Joe Dixon, Jr. v. State

                             NUMBER 13-04-433-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

___________________________________________________________

JOE DIXON, JR.,                                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

___________________________________________________________

                  On appeal from the 357th District Court

                          of Cameron County, Texas.

________________________________ __________  _______________

                     MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                      Memorandum Opinion by Justice Rodriguez

Appellant, Joe Dixon, Jr., was charged with aggravated assault.  See Tex. Pen. Code Ann. ' 22.02(a)(1) & (2) (Vernon Supp. 2004-05).  The trial court dismissed paragraph I of the indictment which charged appellant with use or exhibition of a deadly weapon.  After pleading guilty to paragraph II, charging serious bodily injury, the trial court sentenced appellant to fifteen years in the Texas Department of Criminal JusticeBInstitutional Division.  The trial court has certified that this case "[i]s a plea bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal."  See Tex. R. App. P. 25.2(a)(2)(A).  By three issues, appellant contends (1) the evidence was insufficient to support the trial court's ruling that appellant's arrest was valid, (2) the exclusionary rule applies, and (3) his right of confrontation was violated.  We affirm.

I.  Facts

All issues of law presented by this case are well settled, and the parties are familiar with the facts.  Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

II.  Warrantless Arrest

By his first issue, appellant contends the State presented no evidence to establish probable cause for his warrantless arrest.^[1]  Specifically, appellant contends there was no evidence that one of the exceptions in chapter 14 of the Texas Code of Criminal Procedure applied.  See Tex. Code Crim. Proc. Ann. arts. 14.01-.04 (Vernon 2005) (setting out statutory exceptions to the arrest warrant requirement).

A.  Applicable Law

"In Texas, a warrantless arrest is permitted only when (1) probable cause for the arrest exists and (2) at least one of the statutory exceptions to the warrant requirement is met."  See McGee v. State, 105 S.W.3d 609, 613 (Tex. Crim. App. 2003) (citing Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989) (en banc)).  "Probable cause exists where police have reasonably trustworthy information sufficient to warrant a reasonable person to believe that a particular person has committed or is committing an offense."  See id. (citing Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991) (en banc)).  When law enforcement agencies or members of the same agency cooperate in gathering information, the sum of the information known to the officers involved may be considered in determining probable cause.  See Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1984) (en banc); Wilson v. State, 98 S.W.3d 265, 271 (Tex. App.BHouston [1st Dist.] 2002, pet. ref'd).  The test for probable cause in the case of police broadcasts is the information known to the officer who made the broadcast request. Crane v. State, 786 S.W.2d 338, 346-47 (Tex. Crim. App. 1990); Williams v. State, 621 S.W.2d 609, 611 (Tex. Crim. App. 1981); see Dowler v. State, 44 S.W.3d 666, 669-70 (Tex. App.BAustin 2001, pet. denied) (holding that officers may rely on police broadcast to establish probable cause if information known to officer making broadcast request is sufficient to establish probable cause). The requesting officer need not relate all of the relevant facts, but only such information as is necessary for the arresting officer to know who is wanted.   Crane, 786 S.W.2d at 346; Dotsey v. State, 630 S.W.2d 343, 347 (Tex. Crim. App. 1982).

Article 14.04 provides the following statutory exception to the warrant requirement:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

Tex. Code Crim. Proc. Ann. art. 14.04 (Vernon 2005).  A second exception to the warrant requirement applies when the peace officer has probable cause to believe a person has committed an assault resulting in bodily injury to a member of the person's family.  See id. at art. 14.03(a)(3).

B.  Analysis

Appellant contends there was no evidence to support either of the above exceptions.  We disagree.

At the suppression hearing, Investigator David Rodriguez of the Cameron County Sheriff's Department testified that he responded to a call from the medical center in Harlingen, Texas, regarding an aggravated assault.  He interviewed the victim and described the victim's injuries as follows:  "she had a neck brace on, and she was bleeding all over her hair, all over her neck, her entire body.  She was just in real bad shape."  He testified that, due to the extensive injuries, he believed the offense to be a felony.  The victim told Investigator Rodriguez that her husband, Joe Dixon, had beaten her. The victim also informed Investigator Rodriguez that Dixon had relatives in Corpus Christi, Texas.   He continued his investigation by obtaining information regarding appellant and his vehicle, and he took pictures of the victim's injuries. Investigator Rodriguez further testified that after completing the interview, he contacted Sergeant Rudy Delgado. Investigators Rodriguez and Lawrence Cole went to the Dixon residence to locate appellant.  They found no one home but did find  blood outside on the cement steps.  Investigator Cole testified that he observed a blood trail from the front door to the carport.  Investigator Rodriguez related that they went to the unit where they called an all points bulletin (APB) and advised the District Six area of the person they were looking for and his vehicle.

Sergeant Delgado, who was in charge of the investigation and had sent officers to the hospital to investigate the aggravated assault, testified that he issued an APB after receiving information about appellant from his officers.  He further testified that, upon notice that appellant had relatives in Corpus Christi, he asked the dispatcher to contact the Border Patrol checkpoint in Sarita, Texas, to advise them of the possibility of appellant traveling north. Shortly thereafter appellant was detained and arrested by Border Patrol agents at the Sarita checkpoint.

Considering the evidence, the reasonably trustworthy information elicited from the victim was sufficient to warrant Investigator Rodriguez to believe that appellant had committed an aggravated assault, that appellant=s wife was the victim, and that appellant was about to escape.  The sheriff's department had knowledge of appellant's name, his relationship to the victim, the victim's statement and a description of her injuries.  The APB was issued based on information provided by the officers, and Sergeant Delgado had the dispatcher contact the Border Patrol checkpoint to advise them that appellant might be traveling north.  After being contacted, the Border Patrol agent detained and arrested appellant. We conclude that the evidence establishes that the sum of the information known to the officers involved in gathering the information was sufficient to provide the Border Patrol agent with probable cause to arrest under either article 14.03(a)(3) or article 14.04.  See Tex. Code Crim. Proc. Ann. arts. 14.03(a)(3), 14.04 (Vernon 2005); McGee, 105 S.W.3d at 613; see also Woodward, 668 S.W.2d at 344.  There is also evidence that at least one of the statutory exceptions to the warrant requirement was met.  See McGee, 105 S.W.3d at 613.  The warrantless arrest was justified under either article 14.03(a)(3) or article 14.04.  See Tex. Code Crim. Proc. Ann. arts. 14.03(a)(3),14.04 (Vernon 2005).  Appellant's first issue is overruled.

III.  Applicability of Exclusionary Rule

Appellant contends by his second issue that this Court should exercise its supervisory authority by applying the exclusionary rule to appellant's arrest because of allegedly egregious police misconduct.  See id. at art. 38.23(a) (providing that no evidence obtained by an officer in violation of any provisions of the Constitution or laws of Texas or the United States shall be admitted in evidence against the accused on the trial of any criminal case).  However, we have determined that the arrest was a lawful warrantless arrest, and therefore, application of the exclusionary rule is not warranted.  We overrule appellant's second issue.

IV.  Confrontation Clause Claim

By his third issue, appellant contends his right to confrontation was violated at the motion to suppress hearing because he did not have the opportunity to confront the victim who did not testify.     See Crawford v. Washington, 541 U.S. 36, 61-69 (2004) (setting out and comparing confrontational clause scrutiny of non-testimonial hearsay and testimonial hearsay).  Admission of hearsay evidence against a criminal defendant implicates the confrontation clause of the Sixth Amendment because the defendant is not afforded an opportunity to confront the out-of-court declarant.  Simpson v. State, 119 S.W.3d 262, 269 (Tex. Crim. App. 2003); Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999) (citing Ohio v. Roberts, 448 U.S. 56, 65-66 (1980)).  However, appellant did not make a Crawford objection to testimony of the investigating officer who did testify about the information he received from the victim.  See Crawford, 541 U.S. at 61-69.  By failing to object on confrontation clause grounds, appellant has not preserved this contention for our review.  See Tex. R. App. P. 33.1(a); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (holding that objection at trial is required to preserve error on confrontation clause grounds).

V.  Conclusion

Accordingly, we affirm the judgment of the trial court.                                                                                    

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 26th day of August, 2005.

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^[1]Appellant does not challenge the investigatory stop at the Sarita Checkpoint.  Appellant does contend that his detention, beyond the initial stop, constituted a warrantless arrest. For the purposes of this appeal we will assume without determining that appellant was placed under arrest without a warrant by the Border Patrol agent who, as a customs agent, had the power to arrest appellant as a felony offender under the laws of Texas. See Tex. Code Crim. Proc. Ann. art. 2.122(a)(3), (10) (Vernon 2005); Gutierrez v. State, 22 S.W.3d 75, 85 (Tex. App.BCorpus Christi 2000, no pet.) (citing United States v. Thompson, 475 F.2d 1359, 1362-63 (5th Cir. 1973) (providing that Border Patrol agents are designated by the Bureau of Customs as customs agents).  We further note that "[w]ith the establishment of the Department of Homeland Security (DHS), the functions, expertise, resources and jurisdictions of several once-fragmented border and security agencies [including Border Patrol and Customs] were merged and reconstituted into Immigration and Customs Enforcement (ICE), the DHS's largest investigative bureau."  U.S. Immigration and Customs Enforcement, Organization, at http://www.ice.gov./graphics/about/organization/ (last visited August 25, 2005).