ARMSTRONG, JOSHUA RAY v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0409-22

JOSHUA RAY ARMSTRONG, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
GRAYSON COUNTY

NEWELL, J., filed a concurring opinion in which RICHARDSON and
WALKER, JJ., joined.

I agree that courts need not consider the existence of exigent

circumstances to determine whether a place is “suspicious” when the State

relies upon article 14.03(a)(1) of the Code of Criminal Procedure to justify a
Armstrong Concurring Opinion - 2

warrantless arrest. 1 The Court is correct that neither the word “exigency” nor

the phrase “exigent circumstances” appear in the text of the statute. We have

not been asked to define what “suspicious” means under this statute and

neither has the court below. We have only been asked to decide whether the

word “suspicious” requires a consideration of exigency. And having

determined that the previous understanding of what constituted a “suspicious

place” under the statute was incorrect, the Court rightly sends the case back

to afford the court of appeals an opportunity to determine, in the first instance,

what makes a place “suspicious” and whether Appellant was arrested without

a warrant in a “suspicious place.” 2 Because I agree with the Court’s analysis

and its resolution of the issue before us, I join the Court’s opinion in full.

I write separately to question whether the State may come to regret

asking us to go down this path. Article 14.03(a)(1) states:

(a) Any peace officer may arrest, without warrant:

(1) persons found in suspicious places and under
circumstances which reasonably show that such persons
have been guilty of some felony, violation of Title 9,
Chapter 42, Penal Code, breach of the peace, or offense
under Section 49.02, Penal Code, or threaten, or are about
to commit some offense against the laws[.] 3

1
Tex. Code Crim. Proc. Art. ann. 14.03(a)(1).

2
McClintock v. State, 444 S.W.3d 15, 21 (Tex. Crim. App. 2014) (noting that proper practice
when an issue is not clear cut is to remand the case to the court of appeals for a carefully
wrought decision).

3
Id.
Armstrong Concurring Opinion - 3

As the Court rightly points out, the phrase “in suspicious places” does not

contain an exigency requirement and our loose language in past opinions

wrongly signaled to courts that it should. But it is important to note that the

word “suspicious” in the statute modifies the place, not the person. The

statute is satisfied when a particular place is suspicious not when a person’s

presence in that place is suspicious. The facts that courts typically rely upon

to suggest exigency actually inform the inquiry into another statutory

requirement. Whether a person appears suspicious or looks like he or she

might be about to commit a crime informs the inquiry into whether a person

has been found “under circumstances which reasonably show that such

persons have been guilty” of an applicable violation or “are about to commit

some offense.” Those facts don’t say anything about whether a particular

place is suspicious. Given the text of the statute, it is not at all clear to me

that our previous cases suggesting that, for example, a hospital room or even

a residence (as in this case) can satisfy the statutory “suspicious place”

requirement without resort to facts that actually support the second

requirement under the statute, namely the defendant’s guilt or whether he is

about to commit an offense such as absconding. 4 If we are going to be

textualists and read the exigency requirement out of the word “suspicious,”

4
See Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003) (noting that the officer on
scene at the accident was informed the driver, suspected of causing the accident, had been
taken to the hospital and soon after observed the defendant had slurred speech, red glassy
eyes, a strong smell of alcohol, unintelligible responses, and admitted to driving and these
facts “in relation to the hospital” made the hospital a “suspicious place”).
Armstrong Concurring Opinion - 4

we cannot in turn rewrite the statute by reading into the word “suspicious” a

requirement that justifies consideration of facts indicative of the defendant’s

guilt. 5 I acknowledge that this statute is not a model of clarity, but we do not

get to substitute our policy preferences for that of the legislature. 6 They have

to fix it so it works, not us.

I join the Court’s opinion because it answers the simple question posed

in the State’s Petition for Discretionary Review, namely whether “exigency” is

part of the “suspicious place” inquiry under the statute. The Court rightly says

it isn’t. But the State may be in for a rude awakening on how few truly

“suspicious” places there are. And if we are going to read requirements into

the definition of “suspicious” to allow for consideration of facts suggesting the

person’s guilt, we are effectively re-writing the statute to make it work the

way we think it should rather than deferring to the text of the statute. With

these thoughts, I join the Court’s opinion.

Filed: May 28, 2025

Publish

5
Long v. State, 535 S.W.3d 511, 521 (Tex. Crim. App. 2017) (“If the plain language is clear
and unambiguous, our analysis ends because ‘the Legislature must be understood to mean
what it has expressed, and it is not for the courts to add or subtract from such a statute.’”).

6
Ex parte Kibler, 664 S.W.3d 220, 233 (Tex. Crim. App. 2022); see also Lang v. State, 561
S.W.3d 174, 192 (Tex. Crim. App. 2018) (Yeary, J., dissenting) (“For my part, I am more
concerned with avoiding judicial legislation than I am with making sure that every statute is
implemented in exactly the way I think some legislators hoped that it would be
implemented.”).