Atkins v. State, 14-93-00300-CR

• Decision Date: 07 March 1996
• Docket Number: No. 14-93-00300-CR,14-93-00300-CR
• Citation: 919 S.W.2d 770
• Parties: Donald Wayne ATKINS, Appellant v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 770

919 S.W.2d 770

Donald Wayne ATKINS, Appellant v. The STATE of Texas, Appellee.

No. 14-93-00300-CR.

Court of Appeals of Texas Houston (14th Dist.).

March 7, 1996.

Arthur Jackson, Houston, for appellant.

Alan Curry, Houston, for appellee.

Before YATES, FOWLER and O'NEILL, JJ.

OPINION

YATES, Justice.

A jury found appellant Donald Wayne Atkins guilty of possession of a controlled substance. TEX.HEALTH & SAFETY CODE ANN. § 481.115(b) (Vernon 1992). ¹ The trial court assessed punishment at six years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant alleges the trial court erred in: (1) denying his motion to suppress evidence of the cocaine; (2) denying his Batson ² challenge to the jury; (3) submitting an instruction to the jury concerning the duties of peace officers; and (4) overruling his objection to the prosecutor's improper jury argument. Appellant also challenges the constitutionality of article 14.03(a)(4) of the Texas Code of Criminal Procedure, the statute upon which his arrest was predicated. We affirm.

In response to a "911" call, the Houston Police Department dispatched an officer to appellant's residence, where the officer arrested appellant for assaulting his common-law wife. Pursuant to the arrest, the officer conducted a weapons search. Finding no weapons, the officer transported appellant to the police station where he conducted another search of appellant's personal belongings. Inside appellant's wallet the officer found a baggie of cocaine.

In his first point of error, appellant alleges the trial court erred in denying his motion to suppress evidence because the cocaine was obtained in a search incident to an illegal arrest. Appellant contends the arresting officer lacked probable cause to arrest him on the assault charge, and therefore, his arrest was illegal. In reviewing a ruling on a motion to suppress evidence, an appellate court views the evidence in the light most favorable to the trial court's ruling. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App.1980), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981); Posey v. State, 763 S.W.2d 872, 874 (Tex.App.--Houston [14th Dist.] 1988, pet. ref'd). Because the trial judge is the sole fact finder at a hearing on a motion to suppress evidence obtained in a search, an appellate court is not at liberty to disturb any finding supported by the record. Rysiejko v. State, 782 S.W.2d 529, 532 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd). An appellate court will not reverse the trial judge's decision on the admissibility of the evidence unless the judge clearly abused his discretion. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

State law, not federal law, governs the legality of an arrest so long as that law does not violate federal constitutional protections against unreasonable searches and seizures. Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). In Texas, warrantless arrests are authorized only in limited circumstances, and are governed primarily by Chapter Fourteen of the Texas Code of Criminal Procedure. Id. At the hearing on appellant's motion to suppress, the State relied on articles 14.03(a)(2) and 14.03(a)(4) of the code of criminal procedure to support the officer's warrantless arrest. Articles 14.03(a)(2) and (4) provide in pertinent part Any peace officer may arrest, without warrant:

... persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to another person and the peace officer has probable cause to believe that there is danger of further bodily injury to that person;

... or persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person's family or household.

TEX.CODE CRIM.PROC.ANN. arts. 14.03(a)(2), (4) (Vernon Supp.1996).

In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officer at the time of the arrest. Amores, 816 S.W.2d at 415. Subsequently discovered facts or later-acquired knowledge, like the fruits of a search, cannot retrospectively serve to bolster probable cause at the time of the arrest. Id. Whether probable cause exists is determined by applying the totality of the circumstances test. Id. at 413. The State bears the burden to prove 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 of reasonable caution in the belief that a particular person has committed or is committing an offense. Id.

Although the parties dispute many facts, both agree that when the officer arrived at the residence, he found appellant in the front yard and appellant's common-law wife inside the house nursing a small cut above her eye, which she received when appellant slapped her. At the hearing on the motion to suppress, the officer testified that both appellant and his wife stated that the wife called the police. He also said appellant's wife indicated that she wanted her husband arrested. The officer further stated that although appellant's behavior appeared to be normal, and not excited, he feared future violence because the couple had already argued, and the wife had already sustained an injury as a result of that argument. Based on these facts, we find the officer had probable cause to believe that appellant committed an assault upon his wife, and probable cause to believe the wife faced the danger of future injury. Therefore, the arrest was lawful under either provision of article 14.03.

Likewise, the search incident to appellant's arrest was lawful. Searches incident to an arrest are not limited as a matter of law to those made at the instant a suspect is taken into police custody. Rogers v. State, 774 S.W.2d 247, 264 (Tex.Crim.App.), cert. denied, 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989). When booked into a detention facility, and during periods of the detention, a suspect may be thoroughly searched without a warrant to make an inventory of his belongings, or for security reasons. Id.

Because the arrest and the search were lawful, the trial court did not abuse its discretion in denying appellant's motion to suppress the cocaine. Appellant's first point of error is overruled.

In his second point of error, appellant maintains the statute by which appellant was arrested, article 14.03(a)(4) of the Texas Code of Criminal Procedure, is unconstitutional as written and/or as applied to appellant because without a requirement of bodily harm, the statute is vague and overly broad. Without citing authority, appellant argues the statute violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, section 3a of the Texas Constitution because it grants law enforcement officials unbridled and arbitrary authority to subjectively arrest targeted individuals simply because they are members of a family and involved in a family quarrel.

A brief that is conclusory and cites no authority presents nothing for review. Imo v. State, 822 S.W.2d 635 (Tex.Crim.App.1991); Pierce v. State, 777 S.W.2d 399, 418 (Tex.Crim.App.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990); MacDonald v. State, 761 S.W.2d 56 60 (Tex.App.--Houston [14th Dist.] 1988, pet. ref'd). Because appellant cites no specific authority to support this claim, we find this point of error to be inadequately briefed and decline to address it. See Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992); TEX.R.APP.P. 74(f). Appellant's second point of error is overruled.

In his third point of error, appellant contends the State struck three potential jurors solely because of their race, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a prosecutor from exercising his peremptory challenges on the basis of race. Id.; Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); TEX.CODE CRIM.PROC.ANN. art. 35.261 (Vernon 1989).

When reviewing the trial court's determination of a Batson challenge, we apply the clear error standard of review enunciated in Emerson v. State, 851 S.W.2d 269, 273 (Tex.Crim.App.1993) (citing Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App.1992)). This standard requires that we defer to the trial court's finding on the prosecutor's discriminatory intent because that finding will largely turn on the evaluation of credibility. Id. Nevertheless, we determine whether the decision of the trial court is clearly erroneous by looking at the record to determine if it supports the court's findings. In doing so, we review the record, including voir dire, the racial makeup of the venire, the prosecutor's explanations, and the appellant's rebuttal and impeaching testimony. Id.

To raise a Batson challenge, a defendant must establish a prima facie showing of the State's discriminatory use of its peremptory challenge. Emerson, 851 S.W.2d at 271; Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). Once he makes a prima facie showing, the burden shifts to the State to articulate a race-neutral explanation for the use of the questioned peremptory strike. Emerson, 851 S.W.2d at 271-72. A race-neutral explanation is one based on something other than the race of the venireperson. Chambers v. State, 866 S.W.2d 9, 24 n. 16 (Tex.Crim.App.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994) (quoting Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (19...