Harris, Howard Martin

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no:PD-I21I-IS ana Pn-lXM2-t5
COURT OF
IN THE
CRIMINAL APPEALS
ORIGINAL
OF TEXAS
RECEIVED IfM
HOWARD MARTIN HARRIS COURT OF CRIMINAL APPEALS
Petitioner
DEC 112015
v-
THE STATE OF TEXAS Abe! Acosta, Clerk
Respondent
Petition is in Appeal from Cause Numbers 12CR1863 and 14CR0154
in the 212th District Court of Galveston County/ Texas*
Honorable Bret Griffin, Judqe Presiding/ and Nos. 14-14-00391-CR
and 14-14-00392-CR in the Court of Appeals for the Fourteenth
District of Texas at Houston
FILED IN
COURT OF CRIMINAL APPEALS
CEC H2Q15
PETITION FOR DISCRETIONARY REVIEW
Abel Acosta, Clerk
Howard Martin Harris #1940422
Petitioner Pro se
Huntsville Walls Unit
815 12th Street
Huntsville, Texas 77348
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Table of Contents i
List of Parties 11
Table of Authorities iii
Statement Regarding Oral Argument iv
Statement of the Case • .. . iv
Statement of Procedural History 1
Grounds for Review
Part A. The Fourteenth Court of Appeals (COA) erred
when it found the trial court did not err in
denying Harris' motion to suppress . 1
Burden of proof 2
Conclusion 4
Part B. The COA failed to consider the totality of the
circumstances surrounding Harris' warrantless
arrest, resulting in a misapplication of law . . 1
Discussion 5
List of Facts 5,6,10,11
Arguments and Authorities 7
Summary of Argument 13
Prayer ,13
Certificate of Service . 14
Sworn Declaration 14
Appendix End
i
LIST OF PARTIES
Petitioner: Howard Martin Harris #1940422
Huntsville Unit
815 12th Street
Huntsville, Texas 77348
Petitioner's Trial Attorney: Stacy Valdez
711 W. Bay Area Blvd., Ste 600
Houston, Texas 77598
Petitioner's Appellate Attorney: Joel H. Bennett
1100 Nasa Parkway, Ste 302
Houston, Texas 77058
Presiding Judge, Trial: Honorable Bret Griffin
&
Presiding Judge, Suppression: Honorable David E. Garner
212 District Court Galveston
Justice Center 600 59th St.
Galveston, Texas 77551
Attorney for State, Trial: Candice Freeman
Paul Love
&
Attorney for State, Appeal: Rebecca Klaren
Galveston County Criminal
District Attorney's Office
600 59th Street, Ste. 1001
Galveston, Texas 77551
li
LIST OF AUTHORITIES
Mores v. State, 816 S.W.2d 407 (Tex. Crim. App. 1991) 3, 10
Caramouche v. State, 10 S.W.3d 323(Tex.Crim.App.2000) .... 10
Evitts v. Lucey, 105 S.-Ct. 830 (1985) 4
Ford v. State, 158 S.-W.3d 488 (Tex. Crim. App. 2005) 1
Gutierrez v. State, 221 S.W.3d 680(Tex.Crim.App.2007) .... 7
Hardinson v. State, 597 S.W.2d 355(Tex.Crim.App.1980) .... 12
Hicks v.Oklahoma, 100 S. Ct. 2227 (1980) 4
Honeycutt v. State, 499 S.W.2d 662(Tex.Crim.App.1973) .... 7
Jeffley v. State,38 S.W.3d'847(Tex.App.Houston[14 Dist.]2001) 3
Kennedy v. State, 338 S.W.3d (Tex.App.-Austin 2011) 5
Missouri v. McNeeley, 133 S. Ct. 1552 (2013) 12
Pennywell v. State, 125 S.W.3d 473(Tex.Crim.App.2003) .... 5
Pennywell v. State, 127 S.W.3d 149(Tex.App.Hou[14, Dist.]2001. 3
Polk v. State, 738 S.W.2d .274(Tex.Crim.App.1987) 4
Randolph v. State, 152 S.W.3d 764 (Tex. Crim. App. 2004) . . . .' 8,9
Smith v. State, 739 S.W.2d 848(Tex.Crim.App.1987) 7,8
Vitek V.Jones, 100 S. Ct. 1254 (1980) 4
Welsh v. Wisconsin, 104 S. Ct. 2091 (1984) 3,9
, CONSTITUTIONS, STATUTES, RULES
U.S. Constitution Amendment Four 8,9
U.S. Constitution Amendment Fourteen., 4
Tex.CodeCrim.Proc.art. 38.23(a) 3,4
Tex.CodeCrim.Proc.art. 14.03(a)(2) 7;8
Tex.RulesApp.Proc. 44.2(a) 5
Tex.RulesApp.Proc. 47.1 5
Tex.RulesApp.Proc. 66.3 1,2
in
REASONS SUPPORTING ORAL ARGUMENT
Petitioner lacks the acquired knowledge and experience
necessary to fully explain and convey the particulars of his
argument within the confines of the written Petition. There
are relevant points of fact and counter-point issues that need
to be argued and considered in order to determine the intent
and proper application of law. Petitioner asserts that there
is more at stake here than deciding whether or not to uphold
a lower courts decision. The relevant issue here is the interpre
tation of law vs. the intent of law, which is a crucial factor
and can only be adequately addressed through live oral arguments.
Petitioner request that oral argument be granted and that the
Honorable Court re-instate Petitioner's court appointed appellate
counsel, Joel H. Bennett, Sears & Bennett, LLP, Houston, Texas,
to represent the interest of Petitioner in oral arguments.
STATEMENT OF THE CASE
Petitioner was charged in two indictments with aggravated
sexual assault (with no enhancement) and aggravated kidnapping
with one enhancement. Petitioner initially pled not guilty to the
allegations and a trial by jury began on March 17, 2014. During
the presentation of evidence, Petitioner changed his plea from
"not guilty" to "guilty" and was sentenced pursuant to a plea
agreement. The trial court pronounced sentence at twenty (20)
years in the Institutional Division of Texas Department of Crimi
nal Justice and no fine in both cases,run concurrent in accordance
with the plea agreement. Judgment was entered March 19, 2014.
A motion for new trial was overruled on May 16, 2014. An appeal
was granted and is the subject of this PDR.
iv
PROCEDURAL HISTORY
Petitioner appealed to the 14th District Court of Appeals,
Cause Nos. 14-14-00391-CR and 14-14-00392-CR, raising the follow
ing issues on appeal:
"The Trial Court Erred In Denying Appellant's Motion To
Suppress His Statements. His statements was obtained after an
illegal warrantless arrest. The trial court erred in finding
there was probable cause of future bodily injury. Additionally,
the State wholly failed to show that getting a warrant was impra
cticable." The court of appeals affirmed the trial court's
decision on August 25, 2015. A motion for rehearing was filed
asserting: "The original opinion of the court of appeals omits
the key and undisputed fact which proves that the complaintant
was not in danger of further bodily injury at the time of the
warrantless arrest." The court of appeals denied the motion
for rehearing September 10, 2015. This PDR ensues.
GROUNDS FOR REVIEW
I. The Fourteenth Court of Appeals (COA) erred when it found the
trial court did not err in denying Harris's motion to supress.
A. The COA improperly shifted the burden of proof to Harris
to prove the validity of his warrantless arrest.
B. The COA failed to consider the totality of circumstances
surrounding Harris' warrantless arrest resulting in a
misapplication of law.
REASONS FOR REVIEW
1. The COA appears to have misconstrued Tex.CodeCrim.Pro.art -14.03
(a)(2), thereby deciding an important question of State and
Federal law which has not been, but should be, settled by the
Court of Criminal Appeals. T.R.A.P. 66.3(b).
2. The Decision in this case.conflicts with decisions rendered by
Court of Criminal Appeals and the Supreme Court of the United
States.. T.R.A.P. 66.3(c).
1
3. The decision below has declared that the warrantless arrest of
persons in the privacy of their homes is not a constitutional
issue to be decided. T.R.A.P. 66.3(d).
4. The decision in this case so far deviates from the fair admin
istration of justice, or has sanctioned such departure by
a lower court, that the Court of Criminal Appeals correction
is required. T.R.A.p. 66.3(f).
A. THE COA IMPROPERLY SHIFTED THE BURDEN OF PROOF TO HARRIS
TO PROVE THE VALIDITY OF HIS WARRENTLESS ARREST.
This ground is premised on the COA impermissibly shifting the
burden of proof upon Harris to prove his warrantless arrest in his
home violated his constitutional rights. The COA foreclosed the
important constitutional implications of Harris' illegal, warran
tless arrest in his home, articulating the following reasons:
"We do not address whether the arrest occurred in a
constitutionally protected area because appellant has
not argued, either in the trial court or this court,
that the arrest was illegal for that reason."
[Memorandum Opinion (mem op) pg 6 n-2]
Harris should not have been required to argue the facts here.
Facts are established, not argued. And under the facts of this
case, not in dispute, as articulated by the COA, Harris was
arrested without a warrant in his home:
"Keele' testified... He and [Cooley]. .. hand cuffed
appellant... in his home... had not obtained an.arrest
warrant prior to placing appellant under arrest."
[mem op pg 3]
Thus, the COA decision in this case conflicts with decisions
rendered post, by the Court of Criminal Appeals in Ford v State;
and the Supreme Court of the United States in Welsh v Wisconsin:
BURDEN OF PROOF
Ford v State, 158 S.W.3d 488, 492 (Tex-Crim.App. 2005)
"To suppress evidence on an alleged Fourth Amendment
violation, the defendant bears the initial burden of
proving evidence that rebuts the presumption of proper
police conduct. A defendant satisfies this burden by
establishing that a search or seizure occurred without a
warrant. Once the defendant has made this showing, the
burden of proof shifts.to the State where it is required
to establish that the search . or seizure was conducted
pursuant to a warrant or was reasonable." (emphasis added)
Welsh v Wisconsin, 104 S.Ct- 2091, 2098 (1984)
"When an officer undertakes to act as his own magistrate,
he ought to be in a position to justify it by pointing to
some real immediate and serious consequences if he post
poned action to get a warrant." Citing Mc. Donald v U.S.
551 (1948) (emphasis added)
Here, the State bore the burden of establishing the validity
and reasonableness of Harris' 4th Amendment encroachment. The
trial court was entrusted with the responsibility of finding facts
and making conclusions of law. This also entails establishing
facts "subject to a more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a particular search or seizure
in light of the particular circumstances." Ford,supra at 493 n.16.
The proper Standard of Review the COA should have applied was
the 'totality of the circumstances, known to the officer, at the
time of the arrest', test. See Amores v State, 816 S.W.2d 407,
413-415(Tex.Crim.App.1991)- Additionally, the COA decision is
inconsistent with other sister courts decisions on the same issue.
C.f. Pennywell v State, 127 S.W.3d 149 (Tex.App.-Houston[IstDist]
2001.)(When the pertinent facts are undisputed, appellate court
reviews the trial court's resolution of a motion to suppress
evidence de novo,[as a legal ruling]-)(emphasis supplied).
Harris filed a 4th Amend. Const, claim asserting that his
warrantless arrest was illegal, further he sought to suppress
evidence obtained as fruit of that illegal warrantless arrest
under Tex.CodeCrim.Proc.art. 38.23(a). See [mem op pg 5].
Harris has a due process protected liberty interest right in
C.C.P.art. 38.23, that no evidence seized in violation of Texas
law or the U.S. Constitution shall be admitted at a trial against
him. Rulings on a motion to suppress lies within the sound discr
etion of the trial court. However, because C.C.P.art. 38.23
requirements are mandatory, i.e., "[no] evidence... obtained
illegally [shall] be admitted-..," a judge has no discretion in
ruling on exclusion of that evidence- Jeffley v State, 38 S.W.3d
847, 858 (Tex.App.-Houston[14thDist] 2001, pet- ref'd); Polk
v State, 738 S.W.2d 274, 276 (Tex.Crim.App.1987).
The U.S. Supreme Court has repeatedly held that State statutes
may create liberty interest that are entitled to the procedural
protections of the Due Process Clause of the 14th Amend. Once a
State grants a right dependant on the observance of State laws or
the Constitution, due process protections attach to the decision
to follow that right of exclusion, to insure that the State-
created right is not arbitrarily abrogated. C.f. Vitek v Jones,
100 S-Ct- 1254, 1261 (1980): Hicks v Oklahoma, .100 S.Ct- 2227, 2229
(1980): Evitts v Lucey, 105 S. Ct. 830, 839 (1985).
CONCLUSION
The facts of Harris's arrest are undisputed, he was arrested,
in his home, without a warrant- Harris asserted a 4th Amend.
claim in the COA requesting the Court to reverse and remand his
plea agreement obtained through the erroneous denial of a motion
suppress the fruits of that arrest under mandatory state law
C.C.P.art. 38.23(a).
The State wholly, failed to shoulder it's burden to prove
Harris' arrest [was not in his home], or that ^exigent circumstances
existed to justify the warrantless arrest [in his home]. Therefore ,
under Pennywell v State, post, the COA was required to address
the issue of Harris1 warrantless arrest in the important 4th
Amendment Constitutional context which applies:
On Petition for Discretionary Review the Pennywell Court held:
"that the Court of Appeals was required to address issue
that defendant raised in his brief..- because this ground
was 'necessary to the final disposition of the appeal1 the
Court of Appeals was required to address it," (Citing Tex.
RulesApp.Proc- 47 .1 ). Pennywell v State, 125 S.W.3d 473 (T.C.A.2003)
Harris has yet to receive a full and fair hearing on his 4th
amend, suppression claim, which admitted illegally seized evidence.
This error contributed to the State's leverage in obtaining
his guilty plea and thus, his conviction. See Tex-RulesApp.Proc-
44.2(a): Kennedy vState, 338 S.W.3d 81, 102-03(Tex.App.Austin2011) .
B. THE COA FAILED TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING
HARRIS' WARRANTLESS ARREST, RESULTING IN A MISAPPLICATION OF LAW.
DISCUSSION
In part 'B' of this ground, Harris will show how the Court of
Appeals in reaching their decision afforded great weight to
certain isolated facts and, wholly ignored other relevant facts
that contravene the existence of probable cause. Harris will
further show how this procrustean method of review is a departure
from established procedure resulting in an erroneous decision,
even absent that found in part "A" above.
The COA opinion provides the necessary framework for detailed
discussion concerning the issue presented here. As in part "A"
the relevant facts aren't in dispute. With the exception of one
highly relevant fact, all facts necessary to the resolution of
this portion of Harris' argument shall cite to the facts, as
relied on, and recorded by the COA in it's Memorandum Opinion
affirming this case.
FACTS
The facts are separated into two different groups. The first
group are the facts relied on by the trial court and the COA in
5
reaching their respective decisions. The second group of facts
contravene those decisions. All facts are numbered for conveini^-
ence during further discussion and arguments.
*vThe trial court made findings of fact that the deputies were
concerned for further violence to the complainant due to:
1) the nature of the assault and the injuries she suffered;
2) appellant's alleged use of a weapon in the assault and to
threaten the complainant;
3) appellant's relationship with the complainant and his act
of following the complainant to her truck, which would
allow him to locate+he complainant in the future; and
4) defendant's departure from his apartment shortly after the
complainant fled, which supported a reasonable inference
that he was looking for the complainant."[mem op pg 7].
CONTRAVENING FACTS
5) Although, the complainant alleged, and appeared to have
been assaulted, she was within the immediate confines and
protections of the Dickinson Police Department.[mem op pg 2]
6) Detective Balchunas was in possession of facts which, he
believed, supported probable cause to arrest Harris. He was
inside the police station where a warrant could be secured
in a reasonably efficient manner and he instructed Cooley to
secure the scene while he decided whether to get a search
warrant. (Reporter's Record Vol. 3 pg 41).
7) Upon arriving at Harris' home, Cooley and Keele placed
Harris in cuffs, where Harris was completely compliant with
the officer's request to search for evidence of a crime.
[mem op pg 3].
8) At the conclusion of a fruitless search, even though Cooley
and Keel found not one scintilla of evidence to substantiate
the complainant's allegations, the officers remained in
Haris' home, [mem op pg 3]-
9) Clearly, at that point the facts established that the
complainant was safely located inside the Dickinson Police
Department, Harris was inside his home in handcuffs, Detec
tive Balchunas was at the ready, and able to present his
suspicions to a neutral magistrate, and Sergeant Cooley
chose to contact the Assistant District Attorney for some
guidance on how to proceed.[mem op pg 3].
10) Harris did not consent for officers to enter his home to
effectuate a warrantless arrest, and the officers hadn't
obtained an arrest warrant prior to arresting Harris.
[mem op pg 3] .
ARGUMENT AND AUTHORITIES
In a hearing on a motion to suppress the State relied on Texas
Code of Criminal Procedure art. 14.03(a)(2) for statutory author
ization to arrest Harris, inside his home, without warrant.
The statute provides that:
"Any peace officer may arrest without warrant persons
who the peace officer has probable cause to believe, have
committed an assault causing bodily injury, and the peace
officer has cause to believe there is a threat of further
bodily injury to the victim."
Harris does not challenge the statute nor question the sound
ness of excepting the warrant requirement when a situation arises
where there is a legitimate need to stop further bodily injury to
any victim. Never-the-less, the issueat bar is purely a question
of law concerning the legistative intent, and the legal or
practicable application of the meaning of "FURTHER" as it applies
to the Fourth Amendment reasonableness requirement.
In the hearing on the motion to suppress, the State, under
Texas law, was shouldered with the burden of proof on two specific
points; that the arrest was authorized under Texas statutory law,
and, that circumstances existed which made procuring a warrant
impracticable.
"If an officer arrest a suspect without a warrant, the
arrest must fall within an exception listed in Chapter 14
of the Texas Code of Criminal Procedure. These exceptions
are strictly construed." Honeycutt v State, 499 S.W.2d 662,
.665 (Tex.Crim.App.1973).
"The warrant requirement is not lightly set aside, and
the State shoulders the burden to prove that an exception
to the warrant applies." Gutierrez v State, 221 S.W.3d 680,
685 (Tex.Crim-App.2007).
"It is axiomatic in this State that warrantless arrest may
occur only in the most limited of circumstances, and the
power to make a warrantless arrest is governed by statutes
as well as case law on the subject--- Furthermore, it has
long been the law of this State, that in order for a warr
antless arrest to be justified, the State must show the
existence of circumstances which made the procuring of a
warrant impracticable." Smith v State, 739 S.W.2d 848, 851-
852 (Tex.Crim.App.1«|87)
The trial court made explicit findings of fact, which included
finding that, "At this hearing officers Cooley, Hunt and Keele
each testified that they believed that there was a.threat of
future harm to the complainant." [mem op pg 4]
Additionally, the trial court ruled that Harris' warrantless
arrest was legal and denied the motion to suppress articulating
the following reason:
"The thing that is persuasive to the court is;that there
was a threat. Your're going to end up in a ditch, words to
the effect [sic], if you go to the police or whatever- Well,
she's at the police... And I believe that the police could
and should take into consideration the future threat to the
victim." [mem op pg 4] (emphasis added).
Clearly, the trial court appears to have enacted and the COA
has sanctioned, a new, per se exception to the general warrant
requirement premised on a mere allegation of,"future danger to
the victim." However, Texas legislative intent in passing C.C.P.
art. 14.03(a)(2) remains sparse and there is no definition of
"further bodily injury". Therefore, it is left for the Court of
Criminal Appeals to interpret.
The COA uses an overbroad interpretation of facts which satisfy
the Fourth Amendment definition of exigent circumstances". And,
in so doing makes an erroneous conclusion of law. The COA in 41 '1,Ss
Memorandum Opinion affirming this case, states the following:
"Appellant contends that it is also settled law that a
warrantless arrest violates the Fourth Amendment when there
is no showing that seeking a warrant would have been impra
cticable. The risk of future harm to the victim, however,
is itself a circumstance that legitimizes an otherwise
illegal warrantless arrest. Randolph v State, 152 S.W.3d -
764, 771-73 (Tex.App.Dallas 2004 no pet.) (Concluding exig
ent circumstances include risk of danger to victim.)"
[mem op pg 6].
The circumstances surrounding the arrest in 'Randolph' are, -
factually and critically, distinguishable from the circumstances
which existed at' the time of arrest in the present case. The
C OvA takes the conclusion of Randolph out of context, and mis
applies it to Harris' case without giving consideration to the
unique circumstances surrounding his arrest.
When viewing 'Randolph' in context the COA misapplication of
law becomes apparent- See 'Randolph', Id at 771,
"Exigent circumstances embrace situations in which real,
immediate, and serious consequences will certainly occur if
a police officer postpones action to obtain a warrant.
Welsh, 466 U.S. at 751, 104 S. Ct. 2091- Exigent circumstan
ces affecting the validity of a•warrantless entry into a
residence resulting in an arrest include the following:(1)
a risk of danger to the police or victim,... Officer Quillin
had 'a need to act quickly' under the Facts presented in or-n
der to prevent appellant from engaging in further violent
attacks upon his pregnant wife."(Id at 773).
It is clear that the officer in 'Randolph' was faced with a
situation where, a real and immediate, danger of FURTHER bodily
injury to the victim existed. Thusly, the COA conclusion, that
the holding in •'Randolph' supports a finding that the risk of
"FUTURE" harm to the victim is, in itself, an impracticable
circumstance that legitimizes an other-wise illegal warrantless
arrest, is in error.
The COA applies the erroneous conclusion of law to the present
case in an effort to justify Harris' warrantless arrest under the
Fourth Amendment. Thusly, the COAs' determination that Harris'
arrest was legal under the Fourth Amendment is predicated on
a misapplication of law.
Because, the COA relied on their "Future harm" conclusion,
the Court did not deem it necessary to give consideration to the
relevant facts and circumstances, which, the record clearly
supports. This is an even further misapplication of law, regard-
less of whether the "Future harm" conclusion is found to be
correct or in error. To determine whether a particular warrantless
arrest is legal or not, the Court of Appeals must look to all the
facts known to the officer at the time of arrest, and apply the
totality of the circumstances test- Amores,, supra 413-15.
The simple fact that a statutory exception to the warrant
requirement exist, does not automatically mean that the exception
applies in every case. The statute does not overrule the Constit
utional requirements of the necessity of a warrant. It merely
defines a particular set of facts, that meet the requirement of
"impracticality" to obtain a warrant. In Caramouche v State,10 S.
W.3d 323(Tex.Crim.App.2000), this Court of Criminal Appeals
quoted the language of the United States Supreme Court,
"The essence of all that has been written is that the total
ity of the circumstances - the whole picture - must be
taken intoaccount." Id. at 328.
The trial court based it's determination on facts 1 thru 4,
founds in the list of facts located at the beginning of part "B"
of this ground. The record supports that the State established
these facts. However, in the process of establishing these facts,
the State established other clearly relevant facts. See facts
5 thru 10 in that same list. With the exception of fact #6 all the
facts are cited from the COAs' opinion, and are here cross-
referenced to the record from the suppression hearing.
#5. "Because Deputy Hunt and his partner could not be at the
police station with the complainant and at the crime scene,
"Sergeant •Cooleyv.went oto Harris' apartment."
(Reporter's Record Vol. 3 p. 35)
#6. (Reporter's Record Vol. 3 p. 41)
#7. (Reporter's Record Vol. 3 p. 42-43, 45)
#8. (Reporter's Record Vol. 3 p. 57-58)
#9. (Reporter's Record Vol. 3 p. 51)
10
#10. (Reporter's Record Vol. 3 p. 45, 5)
The only persons to testify in the suppression hearing were
Galveston County Sheriff's Deputies. All the facts were establisi-
hed, by the State, through the testimony of the officers. The
trial court made the following finding of fact:
"Testifying Deputies of the Galveston County Sheriff's
Department were credible." (Findings of Fact And Conclusion
of Law # 23)
Since, the officers themselves testified to these facts, we can
draw an undeniable conclusion that these facts were within the
collective knowledge of the officers at the time of arrest- And
under the law must be considered in a fact-intensive, totality of
the circumstances review.
The COA adopted the trial court's exclusionary method of review
of the facts. In it's Memorandum Opinion the Court of Appeals
provides its Analysis, [mem op pg 5-7]. At no point in its Analy
sis does the COA afford any weight or give consideration to the
contravening.; facts established by the officers. Facts clearly
within the officers' knowledge at the time of arrest. Therefore,
the only conclusion which can be drawn is, that the Court of
Appeals has failed to consider the totality of-frhe circumstances.
Failure to apply the totality of the circumstances test is a
departure from the established method of review required under
Texas law, and a misapplication of law. Any determination predi
cated upon this misapplication of law is in error.
In the hearing on the motion to suppress the State failed,
under the circumstances surrounding Harris' arrest to produce
sufficient facts conclusive to prove impracticality to obtain^a
warrant. The record of the hearing is completely void of any
testimony or other evidence specific to the issue of practicality
11
to obtain a warrant- The relevant facts show that opportunity
existed for the officers to seek a warrant without creating a
situation which would have placed the complainant at risk of
further assaults.
"A police officer should always obtain an arrest warrant
whenever possible." Hardison v State, 597 S.W.2d 355, 357-
(Tex.Crim.App.[Panel Op.] 1980).
Yet, the State does not establish any facts to show why one of
the officers located inside the police station with the complaint-
ant could have attempted to obtain a warrant.
Additionally the State does not produce any testimony or
other evidence concerning how long it would thave taken to obtain
an arrest warrant- The time necessary to obtain a warrant is a
relevant factor in the determination of the impracticality to do
so.
"Technological developments that enable police officers
to secure warrants more quickly, and do so without under
mining the neutral magistrate's essential role as a check
. p.;."• on police discretion, is relevant to the assessment of
exigency." Missouri v McNeely, 133 S. Ct. 1552, 1562-63(2013)
There are too many unknown fact to show it was impractical to
get a warrant.
However, the State succeeds in establishing sufficient contra
vening facts which mitigate the officers' probable cause to
believe a danger of further bodily injury to the complaint existed.
The officers testified that they were inside the police station
with the complainant, and that additional officers were dispatched
to Harris' residence. Where the officers secured the crime scene
and' placed Harris in cuffs. At the time of Harris' arrest, all
the officers knew beyond any doubt that the complainant was not
in danger of further assaults. With the officers possessing such
knowledge the warrantless arrest does not properly comply with
12
the statute, and is not justified by law.
SUMMARY OF ARGUMENT
The relevant facts established by the State are not in dispute-
In this case there is no fact which requires a credibility determ
ination- Nor, does the entire lack of evidence regarding the
practicality to a warrant require a credibility determination.
The State failed to produce sufficient facts to support a probable
cause finding that there was a danger of further bodily injury.
Additionally, The State wholly failed to produce any evidence on
why it was impracticable to obtain a warrant for Harris' arrest.
The 14th District Court of Appeals draws erroneous conclusion_of
law and applies it to the present case in an attempt to satisfy
the State's burden to prove the impracticality to obtain a warrant -
Independant of whether or not the Court of Appeals' conclusion_of
law was proper, the Court of Appeals fails to consider the total
ity of the circumstances in determining the legality of Harris'
warrantless arrest. Such is the departure of a warrantless arrest,
and is a misapplication of law. Any determination reached through
this misapplication of law is in error.
For the foregoing reasons the Fourteenth District Court of
Appeals' decision should be reviewed and reversed. Harris' state
ment, resulting from the illegal warrantless arrest, should be
suppressed and this case remanded back to the trial court for
further proceedings consistent with the findings of this court.
PRAYER
PETITIONER RESPECTFULLY PRAYS, that the Honorable Court of
Criminal Appeals, having found just cause, will grant this Petit
ion for Discretionary Review, and award Petitioner the relief
requested -
13
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument has been mailed by first class mail, postage prepaid
to the Attorney for the State, and the Galveston County District
Attorney on the date listed below-
H
Executed on this the 1 day of ^DeCCm heX >2015
H/rLi/ttAa /^/jL
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Petitioner pro se.
SWORN DECLARATION
I, Howard Harris, TDCJ No. 1940422, being presently incarcerated
in the Huntsville Walls Unit in Walker County County, Texas,
verify and declare under penalty of perjury that the foregoing
statements are true and correct.
-rk
Executed on this the 1 day o£ Decemb ,2015
jL fW^
Petitioner pro se
ASULud
Howard Harris TDGJ No- 1940422
Huntsville Walls Unit
815 ,12th Street
Huntsville, Texas 77348
14
APPENDIX
HOWARD MARTIN HARRIS
Petitioner
v-
THE STATE OF TEXAS
Respondent
Memorandum Opinion filed August 25, 2015
FROM THE
FOURTEENTH COURT OF APPEALS
Affirmed and Memorandum Opinion filed August 25,2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00391-CR
NO. 14-14-00392-CR
HOWARD MARTIN HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause Nos. 14CR0154 &12CR1863
MEMORANDUM OPINION
Appellant Howard Martin Harris appeals his convictions for aggravated
sexual assault and aggravated kidnapping, challenging the trial court's order
denying his motion to suppress a videotaped statement used by the State at his trial.
Appellant claims that the statement was obtained as a result of an illegal
warrantless arrest and thus should have been suppressed. See Reed v. State, 809
S.W.2d 940, 944 (Tex. App.—Dallas 1991, no pet.) (stating that the use of
evidence obtained through an illegal arrest is forbidden). We hold the trial court
did not err in denying the motion to suppress because the warrantless arrest of
appellant was not illegal given the officer's belief that an assault had occurred and
genuine concern for the complainant's safety. See McClatchy v. State, 758 S.W.2d
328, 330 (Tex. App.—Houston [14th Dist.] 1988, pet. ref d). We therefore affirm
the judgments of the trial court.
Background
According to testimony at the evidentiary hearing on appellant's motion to
suppress, the complainant went to clean appellant's home on the night of July 11,
2012. When the complainant arrived, appellant threw her on the bed and began
striking her repeatedly with his belt and fists. Appellant cut off* the complainant's
bra with a hunting knife. Appellant then pulled off the complainant's pants and
forced her to spread her legs. Appellant threatened her and stated that the police
would find her in a ditch if she did not comply. Appellant then penetrated the
complainant's vagina with his fingers, causing her extreme pain.
Eventually, appellant set the hunting knife down and the complainant picked
it up. Wielding the knife, the complainant successfully escaped the house and
made her way to her truck that was parked outside. Appellant followed her outside
and stated that if she did not give him his knife back, he would come through the
truck window. The complainant threw down the knife and drove directly to a
nearby police station.
When she arrived, the complainant spoke with Deputies Hunt and
Ostermayer of the Galveston County Sheriff's Office. The deputies observed that
the complainant was distraught and had marks all over her body that she claimed
were the result of appellant's beatings. The complainant told Hunt what happened
2
to her and stated that her friend, appellant, was responsible for her injuries. Hunt
communicated this information to his supervisor, Sergeant Brent Cooley. At this
point, both Hunt and Cooley believed that they had probable cause to arrest
appellant for assault.
Cooley and Corporal Keele, another officer on duty, travelled to appellant's
home and knocked on his door. Cooley testified that he called Corporal Keele to
assist him in the interest of officer safety based on the complainant's allegation that
appellant had used a weapon in assaulting her. Appellant answered the door, and
Cooley and Keele explained why they were there. Keele testified that he
handcuffed appellant for investigative detention. He and Cooley then asked
appellant if they could speak in his home because it was hot and there were
mosquitoes outside. Appellant allowed the officers inside.
Keele read appellant his Miranda rights.1 Cooley then asked if appellant
would be willing to speak with them regarding the allegations made against him by
the complainant. Appellant affirmed that he understood his rights and then gave
oral consent to speak with the officers and written consent for the officers to search
his home and vehicle for the hunting knife described by the complainant. The
officers were unable to locate the hunting knife the complainant alleged appellant
had used in the assault.
At the conclusion of the search, Cooley called the assistant district attorney
on duty for guidance on the case. The assistant district attorney confirmed
Cooley's suspicions that probable cause existed to arrest appellant for assault
causing bodily injury. The officers then arrested appellant for assault causing
bodily injury. The officers had not obtained an arrest warrant prior to placing
appellant under arrest. The officers brought appellant back to the sheriff's station,
Miranda v. Arizona, 384 U.S. 436 (1966).
3
where Detective Balchunas interviewed him. The entire interview was videotaped.
Appellant filed a pre-trial motion to suppress his statement to Detective
Balchunas, alleging it was the fruit of an illegal arrest. At this hearing, Cooley,
Hunt, and Keele each testified that they believed that there was a threat of future
harm to the complainant. The trial court ruled that appellant's warrantless arrest
was legal and denied the motion to suppress the statement. The trial court
articulated the following reason:
The thing that is persuasive to the court is that there was a threat.
You're going to end up in the ditch, words to the effect [sic], if you go
to the police, or whatever. Well, she's at the police. There was a knife
used. How she got away, whether she had a knife to use to get away
is —there some testimony of that, but there is physical damage on the
victim. There is [sic] pictures of a bra that has been raggedly severed,
and I believe that the police could and should take into consideration
the future threat to the victim.
The trial court later signed findings of fact and conclusions of law.
Appellant pled not guilty and went to trial on both charges. Appellant's
video statement was played for the jury during the trial. After the video was
played, appellant decided to accept a plea agreement. He pled guilty to both
aggravated sexual assault and aggravated kidnapping and pled true to a deadly
weapon enhancement to the latter charge. The trial court accepted the plea,
admonished appellant, and sentenced him to twenty years' imprisonment on each
count with the sentences to run concurrently in accordance with the plea
agreement.
Appellant filed motions for new trial in both cases, which the trial court
denied. These appeals followed.
Analysis
In a single issue in each appeal, appellant contends the trial court abused its
discretion when it denied his motion to suppress because his video statement was
obtained through an illegal warrantless arrest. See Tex. Code Crim. Proc. Ann. art.
38.23(a) (West 2015).
I. Standard of review and applicable law
We review the trial court's ruling on a motion to suppress under a bifurcated
standard. Douds v. State, 434 S.W.3d 842, 846 (Tex. App.—Houston [14th Dist.]
2014, pet. granted) (en banc). We afford almost total deference to the trial court's
determinations of historical facts that the record supports, especially those based
on an evaluation of credibility and demeanor. State v. Elias, 339 S.W.3d 667, 673
(Tex. Crim. App. 2011). We afford the same amount of deference to the trial
court's rulings on mixed questions of law and fact when the resolution of those
ultimate questions turns on evaluations of credibility and demeanor. Id. When
those rulings do not turn on credibility and demeanor evaluations, we review them
de novo. Id. We will uphold the trial court's ruling if it is correct under any
theory of law applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005).
II. The trial court did not err in denying appellant's motion to suppress.
A. A danger of further bodily injury authorizes a warrantless arrest.
[A]ll arrests and searches without valid warrants are unreasonable
unless shown to be within one of the exceptions to the rule that an
arrest or a search must rest upon a valid warrant. A valid exception
must exist and the burden is on the State to show that a warrantless
arrest or search comes within some exception to the above general
rule of exclusion.
Wilson v. State, 621 S.W.2d 799, 803-04 (Tex. Crim. App. [Panel Op.] 1981).
Such an exception exists in this case. In Texas, warrantless arrests are
authorized in limited situations primarily set out in the Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. arts. 14.01-14.03 (West 2015); Swain
v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005). Article 14.03(a)(2)
provides that a police officer may arrest a person without a warrant if the officer
has probable cause to believe: that the person committed an assault resulting in
bodily injury, and that there is danger of further bodily injury to the victim. Tex.
Code Crim. Proc. Ann. art. 14.03(a)(2).
Appellant contends that it is also settled law that a warrantless arrest violates
the Fourth Amendment when there is no showing that seeking a warrant would
have been impracticable. The risk of future harm to the victim, however, is itself
an impracticable circumstance that legitimizes an otherwise-illegal warrantless
arrest. Randolph v. State, 152 S.W.3d 764, 771-73 (Tex. App.—Dallas 2004, no
pet.) (concluding exigent circumstances include risk of danger to victim).2
In sum, under the Fourth Amendment and Texas law, a warrantless arrest is
not illegal when the arresting officers have probable cause to believe that an assault
causing bodily injury occurred and that there is a danger of further bodily injury. It
is uncontested that the arresting deputies had probable cause to believe that
appellant had committed an assault causing bodily injury. Thus, whether
appellant's arrest was illegal (and his resulting statement should be suppressed)
hinges on whether the arresting officers had probable cause at the time of the arrest
to believe that there was a danger of further bodily injury to the victim.
We do not address whether the arrest occurred in a constitutionally protected area
because appellant has not argued, either in the trial court or this court, that the arrest was illegal
for that reason. In any event, there is some evidence that appellant was handcuffed for officer
safety and that appellant consented to the deputies entering his home before he was arrested.
B. The record supports the trial court's findings and its conclusion
that the officers had probable cause to believe there was a danger
of further bodily injury.
The trial court made findings of fact that the deputies were concerned for
further violence to the complainant due to: the nature of the assault and the injuries
she suffered; appellant's alleged use of a weapon in the assault and to threaten the
complainant; appellant's relationship with the complainant and his act of following
the complainant to her truck, which could allow him to locate the complainant in
the future; and defendant's departure from the apartment shortly after the
complainant fled, which supported a reasonable inference that he was looking for
the complainant. Based on these facts, the trial court concluded that the deputies
had probable cause to believe that there was a danger of further bodily injury to the
complainant.
The trial court's factual findings are supported by the evidence from the
hearing on appellant's motion to suppress, which is summarized in the background
section above. In addition, the record reflects that Cooley, Hunt, and Keele each
testified that they had strong concerns about a threat of future harm to the
complainant. We conclude that, when viewed under the appropriate standard of
review, the evidence from the suppression hearing supports the trial court's
conclusion that the deputies had probable cause to believe that there was a danger
of further bodily injury to the complainant. See McClatchy, 758 S.W.2d at 330
(concluding that although suspect was no longer in same location as victim,
officers had sufficient facts on which to base belief that suspect might return to
harm victim). We therefore hold that the trial court did not err when it denied
appellant's motion to suppress, and we overrule appellant's single issue in each
appeal.
Conclusion
Having overruled appellant's issues on appeal, we affirm the trial court's
judgments.
/s/ J. Brett Busby
Justice
Panel consists of ChiefJustice Frost and Justices Jamison and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).