Carter v. State

• Decision Date: 28 October 2004
• Docket Number: No. 06-03-00095-CR.,06-03-00095-CR.
• Parties: Victor Kenneth CARTER, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

150 S.W.3d 230

Victor Kenneth CARTER, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 06-03-00095-CR.

Court of Appeals of Texas, Texarkana.

Submitted September 29, 2004.

Decided October 28, 2004.

Eddie Northcutt, Sulphur Springs, for appellant.

Martin E. Braddy, Asst. Dist. Atty., Sulphur Springs, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Victor Kenneth Carter, Jr., appeals his conviction for felony assault on a family member, his long-term girlfriend, Pamela Wright.¹ See Tex. Pen.Code Ann. § 22.01(b)(2) (Vernon Supp.2004-2005). Carter stipulated to the jurisdictional prior conviction for assault on a family member.² The sentence was enhanced to a second degree felony by a prior felony conviction for delivery of a controlled substance. See Tex. Pen.Code Ann. § 12.42(a)(3) (Vernon Supp.2004-2005). Carter stipulated to this prior conviction as well. A jury found Carter guilty and assessed his punishment at seventeen years' imprisonment. The trial court sentenced him in accordance with the jury's verdict. Carter appeals, alleging the trial court erred by denying his motion to suppress and by admitting Wright's statements to the police under the "excited utterance" exception to the hearsay rule. We affirm the judgment.

Factual Background

Carter and Wright lived as husband and wife, and had a relationship for approximately thirty years. On a rainy, stormy night, Carter and Wright became involved in a heated argument. On responding to a domestic disturbance call, Kenny Stillwagoner, an officer with the Sulphur Springs Police Department, observed Wright standing in the front yard in the rain with a "busted lip," with blood on her shirt, and with mud and grass on her clothing. Wright informed Stillwagoner that Carter had pushed her down, grabbed her by the face holding her mouth shut, and dragged her through the mud. In the process of responding to the same domestic disturbance call, Brad Horton, also with the Sulphur Springs Police Department, observed Carter walking away from the scene approximately four blocks down the street. Horton recognized Carter and detained him. When Stillwagoner radioed that an assault had occurred, Horton then requested Carter to accompany him to the house where Wright was located. After further investigation, Carter was arrested for assault on a family member. Wright testified at trial that, on the night in question, Carter did not assault her and that she fell in the flower bed. Wright did admit that her lip had been injured that night and that her shirt had blood on it. Wright also admitted she had dropped assault charges against Carter in the past at the request of her children. Wright testified she has used and still does use illegal drugs. In addition, Wright testified that "she lie[s] a lot. When you're on drugs you tend to do that."

Although Wright testified that she had lied to the police and that she simply fell that night, the jury found Carter guilty of felony assault on a family member.

Summary

Carter contends the trial court should have granted his motion to suppress because the police detained him illegally by arresting him without a warrant and without sufficient probable cause. In addition, Carter complains the evidence did not show Wright was still under the stress of excitement caused by the event. Without Wright's statement, Carter argues there is legally insufficient evidence he committed assault on a family member. We first address whether Carter was initially arrested or only detained as an investigatory detention. We conclude the trial court did not abuse its discretion in finding the police only detained Carter rather than arrested him, and the transporting of Carter did not exceed the permissible bounds of an investigatory detention. Second, we address whether the trial court erred in admitting Wright's initial statements to the police under the "excited utterance" exception. We conclude the trial court did not clearly abuse its discretion. Last, this opinion determines the evidence was legally sufficient.

Carter was not Illegally Arrested

Carter contends the trial court erred in not granting his motion to suppress because the police arrested him without sufficient probable cause or a warrant. Both Stillwagoner and Horton received a dispatch call concerning a family disturbance which allegedly occurred at 732 Fuller Street. Stillwagoner proceeded directly to 732 Fuller Street. While responding to the dispatch call, Horton observed Carter at the 300 block of Fuller Street, walking away from 732 Fuller Street. Horton testified he knew Carter well and knew him on sight. Horton called Carter over to his car and questioned him about "what was going on as far as the call that [the police] had received." When Horton received a call from Stillwagoner that an assault had occurred, Horton asked Carter to get into the car and transported him to 732 Fuller Street. The State contends Carter's detention at 300 Fuller Street constituted only an investigatory detention, but Carter contends the detention constituted an arrest.

A trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's fact-findings are based on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000). At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We are also to afford such deference to a trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those questions turns on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856. We may review de novo those questions not turning on credibility and demeanor. Id. Where, as here, a trial court makes no explicit findings of historical fact, the appellate court should view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).

In Harris, Chief Justice Cornelius described the categories of police interaction with civilians as follows:

There are three general categories of police and civilian interaction. The first category is that of an encounter. Police officers do not violate the Fourth Amendment by merely approaching an individual in public to ask questions. Such an encounter does not require any justification whatsoever on the part of an officer. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986).

The second category is that of a temporary or investigative detention. This is a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Such a detention requires that the officers have a reasonable suspicion that the person detained is involved in criminal activity. Daniels v. State, 718 S.W.2d at 704-05.

The third category is that of an arrest. An arrest must be justified by probable cause to believe that the suspect has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 416 (Tex.Crim.App.1991); see generally Francis v. State, 896 S.W.2d 406 (Tex.App.-Houston [1st Dist.] 1995, pet. granted).

Harris v. State, 913 S.W.2d 706, 708 (Tex.App.-Texarkana 1995, no pet.). The central issue with which we must be concerned in this case is into which of these categories did the officer's detention of Carter fall.

"Unlike an encounter, an investigative detention and an arrest are seizures." Josey v. State, 981 S.W.2d 831, 838 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). Since both an investigative detention and an arrest involve a seizure of the citizen, a certain objective level of suspicion must be shown by the officer to justify the seizure. State v. Larue, 28 S.W.3d 549, 553 n. 8 (Tex.Crim.App.2000). If the interaction involves an investigative detention, the officer must show reasonable suspicion the citizen is connected to criminal activity. Id. If the interaction is an arrest, the officer must show probable cause to believe the citizen has engaged in or is engaging in criminal activity. Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App.1996).

Our inquiry requires us to consider the difference between an investigatory detention and an arrest. Article 15.22 of the Code of Criminal Procedure provides that "[a] person is arrested when he has been actually placed under restraint or taken into custody...." Tex.Code Crim. Proc. Ann. art. 15.22 (Vernon 1977). The Texas Court of Criminal Appeals has interpreted the above statute to require consideration of the degree of the restriction or restraint to distinguish an arrest from other detentions.³ The relevant inquiry according to the Texas Court of Criminal Appeals is whether "appellant had been restricted or restrained in his liberty to such a degree as to constitute an arrest." Amores, 816 S.W.2d at 412. An "arrest" occurs "when a person's liberty of movement is successfully restricted or restrained, whether this is achieved by an officer's physical force or the suspect's submission to the officer's authority." Medford, 13 S.W.3d at 773. In Medford, the Texas Court of Criminal Appeals held an arrest is complete only if "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of...