Zayas v. State

• Decision Date: 16 April 1998
• Docket Number: No. 13-96-434-CR,13-96-434-CR
• Citation: 972 S.W.2d 779
• Parties: Carlos Rafael ZAYAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 779

972 S.W.2d 779

Carlos Rafael ZAYAS, Appellant, v. The STATE of Texas, Appellee.

No. 13-96-434-CR.

Court of Appeals of Texas Corpus Christi.

April 16, 1998.

Discretionary Review Refused Sept. 16, 1998.

Mark Alexander, McAllen, for Appellant.

Theodore C. Hake, Asst. Crim. Dist. Atty., Rene Guerra, Dist. & County Atty., Edinburg, for State.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION

YANEZ, Justice.

After pleading not guilty, Carlos Rafael Zayas was tried before a jury and found guilty of burglary of a habitation. ¹ By four points of error, appellant challenges the conviction, arguing that the trial court erred in allowing improperly obtained evidence to be presented to the jury, refusing to declare a mistrial based upon improper argument by the State, and not allowing the defense to reopen its case after each side had rested. We affirm.

Appellant was arrested after a homeowner on Moorefield Road in Hidalgo County, Texas noticed him carrying things out of a neighbor's home. The witness confronted appellant, determined that appellant was burglarizing the home, and called police. When a police officer arrived, he investigated the scene and noticed that the home of Jerry Hutchins appeared to have been burglarized. The officer questioned appellant, who had been detained and handcuffed during the investigation, about the burglary. Appellant admitted he took items from the home, and was arrested. Hutchins testified and identified the items in appellant's car as those taken from his home, and stated further that he had not given consent or authority for appellant to enter the home or take anything from it.

By his first point, appellant complains that the trial court committed reversible error when it refused to declare a mistrial after the prosecutor for the State made an improper and prejudicial remark during its closing argument. During closing argument, the prosecutor made the following argument:

Well, what do you have? You have the direct testimony from Mr. Hutchins that he did not give away the VCR. That's all you have. You have that testimony and there's nothing to the contrary. They don't have to put on the case. But if they want you to believe there's a doubt they can put on something.

At this point, the defense objected and the court sustained their objection, then instructed the jury to disregard the comments of the prosecutor. Appellant moved for a mistrial, which the trial court declined to order.

Appellant contends the prosecutor improperly attempted to shift the burden of proof to the defense, and analogizes such improper burden-shifting to an improper comment on a defendant's refusal to testify which cannot be cured by the court's instruction. See Johnson v. State, 611 S.W.2d 649, 650-51 (Tex.Crim.App.1981). We disagree.

Viewed in its context, it is clear that the prosecutor was not attempting to shift the burden of proof. Indeed, he stated "they do not have to put on the case." Instead, his comment appeared to emphasize the State's position that the evidence was overwhelming as to appellant's guilt, and it was uncontroverted in all significant respects. Appellant's characterization of the comment as an improper burden-shifting is therefore inaccurate.

To the extent that the prosecutor's comment could be construed as an attempt to suggest to the jury that the defendant had any type of a burden of proof in the case, such argument was improper. Ex parte Drinkert, 821 S.W.2d 953 (Tex.Crim.App.1991). However, the trial court sustained appellant's objection and instructed the jury to disregard the prosecutor's comment. Any potential harm is presumably cured by such instruction, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App.1994); Burks v. State, 876 S.W.2d 877 (Tex.Crim.App.1994); Borrego v. State, 800 S.W.2d 373, 377 (Tex.App.--Corpus Christi 1990, pet. ref'd). The comment was not incurable. Point of error one is overruled.

By his second point of error, appellant complains that the trial court committed reversible error when it allowed the State to introduce photographs of items seized from appellant's vehicle into evidence because they were the "fruits of an illegal arrest."

During the State's case in chief, it first called Raul Alvarez. Alvarez testified that he lived on Moorefield Road and had observed a suspicious vehicle on the street in front of a neighbor's house. The car had its hazard lights on. Alvarez approached a man carrying things from the house, whom he identified as appellant. Alvarez asked what he was doing, and appellant said the family that lived in the house had given him the VCR he was carrying. Alvarez then suggested they go speak with the family, and appellant responded that they were not there. After Alvarez saw appellant put the VCR into his car, he telephoned the police.

The State next called Hidalgo County Patrol Sergeant Baltazar Flores. Flores testified that he had been patrolling the area and was dispatched to Moorefield Road, where a burglary in progress had been reported. Flores testified that as he drove to the site of the reported burglary, he observed a man (Alvarez) standing in a front yard, holding a cellular phone, and pointing at another man who was standing beside a vehicle parked on the road. Flores pulled up alongside the man beside the car, who he identified as the appellant. Flores testified that "since the witness was pointing to him, for my safety as well as for others," he "subdued" appellant. Flores said that by the term "subdued," he meant that he handcuffed appellant and placed him in the patrol car. Flores testified that he did not consider appellant to be under arrest, but merely to have been detained until he finished his investigation.

The State next presented three photographs of various items sitting atop appellant's station wagon. After Flores identified the photographs, the State offered the photographs into evidence, at which point counsel for appellant objected as follows:

Your Honor, at this time, we would object. We would object on the basis that these are fruits of a poisonous tree, an illegal arrest and detention of our client, and on that basis we would ask that they not be admitted into evidence. That we would object to it under the Fourth Amendment of the United States Constitution. We object to it under Texas Constitution and, I believe, it's 38.23 Code of Criminal Procedure. They are illegally obtained and we will object to them on those grounds and ask that they not be admitted into evidence.

The trial court asked Flores whether he recognized the photographs. Flores did, because he took the photographs at the crime scene. The court then asked whether the objects in the photograph were in plain view, to which the officer answered affirmatively. No further argument was raised by appellant, and the court overruled the objection. The State continued questioning Flores, who indicated that he had read appellant his rights when he first handcuffed him. Flores indicated he then saw some items in the car in plain view. When the State offered seven more photographs of the items into evidence, the defense repeated its objections, which were again overruled.

At the time the objections were made, the only aspect of the investigation which was apparently at issue was whether appellant had been illegally arrested when he was first handcuffed and placed in the police car. As we will elaborate upon in our discussion of appellant's third point of error, there was some question as to the reasonableness of Flores's decision to handcuff appellant when he first arrived at the scene. Ordinarily, handcuffing a suspect without probable cause for believing the suspect has committed or is committing a crime is considered unreasonable, although it may be justified in limited circumstances as an acceptable aspect of a temporary investigation. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.1997).

We need not discuss the propriety of Flores's action in handcuffing in order to address appellant's point regarding the admission of the evidence, however, because an independent basis for admitting the photographs was presented without objection from appellant--the plain view doctrine. The fact of an illegal arrest is not necessarily dispositive on the issue of whether evidence seized during the course of an investigation may be admitted. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963) ("Not all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police."). The more apt question is "whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id.

The trial court specifically inquired as to whether the items in the photograph were in "plain view" of the officer. The plain view doctrine provides that, if an officer perceives a suspicious object while lawfully engaged in an activity in a particular place, that officer may immediately seize the object. Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 1541-42, 75 L.Ed.2d 502 (1983); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968); Clark v. State, 548 S.W.2d 888, 889 (Tex.Crim.App.1977). Such seizure is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. Arizona v. Hicks, 480 U.S. 321, 326-37, 107 S.Ct. 1149, 1153-54, 94 L.Ed.2d 347 (1987); see also Brown, 460 U.S. at 741, 103 S.Ct. at 1542-43 (citing Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980)). Despite appellant's assertion to the contrary, it need not be "immediately...