James Warren Nelson v. State of Texas--Appeal from 241st District Court of Smith County

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NO. 12-00-00381-CR










After a bench trial, the trial court convicted James Warren Nelson ("Appellant") of retaliation and sentenced him to five years of imprisonment probated for five years. Appellant appeals his conviction bringing one issue for our consideration. We affirm.


The record shows that at approximately 9:00 p.m. on December 24, 1995, Tyler police officers Steven Risinger ("Risinger") and Mike Kuehn ("Kuehn") responded to a report of a family disturbance at 1037 Whiteside in Tyler, Texas. When Risinger arrived, he found that Appellant was involved in a verbal argument with other members of his family. Risinger testified that he came to the conclusion that Appellant was intoxicated because of his belligerent nature toward his family, the officers, and EMS personnel, which had also been dispatched to the scene, and because he detected the odor of alcohol on his breath and person. After about ten minutes, Risinger decided to leave because Appellant had calmed down. Risinger believed that the family would be able to resolve the situation and that the presence of police was agitating the situation. He did not give any tickets or make any arrests because he did not believe that a criminal violation had occurred.

About twenty minutes after Risinger and Kuehn left, they got another call to respond to a family disturbance at 1037 Whiteside. This time two additional Tyler police officers, John Portlow ("Portlow") and Harold Snyder, responded as well. The officers approached on foot and Risinger observed Appellant, Appellant's father, David Nelson, and Charles Nelson on the front porch. Risinger testified that he heard Appellant say to David Nelson, "I'm going to blow your mother-fucking head off." Not knowing whether Appellant had a weapon or not, the officers drew their weapons and made a rapid approach to the scene. As they were approaching, Risinger heard Appellant say to David Nelson, "I'm going to kick your ass." At that point, Risinger decided to arrest Appellant for "assault by threat," which is a class C misdemeanor. Risinger advised Appellant that he was under arrest. Appellant resisted Risinger's attempt to put handcuffs on him. Eventually, Risinger and the other officers were able to get the handcuffs on Appellant. Appellant continued to resist, however, and became more upset and belligerent. Appellant began to yell and curse at the officers and his family. After a lengthy struggle, Risinger and the other officers were finally able to get Appellant into a patrol car.

Risinger stated that as he was transporting Appellant to jail, Appellant said, "I'm going to kick your mother-fucking ass" and "You can't fucking do this to me." According to Risinger, Appellant also said, "I'm going to kill you for this when I get out of jail. You don't want to mess with J.W. Nelson." Finally, Appellant said, "I'm going to kill you and your whole mother-fucking family for this." Risinger testified that he made this last statement several times. After Appellant was placed in a detoxification cell at the Smith County Jail, Risinger completed a report charging Appellant with assault by threat, resisting transportation, and retaliation.

The Texas Penal Code provides that a person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a public servant. Tex. Pen. Code Ann. 36.06(a)(1) (Vernon Supp. 2002). The indictment in this case alleged that Appellant "did then and there intentionally and knowingly threaten to harm another, to wit: Steven Risinger and his family by an unlawful act, to wit: threatening to kill the said Steven Risinger and his family, in retaliation for and on account of the service of the said Steven Risinger and his family as a police officer for the City of Tyler." Appellant filed a motion to suppress the statements he made to Risinger after he was arrested. The trial court carried the motion through the trial. Risinger, Portlow, and a deputy with the Smith County sheriff's department were the only witnesses to testify at trial. At the close of evidence, the trial court denied the motion to suppress and found Appellant guilty of retaliation.

Motion to Suppress

In his sole issue, Appellant complains that the trial court erred in denying his motion to suppress. Appellant argues that his arrest was illegal and, therefore, his statements to Risinger made after his arrest should have been suppressed.

Standard of Review

In reviewing a trial court's ruling on a motion to suppress, an appellate court should generally afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The identical amount of deference should be given to the trial court's rulings on application of law to fact questions, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. "The appellate courts may review de novo 'mixed questions of law and fact' not falling within this category." Id.

In accordance with these principles, de novo review is appropriate when an appellate court is presented with a question of law based on uncontroverted testimony and there is no indication that the trial court did not believe that testimony. State v. Ross, 853, 857-58 (Tex. Crim. App. 2000); Oles v. State, 993 S.W.2d 103, 105-06 (Tex. Crim. App. 1999); Maestas v. State, 987 S.W.2d 59, 62-63 n.8 (Tex. Crim. App. 1999). Here, Risinger's version of the facts was uncontroverted and the trial court's ruling was not contrary to his testimony. Thus, we review the trial court's application of the law de novo, while affording almost total deference to the trial court's determination of the historical facts. Guzman, 955 S.W.2d at 89; Reynolds v. State, 962 S.W.2d 307, 309 (Tex. App. - Houston [14th Dist.] 1998, pet. ref'd). When, as here, the trial court does not make explicit findings of historical fact, we view the facts adduced at the suppression hearing in the light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Vargas v. State, 18 S.W.3d 247, 251 (Tex. App.-Waco 2000, pet. ref'd).


Risinger testified that he arrested Appellant for "assault by threat." A person commits assault if the person intentionally or knowingly threatens another with imminent bodily injury. Tex. Pen. Code Ann. 22.01(a)(2) (Vernon Supp. 2002). An assault committed under section 22.01(a)(2) is a class C misdemeanor. Tex. Pen. Code Ann. 22.01(c) (Vernon Supp. 2002)

Appellant acknowledges that pursuant to article 14.01(b) of the Texas Code of Criminal Procedure, "[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view." Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). He argues, however, that his arrest was illegal because there is no evidence that his statements amounted to a threat of imminent bodily injury, as required by section 22.01(a)(2). More specifically, Appellant argues that there is no evidence that he was "on the verge of carrying out the stated intention or whether he had the present ability to carry out such intention." He contends that because he was intoxicated and there is no evidence of present ability to carry out his stated intention, the statements in question were merely "boastful words with no assaultive intent." Appellant also points out the alleged victim did not testify that his statements were threatening to him.

In reviewing a warrantless arrest to determine the existence of probable cause, we consider the facts known to the officer at the time of the arrest. Amores v. State, 816 S.W.2d 407, 415 (Tex. Crim. App. 1991). Whether probable cause exists is determined by applying the totality of the circumstances test. Id. at 413. The State bears the burden of proving the existence of probable cause to justify a warrantless arrest or search. Id. An officer has probable cause to make an arrest when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, are sufficient themselves to warrant a person or reasonable caution in the belief that a particular person has committed or is committing an offense. Id.

A threatened injury is "imminent" if it is "near at hand" or "on the verge of happening." Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989) (interpreting term "imminent" in robbery statute). Risinger testified that he responded to two family disturbance calls at 1037 Whiteside, one at 9:00 p.m. and another about thirty minutes later. During the first call, Risinger (1) heard Appellant use profane language, (2) concluded that Appellant was intoxicated, and (3) observed Appellant acting in a belligerent manner toward his family, the police, and EMS personnel. Upon the second report of a family disturbance at 1037 Whiteside, Risinger, Kuehn and two additional officers proceeded to the scene. Risinger testified that:


Since we had been there before and we knew-first of all, with it being the holiday time, we expect family disturbances. They're a common occurrence, not just here in Tyler but all over America. Emotions run high on the holidays.

Family disturbances are a dangerous call for the police to go on. Again, you have family members together. Emotions run high. Those can be very difficult calls for police to work.

So for officer safety, we parked about half a block away, we turned our headlights off on our vehicles, our patrol vehicles, before we entered the area, and then we approached on foot so we could have a better view of anything that was going on at the scene and/or hear anything that was going on at the scene.


Risinger stated that as they approached, he saw Appellant, David Nelson and Charles Nelson on the front porch. He heard Appellant say to David Nelson, "I'm going to blow your mother-fucking head off." When asked what he did then, Risinger testified that:


Based upon the experience that we had in the previous call; we'd been called back out here to another disturbance; they are in very close proximity; I hear him make a direct threat against another family member; we can't tell at this point whether he has any sort of a weapon in his hand where he can immediately carry out that threat.

So the other two officers and I make a rapid approach on the scene; we have our weapons at the gun-ready position, again, because we don't whether he has a weapon or not; and as we're going up there, we hear more threats that are made.


Risinger stated that he then heard Appellant say to David Nelson, "I'm going to kick your ass." He testified that based upon those two threats, he made the decision to arrest Appellant for assault by threat.

Although there is no evidence in the record that Appellant had a firearm on his person or that there was a firearm on the premises, we conclude that, based on the totality of the circumstances, a reasonable person could have believed that Appellant had committed assault when he said "I'm going to kick your ass," which would not have required the use of a firearm. Tex. Pen. Code Ann. 22.01(a)(2). Specifically, we hold that Risinger could have reasonably concluded that the threatened injury was "near at hand." Devine, 786 S.W.2d at 270.

With regard to Appellant's contention that the fact he was intoxicated meant that his statements were merely boastful words, we note that voluntary intoxication does not constitute a defense to the commission of crime. Tex. Pen. Code Ann. 8.04(a) (Vernon 1994); Hudspeth v. State, 31 S.W.3d 409, 411 (Tex. App.-Amarillo 2000, pet. ref'd). Further, the fact that Appellant was intoxicated could have led a reasonable person to believe that the likelihood of Appellant acting on his statements was greater, rather than less. Moreover, the State need not prove the ability to commit a battery for a defendant to be convicted of assault. DeLeon v. State, 865 S.W.2d 139, 142 (Tex. App.-Corpus Christi 1993, no pet.).

Concerning Appellant's assertion that the victim did not testify that Appellant's statements were threatening to him, we note that whether the victim felt threatened or was afraid is not an element of assault. See Williams v. State, 827 S.W.2d 614, 616 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd) (comparing requirement in robbery prosecution that State prove that victim was placed in fear of imminent bodily injury with requirement in assault prosecution that State prove that the accused threatened the victim with imminent bodily injury). Since Risinger had probable cause to arrest Appellant, there is no basis upon which Appellant's statements to Risinger could be suppressed.

Furthermore, even if we were to conclude that Risinger lacked probable cause to arrest Appellant, we would still conclude that there was no basis upon which his statements could be suppressed. While the parties do not cite any authority pertaining to the effect of an unlawful arrest on a charge of retaliation, and we have found none, the State analogizes to prosecutions for resisting arrest. As the State points out, it is no defense to prosecution for resisting arrest that the arrest was unlawful. State v. Mayorga, 901 S.W.2d 943, 945 (Tex. Crim. App. 1995). We conclude that the same rationale is applicable here. Even if Appellant's arrest was unlawful, it would not justify or excuse Appellant's statements of his intention to kill Risinger and his family. Finally, we note that the exclusionary rule contained in article 38.23 of the code of criminal procedure, (1) only applies to illegally obtained evidence of a previously committed crime. Id. at 946. Again, analogizing to resisting arrest cases, evidence that a person threatened retaliation against an officer does not exist before the allegedly illegal arrest because the crime of retaliation has not yet been committed. Id. Thus, article 38.23 is inapplicable to the facts at hand.


For all of the foregoing reasons, we conclude that the trial court did not err in denying Appellant's motion to suppress. Accordingly, Appellant's sole issue is overruled.

The judgment of the trial court is affirmed.



Chief Justice


Opinion delivered March 20, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.


1. Article 38.23 provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. . .