Anthony Villareal v. State of Texas--Appeal from 292nd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-00-142-CR

No. 10-00-143-CR

ANTHONY VILLAREAL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 292nd District Court

Dallas County, Texas

Trial Court Nos. F99-39757 and F98-70382

O P I N I O N

In Cause No. 10-00-142-CR/F99-39757-KV, appellant appeals his conviction for injury to a disabled person, for which he was sentenced to ten years in the Texas Department of Criminal Justice - Institutional Division (TDCJ-ID), such sentence to begin when the sentence in No. 10-00-143-CR has been served out.

In Cause No. 10-00-143-CR/F98-70382-QV, appellant appeals from an order revoking his probation in an aggravated assault case, and sentencing him to ten years in the TDCJ-ID.

The two cases were tried together. There is one reporter s record and the briefs are identical.

In Cause No. 10-00-143-CR, appellant was charged by indictment with murder. In September 1999, appellant, pursuant to a plea bargain, plead guilty to the lesser included offense of aggravated assault. The trial court found him guilty and sentenced him to ten years in the TDCJ-ID, probated.

Thereafter, in October 1999, the State filed a motion to revoke his probation, alleging he had committed the new offense of injury to a disabled person. Appellant pled Not True. The motion to revoke and trial on the new offense were tried together. The trial court found appellant guilty of the new offense, i.e. injury to a disabled person, and then granted the State s motion to revoke probation in the prior aggravated assault case. The court then sentenced appellant to ten years in each case and stacked the two sentences.

The correctness of the order revoking appellant s probation depends on the finding of guilty in the later injury to a disabled person case.

Sylvia Hernandez, the complainant, is blind. Sylvia had known appellant for eleven years and had dated him. Sylvia lived alone in the apartment complex where her mother, Maria Ayala, manages and lives. Early on October 11, 1999, Sylvia was awakened by someone banging on her front door. She asked who was at the door and appellant said, It s me, Anthony. Sylvia opened the door and appellant hit her in the face over and over again, while saying nothing.

A neighbor heard the commotion, called 911, and ran to Maria s apartment close by and told her that Sylvia was being beat up by her boyfriend. Maria ran to Sylvia s apartment and saw appellant come out, look at her and walk in the other direction. Maria had known appellant for over a year and knew him by sight. She identified appellant at trial as the man she saw coming out of Sylvia s apartment the morning of the assault. Officer York was dispatched by radio to the offense location. The dispatch described the suspect as an Hispanic male wearing dark clothes and cowboy boots. En route to the offense location, Officer York saw appellant at the bus stop, only one block from Sylvia s apartment. Appellant fit the description of the suspect.

Officer York approached appellant and asked for identification and where he was coming from. Appellant identified himself and said he was coming from his girlfriend s apartment. Officer York asked what happened at his girlfriend s apartment and appellant said I just want to leave her alone. Officer York then handcuffed appellant and drove him one block to Sylvia s apartment. At the apartment, York asked appellant to say something so that Sylvia could make a voice identification. When appellant spoke, he said to Sylvia, I just want to leave you alone. Don t put charges on me. I don t want to go to jail. Sylvia identified appellant as the man who assaulted her. Officer York then arrested appellant for injury to a disabled person.

Appellant put on no evidence at trial.

The court found appellant guilty.

Appellant appeals on three points of error.

Point 1: The trial court abused its discretion where it denied appellant s motion to suppress the evidence obtained by the police as a result of the warrantless detention and arrest of the appellant, which was made without reasonable suspicion or probable cause.

Appellant made a motion to suppress evidence identifying appellant as the person who assaulted Sylvia. The court carried the motion along with the case, denying it at the close of the bench trial.

Appellant argues that Officer York had neither reasonable suspicion to pursue an investigative detention, nor probable cause to arrest him, when he transported appellant to the crime scene to confirm or absolve him as a suspect.

Determination of reasonable suspicion and probable cause are reviewed do novo on appeal, looking at the totality of the circumstances, while giving deference to the fact findings of the trial court. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).

Where a citizen is detained by the police, the detention must be supported by reasonable suspicion. Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App. 1986). An investigatory stop must be based on specific articulatable facts, which in the light of the police officer s experience and general knowledge, together with a rational inference from the facts, would reasonably warrant intrusion on the freedom of citizens stopped, for further investigation. Id., p. 704.

Here, Officer York had reasonable suspicion based on specific articulatable facts that warranted further detention. Appellant fit the description of the suspect he had heard about over his police radio. Appellant was at a bus stop only one block from the apartment where the offense was committed. Appellant said he was coming from his girlfriend s, and he just wanted to leave her alone. These facts justified Officer York s investigative detention of appellant by handcuffing him and driving a block to determine if appellant was in fact the perpetrator.

Appellant argues that at this point, he was under arrest. Transporting and handcuffing, however, do not necessarily serve as an arrest. Mays v. State, 726 S.W.2d 937, 942 (Tex. Crim. App. 1986); Zayas v. State, 972 S.W.2d 779, 790 (Tex. App. Corpus Christi 1998, pet ref d); Joseph v. State, 865 S.W.2d 100, 103 (Tex. App. Corpus Christi 1993, pet ref d).

Factors to be considered in assessing whether a detention is, in fact a warrantless arrest are: 1) whether the detention was too long in duration; 2) whether police officers diligently pursued means of investigation and were likely to confirm or dispel their suspicions quickly; and 3) whether police officers were unreasonable in not recognizing less intrusive alternative means by which their objectives might have been accomplished. Smith v. State, 945 S.W.2d 343, 346 (Tex. App. Houston [1st Dist.] 1997, pet ref d); Joseph, id., p. 102.

Here, the duration of the detention was no longer than necessary. Officer York saw appellant, identified him, then transported him to the crime scene where he was confirmed as the perpetrator and then immediately arrested him. The detention lasted only long enough to confirm or dispel appellant as a suspect. Officer York transported appellant in order to diligently pursue the investigation and confirm or dispel his suspicions quickly. The complainant is blind and Officer York s intent was to take appellant to the scene and determine by voice identification, if he was the man who assaulted Sylvia. The alternative was to take appellant to the police station and have Sylvia identify him there. This would have taken longer and would have been more intrusive. Officer York restrained appellant to transport him for his own safety. The offense being investigated was assault, and it is a reasonable inference that he felt it necessary to handcuff appellant while he was transporting him in the police car. When it was confirmed that appellant was the perpetrator of the assault, then he was arrested.

From the totality of the circumstances, we hold that the trial court did not abuse its discretion in denying appellant s motion to suppress evidence of his identification as the perpetrator. He was not under arrest when Sylvia identified him, but was only under an investigative detention.

Point 1 is overruled.

Point 2: The evidence is legally insufficient to support the trial court s judgment with respect to the element of identity.

Point 3: The evidence is factually insufficient to support the trial court s judgment with respect to the element of identity.

Appellant states in his brief that he assumes that the testimony of the officer and of the complainant will not be considered, i.e., that we have sustained his point 1, and have concluded that Officer York s investigative detention was actually an illegal arrest. Appellant s assumption is misplaced, as we have overruled his point 1.

When reviewing the legal sufficiency of the evidence, we examine all the evidence to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Criner v. State, 860 S.W.2d 84, 86 (Tex. Crim. App. 1992). In making this examination, we view the evidence in the light most favorable to the verdict. Santellan v. State, 939 S.W.2d 155, 160 (1997). If there is any evidence that establishes guilt beyond a reasonable doubt, the conviction is not subject to reversal. Anderson v. State, 871 S.W.2d 900, 902 (Tex. App. Houston [1st Dist.] 1994, no pet.).

When reviewing a claim of factual insufficiency of the evidence, we view all the evidence without the prism in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 131 (Tex. Crim. App. 1996).

Sylvia testified she heard appellant, her boyfriend, whom she had known for eleven years, banging on her door telling her to let him in. She knew appellant s voice, opened the door, and appellant hit her again and again. A neighbor told Sylvia s mother that Sylvia was being beat up by her boyfriend. The mother ran to Sylvia s apartment and saw appellant walking out of Sylvia s apartment. She yelled to appellant, followed him around the corner and saw him flee. She identified appellant at trial as the man she knew as Sylvia s boyfriend leaving Sylvia s apartment the morning Sylvia was assaulted. Additionally, medical records were introduced containing statements by Sylvia that her boyfriend caused her injuries by hitting her.

There was no evidence from the defense that was contrary to the State s evidence. The evidence is both legally and factually sufficient to support the element of identity of appellant as the perpetrator.

Points 2 and 3 are overruled.

The State asserts a cross point that the judgment in Cause No. 10-00-142-CR contains a clerical error in stating injury to an invalid, whereas it should state injury to a disabled person. The State requests we modify the judgment to read as a conviction for injury to a disabled person.

The State s cross point is sustained.

The judgment is modified to read as a conviction for injury to a disabled person.

As modified, the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 1, 2000

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