Richard Darnell Miles v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-99-00743-CR
Richard D. MILES,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-6459
Honorable Robert Barton, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 24, 2001

AFFIRMED

A jury convicted the appellant, Richard D. Miles, of burglary. Miles appeals his conviction in this appeal by challenging the trial court's ruling on his motion to suppress and his request for an in-court line-up. Because we find that the trial court properly denied the motions, we affirm the judgment of the trial court.

Miles's Motion to Suppress

In his motion to suppress, Miles argued that no probable cause existed to arrest him because the apparel description provided by an eye witness did not match what he was wearing at the time he was arrested, and because the eye witness identified him under extremely suggestive circumstances. After hearing the eye witness's testimony, the trial judge denied the motion. On appeal, Miles argues that he was arrested without probable cause, a warrant, or an exception to the warrant requirement. Miles argues that the State failed to meet its burden in proving that probable cause existed to arrest him because the State presented no evidence about why the arresting officer decided to place him under arrest, or about the absence of a warrant.

"Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed . . . an offense." Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). The court of appeals applies a bifurcated standard of review when reviewing a trial judge's ruling on a motion to suppress attacking probable cause, giving almost total deference to the trial court's determination of historical facts, and reviews the trial court's application of the law of search and seizure de novo. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman, 955 S.W.2d at 88-89. Where the trial court does not make explicit findings of historical fact, as in this case, we review the evidence in the light most favorable to the trial court's ruling. See Carmouche, 10 S.W.3d at 327-28. We review the trial court's determination of probable cause de novo. See Carmouche, 10 S.W.3d at 328;Guzman, 955 S.W.2d at 87.

Miles complains on appeal about the State's failure to present evidence about why the arresting officer arrested him and the absence of a warrant, but these complaints were not grounds in the motion to suppress. Instead, Miles argued at trial that the eye witness's identification was unreliable because of the circumstances under which the witness observed him, because the witness's description of clothing did not match what he was wearing when he was arrested, and because the eye witness identified him hand-cuffed in the back of a patrol car. As a result, Miles did not preserve his complaint about why the arresting officer arrested him, or about the absence of an arrest warrant. Miles never presented these issues to the trial court. An appellant may not rely on an objection which he did not raise at trial on appeal. See Mayfield v. State, 800 S.W.2d 932, 935 (Tex. App.-San Antonio 1990, no pet.). As a result, we will address only those complaints presented to the trial judge and incorporated into Miles's argument on appeal.

To address Miles's motion, the State presented the testimony of Rudy Sendejo. Sendejo testified that he observed a man outside the door to his apartment at 2:30 a.m. through the peephole. Sendejo stated that he watched the man leave the second story of the apartment complex and appear in the parking lot next to his truck. Sendejo explained that when the man stood next to his truck smoking a cigarette, he became concerned that the man was going to take his truck. Sendejo stated that he observed the man leave his truck and enter a first-floor apartment by removing the screen from the window and entering through the window. He further testified that he called the police to report the entry, observing the window of the apartment until the police arrived. Although he stated that he did not see the man leave the apartment, the police presented a man to him that he identified as the man who entered the apartment through the window. Sendejo identified Miles as that man.

Sendejo stated that he could see the man clearly, explaining that the light outside his apartment door was brighter than the light in the courtroom, and that the parking lot had bright lights at each corner. He further stated that the man he saw outside his door was wearing a green jacket. He admitted that he first described the jacket to the police as a green Army jacket-apparently, the jacket was a green windbreaker-but that he did not recall what type of pants or shoes the man was wearing. Sendejo also stated that the police asked him if he could identify Miles before an officer told him that Miles had been arrested previously, and before he learned that Miles had been apprehended carrying a television set with cigarettes and sea shells in his pocket. Miles explained that he observed the resident of the apartment discover that his television, cigarettes and sea shells were missing from his apartment when the police arrived. Sendejo's testimony was unequivocal about his identity of Miles. Sendejo also explained that about thirty minutes elapsed between the time he first saw the man and when he identified Miles in the back seat of a patrol car.

This testimony not only addressed the complaints discussed in Miles's motion, it bore out the reliability of Sendejo's identification of Miles as the man who entered the complainant's apartment. At the same time, the evidence indicated the police had probable cause to believe Miles burglarized the complainant's apartment. Nonetheless, in the absence of a complaint questioning the facts and circumstances within the arresting officer's knowledge at the time of the arrest, or about the absence of a warrant, the trial judge was not required to consider those issues. The trial judge was required to consider the grounds contained in the motion to suppress. The trial judge addressed those grounds, stating, "The Court believes that any contradictions and inconsistent answers, go to the weight and credibility of his [Sendejo's] testimony and not to its admissibility. The defendant's motion is denied." As a result, we find that the trial judge properly denied Miles's motion to suppress. We overrule this issue.

Miles's Request for In-Court Line-Up

Miles also complains that Sendejo's in-court identification of him should have been suppressed. Miles's in-court identification was the subject of two pretrial motions: the motion to suppress discussed above, and his motion for an in-court line-up. In the motion for an in-court line-up, Miles asked that the State's eye witness be required to identify him from an in-court lineup because the eye witness identified him under extremely suggestive circumstances and because of the poor visibility under which the eye witness observed him-the same grounds contained in the motion to suppress. A defendant, however, does not have the right to a lineup, whether conducted before or during trial. Johnson v. State, 462 S.W.2d 955, 956 (Tex. Crim. App.1971); Maxwell v. State, 10 S.W.3d 785, 787 (Tex. App.-Austin 2000, no pet.). As a result, the trial judge was not required to grant Miles's motion for an in-court line-up. And, as shown above, Sendejo's testimony during the hearing on the motion to suppress bore out the reliability of Sendejo's identification of Miles as the man he saw enter the complainant's apartment. Accordingly, we overrule this issue.

Having overruled both of Miles's issues, we affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH