John Anthony Hinojosa v. State

                              NUMBER 13-04-435-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

JOHN ANTHONY HINOJOSA,                                                        Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

          On appeal from the 319th District Court of Nueces County, Texas.

                                MEMORANDUM OPINION

                          Before Justices Yañez, Castillo, and Garza

                            Memorandum Opinion by Justice Yañez

A jury convicted appellant, John Anthony Hinojosa, of aggravated robbery^[1] and the trial court assessed his punishment at fifteen years= imprisonment. In two issues, appellant contends the trial court erred in (1) denying his motion to suppress his identification by the  victim because the identification was tainted by appellant=s illegal arrest and (2) overruling his objection to improper jury argument.  The State contends appellant waived both issues. We affirm.

The record contains the trial court=s certification that this is not a plea-bargain case and the defendant has the right of appeal.^[2]

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court=s decision and the basic reasons for it.^[3]

Motion to Suppress Identification

In his first issue, appellant challenges the denial of his motion to suppress because his identification by the victim of the robbery resulted from an illegal arrest. Specifically, appellant contends his arrest was illegal because the State failed to produce any arrest warrant at trial.  We begin by addressing the State=s waiver argument.

The State contends appellant waived this issue because his pre-trial motions to suppress were insufficiently specific to inform the trial court of his complaint. Specifically, the State argues appellant=s pre-trial motion to suppress the photo line-up did not complain that the line-up was the fruit of an illegal arrest.^[4]  Moreover, the State argues appellant waived any challenge to the line-up on grounds that it resulted from an illegal arrest because at trial, appellant=s counsel Ajust@ renewed his objection to admission of the photo line-up on grounds it was impermissibly suggestive, and thereby impliedly waived any objection on other grounds. The State further argues that appellant=s motion to suppress evidence relating to his illegal arrest failed to specify which evidence appellant sought to suppress.

When a court overrules a defendant=s pretrial motion to suppress evidence, the defendant need not subsequently object to the admission of the same evidence at trial to preserve error.^[5]  However, when a defendant affirmatively asserts during trial he has Ano objection@ to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the pre‑trial ruling.^[6] 

Here, appellant filed several pretrial motions to suppress.  One of the motions argued that because the photo line-up was impermissibly suggestive, there was a substantial likelihood of misidentification.  The motion requested that witnesses who had seen the allegedly suggestive line-up be prohibited from identifying appellant. In a second motion to suppress, appellant argued that Aany and all evidence@ relating to his arrest should be suppressed because his arrest was illegal.  The court specifically denied each motion. 

We conclude that appellant=s motion to suppress complaining that his arrest was illegal was sufficient to preserve his complaint on appeal.  Accordingly, it was unnecessary  for appellant to object at trial to the admission of evidence relating to his identification.^[7]  We hold appellant did not waive his right to challenge the admission of evidence relating to his identification.

                                        Standard of Review and Applicable Law

A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion.^[8]  In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.^[9]  In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor.^[10]  We afford the same amount of deference to the trial court's ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if resolving those ultimate questions turns on evaluating credibility and demeanor.^[11]  However, we review de novo questions of law and Amixed questions of law and fact@ that do not turn on an evaluation of credibility and demeanor.^[12]  

 Where, as here, no findings of fact are filed by the trial court, Awe view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.@^[13]  We uphold a trial court=s ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case.^[14]

Appellant contends the trial court erred in denying his motion to suppress evidence of his identification by the victim because both Athe booking photo identified in the lineup and Appellant=s person identified in court were fruits of the illegal arrest.@

An accused seeking to suppress evidence on the basis of illegal police conduct bears the burden of proof to rebut a presumption of proper police conduct.^[15]  The accused satisfies the burden by proving the police acted without a warrant.^[16]  The burden then shifts to the State to either produce a warrant or prove the reasonableness of the challenged conduct.^[17]  If the State produces a warrant, the burden of proof again shifts to the accused to show the invalidity of the warrant.^[18]  If the State is unable to produce a warrant, it must prove the reasonableness of the search or seizure.^[19]  The State may demonstrate reasonableness by proving probable cause.^[20]  The State must prove probable cause by a preponderance of the evidence.^[21]

At the suppression hearing, one of the arresting officers testified that appellant was arrested on the basis of an outstanding warrant from San Patricio County for a violation of probation.  He testified he and the other arresting officers verified the warrant=s existence by checking with the police dispatchers.  He also testified, however, that the officers did not have the warrant in their possession.  At the suppression hearing, the robbery victim identified appellant as the robber.

Assuming, without deciding, that appellant met his burden of showing that the police acted without a warrant, the burden shifted to the State to produce the warrant or prove the reasonableness of the challenged conduct.^[22]  Here, the police received two anonymous tips naming appellant as a suspect in the robbery and identifying his location.  After determining that appellant had an outstanding warrant for a probation violation, the police went to the location and arrested him for violation of his probation.  We conclude that the conduct of the police was reasonable.

An anonymous telephone call, like the one in this case, will provide sufficient justification for police officers to initiate an investigation.^[23]  Because the anonymous telephone call provided sufficient justification for the police to initiate an investigation, the officers were justified in checking to determine whether appellant had any outstanding warrants.^[24]  After learning of the existence of an  outstanding warrant for appellant=s arrest  on a probation violation, the officers took him into custody pursuant to the outstanding warrant.  There was no necessity for the officers to have the arrest warrant in their possession at the time of the arrest.^[25]  We hold there was sufficient information for the trial court to conclude that the officers were authorized to make the arrest.  Accordingly, we find no abuse of discretion in the trial court=s denial of appellant=s motion to suppress.       

Moreover, any error by the trial court in admitting evidence of appellant=s identification based on the photo line-up was rendered harmless by the victim=s in-court identification of appellant.

When an appellant contends the trial court erred in allowing the in‑court identification, he carries a heavy and difficult burden.^[26]  Even if impermissibly suggestive procedures were employed during the pre‑trial identification, Aa subsequent in‑court identification may nonetheless be permitted if the State demonstrates by clear and convincing evidence at the trial level that the pre‑trial procedure did not taint the in‑court identification and that the testimony was the product of an independent source, namely the observations made at the time of the offense.@^[27]  Where the State shows an independent origin for the in‑court identification, an impermissible pre‑trial procedure does not create a Avery substantial likelihood of irreparable misidentification.@^[28]

The factors to be considered in determining the origin of the in‑court identification include (1) the prior opportunity to observe the alleged criminal act, (2) the existence of any discrepancy between any pre‑lineup description and the defendant's actual description, (3) any identification of another person prior to the lineup, (4) the prior identification of the defendant by the witness prior to the lineup, (5) failure to identify the defendant on a prior occasion, and (6) the lapse of time between the alleged act and the lineup identification.^[29]  The court of criminal appeals has repeatedly stated that if the totality of circumstances reveals no substantial likelihood of misidentification, despite the suggestive identification procedure, the identification testimony will be deemed reliable, and therefore admissible.^[30]

Here, the robbery victim, a clerk at a Circle-K store, testified at the suppression hearing that he (1) got a good look at the robber=s face, (2) looked at the robber the entire time of the robbery, which lasted about three minutes, and (3) was about two feet from the robber during the incident.  The robbery occurred on April 25, 2003. Approximately eleven days later, the victim identified appellant from the photo line-up.  He also identified appellant at the suppression hearing, which occurred on November 7, 2003.  The offense report states that the victim described the robber as weighing approximately 160 pounds.  At the suppression hearing, however, the victim admitted that appellant weighs considerably more than 160 pounds.  

Under the totality of the circumstances, we conclude there is no substantial likelihood of misidentification, despite any impermissible pre-trial procedure.^[31]  We hold the trial court did not err in allowing the victim to identify appellant in open court. 

We conclude error in the admission of evidence of the out-of-court identification of appellant, if any, was rendered harmless by the properly-admitted in-court identification by the same witness.^[32]  We overrule appellant=s first issue.         

Improper Jury Argument

In his second issue, appellant contends the trial court erred when it Ain effect overruled@ his objection to improper jury argument. Specifically, appellant complains that during closing argument, the prosecutor improperly referred to Atwo Crime Stoppers tips@ implicating appellant in the robbery.^[33]  The State argues that appellant=s failure to pursue his objection to an adverse ruling waived any error.  We agree that nothing is presented for our review. 

A[A] defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal.@^[34]  The proper method to preserve error is to: (1) make a timely objection and secure a ruling; (2) if the objection is sustained, request the trial court to instruct the jury to disregard the statement; and (3) if the instruction is given, move for a mistrial.^[35]  An objection to argument must be pressed to the point of procuring a ruling or the objection is waived.^[36]  Here, the trial court=s statement that A[t]he jury will remember what was in evidence@ is not sufficient to preserve error; nothing is preserved for our review.^[37]  We overrule appellant=s second issue.

The judgment of the trial court is AFFIRMED.

_______________________

LINDA REYNA YAÑEZ

Justice

Concurring memorandum opinion by

Justice Errlinda Castillo

Do not publish.                                             

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

Memorandum Opinion delivered and

filed this the 6th day of October, 2005.

---

^[1] See Tex. Pen. Code Ann. ' 29.03 (a)(2) (Vernon 2003).

^[2] See Tex. R. App. P. 25.2(a)(2).

^[3] See Tex. R. App. P. 47.4.

^[4] The robbery victim identified appellant from the photo line-up.

^[5] Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).

^[6] Id. 

^[7] Id.

^[8] See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)).

^[9] State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

^[10] State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

^[11] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89.

^[12] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89.

^[13] Ross, 32 S.W.3d at 855. 

^[14] Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

^[15] See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (holding defendant bears initial  burden of producing evidence rebutting presumption of proper police conduct and satisfies this burden by establishing that a search or seizure occurred without a warrant); McGee v. State, 105 S.W.3d 609, 613 (Tex. Crim. App. 2003); Moreno v. State, 124 S.W.3d 339, 344 (Tex. App.BCorpus Christi 2003, no pet.).

^[16] Moreno, 124 S.W.3d at 344.

^[17] Id.  

^[18] Id. 

^[19] Id.

^[20] Id.

^[21] Id.

^[22] Moreno, 124 S.W.3d at 344.

^[23] Clemons v. State, 605 S.W.2d 567, 570 (Tex. Crim. App. 1980); Davis v. State, 989 S.W.2d 859, 863 (Tex. App.BAustin 1999, pet. ref'd).

^[24] Clemons, 605 S.W.2d at 570.

^[25] See Tex. Code Crim. Proc. Ann. art. 15.26 (Vernon 2005); Pangarakis v. State, 468 S.W.2d 79, 80 (Tex. Crim. App. 1971) (holding that upon investigating information that defendant was selling narcotics, officers  learned of the existence of a warrant for a violation of defendant=s parole; the officers were authorized to make an arrest even though they did not have the warrant in their possession at the time).

^[26] Loving v. State, 947 S.W.2d 615, 617 (Tex. App.BAustin 1997, no pet.).

^[27] Ford v. State, 794 S.W.2d 863, 866 (Tex. App.BEl Paso 1990, pet. ref'd).

^[28] Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim. App. 1985); Ford, 794 S.W.2d at 866.

^[29] Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

^[30] Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993).

^[31] See Ford, 794 S.W.2d at 866.

^[32] See Tex. R. App. P. 44.2; In re G.A.T., 16 S.W.3d 818, 826 (Tex. App.BHouston [14th Dist.] 2000, pet. denied); Townsend v. State, 853 S.W.2d 718, 720 (Tex. App.BHouston [1st Dist.] 1993, no pet.).

^[33] During closing argument, the following exchange occurred:

State: Well, [the victim] is not the only person who thinks that man [Appellant] committed aggravated robbery.  We have two Crime Stoppers tips.  Crime Stopper tip number one.  After the videotape was played on the TVC

[Defense counsel]: Objection, Your Honor.  He=s referring to an anonymous Crime Stoppers tip that, I believe, that assumes facts not in evidence, in terms of the report . . .

[The Court]: The jury will remember what was in evidence.

^[34] Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

^[35] See Tex. R. App. P. 33.1; Cockrell, 933 S.W.2d at 89.; Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).

^[36] Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984) (holding trial court=s statement that the jury would determine the evidence was insufficient to preserve error).

^[37] See DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. 1979) (holding that statement by the trial court that the jury would remember the evidence is insufficient to preserve error); Mayberry v. State, 532 S.W.2d 80, 84 (Tex. Crim. App. 1975) (holding statement that the jury will recall the evidence presents nothing for review).