Texas Stamp

New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012

Texas Rules of Appellate Procedure Rules 80-80.1, effective December 1, 2019
The State Prosecuting Attorney must be served on every petition for discretionary review or brief filed by any party or amicus curiae in the Court of Criminal Appeals, including replies, responses, amendments, and supplements.

DAY, JONATHAN

PD-0955-19 11/06/2019

1. “Can an officer’s attempt to detain or arrest a suspect, which is otherwise lawful, be tainted by an earlier illegality and thereby negate evading’s lawful-arrest-or-detention element, just as evidence is tainted under fruit-of-the-poisonous-tree?”

 2. “Will discovery of an arrest warrant necessarily render an attempted seizure on the warrant “lawful” (despite an earlier illegality) for purposes of evading arrest?”

 3. “If an earlier illegality can taint the officer’s attempted detention, does discovery of a warrant provide an independent source for the detention or attenuate the taint?”

An officer attempting to serve an arrest warrant detained Day and several others. The officer determined Day was not the subject of the arrest warrant but continued his detention anyway to see if Day had outstanding warrants. Day admitted he did, and dispatch confirmed this. The officer told Day he could not leave, but he did anyhow. He was charged and convicted of evading, which requires intentionally fleeing from a person the defendant knows is a peace officer “attempting lawfully to arrest or detain him.” Tex. Penal Code § 38.04(a).

 On appeal, Day challenged the sufficiency of the evidence, specifically that the officer’s attempted detention was lawful. The court of appeals held that, once the officer determined Day was not the man people were looking for, his continued detention became unlawful, and no rational factfinder could have decided otherwise.

 The State argues that, at the time Day fled, his detention was authorized by the warrant for his arrest and that the fruit-of-the-poisonous-tree doctrine does not purport to control whether an officer is acting lawfully—only whether evidence derived from an illegality is admissible. The State contends that even if Fourth Amendment doctrines determine the “lawfulness” element of evading, the discovery of the warrant justified the detention under either independent source or attenuation of the taint.

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