No. 01-08-00424-CR
Opinion issued August 13, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
On Appeal from the 179th District Court Harris County, Texas, Trial Court Cause No. 1109955.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
TERRY JENNINGS, Justice.
A jury found appellant, Alberto Contreras, guilty of the offense of aggravated robbery and assessed his punishment at confinement for thirty-five years and one day. In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress his videotaped statement. We affirm.
Factual Background
Mario Calzada testified that on the evening of March 26, 2007, at the Quail Meadows Apartment complex, he heard two gunshots fired. He went to the window of his apartment, where he saw two people struggling on the ground and "another one a little distance away." Noticing that one of the individuals "had something in his hand, [and was] trying to hit the person who was underneath him," Calzada left his window and called for emergency assistance. When police officers arrived, Calzada went to his neighbor's apartment where he saw Julio Jimenez, the complainant, "lying on the floor" with "half of his body inside the apartment and the other half outside." The complainant told Calzada that two men "had tried to rob him and that they had shot him." Houston Police Department ("HPD") Officer S. O'Leary testified that he was dispatched to the apartment complex where he saw the complainant "sitting inside the doorway of an apartment." The complainant told O'Leary that two men wearing ski masks had attempted to rob him, but that "he attempted to fight with them and he got shot." O'Leary noticed that the complainant had "been shot several times in the torso area." The complainant told O'Leary that after the men shot him, he "was able to take the gun away from the [men] and actually hit one of them with the gun." When O'Leary asked the complainant what had happened to the firearm, the complainant's wife picked it up and handed it to O'Leary. Moments later an ambulance arrived and transported the complainant to a nearby hospital where he died. Reynaldo Canales, a maintenance worker at the apartment complex, testified that hours after the shooting, he saw two young men, appellant and Joshua Nogess, park their car, get out, and start looking for something "underneath the cars and between the bushes" in the area where the complainant had been shot the night before. Canales did not recognize the two men and suspected that they had robbed the complainant and were now looking for the firearm that they had lost during the struggle. Canales called Dora Lucio, the apartment complex manager, who came outside and joined Canales. When appellant and Nogess noticed that Canales and Lucio were watching them, they left the apartment complex on foot. While Lucio called for emergency assistance, Canales followed the two men in his car down a street to a nearby elementary school where appellant and Nogess left the road and walked into a wooded area. HPD Officer T. Stearns testified that he heard HPD Officer M. Vana "asking for help over the radio." Vana said that "she had two possible murder suspects in the area and was trying to find them." When Stearns arrived in the area near the apartment complex, Vana gave Stearns a description of the suspects' clothing and told him that the suspects were "two Hispanic males" who had last been seen close to a nearby elementary school. Stearns joined Vana and other police officers in searching for appellant and Nogess. As he was driving east on a street near the elementary school, Stearns saw appellant and Nogess "walking south . . . [in] an open grassy area." Stearns left his patrol car and followed them on foot without being seen. While following them, Stearns "directed the other officers to come down Hall Road . . . to try to box them in." Appellant and Nogess kept walking south, but when they approached Hall Road, they saw the "patrol cars coming down the road at a high rate of speed." Appellant and Nogess turned around and started walking back towards Stearns, who pulled out his firearm and told them, "Freeze, turn around, . . . and get on the ground." HPD Officer K. Carr testified that he transported appellant to the homicide division at HPD headquarters where appellant waived his legal rights and gave a videotaped statement in which he confessed to his participation in the robbery of the complainant. Motion to Suppress
In one point of error, appellant argues that the trial court erred in denying his motion to suppress his videotaped statement because "any statement was the fruit of an arrest of [appellant] made without warrant and without probable cause." Our standard for reviewing a trial court's ruling on a motion to suppress evidence is bifurcated; we give almost total deference to a trial court's determination of historical facts and review de novo the trial court's application of the law. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). When the trial court does not make findings of fact, we view the evidence in the light most favorable to the trial court's ruling. Id. We must sustain the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Flores v. State, 177 S.W.3d 8, 14 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). In Texas, police officers are authorized to pursue and make warrantless arrests of "persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony. . . ." Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2008) (emphasis added). In making a warrantless arrest under article 14.03(a)(1), police officers must still have probable cause to make the arrest. Dyar v. State, 125 S.W.3d 460, 467 (Tex. Crim. App. 2003). By looking at the "totality of the circumstances," we determine first whether probable cause existed that the defendant committed a felony and next whether the defendant was in a "suspicious place." Id. Probable cause exists if a police officer "knows of facts that would lead a reasonable person to believe that the suspect has committed or will soon commit a crime." Neal, 256 S.W.3d at 280; see Torres v. State, 868 S.W.2d 798, 801 (Tex. Crim. App. 1993). "Police broadcasts that are based on probable cause and that report a felony and a description of the perpetrator satisfy the requirements for a warrantless arrest." Goldberg v. State, 95 S.W.3d 345, 362 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Law v. State, 574 S.W.2d 82, 84 (Tex. Crim. App. 1978)). Here, Officer Vana radioed Officer Stearns and other police officers, telling them that two murder suspects had been seen at the apartment complex and giving them a description of appellant and Nogess. Vana based the information that she conveyed on the information she received from Lucio and Canales. Lucio had informed Vana that appellant and Nogess, within hours of the shooting, had been searching for something in the bushes and under cars in the area where the complainant had been robbed and shot. Because the two men who had robbed the complainant had lost their firearm during the robbery, appellant's actions seemed highly suspicious. Lucio also told Vana that when appellant and Nogess saw that Canales and Lucio had noticed what they were doing, they left the apartment complex on foot, instead of driving away in their car. Based on Lucio's observations, Officer Vana gave to other police officers a description of appellant and Nogess to other police officers, including Stearns, and gave their last known location. Officer Stearns explained that while he was following appellant and Nogess, he saw them turn away from the road when they "saw the patrol cars coming." Based on the totality of the circumstances, we conclude that these facts would lead a reasonable person to believe that appellant had robbed the complainant. See Neal, 256 S.W.3d at 280. To justify a warrantless arrest under article 14.03(a)(1), the State must prove not only the existence of probable cause that the defendant committed a felony, but also that the defendant was found in a "suspicious place." Tex. Code Crim. Proc. Ann. art. 14.03(a)(1). "The determination of whether a place is a `suspicious place' is a highly fact-specific analysis." Dyar, 125 S.W.3d at 468. Nevertheless, a place where a crime has recently occurred is a "suspicious place." See id.; Goldberg, 95 S.W.3d at 363. Here, police officers were notified that appellant had been found at a place where a man had been robbed and shot the night before. See Dyar, 125 S.W.3d at 468 (noting that "the time between the crime and the apprehension of the suspect in a suspicious place is an important factor"). When appellant, who is not a resident of the apartment complex, was found at the scene of the crime, he was searching for something under bushes and cars. This is significant because the two men who had robbed and shot the complainant had lost their firearm in the course of the robbery. Based on the totality of the circumstances, we conclude that appellant was found in a "suspicious place." See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1); Dyar, 125 S.W.3d at 468; Goldberg, 95 S.W.3d at 363. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress his videotaped statement. We overrule appellant's sole issue. Conclusion
We affirm the judgment of the trial court. Justice Keyes, concurring.
EVELYN KEYES, Justice.
CONCURRING OPINION
I respectfully concur in the judgment. Appellant contends the trial court erred in denying his motion to suppress his videotaped statement because it was the fruit of an illegal warrantless arrest. The majority sustains the trial court's ruling on the ground that article 14.03(a)(1) clearly allows the warrantless arrest. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon 2005) (authorizing warrantless arrest of "persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony"). Because justification of the warrantless arrest was neither argued nor briefed under article 14.03(a)(1), however, I would address the issue under article 14.04, which was argued and briefed by both sides. See Tex. R. App. P. 38.1(h); see also Tesoro Petroleum Corp. v. Nabors Drilling USA, 106 S.W.3d 118, 128 (Tex. App.-Houston [1st Dist.] 2002, pet. denied) (stating that Rule 38 requires appellant to provide reviewing court "with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue"); but see Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008) (noting that appellate courts sustain trial court's ruling on motion to suppress if correct under any theory of law). Like the majority, I would affirm. Facts
Reynaldo Canales worked with the complainant, Julio Jimenez, at the apartment complex where Jimenez lived and worked. On March 27, 2007, the morning after the night on which Jimenez was robbed and murdered, Canales went with the apartment manager, Dora Lucio, to console Jimenez's widow at the complex. After he left the apartment and was waiting for Lucio in the parking lot, Canales saw a car pull into the parking lot and two young men, one black and one Hispanic, get out. These young men were later identified as Joshua Nogess and appellant. Canales saw them looking underneath cars, between bushes, and around the air-conditioning unit. He knew that the men who had assaulted Jimenez had lost their gun, and he believed appellant and Nogess were those men and were looking for it. Canales called Lucio on his cell phone. When appellant and Nogess noticed that Canales and Lucio were watching them, they left on foot. Canales stayed in contact with Lucio and followed appellant and Nogess in his vehicle because they were leaving the area. Lucio called Sergeant M. Vana, who was working at a Houston Police Department storefront at the complex, and Lucio told Vana that she had Canales on another line and that he was following two suspicious people who had been at the scene where the crime had been committed the night before and who had been going through the bushes and looking underneath cars. Sergeant Vana knew that one black male and one Hispanic had been involved in the aggravated robbery and killing and had lost a gun. Sergeant Vana believed that appellant and Nogess met that description and were looking for the murder weapon and were thus tampering with evidence. In response to the information she received from Lucio, Vana got into her car and went to a nearby subdivision looking for the suspects. Canales pointed them out, and Vana informed other officers of the suspects' descriptions and route of travel. HPD Officer T. Stearns, who was on patrol, heard Sergeant Vana's request for help in locating the suspects. A dispatcher relayed the description of the two suspects over the radio. Officer Stearns spoke with Sergeant Vana in person and learned the location of the suspects. He saw two people walking across a grassy area and followed them from behind, undetected. They attempted to turn away from the road when they saw patrol cars coming from the opposite direction. As they approached a gate, they turned, and Officer Stearns ordered them to "freeze." He arrested appellant and Nogess and transported them back to the HPD storefront at the apartment complex. Sergeant Vana called the Homicide Division. Analysis
Article 14.04 of the Texas Code of Criminal Procedure provides, "Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused." Tex. Code Crim. Proc. Ann. art. 14.04 (Vernon 2005). To lawfully arrest someone under this article, "there must be some evidence amounting to satisfactory proof, either related by a credible person to an officer or observed by the officer him/herself, indicating that a felony has been committed, that the person arrested is the offender, and that the person was about to escape so that there was no time to procure a warrant." Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000); Kelley v. State, 676 S.W.2d 646, 650 (Tex. App.-Houston [1st Dist.] 1984, pet. ref'd). "Satisfactory proof" is the legal equivalent of constitutional probable cause. Hughes, 24 S.W.3d at 838. Whether probable cause exists at the time of the arrest or search can only be decided in terms of the concrete factual situation presented by the case. Lerma v. State, 491 S.W.2d 152, 154 (Tex. Crim. App. 1973); Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972). Probable cause requires that the officer have a reasonable belief, based on facts and circumstances within his personal knowledge, or of which the officer has reasonably trustworthy information, that an offense has been committed by the person searched or arrested. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Probable cause requires more evidence than mere suspicion but far less than that needed to support a conviction or even to support a finding by a preponderance of the evidence. Guzman, 955 S.W.2d at 87; Hughes, 24 S.W.3d at 838. The test of probable cause for a warrantless arrest made by an officer on the strength of a request by other law enforcement authorities is the information known to the requesting authorities. Farmah v. State, 883 S.W.2d 674, 683 (Tex. Crim. App. 1994). A "credible person" for purposes of this article includes ordinary citizens relating information of which they have direct knowledge. Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App. 1982); Salazar v. State, 688 S.W.2d 660, 663 (Tex. App.-Amarillo 1985, no pet.). Information from a credible person that is placed into a police broadcast after a report of a crime by a victim or witness is inherently reliable and therefore satisfactory proof that a felony has been committed. Carter v. State, 713 S.W.2d 442, 447 (Tex. App.-Fort Worth 1986, pet. ref'd). Police broadcasts that are based on probable cause and that report a felony and a description of the perpetrator satisfy the requirements for a warrantless arrest. Farmah, 883 S.W.2d at 683; Law v. State, 574 S.W.2d 82, 84 (Tex. Crim. App. 1978); Goldberg v. State, 95 S.W.3d 345, 362 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). The place where a suspect is found and the direction in which he was traveling, taken in combination with strongly founded previous suspicion, can also lead to probable cause to arrest and search him. Woodward v. State, 668 S.W.2d 337, 344-45 (Tex. Crim App. 1982), cert. denied, 469 U.S. 1181 (1985). When there has been some cooperation between law enforcement agencies or officers, the sum of the information known to the cooperating agencies or officers at the time of a search or arrest by any of the officers involved is considered in determining whether there was probable cause for the search or arrest. Woodward, 668 S.W.2d at 344; see also Tarpley v. State, 565 S.W.2d 525, 529-30 (Tex. Crim. App. 1978). In support of its argument that article 14.04 allowed appellant's warrantless arrest, the State contends that police officers had credible reports that appellant and Nogess were seen committing the felony of "attempted tampering with evidence." A person commits this offense if "knowing an investigation or official proceeding is pending or in progress, he . . . alters, destroys, or conceals any record, document, or thing with intent to impair its . . . availability as evidence in the . . . official proceeding," or if he, "knowing that an offense has been committed, alters, destroys, or conceals any . . . thing with intent to impair its . . . availability as evidence in any subsequent investigation of or official proceeding related to the offense." Tex. Penal Code Ann. § 37.09 (Vernon Supp. 2008). An investigation is "pending" within the meaning of the statute if a person knows the an investigation is "impending or about to take place." Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd); see also Williams v. State, 270 S.W.3d 140, 143-45 (Tex. Crim. App. 2008); Barrow v. State, 241 S.W.3d 919, 923 (Tex. App.-Eastland 2007, pet. ref'd). A person commits a criminal attempt "if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Penal Code Ann. § 15.01 (Vernon 2003). Here, the State admits that there was nothing in the area in which appellant was looking that constituted evidence of the offense with which appellant could have tampered. Therefore, appellant could only have committed the offense of attempted tampering with evidence by searching among the bushes and cars in the apartment complex parking lot. Based on the facts of the case, I would hold that there was satisfactory proof to support the warrantless arrest of appellant based upon the representations of credible witnesses that appellant and Nogess, who met the description of the persons involved in the robbery and killing of the complainant at the apartment complex the night before, had knowledge of the crime, knew that the gun used in the crimes had been lost, and had returned to the scene, where they looked for the gun in the bushes and among the cars to conceal or destroy it, knowing that an investigation of the robbery and murder was pending. There was also satisfactory proof that when appellant and Nogess saw that they had been spotted by Canales and Lucio while attempting to commit the additional crime of tampering with the evidence, they attempted to escape by abandoning their car and leaving the parking lot at the complex on foot. However, they were tracked from the scene by Canales and their route was described to Sergeant Vana in the HPD storefront at the apartment complex by Lucio and Canales. Sergeant Vana, who knew about the crime, the loss of the gun, and the description of the suspects in the robbery and murder, got in her car on the basis of this additional credible information and joined the search, spotting appellant and Nogess when they were pointed out to her by Canales. She conveyed the information she knew and was continuing to receive to Officer Stearns, who followed appellant and Nogess from behind and saw them turn and attempt to leave the road when the police cars approached them. Officer Stearns stopped appellant and Nogess, arrested them, and conveyed them back to Sergeant Vana at the police storefront at the apartment complex. I would hold on the basis of the foregoing evidence that there was satisfactory proof upon the representation of credible persons that a felony had been committed by appellant and Nogess, that the offenders were about to escape, and there was no time for the police to get a warrant without losing them. See Tex. Code Crim. Proc. Ann. art. 14.04 (authorizing warrantless arrest "upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant"). Accordingly, I would hold that a warrantless arrest was justified under article 14.04 of the Criminal Code. I concur in the majority's holding that the trial court did not err in denying appellant's motion to suppress his videotaped statement as the product of an illegal, warrantless arrest, and I concur in the judgment.