with Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005). We conclude that the court of appeals misapplied the third and 

fourth Brown factors and erred in looking to Appellant=s statement to establish probable 

cause for his arrest. We reverse the judgment of the court of appeals and remand the case 

to the trial court. 

I. Background

Appellant was 19 years old, had no prior arrests, and had never before been 

questioned by the police. On April 16, 2016, police officers arrived at his mother=s house 

after midnight without a warrant for the purpose of questioning him about the 

disappearance of his friend, Tristan Mina. They took him to the police station in an 

unmarked car. His mother followed in her own car and waited in the family area when 

they took him to an interrogation room. She told him that she would get him an attorney. 

Appellant waited in the interrogation room alone for several minutes before two 

detectives, Michael Lara and Rex Parsons, joined him there. Detective Lara read 

Appellant his Miranda rights. Appellant invoked his right to counsel, and the interview 

was terminated. The detectives told Appellant that he was under arrest for murder and 

locked him in a holding cell where he was handcuffed to a bench. Less than fifteen 

minutes later Appellant Aflagged down@ Lara and said he would give a statement. 
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Appellant was returned to the interrogation room and was again read his Miranda rights. 

He said he understood the rights and wished to continue. He then gave an hour-long 

videotaped statement recounting the events of the night that Mina was killed. 

Appellant said that he and his drinking buddies, Jose “Joe” Andrade and Samuel 

Rico, went to Mina’s house to buy cocaine. Mina summoned a supplier and made the 

transaction. Mina and the others used the cocaine and then wanted more, and Mina again 

summoned the dealer. While Mina was in the supplier’s car the second time, Appellant, 

Andrade, and Rico conspired to rob him. 

When Mina returned to Rico’s car, they drove down the street to a church. While 

Mina and Andrade were outside the car smoking, Appellant expressed reluctance about 

their plan but heard a thud, got out of the car, and saw Mina on the ground, badly injured. 

Appellant got back in the car and heard Andrade and Rico put Mina into the trunk. They 

stopped at Abner Robles’s house where Appellant changed his shirt and shoes, and then 

Andrade and Rico took Appellant home. 

A day or two later, Appellant, Robles, and Rico washed Rico’s car. Sometime 

after that Appellant went with Robles and Andrade to “the wall” where Andrade burned 

some things that looked like clothes. Appellant did not know what became of Mina but 

had the impression that Andrade and Rico disposed of him in the desert. 

II. Suppression Hearing

Lara, Parsons, and Appellant testified in the two-day suppression hearing. 

Lara testified that he believed he had probable cause to arrest Appellant based on 
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Rico’s statement. Lara did not detail Rico=s statement but said that it implicated 

Appellant Ain almost the same fashion@ as Appellant’s post-arrest statement did. Lara 

said that when he arrested Appellant the investigation into Mina=s disappearance was 

ongoing and that he could have obtained a warrant to arrest Appellant but had not yet

done so. Lara testified that Appellant was surprised when he was charged with murder. 

Parsons testified that he believed that they had probable cause to arrest Appellant 

because of what witnesses and a co-defendant had told them. He did not specify what the 

witnesses or co-defendant had said. 

Appellant testified that he was terrified when he was arrested and did not know 

what was going on. He flagged down Lara to “get the situation handled” because he was 

scared that he was being charged with murder when he did not kill anyone. He 

understood his rights and wanted a lawyer; and he thought his lawyer was coming when 

he gave the statement because he asked Lara and Parsons to talk to his mom about getting 

his lawyer when he invoked his right to counsel in the first interview.

The trial court concluded that Appellant=s statement was voluntary and denied the 

motion to suppress. 

III. Court of Appeals

On appeal the State conceded that Appellant was arrested without a warrant and 

without authorization under Chapter 14 of the Code of Criminal Procedure. The court of 

appeals analyzed the four factors from Brown v. Illinois to decide whether Appellant’s 

confession was sufficiently attenuated from his illegal arrest: 1) the giving of Miranda
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warnings, 2) the temporal proximity of the arrest and the confession, 3) the presence of 

intervening circumstances, and 4) the flagrancy of the official misconduct. Martinez, 589 

S.W.3d. at 883 (citing Brown, 422 U.S. at 603-04). 

The first factor weighed in the State=s favor because Miranda warnings were given 

at the beginning of Appellant=s videotaped interviews. Martinez, 589 S.W.3d. at 884. 

The second factor weighed in Appellant=s favor because a short time elapsed 

between the illegal arrest and the confession. Id.

The third factor weighed heavily in the State=s favor because AMartinez=s reinitiation of communication with Detective Lara was an intervening circumstance borne 

of his own free will.@ Id. at 885 (citing Crutsinger v. State, 206 S.W.3d 607 (Tex. Crim. 

App. 2006) and Bell v. State, 724 S.W.2d 780 (Tex. Crim. App. 1986)). 

As for the fourth factor, the flagrancy of official misconduct, the court of appeals 

examined it under a “lesser level of scrutiny” on grounds that the warrantless arrest only 

violated Texas statutory law but not constitutional law. Martinez, 589 S.W.3d at 888; 

TEX. CODE CRIM. PROC. Arts. 14.01-14.04. The court of appeals found probable cause

for the arrest in Lara=s testimony that Rico=s statement corroborated the one eventually 

obtained from Appellant. Because Rico=s statement Amirrored the one eventually made 

by Martinez,@ the court of appeals looked to the contents of Appellant=s statement to 

determine what facts the detectives possessed when they arrested him. Martinez, 589 

S.W.3d at 886. Based on the absence of flagrant misconduct and the statutory-only 

violation of Appellant=s rights, the court of appeals weighed the fourth Brown factor in 
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favor of the State. Martinez, 589 S.W.3d at 889. 

The court of appeals held that the State met its burden of proving that the evidence 

obtained from Appellant=s statement was sufficiently attenuated from the unlawful arrest. 

Id.

IV. Standard of Review

Under the standard of review for Fourth Amendment claims we give almost total 

deference to the trial court’s express or implied determination of historical facts that are 

supported by the record and review de novo the court’s application of the law to those 

facts. State v. Ford, 537 S.W.3d 19, 23 (Tex. Crim. App. 2017); State v. Ross, 32 S.W.3d 

853, 856 (Tex. Crim. App. 2000). The trial court is the sole trier of fact and judge of the 

credibility and demeanor of the witnesses. Ross, 32 S.W.3d at 856. Whether the facts, as 

determined by the trial court, add up to probable cause is a question we review de novo. 

Ford, 537 S.W.3d at 23.

The burden is on the State to establish the reasonableness of a warrantless arrest. 

Torres, 182 S.W.3d at 902. Probable cause must be based on facts and circumstances 

within the officer=s personal knowledge or conveyed to the officer by reasonably 

trustworthy sources. Id. It may not be based on opinions. Id. Courts consider the 

totality of the circumstances to determine whether probable cause exists to justify a 

warrantless arrest. Id. Probable cause to arrest is not shown if officers do not articulate 

facts supporting their opinions. Id. at 903. Nor is probable cause supported by hindsight. 

AIn reviewing a warrantless arrest to determine the existence of probable cause, we look 
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to the facts known to the officers at the time of the arrest; subsequently discovered facts 

or later-acquired knowledge, like the fruits of a search, cannot retrospectively serve to 

bolster probable cause at the time of the arrest.@ Amores v. State, 816 S.W.2d 407, 415 

(Tex. Crim. App. 1991).

V. Brown v. Illinois

A confession may be voluntary for Fifth Amendment purposes in that Miranda

warnings were given and understood, but that is not sufficient to purge the taint of an 

illegal arrest. Taylor v. Alabama, 457 U.S. 687, 690 (1982). Brown Acarefully 

differentiated between the Miranda warnings, which are a procedural safeguard 

employed to protect Fifth Amendment rights against the compulsion inherent in custodial 

surroundings, and the exclusionary rule as utilized to effectuate the interests of the Fourth 

Amendment.@ Bell, 724 S.W.2d at 788 (citing Brown, 422 U.S. at 602). 

Even when a statement is found to be voluntary under the Fifth Amendment, its 

admissibility under the Fourth Amendment must still be considered. Brown, 422 U.S. at 

601-02. Miranda warnings alone cannot break the causal connection between the illegal 

arrest and the confession and cannot always assure that the illegal arrest in violation of 

the Fourth Amendment has not been exploited. Id. at 603. The Brown factors ensure that 

the AState cannot cure Fourth Amendment violations simply by administering the Fifth 

Amendment warnings required by Miranda.@ Bell, 724 S.W.2d at 787. Voluntariness is 

a threshold requirement, and Miranda warnings are an important factor in assessing the 

causal connection between an illegal arrest and a confession, but courts must also 
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consider the temporal proximity of the arrest and the confession, any intervening 

circumstances, and the flagrancy of the official misconduct. Brown, 422 U.S. at 603-04.

If the time between an illegal arrest and a confession is short, it allows little time 

for attenuation of taint and indicates that there may be a causal connection between the 

illegal arrest and the confession. The taint of the illegal arrest is more likely to be 

attenuated if the suspect has had time to rest, reflect, and eat; and time to consider options 

and exercise free will. See Taylor, 457 U.S. at 691; Bell, 724 S.W.2d at 791. 

Intervening events must break the causal connection between the illegal arrest and 

the confession so that the confession is Asufficiently an act of free will to purge the 

primary taint.@ Taylor, 457 U.S. at 690 (quoting Brown, 422 U.S. at 602). Examples of 

significant intervening circumstances include the opportunity to meet with family; the 

issuance of an arrest warrant based on information other than fruit of the illegal arrest; 

confronting the suspect with evidence untainted by the illegal arrest; and releasing the 

suspect from custody and informing him that he is free to leave. Monge v. State, 315 

S.W.3d 35, 41 (Tex. Crim. App. 2010); Maixner v. State, 753 S.W.2d 151, 156 (Tex. 

Crim. App. 1988); Bell, 724 S.W.2d at 791. A suspect’s request to speak to the police

may be an intervening circumstance if the request is a product of the suspect=s own free 

will. Crutsinger, 206 S.W.3d at 611. 

The purpose and flagrancy of the official misconduct is one of the most important 

factors. Self v. State, 709 S.W.2d 662, 668 (Tex. Crim. App. 1986); Bell, 724 S.W.2d at 

789. Constitutional violations are judged more harshly than statutory violations. See 
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Duncan v. State, 639 S.W.2d 314, 318 (Tex. Crim. App. 1982). The failure to get a 

warrant before making an arrest is official misconduct. Monge, 315 S.W.3d at 42. But 

when probable cause exists, failure to get a warrant is comparatively less serious 

misconduct than if the accused is arrested with no apparent justification with the sole 

intent to exploit the arrest to extract a confession. Id. Flagrantly abusive police 

misconduct requires the State to prove clear indications of attenuation. Id.

Police conduct is the most flagrantly abusive when the arrest relies on factors so 

lacking in indicia of probable cause as to render belief in its existence entirely 

unreasonable; or when the arrest is effectuated as a pretext for collateral objectives,

unnecessarily intrudes on personal privacy, is made without any apparent justification, or 

is exploited for the purpose of obtaining a confession. Bell, 724 S.W.2d at 789-90. An 

arrest without probable cause that is investigatory or was designed to cause fright, 

surprise, and confusion is flagrant police misconduct. Brown, 422 U.S. at 605. But even 

if the police misconduct does not shock the conscience, an otherwise inadmissible 

confession should not be made admissible simply because the police misconduct was not 

too reprehensible. Bell, 724 S.W.2d at 790. 

The traits of the accused and the circumstances and details surrounding the 

questioning and arrest are relevant to the inquiry. Picking up a suspect from home in the 

middle of the night may be considered more flagrant if no reason or need for doing so is 

shown. 

For example, in Green v. State, police misconduct was flagrant because they 
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arrested 18-year-old Green at gunpoint at his home in the middle of the night without 

probable cause and then drove him around for an hour to investigate the offense before 

taking him to the station. 615 S.W.2d 700, 707 (Tex. Crim. App. 1980) (en banc) (op. on 

reh’g). Similarly, police misconduct was flagrantly abusive in Duncan v. State where 

they arrested Duncan at home at 3:00 a.m. without a warrant for the express purpose of 

interrogating her and subjected her to nearly continuous interrogation for over three hours 

until she signed a written confession. 639 S.W.2d at 318. 

By contrast, police misconduct was not abusive in Monge because Monge was at 

the police station all day voluntarily, had eaten lunch, taken smoke breaks, agreed to a 

polygraph exam, provided a DNA sample, and given consent to search his home and car. 

Although he was free to leave, he stayed and slept in the interview room; and he was 

arrested without a warrant the next morning and confessed after being confronted with 

his accomplice=s statement that was untainted by the illegal arrest. Monge, 315 S.W.3d at 

39, 42. See also Dowthitt v. State, 931 S.W.2d 244, 261-62 (Tex. Crim. App. 1996) 

(police conduct not abusive because statement began as non-custodial, Dowthitt was 

released and told he was free to leave, he returned to the police station on his own and 

was not arrested until after he admitted that he was involved in a murder); Maixner, 753 

S.W.2d at 157 (police conduct was not flagrant because Maixner was released from 

custody and free to leave after police learned they mistakenly violated state law in 

arresting him; he chose to remain at the station and give a statement); Self, 709 S.W.2d at 

667-68 (warrantless arrest in violation of state law should not be condoned but police 
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conduct was not purposeful or flagrant).

VI. Analysis 

The court of appeals correctly assessed the first two Brown factors. Appellant was 

advised of his Miranda rights, which favors attenuation, but the time between the illegal 

arrest and the confession was short, which disfavors attenuation. Martinez, 589 S.W.3d 

at 884. But we disagree with the court of appeals about the third and fourth factors 

because the intervening circumstance that it cited—Appellant’s flagging down Lara after 

his arrest—was produced by an arrest that, on this record, was unsupported by probable 

cause and was surrounded by circumstances suggesting flagrantly abusive police 

misconduct. 

In finding probable cause, the court of appeals relied on Lara’s testimony that 

Appellant’s confession implicated him in “almost the same fashion” as Rico’s had. In 

effect, the court of appeals used Appellant’s confession given after his illegal arrest to 

supply probable cause. This was a mistake because facts discovered after an arrest 

cannot be used in hindsight to supply probable cause. Amores, 816 S.W.2d at 415. The 

State argues that probable cause could be inferred from Lara’s testimony about the 

similarity between Rico’s and Appellant’s statements, but the inference would depend on 

speculation. Lara did not specify what Rico said or what “almost the same fashion” 

really meant. “We will not engage in conjecture as to the existence of facts which are 

critical to a finding of probable cause and which the State bore the burden of proving.” 

Id. Instead, those facts “must be specifically articulated” in the record. Id. In this case 
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they were not, so the record does not support a probable cause finding. 

But even if Lara did have probable cause at the time of the arrest, and the 

prosecution just failed to prove it in the suppression hearing, the surrounding 

circumstances show that the police misconduct was flagrantly abusive. When Appellant

invoked his right to counsel, Lara and Parsons announced that he was under arrest for 

murder, handcuffed him, confined him to a holding cell, and chained him to a bench. 

There was no evidence that Appellant was a flight risk, that there was no time to get an 

arrest warrant, or that some other urgency justified the warrantless arrest. No 

justification was offered for the different treatment pre-Miranda—leaving Appellant 

alone in the interrogation room—and post-Miranda—immediate arrest and confinement.

Instead, the arrest and its surrounding, middle-of-the night circumstances seemed

designed to cause fear, surprise, and confusion for the purpose of getting a confession. 

Citing Crutsinger, the court of appeals and the State say Appellant=s act of 

reinitiating contact with Lara was an intervening circumstance that broke the causal 

connection between the illegal arrest and the confession. But Crutsinger is 

distinguishable. Crutsinger was arrested at a bar for failing to identify himself after using 

a credit card that had been flagged as stolen. Crutsinger, 206 S.W.3d at 609. A few 

minutes after he was placed in a holding cell, he asked to speak to an officer and said he 

had “messed up.” Id. He then waived his rights, consented to a search of his belongings, 

gave a DNA sample, and confessed to murdering two women. Id. Although Crutsinger’s 

warrantless arrest was unlawful, it was not effectuated in a manner that would cause 
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shock, confusion, and fear; he was not taken from home in the middle of the night for the 

sole purpose of questioning in an ongoing investigation, he had not invoked his right to 

counsel, and he was not illegally arrested for murder. Crutsinger’s initiation of contact 

with the officer was determined to be of his own free will. Id. at 611. Considering the 

circumstances of this case, including the manner of the arrest and the characteristics of 

the accused, we cannot conclude that Appellant flagging down Lara was an independent 

act of free will sufficient to purge the primary taint of the illegal arrest. 

Three of the four Brown factors weigh in Appellant=s favor. Like Brown’s

statement, Appellant=s was separated from his illegal arrest by very little time and there 

was no intervening circumstance. The arrest had a quality of purposefulness; it was for 

investigation, embarked upon in the hopes that something might turn up, and the arrest 

seems to have been calculated to cause surprise, fright, and confusion. Brown, 422 U.S. 

at 605. Appellant=s statement was the fruit of his illegal arrest, and nothing broke the 

causal connection between the illegal arrest and the statement. The statement should 

have been suppressed. AWhen there is a close causal connection between the illegal 

seizure and the confession, not only is exclusion of the evidence more likely to deter 

similar police misconduct in the future, but use of the evidence is more likely to 

compromise the integrity of the courts.@ Dunaway v. New York, 442 U.S. 200, 218 

(1979).

VII. Preservation

The State argues that Appellant did not preserve the claim that his statement was 
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the fruit of an unlawful arrest and that only the voluntariness of the confession was 

considered at the suppression hearing. The State says defense counsel argued only about 

Appellant invoking his right to counsel. The record establishes otherwise. Defense 

counsel argued that the arrest was without a warrant and without probable cause. At the 

end of the suppression hearing when the judge discussed the arrest, defense counsel 

asked, AWhy did they arrest him at that point, Judge? . . .What probable cause did they 

have at that point? That was not articulated, Judge. There should have been a warrant 

taken out and the Court knows that.@ Thus, Appellant=s illegal arrest claim was raised at 

the suppression hearing and ruled on by the trial court.

The State argues that we granted review to consider only the fourth Brown factor 

and should not consider the other three factors in our analysis. This is incorrect. We 

granted review to consider whether the court of appeals misapplied the four-factor test in 

Brown, and the Brown factors are somewhat intertwined and must be considered together.

The State also claims that Appellant did not argue in the court of appeals that 

Rico’s statement could not support probable cause because its contents were not proven 

at the suppression hearing. But Appellant’s argument is properly before us because the 

argument flows from the court of appeals’ analysis of the Fourth Brown factor and its use 

of Appellant’s statement to surmise what was in Rico’s statement. Also, contrary to the 

State’s claim that this argument was not raised in the trial court, defense counsel raised 

this issue at the suppression hearing, asking Lara about his belief that he had probable 

cause to arrest Appellant: “all you had was a statement of Mr. Rico, which we don’t have 
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in front of us?” to which Lara replied, “Correct.”

VIII. Conclusion

The court of appeals erred in its analysis of the third and fourth Brown factors and 

in looking to Appellant=s statement for probable cause. We reverse the judgment of the 

court of appeals and remand to the trial court for further proceedings not inconsistent 

with this opinion.

Delivered: April 14, 2021

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