DeQuincy Smith v. State ( 1996 )

dqsmith TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-96-00120-CR



DeQuincy Smith, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 0960207, HONORABLE MIKE LYNCH, JUDGE PRESIDING

This is an appeal from a conviction for aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02 (West 1994). Appellant, DeQuincy Smith, was sentenced to twenty years' confinement in the Texas Department of Criminal Justice--Institutional Division. In two points of error, Smith complains that the trial court erred in denying his motion to suppress his written confession and certain other evidence because the police obtained the confession and the evidence pursuant to an illegal arrest. We will affirm.

BACKGROUND

On September 5, 1995, at approximately 9:00 p.m., the Austin Police Department responded to a report of a large group of males fighting in a convenience store parking lot at 7309 Cameron Road. Officer Dunn and other officers arrived within minutes. The store's clerk informed Dunn that Smith was involved in the fight and that the store's security camera recorded the fight, including Smith. After learning this information, Dunn, who knew Smith and knew he lived in an apartment complex within 100 yards of the store, went to the complex to locate Smith and investigate further.

When Dunn arrived at the complex, he saw Smith's brother, Clarence, in the parking lot near a telephone booth. Dunn approached Clarence and questioned him about the fight at the store. While they were talking, Smith emerged from between two buildings, approached them, and demanded to know why Dunn was speaking to his brother. Smith appeared agitated, aggressive, defensive, and intoxicated. Smith denied that he or his brother had been involved in the fight and asserted that they had been at the apartment complex all evening. His brother urged Smith, "No, just tell them. Just tell them." Smith replied, "No."

Officer Butler followed Dunn to the apartment complex after viewing the convenience store's surveillance video. Butler identified Smith as one of the persons on the videotape. Dunn handcuffed Smith, placed him in the police car, and drove him to the convenience store. When they arrived at the store, Dunn advised Smith of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). The store clerk identified Smith as a person involved in the fight.

After he was given his Miranda warnings, Smith stated that a Mexican man hit him first, so Smith hit him back. In response to this statement, Dunn inspected Smith's person for signs that he had been involved in an altercation. Dunn observed what appeared to be blood splattered on Smith's clothes and shoes. Dunn put Smith back in the police car and drove him to the police station. On the way, Smith voluntarily told Dunn that he "wasn't a punk" and that if someone "spurred" him, he would "spur them back."

Two days later, on the evening of September 7, 1995, while still in custody, Smith again was advised of his Miranda rights and gave a written statement to Officer Ralph Tijerina. Smith was indicted for engaging in organized crime and aggravated assault. See Tex. Penal Code Ann. § 22.02 & § 71.02 (West 1994 & Supp. 1997). On January 9, 1996, the trial court held a pretrial hearing on, among other things, Smith's motion to suppress the written statement that is the subject of this appeal. ⁽¹⁾ After hearing testimony, the trial court denied the motion to suppress, ⁽²⁾ but the confession was never admitted in evidence. While Smith's motion requested that the court suppress all evidence seized pursuant to his arrest, he did not specifically request suppression of testimony relating to Dunn's observation of blood on Smith's clothing and shoes. ⁽³⁾ Consequently, the trial court was not asked to and did not specifically rule on suppression of that evidence.

Smith entered into a plea bargain agreement with the State whereby he pleaded guilty to the offense of aggravated assault with a deadly weapon, and the State waived the organized crime charges and recommended a twenty-year sentence. Smith was convicted and sentenced to twenty years' confinement in the Texas Department of Criminal Justice--Institutional Division.

DISCUSSION

In two points of error, Smith complains that the trial court erred by failing to suppress his written confession and Dunn's testimony that he observed blood on Smith because the police obtained both pursuant to an illegal arrest.

Police officers must generally obtain an arrest warrant before taking a person into custody. Dejarnette v. State, 732 S.W.2d 346, 349 (Tex. Crim. App. 1987). Warrantless arrests are permitted, however, under certain circumstances. See Tex. Code Crim. Proc. Ann. arts. 14.01-.02, .04 (West 1977) & art. 14.03 (West Supp. 1997).

The State has the burden to prove it had probable cause to make a warrantless arrest and that the arrest met at least one of the exceptions to the warrant requirement. See Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); Wilson v. State, 621 S.W.2d 799, 804 (Tex. Crim. App. 1981). In Beck v. Ohio, 379 U.S. 89 (1964), the United States Supreme Court stated that the test for probable cause for an arrest without a warrant is, "[w]hether at that moment the facts and circumstances within [the officer's] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense." Id. at 91. The "totality of the circumstances" test is applicable in Texas for determining if officers had probable cause for a warrantless arrest. Amores, 816 S.W.2d at 413.

In Muniz v. State, 672 S.W.2d 804, 807 (Tex. Crim. App. 1984), the Texas Court of Criminal Appeals held that an officer had probable cause to make a warrantless arrest under the circumstances. Muniz and his companion matched a description given by a burglary victim and shortly thereafter were found walking three blocks from the crime scene. The two men emptied their pockets as the officer approached and gave the arresting officer inconsistent explanations for their behavior. Upon returning to the location where Muniz and his companion emptied their pockets, the officer found a screwdriver and two watches. Id.

We believe the facts of Smith's case, as those in Muniz, support a finding that there was probable cause to arrest Smith. Dunn was informed that an aggravated assault had just occurred. Smith had been identified as a perpetrator by both an eye witness and an officer who viewed a videotape of the fight. Dunn knew Smith lived nearby and he located Smith within 100 yards of the crime scene. Smith's attitude was immediately defensive and agitated. His brother Clarence tried to convince Smith to admit something to the officer when Smith denied involvement, but Smith refused. Under these facts and the totality of the circumstances, the trial court could find that Dunn had probable cause to believe Smith had just committed a crime and to arrest Smith without a warrant.

Smith's arrest also qualifies as a legal warrantless arrest under the suspicious places and circumstances exception of article 14.03(a)(1) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (West Supp. 1997). This exception authorizes the warrantless arrest of persons "found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony. . . ." Id. Circumstances which reasonably show that a particular person is guilty of a felony is the functional equivalent of probable cause to believe that a particular person committed a felony. Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986). Few, if any, places are suspicious in and of themselves; however, facts available to an officer, combined with reasonable inferences from those facts, may arouse justifiable suspicion. Id.

Smith's apartment complex parking lot was not a suspicious place in and of itself, yet the circumstances under which he was found there made it so. The store clerk and Officer Butler had identified Smith as committing the offense. The apartment complex was in close proximity to the crime scene, and both Smith and his brother were outside the apartment. Clarence was in the lot, and Smith quickly emerged from between two buildings when he saw Dunn talking to him. The brother's behavior indicated that he and Smith were withholding information, and Smith appeared defensive and belligerent when Dunn spoke to Clarence. Law enforcement did not contrive Smith's presence near the scene, nor was he in a place where he had an expectation of privacy. These facts and circumstances, coupled with reasonable inferences, made appellant's presence in the apartment parking lot suspicious for the purposes of article 14.03(a)(1). See id. at 419-21. Therefore, under the record, the trial court could determine that Smith's arrest was authorized under the suspicious place and circumstances exception in article 14.03(a)(1). Appellant has failed to demonstrate that the trial court erred or abused its discretion in overruling the motion to suppress Smith's written confession.

Smith contends that, because his confession and Dunn's observation of blood on his clothing were obtained pursuant to an unlawful arrest, the trial judge should have suppressed both. However, having determined that Officer Dunn had probable cause to make the arrest, and that the arrest fell under the suspicious place and circumstances exception to the warrant requirement, the evidence is not prohibited under article 38.23 of the Texas Code of Criminal Procedure. See Tex. Code. Crim. Proc. Ann. art. 38.23(a) (West Supp. 1997). In any event, the officer was free to testify to objective evidence he observed in plain view on appellant's clothes.

Furthermore, although Smith requested in his motion that the trial court suppress all evidence obtained pursuant to the allegedly illegal arrest, Smith did not specifically challenge Dunn's testimony that he observed blood on Smith's clothing and did not obtain a specific ruling from the trial court regarding the blood testimony. The trial court only ruled on specific oral and written statements challenged by Smith and did not rule on the motion in its entirety. Because Smith did not obtain a ruling on the blood testimony, he has not properly preserved the issue of its suppression for appeal. See Tex. R. App. P. 52(a). We overrule Smith's two points of error.

CONCLUSION

Having overruled appellant's points of error, we affirm the trial court's judgment.

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: December 5, 1996

Do Not Publish

1.   Smith also sought to suppress four oral statements. The trial court denied his motion to suppress the oral statements, but Smith does not complain of that ruling on appeal.

2.   Smith asserted that the written statement was obtained pursuant to an illegal arrest and was involuntary; however, Smith's counsel conceded at the hearing that the statement was voluntary.

3.   At the hearing, Smith only complained about the written and oral statements and did not raise the blood testimony evidence.

spicious places and under circumstances which reasonably show that such persons have been guilty of some felony. . . ." Id. Circumstances which reasonably show that a particular person is guilty of a felony is the functional equivalent of probable cause to believe that a particular person committed a felony. Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986). Few, if any, places are suspicious in and of themselves; however, facts available to an officer, combined with reasonable inferences from those facts, may arouse justifiable suspicion. Id.

Smith's apartment complex parking lot was not a suspicious place in and of itself, yet the circumstances under which he was found there made it so. The store clerk and Officer Butler had identified Smith as committing the offense. The apartment complex was in close proximity to the crime scene, and both Smith and his brother were outside the apartment. Clarence was in the lot, and Smith quickly emerged from between two buildings when he saw Dunn talking to him. The brother's behavior indicated that he and Smith were withholding information, and Smith appeared defensive and belligerent when Dunn spoke to Clarence. Law enforcement did not contrive Smith's presence near the scene, nor was he in a place where he had an expectation of privacy. These facts and circumstances, coupled with reasonable inferences, made appellant's presence in the apartment parking lot suspicious for the purposes of article 14.03(a)(1). See id. at 419-21. Therefore, under the record, the trial court could determine that Smith's arrest was authorized under the suspicious place and circumstances exception in article 14.03(a)(1). Appellant has failed to demonstrate that the trial court erred or abused its discretion in overruling the motion to suppress Smith's written confession.

Smith contends that, because his confession and Dunn's observation of blood on his clothing were obtained pursuant to an unlawful arrest, the trial judge should have suppressed both. However, having determined that Officer Dunn had probable cause to make the arrest, and that the arrest fell under the suspicious place and circumstances exception to the warrant requirement, the evidence is not prohibited under article 38.23 of the Texas Code of Criminal Procedure. See Tex. Code. Crim. Proc. Ann. art. 38.23(a) (West Supp. 1997). In any event, the officer was free to testify to objective evidence he observed in plain view on appellant's clothes.

Furthermore, although Smith requested in his motion that the trial court suppress all evidence obtained pursuant to the allegedly illegal arrest, Smith did not specifically challenge Dunn's testimony that he observed blood on Smith's clothing and did not obtain a specific ruling from the trial court regarding the blood testimony. The trial court only ruled on specific oral and written statements challenged by Smith and did not rule on the motion in its entirety. Because Smith did not obtain a ruling on the blood testimony, he has not properly preserved the issue of its suppression for appeal. See Tex. R. App. P. 52(a). We overrule Smith's two points of error.

CONCLUSION

Having overruled appellant's points of error, we affirm the trial court's judgment.

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: December 5, 1996

Do Not Publish

1.   Smith also sought to suppress four oral statements. The trial court denied his motion to suppress the oral statements, but Smith does not complain of that ruling on appeal.

2.   Smith asserted that the written statement was obtained pursuant to an illegal arrest and was involuntary; however, Smith's counsel conceded at the hearing that the statement was v