The subjective intent of either the police officer or the defendant is irrelevant. Vicioso v. State, 54 S.W.3d 104, 110 (Tex.App.-Waco 2001, pet. ref'd); see Medford, 13 S.W.3d at 773-74; cf.California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (show of authority should be determined objectively). Factors which Texas courts have considered are whether the officer actually undertakes an investigation, the accused is handcuffed, the accused is detained at gunpoint, the number of police far outnumbers the citizens, the use of threatening language, the transporting of the accused to another location, the blocking of the accused's vehicle, and the use of other physical force.
n 3(a)(1) requires that "bad acts" be proved beyond a reasonable doubt. TEX. CODE CRIM. PROC. ANN. art. 37.07 § (3)(a)(1); see Huizar v. State, 12 S.W.3d 479, 482-83 (Tex.Crim.App. 2000). In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Geesa, 820 S.W.2d at 159. Before the "bad acts" alleged by the State can be relied upon by the trier of fact in the punishment phase, the trier of fact must first have found the evidence sufficient to establish that these bad acts occurred beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.07 § (3)(a)(1). Whether an extraneous offense or bad act was established beyond a reasonable doubt is a question of fact for the jury, not a preliminary question of admissibility for the trial court. Vicioso v. State, 54 S.W.3d 104, 120 (Tex.App.-Waco 2001, pet. ref'd) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996)), cert. denied, 536 U.S. 915 (2001); see also Nanez v. State, 179 S.W.3d 149, 151-52 (Tex.App.-Amarillo 2005, no pet.). Here, Hughes complains of the sufficiency of the evidence to support the bad acts introduced by the State at trial pertaining to Hughes's possession and sale of what was purported to be methamphetamine. Over Hughes's objection, the trial court admitted evidence of these bad acts because it deemed them relevant to sentencing. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). Furthermore, much of the evidence of these offenses came from Hughes's own testimony. Hughes admitted that she sold "dope" to Poling and "a lot of people." She also admitted that the substance in the Burleson case was methamphetamine and that it was "something like 35 grams," which is "about an ounce and something." By virtue of Hughes's own testimony, the nature and quantity of the substances were not even contested issues du
Whether an extraneous offense or bad act was established beyond a reasonable doubt is a question of fact for the jury, not a preliminary question of admissibility for the trial court. Vicioso v. State, 54 S.W.3d 104, 120 (Tex.App.-Waco 2001, pet. ref'd) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996)), cert. denied, 536 U.S. 915 (2001); see also Nanez v. State, 179 S.W.3d 149, 151-52 (Tex.App.-Amarillo 2005, no pet.). Here, the trial court deemed the State's questioning to be relevant to sentencing.
The subjective intent of either the police officer or the defendant is irrelevant. Vicioso v. State, 54 S.W.3d 104, 110 (Tex. App.-Waco 2001, pet. ref'd), cert. denied, 536 U.S. 915 (2002); see Medford, 13 S.W.3d at 773; cf. California v. Hodari D., 499 U.S. 621, 628 (1991) (show of authority should be determined objectively). Factors which Texas courts have considered include whether the officer actually undertakes an investigation, the accused is handcuffed, the accused is detained at gunpoint, the number of police which far outnumber the citizens, the use of threatening language, the transporting of the accused to another location, the blocking of the accused's vehicle, and the use of other physical force.
Certiorari denied. Reported below: 54 S.W.3d 104. JUSTICE KENNEDY, with whom JUSTICE O'CONNOR joins, dissenting.
An extraneous bad act must be shown beyond a reasonable doubt to have been committed by the defendant; but whether an extraneous offense or bad act was established beyond a reasonable doubt is a question of fact for the trier of fact, not a preliminary question of admissibility for the trial court. Vicioso v. State, 54 S.W.3d 104, 120 (Tex. App.—Waco 2001, pet. ref'd) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996)), cert. denied, 536 U.S. 915 (2002). The trial court, as the trier of fact in a bench trial, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.
However, whether an extraneous offense or bad act was established beyond a reasonable doubt is a question of fact for the trier of fact, not a preliminary question of admissibility for the trial court. Vicioso v. State, 54 S.W.3d 104, 120 (Tex.App.-Waco 2001, pet. ref'd), citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996); see also Nanez v. State, 179 S.W.3d 149, 151-52 (Tex.App.-Amarillo 2005, no pet.). Therefore, Appellant's failure to obtain a ruling on his objection to the admission of the evidence does not preclude our review of this issue.
Here, Detective Weenig did not conduct her interview with appellant until approximately two days after his arrest. Contra id. (holding that confession obtained in close temporal proximity, within one and a half to three hours of defendant's arrest, weighed in favor of defendant); Vicioso v. State, 54 S.W.3d 104, 112 (Tex.App.-Waco 2001, pet. ref'd) (holding that three hours elapsing between arrest and defendant giving his written statement weighed in favor of defendant). There is no evidence in the record that there were any intervening circumstances.
Accordingly, we conduct a de novo review to resolve the legal issues presented. See Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Vicioso v. State, 54 S.W.3d 104, 109 (Tex.App.-Waco 2001, pet. ref'd). The State also offered an in-car video of the stop.
Moreover, the Court recently held that an "arrest" occurs "when a person's liberty of movement is successfully restricted or restrained, whether this is achieved by an officer's physical force or the suspect's submission to the officer's authority." Medford v. State, 13 S.W.3d 769, 773 (Tex.Crim.App. 2000); Vicioso v. State, 54 S.W.3d 104, 109-10 (Tex.App.-Waco 2001, pet. ref'd). An arrest is complete if "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest."