COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ANTONIO DOMINGUEZ MARTINEZ, )
) No. 08-04-00048-CR
Appellant, )
) Appeal from the
v. )
) 383rd District Court
THE STATE OF TEXAS, )
) of El Paso County, Texas
Appellee. )
) (TC# 20030D00503)
)
O P I N I O N
Antonio Dominguez Martinez was indicted for five counts of aggravated assault with a deadly weapon. Over Appellant=s not guilty plea, the jury found Appellant guilty of Counts I, III, and V and assessed punishment at 3 years= imprisonment for Count I; 3 years= imprisonment for Count III; and 13 years= imprisonment for Count V. In three issues, Appellant contends the trial court erred in denying his motion to suppress evidence from the search of his residence and his oral statement and erred in overruling his objection to the State=s cross-examination of him regarding his prior arrests. We affirm.
On the evening of January 13, 2003, Jose Zamora Vega was leaving his apartment building at 115 West Paisano in El Paso, with Ramona Padilla, Pedro Lopez, and Francisco Granados, all residents of the building. As they were leaving, they passed Appellant=s wife, Lydia Luna, in the stairway. Mr. Vega recalled that he and his companions were laughing and joking as they proceeded out the front of the building.
As Mr. Vega and his friends were sitting in a truck in the rear parking area, Appellant came out of the apartment building through his back door and pointed a gun at them. Appellant was yelling at them and claimed that they had insulted his wife. Appellant threatened to kill them. Erica Almarez, Ms. Padilla=s daughter, heard her mother screaming and ran out to the porch of her apartment. Ms. Almarez saw Appellant threatening her mother with a gun. Mr. Vega jumped out of the truck, climbed over a wall, and ran towards the apartment building. The other occupants got out of the truck and Ms. Padilla yelled to her daughter to hand her a cordless phone to call for help.
Mr. Vega took the back entrance to the building and ran through the hallway to his apartment. Ms. Padilla saw Appellant enter his apartment and then leave his apartment through the hallway before he started chasing after Mr. Vega in the stairway. Mr. Vega ran towards his apartment door and warned his younger brothers to stay inside. Mr. Vega saw Appellant coming up the stairs. Fearful that Appellant would attack his brothers, Mr. Vega reached for Appellant=s hands. A struggle ensued and Appellant pulled out a knife. Appellant=s wife appeared and held onto Mr. Vega=s jacket from the back while Appellant began stabbing Mr. Vega. Mr. Vega rolled down the stairs and then ran away with Appellant chasing after him. Mr. Vega looked back and saw Appellant being apprehended by police, but he kept on running. He later returned to talk to police and was taken to the hospital.
Officer Susan Grass and her partner, Officer Moises Avila, were dispatched to the apartment building in reference to a subject with a gun call, which en route was upgraded to an emergency call on a stabbing. When the police officers arrived, there was a crowd gathered in front of the address. The people in the crowd were screaming and pointing at Appellant who appeared very angry and was arguing with the people. The crowd told the officers that Appellant had a knife. Officer Avila asked Appellant three or four times where the knife was before Appellant pulled the knife from a sheath on his waistband. Appellant started waving it above his head. Officer Avila commanded Appellant to drop the knife, and after a couple of requests, Appellant complied. Officer Avila then forced Appellant to the ground with assistance from another officer who had arrived at the scene.
Members of the crowd told Officer Grass that Appellant had a gun. Officer Grass asked Appellant where the gun was, but he did not produce one. A small child in the crowd led Officer Grass to Appellant=s apartment. The apartment door was open. Believing that somebody else in the apartment had the gun, Officer Grass entered the apartment and found a loaded gun in a small, open suitcase which was halfway underneath the bed in the bedroom. She retrieved the gun and took it outside to another officer. Appellant was transported to the police station and placed in a holding cell. According to Officer Avila, Appellant voluntarily made the comment that he was guilty of the stabbing, but not guilty of the assault with a gun.
MOTIONS TO SUPPRESS
In Issues One and Two, Appellant contends the trial court erred by denying his motion to suppress the evidence obtained from the search of his residence and his motion to suppress his oral statement made to Officer Avila at the police station.
Standard of Review
We review the trial court=s ruling on a motion to suppress for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-9 (Tex.Crim.App. 1997). Under this standard, we give almost total deference to the trial court=s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id; Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). When the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). The trial court=s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).
Warrantless Search
Both the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution prohibit unreasonable searches and seizures. See U.S.Const. Amend. IV; Tex.Const. art. I, ' 9. Warrantless searches are per se unreasonable unless they fall under one of a few exceptions. Brimage v. State, 918 S.W.2d 466, 500 (Tex.Crim.App. 1994)(plurality op. on reh=g); Kelly v. State, 669 S.W.2d 720, 725 (Tex.Crim.App. 1984), cert. denied, 469 U.S. 963, 105 S. Ct. 362, 83 L. Ed. 2d 298 (1984). To justify a warrantless search of a residence under the emergency doctrine exception, the State must show that: (1) the officer had probable cause at the time the search was made; and (2) the officer had an immediate reasonable belief that he or she must act to Aprotect or preserve life or avoid serious injury.@ See Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978); Brimage, 918 S.W.2d at 500-02; McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991). The emergency doctrine applies when the police are acting in their limited community caretaking role to Aprotect or preserve life or avoid serious injury,@ not in their Acrime-fighting@ role. Laney v. State, 117 S.W.3d 854, 861 (Tex.Crim.App. 2003), quoting Mincey, 437 U.S. at 392, 98 S. Ct. at 2413.
In determining whether a warrantless search is justified under the emergency doctrine, we apply an objective standard of reasonableness which looks at the officer=s conduct and takes into account the facts and circumstances known to the officer at the time of the entry. See Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App. 1998); Brimage, 918 S.W.2d at 501. Furthermore, we look to ensure that the warrantless search is strictly circumscribed by the exigencies that justify its initiation. Laney, 117 S.W.3d at 862. If the emergency doctrine applies, the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Id.; Mincey, 437 U.S. at 393, 98 S. Ct. at 2413; Brimage, 918 S.W.2d at 501.
In this case, the police officers received a dispatch that an aggravated assault involving a gun was in progress. When they arrived at the location, there was a crowd on the sidewalk. People in the crowd were screaming and pointing at Appellant. They repeatedly yelled to the officers that Appellant had a knife. Officer Grass recalled that Appellant was standing confrontational, with his legs spread apart, moving back and forth and acting very agitated, upset, and angry. After repeated commands, Appellant eventually dropped a knife that he had pulled out of a sheath on his waistband. Appellant was forced to the ground and handcuffed. Officer Grass patted Appellant down for weapons, but did not find a gun. People in the crowd, however, told the officers that Appellant had a gun. Officer Grass asked Appellant where the gun was, but he did not respond. A child in the crowd told Officer Grass that he knew where Appellant lived. Officer Grass followed the child into the apartment building to the second floor. The child pointed to an open apartment. According to Officer Grass, she was concerned that the emergency call was for an aggravated assault with a gun, but no gun had been found on Appellant. Not knowing whether there was a suspect with a gun in the apartment and out of concern for the safety of her fellow officers and the crowd downstairs, Officer Grass entered the apartment and began checking the rooms for people. When she entered the bedroom, Officer Grass observed a gun lying in a partially open suitcase that was halfway under the bed. Officer Grass picked up the gun and went outside to show it to her partner.
At the time of the entry, the officers were responding to an emergency call concerning an aggravated assault with a gun. Appellant was detained, but no gun was recovered. Officer Grass believed that there was another suspect with the gun who had remained in Appellant=s apartment following their altercation. Out of fear for the safety of her fellow officers and the civilians in the crowd below, Officer Grass entered Appellant=s apartment to check for persons. We also note that no victim was immediately found at the scene when the police arrived, thus there was a real possibility that there were victims inside the apartment in need of medical attention. Taking into account the facts and circumstances known to Officer Grass, we conclude that she could have reasonably believed that she had to act to protect or preserve life or avoid serious injury. Once inside the apartment for a legitimate emergency activity, Officer Grass saw the gun in plain view. Since Officer Grass= presence in the apartment was justified under the emergency doctrine, this evidence was lawfully seized. See Laney, 117 S.W.3d at 862; see also Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App. 2000)(Aplain view@ doctrine requires that: (1) law enforcement officials have a right to be where they are, that is, not in violation of the Fourth Amendment; and (2) it be immediately apparent that the item seized constitutes evidence, that is, probable cause to associated the item with criminal activity). Therefore, we conclude the trial court did not abuse its discretion in denying Appellant=s motion to suppress the evidence obtained from the search of his residence. Issue One is overruled.
Oral Statement
Appellant also contends that the trial court erred by denying his motion to suppress his unrecorded oral statement to Officer Avila, in which he stated that he was guilty of the stabbing, but not guilty of the assault with a gun. Appellant asserts that the statement was inadmissible because it was obtained during the functional equivalent of an interrogation in violation of Article 38.22 of the Texas Code of Criminal Procedure, the United States Constitution, and the Texas Constitution.
Section 3 of Article 38.22 of the Texas Code of Criminal Procedure provides that no statement made by an accused as the result of custodial interrogation will be admissible at trial unless an electronic recording is made of it and the accused was given Miranda warnings. See Tex.Code Crim.Proc.Ann. art. 38.22, ' 3(a)(Vernon 2005). Article 38.22, however, only applies to statements made as a result of custodial interrogation. See Morris v. State, 897 S.W.2d 528, 531 (Tex.App.--El Paso 1995, no pet.). If the appellant=s statements do not stem from custodial interrogation, neither Miranda nor Article 38.22 requires their suppression. Id. Custodial interrogation requires: (1) that the suspect must have been Ain custody;@ and (2) the police must have Ainterrogated@ the suspect either by express questioning or its functional equivalent. Id.; see also Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980). Not all police questioning is Ainterrogation.@ Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990). Interrogation refers to words, actions, or questions by police that the police should know are reasonably likely to elicit an incriminating response. Innis, 446 U.S. at 300-01, 100 S. Ct. 1689-90; see also Roquemore v. State, 60 S.W.3d 862, 868 (Tex.Crim.App. 2001). An Aincriminating response@ is any response that the prosecution may seek to introduce at trial. Innis, 446 U.S. at 302 n.5, 100 S. Ct. at 1690.
At the pretrial suppression hearing, Officer Avila testified that he read Appellant his Miranda rights in Spanish while at the scene. Appellant was then transported to the police station for processing. While Appellant was waiting in the holding cell, Officer Avila explained to Appellant that he had presented the case to the District Attorney, it had been accepted, a bond would be set, and Appellant would be transferred to the County jail. In Spanish, Appellant told Officer Avila that he had stabbed someone, but he did not point the gun at anyone. Officer Avila stated that he was not questioning Appellant at that point, but merely making Appellant aware of the process he was taking in reference to Appellant=s case. The trial court delayed its ruling until the trial on the merits at which time it overruled Appellant=s objection to the admission of the oral statement. Officer Avila testified that Appellant was in custody, but that he was not being interrogated when he made the statement. At trial, Officer Avila told the jury that Appellant made the comment that he was guilty of the stabbing, but not guilty of the assault with a gun.
The State concedes that Appellant was in custody when he made the complained-of statement. However, the State argues that the statement was not the result of an interrogation. According to Officer Avila=s testimony, he was advising Appellant of the status of the case when Appellant volunteered the statement. Officer Avila was not asking any questions to Appellant at the time. Further, there is no evidence to suggest that Appellant was subjected to coercive conduct by the police. We cannot agree with Appellant=s contention that informing Appellant of the process of his case was the functional equivalent of police questioning. Merely explaining to Appellant what was happening in his case is not an accusatory confrontation per se. There is nothing in the record that suggests Officer Avila knew his words were reasonably likely to elicit an incriminating response. We conclude that Appellant=s statement was not the result of an interrogation, and thus, the statement was admissible at trial. Since the statement was admissible, the trial court did not abuse its discretion in denying Appellant=s motion to suppress the statement. Issue Two is overruled.
CROSS-EXAMINATION ON PRIOR ARRESTS
In Issue Three, Appellant asserts that the trial court erred in permitting the State to conduct cross-examination of him regarding his prior arrests over his objection. Appellant complains that the State was not entitled to impeach his credibility with his record of prior arrests and convictions because he did not open the door to his criminal history.
Standard of Review
Admission of evidence is a matter within the trial court=s discretion. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App. 1990). We review the trial court=s ruling on the admissibility of evidence for an abuse of discretion. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). If the trial court=s decision to admit evidence falls within the Azone of reasonable disagreement,@ we will not disturb the trial court=s ruling on appeal. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App. 2001); Montgomery, 810 S.W.2d at 390-91.
False Impression
An accused puts his character for veracity in issue by taking the stand, and thus he may be impeached in the same manner as any other witness. See Hammett v. State, 713 S.W.2d 102, 105 (Tex.Crim.App. 1986). When attacking the credibility of a witness, evidence of prior criminal convictions is admissible only if the crime was a felony or involved moral turpitude, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party. See Tex.R.Evid. 609(a). However, an exception to Rule 609 applies when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App. 1993); Prescott v. State, 744 S.W.2d 128, 131 (Tex.Crim.App. 1988). Where a witness Acreates a false impression of law abiding behavior, he >opens the door= on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood.@ Delk, 855 S.W.2d at 704. This exception is not limited to final convictions. See Prescott, 744 S.W.2d at 130-31.
On direct examination by defense counsel, Appellant was questioned about his Aproblems with the law@ while living in Riverside, California and in Dodge City, Kansas. The following colloquy occurred:
Q. While you were living in Riverside, you did have some problems with the law at that time?
A. Well, yes, I did have some tickets, normal.
Q. Okay. And you pled to some of those tickets, did you not?
A. Well, I had to pay.
Q. Okay. What kind of tickets were those?
A. The majority of the tickets were for driving fast.
Q. Any other types of tickets you received?
A. I had several tickets, but they=re minor. I couldn=t tell you all of them, unless you give me time to tell you all about them.
. . .
Q. What kind of problems did you have with the law there in Dodge City?
A. I had problems with--of some people who-- the people who picked up animals from the streets, dogs, cats.
Q. What kind of problem?
A. The problem was I had roosters, fighting roosters. Could I speak now?
Q. Yes. Continue.
A. The problems started because he went in illegally to take out the roosters. And then I had to go to court, city court, so they could give me back the roosters, because he couldn=t cross that area that was private without the permission of a judge.
Q. Then what happened?
A. That was arranged. They returned the roosters. I picked them up. I had a fine of $200, and I paid it. Afterwards, some time went by. I was in auto parts, and I went to a store. And I --then I saw him at a grocery store outside. We argued. He attacked me, and I defended myself.
Q. And you went to court on that?
A. No. I was a prisoner for three months. Then court.
The State argued to the trial court that Appellant=s testimony on his problems with the law had left a false impression with the jury that Appellant=s criminal history consisted only of speeding tickets. The trial court agreed that Appellant had opened the door to his criminal history and granted the State=s request to cross-examine Appellant on his prior arrests and convictions in Riverside and Dodge City for impeachment purposes.
Over Appellant=s objection, the State questioned Appellant about his prior arrests and convictions for non-traffic offenses. Appellant denied that he was arrested on April 28, 1994 for attempted murder in Riverside, California. He denied having been arrested on April 29, 1987, by the Riverside Sheriff=s Department for carrying a concealed weapon. He denied being arrested on January 23, 1983 in Los Angeles, California for forgery. Appellant also denied being arrested on March 16, 1994 in Riverside for assault, denied being convicted for public lewdness in Riverside on August 4, 1993, and denied being arrested for possession of cocaine and drug paraphernalia in Kansas on December 11, 1995. Appellant admitted that he pled guilty to an assault charge in Kansas in 2000. Appellant admitted that he had been deported on October 1984 from California, but denied that he was deported to Mexico again in September 2000 from Kansas City County, Missouri.
After reviewing the record, we find that Appellant gave misleading responses to his counsel=s inquiry into his problems with the law in that he implied that his criminal history consisted only of minor traffic offenses and a justifiable assault on an animal control officer. The trial court could have reasonably concluded that Appellant left a false impression with the jury with respect to the extent of his trouble with the law in California and Kansas, and therefore, the State was entitled to cross-examine Appellant on his prior arrests and convictions in the respective States for impeachment purposes. See e.g., Reese v. State, 531 S.W.2d 638, 640‑41 (Tex.Crim.App. 1976)(when witness by his direct testimony leaves false impression of his Atrouble@ with the police, it is legitimate to prove that the witness has been Ain trouble@ on occasions other than those about which he offered direct testimony). Accordingly, we conclude the trial court did not abuse its discretion in ruling that Appellant had opened the door to the admission of this evidence. Issue Three is overruled.
We affirm the trial court=s judgment.
September 22, 2005
DAVID WELLINGTON CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)