Victor L. Anderson v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00198-CR
___________________________
VICTOR L. ANDERSON, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 4
Tarrant County, Texas
Trial Court No. 1512410D
Before Pittman, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
A jury convicted Victor L. Anderson of three counts of robbery and sentenced
him to twenty years’ confinement on each count. Anderson raises three points of
error complaining that the evidence is insufficient to support his conviction, that the
trial court erroneously denied his motion to suppress evidence, and that the State
failed to prove beyond a reasonable doubt that he had committed the extraneous
offense or bad act offered against him during the punishment phase of trial. We
affirm the trial court’s judgment.
II. BACKGROUND
A. Robbery
Aaron Garcia was a manager and shift leader at Taco Cabana restaurant
number 336 located on South Hulen Street in Fort Worth, Tarrant County, Texas,
and brothers Lacamery and Lamarcus Deckard were restaurant employees.1 Garcia
drove Lacamery and Lamarcus to work on the morning of August 20, 2017, and they
arrived at the restaurant at 5:00 a.m. They prepared food and readied the restaurant
before it opened at 6:00 a.m. Each of the three employees was responsible for the
restaurant’s cash. Garcia unlocked the restaurant doors at 6:00 a.m.
1
For clarity, we refer to the brothers by their first names.
2
At 6:05 a.m., a black man entered the restaurant carrying what appeared to be
an M16 gun wrapped in a towel or a shirt. His face was covered with a black shirt,
and only his eyes and forehead were visible. The man was wearing a shirt, a bluish
hoodie sweatshirt or jacket, and gray sweatpants that were a bit short and had stripes
down the sides. The man was possibly wearing jeans under them.
The man approached Lamarcus, who was signing in at the front register. The
man shouted and instructed the employees to unlock the registers. The till from the
first register was already on the counter, and the man took the $135 cash that was in
it. The second register drawer had no till, and the man instructed the employees to go
to the safe in the office at the back of the restaurant.
Garcia complied with the man’s instructions to unlock the safe and handed him
the four or five tills that were inside it. The safe was required to have $1,500, and
each till typically contained $300 to $500. All of the tills that the man took contained
cash, and one of the tills contained a debit card that managers were permitted to use
for items such as out-of-stock products. After instructing the employees to get on the
ground, the man left through the back door.
During the robbery, Lamarcus felt threatened, was afraid for his life, and
wondered whether he would get out alive. Lacamery believed the man had a gun,
feared for his and his younger brother’s safety, and was afraid that the man might
come back. Garcia was afraid of being hurt and was concerned for his employees’
safety.
3
Garcia called 911, and the recording of that call was admitted in evidence
without objection. Garcia, Lamarcus, and Lacamery were unable to successfully
identify the robber from a photo lineup. Security camera recordings of the robbery
and crime scene photos were introduced in evidence at trial without objection.
B. Police Pursuit and Arrest
On the morning of August 20, 2017, Fort Worth Police Officer Richard
Stutheit completed desk duty downtown at 5:45 a.m. and returned his patrol car to the
west division. At the west division, Stutheit, who was still in his uniform equipped
with a body camera, parked his patrol car and began loading personal items into his
personal vehicle before driving downtown again to his part-time job where he
provided security services for a church. Over his radio, Stutheit heard a call regarding
a black male with his face partially covered who had robbed the Taco Cabana on
South Hulen Street and was driving a black SUV or pickup truck. Although he was
off-duty, Stutheit testified that he always had a duty to act as a police officer, even if
he was out of uniform or not in a patrol car. Stutheit did not initially respond to the
call because two on-duty officers who were closer to the restaurant were already
responding.
While driving to the church at about 6:15 a.m., Stutheit observed a dark gray
Chevy pickup truck stopped at least one and one-half car lengths behind the stop line
at a red light located two miles from the Taco Cabana restaurant. When Stutheit
looked to see whether the driver might be using a cell phone, he saw that the driver
4
was a black male wearing a white T-shirt and was leaning over and handling
something in the passenger seat.
Recalling the initial robbery call, Stutheit requested additional information from
the dispatcher about the robbery suspect and his vehicle, followed the truck onto
Interstate 20 eastbound, and obtained the truck’s license plate number. Using a law-
enforcement approved pacing method, Stutheit, who was driving 80 miles per hour to
keep up with the vehicle, estimated that the truck was traveling over 80 miles per hour
in a 65 mile per hour speed zone. Stutheit observed the driver driving recklessly as he
made several lane changes without signaling, drove the truck into a lane occupied by
another vehicle, jerked and crossed the truck back into the shoulder lane momentarily,
and came within a few feet of hitting a wall.
Because Stutheit had observed these traffic violations and the truck was now in
the south sector of Fort Worth, Stutheit contacted the south division to send units to
assist in making a traffic stop.2 As he followed the truck, Stutheit continued to
observe the driver committing traffic violations including driving over 80 miles per
hour, changing lanes without signaling, and cutting across a lane of traffic to exit the
highway ahead of another vehicle. When the truck stopped at a light, Stutheit stayed
back because his vehicle’s windows were not tinted, and the driver of the truck would
have been able to see Stutheit’s uniform. When the light turned green, the driver
2
Stutheit testified that it is against “Fort Worth policy” for an officer to initiate
a traffic stop in a personal vehicle.
5
waited until the light turned yellow before driving the truck through the intersection.
After making several turns, the driver turned the truck abruptly into a gas station
parking lot but did not park the truck next to a gas pump. Stutheit activated his body
camera as he parked directly behind the truck, which had pulled up next to an
unknown man in a green shirt. As Stutheit was exiting his vehicle, the driver in the
truck was handing paper currency toward the man in the green shirt, but no money
was transferred.
To permit marked units to arrive and take over the investigation of the traffic
violations and the driver’s possible ties to the robbery, Stutheit approached the driver
and told him to turn off the vehicle. In court, Stutheit identified Anderson as the
driver of the truck that he had followed for five to ten minutes. When Anderson
exited the vehicle, Stutheit saw paper currency in the truck’s front seats.
The photographic and body camera evidence from the gas station encounter
showed Anderson wearing a white T-shirt and gray sweatpants with striping down the
sides. At the scene, Stutheit received still photographs from the restaurant security
cameras that showed a black male wearing a gray sweatshirt, a white undershirt, gray
sweatpants with a distinctive set of white stripes down the sides, and dark-colored
shoes.
Marked police cars and on-duty officers arrived within three minutes.
Anderson verbally consented to a search of the truck, but after seeing the cash in
plain sight in the front seat of the truck, the officers decided to obtain a search
6
warrant. Anderson was initially arrested on two outstanding traffic warrants, and the
police obtained a search warrant for the Chevy Silverado truck. During a search of
the truck on August 21, 2017, Officer Jessica Wright found a Taco Cabana 336 Visa
purchasing card, a T-shirt with a tire iron in it, a hooded sweater with a diamond-
shaped emblem on the front, Anderson’s Enterprise rental car agreement for the
Silverado truck, four tills, and cash and rolled coins totaling more than $1,300 that
were found near the driver’s and front-passenger’s seats of the truck. Wright testified
that the tire iron in the T-shirt looked like a gun. One latent fingerprint of
comparative value was found on one of the tills, but it did not match Anderson.
Wright acknowledged that this is not uncommon: because a till is used by many
people, it can be difficult to obtain fingerprints from it. The trial court admitted in
evidence without objection Stutheit’s body camera video recording, a map, photos of
the truck, Anderson’s clothing, loose paper currency, coins, and a purchase card
found inside the truck.
Detective Harold Cussnick investigates robberies for the Fort Worth Police
Department. Photographs of Anderson that were taken during his police interview
shortly after his initial arrest show him wearing a white T-shirt and sweatpants with
stripes down the sides, and Cussnick noted that Anderson’s blue jeans could be seen
under his sweatpants. The white T-shirt and sweatpants that Anderson was wearing
that day were admitted in evidence. Anderson was subsequently arrested for the Taco
Cabana robbery.
7
C. Anderson’s Testimony
Anderson testified that around 4:30 a.m. on August 20, 2017, he left the
company of a paramour in Crowley. He was wearing blue jeans and a T-shirt, and as
he was driving, he saw someone driving his truck that had been stolen a week earlier.
Anderson turned to follow his truck but gave up his search after thirty to forty
minutes. He drove into a parking lot and saw several men in an SUV parked near a
dumpster. When a constable drove near the men, the men fled, and Anderson saw
one of them drop something. After the men were gone, Anderson drove over to the
dumpster and found a bag with coins and paper money and trays, along with some
shirts, socks, and sweatpants. Anderson put on the socks and pulled the sweatpants
over his jeans and jumped into the dumpster to retrieve more paper money from the
dumpster. He placed the money on the front seat of the truck and placed the bag
filled with money into his truck. The bag with money broke after he placed it in his
truck.
After he left, Anderson noticed that someone was following him in a car, and
he became concerned that the men he had seen earlier had changed to a different
vehicle. Anderson panicked because the car changed lanes when he changed lanes.
Because the truck needed gas, Anderson eventually pulled into the gas station to buy
fuel and to find out who was following him. As he parked, Anderson saw a homeless
person and was going to give him some money. Anderson then saw a police officer
8
get out of the car. The jury rejected Anderson’s explanation and convicted him of
robbery by threat as charged in counts three, four, and five of the indictment.
D. Punishment
Jack in the Box restaurant manager Troylicia Riser testified during the
punishment phase of trial. At about 4:00 a.m. on August 20, 2017, Riser and two
coworkers, Alexis and Kelly, were working when a dark blue or gray truck quickly
approached the restaurant. Riser, who was standing outside, tried to quickly reenter
the restaurant, but before she reached the door, a man exited the truck and pointed
what she believed was a gun wrapped inside a shirt toward her back. Riser was scared
and thought she was in danger. Riser used the headset she was wearing to warn her
coworkers that they were being robbed.
The man pushed Riser behind the counter, told her to open the cash register,
and reached in to remove the till that had $150 in it. Riser ran to the back of the
store, and as the man followed her, he caught Alexis, pushed her on the ground, and
kicked her. When Riser attempted to help Alexis by pushing the man, the man
pushed Riser against the ice machine and told her to open the safe. Riser told the
man that she did not know the code for opening the safe, and Alexis tripped the man,
who then dropped the money. The man picked up the money, and as he left, Riser
ran after him and recorded him with her phone as he got into his truck and drove
away. Afterward, Riser identified someone other than Anderson in a photo lineup.
9
The trial court admitted in evidence without objection a Jack in the Box
surveillance camera recording along with still images from that video. Riser identified
the images from the recording as accurately depicting the robbery. The video and
images that were admitted in evidence and published to the jury show that the man
who robbed the Jack in the Box restaurant was wearing sweatpants with stripes down
the sides, a white shirt covered by a hooded shirt with a diamond-shaped emblem,
and a black garment around his face.
Anderson also testified during punishment. He noted that no witness had
identified him as the robber. Although Anderson agreed that the person in the Jack in
the Box photo was wearing a sweater with a diamond logo and that a sweater with a
diamond logo was found in his truck, Anderson denied that he was the person in the
photograph. The jury assessed punishment for each count of robbery at twenty years’
confinement, and the trial court sentenced Anderson in conformity with the jury’s
assessment.
III. DISCUSSION
A. Sufficiency of the Evidence
We first address Anderson’s second point of error in which he contends the
evidence is not sufficient to support his conviction. Jenkins v. State, 493 S.W.3d 583,
599 (Tex. Crim. App. 2016); Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App.
2004). Anderson specifically complains that none of the Taco Cabana robbery
victims identified him as the person who robbed them. See Johnson v. State, 673 S.W.2d
10
190, 196 (Tex. Crim. App. 1984) (noting that State must prove that the party charged
was the person who committed the offense or was a participant in its commission).
1. Standard of Review
Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-
sufficiency review, we view all the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
This standard gives full play to the factfinder’s responsibility to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman, 520 S.W.3d at 622. The factfinder alone judges the evidence’s weight and
credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622.
Thus, when performing an evidentiary-sufficiency review, we may not re-evaluate the
evidence’s weight and credibility and substitute our judgment for the factfinder’s.
Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences
are reasonable based on the evidence’s cumulative force when viewed in the light
most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court
11
conducting a sufficiency review must not engage in a ‘divide and conquer’ strategy but
must consider the cumulative force of all the evidence.”). We must presume that the
factfinder resolved any conflicting inferences in favor of the verdict, and we must
defer to that resolution. Murray, 457 S.W.3d at 448–49.
To determine whether the State has met its Jackson burden to prove a
defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as
defined by the hypothetically correct jury charge to the evidence adduced at trial. See
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Crabtree v. State,
389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are
determined by state law.”). Such a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The “law as
authorized by the indictment” means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging instrument.
See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the
State pleads a specific element of a penal offense that has statutory alternatives for
that element, the sufficiency of the evidence will be measured by the element that was
actually pleaded, and not any alternative statutory elements.”). The standard of review
is the same for direct and circumstantial evidence cases; circumstantial evidence is as
probative as direct evidence in establishing guilt. Jenkins, 493 S.W.3d at 599.
12
2. Analysis
a. Robbery Elements and Hypothetically Correct Jury Charge
To prove robbery by threat, the State must prove that the accused, in the
course of committing theft and with intent to obtain or maintain control of the
property, intentionally or knowingly threatened or placed another in fear of imminent
bodily injury or death. Tex. Penal Code Ann. § 29.02. The offense of theft occurs
when a person unlawfully appropriates property with the intent to deprive the owner
of the property.3 See id. § 31.03(a).
Intent to deprive is determined from the accused’s words and acts. Griffin v.
State, 614 S.W.2d 155, 159 (Tex. Crim. App. [Panel Op.] 1981). Evidence that an
accused exercised control over property without consent of the owner, intending to
deprive him of it, is always sufficient to prove theft. Chavez v. State, 843 S.W.2d 586,
588 (Tex. Crim. App. 1992). Consequently, if an accused is found in possession of
recently stolen property and at the time of his arrest fails to make a reasonable
explanation showing honest acquisition of the property, the jury may draw an
inference of guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983); see
3
The term “[a]ppropriate” includes both acquiring and otherwise exercising
control over the property. Tex. Penal Code Ann. § 31.01(4)(B). Appropriation is
unlawful when: (1) it is without the owner’s effective consent; or (2) the property is
stolen and the defendant appropriates the property knowing it was stolen by another.
Id. § 31.03(b). “Deprive” means to dispose of property in a manner that makes
recovery of the property by the owner unlikely. Id. § 31.01(2)(C). An “[o]wner” is a
person who has title to property, possession of the property, whether lawful or not, or
a greater right to possession of the property than the defendant. Id. § 1.07(a)(35)(A).
13
Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977) (holding that if accused
offers explanation at time of arrest regarding possession of recently stolen property,
record must show that explanation is either false or unreasonable before evidence
supporting the conviction will be deemed sufficient; whether the accused’s
explanation for possessing stolen property is false or unreasonable is a question for
factfinder); see also Chudleigh v. State, 540 S.W.2d 314, 317 (Tex. Crim. App. 1976)
(holding that knowledge that property was stolen can be established by circumstantial
evidence).
Counts three through five of the indictment4 allege that Anderson, “in the
County of Tarrant and State [of Texas] on or about the 20th day of August, 2017, did
intentionally or knowingly, while in the course of committing theft of property and
with intent to obtain or maintain control of said property, threaten or place”
Lamarcus,5 Garcia,6 or Lacamery7 “in fear of imminent bodily injury or death.”
Therefore, the State was required to prove: (1) that Anderson committed theft of
property with the intent to obtain or maintain control of that property; and (2) that in
4
At the commencement of trial, the State waived counts one and two of the
indictment.
5
Lamarcus Deckard is identified as the alleged victim in Count Three of the
indictment.
6
Aaron Garcia is identified as the alleged victim in Count Four of the
indictment.
7
Lacamery Deckard is identified as the alleged victim in Count Five of the
indictment.
14
the course of this theft, Anderson intentionally or knowingly threatened Lamarcus,
Garcia, or Lacamery or placed each victim in fear of imminent bodily injury or death.
See Jenkins, 493 S.W.3d at 599; Anderson v. State, 461 S.W.3d 674, 679 (Tex. App.—
Texarkana 2015, pet. ref’d).
b. Identity
In asserting his sufficiency challenge, Anderson does not dispute that he was
found in possession of the money, clothing, tire iron, tills, and purchasing card located
in his car. Rather, he complains that the evidence is insufficient to establish his
identity as the Taco Cabana robber. Because Anderson testified that others had
robbed the Taco Cabana and that he came upon the clothes and money that had been
abandoned after the robbery, he contends the jury’s finding that he was the robber is
irrational.
The lack of eyewitness identification is not dispositive of the identity element.
Identity may be proven by circumstantial or direct evidence. Earls v. State, 707 S.W.2d
82, 85 (Tex. Crim. App. 1986); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.––
Houston [14th Dist.] 2001, pet. ref’d). “[I]dentity may be proven by inferences.”
Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.––Austin 2000, pet. ref’d); see also
Smith, 56 S.W.3d at 744 (“Identity may be proved through direct or circumstantial
evidence, and through inferences.”). When identity is at issue, we must consider the
combined and cumulative force of all the evidence. See Merritt v. State, 368 S.W.3d
15
516, 526 (Tex. Crim. App. 2012). We do not employ a “divide-and-conquer”
approach to reviewing the evidence. Id.
The evidence implicating Anderson was, by and large, circumstantial. In a
circumstantial evidence case, it is not necessary that every fact point directly to the
accused’s guilt. Livingston v. State, 739 S.W.2d 311, 329–30 (Tex. Crim. App. 1987); see
Temple v. State, 390 S.W.3d 341, 360–63 (Tex. Crim. App. 2013) (holding that
circumstantial evidence allowed jury reasonably to infer guilt). The fact that a witness
cannot positively identify a suspect is an issue to be weighed by the jury. Livingston,
739 S.W.2d at 329–30; see Valenciano v. State, 511 S.W.2d 297, 299 (Tex. Crim. App.
1974) (stating lack of positive identification is jury issue). When the State relies on
circumstantial evidence, identification of the defendant is sufficient when, considered
in relation to all the testimony and evidence, the conclusion is warranted by the
combined and cumulative force of all the circumstances. See Temple, 390 S.W.3d at
360–63; Livingston, 739 S.W.2d at 330. A clothing description combined with other
evidence regarding the circumstances of an offense has been held to be sufficient in a
circumstantial-evidence case. Livingston, 739 S.W.2d at 330.
In this case, although no witness correctly identified Anderson in a photo
lineup, the witnesses generally described the robber and his clothing and the vehicle
he was driving. The depictions of the robber in the Taco Cabana security camera
images comport with the witnesses’ descriptions of the robber and his clothing.
Within an hour of the robbery, Stutheit observed a truck that matched the description
16
of the vehicle the robber used and observed its driver committing various traffic
violations. After the truck stopped at the gas station, police found Anderson driving
the truck, which matched the one described by the robbery victims, and found that
Anderson was in possession of cash, coins, tills, a Taco Cabana 336 purchase card,
and a tire iron wrapped in a shirt, while also wearing and possessing the clothing
described by the witnesses and as shown in the Taco Cabana surveillance video.
As noted, the jury is permitted to draw an inference of guilt if the defendant is
found in possession of recently stolen property and at the time of arrest fails to make
a reasonable explanation showing his honest acquisition of the property. Hardesty,
656 S.W.2d at 76; Adams, 552 S.W.2d at 815. Here, the jury was free to disbelieve
Anderson’s testimony suggesting that he found the cash, coins, till, and purchase card,
his explanation that he innocently gained possession of the stolen items, and his
assertion that someone else committed the aggravated robbery at the Taco Cabana.
See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (providing that
factfinder is entitled to judge credibility of witnesses and can believe all, some, or
none of testimony presented).
The combined and cumulative force of all the evidence was sufficient to permit
a rational factfinder to find all the essential elements of robbery by threat beyond a
reasonable doubt. Because this evidence is sufficient to support the jury’s resolution
of conflicting inferences and its finding that Anderson is the person who robbed the
17
victims, we defer to that resolution. Because the evidence is sufficient to support
Anderson’s robbery convictions, we overrule Anderson’s second point of error.
B. Unlawful Detention
Prior to trial, Anderson filed a motion to suppress the evidence obtained from
his truck on the basis that the evidence was improperly seized and was obtained as a
result of an illegal stop, detention, arrest, and search in violation of his First and
Fourth Amendment rights. The trial court did not hear Anderson’s motion to
suppress before trial commenced. After voir dire, defense counsel urged the trial
court to rule on the suppression motion, and the trial court noted that it had stated on
the preceding day that “it would be done during the trial.” Defense counsel urged the
trial court to consider the motion to suppress before the State put on evidence that
could damage Anderson’s defense. When the State offered and the trial court
admitted in evidence the tire tool, T-shirt, sweater with diamond emblem, Taco
Cabana purchase card, truck rental receipt, and tills, defense counsel stated, “No
objection subject to our pretrial motion.” After the State closed its evidence and
defense counsel had re-urged the motion to suppress, the trial court overruled the
motion. In his second point of error, Anderson complains that Stutheit unlawfully
stopped him miles away from the alleged traffic offenses in violation of his Fourth
Amendment rights, and that the trial court should have suppressed the evidence
flowing from the stop.
18
1. Standard of review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial
court’s decision, we do not engage in our own factual review. Romero v. State,
800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex.
App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of
the witnesses’ credibility and the weight to be given their testimony. Wiede v. State,
214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Therefore, we defer almost totally to
the trial court’s rulings on (1) questions of historical fact, even if the trial court
determined those facts on a basis other than evaluating credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on evaluating credibility and
demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09
(Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the witnesses’
credibility and demeanor, we review the trial court’s rulings on those questions
de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim.
App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a suppression
motion, we must view the evidence in the light most favorable to the ruling. Wiede,
214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When
19
the record is silent on the reasons for the trial court’s ruling, or when there are no
explicit fact findings and neither party timely requested findings and conclusions from
the trial court, as here, we imply the necessary fact findings that would support the
trial court’s ruling if the evidence, viewed in the light most favorable to the trial
court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s
legal ruling de novo unless the implied fact findings supported by the record are also
dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.
In determining whether a trial court’s decision is supported by the record, we
generally consider only evidence adduced at the suppression hearing because the
ruling was based on it rather than on evidence introduced later. See Gutierrez v. State,
221 S.W.3d 680, 687 (Tex. Crim. App. 2007); Rachal v. State, 917 S.W.2d 799, 809
(Tex. Crim. App. 1996). But this general rule does not apply when the parties
consensually relitigated the suppression issue during trial on the merits. Gutierrez,
221 S.W.3d at 687; Rachal, 917 S.W.2d at 809. If the State raised the issue at trial
either without objection or with the defense’s subsequent participation in the inquiry,
the defendant is deemed to have elected to re-open the evidence, and we may
consider the relevant trial testimony in our review. Rachal, 917 S.W.2d at 809. In this
case, because the suppression motion was only litigated during the trial on the merits,
the relevant trial evidence is the only evidence available for our consideration in
reviewing the trial court’s ruling on the motion. Cf. Gutierrez, 221 S.W.3d at 687
20
(explaining that review of suppression evidence is not limited to pre-trial evidence
when suppression motion is relitigated during trial).
2. Warrantless Stop
The Fourth Amendment protects against unreasonable searches and seizures
by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. A
defendant seeking to suppress evidence on Fourth Amendment grounds bears the
initial burden to produce some evidence that the government conducted a warrantless
search or seizure that he has standing to contest. State v. Martinez, 569 S.W.3d 621,
623–24 (Tex. Crim. App. 2019) (quoting Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim.
App. 1986), disavowed in part on other grounds by Handy v. State, 189 S.W.3d 296, 298–99
n.2 (Tex. Crim. App. 2006)); see, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104–05,
100 S. Ct. 2556, 2561 (1980). Once the defendant does so, the burden shifts to the
State to prove either that the search or seizure was conducted pursuant to a warrant
or, if warrantless, was otherwise reasonable. Martinez, 569 S.W.3d at 623–24 (quoting
Russell, 717 S.W.2d at 9); Amador, 221 S.W.3d at 672–73. If the State produces
evidence of a warrant, the burden of proof shifts back to the defendant to show the
warrant’s invalidity. Martinez, 569 S.W.3d at 624 (quoting Russell, 717 S.W.2d at 9–10).
A detention, as opposed to an arrest, may be justified on less than probable
cause if a person is reasonably suspected of criminal activity based on specific,
articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v.
State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful
21
temporary detention when he reasonably suspects that an individual is violating the
law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the
totality of the circumstances, the officer has specific, articulable facts that, when
combined with rational inferences from those facts, would lead him to reasonably
conclude that a particular person is, has been, or soon will be engaged in criminal
activity. Ford, 158 S.W.3d at 492. This is an objective standard that disregards the
detaining officer’s subjective intent and looks solely to whether the officer has an
objective basis for the stop. Id. The facts adduced to give rise to a reasonable
suspicion need not show that a person has committed, is committing, or is about to
commit a particular and distinctively identifiable penal offense. Derichsweiler v. State,
348 S.W.3d 906, 916–17 (Tex. Crim. App. 2011).
An officer has probable cause to stop and arrest a driver if he sees the driver
commit a traffic offense. State v. Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App.
2005) (recognizing that section 543.001 of the Texas Transportation Code provides
that any peace officer may arrest without warrant a person found committing a
violation of the “Rules of the Road” under title 7, subtitle C); see State v. Ballman,
157 S.W.3d 65, 70 (Tex. App.—Fort Worth 2004, pet. ref’d); see also Tex. Code Crim.
Proc. Ann. art. 14.01(b) (“A peace officer may arrest an offender without a warrant
for any offense committed in his presence or within his view.”). The record
establishes that Stutheit observed Anderson drive at a speed in excess of the posted
22
speed limit, make multiple lane changes without using a turn signal, drive recklessly by
driving into an occupied lane, jerk back into his lane, almost hit a wall, cut across
multiple lanes before exiting the highway directly in front of another vehicle, and
remain stopped at a green light before proceeding through an intersection during a
yellow light. See Tex. Transp. Code Ann. §§ 545.104 (“An operator shall use the
signal . . . to indicate an intention to turn, change lanes, or start from a parked
position.”), 545.401 (“A person commits an offense [of reckless driving] if the person
drives a vehicle in wilful or wanton disregard for the safety of persons or property.”);
Dogay v. State, 101 S.W.3d 614, 618 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
(officers who observed defendant speed and change lanes without using proper turn
signals had probable cause to stop and arrest defendant); cf. Wehring v. State,
276 S.W.3d 666, 671 (Tex. App.—Texarkana 2008, no pet.) (holding that by failing to
signal intent to turn and then turning in the presence of a peace officer, defendant
committed traffic violation that reasonably permitted defendant’s detention and did
not require suppression of evidence gathered after lawful traffic stop). Given his
observations of Anderson’s traffic offenses, Stutheit, as a peace officer, was permitted
to detain Anderson.
3. Delay in Effecting Stop and Stutheit’s Off-Duty Status
Relying on State v. Dixon, 151 S.W.3d 271 (Tex. App.—Texarkana 2004), aff’d,
206 S.W.3d 587 (Tex. Crim. App. 2006), Anderson contends that Stutheit’s failure to
stop him immediately after observing his traffic violations rendered his later detention
23
unreasonable. In Dixon, the court of appeals focused on the trial court’s finding that
the 3.2-mile delay between the officer’s observation of an unsignaled turn and the
traffic stop was unreasonable. Id. at 274–75. However, the court of appeals
emphasized that the trial court made a finding that nothing had prevented the officer
from conducting the stop sooner and clarified that it was not holding that a 3.2-mile
delay would be unreasonable in every case. Id. at 275. The Court of Criminal Appeals
granted the State’s petition for discretionary review but held that the dispositive issue
in Dixon was not the delay between the purported traffic offense and the officer’s
traffic stop but was instead the trial court’s determination that no traffic offense was
in fact committed. See Dixon, 206 S.W.3d at 590–91. Anderson also suggests that
Stutheit executed a stop in violation of department policy. We disagree with each of
these contentions.
First, a police officer’s discharge of police authority in the presence of criminal
activity is not limited by the officer’s off-duty status. Morris v. State, 523 S.W.2d 417,
418 (Tex. Crim. App. 1975) (citing Wood v. State, 486 S.W.2d 771 (Tex. Crim. App.
1972)). Consequently, while Stutheit was off-duty, he was not restricted from seeking
to have Anderson stopped for traffic violations while he abided by police-department
policy that barred him from making the stop in his personal vehicle.
Stutheit’s delay in stopping Anderson arose directly from the fact that he was
off-duty and driving his personal vehicle as he followed Anderson, and pursuant to
police-department policy, Stutheit was unable to stop Anderson for the violations he
24
observed. During this delay, Stutheit called police dispatch to request that an on-duty
officer in a patrol unit effectuate a stop for the continuing traffic violations that
Stutheit was observing. There is no evidence in the record that Stutheit ever signaled
to Anderson that he should stop. Stutheit followed Anderson for five to ten minutes
and stopped when Anderson stopped, soon after Stutheit had observed Anderson
recklessly exit the highway while driving in excess of 80 miles per hour and remain
stopped at a green light before proceeding through an intersection on a yellow light.
Stutheit’s body camera shows that officers in a marked vehicle arrived at the gas
station within three minutes after Anderson and Stutheit had stopped.
The trial court, which did not enter findings of fact or conclusions of law,
could have reasonably inferred from the evidence that the police stop was fully
effectuated within minutes by on-duty officers and was lawful. The evidence showed
that Stutheit’s detention of Anderson was reasonable based on Anderson’s erratic
driving and traffic violations and the fact that Anderson was driving a truck that
matched the description of the robbery suspect’s truck. The lawful stop and
reasonable detention of Anderson did not bar the admission of evidence that
Anderson sought to suppress.
Viewed in the light most favorable to the trial court’s ruling, the evidence
supports the trial court’s implied findings, and the implied fact findings as supported
by the record are also dispositive of the trial court’s legal ruling. See Garcia-Cantu,
253 S.W.3d at 241; Kelly, 204 S.W.3d at 819. The trial court’s denial of Anderson’s
25
motion to suppress evidence was not error. We overrule Anderson’s second point of
error.
C. Punishment Evidence
In his third point of error, Anderson complains that the trial court erroneously
admitted evidence of an unadjudicated bad act during the punishment phase of trial
because the State failed to prove beyond a reasonable doubt that Anderson had
committed the bad act. The State contends that Anderson failed to preserve this issue
for our consideration and alternatively asserts that any error is not reversible.
We agree that Anderson failed to preserve this point of error for our
consideration. To preserve an error for this court’s review, a defendant must make a
timely and specific objection at the time the evidence is offered. See Tex. R. App. P.
33.1(a)(1). Anderson did not assert an objection in the trial court that comports with
the complaint he now raises on appeal. See Nelson v. State, 607 S.W.2d 554 (Tex. Crim.
App. [Panel Op.] 1980) (stating that point of error in brief must comport to objection
at trial). By failing to object to such evidence at the time it was offered, Anderson has
procedurally defaulted any error arising from the trial court’s consideration of the
prior bad act attributed to him.
Even if Anderson had preserved this point, he would not be entitled to relief.
During punishment, evidence may be offered as to any matter the court deems
relevant to sentencing, including any other evidence of an extraneous crime or bad act
that is shown beyond a reasonable doubt by evidence to have been committed by the
26
defendant or for which he could be held criminally responsible, regardless of whether
he has previously been charged with or finally convicted of the crime or act. Tex.
Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). However, the State need not prove all the
elements of an extraneous offense for the offense to be admissible. Haley v. State,
173 S.W.3d 510, 515 (Tex. Crim. App. 2005); Spence v. State, 795 S.W.2d 743, 759 (Tex.
Crim. App. 1990).
Before the jury can consider this type of evidence in assessing punishment, it
must be satisfied beyond a reasonable doubt that the bad acts are attributable to the
defendant. Haley, 173 S.W.3d at 515. The statute requires the burden of proof
beyond a reasonable doubt to be applied to a defendant’s involvement in the act itself,
instead of the elements of a crime necessary for a finding of guilt. Id. The State need
not prove every element of a criminal offense, and a finding of guilt is not required.
See Gomez v. State, 380 S.W.3d 830, 839 (Tex. App.––Houston [14th Dist.] 2012, pet.
ref’d).
Although Riser did not identify the person who robbed the Jack in the Box
restaurant where she worked on the morning of August 20, 2017, other evidence was
admitted without objection that shows a dark truck driving to the front of the
restaurant and a man with his face covered, wearing gray sweatpants with stripes
down the sides and a white shirt covered by a hooded sweatshirt bearing a diamond
logo entering the restaurant and holding something that looked like a gun wrapped in
a cloth against Riser’s back. The evidence is sufficient to establish beyond a
27
reasonable doubt that the bad act depicted by the evidence admitted during
punishment is attributable to Anderson. We overrule Anderson’s third point of error.
IV. CONCLUSION
Having overruled Anderson’s three points of error on appeal, we affirm the
trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: June 6, 2019
28