journal of the texas criminal defense lawyers association

defendant would have to be willing to take a beating. D's objection thatthis was a misstatement of the law was overruled. An argument which containsa statement of the law eontrary to the coj~rt's charge is error.-, Davis 506 S.W.2d 909; Lincoln, 508 S.W.2d 635; Hauldin, 628 S.W.2d 793;Dues 634 S.W.2d 304.-3By overruling D'e objecti-on the TC put tiie staap of judicial approval onthe prosecutor's misstatement of law. The prosecutor's mark was not onlyerroneous but was so manifestly improper as to require a reversal. Theprosecutor's subsequent reference to the court's charge, without correctingthe misstatement of the law, was not sufficient to overcome the irreparableharq to D.LARRY TOWNSLEY, No, 583-82,En Banc, 6/22/83.Opinion on D's PDR: Aff'd, Judge Tom Davis,CONFESSION--ILLEGAL ARREST--INTERVENING EVENTS BROKE CAUSAL CONNECTIONBETWEEN ILLEGAL ARREST AND CONFESSION: D was convicted of murdering hisgirlfriend late the evening of Nov. 9. Her body was discovered at 9 a.m.Nov. 10. Shortly thereafter D, his mother, and brother drove up to thetrailor park and all were invited to the police station. D went willingly.At about 4 p.m. D demanded to be charged or released. Police found trafficcommitments which required fines totaling $56, which D was prepared to pay.D nevertheless was held and then interrogated at about 9 p.m. to 10:30 p.m.On Nov. 11 at 10:37 a.m. D was arraigned. Subsequently D was interrogatedby a polygraph examiner and subsequently gave three written incriminatingstatements.D was not illegally arrested until he unsuccessfully attempted to pay histraffic fines at 4 p.m. on Nov. 10. No probable cause existed to detainD between approximately 4 p.m. and 10:30 p.m. on Nov. 10. However, a verydetailed scrutiny of the evidence by Judge Davis showed probable cause tohold D after 10:30 p.m.The police cannot hold anyone for investigation, beyond the very briefkind of stop and frisk allowed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889 (19681, of a homicide on less than probable cause. Dunawayv. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Therebeing no probable cause to arrest D for the murder of his girlfriend, therewas no probable cause to hold him for investigation or suspicion of thehomicide, after 4 p.m. However, after additional facts were developed by10:30 o'clock p.m., the facts and circumstances were sufficient in and ofthemselves to warrant men of reasonable caution in the belief that anoffense had been committed and that D had committed the offense. Brinegarv. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).,A confession obtained through custodial interrogation after an illegalarrest should be excluded unless intervening events break the causalconnection between the illegal arrest and the confession so that the con-fession is sufficiently an act of free will to purge - the primary taint.Taylor v. Alabama, 102 S.Ct. 2664 (1982); Brown v. Illinois, 422 U.S. 590,95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Duncan v. State, 639 S.U.2d 314;Green 615 S.W. 700.fSD-34 VOICE for the Defense/August 1983