Howard Martin Harris v. State

ACCEPTED
14-14-00391-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/25/2015 6:06:31 PM
CHRISTOPHER PRINE
CLERK
NOS. 14-14-00391-CR
14-14-00392-CR
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS
8/25/2015 6:06:31 PM
CHRISTOPHER A. PRINE
FOR THE Clerk
FOURTEENTH DISTRICT OF TEXAS
HOUSTON, TEXAS
HOWARD MARTIN HARRIS, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S MOTION FOR REHEARING
TRIAL COURT CAUSE NUMBERS 12CR1863 AND 14CR0154
IN THE 212TH DISTRICT COURT OF
GALVESTON COUNTY, TEXAS
SEARS & BENNETT, LLP
JOEL H. BENNETT
STATE BAR NO. 00787069
1100 NASA PARKWAY, SUITE 302
HOUSTON, TEXAS 77058
(281) 389-2118
FAX (866) 817-5155
joel@searsandbennett.com
Attorneys for HOWARD MARTIN HARRIS
LIST OF PARTIES
Presiding Judge Honorable Bret Griffin
Appellant Howard Martin Harris
Appellee The State of Texas
Attorney for Appellant Ms. Stacy Valdez
(Trial only) 711 W. Bay Area Blvd.,
Ste 600
Houston, Texas 77598
Attorney for Appellant Mr. Joel H. Bennett
(Appeal only) Sears & Bennett, LLP
1100 Nasa Parkway, Suite 302
Houston, Texas 77058
Attorney for Appellee Ms. Candice Freeman
(Trial only) Ms. Paul Love
Galveston County Criminal
District Attorney’s Office
600 59th Street, Suite 1001
Galveston, Texas
Attorney for Appellee Ms. Rebecca Klaren
(Appeal only) Galveston County Criminal
District Attorney’s Office
600 59th Street, Suite 1001
Galveston, Texas
CITATION TO THE RECORD
Clerk’s Record (12CR1863) ..................... C.R.I (volume and
page)
Clerk’s Record (14CR0154) .................... C.R.II (volume and
page)
Reporter’s Record .............................. R.R. (volume and
page)
ii
TABLE OF CONTENTS
PAGE
List of Parties ......................................... ii
Table of Contents ....................................... iii
List of Authorities .................................... iv
Appellant’s Sole Ground for Rehearing .................. 6
APPELLANT RESPECTFULLY SUBMITS THAT THE
ORIGINAL OPINION OF THIS COURT OMITS THE KEY
AND UNDISPUTED FACT THAT PROVES THAT THE
COMPLAINANT WAS NOT IN DANGER OF FURTHER BODILY
INJURY AT THE TIME OF THE WARRANTLESS ARREST.
Argument and Authorities ................................ 6
Certificate of Service .................................. 13
iii
LIST OF AUTHORITIES
CASES
Amores, 816 S.W.2d at 415 ............................... 10
Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App.
1996) .................................................. 11
Atkins v. State, 919 S.W.2d 770, 774 (Tex. App.—Houston
[14th Dist.] 1996, no pet. ............................. 10
Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972)
....................................................... 10
Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69
L. Ed. 543 (1923) ....................................... 10
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23
L. Ed. 2d 685 (1969) ..................................... 10
Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990)
....................................................... 11
Hernandez v. State, 14-00-00134-CR, 2002 WL 58823 (Tex.
App.—Houston [14th Dist.] Jan. 17, 2002, no pet.)(not
designated for publication) ............................ 11
McClatchy v. State, 758 S.W.2d 328, 330 (Tex. App.-
TH
Houston [14 Dist.] 1998, pet. ref’d) ................... 7
Randolph v. State, 152 S.W.3d 764, 771-73 (Tex. App.—Dallas
2004, no pet.) .......................................... 7
Stoddard v. State, Tex. Crim. App., 475 S.W.2d 744 ...... 10
Wilson v. State, 621 S.W.2d 799, 803–04 (Tex. Crim. App.
1981) .................................................. 11
STATUTES
Tex. Code Crim. Proc. Ann. art. 14.01 14.03 (Vernon 1977) 11
iv
NOS. 14-14-00391-CR
14-14-00392-CR
IN THE
COURT OF APPEALS
FOR THE
FOURTEENTH DISTRICT OF TEXAS
HOUSTON, TEXAS
HOWARD MARTIN HARRIS, Appellant
v.
THE STATE OF TEXAS, Appellee
Appealed from 212TH District Court
of Galveston County, Texas
Cause Nos. 12CR1863 and 14CR0154
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
Now comes Howard Martin Harris, by and through his
attorney of record Joel H. Bennett, of Sears & Bennett, LLP,
and files this Motion for Rehearing.
Appellant respectfully moves this Court for a rehearing
in these cases. The Court accurately sets forth the law
5
related to a warrantless arrest with regards to a danger of
further bodily injury. Appellant submits that key and
undisputed factual issue of this case was not addressed in
the Court’s opinion. The key factual issue distinguishes
this case from those cited in the Court’s opinion and
should lead to a different result.
APPELLANT’S SOLE ISSUE REGARDING REHEARING
APPELLANT RESPECTFULLY SUBMITS THAT THE
ORIGINAL OPINION OF THIS COURT OMITS THE KEY
AND UNDISPUTED FACT THAT PROVES THAT THE
COMPLAINANT WAS NOT IN DANGER OF FURTHER BODILY
INJURY AT THE TIME OF THE WARRANTLESS ARREST.
ARGUMENT AND AUTHORITIES
The opinion of the Court accurately sets forth the law
related to the warrantless arrest of Appellant. Appellant
was arrested without a warrant on the grounds that an
assault occurred and there was a danger of further bodily
injury to the victim. The Court’s opinion correctly
states, “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.” p. 6 (Emphasis
6
added).
The key issue raised by Appellant was that, under
specific facts of this case, there was no threat of future
danger to the complainant at the time of the warrantless
arrest. The complainant was safely and securely located
inside the Dickinson Police Department at the time
Appellant was arrested. The complainant was not at risk of
future danger when the police decided to arrest Appellant
without a warrant.
The cases cited by the Court are Randolph v. State, 152
S.W.3d 764, 771-73 (Tex. App.—Dallas 2004, no pet.) and
McClatchy v. State, 758 S.W.2d 328, 330 (Tex. App.-
Houston [14TH Dist.] 1998, pet. ref’d). Both of these cases
are factually distinguishable from the present. In
Randolph, the complainant was home at the time the
defendant in that case returned home and he was arrested
due to the threat of further violence. In McClatchy, the
defendant assaulted the complainant in her own home and he
was gone when the police arrived at the residence. He was
later arrested at a motel room. The Court held that the
arrest was lawful due to the threat that the defendant
7
might return to the complainant’s home and commit a future
assault. The fact that the officers responded to another
call prior to proceeding to the motel to arrest the
defendant did not vitiate the threat of future violence.
In the present case, the complainant was located inside
the Dickinson Police Department. Neither the trial court
findings nor this Court’s opinion addressed how the
complainant was in danger of further violence at the time
of Appellant’s arrest. The facts of the case affirmatively
disprove the threat of future violence at the time of the
arrest.
This is not a situation where the defendant could
return to the home of the complainant and renew an assault.
Nor is it a situation where the defendant could track down
the complainant to renew the assault. At the key point in
time—the specific time Appellant was arrested—there was no
possible danger of further bodily injury to the victim.
Appellant even agrees that it could be argued that the
complainant in the present case may be in danger if she
left Appellant’s house and went back to her home. Although
there is no evidence that Appellant knew where she lived or
8
how to find her; but, based upon the evidence that “they
were friends”, one could infer that he may know how to
locate her.
As argued in Appellant’s original brief, the
complainant was at the police station, surrounded by law
enforcement officers. Unless Appellant was going storm the
Dickinson Police Department, the complainant was safe at
that time from any danger of further bodily injury. This
is the crucial and undisputed fact that should lead to a
different result in Appellant’s case. The two cases cited
by the Court in its opinion are factually distinguishable.
Both of the complainants in those two cases (Randolph and
McClatchy) were assaulted in there own homes and remained
in their homes after the assault.
But the specific facts of this case are drastically and
critically different. All the officers knew, beyond any
doubt, that the complainant was not in danger of future
violence at the time he was arrested. To determine whether
a particular warrantless arrest is legal or not, the Court
of Appeals must look at all the facts known to the officers
at the time of the arrest. “In reviewing a warrantless
9
arrest to determine the existence of probable cause, we
look to the facts known to the officer at the time of the
arrest. Amores, 816 S.W.2d at 415...Whether probable cause
exists is determined by applying the totality of the
circumstances test. Id. at 413. The State bears the burden
to prove the existence of probable cause to justify a
warrantless arrest or search. Id.” Atkins v. State, 919
S.W.2d 770, 774 (Tex. App.—Houston [14th Dist.] 1996, no
pet. (Emphasis added).
The simple fact that there is a statutory exception to
the warrant requirement does not automatically mean that
the exception applies in every case. “In order for a
warrantless arrest or search to be justified, the state
must show the existence of probable cause at the time the
arrest or search was made and the existence of
circumstances which made the procuring of a warrant
impracticable. E.g. Chimel v. California, 395 U.S. 752, 89
S. Ct. 2034, 23 L. Ed. 2d 685 (1969); Carroll v. United
States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1923);
Stoddard v. State, Tex. Crim. App., 475 S.W.2d 744.” Brown
v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972). The
10
statutory exception does not overrule the Constitutional
requirements of the necessity of a warrant. It merely
defines a particular set of facts that meet the requirement
of “impracticality” to obtain the warrant.
“Generally, an arrest or search without a valid arrest
warrant is unreasonable. See Wilson v. State, 621 S.W.2d 799,
803–04 (Tex. Crim. App. 1981). However, this rule has several
exceptions. See Tex. Code Crim. Proc. Ann. art. 14.01 14.03
(Vernon 1977). An officer may make a warrantless arrest or
search if (1) there is probable cause and (2) the arrest
falls within the provision of one of the statutes authorizing
a warrantless arrest. Anderson v. State, 932 S.W.2d 502, 506
(Tex. Crim. App. 1996); McGee v. State, 23 S.W.3d 156 (Tex.
App.-Houston [14th Dist.] 2000, pet. granted). The State must
show the existence of probable cause at the time of the
arrest or search and the existence of circumstances which
made the procuring of a warrant impracticable. Crane v.
State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990).”
Hernandez v. State, 14-00-00134-CR, 2002 WL 58823 (Tex. App.—
Houston [14th Dist.] Jan. 17, 2002, no pet.)(not designated
for publication).
11
It is the second prong of the statutory exception that
the State failed to prove. Specifically, that there was a
danger of future violence to the complainant at the time
Appellant was arrested. As this Court held in Atkins,
supra, it is the State that bears the burden to prove the
existence of probable cause to justify the warrantless
arrest under the totality of the circumstances. The
linchpin of this case is the location of the complainant
and the inability of Appellant to cause her future bodily
injury at the time of the arrest. At the time Appellant
was arrested, the complainant was safely and securely
located at the Dickinson Police Department and in the
presence of numerous law enforcement officers. The
complainant was in absolutely no danger of further bodily
injury from Appellant at the time of his arrest. Without
such danger of future bodily injury, the warrantless arrest
was not authorized by law.
For all the foregoing reasons, Appellant moves this
Court to grant a rehearing in this matter and after due
consideration, sustain Appellant’s Sole Issue on appeal, that
the case be reversed, and the case remanded for further
12
proceedings.
Respectfully submitted,
SEARS & BENNETT, LLP
/s/ Joel H. Bennett
JOEL H. BENNETT
Texas State Bar No. 00787069
1100 Nasa Parkway, Suite 302
Houston, Texas 77058
Telephone: (281) 389-2118
Facsimile: (866) 817-5155
joel@searsandbennett.com
ATTORNEY FOR HOWARD MARTIN
HARRIS
CERTIFICATE OF SERVICE
I hereby certify that Appellant’s Motion for Rehearing
has been served upon Allison Lindblade and Rebecca Klaren
at the Galveston County Criminal District attorney’s office
on this the 25th day of August, 2015 by email to
Allison.lindblade@co.galveston.tx.us. and
Rebecca.klaren@co.galveston.tx.us.
/s/ Joel H. Bennett
Joel H. Bennett
Certificate of Compliance
In compliance with TRAP 9.4(i), I certify that the word
count in this reply brief is approximately 1832 words.
/s/ Joel H. Bennett
Joel H. Bennett
13