Derek Alan Bell v. The State of Texas--Appeal from 174th District Court of Harris County

Opinion issued August 11, 2005.

In The

Court of Appeals

For The

First District of Texas

NOS. 01-04-00090-CR

01-04-00091-CR

DEREK ALAN BELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause Nos. 940370 and 941994

MEMORANDUM OPINION

Appellant, Derek Alan Bell, pleaded guilty to two separate felony offenses of aggravated robbery, and the trial court sentenced him to 12 years confinement in each case. In his sole issue, appellant contends that the trial court erred in denying his motion to suppress evidence. We affirm.

Factual Background

On February 4, 2003, Carlos Hernandez and his wife were robbed by two men in the parking lot of their apartment complex. Hernandez saw that one of the men had a gun. After the robbery, Hernandez went to Nelson Figueroa s nearby apartment and asked him to help Hernandez search for the men so that they could recover his stolen property. During the search, Hernandez and Figueroa were joined by Hernandez s nephew and Figueroa s cousin (collectively referred to as the search party ). After searching the apartment complex for approximately 15 minutes, the search party got into a car and continued their search because they were told that two men fitting the description of Hernandez s assailants were seen walking one block from the complex. Minutes later, the search party spotted appellant and a friend as the two were leaving a convenience store. The search party jumped out of the car, and Figueroa pointed a gun at the two men. The two men tried to escape, but Hernandez and his nephew conducted a citizen s arrest, forced the two men into the backseat of the car, and drove them to a police station.

While he was being questioned at the police station, appellant complained that the search party had assaulted him. Later, appellant was taken to the downtown jail, where he was placed in a video lineup. The lineup was later shown to the victims in two robberies that had occurred in the same area a few days before Hernandez was robbed. The victims of the other robberies identified appellant as the person who had robbed them. Appellant was subsequently indicted for the two robberies, // and he filed a motion to suppress evidence obtained as a result of the citizen s arrest by the search party. Following a hearing, the trial court denied appellant s motion to suppress.

Motion to SuppressIn his sole issue, appellant argues that the trial court erred in denying his motion to suppress because his arrest was illegal under Texas statutory and common law. //

In reviewing the trial court s ruling on the motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court s application of the law to the facts. Id.

Where, as here, there are no findings of fact, we view the evidence in the light most favorable to the trial court s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial court s decision is correct on any theory of law applicable to the case, the decision will be upheld. Id. at 856. The fact finder is the sole judge of the witnesses credibility and may accept or reject any or all of the witnesses testimony. Taylor v. State, 945 S.W.2d 295, 297 (Tex. App. Houston [1st Dist.] 1997, pet. ref d).

Appellant argues that, because Hernandez did not pursue him immediately after the robbery, the citizen s arrest was illegal under section 14.01(a) of the Texas Code of Criminal Procedure. // Appellant asserts that [any] fruits of the arrest are inadmissible in a subsequent trial.

Appellant s motion to suppress, however, requested more specific relief, and stated the following:

Defendant moves this Court for an order deeming Defendant s arrest illegal and an order suppressing as evidence all testimony of any witness relating to any identification of Defendant made after such illegal arrest by a witness or witnesses at a line-up, showup and/or photographic spread and suppressing, further, all testimonial evidence at trial which relates to any identification of Defendant at a photographic spread, if any, and lineup.

(Emphasis added.) It is well-settled law that a defendant s face cannot be a suppressible fruit of an illegal arrest. Pichon v. State, 683 S.W.2d 422, 426 (Tex. Crim. App. 1985). Accordingly, we need not decide whether the citizen s arrest in the present case was illegal. See Whithurst v. State, 690 S.W.2d 110, 111 (Tex. App. Houston [14th Dist.] 1985, no pet.) (holding that, Even if the appellant were under unlawful arrest at the time the witness identified him, the illegal arrest could not have tainted the witness s in-court identification. ).

Here, Houston Police Department Officer Szymczyk testified that, pursuant tostandard operating procedure, he interviewed appellant and conducted a video lineup. Based on information which linked robberies by location, description of suspect, and vicinity, appellant became a suspect in the two other robberies. Additionally, both complainants of the two other robberies separately identified appellant in a video lineup as the man who had robbed them. Even if appellant had been unlawfully arrested when the video lineup was created and when the victims identified him, the illegal arrest could not have tainted the witnesses identification from the video lineup. See Crews, 445 U.S. at 473, 100 S. Ct. at 1251 (noting that, the victim s capacity to identify her assailant in court neither resulted from nor was biased by theunlawful conduct committed long after she had developed that capacity ).

Accordingly, we hold that the trial court did not abuse its discretion by denying appellant s motion to suppress evidence because a defendant s face cannot be a suppressible fruit of an illegal arrest. See Pichon, 683 S.W.2d at 426.

We overrule appellant s sole issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.

Do not publish. Tex. R. App. P. 47.4.