Opinion
No. 05-04-01471-CR
Opinion issued January 17, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-49710-KW. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
OPINION
A jury convicted Bobby Dean Johnson of robbery. Now on appeal, he contends the trial court erred by failing to suppress evidence of the clothing he was wearing at the time of his arrest. Concluding appellant's complaint is without merit, we affirm the trial court's judgment.
Factual Background
The complainant in this case is the co-owner of a donut shop. A white man and a black man robbed her at the donut shop while her husband was out delivering donuts. The complainant explained that the black man held her in a choke hold during the robbery. He also pulled her hair, shoved her, and punched her. A videotape of the robbery was admitted into evidence. On the black-and-white videotape, a white man in a distinctive Texas Longhorns coat and a black man in a dark coat commit the robbery together. The black man restrains the complainant while the white man attempts to open the store's cash registers. Eventually, the two men leave with the tip box and some change. The videotape contains images of both men's faces, but the white man is much more visible than the black man. The black man refers to the white man as "David," and, during the moments just preceding the robbery, the white man also tells the complainant that is his name. The white man appears to refer to the black man as "B.D." From this videotape, the complainant identified appellant at trial as the black man who participated in the robbery. She was not able to identify appellant apart from the videotape. She had, however, previously picked out appellant's photograph from a photographic lineup as one of two photographs in the lineup that "resembled" the black man who had robbed her. The complainant's husband viewed the videotape just after the robbery. That same day, while he was at a nearby location, he saw two men walking together who looked like the robbers shown on the videotape. He called police and waited for officers to arrive. As he waited, the white man entered a convenience store and the black man stayed outside. Eventually, an officer arrived at the scene to arrest the men without a warrant. The officer had also previously viewed the videotape. Despite this fact, the officer walked right by appellant as he attempted to locate the complainant's husband in the convenience store. The complainant's husband had to point out appellant for the officer. The officer arrested appellant and the white man. The white man was wearing the distinctive Texas Longhorns coat, which was admitted into evidence. Appellant was wearing a black coat, which was admitted into evidence along with the brown sweater he was also wearing.Discussion
In his sole issue on appeal, appellant contends the trial court abused its discretion in denying his motion to suppress the evidence of the clothing he was wearing at the time of his arrest. He specifically complains his arrest was illegal under code of criminal procedure article 14.04 for two reasons: (1) the complainant's husband was not a "credible person" under article 14.04 because he had not personally witnessed the robbery; and (2) there was no evidence presented that appellant and his companion were "about to escape." Article 14.04 provides, "Where it is shown by satisfactory proof to a peace officer, upon 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 a warrant, pursue and arrest the accused." Tex. Code Crim. Proc. Ann. art. 14.04 (Vernon 2005). When appellant first urged his motion to suppress at trial, he did so in these terms:Your Honor, my understanding is that the husband of the complaining witness based his identification at this other location on viewing the videotape, and my argument is that his pointing out the defendant and codefendant based upon what he saw in the videotape, not what he saw in person, since the husband was not present at the time of the robbery, is not sufficient, not a sufficient basis for law enforcement to then base a detention and subsequent arrest of [appellant]. And that's what I think then would be an illegal arrest, which would then taint the seizure of [appellant's] clothes.I think that when the Court — and if the Court needs to carry this along on into the trial, I certainly would understand. But I think after the court looks at the [videotape] and the lack of quality in the videotape, then the Court can appreciate the reasonable inability of the husband to look at the videotape and then later on accurately identify whom he saw on the videotape to the police officer. So based on that is why I think the subsequent arrest should be held to be illegal. Appellant's arguments contain no reference to article 14.04 of the code of criminal procedure. Moreover, neither his written motion to suppress nor his later references to the motion to suppress mention article 14.04. It is clear appellant never objected to the trial court that the State failed to prove appellant and his cohort were about to escape. Because appellant failed to object on this basis at trial, he cannot now raise the complaint on appeal. See Tex.R.App.P. 33.1(a). To the extent appellant's arguments at trial can be construed, in the interest of justice, as a complaint that the complainant's husband could not be a "credible person" under article 14.04 because he had no personal knowledge of the robbery, we conclude appellant was not harmed by the trial court's admission of appellant's clothing into evidence. See Tex.R.App.P. 44.2(b). The jury in appellant's case was able to compare the videotaped image of the black robber against appellant's appearance at trial and other photographs of him admitted into evidence. Although the videotape's coverage of the black robber is brief, it sufficiently shows the facial features and build of the robber. The black robber was referred to as "B.D." Appellant's name is Bobby Dean Johnson. Moreover, just after the robbery, he was seen with a white man wearing a distinctive Texas Longhorns jacket. The jury was able to compare this jacket, admitted into evidence, with the jacket on the videotape. The complainant's husband identified appellant and the white man who was arrested as the men who robbed his wife. Finally, the complainant picked out appellant's photograph as one of two photographs that "resembled" the black man who robbed her. The jury's best tool for determining whether appellant robbed the complainant was the videotape that specifically showed the robbers. Appellant's clothing at the time of his arrest could only be compared against the video, just as his appearance could. Based on the facts of appellant's case, we conclude any error in the trial court's admitting appellant's coat into evidence did not affect his substantial rights. See id. We resolve appellant's sole issue against him. We affirm the trial court's judgment.