McGruder v. State, No. 10-07-00348-CR (Tex. App. 12/17/2008)
| Decision Date | 17 December 2008 |
| Docket Number | No. 10-07-00348-CR.,10-07-00348-CR. |
| Parties | GARY WAYNE McGRUDER, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 272nd District Court, Brazos County, Texas, Trial Court No. 06-03839-CRF-272.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
A jury convicted Gary Wayne McGruder of burglary of a habitation and, after finding enhancement allegations true, assessed his punishment at forty years' imprisonment. McGruder contends in four points that the court abused its discretion by: (1) overruling his motion to suppress evidence seized as a result of his warrantless arrest; (2) overruling his motion to suppress the complainant's identification of him at an in-field showup; (3) overruling his motion for mistrial after the prosecutor commented on his silence; and (4) denying his request for submission of jury instructions on the lesser-included offenses of theft and criminal trespass. We will affirm.
McGruder was charged with entering the habitation of the complainant Will Bess without effective consent and committing or attempting to commit theft. See TEX. PEN. CODE ANN. § 30.02(a)(3) (Vernon 2003). According to the evidence, Bess went into his backyard to feed his dog and, upon returning to the front, noticed that someone had left a bicycle beside his truck in the driveway. He found McGruder inside. When he confronted McGruder, McGruder started hitting him. Bess attempted to defend himself with his pocketknife and cut McGruder at some point in the struggle. McGruder fled the scene on his bicycle.
Bess gave chase in his pickup and called 9-1-1, giving the operator a description of his assailant. He met a responding police officer and showed the officer the direction in which McGruder had fled. The officer found McGruder a few blocks away. His clothing and general appearance matched the description given. In addition, he had a blood-soaked towel wrapped around his right arm, and he was out of breath. After he was detained, another officer found Bess's wristwatch in his front pocket. Bess was brought to that location, and he identified McGruder as the burglar.
A detective obtained a search warrant to collect DNA specimens from McGruder to compare with bloodstains on Bess's pocketknife and recovered from his home. The DNA from these blood specimens was consistent with McGruder's DNA.
McGruder contends in his first point that the court abused its discretion by overruling his motion to suppress evidence seized as a result of his warrantless arrest because the arresting officer lacked probable cause. Specifically, he complains about the admission of evidence regarding the discovery of Bess's wristwatch and the admission of the DNA evidence.
We review a suppression ruling under an abuse-of-discretion standard. See Montanez v. State, 195 S.W.3d 101, 108 (Tex. Crim. App. 2006); Johnson v. State, 237 S.W.3d 390, 392 (Tex. App.-Waco 2007, pet. ref'd). We afford almost total deference to the court's determination of historical facts but review de novo the court's ruling on mixed questions of law and fact which do not turn on the credibility and demeanor of witnesses. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008); Johnson, 237 S.W.3d at 392. We apply a de novo standard of review in this case because the pertinent facts are not disputed and because the only issue to be determined is whether the trial court correctly applied the law to those facts. See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Johnson, 237 S.W.3d at 392.
"Probable cause exists if the officer knows of facts that would lead a reasonable person to believe that the suspect has committed or will soon commit a crime." Neal, 256 S.W.3d at 280. To determine the existence of probable cause, a court must consider the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983); Neal, 256 S.W.3d at 280; Curry v. State, 228 S.W.3d 292, 295 (Tex. App.-Waco 2007, pet. ref'd). A court may consider the sum of the information known to the cooperating officers at the time of the search or seizure. Curry, 228 S.W.3d at 295.
When an arrest is made within a short period of time after a crime is committed, and frequently on the basis of information broadcast by a dispatcher, courts focus on whether the arresting officer's information originated from "a known, credible person" and "whether any other action, regardless of how minute, gave the officer additional probable cause to arrest." See Rodriguez v. State, 975 S.W.2d 667, 678 (Tex. App.-Texarkana 1998, pet. ref'd). Here, both factors are present.
First, the description of McGruder originated with the complainant Bess who personally described McGruder's appearance and the direction in which he had fled to the officer who arrested him only moments later. See id. at 679; Shipman v. State, 935 S.W.2d 880, 884 (Tex. App.-San Antonio 1996, pet. ref'd).
And second, McGruder was arrested in an area close to the direction in which he was alleged to have fled, he matched the description given by Bess, he had a blood-soaked towel wrapped around his right arm (consistent with Bess's statement that the burglar was bleeding profusely), and he was out of breath and "sweating profusely" (indicating flight and, as an officer testified, as if "he had finished exerting himself in a physical altercation"). See Goldberg v. State, 95 S.W.3d 345, 362-63 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); Rodriguez, 975 S.W.2d at 679; Shipman, 935 S.W.2d at 884-85.
Accordingly, we hold that under the totality of the circumstances there was probable cause for McGruder's arrest when he was initially detained by the officer. Thus, the court did not abuse its discretion by overruling his suppression motion. We overrule McGruder's first point.
McGruder contends in his second point that the court abused its discretion by overruling his motion to suppress Bess's identification of him during an in-field showup.
We have recently addressed the factors to be considered and the appropriate standard for determining whether a pre-trial identification made during an in-field showup should be excluded. Wilson v. State, 267 S.W.3d 215, 217 (Tex. App.-Waco 2008, pet. filed). We assume without deciding that the showup in McGruder's case was impermissibly suggestive and focus on the issue of whether, under the totality of the circumstances, there was a very substantial likelihood of irreparable misidentification. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993); Wilson, 267 S.W.3d at 217; Williams v. State, 243 S.W.3d 787, 789 (Tex. App.-Amarillo 2007, pet. ref'd); Pace v. State, 986 S.W.2d 740, 744 (Tex. App.-El Paso 1999, pet. ref'd).
The first factor we consider is the opportunity of the witness to view the criminal at the time of the crime. Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977)); Wilson, 267 S.W.3d at 217; accord Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998); Williams, 243 S.W.3d at 790; Pace, 986 S.W.2d at 744-45. Bess testified that the lighting was bright in his hallway where he first observed McGruder, nothing interfered with his view, and he was "able to get a clear look at [McGruder's] face and his build and all of that."
The second factor is the witness's degree of attention. Id. Bess testified that he got a "clear look" at McGruder and that he was "paying attention to what he was doing" as they were engaged in a struggle. In addition, Bess testified that he has seven or eight years of prior experience as a police officer which gave him experience observing others and remembering their appearance.
The third factor is the accuracy of the witness's prior description. Id. Bess testified that the intruder was "[a] very big man, built across the chest"; a black man; and "[h]e had on a white shirt; and I don't remember the color of the pants." He clarified on cross-examination that the intruder was wearing a shirt and shorts. Sergeant John Campbell testified that Bess also described the intruder as wearing a black cap and stated that he was bleeding profusely. McGruder is an African American. When he was apprehended, he was wearing a dark baseball cap and a light-colored shirt and had a blood-soaked towel wrapped around his right arm.
The fourth factor is the level of certainty demonstrated by the witness at the confrontation. Id. According to Sergeant Campbell, Bess observed McGruder and said, "That's him, no doubt about it."
The last of the listed factors is the length of time between the crime and the confrontation. Id. McGruder concedes that this factor is favorable to the State.
In addition to the five listed factors, we may also consider other relevant factors in evaluating the reliability of the witness's identification. Delk, 855 S.W.2d at 706;Wilson, 267 S.W.3d at 217; Pace, 986 S.W.2d at 745. Here, other relevant factors include the following: (1) McGruder was arrested in an area close to the direction in which he was alleged to have fled; (2) he was out of breath and "sweating profusely"; (3) he had Bess's wristwatch in his pocket; and (4) his DNA matched the blood specimens taken from Bess's pocket knife and from his home.
Viewed deferentially in a light favorable to the trial court's decision, the evidence relevant to each of the foregoing factors supports the court's determination that, under the totality of the circumstances, there was no substantial likelihood of irreparable misidentification. See Delk, 855 S.W.2d at 707-08; Wilson, 267 S.W.3d at 217; Williams, 243 S.W.3d at 791; Pace, 986 S.W.2d at 745. Accordingly, we overrule McGruder's second issue.
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