Leon Russell Dawson a/k/a Leon Russel Dawson v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Memorandum Opinion filed November 6, 2008

Affirmed and Memorandum Opinion filed November 6, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00652-CR

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LEON RUSSELL DAWSON A/K/A LEON RUSSEL DAWSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1075748

M E M O R A N D U M O P I N I O N

Appellant, Leon Russell Dawson, was convicted of capital murder by a jury and sentenced to life in prison. Appellant now appeals his murder conviction, asserting that the trial court erred in admitting extraneous-offense evidence and his videotaped confession. We affirm.

I. BACKGROUND

On July 7, 2006, Anand Sharma was working at a gas station in Southwest Houston. Shortly before midnight, appellant entered the store and robbed Sharma at gunpoint. Sharma grabbed a small knife, and appellant shot him in his right temple. Sharma later died at a nearby hospital.

Sharma=s murder was captured on videotape from the store security camera. Homicide investigators retrieved the videotape and released photographs to Crime Stoppers. Among the several tips received by law enforcement was appellant=s mother, who contacted police and identified the shooter in the videotape as her son. Appellant=s mother told police that appellant had shaved his hair completely off and was possibly leaving town. Appellant=s friend, Jervani Jones, told police that he provided appellant with the gun used in the robbery and drove appellant to the gas station on the night of the robbery. Jones told police that he knew appellant planned to rob the store when he drove appellant to the gas station. Based on this information and other tips, homicide investigators began surveillance of appellant.

On the first day of surveillance, officers observed appellant packing clothes and other personal items into a car with the assistance of his mother and sister. Appellant had changed his appearance as described to police by his mother. Officers arrested appellant; he was handcuffed, placed into a police unit, and given his statutory warnings. Appellant waived his statutory rights and later gave officers a videotaped statement. Appellant admitted to shooting Sharma and identified the location of the murder weapon. Appellant told officers that he did not intend to kill Sharma; rather, he shot Sharma after Sharma approached him with a knife, and he intended to shoot him only in the shoulder.

Appellant was charged by indictment with capital murder. He pleaded not guilty, and the case was tried before a jury. The jury convicted appellant of capital murder and sentenced him to life in prison. On appeal, appellant contends that the trial court erred by admitting: (1) extraneous-offense evidence and (2) his videotaped confession.

II. EXTRANEOUS OFFENSES

In appellant=s first issue, he argues that the trial court erred in admitting extraneous-acts evidence at the guilt phase of the trial. He argues that the admission of the following acts violated Texas Rules of Evidence 404(b), 403, and 609: (1) appellant=s prior felony probation violations, (2) appellant=s bad acts during his stay at the Texas Youth Center (ATYC@), which included assault, disorderly conduct, and abusive language; and (3) appellant=s prior incidents of school fighting and physical threats to teachers.

A. Rule 404

We review a trial court=s ruling on admission of evidence for an abuse of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). While evidence of other crimes, wrongs, or acts is not admissible Ato prove the character of a person in order to show action in conformity therewith,@ it may be admissible for another purpose, such as intent and state of mind. Tex. R. Evid. 404(b); Berry v. State, 233 S.W.3d 847, 858 (Tex. Crim. App. 2007). Extraneous-offense evidence may also be admissible when a defendant raises an affirmative defense, such as self-defense. See Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). Applying the relevant standard of review, we conclude that the challenged extraneous-acts evidence was admissible for the purpose of rebutting appellant=s self-defense claim and to show appellant=s state of mind at the time of the murder.

Appellant did not contest the fact of his conduct; rather, the contested issue was his intent. At trial, appellant vehemently denied having the intent to kill Sharma, and testified that he acted in self-defense. Specifically, appellant testified that Sharma was the aggressor on the night of the murder and that Sharma attempted to stab appellant with a knife. Once appellant claimed he acted in self-defense, the State was allowed to rebut the defense with evidence of other crimes, wrongs, or acts, or evidence of violent acts where appellant was the aggressor. See Lemmons v. State, 75 S.W.3d 513, 522-23 (Tex. App.CSan Antonio 2002, pet. ref=d) (holding that extraneous offense offered by the State to show murder defendant was aggressor in the past was relevant to rebut his self-defense claim).

Consistent with rule 404(b), the State introduced extraneous-acts evidence that rebutted appellant=s claim of self-defense. The extraneous-acts evidence showed that appellant initiated physical altercations without provocation. These unprovoked violent altercations were reoccurring and in close proximity in time to the murder. Appellant=s immediate history of unprovoked violent behavior rebuts his defensive theory that he was not the aggressor on the night of the murder and acted in self-defense. See id.; see also Simmons v. State, No. 14-00-01365-CR, 2002 WL 370033, at *1 (Tex. App.CHouston [14th Dist.] Mar. 7, 2002, no pet.) (not designated for publication) (concluding that testimony of the defendant=s prior bad act of taunting a neighbor was admissible to rebut his self-defense claim).

Furthermore, appellant testified that he had been diagnosed with mental and emotional disorders, requiring him to take medication; however, he was not taking the medication at the time of the murder. The extraneous-acts evidence shows that appellant committed bad acts while he was on his medication. Evidence of appellant=s previous bad acts while on his medication is relevant to show that his present criminal act was not due solely to his failure to take his medication at the time of the murder. Thus, the extraneous-offense evidence is relevant to appellant=s intent and his state of mind at the time of the murder.

The complained-of evidence had a purpose apart from character conformity: it was relevant to show that appellant acted intentionally and knowingly with respect to the instant crime and to rebut the defensive theories of self-defense and accident. The trial court=s decision to admit this evidence was within the zone of reasonable disagreement and not an abuse of discretion. See Berry, 233 S.W.3d at 858.

B. Rule 403

Appellant further contends that the evidence should have been excluded under rule 403. Although admissible under rule 404(b), the same evidence may be inadmissible under rule 403 if the probative value of such evidence is substantially outweighed by unfair prejudice. Prince v. State, 192 S.W.3d 49, 56 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). The following factors are taken into consideration when undertaking a rule 403 analysis: (1) the inherent probative force of the proffered evidence; (2) the proponent=s need for that evidence; (3) any tendency of the evidence to suggest decision on an improper basis; (4) any tendency of the evidence to confuse or distract the jury from the main issues; (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence; and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

Appellant=s intent could not be inferred from his actions, and he attempted to rebut the evidence of specific intent. As discussed above, the extraneous-offense evidence was highly probative of appellant=s intent, a material issue at trial. Because the evidence has substantial probative value, there was little tendency to suggest a decision on an improper basis or to confuse or distract the jury from the main issues. It took the State little time to present the evidence to the jury. Appellant identifies no similar evidence that the State could have used to rebut his defensive theories. See id.

In balancing the inherent probative value of the extraneous-acts evidence and the State=s need for the evidence against rule 403's counterfactors, the trial court could have reasonably concluded that the evidence was not unfairly prejudicial and did not have a tendency to suggest a decision on an improper basis or to confuse or mislead the jury. Considering all the relevant factors, we conclude that the trial court did not abuse its discretion in admitting the evidence over appellant=s rule 403 objection.

C. Rule 609

Lastly, appellant contends that the extraneous acts were improper impeachment evidence under rule 609. To properly preserve an issue for appellate review, there must be a timely objection specifically stating the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). An objection based on one legal theory may not be used to support a different legal theory on appeal. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993). The complaint appellant now raises does not comport with the objection he voiced at trial. At trial, appellant objected that the evidence was inadmissible under rules 403 and 404. On appeal, he additionally argues that the evidence is improper impeachment. An objection that evidence is irrelevant and prejudicial is different from an objection that evidence is being used to improperly impeach a witness. See Tex. R. Evid. 609. Therefore, appellant has waived error on his rule 609 challenge. See Cook, 858 S.W.2d at 474.

We overrule appellant=s first issue.

 III. SUPPRESSION OF APPELLANT=S CONFESSION

In appellant=s second issue, he argues that the trial court erred in overruling his motion to suppress his statements because they were the result of an illegal, warrantless arrest. Appellant=s motion to suppress sought to exclude his videotaped statements made shortly after being taken into custody.[1]

A. Standard of Review

We review a trial court=s suppression ruling under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At a suppression hearing, the trial judge is the sole fact-finder. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). We give almost total deference to the trial court=s determination of historical facts when supported by the record, particularly if the findings turn on witness credibility and demeanor. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The same deference is accorded to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and demeanor. Ross, 32 S.W.3d at 856. Issues that present purely legal questions are considered under a de novo standard. Id.

When, as here, the trial court declines to file 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 supporting its rulings, as long as those findings are supported by the record. Id. at 855; Carmouche, 10 S.W.3d at 327-28. In determining whether a trial court=s decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, the general rule is inapplicable when, as in this case, the suppression issue is addressed during trial, after related testimony has been offered. See Saldivar v. State, 209 S.W.3d 275, 281 (Tex. App.CFort Worth 2006, no pet.) (considering evidence adduced before and during suppression hearing where motion was carried to trial).

Moreover, when evidence relevant to the suppression issue is consensually litigated by the parties after the trial court=s suppression ruling at trial, we consider the evidence to have been re-opened. Rachal, 917 S.W.2d at 809. Shortly after the trial court=s suppression ruling, the State presented evidence to the jury justifying appellant=s warrantless arrest through the testimony of Detective Selvera and Officer Conner. This evidence was pertinent only to the legality of appellant=s warrantless arrest. Because the State and appellant examined Detective Selvera and Officer Conner on this matter, the evidence is considered re-opened. See id. (reasoning that where the State presents evidence pertinent to the suppression issue at trial without objection or with subsequent participation in the inquiry by the defense, the suppression evidence is re-opened and an appellate court may consider it in its review). Thus, we may properly consider the trial testimony of Detective Selvera and Officer Conner relevant to the issue of appellant=s warrantless arrest and his post-arrest confession in our review of the trial court=s suppression determination. See Zuniga v. State, No. 08-04-00344-CR, 2006 WL 2516474, at *3 (Tex. App.CEl Paso Aug. 31, 2006, no pet.) (not designated for publication) (reasoning that evidence admitted after suppression hearing that was pertinent only the to the issue of standing, which was the basis of the suppression hearing, could be considered by the appellate court in determining an abuse of discretion). We will sustain the trial court=s ruling if it is reasonably supported by the evidence and is correct on any theory of law applicable to the case. Villarreal, 935 S.W.2d at 138.

Generally, an officer must obtain a warrant prior to making an arrest. Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990);Hogan v. State, 631 S.W.2d 159, 161 (Tex. Crim. App. 1982). A warrantless arrest is permitted when (1) probable cause for the arrest exists, and (2) at least one of the statutory exceptions is met. Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008); McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003).

B. Probable Cause

Probable cause exists where police have reasonably trustworthy information sufficient to warrant a reasonable person=s belief that a suspect has committed or is committing an offense. McGee, 105 S.W.3d at 614. In this case, officers retrieved a videotape that captured the fatal robbery. Appellant=s mother and family members identified appellant as the shooter in the videotape. Jones also told police that he drove appellant to the gas station and knew that appellant intended to rob the store. This reasonably trustworthy information is sufficient to warrant a reasonable person to believe that appellant committed murder. The evidence reflects that officers had probable cause to arrest appellant.

C. Statutory Exception Under Article 14.04

We must now determine whether a statutory exception was met. Article 14.04 provides that Awhere 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. art. 14.04. The rule breaks down into four elements: (1) the person who gives the information to the officer must be credible; (2) the offense must be a felony; (3) the offender must be about to escape; and (4) there must be no time to procure a warrant. Fry v. State, 639 S.W.2d 463, 469 (Tex. Crim. App. 1982).

The record reflects that officers received credible information that appellant was the shooter in the murder, that he was about to escape, and there was no time to procure a warrant. Detective Selvera and Officer Conner testified that at the time of appellant=s arrest, officers had a videotape that captured appellant=s committing the murder. Appellant=s family members identified appellant in the surveillance tape as the shooter. Appellant=s mother also told the police that appellant had changed his appearance and was possibly leaving town. Appellant was packing clothing and other personal items into a car when officers arrived at his apartment. We conclude that there is sufficient evidence under article 14.04 for appellant=s arrest.

We find that the evidence supports the trial court=s implicit finding that the officers were justified in arresting appellant without a warrant. Accordingly, we overrule appellant=s second issue. We affirm the trial court=s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed November 6, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The State argues that appellant failed to object to the admission of the videotaped confession and has therefore waived this issue. We disagree. The record reflects that appellant filed a pre-trial motion to suppress the confession, alleging that he was illegally arrested or detained. The motion was carried to trial. When the State sought to introduce the confession, the jury was dismissed, and the trial court conducted a suppression hearing. At the suppression hearing, appellant argued the illegality of the confession and told the judge that he stood Aon what=s recited in the two motions that [were] on file.@ We conclude that appellant has preserved his suppression issue for review. See Tex. R. App. P. 33.1.