Opinion
No. 06-04-00096-CR
Submitted: April 21, 2005.
Decided: June 6, 2005. DO NOT PUBLISH.
On Appeal from the 336th Judicial District Court, Fannin County, Texas, Trial Court No. 21073.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Ronald Lynn Hodges appeals from his conviction by a jury for the offense of felon in possession of a firearm. Hodges pled true to two prior theft convictions, and the jury assessed his punishment at sixty years' imprisonment. Hodges contends on appeal the trial court erred by denying his pretrial motion to suppress evidence (a derringer) found by officers when they searched Hodges after his arrest. At a relatively brief hearing, one police officer, Terry Eddington, testified, and the court watched a videotape of the interaction between police officers and Lisa Tunston, Hodges' occasional girlfriend, and between the officers and Hodges. The evidence shows that Tunston called police complaining Hodges had broken the headlights on her car. When officers, including Eddington, arrived, it was apparent the headlights were undamaged and had merely been switched from automatic to manual operation. Tunston also complained, however, that Hodges had struck her and scratched her. After Tunston filled out a report, the officers went to Hodges' residence and directed him to step outside. When he complied, the officers arrested him. One officer asked Hodges if he had anything in his pockets that would stick or poke him, and Hodges told the officer he had a gun in his pocket. Eddington testified at the suppression hearing he had responded to several calls related to "squabbling" between Tunston and Hodges and had, on occasions, found them in the same bedroom, sleeping together. He did not testify he thought they lived together or had ever lived together. Eddington testified that, on the occasion in question, Tunston was distraught and that he saw scratches on her neck. He also testified Tunston told him, "somebody is going to get hurt bad." The videotape contains Tunston's statement to the officers that she and Hodges were dating. The trial court concluded that, because Tunston was still in the neighborhood at the time the officers went to Hodges' residence, and because Eddington knew Tunston and Hodges had gotten together repeatedly despite having had problems between them on numerous occasions, the officers had probable cause to believe there was danger of future bodily injury. Hodges contends the trial court erred in denying his motion to suppress because the officer lacked probable cause to believe there was a danger of further injury to Tunston. He further contends the incident was functionally equivalent to an unlawful arrest in Hodges' home, in violation of both the Texas Code of Criminal Procedure and the Fourth Amendment to the United States Constitution. The second series of contentions suggesting Hodges was unlawfully arrested in his home were never broached at the hearing before the trial court, and thus no ruling was ever obtained on the argument now brought before us. That contention has not been preserved for our review. See TEX. R. APP. P. 33.1. We turn to the initial contention, that the arrest was unlawful because the officers did not obtain an arrest warrant and because the information available to the officers was insufficient to allow them to formulate the probable cause necessary to justify a warrantless arrest. A trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's fact-findings are based on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We are also to afford such deference to a trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those questions turns on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856. We may review de novo those questions not turning on credibility and demeanor. Id. Where, as here, a trial court makes no explicit findings of historical fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact. Carmouche v. State, 10 S.W.3d 323, 327 — 28 (Tex.Crim.App. 2000); Carter v. State, 150 S.W.3d 230, 235 (Tex.App.-Texarkana 2004, no pet.). In Texas:
(a) Any peace officer may arrest, without warrant:
. . . .
(2) persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to another person and the peace officer has probable cause to believe that there is danger of further bodily injury to that person;. . . .TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(2) (Vernon 2005). In this case, the officers had probable cause to believe an assault had been committed. Eddington observed the injury on Tunston's neck where she said Hodges had scratched her. Eddington also knew Tunston and Hodges had a history indicating that, because of their inability to stay away from each other, further altercations between them were likely to occur. In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officer at the time of the arrest. Amores v. State, 816 S.W.2d 407, 415 (Tex.Crim.App. 1991). Whether probable cause exists is determined by considering the totality of the circumstances. Id. at 413. There was evidence before the trial court supporting its denial of the motion to suppress. Viewing that evidence in the light most favorable to the trial court's ruling, we cannot conclude the court abused its discretion by so holding. The contention of error is overruled. We affirm the judgment.