Page 43 - TPA Journal July August 2022

reported the facts of Nutt’s commission of the residence without consent of a resident or without
offense of public intoxication. As his supervisor, a warrant.
Appellant had no statutory duty to ensure that
particularized information was included in Officer This instruction is consistent with article 14.05 of
Harden’s report. Further, there is no evidence that the Texas Code of Criminal Procedure. Appellant
any facts relating to the offense were false or does not dispute that he lacked Nutt’s consent to
intentionally omitted from the report with the intent enter his home. Therefore, to prove that the entry
to deceive. There was no evidence that Appellant into Nutt’s home was unlawful, the State must
attempted to create a false impression or prove the lack of exigent circumstances.
encouraged Harden to omit facts from his report
with the intent to distort anyone’s perception. Quite This Court has defined these exigent circumstances
the contrary, the record shows that Appellant did as “(1) providing aid to persons whom law
not try to conceal anything that transpired on the enforcement reasonably believes are in need of it;
evening of Nutt’s arrest, but instead personally (2) protecting police officers from persons whom
prepared and provided copies of the Llano Police they reasonably believe to be present, armed, and
Department’s video footage of Nutt’s arrest to the dangerous; or (3) preventing the destruction of
prosecutor. evidence or contraband.”

Because the tampering statute does not create an …. no exigent circumstances supported a
offense through an omission or create a duty to warrantless entry into Nutt’s residence. First,
include certain information in an offense report, the Appellant was not there to provide Nutt aid; he was
evidence is insufficient to support a conviction. there to arrest him.6 Second, Appellant had no
Consequently, we reverse the judgment of the court reason to believe that Cory Nutt was armed and
of appeals and render an acquittal for the count of dangerous.7 To the contrary, the record shows that
tampering with a governmental record. Nutt was standing inside his trailer, shoeless, and
there were no indications to suggest he was a threat.
II. OFFICIAL OPPRESSION In fact, Nutt testified that he was sleeping when the
confrontation began. Lastly, there was no need to
Under the Penal Code, “[a] public servant acting preserve evidence, such as collecting Nutt’s blood
under color of his office or employment commits” for analysis. While a defendant’s blood alcohol
the offense of official oppression “if he . . . content might be relevant in an investigation of
intentionally subjects another to mistreatment or driving while intoxicated, it is not necessarily so in
arrest . . . that he knows is unlawful” or a case of public intoxication. Even so, it is not clear
“intentionally denies or impedes another in the that the need to preserve evidence of Nutt’s blood-
exercise or enjoyment of any right . . . knowing his alcohol level would justify a warrantless home
conduct is unlawful.” Tex. Penal Code § 39.03(a). arrest.

In this case, the jury received the following However, in addition to the three warrant
instructions: exceptions noted above, the jury instructions
included a fourth: hot pursuit. The Supreme Court
A police officer making an arrest without a warrant has held that police officers may enter premises
may not enter a residence to make the arrest unless: without a warrant when they are in hot pursuit of—
(1) a person who resides in the residence consents chasing— a fleeing suspect. United States v.
to the entry; or (2) exigent circumstances require Santana, 427 U.S. 38, 42–42 (1976). Appellant
that the police officer making the arrest enter the alleges that Officer Harden’s hot pursuit of Nutt

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