Opinion
No. 05-09-00989-CR
Opinion Filed February 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F08-59180-KI.
Before Justices RICHTER, FRANCIS, and MYERS.
OPINION
Kendall Traymane Spencer appeals his conviction for the murder of Robert Estis. After finding appellant guilty and finding he used a deadly weapon during the commission of the offense, the jury assessed punishment at life in prison and a $10,000 fine. In three issues, appellant claims the evidence is insufficient to support his conviction and the trial court erred in admitting certain evidence. We affirm. Estis was shot and killed around noon on August 12, 2008. Detective John Palmer investigated the murder. After interviewing numerous witnesses, Palmer called appellant and told him he would like to talk to him about Estis's murder. Appellant agreed to meet Palmer at his attorney's office. In the meantime, Palmer discovered appellant had several outstanding warrants issued by the Dallas Sheriff's Department. Appellant met Palmer at his attorney's office around 6:30 p.m. on August 12 and was detained on the warrants. After consulting with his attorney, appellant spoke with the officers and gave them written consent to search his car. Palmer drove appellant to the police station where the detective discovered the Sheriff's Department warrants were "no good." Appellant was arrested for Estis's murder. Before trial, he filed a motion to suppress the evidence found as a result of the search of his car. Appellant argued his arrest at his attorney's office was illegal because the warrants were "no good" and any evidence discovered as a result of that arrest was "fruit of the poisonous tree." The trial court denied his motion to suppress, and appellant was convicted. In his first two issues, appellant challenges the legal and factual sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (West 2003). Teniqua Williams worked with Estis at Big Mama's Chicken and Waffles on Forest Lane at Audelia Road. Estis did not have a cell phone so he occasionally used Williams's cell phone. Appellant, known to Williams as "Shorty," called Williams's phone when he wanted to speak with Estis. Between 12:30 and 1:00 p.m. on the day of Estis's murder, Williams was sitting outside Big Mama's. Estis came up to her and said, "I'm tired of living like this. I try to stay out of these niggas' way, but they keep messing with me." He took his shirt off, got some food, and left. A little while later, someone in a red Charger drove by. and the person in the front passenger seat stuck his head out the window, waved a gun, and asked for Estis. The driver turned left at the intersection onto Forest Lane. Several minutes later, Williams heard about four or five gunshots. At 1:53 that afternoon, Shorty called Williams and told her Estis "ain't here no more. He could have been working. He could have been at the mall. He could have been at the movies, but he chose to fuck with a nigga like me, so he ain't here no more. . . . he ain't breathing." Williams located and identified her cell phone number from the call detail report for appellant's cell phone. The record showed a phone call was made on appellant's phone to Williams's phone at 1:53 p.m. on August 12. Frederick Natt grew up with Estis and thought of him like a brother. Natt also knew appellant who he called "Shorty." On August 12, 2008, appellant called Natt and threatened him, saying "You were running with your brother. You know your brother is saying this and that, so I'm going to fuck both of y'all up. You know y'all are going to be dead. Decide however y'all want to do it." Appellant ultimately told Natt everything between them was okay but that Estis would be dead in ten to fifteen minutes. Natt's sister later called and told Natt Estis was dead. Kecia Blissett, Estis's girlfriend, told the jury Estis said he was going to next door to the Snug Harbor Apartments to find appellant because appellant drove by Big Mama's, pointed a gun out the car window, and asked for Estis. Blissett waited a little while then followed him and, as she approached Snug Harbor, people told her that her boyfriend had been shot. She ran to the street in front of Snug Harbor and found Estis lying face down. He had been shot. Jesus Orozco was leaving his apartment to run an errand when he saw two black men arguing. One man was not wearing a shirt; the other was saying, "Come on, bitch," and motioning to the shirtless man to come towards him. Orozco could tell the man had something under his shirt but could not see what it was. When he returned to the apartments a few minutes later, he found out his son had been shot by a stray bullet and the shirtless man had been killed. Angela Safimalli was talking with a friend in the Snug Harbor parking lot when they noticed a maroon Chrysler 300 with tinted windows. Safimalli noticed a shirtless man holding his hands in front of him, facing the car. She heard shots, saw a little smoke, and saw the man fall to the ground. The gunfire came from the passenger side of the maroon car. The car exited the parking lot and drove off. Steve White was driving on Forest Lane to work when he saw a man with no shirt walking backwards in a parking lot. He was waving his arms like he was arguing with someone. White slowed down thinking the man might step into the street. He heard gunshots and saw the man fall to the ground. A red Chrysler 300 pulled around the man's body and onto the street behind White's car. White slowed down and got the license plate number before the car turned south on Audelia Road. He then called 911, reported the shooting, and gave the license plate number of the car. He identified the license number he gave to police as the same number listed as registered to appellant on the vehicle registration report. Detective Jerry Fonville took photographs of the crime scene. The following day, he processed appellant's car using gunshot residue kits on the front passenger seat and dashboard area. Vicky Hall, a trace evidence examiner at the Southwestern Institute of Forensic Sciences, tested the residue kits. She found gunshot residue particles on the dashboard, seat, seatbelt, window post, and front head liner on the front passenger seat of appellant's car. Detective Palmer investigated Estis's murder. Eyewitnesses identified the car leaving the scene, and one witness provided the license plate number which Palmer matched to appellant's car. He called appellant who agreed to meet with police at his attorney's office. After Palmer read appellant his Miranda warnings, appellant signed a consent form allowing police to search his Chrysler 300 and spoke with the officers. Appellant admitted driving down Forest Lane and seeing Estis that day. He claimed Estis walked into the parking lot of the Forest Hills apartment complex and threw his hands up. Appellant thought Estis was going to cross the street towards him but then he turned and walked away. According to appellant, he got in the car and drove off. Someone called him three to seven minutes later and told him Estis was dead. Appellant denied shooting Estis, having a firearm, or being near the Snug Harbor Apartments. The following day, appellant again spoke with the officers. Appellant admitted being at the Snug Harbor Apartments and claimed he went there to sell some marijuana. He later admitted he was in the passenger's seat of his car and his girlfriend was driving. After they left the parking lot, he saw two girls and heard one girl say somebody had been shot. He denied having anything to do with Estis's murder, seeing Estis fall, or driving around his body. He also denied having a gun or hearing any shots. In sum, the evidence shows appellant owned a red Chrysler 300. On August 12, his girlfriend was driving his car while he was riding in the front passenger seat. They drove by Big Mama's where Estis worked. Appellant leaned out the window, waved a gun, and asked where Estis was. Estis knew appellant was looking for him and went to find him at Snug Harbor. Estis, who was not wearing a shirt, was standing in front of appellant's car with his hands in front of him when he was shot. According to witnesses and the gunshot residue tests, the gunshots came from the front passenger seat of the red Chrysler 300. After Estis fell to the ground, appellant's car was driven around Estis's body, into Forest Lane, and then south on Audelia Road. Considering this evidence, the jury could reasonably infer appellant intentionally or knowingly shot Estis, causing his death. After reviewing the entire record, we conclude the evidence is legally sufficient to support appellant's conviction for murder. We overrule appellant's first and second issues. In his third issue, appellant claims the trial court abused its discretion by denying his motion to suppress. Appellant contends his arrest was illegal and the trial court should not have allowed his oral statements or any evidence found during the search of his car. At the hearing on the motion to suppress, appellant specifically argued the only issue before the court was the admissibility of the evidence recovered from appellant's vehicle, and that the statements did not "matter." Thus, we address only the admissibility of any evidence obtained from the search of appellant's car. See Castillo v. State, 79 S.W.3d 817, 827-28 (Tex. App.-Dallas 2002, pet. ref'd) (defendant may not raise complaint on appeal when defendant failed to bring complaint to trial court's attention during trial). We review a trial court's ruling on a motion to suppress for an abuse of discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). We uphold a trial court's decision to admit evidence as long as the result is not outside the zone of reasonable disagreement. Id. The "fruit of the poisonous tree" doctrine generally precludes the use of evidence, both direct and indirect, obtained following an illegal arrest. See Monge v. State, 315 S.W.3d 35, 40 (Tex. Crim. App. 2010) (citing Wong Sun v. United States, 371 U.S. 471, 484 (1963)). Evidence sufficiently attenuated from the unlawful arrest is not considered to have been tainted. Id. The State has the burden of proving attenuation. Id. In deciding whether the evidence from appellant's car, which was obtained after appellant consented to the search of his car, was sufficiently attenuated as to permit its use at trial, we consider (1) whether Miranda warnings were given;
(2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and
(4) the purpose and flagrancy of the official misconduct. Id. (citing Brown v. Illinois, 422 U.S. 590, 603-4 (1975)). At the hearing on the motion to suppress, Detective Palmer stated he had information from the beginning of the investigation that appellant might be involved Estis's death. Palmer contacted him and told him they needed to talk about the case. He also told appellant he had not yet decided whether to arrest appellant. They arranged to meet at appellant's attorney's office.On the day of the meeting, appellant drove to his attorney's office where he was met by Palmer and two other police officers. They escorted appellant into the office where he spoke with his attorney outside the officers' presence. Palmer then informed appellant he was investigating Estis's murder and, in the course of doing so, discovered appellant had outstanding warrants. During the hearing, Palmer said appellant was legally detained and not free to leave at that time. Palmer read appellant his Miranda rights. Appellant indicated he understood those rights and was waiving them. Palmer said he took a voluntary statement and asked appellant to consent to a search of his vehicle. He read the consent form to appellant and asked him to agree to the search. Appellant did so and signed the form, as did appellant's attorney. Palmer drove appellant to the homicide office where he then learned the outstanding warrants "were no good." He prepared a probable cause affidavit and an arrest warrant. According to Palmer, at the time they arrived at the homicide office, appellant was detained for murder and Palmer made the decision he would be charged with murder that night. Appellant complained that, because the Dallas Sheriff Department warrants were not valid, his arrest at his attorney's office was illegal and the consent to search his car as well as the evidence found as a result of the search should have been excluded. After examining the record and considering the four factors set out in Brown and followed in Monge, we disagree. Appellant voluntarily agreed to meet Palmer at his attorney's office. He spoke with his attorney outside the presence of the officers. When he did speak with the officers, his attorney was present. Palmer read appellant his Miranda rights. After stating he understood those rights and was waiving them, appellant consented to the search of his car. Although detained at the time he gave the consent, he had the opportunity to first consult with his attorney. In fact, both appellant and his attorney signed the consent form. Finally, Palmer did not know at the time he detained appellant that the sheriff's department warrants were no good; thus, his actions were neither flagrant or abusive examples of official misconduct. Weighing all four factors together, we conclude the consent to search was attenuated from appellant's detention or arrest on the sheriff's department warrants. We overrule appellant's third issue. We affirm the trial court's judgment.