*1 779 thеreby against party, by issuing judge clarification be taken one dismiss of order significant weight yet keep party, would had in the to that ing have all claims as Briggs Freeway court’s determination of the order’s correct Park See v. lawsuit viable. 361, interpretation. 270, F.Supp. Co., 872 364 (Tex.Civ.App.— 272 Dev. 366 S.W.2d (W.D.Tex.1994). n.r.e.) In of our light preceding 1963, (appellant Worth writ ref d Fort analysis the trial own clarifica- court’s partial issues non- non-suit of achieved tion, we trial court ordered conclude leaving only plaintiff and one suiting party, ac- separate trials for Messmer’s causes of issues); remaining proceed on defendant tion and not a severance. an P. 162. That see also Tex.R. Civ. only there were option this suit because separate An for leaves order trials acknowledged the parties. Messmer two the lawsuit with all issues even its intact accept her warning, rеfused to causes though they will be resolved different severed, pressed for a action were not Hall, times. 450 at 838. The effect S.W.2d non-suit, properly court trial of a is of the entire suit. non-suit dismissal prejudice. Aetna granted without Cas. & Co., Hyundai Alvarado v. S.W.2d Motor 885 (Tex. 805, Specia, v. 806 Sur. Co. 167, 1994), (Tex.App. Antonio re —San 1993) (subject (orig.proceeding) certain grounds, versed on other conditions, plaintiff may subsequent ac file (Tex.1995); Lynch Merrill Relocation Man seeking relief); v. same Court tion Crofts Powell, 804, agement, v. Inc. 824 S.W.2d (Tex.1962) 101, 104 Appeals, 362 S.W.2d Civil 1992, (Tex.App. orig. [14th Dist.] — Houston (dismissal upon (orig.proceeding) motion 162; proceeding); see Tex.R. 5 Mc P. Civ. adjudicate merits of case non-suit does (1992). § PRACTICE 27:37 Civil Donald Texas merely parties position places but appropriate It is not means discontinu brought). the action was before ing only proceedings on certain issues. See 5 § 27:37. A find Messmer her abso- We exercised McDonald Texas Civil Practice party wishing to exclude certain issues in his non-suit, despite being right to move for lute terminating suit trial without the entire consequences. informed We hold suit abandon should those claims. See id. trial court not abuse its discretion did added); § (emphasis see also request. We granting Messmer’s overrule Tex.R. Jr., 165; R.G., Matter point of error. P. Messmer’s sole Civ. 1993, (Tex.App. Corpus no Christi — sustaining We affirm the trial court’s order writ) (Rule permits dismissal of entire non-suit. particular but suit claims be abandoned cause Rule before trial of in accordance with plaintiff’s right The non-suit trial no judge
absolute and the has discretion Greenberg grant
to refuse to dismissal. (Tex.1982); Brookshire, ZAYAS, Appellant, Carlos Rafael Ottis, 259, 261 Zimmerman v. writ); (Tex.App. Corpus Christi no — Appellee. Texas, The STATE of see Mort. Hartnett Adams & Holmes Inc., (Tex.Civ. Co., No. 13-96-434-CR. writ) App. (affirming —Texarkana Texas, Appeals of Court of judge’s grant partial refusal non-suit Corpus Christi. only pleadings single of action showed cause split piecemeal). which cannot be and tried April 1998. judge properly trial warned The Discretionary Refused Review that a cannot used to
Messmer non-suit Sept. piecemeal that the conse dismiss claims quences grant of a of non-suit would be judge
dismissal of her entire suit. trial
pointed out to that a non-suit could Messmer *4 appeared burglarized. have
Hutchins been appellant, had questioned who in- during the detained and handcuffed been Appellant vestigation, burglary. about home, he took items admitted testified and identi- was arrested. Hutchins those appellant’s car as the items in fied home, from his further taken stated authority given he had not consent anything home or appellant to enter the take from it. appellant complains
By point, his first er trial committed reversible that the court after to declare a mistrial ror when refused improp prosecutor for the State mаde an closing prejudicial during remark its er and *5 the argument. During closing argument, following prosecutor argument: the made Well, you have the what do have? You testimony Mr. Hutchins that direct Alexander, McAllen, Appellant. Mark for all give away not the That’s he did VCR. Hake, Atty., Theodore C. Asst. Crim. Dist. testimony and you have. You have that Guerra, County Atty., Rene Dist. & Edin- They contrary. nothing to the there’s burg, for State. they put have on the But if don’t to case. they you to there’s want believe a doubt SEERDEN, J., Before C. and YANEZ and put something. on can CHAVEZ, JJ. the point, objected At this and the defense OPINION objection, their then instruct- court sustained jury disregard to the ed the comments YANEZ, Justice. mistrial, prosecutor. moved a Appellant for pleading guilty, After Carlos Rafael the trial court declined to order. which Zayas jury was a found tried before and improp Appellant prosecutor the contends guilty burglary By of fоur of a habitation.1 proof to erly attempted to shift the burden error, points appellant challenges the con- defense, analogizes improper the such viction, arguing that the trial court erred improper on a burden-shifting to an comment allowing improperly obtained to be evidence testify cannot be defendant’s refusal to presented refusing jury, to the declare to by cured the court’s instruction. See John by upon improper argument mistrial based (Tex. State, son v. allowing the defense Crim.App.1981). disagree. We reopen its case rested. after each side had We affirm. context, it is clear that Viewed its
Appellant
prosecutor
attempting
was
after
to shift the
arrested
a homeowner
was not
Indeed,
proof.
“they
he
do
Hidalgo County,
on
Tex-
stated
Moorefield Road in
burden
Instead,
put
case.”
his
carrying things
him
out оf a not have to
on the
as noticed
emphasize
appeared to
the State’s
neighbor’s
The witness confronted
comment
home.
overwhelming
was
appellant,
appellant
position
determined that
was
the evidence
home,
police.
appellant’s guilt, and was uncontro-
burglarizing
as to
called
arrived,
respects. Appellant’s
investigated
significant
in all
he
verted
When
im-
an
Jerry
of the comment as
and noticed that the home of
characterization
the scene
(Vernon 1994).
§
Tex Penal
Ann.
Code
proper burden-shifting is
phone,
pointing
therefore inaccu-
cellular
another man
rate.
who
standing
parked
was
vehicle
beside
on
pulled up
alongside
road. Flores
prosecutor’s
To the
that the
extent
man beside
he
who
identified as the
comment
as
attempt
could be construed
appellant. Flоres
that “since
testified
suggest
jury
that the defendant had
him,
pointing
my safety
witness was
for
any type
proof
case,
of a
burden
others,”
appellant.
well as for
he “subdued”
such argument
improper.
parte
Ex
“subdued,”
Flores said that
term
by the
Drinkert,
785 (1983); 1535, 1541-42, 502 Harris illegally when was 75 L.Ed.2d lant had been arrested he States, placed handcuffed in the ear. U.S. 88 S.Ct. first v. United upon 992, 993, (1968); in our As we will elaborate discussion Clark 19 L.Ed.2d error, point appellant’s third there was (Tex.Crim.App. question as the reasonableness of 1977). some to presumptively is reason Such seizure to Flores’s decision handcuff when able, cause assuming probable that there Ordinarily, arrived at he first the scene. property with criminal activi to associate the handcuffing suspect probable a without cause 326-37, Hicks, ty. Arizona v. U.S. believing suspect has committed or is 107 S.Ct. L.Ed.2d committing a crime is considered unreasоn Brown, (1987); U.S. at see also able, justified it although may be limited York, (citing Payton at 1542-43 v. New S.Ct. aspect acceptable as an of a circumstances 1371, 1380, 573, 587, 100 445 U.S. S.Ct. temporary investigation. See Rhodes v. (1980)). Despite appellant’s as L.Ed.2d 639 (Tex.Crim.App. contrary, be “imme sertion need not diately of an apparent” that items are Brown, incriminatory nature. 460 U.S. propriety need We not discuss 741, 103 handcuffing action in Flores’s order appellant’s point regarding
address the ad evidence, however, mission of the because an consist photographs question independent admitting photo basis for of an view of items inside external presented objection graphs was without car, photograph a of the car plain view doctrine. The fact photograph internal of the open, its door an —the illegal necessarily disposi arrest is not car, photographs four of the items tive on the issue of whether evidence seized paced upon the hood of items during investigation may course of an house photograph of the back door of the States, Wong See v. United admitted. Sun burglarized. Appellant does 471, 488, 407, 417-18, 9 specifically dispute that officer had (1963) (“Not L.Ed.2d 441 all evidence is fruit right temporary conduct detention poisonous simply tree because it would investigated while preserve quo status light illegal have come to for the appellant challenge the the scene.2 Nor did police.”). apt ques actions of the The more *7 trial in officer’s that the items assertions granting tion is “whether establishment of plain in The photograph the were view. primary illegality, the the evidence to which that record demonstrates the automobile objection been instant is made has come at parked on the An offi question was street. exploitation illegality by or by that instead the cer was to view confiscated evidence able sufficiently distinguishable to means be touching the car. opening without the door purged primary of the taint.” Id. expectation privacy legitimate There is an shielding portion of that the interior trial specifically inquired
The
court
may
the
be viewed from
automobile which
photograph
whether the
in the
as to
items
inquisitive passerby or a
outside
either an
“plain
plain
view”
were
of the officer. The
Brown,
that,
diligent
460 U.S.
officer.
provides
per
if an
view doctrine
officer
740,
photographs
The
at 1542.
suspicious object
lawfully
S.Ct.
ceives a
while
en
auto
the house
the external
of the
activity
particular place,
view
gaged in an
in a
that
seizures,
implicate any
object. mobile do nоt even
may immediately seize the
Brown,
730, 739,
excluding
for
them.3
there
no basis
103 S.Ct.
Texas
U.S.
Ohio,
21,
1868,
plain
Terry
an item
view.
mere
left in
2. See
392 U.S.
observation
(1968).
generally
20 L.Ed.2d
latter
involves no fourth
Whereas the
omitted],
search,
the
[citations
Amendment
Brown,
Supreme
in Texas v.
3. The
Court wrote
implicate
Amend-
generally does
former
738 n.
1541 n.
personal
upon
ment’s
seizures of
limitations
(1983),
75 L.Ed.2d
a result
property.
The information obtained
object
plain sight
important
distinguish "plain
of observation of
view” ...
It is
probable
object,
or reasonable
justify
from an
basis for
cause
seizure of an
officer’s
photographs
taken from
However,
the inside of
798-99 (Tex.Crim.App.1992).
ear,
and those of the items removed from article 38.23 is not invoked unless the evi-
implicate
the car
analysis,
do
dence
seizure
howev-
seized is obtained in violation of the
er,
presume
because one
law.
If
must
that
the seizure of the
in ques-
evidence
opened the
tion is sufficiently
door and
extracted the items
attenuated
the offi-
law,
cer’s
photographed
before he
violation of the
them. See Arizona
is not considered
Hicks,
to have
been obtained
U.S. at
from the violation.
S.Ct. at
(officers
(Tex.Crim.
Johnson v.
“moving” object
actions
App.1994).
implicates
Because we
Amendment,
have held that
Fourth
whereas
not).
properly
evidence was
“looking”
upon
seized based
at it does
It was unclear
doctrine,,
plain view
there is no basis for
what amount of
elapsed
time had
before the
excluding it. Point of error two is overruled.
photographs were taken. Flores would have
been within the law in interviewing the wit-
By
point, appellant
his third
contends that
ness, searching
premises
alleged
a statement which was admitted into evi
burglary,
peering
appellant’s
into
car
product
arrest,
illegal
dence was the
of an
regardless
appellant
of whether
was detained
and therefore should not have been admitted.
or under arrest. The record indicates that Appellant’s statement was made after he had
all
things
did
of these
before the items in
placed in
been
handcuffs. After Flores in
the car were
photographed
ever
or seized. vestigated the scene and concluded that a
Any suspicions
regarding
Flores had
burglary
committed,
had been
Flores re
quickly
items
to probable
escalated
cause to
patrol
turned to
appellant
car and asked
stolen,
believe the
thereby justi-
items were
(appellant)
if he
speak
wanted to
with Flores.
fying their seizure.
Flores,
According
responded
“yes.”
objected
grounds
The defense
on the
We
plain
conclude thаt the
view doctrine
by appellant
statements made
independent
served as an
basis
the sei-
involuntary,
and also that
were the fruit
appellant’s
zure of the items in
suffi-
illegal
of an
arrest. The trial court conduct
ciently
any purported
attenuated from
ar-
lengthy
hearing,
ed a
Jackson v. Denno4
rest.
If
any objection
had
to this
after which it
concluded
separate
introducing
photo-
basis for
voluntary.
statements were
graphs, he could have raised them at the
not,
time. He
estopped
did
and therefore is
again
The State
ques-
asked Flores what
from presenting them for the first time on
posed
appellant.
tions were
Flores said
appeal.
he asked
what he had taken from
objected
house. Defense counsel
on the
Appellant’s contention that
ground
any response by
appellant was
photographs
suppressed
should have been
involuntary
product
and the
of a custodial
pursuant to article 38.23 of the code of crimi
interrogation,
product
and was also the
of an
procedure
nal
misplaced.
is likewise
Article
*8
illegal
sup-
arrest
therefore
and
should be
unequivocally
states
that “no evidence
pressed under articles 38.22 and 38.23 of the
by an
...
any
obtained
in violation of
procedure.
code of criminal
The trial court
provisions of the constitution or
laws
objections.
overruled defense
Flores then
Texas,
State of
or of the Constitution or laws
appellant
testified that
responded to the
America,
of the Untied States of
shall be
question posed with
“It’s all
the car.” It
against
admitted in evidence
on
accused
according
was at that point,
to Flores’s testi-
any
the trial of
criminal case.” It is also true
mony,
plaсed appellant
that he
under arrest.
discovery
there is no inevitable
excep
statutory exclusionary
tion to the
ruling
rule. State
A trial court’s
on a motion to
(Tex.
Daugherty,
v.
suppress
931 S.W.2d
269-70
generally
reviewed for abuse of
State,
Crim.App.1996);
State,
v.
Garcia
829 S.W.2d discretion.
Villarreal
935 S.W.2d
turn,
suspicion
Denno,
illegal activity.
In
these
4. Jackson v.
378 U.S.
suspicion may,
levels of
(1964).
in some cases [citation
134, 138 Long v. (Tex.Crim.App.1996); lap. (Tex.Crim.App.1991). 823 S.W.2d only if it its discretion
The trial court abuses Areila, at 359. arbitrarily unreasonably, without and acts hearing facts adduced at Viewing the principles. any guiding to rules or reference trial court’s favorable to the light in the most (Tex. 661, 663 Breeding v. following: upon his ruling, they showed ref'd). 1991, pet. Although App. reported burglary of the —Amarillo arrival at the scene findings of his to the trial court’s we defer man, later iden- noticed a progress, Flores credibility facts based on and demean- torical Alvarez, pointing to a man on the tified as or, apply a novo review to a trial we de street, Appel- appellant. as later identified suspicion of reasonable court’s determination each immediately recognized lant and probable cause. Ornelas v. United and county other, in the Flores had worked States, 690, 695-700, 116 S.Ct. 517 U.S. an inmate. jail appellant had been (1996); place 134 L.Ed.2d Guzman on appellant to his hands Flores asked (Tex.Crim.App. comply. appellant did around, hand- appellant This is because the determination Flores then turned him, rights, his suspicion probable cause re read reasonable cuffed point, patrol car. At that appliсation placed to facts. him in the quires the of law Orne las, 695-98, 116 1661-62; appellant to be under not consider Flores did rather, arrest; so that Guzman, he was detained at 87. see investigate scene. In his Flores could appellant’s point requires Resolution of neces- experience, handcuffing was related, yet is consideration of two distinct sary protect safety his and that of others to (1) appellant’s statement was sues: whether multiple sus- times there are because often (2) voluntary, sufficiently it was and whether to burglaries, tend pects involved illegal as to be attenuated from the arrest so by police. confronted agitated when become considered admissible under either 38.22 testimony, his Flores then According to appeals The court of criminal has 38.23. the scene. He proceeded investigate explained applicable that considerations Flores, the house spoke then went to with invariably relevant voluntariness are almost He reported burglary occurred. where analysis to attenuation of taint as well. See ajar, after enter- back door noticed the (Tex. Miller house, wires. ing noticed loose television Crim.App.1987). In Arcila v. him that an item had been appeared It (Tex.Crim.App.1992), the court television, atop probably a removed wrote: back outside and Flores then went VCR. to answer complaint appeal on if he wanted When is made asked that he did not questions. Flores indicated suppressed should have been be- evidence con- appellant until after he had question product of an unattenuated cause is the right appellant understood firmed that illegality, appellate court official point at that It wаs remain silent. analysis a discussion not conclude its the items appellant reportedly indicated alone, voluntary spe- consent but must in the car. impact of constitu- cifically evaluate the upon degree
tionally prescribed factors Illegal Aurrest? exploitation illegality to which *9 whether, by by or other the cir- attenuated such consent under We first address circumstances, cumstances, arrested intervening illegally [ci- events and hand, con- and hand- the other arrived at the scene omitted]. tations On when Flores factors, although rele- Amendment of the of these him. The Fourth sideration cuffed that “the vant, constitutionally required provides may not be Constitution United States in their people to be secure pure analysis. right Con- under a voluntariness effects, houses, against papers, and persons, not neces- sequently, inquiry one kind of is seizurеs, shall searches and questions appropriate unreasonable sarily dispositive of 788 Const,
be violated.” U.S. amend. IV. The must be connected with crime. Davis v. State, (Tex.Crim. provides people Texas 829 222 2 Constitution that “the S.W.2d n. houses, persons, App.1992). shall pa- be secure their pers possessions, from all unreasonable arrest, however, An must be Const, seizures or searches.” Tex. art. I upon “probable based cause.” Amores v. § 9. Texas courts follow federal standards State, (Tex. 407, 411 Crim.App. 816 S.W.2d respect temporary investigative stops 1991); State, Earley see also v. and arrests and have found reason to (the (Tex.Crim.App.1982) legislative 531 apply a stringent more standard under the prescription in article 14.04 of the code Texas Constitution. Johnson v. 912 procedure criminal of what must be “shown (Tex.Crim.App.1995). 231-34 by satisfactory proof’ legal equivalent is the 38.23(a) Article of the Texas Code of Crimi- cause). probable of constitutional The con nal Procedure codifies these constitutional probable stitutional test for cause is “wheth provisions and states that “no evidence ob- er at that moment the facts and circum by person tained an officer or other in viola- knowledge stances within the officer’s any provisions tion of of the constitution or reasonably trustworthy of which he had in Texas, laws of the State of or of the constitu- pru formation were to warrant a sufficient America, tion or laws of the United States of in believing per dent man that the arrested against shall be admitted in evidence son committing had committed or was accused on the trial of criminal case.” Ohio, 89, 91, offense.” Beck v. 379 U.S. 85 38.23(a) (Ver- Tex.Code CRIM.Proo. Ann. art. 223, 225, (1964); S.Ct. L.Ed.2d Supp.1998). non 1979 & Vernon Amores, 816 at 413. The determi determining In whether a “seizure” is un hinges practical nation on “the factual and reasonable, cognizant courts must remain everyday considerations of life on which seizures, types that there are different [people], prudent legal reasonable and depends upon reasonableness of which technicians, act.” See Woodward v. degree suspicion accompanying them. To (Tex.Crim.App.1982) clear, typically categorized be seizures are (opinion rehearing). requires on It more detentions,” “temporary investigative either suspicion than mere but far less evidence “arrests,” depending or on the circumstances. support than that a conviction or needed to Francis v. by support finding even that needed Dist.1995), (Tex.App. pet. 1st Guzman, preponderance of the evidence. — Houston dism’d, improvidently granted, 922 S.W.2d 87; Brinegar 955 S.W.2d at see also (Tex.Crim.App.1996). The State main States, United U.S. tains that was not under arrest (1949) 1302, 1310-11, 93 L.Ed. handcuffed, when while maintains (probable suspi than “bare cause more he was. cion”). appeals The court of criminal has ex- temporarily person
To detain a plained types two the distinction between the investigative purposes, an officer need of seizures as follows: which, only “specific have articulable facts light experience personal purposes analysis, knowl For of constitutional edge, together with investigative inferences from those both detentions and arrests reasonably They facts would warrant such intru are either reasonable are seizures. Ohio, Terry reviewing court sion on freedom.” because a trial or finds 1, 21, 1868, 1880, constitutionally they are based on a ade- (1968); quate suspicion L.Ed.2d 889 or on constitu- Francis reasonablе cause, respec- (Tex.Crim.App.1996). tionally adequate probable For a valid, temporary investigative tively, They detention to unreasonable. are (1) present: represent factors must be an unusual ac of a citizen law both seizure (2) occurred, tivity occurring must be or have The differences be- enforcement officers. degree the accused must be with the on the connected sus tween the two are based *10 (3) seizures, picious activity, suspicious activity intrusion in and the involved both
789
1581,
Sokolow,
1, 109 S.Ct.
490 U.S.
v.
legal justifications required
States
different
Rhodes,
(1989);
at
945 S.W.2d
1
104 L.Ed.2d
each.
by balanc
is measured
117. Reasonableness
Johnson, 912
at 235.
S.W.2d
into an indi
of the intrusion
ing the nature
Distinguishing
types
the two
of sei
against
Fourth Amendment interests
vidual’s
difficult, particularly because
can be
zures
legitimate government
public interest or
inquiry
fact-specific
rests on
the distinction
Dist. v.
School
interest at stake. Vermonia
clearly
criteria. Con
rather than
delineated
2386,
Acton,
difficulty
longstanding
tributing to the
is the
(1995).
2390, 132
564
L.Ed.2d
by
Texas
of arrest drafted
definition
person
“a
is arrested when
legislature:
in
ease
presented
this
The issue
actually placed under restraint
has been
a
to handcuff
it is reasonable
is whether
custody” by
into
an officer. Tex.Code
taken
of, or within
suspect at the commencement
(Vernon 1977).
Proc. Ann. art.
Crim.
detention,
of,
investigative
be
an
the course
act of hand
Many courts have held that the
has actual
cause for an arrest
probable
fore
See, e.g.,
cuffing
tantamount to an arrest.
is
handcuffing
Ordinarily,
ly
established.
been
State,
561-62
v.
712 S.W.2d
Pickens
may be resorted
suspect
proper,
is not
a
1986, pet.
(Tex.App.
[1st Dist.]
—Houston
circumstances,
as when
special
such
ref'd),
grounds, 956
overruled on other
necessary
suspect’s attemрt “to
to thwart the
(Tex.Crim.App.1997); Carey v.
33
S.W.2d
Rhodes,
inquiry.”
945
further
frustrate
(Tex.App
. —Amar
LaFave,
117;
also 4
see
Search
S.W.2d
ref'd).
apparent
pet.
Despite the
illo
(1996).
9.2(d),
It is
Seizure,
Sec.
36-38
definition, however,
simplicity of this
exceptional circumstances
only in “rare” or
appeals
that the
court of criminal
has held
may
by
actions
a
that such
handcuffing suspect
dispositive
is not
act of
investiga
an
part
a reasonable
considered
an arrest has oc
of the issue of whether
testimony is
The officer’s
tive detention.
See,
Rhodes,
e.g.,
curred.
considered,
determining
one factor to be
bright-line
117-18. There is no
test for de
Rhodes,
place.
whether an arrest has taken
handcuffing
tantamount
termining whether
is
Amores,
(citing
at 117
Indeed,
to an arrest.
Id. at 118.
article
are
critical factors
S.W.2d at
Other
15.22,
Supreme
drafted before
investigation accompanied the
an
whether
Ohio,
Terry
Court handed down
has been
detention,
compare Salazar
Francis,
“legislatively
called
obsolete.” See
(Tex.App.
Worth
— Fort
J.,
(Baird,
concurring
791 State, (1986); 1997 WL Tuttle v. L.Ed.2d 473 anything other to treat his action isted — S.W.2d-,-(Tex.Crim. 685979, *8, otherwise, to hold than an arrest. Were we Nov.5,1997). App. effectively saying that whenever we would any at the scene of single a officer arrives ap- that he did not force Flores indicated offense, may any and suspected he handcuff asked any questions, but pellant to answer first, questions ask later. suspects all then cooperate. appellant wanted whethеr circumstances, exceptional pro- such Absent appel- each of testified that he read Flores reasonable, and this Court cedures are rights, appellant ac- and the lant’s Miranda pro actions. would not condone such rights, knowledged forma he understood Nevertheless, to the applying after the law answer to waive them and chose instead objections were facts at the time the adduced that he question. Appellant denied Flores’s made, actions were we conclude that Flores’s any questions, and asked to answer was ever under the United States not unreasonable According ever made statement. that he and Texas Constitutions. testimony hearing, Flores asked house, burglarized he
appellant whether Involuntary Statement? responded “yes.” Flores to which house taken from the asked where items ap question There is no but that were, responded “it’s all to which pellant custody at the time he was was Only latter statement was the car.” he had been handcuffed and questioned; jury. before the admitted patrol up thirty placed car for investigated the minutes while Flores scene. say that the tidal court We cannot 318, Stansbury California, v. See volun concluding the statement was erred in 1528-30, 820-24, 1526, 114 128 L.Ed.2d testimony of tarily given, based on the (a Dowthitt, (1994); at 254 931 S.W.2d However, sepa appellant raises a Flores. if, custody person is in under the circum admissibility of the challenge to the rate stances, person believe a reasonable would statement; nor neither written down it was was restrained that his freedom movement recorded, prerequisites under arti which are ar degree associated with formal 1979). (Vernon §§ The cle 38.22 1-3 State rest). pertinent is wheth question The more however, maintained, the statement give was a statement. er coerced 3(e) of under subsection should be admitted process “involuntary,” A for due statement 38.22, permits the admission article which official, only coercive purposes, if there was as a of an accused made an oral statement statement conduct of such a nature interrogation may be a custodial result of thereby unlikely was to have been obtained facts or circum if it “contains admitted essentially uncon product of an free and and which are found to be true stances that State, strained choice. Alvarado accused, guilt of the to establish the conduce (Tex.Crim.App.1995); S.W.2d finding of secreted or stolen as the such Smith, at 427. he the instrument with which property or committed.” Tex the offense was states mentioned, previously the trial As 3(c) (Vernon § Proo. Ann. Code Crim. prоperly hearing conducted a to deter court true means term “found to be appellant’s statements were mine whether unaware at were facts about which hearing, the trial court is voluntary. At such later, are the confession [which] the time of credibility of weight and judge the sole to be true.” confession found after evidence, finding not be and its Dansby v. appeal a clear abuse disturbed on absent (citing Romero v. (Tex.Crim.App.1996) Alvarado, discretion. (Tex.Crim.App.1990)). hearing admis proof at the on The burden Flores, put appellant after he According to prosecution, must sibility is on the into he looked patrol in the preponderance of the evidence prove was which he assumed saw a VCR given car and the defendant’s statement to the house where Flores then went Connelly, 479 stolen. voluntarily. U.S. Colorado occurred, conelud- 522-23, reported burglary 93 the Upon re ed that it had been broken into.6 The decision of whether to open State, however, a ease lies within the sound discretion questioning from the of the trial court. See Cain v. although suspected admitted that (Tex.Crim.App.1984); Cuba stolen, items in the car he did know (Tex.App.— specifically what had been stolen from the pet.). Texarkana A trial court must *13 investigated house he until made reopen following a ease if the conditions are his statement. When he asked (1) present ready to met: the witness is and the items he taken where had from the house (2) testify, request reopen the has been were, appellant fitting made a statement charge jury made before the was read the 3; scope § within the of article 38.22 he told (3) made, arguments final were the officer the items he had taken all in were judge of what the testi had some indication appellant’s the car. It was not until com- mony would be and is satisfied that the testi suspicions ment that Flores confirmed his mony directly oh the is material and bears that the items in the ear had been taken Phillips main issues in the case. Appellant’s statement was later house. (Tex.App. Corpus — true,- found to be as Hutchins identified pet.); no Christi Wilson own, items found inside the car as his (Tex.App. Corpus Christi — permission. had been taken The without ref'd). 1993, pet. on the The burden is de trial court was entitled to conclude that the proposed testimony to show that the fendant statement fit within the of article 38.22 scope materially changed in would have the case 3(c). § his favor. Yee v. (White, J., dissenting) (Tex.App.-r-Houston say Accordingly, we cannot the trial court 1990), dism’d, pet. [14th Dist.] in concluding abused its discretion the state- (Tex.Crim.App.1991); Gray v. voluntarily given admitting ment was it (Tex.App. [14th —Houston 3(e). § undеr article 38.22 Point error Dist.]1990, pet.). three is overruled. case, In the there was no indication instant Finally, by point, appel his fourth nature of regard the defense with reversibly lant contends that the trial court “inconsistencies,” question- what further erred when it did not allow on, ing focus or what the defense would rested, reopen already questioning. his case after had through would demonstrate such satisfy Because the defense did not the third charge jury. was read to the before prong demonstrating an abuse of the test for Appellant explains the code of criminal Wilson, out in he has not of discretion we set procedure allows a court to receive evidence adequately preserved point for consider- any justice, time the interest of appeal. ation on Point of error four is over- denying request may reversible such a ruled. errоr when a witness is available and allow ing testimony such will not inconvenience the judgment The of the trial court is affirmed. court. See Tex.Code Crim. Proc. Ann. art. SEERDEN, C.J., concurring issues (Vernon opinion. evidence, At the conclusion of the defense SEERDEN, Justice, concurring. Chief explained to court that his client counsel majority’s disposition I concur “reopened” wanted the case because his this ease. they ought to recall a client believed that couple of Defense counsel further witnesses. However, agreeing disagreeing or without primary Balta- “[a] stated witness would be discussion, majority’s reasoning or
zar I believe the first witness’ Flores and respect points error holdings with two concerning some inconsis- three, simply name was Salazar if I would hold that even errors, re- complained tent statements.” The court denied this matters of were with- errors, deciding if quest. out there were parked away burglary. Appellant’s a few from the site of the car was houses appellant’s The other evidence harmless. photo- overwhelming without
guilt was appellant’s statement.
graphs or appel- witnessed
Alvarez testified that he home of his carrying items from the
lant parked [appellant’s] to his
neighbor Hutchins, the public
plain view on a street.
homeowner, items identified the testified and taken from his car as those
home, further that he had and stated appellant to authority
given consent or take such items.
enter the home
responding officer testified that he observed YCR, items, appel- including a stolen automobile, that, investigat- and after
lant’s reported burglary
ing the house where the
occurred, ajar noticed the back door wires.
loose television alone, I believe we can
From this evidence determine,
properly beyond a reasonable
doubt, admitting photo- error
graphs appellant’s statement did conviction, appellant’s
contribute to
such, Tex. must be considered harmless. 44.1(a);
R.App.P. Brown v. (Tex.App.-Corpus Christi h.) (wrongful pet. admission harmless).
statement deemed Benjamin HALL, III
In re L. City of Mercedes.
No. 13-97-917-CV. Texas, Appeals Court SEERDEN, C.J., YANEZ and Before Corpus Christi. CHAVEZ, JJ. April OPINION
YANEZ, Justice. City of Benjamin Hall and the
Relators by way of a writ of relief Mercedes seek on Decem- from an order entered mandamus Euresti, Jr., 22,1997 Judge Benjamin ber Court Cameron 107th District produce Hall to ordered County. The court