Belton v. State

• Decision Date: 18 May 1995
• Docket Number: No. 08-93-00209-CR,08-93-00209-CR
• Citation: 900 S.W.2d 886
• Parties: Vanjarmar Nash BELTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 886

900 S.W.2d 886

Vanjarmar Nash BELTON, Appellant, v. The STATE of Texas, Appellee.

No. 08-93-00209-CR.

Court of Appeals of Texas El Paso.

May 18, 1995.

Rehearing Overruled June 21, 1995.

Christopher C. Driver, San Antonio, for appellant.

Jaime E. Esparza, Dist. Atty., El Paso, for State.

Before McCLURE, CHEW and MILLER, JJ.

OPINION

CHUCK MILLER, Justice (Retired), Sitting by Appointment.

Appellant was convicted of two counts of aggravated robbery and received 60 years' confinement for count one, and 75 years' confinement for count three, count two having been directed out by the trial court. Appellant's motion for new trial was denied and thereafter he perfected appeal to this Court. Appellant brings eleven points of error challenging his conviction. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

In a three count indictment, appellant was charged with the capital murder of Armando Murillo and the attempted capital murder of Myra and Lisa Murillo. Appellant was convicted on counts one and three of the lesser included offense of aggravated robbery against Armando Murillo and Lisa Murillo.

On the night of December 18, 1991, Mrs. Murillo and her three children, Armando, Myra, and Lisa, were in Mrs. Murillo's home getting ready to go shopping for Christmas presents. Two men came to the door "who wanted to talk." Mrs. Murillo did not recognize them so she informed them that she was sick and could not come to the door. Shortly thereafter, the two men broke into the Murillo home. Both of the men carried guns. Appellant used his gun to beat Armando Murillo on the head. The assailants repeatedly told the Murillos to "shut the fuck up" and demanded "the money." The Murillos kept telling them that they did not have any money. The men then ordered the Murillos to get on the ground and the women handed their jewelry over to them. One of the men started rampaging through the home, presumably looking for money. One assailant asked for a car and Lisa Murillo threw him the car keys. The two men then shot Armando, Mrs. Murillo, and Lisa, killing Armando.

II. DISCUSSION

In his first point of error, appellant claims the trial court erred in denying his motion to suppress his confession and in denying, in part, his motions to suppress evidence because both the confession and the evidence were obtained pursuant to an unlawful arrest. Appellant asserts that his arrest was unlawful because he was arrested prior to a warrant being issued and the arrest warrant that was issued was invalid because it did not bear the time of its issuance and the supporting affidavit failed to state probable cause. Because appellant challenges the denial of his motion to suppress his confession again in Point of Error Two, we will discuss that complaint when we address appellant's second point.

The trial judge is the exclusive judge of the credibility of witnesses and weight to be given the testimony at a hearing on a motion to suppress, and the judge may believe or disbelieve any, part, or all of any witness's testimony. Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991), cert. denied, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444 (1992); Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991); State v. Morgan, 841 S.W.2d 494, 496 (Tex.App.--El Paso 1992, no pet.). On appeal, a reviewing court does not engage in its own factual review but decides only whether the trial judge's fact findings are supported by the record. Lucas v. State, 791 S.W.2d 35, 47 (Tex.Crim.App.1989).

The Court of Criminal Appeals has placed the initial burden of proof on a defendant when he seeks to suppress evidence. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). As the movant in the motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct. Id. When a defendant challenges the validity of an arrest or search and the State produces a warrant valid on its face, the defendant then must go forward to establish the invalidity of the warrant on some ground. Rumsey v. State, 675 S.W.2d 517, 520-21 (Tex.Crim.App.1984); see also Miller v. State, 736 S.W.2d 643, 648 (Tex.Crim.App.1987).

Appellant first claims that his arrest was illegal because he was arrested prior to a warrant being issued. Appellant, however, does not direct this Court's attention to any references in the record in support of his allegation. The only "evidence" appellant provides to support his contention are out-of-court affidavits prepared by members of his family which are attached to his appellate brief. As this material does not constitute part of the appellate record, we are precluded from considering it. Cook v. State, 741 S.W.2d 928, 938 (Tex.Crim.App.1987), cert. denied, 503 U.S. 998, 112 S.Ct. 1705, 118 L.Ed.2d 413 (1992). Instead, the record reflects that an arrest warrant was obtained prior to appellant's arrest. One of the detectives involved in the case testified that he had the arrest warrant in his hand when he went to appellant's residence to effectuate appellant's arrest.

Appellant next argues that the arrest warrant was invalid because it did not bear the time of its issuance within the four corners of the document. Appellant notes that search warrants are required to contain the time of their issuance and argues that we should extend that requirement to arrest warrants. TEX.CODE CRIM.PROC.ANN. art. 18.07 (Vernon 1977). Texas Code of Criminal Procedure art. 15.02 lists the requirements of an arrest warrant, indicating the warrant is sufficient without regard to form, if it specifies the name of the person whose arrest is ordered, it states that the person is accused of some offense against the laws of the State and names the offense, and is signed by the magistrate and names his office in the body of the warrant. TEX.CODE CRIM.PROC.ANN. art. 15.02 (Vernon 1977). Nowhere does Article 15.02 require that the time of the issuance of the warrant appear on the document. The arrest warrant issued for appellant states appellant's name, that he is accused of attempted capital murder against the laws of the State, and is signed by Judge Horkowitz who noted his office is that of the judge of Municipal Court No. 4. We find the warrant satisfies the requirements of Article 15.02.

Appellant further complains that the arrest warrant is invalid because the underlying affidavit failed to state probable cause. Specifically, appellant urges that the affidavit did not reflect any personal knowledge on the part of the affiant, but was instead based on statements provided by an unidentified eyewitness.

An affidavit in support of an arrest warrant must show probable cause that an offense has been committed, and probable cause that the person named in the affidavit committed the offense. Bell v. State, 747 S.W.2d 898, 901 (Tex.App.--Fort Worth 1988, pet. ref'd); see also TEX.CODE CRIM.PROC.ANN. art. 15.05 (Vernon 1977). The information contained in the affidavit may be based on either direct personal observations of the affiant or on hearsay information. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964). Whether an affidavit in support of an arrest warrant is sufficient to show probable cause must be determined from the four corners of the affidavit itself. Tolentino v. State, 638 S.W.2d 499, 501 (Tex.Crim.App.1982); see also Miller, 736 S.W.2d at 647. Affidavits must be interpreted in a common sense and realistic manner and the magistrate who reviews an affidavit may draw inferences from the facts contained in it. Gibbs, 819 S.W.2d at 830.

Three affidavits were prepared by Detective Jose Ramirez stating that probable cause existed to arrest appellant for capital murder, and two counts of attempted capital murder. The affidavits were all similar in form and stated in pertinent part:

Affiant is in possession of police reports, sworn statements and actual knowledge which states that on 12-18-91 in El Paso County, Texas, VAN NASH BELTON, committed the offense of [CAPITAL MURDER] & [ATTEMPTED CAPITAL MURDER], against [ARMANDO MURILLO] [MYRA MURILLO] [LISA MURILLO].

Investigation revealed that on 12-18-91 the defendant and a companion not yet identified, broke down the door at the address of 1517 Dale Douglass forced their way in and shot the complainant at close range causing [his death] [her severe injuries], and then demanding money and jewelry. Shortly after the defendant and the co-defendant fled the scene, but not before also shooting two other individuals who were also in the home [one of which died at the scene].

An eye witness who was in the home at the time of the incident was able to provided [sic] the name of the defendant as one of the suspects who committed the murder and a positive identification was made via a photographic line-up.

Regardless of the affiant's personal knowledge, we find the affidavit contained sufficient probable cause based on reliable hearsay information. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), originally set forth the standard for determining the sufficiency of an affidavit based on hearsay information. The Supreme Court held that an affidavit had to contain sufficient information to reflect the credibility of the informer, and the underlying facts upon which the informant based his beliefs. Id. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court abandoned the Aguilar two-prong standard and replaced it with the less stringent "totality of the circumstances" test. See Bellah v. State, 653 S.W.2d 795 (Tex.Crim.App.1983).

Despite appellant's allegations that the affidavit reflects no personal knowledge on the part of the affiant, the affidavit does contain a statement that the affiant had in his possession police reports and sworn statements, as well as information from a witness who had actual knowledge, concerning appel...