Goldberg v. State
| Decision Date | 22 August 2002 |
| Docket Number | No. 01-00-00628-CR.,01-00-00628-CR. |
| Citation | 95 S.W.3d 345 |
| Parties | Dror Haim GOLDBERG, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Dick DeGuerin, Matt Hennessy, DeGuerin & Dickson, Houston, for appellant. Alan Curry, Assistant District Attorney, Houston, for state.
Panel consists of Chief Justice SCHNEIDER and Justices TAFT and RADACK.
A jury convicted appellant, Dror Haim Goldberg, of murder and assessed punishment at 45 years confinement and a $10,000 fine. We affirm. In 51 points of error, appellant contends the trial court erred by: (1) denying his motion to suppress evidence because he was illegally arrested; (2) admitting evidence that was both irrelevant and unduly prejudicial; (3) admitting evidence obtained as a result of a school search that took place three years before the offense; (4) admitting irrelevant letters that appellant wrote to a friend two years before the offense; (5) permitting witnesses to identify appellant at trial after they had viewed impermissibly suggestive line-ups; (6) admitting statements that appellant made to German police officers when he was taken into custody; (7) allowing the State to use its peremptory strikes to exclude women from the jury; (8) violating the rule of "optional completeness" by not allowing appellant to introduce the entire statement he made to police after the State introduced other portions of the same conversation; and (9) permitting the State to comment on appellant's decision not to testify. We affirm.
In the late morning or early afternoon of November 27, 1998, a young, white male entered a wig shop at the Weslayan Plaza Shopping Center in Houston, Texas. He walked in, looked around, and left without talking to either Manuela Silverio or Roberta Ingrando, both of whom were working there that day.
At just before 4 p.m. the same day, the same man returned to the wig shop. Mrs. Ingrando saw the man walk up to Ms. Silverio and "punch" her in the neck, so Mrs. Ingrando ran to call the police. The man cut Mrs. Ingrando's wrist, knocking the phone from her hands. He then stabbed her several times, asking her, "Do you like it?" He also told her that he was going to cut her nose and ears and make her pretty. Mrs. Ingrando's husband, Roland, who was working in the back of the store, ran to the front when he heard his wife screaming. Mr. Ingrando threw a tray of hair rollers at the assailant, and then wrestled with the assailant briefly, sustaining several cuts during the struggle. The assailant fled the store.
At the same time, Dr. Randall Beckman was leaving a pet store across the parking lot after purchasing dog food. Dr. Beckman saw the assailant running across the parking lot. Thinking that someone might need assistance, Dr. Beckman got into his car and followed the man across the parking lot. Dr. Beckman saw the man get into a dark Lincoln Navigator and back out of a parking space. Dr. Beckman then passed the Navigator in the parking lot and was able to clearly see the driver, as the two vehicles passed driver's side window to driver's side window. After passing the Navigator, Dr. Beckman turned around and wrote down the license plate of the Navigator.
Dr. Beckman then parked in front of the wig shop and went inside to see if anyone needed his help. He found Manuela Silverio lying in a pool of blood on the floor and Mr. and Mrs. Ingrando hysterically trying to telephone the police. Dr. Beckman tried to revive Silverio, but she was dead. Mr. and Mrs. Ingrando were taken to the hospital. Mr. Ingrando's injuries were minor, and he was soon released. However, Mrs. Ingrando required surgery and was hospitalized for at least a week.
Dr. Beckman was interviewed at the scene of the crime, and he gave the police the paper upon which he had written the license plate number of the Navigator. He also described the assailant as a white male, approximately six feet tall, 18-19 years old, 165 pounds, with short-to-medium sandy blonde hair.
The police ran the license plate number provided by Dr. Beckman and discovered that it was registered to Loren Nelson, who lived nearby at 2202 Dunstan. Loren Nelson, now Loren Goldberg, lived with appellant's father at that address. Several officers drove to the 2202 Dunstan address and located the Navigator in a covered parking area behind the house. One of the officers touched the hood of the Navigator and it was still warm, but no one was at home at the residence except the housekeeper, Marleny Vilorio. Ms. Vilorio told the officers that Dr. Goldberg and Loren Nelson were out of town and that appellant, Dror Goldberg, had been left in charge of the house. The keys to the Navigator were in the house.
At 6:07 p.m., appellant drove up to 2202 Dunstan in his white pick-up truck. Officer M.L. Sampson approached appellant and asked if he were Dror Goldberg. Appellant said that he was, and Officer Sampson handcuffed him, performed a pat-down search, and informed appellant of his rights. Appellant indicated that he understood his rights and indicated that he would be willing to talk with the officer.
Appellant was later uncuffed, and he talked with the police about his whereabouts that day. He also executed consent forms for the police to search: (1) his father's residence at 2202 Dunstan, (2) appellant's own white pick-up truck; and (3) appellant's apartment at 4301 Bissonnet. While at 2202 Dunstan, police noticed blood on appellant's shirt and a red mark on his chest. They also seized the Navigator and had it towed to the police station, where it was later searched pursuant to a warrant.2 Before searching 2202 Dunstan, the police took a Polaroid photo of appellant.
At 8:07 p.m., the police completed their search at 2202 Dunstan and transported appellant to the police station. During the ride to the police station, appellant told the police officer that the Navigator had been stolen in the past, but that every time it was stolen, the thief always just returned it. At the police station, appellant gave police his finger and palm prints. He also executed a waiver of the presence of an attorney and participated in a videotaped line-up. At approximately 11:00 p.m., appellant was released and went home with his mother.
Meanwhile, at 8:30 p.m., Dr. Beckman looked at a photo array containing the Polaroid taken of appellant and indicated he was 80% certain that appellant was the man he had seen running from the wig shop. Dr. Beckman and Mrs. Ingrando were later shown the videotaped line-up and both identified appellant as the assailant.
Appellant was indicted on February 17, 1999, but efforts to arrest him were fruitless because he had left the country. A federal warrant was issued for his arrest, and he was arrested at the Frankfurt Airport in Germany on June 21, 1999.
In points of error one through nine, appellant contends that he was arrested at 6:07 p.m., the moment he approached the house at 2202 Dunstan and was handcuffed. He argues that, because there was no probable cause to arrest him at that time, the trial court should have suppressed all evidence seized at 2202 Dunstan, from appellant's pick-up truck, and from appellant's apartment.3 Appellant also contends that the photo and video line-ups should be suppressed because they, too, were fruits of his illegal arrest.
When a motion to suppress is presented, the trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The appellate court's only role is to decide whether the trial court improperly applied the law to the facts. Williams v. State, 937 S.W.2d 23, 26 (). Unless the trial court clearly abused its discretion, we will not disturb its findings. Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim.App.1991); Williams, 937 S.W.2d at 26.
Further, the appellate court affords nearly complete deference to the trial court's rulings on "mixed questions of law and fact," such as probable cause and reasonable suspicion, where the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Accordingly, the appellate court reviews the evidence in the light most favorable to the ruling of the trial court. Id.; Taylor v. State, 945 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] 1997, pet. refd) ().
At approximately 4:24 p.m. on the day of the murder, officers on the scene at the wig shop determined that the Navigator seen by Dr. Beckman was registered to Loren Nelson, who lived at 2202 Dunstan. Several of the uniformed officers left the wig shop and drove to the Dunstan address, where they found the Navigator parked in an open carport behind the house. The carport opened on to a public alley behind the residence and the license plate was clearly visible from Shepard Street. One of the officers walked up to the Navigator, felt it, and determined that the hood was still warm. Homicide detective Mike Sampson was dispatched to the Dunstan address and arrived at 5:45 p.m. His purpose in going there was to seize the Navigator and question the maid.
Sampson talked to the maid, Marleny Vilorio, and she told him that Loren Nelson and Dr. Goldberg were on vacation, but that their son, Dror, had been left in charge. As the officer was talking with Vilorio, appellant drove up to the residence in his white pick-up truck,...
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