Marion Jeffrey McCottry A/K/A George McCottry v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00761-CR
Marion Jeffrey McCottry a/k/a George MCCOTTRY,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-0276
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 27, 2004

AFFIRMED

Marion Jeffrey McCottry, a/k/a George McCottry, appeals from his murder conviction and sentence of life imprisonment. McCottry asserts the trial court erred in (1) denying his motion to suppress because there was no probable cause to justify his warrantless arrest, and (2) admitting extraneous offense evidence during the guilt/innocence phase. We affirm the trial court's judgment.

Background

The children of the decedent, Beverly McCottry, discovered her body in their apartment when they returned home after spending the night with friends. The investigating officers found the contents of Beverly's purse dumped on the floor and her car keys missing. Her red Ford Fiesta vehicle was not in the parking lot, although the children had seen the car when they left between 8:00 and 9:00 p.m. the night before. Based on statements given by the children and neighbors, Detective Walsh learned that Beverly's ex-husband, George McCottry, was seen arguing with her outside her apartment between 8:00 and 9:00 p.m. and again at midnight the night before. Her upstairs neighbor heard Beverly's door being kicked in, a commotion and muffled female scream at approximately midnight, but did not call police. Detective Walsh also learned that McCottry had previously sexually assaulted and strangled Beverly around Christmas 1989. Detective Walsh further learned that McCottry was homeless and slept in his vehicle in a parking lot adjacent to the apartment complex.

The day after Beverly's body was discovered and her car stolen, the police received a tip that a red Ford Fiesta was parked approximately one to two blocks from the Salvation Army's homeless shelter. Detective Walsh instructed the patrol officers dispatched to the stolen vehicle to look for a tall, thin black male named "McCottry" at the Salvation Army shelter because he was a suspect in the vehicle theft and related homicide. At the Salvation Army, Officers Norman and Salame found the name "George McCottry" listed on the sign-in ledger. Since it was dinner time, the officers entered the cafeteria and announced they were looking for "McCottry;" they then moved from table to table asking for identification. When Officer Norman approached one of the tables, a slender black male stood up and said, "I'm the one you want. I'm the one you're looking for." McCottry voluntarily put his hands together behind his back. The officers handcuffed him, verified his identity and escorted him outside to the parking lot where he was read his rights and placed in the patrol car. Officer Salame conducted a pat-down search of McCottry and found a car key inside his pants pocket that he believed matched the stolen vehicle. Officer Salame went to the stolen vehicle and confirmed that the key fit the ignition. The officers then transported McCottry to the police station where he gave a written statement waiving his Miranda rights and confessing to the murder and vehicle theft. The trial evidence showed the cause of Beverly's death was strangulation, and DNA evidence obtained from Beverly's vagina and fingernails was consistent with McCottry's DNA specimen.

Motion to Suppress

In his first issue on appeal, McCottry asserts the trial court erred in denying his motion to suppress because his warrantless arrest was not supported by probable cause, in violation of the Fourth Amendment to the United States Constitution and Article I, 9 of the Texas Constitution. McCottry sought to suppress all tangible evidence and all oral or written statements obtained as a result of his arrest. After a hearing, the trial court denied the motion to suppress and entered written findings of fact and conclusions of law in support of its ruling. The court entered findings of fact that McCottry walked over to Officer Norman in the Salvation Army cafeteria and said, "I am the one you want... I am the one you are looking for," put his hands together behind his back, and was handcuffed, escorted outside and searched by the officers. The court further found McCottry was arrested at that time. The court concluded Officer Norman had probable cause to arrest McCottry for felony theft of a vehicle and/or unauthorized use of a vehicle when McCottry presented himself to the officer. The court determined the warrantless arrest was also valid under the applicable Texas statutes.

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We afford almost total deference to the trial court's findings of fact supported by the record, but review its application of the law to the facts de novo. Id. at 327-28; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court may accept or reject all or part of a witness's testimony, even if it is not controverted. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We review a determination of probable cause under a de novo standard because it is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. Moss v. State, 75 S.W.3d 132, 137 (Tex. App.--San Antonio 2002, pet. ref'd); see also Ross, 32 S.W.3d at 855.

In Texas, warrantless arrests are authorized only if (1) there is probable cause and (2) the arrest falls within one of the limited circumstances provided by statute. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991) (en banc); Johnson v. State, 32 S.W.3d 294, 298 (Tex. App.--San Antonio 2000, pet. ref'd). To determine whether probable cause exists, we look to the totality of the circumstances. Amores, 816 S.W.2d at 413; Johnson, 32 S.W.3d at 298. "Probable cause [to arrest] exists where the police have reasonably trustworthy information, considered as a whole, sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense." Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000); see also Johnson, 32 S.W.3d at 298. Probable cause requires "more than mere suspicion but far less evidence than that needed to support a conviction or even ... to support a finding by a preponderance of the evidence." State v. Parson, 988 S.W.2d 264, 267 (Tex. App.--San Antonio 1998, no pet.). When members of the same law enforcement agency have been cooperating in the investigation, we consider the sum of the information known to the cooperating officers at the time of the arrest in determining whether there was sufficient probable cause. Moss, 75 S.W.3d at 138; see also Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (en banc).

McCottry argues the officers lacked probable cause to arrest him until after the key was found in his pocket and confirmed to match the stolen car's ignition. We disagree. Viewed in the light most favorable to the trial court's ruling, the evidence in the record supports the existence of probable cause to believe McCottry had committed a felony before discovery of the key. (1) The sum of the information known to the S.A.P.D. officers and detectives at the time of McCottry's arrest was as follows: (1) Beverly McCottry was found strangled to death in her apartment and her car keys and car were missing; (2) Beverly and George McCottry were divorced and had a tumultuous relationship; (3) George McCottry was homeless and lived in his car in a parking lot adjacent to Beverly's apartment complex; (4) Beverly's children and several neighbors had seen Beverly arguing with McCottry between 8:00 and 9:00 p.m. and again at approximately midnight on the night before her death; (5) McCottry was the last person with whom Beverly was seen alive; (6) McCottry had previously sexually assaulted and choked Beverly in 1989; (7) McCottry frequented the Salvation Army homeless shelter, particularly at dinner time; (8) within 24 hours of her death, Beverly's stolen vehicle was found less than two blocks from the Salvation Army at dinner time; (9) McCottry's name was listed in the sign-in ledger at the Salvation Army; (10) when Officers Norman and Salame were canvassing the cafeteria, McCottry stood up, announced, "I'm the one you want... I'm the one you're looking for," and placed his hands together behind his back to be handcuffed; and (11) the dispatch call to Officers Norman and Salame listed McCottry as a suspect in both the vehicle theft and the related murder.

Based on the totality of the circumstances known to the officers at the time of the arrest, we hold sufficient probable cause existed to warrant a belief that McCottry had committed, at a minimum, the felony offense of theft of a vehicle or unauthorized use of a vehicle. (2)

See Delk v. State, 855 S.W.2d 700, 711 (Tex. Crim. App. 1993) (en banc) (officer had probable cause to arrest suspect for vehicle theft and suspicion of murder where car listed on computer as stolen and linked to murder was parked on public street in front of house where suspect was found, and when questioned, suspect identified himself as driver of the car); see also Nelson v. State, 855 S.W.2d 26, 30-31 (Tex. App.-- El Paso 1993, no pet.) (officers had probable cause to arrest defendant based on dispatch describing robbery suspect, defendant matched description and was seen three blocks away from robbery location, he attempted to flee and when confronted, threw up his hands and said, "okay").

In addition, McCottry's own statement, "I'm the one you want... I'm the one you're looking for," and action of placing his hands together behind his back before the officer spoke to him are incriminating. A statement against penal interest is inherently credible and may be sufficient, in and of itself, to establish probable cause for an arrest. Cornealius v. State, 870 S.W.2d 169, 172 (Tex. App.--Houston [14th Dist.] 1994), aff'd, 900 S.W.2d 731 (Tex. Crim. App. 1995). McCottry's incriminating statement and actions, plus the other facts and circumstances known collectively by the officers, provided sufficient probable cause for his arrest prior to discovery of the car key.

Even given the existence of probable cause, for an officer's warrantless arrest to be valid, it must fall within one of the limited circumstances set forth in the Texas Code of Criminal Procedure. Johnson, 32 S.W.3d at 298. Here, the trial court concluded, in part, that McCottry's warrantless arrest was authorized by Article 14.03(a)(1) of the Texas Code of Criminal Procedure. (3) Article 14.03(a)(1) provides that a peace officer may arrest without a warrant "persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony." See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2004). Determining whether a place is "suspicious" is a highly fact specific question. Parson, 988 S.W.2d at 268. "Few places are inherently suspicious, but a 'place may become suspicious because of facts and circumstances known to the officer and any reasonable inferences which can be drawn from those facts.' " Id. (quoting Cornejo v. State, 917 S.W.2d 480, 483 (Tex. App. -Houston [14th Dist.] 1996, pet. ref'd)). Although the Salvation Army shelter is not in itself a suspicious place, it became suspicious because of the facts and circumstances known to the officers at the time of the arrest, i.e., the stolen vehicle was parked less than two blocks away from the shelter where McCottry was found, he was known to eat dinner at the shelter, he stood up and proclaimed he was "the one you want... the one you're looking for," and he voluntarily placed his hands behind his back to be cuffed before being instructed to do so. See Parson, 988 S.W.2d at 268; Moss, 75 S.W.3d at 138-139. We hold these suspicious circumstances, combined with the other facts supporting probable cause, provided the officers with authority to arrest McCottry without a warrant under article 14.03(a)(1).

Because there was probable cause to arrest McCottry and his warrantless arrest was authorized by article 14.03(a)(1) of the Texas Code of Criminal Procedure, McCottry's arrest did not violate the United States Constitution or the Texas Constitution. McCottry's appellate brief does not challenge the validity of the search of his person, or the voluntariness of his oral or written statements, other than as products of an unlawful arrest. Having concluded the warrantless arrest was lawful, we hold the evidence obtained as a result of his arrest was admissible and the trial court did not abuse its discretion in denying McCottry's motion to suppress. McCottry's first point of error is overruled.

Extraneous Offense Evidence

In his second and third issues, McCottry asserts the trial court erred in admitting extraneous offense evidence during the guilt/innocence phase of trial in violation of Rules 403 and 404(b) of the Texas Rules of Evidence. See Tex. R. Evid. 403, 404(b). Specifically, McCottry asserts the following portion of his written statement referring to his prior strangling of Beverly in the 1980's should have been excluded:

The last time I told her to leave me alone back in [the] 1980's. I told her, and all of a sudden I went off because I thought she was showing off for her mother. And I don't remember, but they told me I had strangled her. I remember that I put her in a sleeper hold, but they said I used a cord. I assaulted her, but I did not seriously hurt her. This time it was just the fact that she keeps putting me down and treating me like a dog. I remember going into a rage ... .

McCottry objected to that portion of his statement, and requested it be redacted, arguing it was not relevant and any probative value was substantially outweighed by the danger of unfair prejudice. The court overruled the objection and admitted McCottry's entire statement into evidence. The charge instructed the jury to consider any extraneous offense evidence only for the purpose of determining the defendant's intent to commit the charged offense.

We review the trial court's decision to admit evidence under an abuse of discretion standard, and determine whether the decision was outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc). Although generally inadmissible, evidence of a person's prior bad acts may be admissible under Rule 404(b) when it is relevant to a non-character conformity issue of consequence in the case such as establishing intent or rebutting a defensive theory. Id. at 387-88; see also Robbins v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002). Evidence is relevant if it has a tendency to make the existence of any fact of consequence to the determination of the action more or less probable. See Tex. R. Evid. 401; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). The probative value of the extraneous offense evidence must substantially outweigh the danger of unfair prejudice in order for the evidence to be admissible under Rule 403. Robbins, 88 S.W.3d at 262.

To convict McCottry of murder, as charged in the indictment, the State had to prove he intentionally or knowingly caused Beverly's death, or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused her death. Tex. Pen. Code Ann. 19.02(b)(1), (2) (Vernon 2003). Although McCottry confessed to killing Beverly, he presented a defensive theory that her death was an accident and not intentional through his written statement, cross-examination of the State's witnesses and later, through his own testimony that her death was "an accident," "a response," and "not intentional." (4) Thus, McCottry went beyond a simple plea of not guilty and made his intent a material disputed issue in the case. See Robbins, 88 S.W.3d at 261; Fielder v. State, 756 S.W.2d 309, 318 (Tex. Crim. App. 1988) (prosecution theory and defensive theory or theories determine the material issues in a homicide case). Although the trial court did not make express findings, the record shows the court considered the extraneous offense evidence to be relevant on the issue of McCottry's intent and admitted it on that basis. The court did not abuse its discretion in finding McCottry's prior assault on the same person, committed in the same manner by strangling or choking, and arising out of similar circumstances, was relevant to his intent to commit the instant offense and to rebut his defensive theory. See Robbins, 88 S.W.3d at 262 (prior relationship evidence was relevant for non-character conformity purpose of rebutting defense theory that victim's death resulted from accident and was not intentional); see also Clark v. State, 726 S.W.2d 120, 123 (Tex. Crim. App. 1986) (en banc) (probative value of extraneous offense evidence is dependent upon its similarity to charged offense).

We further conclude the trial court did not abuse its discretion in finding the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Evidence need only be excluded under Rule 403 when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992) (en banc). All evidence is prejudicial to one party or another. Id. "Unfair prejudice" refers to "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999) (en banc). We conclude that the substantial similarity between the 1989 strangling incident and the charged offense rendered the extraneous offense evidence highly probative on the issue of McCottry's intent to cause Beverly's death, and the probative value of the evidence substantially outweighed the danger of unfair prejudice. Accordingly, we hold the court did not abuse its discretion in admitting the evidence. McCottry's second and third issues are overruled.

Based on the foregoing reasons, we affirm the judgment of the trial court.

Phylis J. Speedlin

Do Not Publish

1. The trial court entered a conclusion of law that the search of McCottry's person was a valid search incident to an arrest. See Chimel v. California, 395 U.S. 752, 763 (1969).

2. We note that at the suppression hearing, Officers Norman and Salame testified that McCottry was only detained at the Salvation Army, and Detective Walsh testified he did not believe the officers had probable cause to make an arrest at the Salvation Army. An officer's subjective belief is only one factor to be considered in determining whether an arrest or a detention has occurred, and whether probable cause existed for an arrest. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

3. The court also concluded the warrantless arrest was authorized by: (1) article 14.01 pertaining to offenses committed in an officer's presence; (2) article 14.03(a)(4) pertaining to persons who the officer has probable cause to believe have committed an assault resulting in bodily injury to a family member; and (3) article 18.16 pertaining to the right to prevent the consequences of theft by seizing the stolen property and person suspected of committing the theft. See Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 1977), arts. 14.03(a)(4), 18.16 (Vernon Supp. 2004). Because we uphold the trial court's ruling based on the existence of probable cause, we do not address the other grounds given by the trial court in support of its ruling.

4. McCottry's written confession raised his lack of intent to cause Beverly's death through statements that he did not remember what happened during the assault, he thought he had "put her to sleep again," he returned to the apartment and found her still lying there and then tried to commit suicide because he was upset.