David Wayne Miller v. The State of Texas--Appeal from 93rd District Court of Hidalgo County

  NUMBER 13-00-291-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

DAVID WAYNE MILLER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 93rd District Court of Hidalgo County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez, and Chavez[1]

Opinion by Justice Ya ez

By five points of error, David Wayne Miller challenges his conviction for aggravated assault after a jury found him guilty and sentenced him to serve a term of fifteen years confinement. We affirm.

During the evening of April 17, 1998, the appellant attacked Ricardo Reyna with a small knife at a bar in Mission. Appellant admits that such action took place, but alleges that he was merely acting in self-defense. Police were able to obtain a physical description of appellant from eyewitnesses. The next day, appellant was discovered at a residence and was taken into custody, without a warrant, for attempted murder. The trial began on February 23, 2000, and after hearing all the evidence, the jury convicted appellant of the lesser-included offense of aggravated assault[2] and sentenced him to fifteen years in prison.

Analysis

First, appellant claims that his conviction should be reversed because his constitutional rights were violated when he was arrested at a third party=s residence without an arrest or search warrant. We disagree.

AIn Texas, warrantless arrests are authorized only if (1) there is probable cause with respect to the seized individual, and (2) the arrest falls within one of the statutory exceptions delineated in the Code of Criminal Procedure.@ McGee v. State, 23 S.W.3d 156, 162 (Tex. App.BHouston [14th Dist.] 2000, no pet.) (citing Stull v. State, 779 S.W.2d 449, 451 (Tex. Crim. App. 1989)). There is no dispute as to probable cause, but the State argues that the warrantless arrest was proper under article 14.04. This article reads:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

Tex. Code. Crim. Proc. Ann. art. 14.04 (Vernon 1977). A number of factors can constitute satisfactory proof that the offender is about to escape, including: temporal proximity to the commission of the crime; physical proximity to the crime scene; and the suspect=s knowledge of police pursuit. See McGee, 23 S.W.3d at 163 (citing DeJarnette v. State, 732 S.W.2d 346, 352-53 (Tex. Crim. App. 1987)).

To make use of this exception, the "concrete factual situation spread on the record" must justify its application. See id. at 162 (citing Stanton v. State, 743 S.W.2d 233, 235 (Tex. Crim. App.1988)). This provision is strictly construed. See id. (citing DeJarnette, 732 S.W.2d at 349). Appellant is correct that the facts in this case do not support the application of article 14.04.

The record reflects that the altercation took place around eight in the evening and the police received no leads until the next day. At lunch the next day, Mission police officers were tipped off by Alton police officers as to the general location of appellant=s residence in Alton. An arresting officer testified that because appellant was from out-of-town, he believed appellant was a flight risk, so there was not time to get an arrest warrant. Ignoring the questionable characterization of the five-mile distance between Alton and Mission as qualifying appellant as an out-of-town flight risk, there is nothing else in the record that indicates appellant was about to escape. The temporal and physical proximity of the arrest to the crime weigh against the State. Moreover, there is no evidence that appellant knew of the investigation; appellant was found at the location that the Alton officers suggested; and appellant complied with the arresting officers. See id. at 164. We conclude there is not satisfactory proof that appellant was about to escape based on the tip from the Alton police. See id. Hence, the warrantless arrest was improper, as it was not authorized under article 14.04.

However, Aan unlawful arrest itself does not necessarily require reversal of a judgment of conviction.@ Johnson v. State, 548 S.W.2d 700, 706 (Tex. Crim. App. 1977) (citing Stiggers v. State, 506 S.W.2d 609, 611 (Tex. Crim. App. 1974)). It is important to note that Aan arrest is not in itself an evidentiary element of a conviction.@ Stiggers, 506 S.W.2d at 611. Therefore, if the unreasonable seizure of the person produces no evidence of culpability, then the conviction is not vitiated. See Leach v. State, 770 S.W.2d 903, 906 (Tex. App.BCorpus Christi 1989, pet. ref=d) (citing Stiggers, 506 S.W.2d at 611). If, on the other hand, the unlawful arrest produces culpable evidence, the sanction imposed is the denial of admissibility of the evidence seized. See Stiggers, 506 S.W.2d at 611. In this case, the only item gained from the warrantless arrest was a photograph of appellant to be used in a line-up. If this photo and subsequent line-up are considered evidence of culpability, their exclusion would be of no consequence because two trial witnesses identified appellant, while seated in the courtroom, as the attacker. Additionally, appellant admitted that he was the individual who attacked Mr. Reyna, albeit in self-defense. Appellant=s first point of error is overruled because the unlawful, warrantless arrest does not justify a reversal of his conviction. See Johnson, 548 S.W.2d at 706.

Secondly, appellant contends that the photo line-up should have been suppressed because it was the direct product of an illegal arrest. The State argues that this point was not properly preserved for appellate review. We agree with the State.

In order for an issue to be preserved on appeal, there must have been a timely and specific objection raised at trial. Tex. R. App. P. 33.1. The objection made at trial must also mirror the contention on appeal or the point of error will be waived. See Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997); Doyle v. State, 24 S.W.3d 598, 602 (Tex. App.BCorpus Christi 2000, pet. ref=d).

Here, appellant=s objection at trial concerned the construction and suggestiveness of the photo line-up. Now, appellant claims that the photo line-up should have been suppressed because it was the product of an illegal arrest. Because appellant=s contention on appeal is different from his trial objection, he has waived any alleged error on this point. Appellant=s second point of error is overruled.

Thirdly, appellant contends that the trial court committed reversible error in disallowing appellant from cross-examining a State=s witness with regard to his deferred adjudication status. The State argues, again, that this point has been waived because appellant=s contention on appeal differs from his trial objection. We agree with the State.

At trial, the appellant=s objection focused only on the witness=s deferred adjudication status and character. Now, appellant claims that he wanted to show that the witness had bias or motive for cooperating with the prosecution. A defendant may cross-examine a State=s witness on the status of his deferred adjudication in order to show motive, bias or an interest to testify for the State. See Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim. App. 2001). However, appellant has not properly preserved this issue for appellate review. His trial objections concern the witness=s credibility, but his claims on appeal concern bias and motive. These two issues, credibility versus bias/motive, serve different purposes on cross-examination. The purpose of bias/motive cross-examination is not to discredit the witness. See id. at 199. AInstead, the purpose [is] to show that the witness [is] biased due to his vulnerability with the prosecution.@ Id. (citing Alford v. U.S., 282 U.S. 687, 693 (1931)). The defendant=s contention on appeal does not mirror his trial objection, thus it is waived. Tex. R. App. P. 33.1. Appellant=s third point of error is overruled.

In his fourth point of error, appellant contends that the trial court erred in granting the State=s request to add the lesser-included offense of aggravated assault to the court=s charge. The State argues that the evidence presented at trial was sufficient to support the trial court=s decision to charge the jury on the lesser-included offense. We agree with the State.

Texas courts employ a two-pronged analysis to determine when a lesser-included instruction is warranted. See Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997) (citing Rousseau v. State, 855 S.W.2d 666, 672-673 (Tex. Crim. App. 1993)). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. See Rousseau, 855 S.W.2d at 672-673. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser-included offense. See id. There is no dispute that the State has met its burden as to the first prong, but appellant challenges the second prong of the analysis.

Appellant=s counsel claims that the record establishes that appellant=s actions clearly showed that he would do everything in his power to defend himself, including causing the death of the Mr. Reyna. Furthermore, appellant=s counsel claims that the calculating manner and deliberateness of appellant=s actions could not in any way be construed as anything less than an intent to kill Mr. Reyna for appellant=s own protection and preservation in light of the circumstances. The State argues that appellant=s own testimony, that he did not intend to kill anyone and that he merely slashed out at Mr. Reyna with a small knife, ruins this claim. We conclude that the record as a whole supports the trial court=s decision to charge the jury on the lesser-included offense of aggravated assault. Appellant=s fourth point of error is overruled.

Finally, appellant contends that the State failed to meet its burden of disproving the self-defense issue beyond a reasonable doubt. The State argues that, based on the evidence presented, a rational jury could have found beyond a reasonable doubt the essential elements of the crime charged and rejected appellant=s self-defense claim. We agree with the State.

AThe State has the burden of persuasion in disproving the evidence of self-defense.@ Alvarado v. State, 821 S.W.2d 369, 372 (Tex. App.BCorpus Christi 1991, no pet.). This burden simply requires the State to prove its case beyond a reasonable doubt. See id. (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)). In resolving the sufficiency of the evidence issue, appellate courts look not to whether the State presented evidence that refuted an appellant=s self-defense testimony, but rather the courts determine, after viewing all the evidence in the light most favorable to the prosecution, whether any rational trier of fact would have found the essential elements of the crime charged beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914 (citing Tex. Pen. Code. Ann. ' 2.03(d) (Vernon 1994)). On the stand, appellant admitted that Mr. Reyna did not threaten him with a gun or knife. Furthermore, none of the eyewitnesses testified that appellant was acting in self-defense. After reviewing the record, we hold that a rational jury could have found beyond a reasonable doubt against appellant on the self-defense issue. See id. (citing Saxton, 804 S.W.2d at 914). Appellant=s fifth point of error is overruled.

We have considered all of appellant=s arguments, and they are all overruled. The trial court=s judgment is affirmed.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

30th day of August, 2002.

[1]Retired Justice Melchor Chavez, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex.Gov=t Code Ann. ' 75.002 (Vernon 1998).

2Tex. Pen. Code Ann. ' 22.02 (Vernon 1994).