Bell v. State

• Decision Date: 07 July 2005
• Docket Number: No. 2-03-214-CR.,2-03-214-CR.
• Citation: 169 S.W.3d 384
• Parties: Danny Lee BELL, Sr. a/k/a Danny Lee Bell, Appellant, v. The STATE of Texas, State.
• Court: Texas Supreme Court

Page 384

169 S.W.3d 384

Danny Lee BELL, Sr. a/k/a Danny Lee Bell, Appellant, v. The STATE of Texas, State.

No. 2-03-214-CR.

Court of Appeals of Texas, Fort Worth.

July 7, 2005.

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Law Offices of Moore & Cummings, Larry M. Moore, Fort Worth, for appellant.

Tim Curry, Criminal District Attorney, Charles M. Mallin, Debra Ann Windsor, Mark Thielman, Richard Bland, Assistant Criminal District Attorneys, Fort Worth, for state.

PANEL A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant appeals from his conviction by a jury for the offense of murder. In six points, appellant argues that the trial court erred by (1) failing to include in its charge to the jury an instruction on causation as defined by section 6.04(a) of the penal code, (2) including in its charge to the jury an instruction on the law of parties as defined by section 7.02(a)(2) of the penal code, (3) submitting a supplemental charge to the jury on the issue of transferred intent under section 6.04(b) of the penal code, (4) denying appellant's motion to suppress his written statement, (5) denying appellant's motion to suppress evidence seized from his car, and (6) including in its judgment an affirmative finding of the use of a deadly weapon. We affirm.

II. Background Facts

On January 29, 2000, appellant and his girlfriend Amy Burdick went to the Pink Poodle lounge in Fort Worth. While they were there, appellant's father, who was also at the Pink Poodle that night, got into an argument with Kevin Murphy, who worked at the lounge. In the early morning hours of January 30, Kevin Murphy and James Thompson, a customer, left the Pink Poodle and started walking across the parking lot toward the cafe next door. Appellant and Burdick were in the parking lot at the time, and Burdick got into an argument with Thompson. Appellant and Burdick then got into appellant's car, a maroon Ford Thunderbird. Appellant was driving and Burdick was in the passenger seat. They sped through the parking lot, hitting Thompson. They left the parking lot without stopping to help Thompson, who later died of his injuries.

Cathy Collins had known appellant for around twenty years or more. Collins and her friend Rhonda Burcham lived in a house near the Pink Poodle and were at the Pink Poodle that night. Both later told the police that appellant and Burdick stopped by their house that night and that appellant told them that he had meant to hit Murphy with his car. Burcham told the police that appellant said that he had meant to hit Murphy but had hit Thompson instead.

Fort Worth police arrested appellant at his aunt's home in Tolar, Texas ten days later. Fort Worth police found appellant's car in nearby Somervell County. In a statement to the police, appellant said that on January 30, Burdick and Thompson had argued in the parking lot of the Pink Poodle. Appellant stated that he was just trying to get Burdick out of there and that he drove fast through the parking lot to avoid a confrontation between Burdick and Thompson. According to appellant, as he drove past Thompson, Burdick opened the passenger door, hitting Thompson. She then yelled, "Go, go, go. I got the mother* * * * * *." Appellant stated that he did not intend to hit Thompson. Appellant pled not guilty to one count of murder.

Before his trial, appellant filed several motions to suppress the evidence seized as a result of his arrest, his oral and written statements, and the physical evidence obtained from his car. The trial court denied appellant's motions. A jury found him guilty of murder and assessed his punishment at life imprisonment. Because appellant's fourth and fifth points are potentially dispositive of his appeal, we will address those points first.

III. Appellant's Written Statement

In his fourth point, appellant argues that the trial court erred by denying his motion to suppress his written statement. He argues that his statement resulted from an illegal arrest based on a warrant that lacked probable cause, resulted from violations of articles 15.18 and 15.19 of the code of criminal procedure, and was involuntary.

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex.App.-Fort Worth 2004, pet. filed); Harrison v. State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. granted); Best, 118 S.W.3d at 861-62. However, when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court's rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

A. Arrest Warrant Affidavit

Appellant argues that the affidavit drafted by Detective Jose Antonio Hernandez in support of the warrant for appellant's arrest fails to state sufficient facts from which a neutral and detached magistrate could determine that probable cause existed to believe that appellant murdered Thompson. An affidavit supporting an arrest warrant "must provide the magistrate with sufficient information to support an independent judgment that probable cause exists to believe that the accused has committed an offense." Ware v. State, 724 S.W.2d 38, 39-40 (Tex.Crim.App.1986). Mere conclusions in the affidavit are not sufficient. Id. at 40.

For an arrest to be justified under the Fourth Amendment, there must be probable cause to believe that a person has engaged in or is engaging in criminal activity. Ballman, 157 S.W.3d at 68. We apply a deferential standard of review when reviewing the propriety of an arrest with a warrant. See Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004); Davis v. State, 144 S.W.3d 192, 196-97 (Tex.App.-Fort Worth 2004, pet. ref'd) (op. on reh'g). We look to the "totality of the circumstances" regarding the information contained in the affidavit. Davis, 144 S.W.3d at 196-97. However, our review is limited to examining the four corners of the affidavit to determine whether probable cause exists. Id. at 197.

Here, Detective Hernandez stated in the arrest warrant affidavit that several witnesses, including Kevin Murphy, saw a white male and a white female hit Thompson with their car after arguing with him. Thompson died several days later. Detective Hernandez stated that he met with Cathy Collins and Rhonda Burcham on February 7, 2000 and that both women told him that appellant had visited their house the night Thompson was hit and had told them that he had tried to hit Murphy with his car. According to Burcham, appellant said that he had tried to hit Murphy, but had hit Thompson instead. Further, Detective Hernandez stated that both women identified pictures of appellant and Burdick from a photo line-up as the persons who came to their house that night.

Detective Hernandez's affidavit contained specific facts based on the personal observations of Murphy, Collins, Burcham, and Ronald Schultz, who were identified in his affidavit and interviewed by him. See Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App.1995) (holding that a probable cause affidavit is sufficient if it specifies a named informant as supplying the information upon which probable cause is based and is sufficiently detailed to suggest direct knowledge on the informant's part.) We conclude that these facts provided the magistrate with a substantial basis to make a probable cause determination that appellant committed murder.

B. Articles 15.18 and 15.19 of the Code of Criminal Procedure

Appellant also argues that his written statement should have been suppressed because it resulted from violations of articles 15.18 and 15.19 of the code of criminal procedure. TEX.CODE CRIM. PROC. ANN. arts. 15.18, 15.19 (Vernon 2005). Article 15.18 of the code of criminal procedure requires that a person arrested under a warrant issued in a county other than the one in which the person is arrested be taken before a magistrate of the county in which the person was arrested. Id. art. 15.18. The magistrate shall take bail, if allowed by law, and immediately transmit the bond taken to the court having jurisdiction of the offense. Id. According to article 15.19, if the person fails or refuses to give bail, he shall be committed to the jail of the county in which he was arrested. Id. art. 15.19.

Article 38.23 provides that no evidence obtained by an officer in violation of the Constitution or laws of the State of Texas shall be admitted in evidence against the accused in a criminal case. Id. art. 38.23(a) (Vernon 2005). However, evidence is not "obtained ... in violation" of the law if there is no causal relationship between the illegal conduct and the acquisition of the evidence. Gonzales v. State, 67 S.W.3d 910, 912 (Tex.Crim.App.2002).

Fort Worth police officers and Hood County sheriff's deputies arrested appellant at his aunt's house in Hood County under an arrest warrant that was issued in Tarrant County. He was Mirandized¹ and taken to the Hood County courthouse, where a magistrate advised him of his rights again. After the magistrate...