Opinion
No. 05-02-00294-CR.
Opinion filed March 20, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F00-56162-K. AFFIRMED.
MEMORANDUM OPINION
This is an appeal from a conviction for aggravated assault of a public servant. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(1) (Vernon 2003). Appellant was charged with two offenses: possession of cocaine and aggravated assault of a police officer. After a pretrial hearing, the trial court granted appellant's motion to suppress the cocaine and denied his motion to suppress on the aggravated assault case. Subsequently, pursuant to a plea bargain, appellant pleaded nolo contendere to the offense and "true" to one enhancement paragraph, and the State struck the second enhancement paragraph. The court assessed punishment at fifteen years' confinement. In two issues, appellant contends the trial court erred in denying his motion to suppress based on violations of Amendment IV of the United States Constitution and article I, section 9 of the Texas Constitution. He contends because the trial court found that there was not a sufficient basis to stop and arrest for the cocaine, the evidence of resisting an illegal arrest should also be suppressed. We affirm. In Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997), the court of criminal appeals explained that the standard of review of a motion to suppress evidence depends on the type of question presented. It recognized three types of questions: (1) historical facts that the record supports, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor; (2) application of law to fact questions, i.e., mixed questions of law and fact, when the resolution of those ultimate questions turns on an evaluation of credibility and demeanor; and (3) mixed questions of law and fact when the resolution of those questions does not turn on an evaluation of credibility and demeanor. Id. at 89; Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App. 1998). In reviewing the first two types of questions, an appellate court shows "almost total deference" to a trial court's determination because of a trial court's exclusive fact-finding role and because a trial court is in an appreciably better position to decide the issue. Guzman, 955 S.W.2d at 89. In reviewing the third type of question, where the resolution of the issue does not turn on an evaluation of credibility and demeanor, an appellate court is in as good a position to review the issue as the trial court; therefore, an appellate court determines the issue independently, or de novo. Id.; Lane v. State, 971 S.W.2d 748, 751-52 (Tex.App.-Dallas 1998, pet. ref'd). In this case, the issue does not turn on an evaluation of credibility and demeanor; accordingly, we review the issue de novo. Both the United States and Texas Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. amends. IV, XIV; Tex. Const. art. I, § 9. Article 38.23 of the code of criminal procedure codifies the state and federal constitutional bans on the admission of evidence obtained as a result of an illegal search or seizure. Tex.Crim. Proc. Code Ann. § 38.23 (Vernon Supp. 2003). In Texas, the courts interpret the provisions of the Texas Constitution to provide at least as much protection for the rights of its citizens as its federal counterpart. Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App. 1991). Consequently, we may address and dispose of appellant's claims under the Texas and United States Constitutions and the code of criminal procedure together. See Cook v. State, 832 S.W.2d 62, 65 (Tex.App.-Dallas 1992, no pet.). The issue here is whether evidence of assault on a police officer after an illegal arrest should be excluded. In State v. Mayorga, 901 S.W.2d 943 (Tex.Crim.App. 1995), the court of criminal appeals examined the relevance of the legality of an arrest to the exclusion of evidence under the Texas and United States Constitutions and article 38.23 of the code of criminal procedure in a prosecution for the offense of resisting arrest under section 38.03 of the penal code. In Mayorga, the court of criminal appeals held that it was proper to admit evidence of the resistance because such evidence is not "obtained in violation of the law" as required under article 38.23 for a violation of constitutional rights to exist. Id. at 946. The court explained that the phrase "obtained in violation of the law" contained in article 38.23 "contemplates that a crime has been committed; that evidence of that crime exists; and that officers violate the law in attempting to obtain evidence of the previously committed crime." Id. at 945-46. With resisting arrest, the evidence does not exist before the illegal arrest because the crime of resisting arrest has not been committed. Id. at 946 (citation omitted). The court held that the evidence was not obtained in violation of constitutional rights. Id. Likewise, in a case of aggravated assault on a peace officer, the evidence of the aggravated assault does not exist at the time the unlawful arrest is attempted. Cooper v. State, 956 S.W.2d 95, 98 (Tex.App.-Tyler 1997, pet ref'd). It was not until the arrest was attempted that appellant resisted and assaulted the officer. Therefore, the evidence of the assault did not exist before the illegal detention and was not obtained by the illegal arrest. See id. The trial court did not err in refusing to suppress the evidence concerning the aggravated assault. Accordingly, we resolve appellant's two issues against him and affirm the trial court's judgment.