Edward Burks v. The State of Texas--Appeal from 232nd District Court of Harris County

Opinion issued December 1, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00363-CR

EDWARD BURKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 993071

MEMORANDUM OPINION

Appellant Edward Burks was convicted by a jury of attempted burglary of a habitation. See Tex. Pen. Code Ann. 15.01(a), 30.02 (Vernon 2003). The trial court assessed punishment at nine-years imprisonment. Appellant brings two issues, contending that the overruling of his motion to suppress and introduction of evidence of a prior conviction were erroneous. (1) We affirm.

The complainant reported to Houston Police Department Officer C.E. Ponder that a man attempted to enter the complainant's home from the second-floor-balcony bedroom door. Complainant described the suspect as a black man around 6 feet, 1 inch tall, who was wearing a white baseball cap, white shirt, and khaki pants. Officer Ponder relayed this description to Officer A.B. Duncan, who, like Officer Ponder, was working off-duty providing neighborhood security.

Officer Duncan searched the area in his neighborhood, which was near the neighborhood where Officer Ponder worked. Office Duncan saw appellant walking down a street wearing shorts and a shirt bearing the "24-Hour Fitness" gym logo and carrying a 24-Hour Fitness towel and plastic bag. Officer Duncan recognized that appellant fit the physical description of the suspect, but was not wearing the clothing described by Officer Ponder. Officer Duncan, however, became suspicious when he saw appellant looking back at the neighborhood security vehicle Officer Duncan was driving. Based on appellant's behavior, Officer Duncan turned around and approached appellant.

Appellant told Officer Duncan that he had just come from working out at the 24-Hour Fitness gym in the area and was on his way to a friend's house. When asked, appellant could not produce his gym workout card and did not know where his friend's home was. Officer Duncan noticed that appellant seemed nervous and saw through the semi-clear bag in appellant's possession clothes that appeared to match those described by the complainant. Officer Duncan handcuffed appellant, put him in the back of the security vehicle, and told appellant that he was being taken to the complainant's home for identification. At trial, Officer Duncan explained that appellant was handcuffed only because the neighborhood security vehicle did not have a "cage," not because appellant was under arrest.

The complainant positively identified appellant as the man he had seen earlier attempting to enter his home. Appellant was then arrested and his bag searched. Inside the bag, the officers found clothing matching the description from the complainant, a receipt from 24-Hour Fitness for the purchase of all the clothes appellant was wearing, and other items.

Discussion

In issue one, appellant contends the trial court abused its discretion in overruling his motion to suppress the evidence that was found as a result of his warrantless arrest. When reviewing a motion to suppress, the appellate court must give great deference to the trial court's findings of facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Mixed questions of law and fact that do not turn on an evaluation of a witness's credibility and demeanor are reviewed de novo. Id. The appellate court should sustain the trial court's ruling admitting the evidence if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

Appellant argues that Officer Duncan did not have probable cause to arrest him. We disagree. At the time Officer Duncan saw through the semi-clear bag in appellant's possession clothes that appeared to match those described by the complainant, appellant was not in custody, but rather the subject of an encounter. See Francis v. State, 896 S.W.2d 406, 408 (Tex. App.--Houston [1st Dist.] 1995), pet. dism'd per curiam, 922 S.W.2d 176, 177 (Tex. Crim. App. 1996). A police officer does not need any justification whatsoever to approach an individual and ask questions. Id., 896 S.W.2d at 408-09. When Officer Duncan initially spoke with appellant, Officer Duncan did not handcuff appellant, did not read him his rights, impede his travel, or tell him he was not free to leave.

Based on the observations from his encounter with appellant, Officer Duncan transported appellant a short distance so the complainant could identify him. We hold that the facts from the encounter establish sufficient reasonable suspicion to support Officer Duncan's temporary detention of appellant. See id. at 409. Although appellant was handcuffed while Officer Duncan took him to the complainant's house, the Court of Criminal Appeals has recognized that handcuffing a defendant does not always convert a detention into an arrest. Rhodes v. State, 945 S.W.2d 115, 117-18 (Tex. Crim. App. 1997). Judging from the perspective of a reasonable officer at the scene, we hold it was reasonable for Office Duncan to protect himself by handcuffing appellant during transport because Officer Duncan's security vehicle did not have a safety "cage." See id. at 118 & n.2.

Based on the cumulative evidence from the encounter and complainant's positive identification of appellant, we hold that appellant's eventual arrest was supported by probable cause. The trial court did not abuse its discretion in overruling appellant's motion to suppress the evidence that was found as a result of his warrantless arrest. We overrule issue one.

In issue two, appellant contends the trial court abused its discretion in permitting the State to impeach appellant with a prior theft conviction. Texas Rule of Evidence 609 allows a witness to be impeached by introducing a prior conviction of a crime that was a felony or involved moral turpitude if the trial court determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. Appellant contends the trial court erred in admitting the impeachment evidence of the prior theft conviction.

The Court of Criminal Appeals has set out five factors for courts to consider in determining under Rule 609 whether a prior conviction's probative value outweighs its prejudicial effect: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness's subsequent history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant's testimony; and (5) the importance of the credibility issue. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992). At the Theus hearing in the trial court, appellant argued factor 2, temporal proximity, factor 3, similarity, and factor 4, importance of the defendant's testimony.

Appellant concedes that his 1992 theft conviction leans weakly in favor of admissibility even without evidence of any other convictions. Appellant next argues that the offences of theft and attempted burglary are similar. We agree. This factor militates against admission, because the jury might "convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense." Id. at 881. Appellant concedes that the importance of his testimony was high as there were no witnesses for appellant other than himself. This factor leans in favor of admissibility. Instead, appellant argues for the first time that factor 4, credibility, is not an issue for the State as the complainant "was either correct or not in his identification regardless of appellant's testimony." We disagree that appellant's credibility was not an issue. This factor therefore leans in favor of admissibility.

Of the five Theus factors, we conclude that only factor 3, the similarity between the past crime and the offense being prosecuted, leans against admission of the prior theft conviction. In Theus, the Court of Criminal Appeals determined that the appellate court must accord the trial court wide discretion in weighing the factors and deciding whether to admit the impeachment evidence. Id. The appellate court should reverse only on a showing of a clear abuse of discretion. Id. Accordingly, we conclude the trial did not abuse its discretion and overrule issue two.Conclusion

We affirm the judgment of conviction.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).

1. Appellant himself filed a pro se brief in addition to the brief filed by appellant's lawyer. Appellant does not have a right to hybrid representation on appeal, and we decline to address his pro se brief. See Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977).