Michael Henderson v. The State of Texas--Appeal from 258th District Court of Polk County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-02-504 CR
____________________
MICHAEL DEVELLE HENDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. 16,494
MEMORANDUM OPINION

A jury convicted Michael Develle Henderson of aggravated robbery following his plea of guilty to the offense. The jury sentenced Henderson to twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. Henderson appeals raising five issues.

Lorene Rentaria was 80 years of age on the date of the robbery. Around 2:00 a.m., two men broke through her front door and assaulted her, demanding money. They stole her television. Subsequent to the trial court denying Henderson's motion to suppress, he pleaded guilty.

Issues one through four argue the trial court erred in denying Henderson's motion to suppress his written statement to police. Detective Mike Parrish was investigating the robbery of Rentaria when he recovered the stolen television and received information linking Henderson to the television. Parrish then prepared a probable cause affidavit and warrant charging Henderson with an earlier felony theft involving a stolen go-cart. Henderson was arrested and at the police station gave a statement regarding the robbery of Rentaria. Henderson contends there were two material omissions from the affidavit supporting the arrest warrant; thus the warrant lacked probable cause and the resulting custodial statement is inadmissible.

The affidavit avers Mike Fuller reported a go-cart had been stolen by three unknown black males, who left Fuller's business with it in the back of a Ford truck belong to Arbie Armstead. Armstead stated he had loaned the truck to Marvin Smith, Brian Cooper and Michael Henderson. Parrish interviewed Cooper, who stated he witnessed Smith and Henderson in possession of the stolen go-cart and had assisted them in selling it to Mike Mitchell. The stolen go-cart was recovered from Dioncio Corona, who said he purchased it from Mitchell.

Henderson first claims Detective Parrish knew Brian Cooper lied about selling the go-cart to Mike Mitchell. The basis of Henderson's claim is that Mitchell had said he did not buy the go-cart from anyone, he found it in a field. This contention ignores that, according to the affidavit, Cooper's information is corroborated by Dioncio Corona, who said he purchased it from Mitchell. Henderson has not demonstrated that Cooper lied, much less that Detective Parrish was aware of it.

Second, Henderson charges that Detective Parrish omitted from the affidavit that Cooper was an accomplice. While the affidavit does not call Cooper an "accomplice," his involvement is clear from the facts recited. Therefore Cooper's reliability, or lack thereof, was not concealed from the neutral magistrate. Issues one through four are overruled.

Issue five contends Henderson's written statement failed to meet the requirements of article 38.22. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2004). We disagree. The written statement clearly contains the required warnings. As to the waiver, we find it substantially complies with article 38.22(2)(b). (1) See Garcia v. State, 919 S.W.2d 370, 378-79, 387 (Tex. Crim. App. 1996) (op. on rehearing); Castelan v. State, 54 S.W.3d 469, 480 (Tex. App.--Corpus Christi 2001, no pet.); Gutierrez v. State, 945 S.W.2d 287, 290 (Tex. App.--San Antonio 1997, no pet.). Issue five is overruled.

The judgment of the trial court is AFFIRMED.

PER CURIAM

Submitted on December 29, 2003

Opinion Delivered January 28, 2004

Do not publish

 

Before McKeithen, C.J., Burgess, and Gaultney, JJ.

1. It provides, "I hereby state that this statement is given of my own free will, and that I have not made a request for the advise [sic] or presence of a lawyer before or during any part of this statement, nor at any time before it was finished did I request that this statement be stopped. I also declare that I was not told or prompted what to say in this statement."