OSCAR ANTONIO MELARA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed May 7, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01522-CR
............................
OSCAR ANTONIO MELARA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F06-15929-Y
.............................................................
OPINION
Before Chief Justice Thomas and Justices Morris and Francis
Opinion By Chief Justice Thomas
        A jury convicted Oscar Antonio Melara of murder and assessed punishment at twenty-five years' imprisonment. In two points of error, appellant contends the trial court erred by admitting his videotaped statement because it was obtained following an illegal arrest and, because his arrest was illegal, trial counsel was ineffective by failing to move to suppress appellant's clothing and the result of the testing done on the clothing. We affirm.
Background   See Footnote 1 
 
        On April 22, 2006, Jose Torres was murdered by being stabbed through the heart. When police responded to the scene, appellant, who was Torres's roommate, was in the apartment. Appellant subsequently gave both a written and a videotaped statement to the police regarding the events surrounding the murder. After being charged with Torres's murder, appellant filed a motion to suppress both statements, contending the statements were made following appellant's illegal arrest for failing to identify himself to a police officer.
        At the hearing on the motion to suppress, Detective Todd Burnside with the Carrollton police department testified he responded to the call on Torres's murder. Appellant was in the apartment when Burnside arrived and, in Burnside's opinion, was intoxicated. Burnside was able to talk to appellant through an interpreter, Detective Mai Tran. From appellant's answers to Burnside's and Tran's questions, the police learned appellant claimed a number of individuals came over the fence and into the apartment. Based on appellant's statements, Burnside believed appellant was in the apartment when the murder occurred. However, because appellant's statements were inconsistent with the physical evidence at the scene, Burnside also considered appellant a suspect in the murder.
        Burnside had appellant transferred to the police station to discuss the murder, but did not want to interview appellant while appellant was intoxicated. Burnside learned appellant had failed to provide a correct date of birth to Tran and arrested appellant for failing to identify himself to Tran. Appellant was questioned the following day about Torres's murder and gave both a videotaped and a written statement.
        Appellant testified his name was “Oscar Antonio Melara Mulato.” “Mulato” is his mother's last name. Sometimes he uses all four names, sometimes just the first three. For simplicity, he will drop “Mulato” and use his father's last name “Melara.” Appellant testified this was customary in his home country of El Salvador. When the police asked him to identify himself after Torres's murder, he showed them his passport. Appellant denied he told the police his date of birth was 1982.
        The trial court made an oral finding that there was probable cause to believe appellant falsely identified himself by giving a name that was inconsistent with the name on his passport and giving an incorrect year of birth. The trial court concluded the arrest was not illegal, denied appellant's motion to suppress, and ruled appellant's statements were admissible.
        Tran did not testify at the suppression hearing but testified at trial that, after she read appellant his rights, he voluntarily agreed to talk to police officers.   See Footnote 2  She asked appellant his name and date of birth, and appellant identified himself as “Oscar Melara” and gave a birth date in 1982. Appellant later provided Tran with a passport that listed an additional last name of “Mulato” and a birth date in 1980. Tran again asked appellant how old he was, but appellant failed to give a consistent answer. Appellant kept giving different answers as to his age and date of birth.
        Following Tran's testimony, the trial court made additional oral findings that (1) appellant gave an incorrect date of birth to Tran; (2) appellant failed to tell Tran appellant's age; (3) appellant gave Tran an incorrect name; and (4) appellant's misrepresentation was purposeful. The trial court concluded appellant's arrest for failure to identify was a lawful arrest. In written findings of fact and conclusions of law, the trial court determined appellant had been advised of his rights prior to giving the written and videotape statements, voluntarily waived those rights, and the statements were admissible.
Motion to Suppress
Standard of Review
 
        In his first point of error, appellant asserts the trial court erred in denying appellant's motion to suppress his videotaped statement. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to a trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor. 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). We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Guzman, 955 S.W.2d at 89. We review de novo mixed questions of law and fact that do not depend on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Guzman, 955 S.W.2d at 89.
        We review the evidence in the light most favorable to the trial court's ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). When, as here, the trial court makes explicit fact findings, we determine whether the evidence, viewed in the light most favorable to the ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
Applicable Law
 
        Generally, a warrantless arrest is unreasonable per se under the Fourth Amendment unless the arrest fits into one of a “few specifically established and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372 (1993); see Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005). However, a police officer may arrest an individual without a warrant if probable cause exists with respect to the individual in question and the arrest falls within one of the exceptions set out in chapter 14 of the code of criminal procedure. Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037 (2009); Torres, 182 S.W.3d at 901. The statutory exception applicable to this case is article 14.01(b) of the code of criminal procedure, which permits a police officer to arrest an offender without a warrant for an offense committed in the officer's presence or view. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005).
        Probable cause to believe the person committed the offense exists where the officer possesses a reasonable belief, based on facts and circumstances either within the officer's personal knowledge or about which the officer has reasonably trustworthy information, that an offense has been or is being committed. Neal, 256 S.W.3d at 280; Torres, 182 S.W.3d at 901. In determining whether probable cause exists, we apply a “totality of the circumstances” test. Torres, 182 S.W.3d at 902.
Analysis
 
        A person commits the offense of failure to identify by intentionally giving a false or fictitious name, residence address, or date of birth to a peace office who has requested the information from a person the officer has good cause to believe is a witness to a criminal offense. Tex. Penal Code Ann. § 38.02(b)(3) (Vernon Supp. 2008). Appellant was arrested without a warrant for failing to identify himself to Tran. Relying on his testimony that he did not give a false date of birth, did not always use all the names on his passport, and gave his passport to Tran, appellant contends he did not commit the offense of failure to identify and, therefore, his arrest was illegal. However, Burnside testified he believed, based on appellant's statements to Tran, that appellant was in the apartment during the murder. After talking to Tran, Burnside also believed appellant failed to properly identify himself to Tran. Tran testified appellant gave her a name and date of birth that did not match those on the passport subsequently produced by appellant.
        The trial court is the best judge of the credibility of the witnesses and we will not substitute our judgment for that of the trial court. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). Based on the evidence, we conclude the trial court could have found appellant failed to properly identify himself to Tran and that the police had good cause to believe appellant was a witness to Torres's murder. Accordingly, the trial court did not err by concluding appellant's arrest for failure to identify was legal. Because the arrest was legal, the trial court did not err by denying appellant's motion to suppress his videotaped statement. We overrule appellant's first point of error.
Ineffective Assistance of Counsel
 
        In his second point of error, appellant asserts trial counsel was ineffective by failing to move to suppress both appellant's clothes that were seized when he was arrested and the results of the DNA testing done on the blood found on the clothing. Specifically, appellant argues this evidence was inadmissible due to his illegal arrest. We have already concluded the trial court did not err by finding the arrest was legal. Because appellant ties his complaint regarding the clothing and DNA evidence to the legality of the arrest, we likewise conclude trial counsel was not ineffective by failing to move to suppress those items. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (counsel not required to engage in filing of futile motions); Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.-Austin 2007, no pet.). We overrule point of error number two.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          LINDA THOMAS
                                                          CHIEF JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
071522F.U05
 
Footnote 1 Appellant has not challenged the legal or factual sufficiency of the evidence. Accordingly, we limit our review of the evidence and the proceedings in the trial court to that necessary to put appellant's complaint into context.
Footnote 2 Appellant did not object to Tran's testimony at trial and, therefore, we may consider the testimony in our review of the trial court's ruling on appellant's motion to suppress. 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) (“Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review.”).