ARMSTRONG, JOSHUA RAY v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0409-22
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JOSHUA RAY ARMSTRONG, Appellant
v.
THE STATE OF TEXAS

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On State’s Petition for Discretionary Review
From the Fifth Court of Appeals
Grayson County
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YEARY, J., filed a concurring opinion in which SCHENCK, P.J., and
FINLEY, J., joined.

I concur in the Court’s judgment, but I do not join its opinion. I
whole-heartedly agree with the Court that the part of Article 14.03(a)(1)
that is pertinent in this case contains no language whatsoever that
either plainly or implicitly imposes an “exigent circumstances”
requirement as part of the conditional authority it provides for peace
ARMSTRONG – 2

officers to make warrantless arrests. TEX. CODE CRIM. PROC. art.
14.03(a)(1). 1 The Court rightly rejects any impulse to engraft such a
requirement onto the statute in an attempt to imbue its “remarkably
obscure” text with some discernable (and constitutional) functionality. 2
After all, when the Legislature wants to require exigent circumstances,
it has demonstrated it knows how to do so. See Majority Opinion at 7−8;
State v. McGuire, 689 S.W.3d 596, 608 (Tex. Crim. App. 2024) (Keel, J.,
concurring) (pointing out various provisions in Chapter 14 that do
explicitly contain exigency requirements).
Moreover, I applaud the Court for attempting to construe that
most “troublesome” of phrases, “suspicious place.” See Majority Opinion

1 Since 1967, the statute has read essentially as it does today: “Any

peace officer may arrest, without warrant . . . persons found in suspicious
places and under circumstances which reasonably show that such persons have
been guilty of some felony . . ., breach of the peace, or . . . threaten or are about
to commit some offense against the laws[.]” Acts 1967, 60th Leg., ch. 659, § 9,
p. 1735, eff. Aug. 28, 1967. I concede that the last clause of this provision—
“threaten or . . . about to commit some offense”—may well embrace a kind of
exigency requirement. My remarks today, however, relate to the balance of the
statute.

2 See George E. Dix & John M. Schmolesky, 40 TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE § 12:25 (3d ed. 2011), at 776 (describing
the “substance” of Article 14.03(a)(1)’s “suspicious place” requirement as
“remarkably obscure”). In her concurring opinion in Dyar v. State, former
Judge Cochran also decried the fact that “our cases are less than crystal clear
about precisely what” limitations Article 14.03(a)(1) imposes on the ability of
peace officers to conduct warrantless arrests. 125 S.W.3d 460, 470 (Tex. Crim.
App. 2003) (Cochran, J., concurring). It was in her concurring opinion in Dyar
that the notion of reading an exigent circumstances requirement into the
statute in order to give it constitutionally viable substantive content first took
hold. Id. at 470−71. While I agree that both the statute and our cases
construing it have been “less than crystal clear,” I disagree that the way to
resolve the obscurity is to impose an exigent circumstances requirement that
is unsupported by the statute’s text.
ARMSTRONG – 3

at 1−2 (quoting George E. Dix & Robert O. Dawson, 40 TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE § 9.61 (2d ed. 2001), at 555); id. at
8−11 (consulting dictionary definitions for “suspicious” and “place,” and
then falling back on prior cases to identify relevant “factors”).
Unfortunately, I do not believe the Court’s present-day effort is any
more enlightening, ultimately, than its past attempts. 3 And the Court
could do better.
The Court today repeats earlier pronouncements that in deciding
the applicability of Article 14.03(a)(1) to authorize warrantless arrests,
courts should consider “the totality of the circumstances,” and that it is
a “highly fact specific analysis” that should take into account certain
“different factors” (which apparently may, but does not have to, include
exigent circumstances)—the relevance of which still goes utterly
unexplained. Majority Opinion at 9−11. None of this serves to provide
the missing “substance” that the legal commentators (as well as former
Judge Cochran, in her concurring opinion in Dyar v. State, 125 S.W.3d
460, 468−71 (Tex. Crim. App. 2003) (Cochran, J., concurring)) have

3 Along the way, the Court makes various allusions to what it perceives

the Legislature intended. E.g., Majority Opinion at 7 (“The absence of an
exigency requirement seems intentional.”). I could have joined at least Part
IIIa of the Court’s opinion had it not incorporated such a notion. As I have said
on other occasions, I do not think our task in construing statutes is to discern
and effectuate legislative intent, but it is instead to discern and effectuate the
reasonable import of the statutory language itself, which is the law. See e.g.,
Ex parte Kibler, 664 S.W.3d 220, 233−34 (Tex. Crim. App. 2022) (Yeary, J.,
concurring) (“I do not agree that statutory interpretation should be a matter of
judges discerning amorphous legislative intent.”).
ARMSTRONG – 4

found so lacking. 4
On remand, the court of appeals will now know what not to
require in order to justify an arrest under Article 14.03(a)(1): exigent
circumstances. And perhaps that is all that needs to be said in the
present case, in the posture that it comes before us. But nothing in the
Court’s opinion tells the court of appeals on remand the substance of
what is required to be found before it may conclude that a person has
been “found in a suspicious place” under the statute.
At some point the Court must do a better job supplying that
substance. All else strikes me as nothing more than continued

4 Indeed, that is precisely what we granted discretionary review in Dyar

to do: give some substantive content to Article 14.03(a)(1)’s “found in a
suspicious place” requirement. See 125 S.W.3d at 451 (“The issue on this
appeal is whether the appellant’s warrantless arrest was made while the
appellant was in a ‘suspicious place’ and therefore, authorized under Article
14.03(a)(1) of the Texas Code of Criminal Procedure.”). The best the Court
could do, then as now, in providing that substance, however, was to declare it
to be highly fact-bound, subject to a “totality of the circumstances” review,
involving “several different” (if amorphous and unexplained) “factors,” the
most “constant” recognized in the cases being when “[t]he time frame between
the crime and the apprehension of a suspect in a suspicious place is short.” Id.
at 468. Of course, this most “constant[ly]” recognized temporal “factor” simply
begs the question of what constitutes a “suspicious place” to begin with.
Another constant in construing the statute, the Court has said, is the
recognition that “few, if any places are suspicious in and of themselves.” Id. at
464−65 (quoting Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986)).
So, what does make a “place” “suspicious” for purposes of the statute? The
dictionary definitions the Court offers today provide little guidance. Majority
Opinion at 8−9. Most cannot even possibly apply. For example, “disposed to
suspect: distrustful” cannot possibly be attributed to a place; a place cannot be
“distrustful.” Nor can a place be “expressing or indicative of suspicion.” A place
cannot be in “a state of mental uneasiness and uncertainty” or “doubt[.]” A
“physical environment” simply cannot display such cognitive qualities. These
definitions accomplish little to dispel the “obscurity” that Professors Dix and
Schmolesky perceived in the statute.
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jurisprudential wheel-spinning. And the jurisprudential gap remains.
It seems to me that perhaps the best way to make sense of Article
14.03(a)(1) might be to construe it to authorize a peace officer to make a
warrantless arrest whenever he has “found” a person in a place that is
suspicious because something about the location where the person is
found establishes, or enhances, probable cause to believe—under the
totality of circumstances—that the person:
(1) has committed an offense described by article 14.03(a)(1);
or is

(2) threatening or preparing “to commit some offense against
the laws”;

(3) committing “some felony” or “breach of the peace” (or
another of the offenses enumerated in the statute);

(4) escaping after having committed “some felony” or “breach
of the peace,” etc.; or

(5) attempting to elude detection after having committed
“some felony” or “breach of the peace,” etc.

Such a reading of the statute admittedly focuses less on the literal
“place” at which the suspect is “found” as a source of “suspicious”-ness
and more on the circumstances of the peace officer’s discovery of the
suspect which give rise to probable cause to believe he has committed
an offense, or is preparing, committing, escaping from, or attempting to
elude detection for the commission of a suspected offense.
If that seems somewhat broad, it should be remembered, just as
the Court acknowledges today, that neither the Fourth Amendment to
the United States Constitution nor Article I, § 9, of the Texas
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Constitution requires a warrant at all before police may arrest a person
for whom they have probable cause to believe he has committed an
offense—at least in a public place. See Majority Opinion at 6 (“Neither
the U.S. Constitution nor the Texas Constitution requires a warrant for
making arrests in public.”). See also U.S. CONST. amend. 4; TEX. CONST.
art. 1, § 9; United States v. Watson, 423 U.S. 411, 423−24 (1976); Hulit
v. State, 982 S.W.2d 431, 435 (Tex. Crim. App. 1998). So, to construe the
statute at issue with such breadth, so long as it does not do violence to
the statutory language itself, at least does not violate a constitutional
requirement. And if such a construction provides some otherwise
lacking context to the circumstances in which the statute might be
appropriately applied, it will benefit the jurisprudence of the state in
ways that the Court’s opinion still fails to accomplish.
With these comments, I concur in the Court’s judgment.

FILED: May 28, 2025
PUBLISH