Affirmed and Memorandum Opinion filed January 15, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-00987-CR
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MELVIN JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1074760
M E M O R A N D U M O P I N I O N
Appellant Melvin Joseph Johnson challenges his conviction following a jury trial for capital murder. The trial court assessed punishment as life imprisonment without possibility of parole, as required by statute. Appellant contends that the trial court erred in (1) admitting evidence seized as a result of his warrantless arrest; and (2) overruling appellant=s objections to the State=s closing argument. We affirm.
Background
Shortly before 6:00 a.m. on June 26, 2006, Joel Portillo was shot once in the chest during an armed robbery in the parking lot of his apartment complex. Joel=s father, Jose Portillo, witnessed the robbery and shooting. Roderick Mack, a bystander, also witnessed the robbery and shooting. Joel=s assailant fled after shooting him, and Joel later died from his injuries.
Based upon information gathered from Mack and Jose Portillo, homicide investigators began searching for the suspect and the car he was seen driving from the crime scene. Mack had described the car to officers as a white Dodge with a distinctive dent in its side. During the morning of June 27, 2006, Houston Police Officer Michael Miller spotted the car at an apartment complex near the crime scene and watched two men get into the car. The men, Henry Hebert and Bradley Hassan, drove to a nearby fast food restaurant where they were stopped by police.
Police discovered that Hebert was the car=s owner. Police impounded the car while Hebert and Hassan were interviewed regarding Joel Portillo=s murder. Neither Hebert nor Hassan matched the suspect=s description. Hebert and Hassan told police a man with the street name ABookie@ borrowed Hebert=s car during the morning of June 26 and had it at the time of the murder.
Hebert and Hassan agreed to ride along with investigators and show them different locations in southwest Houston where ABookie@ might be found. Hebert and Hassan first led police to Myeisha Turner=s apartment. Turner is the mother of appellant=s child. The manager of Turner=s apartment complex told Houston Police Sergeant John Belk that Turner and appellant=s child had left Houston for New Orleans.
Hebert and Hassan then led officers to another apartment complex in southwest Houston. Hebert and Hassan saw appellant at the complex and identified him to Sergeant Belk and Officer Miller as ABookie,@ whom police now considered to be a suspect in Joel Portillo=s murder.
Houston Police Sergeant Jim Binford was notified that the suspect in the Portillo murder had been spotted, and he drove to another location in the apartment complex to observe appellant. Police had been told that appellant always carried a gun, had a volatile personality, and Awas known in the area for that volatile and dangerous manner.@
Sergeant Binford observed appellant in a heated argument and informed Sergeant Belk and Officer Miller about this disturbance. Sergeant Belk and Officer Miller had momentarily lost sight of appellant, and when they saw him again they too observed that he was engaged in a heated argument with two other individuals outside an apartment.
Based upon their observations of the argument, appellant=s apparent volatility, and their belief that he was armed, the three officers decided to approach appellant with their weapons drawn and arrest him for breach of the peace. Appellant was the only person arrested, and no charges were filed for breach of the peace. Appellant was not armed when he was arrested. The officers did not have a warrant to arrest appellant for Joel Portillo=s murder when they arrested him for breach of the peace.
Following his arrest, appellant told Sergeant Belk that he was arguing with two individuals because they had broken into an apartment he was renting and had sex there with two women from Dallas. Upon learning that the officers were investigating a homicide, appellant denied killing anyone and began cooperating with police. Appellant consented to searches of his car and apartment. No murder weapon was recovered; police found three .9 millimeter bullets during the search of appellant=s apartment.
Officers transported appellant to the police station, photographed him, and informed him of his rights. Appellant indicated that he understood his rights, voluntarily waived those rights, and gave police a videotaped statement. Officers placed appellant=s picture into a photo array and showed the array to Roderick Mack and Jose Portillo separately. Mack and Jose Portillo both positively identified appellant as the person who fatally shot Joel Portillo on June 26.
On October 16, 2007, appellant filed several motions challenging the legality of his arrest and the admissibility of evidence seized as a result of that arrest, including (1) his videotaped statement; (2) any identifications made using the photograph taken following his arrest; and (3) any evidence found as a result of the searches made following his arrest. On November 9, 2007, the trial court held a hearing on appellant=s motions to suppress.
At the November 9 hearing, Sergeant Belk testified about the circumstances surrounding appellant=s arrest. Sergeant Belk also testified that officers intervened and arrested appellant for committing a breach of the peace in their presence (1) after observing him in a heated verbal confrontation; and (2) based upon the information that he was always armed and known to be volatile and dangerous. Sergeant Belk testified that before the officers approached appellant he was Ayelling and gesticulating his arms@ and making unspecified verbal threats. Sergeant Belk also testified that appellant appeared to be the aggressor in the confrontation. The trial court recessed the hearing and postponed ruling on appellant=s motions to suppress until appellant had an opportunity to examine Sergeant Binford on the record during a trial recess.
Trial began on November 12, 2007. Following jury selection and testimony by Houston Police Officer D.C. Lambright and Mack, appellant examined Sergeant Binford outside the jury=s presence on the motions to suppress. Sergeant Binford testified that he could not provide the names or addresses of any complainants or witnesses to the breach of the peace involving appellant because those individuals fled the scene too quickly for officers to gather their information. Sergeant Binford testified that he witnessed appellant screaming, yelling, arguing, and causing a disturbance that required police intervention. Sergeant Binford testified that no charges were filed against appellant for breach of the peace and no separate police report for breach of the peace was filed because the details of the breach and arrest would be part of the capital murder police report. Following Sergeant Binford=s testimony, the trial court denied appellant=s motions to suppress.
Additionally, appellant objected to several statements made by the prosecutor during closing argument. Appellant objected twice on grounds that the closing argument improperly focused on victim impact from Joel Portillo=s murder. Appellant=s first objection was sustained, and the jury was instructed to disregard the objectionable statement; appellant=s motion for a mistrial was denied. Appellant=s second objection was overruled.
The jury found appellant guilty of capital murder, and the trial court assessed punishment at life imprisonment as required by statute. The trial court signed a judgment reflecting the jury=s verdict and the trial court=s sentence on November 15, 2007.
Analysis
Appellant challenges the trial court=s admission of evidence seized as a result of his warrantless arrest. Appellant also contends that it was reversible error for the trial court to overrule his objections to the State=s closing argument. We address each issue in turn.
I. Legality of Appellant=s Warrantless Arrest
The trial court is the sole judge of the credibility of witnesses at a hearing on a motion to suppress evidence and may choose to believe or disbelieve any or all of the witnesses= testimony.[1] Johnson v. State, 871 S.W.2d 744, 748 (Tex. Crim. App. 1994) (en banc). The trial court is also the sole trier of fact at a hearing on a motion to suppress and we are not to disturb any finding supported by the record. Flores v. State, 871 S.W.2d 714, 721 (Tex. Crim. App. 1993) (en banc).
As a general rule, we afford almost total deference to a trial court=s determination of the historical facts the record supports, particularly when those factual findings are based on an evaluation of the demeanor and credibility of witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). We afford this same amount of deference to trial court rulings on application of law to fact questions if the resolution of those questions turns on an evaluation of demeanor and credibility of witnesses. Id. In reviewing a trial court=s ruling on a motion to suppress, we review the evidence in the light most favorable to the trial court=s ruling. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).
Police officers may arrest someone without an arrest warrant if that person is found in a suspicious place under circumstances which reasonably show that he has been guilty of a breach of the peace, or has threatened or is about to commit some offense against the laws of this state. Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2008). An officer may arrest without a warrant anyone who commits an offense in his presence or within his view. Id. art. 14.01(b) (Vernon 2005).
This statutory authorization to arrest for an Aoffense against the public peace@ codifies an exigent circumstances exception to the warrant requirement. Miles v. State, 241 S.W.3d 28, 41 (Tex. Crim. App. 2007). Exigent circumstances require an immediate arrest when an offense that poses a continuing threat to the public peace is committed in the presence or view of a police officer. Id. at 42.
When the officers observing appellant decided to arrest him for breach of the peace, the information leading them to believe they had to act included the following: (1) appellant was believed to carry a gun at all times; (2) appellant had a volatile personality and Awas known in the area for [his] volatile and dangerous manner;@ (3) they personally observed appellant engaged in a heated argument outside an apartment where Hassan and Hebert said he might be found; and (4) appellant was a suspect in the capital murder of Joel Portillo.
During the hearing on appellant=s motions to suppress evidence, Sergeant Belk testified regarding his observation of appellant breaching the peace that required officers to arrest appellant. Sergeant Binford also testified during the suppression hearing that he witnessed appellant screaming, yelling, arguing, and causing a disturbance that required the police to arrest him for breach of the peace.
During trial, Hebert and Hassan testified that they did not see anyone around appellant or witness him in a confrontation just before officers approached him. Both testified that they were hiding at the moment appellant was arrested and did not witness the actual arrest. Officer Miller and Sergeants Belk and Binford testified during trial that they saw appellant engaged in a heated argument at the top of an apartment stairwell and arrested him for committing a breach of the peace. Sergeant Belk testified that appellant was arguing with two young males, while Sergeant Binford testified that appellant was arguing with a middle-aged man about two young males.
The trial court had exclusive authority to evaluate the credibility of the testimony given regarding the circumstances surrounding the breach of the peace for which appellant was arrested. See Johnson, 871 S.W.2d at 748. The trial court acted within its exclusive province in finding that the officers had a reasonable belief that appellant was engaging in a breach of the peace that warranted his arrest, and the record contains evidence to support that finding. See Flores, 871 S.W.2d at 721. Because the trial court observed the witnesses during their testimony and based its findings and ruling on the motions to suppress on their credibility, we show great deference to the trial court=s findings and ruling. See Guzman, 955 S.W.2d at 89.
The trial court acted within its discretion in concluding that appellant=s conduct posed an immediate and continuing threat to the public peace and gave rise to a reasonable belief that appellant had committed a breach of the peace. See Miles, 241 S.W.3d at 41; see also Ste-Marie v. State, 32 S.W.3d 446, 449 (Tex. App.BHouston [14th Dist.] 2000, no pet.) (evidence that appellant said to 10-year-old girl AHey, bitch, what are you looking at?@ sufficient to justify detention by police).
Viewing this evidence in the light most favorable to the trial court=s ruling, we cannot say that the trial court abused its discretion in finding that appellant committed a breach of the peace which led to his arrest. See Gutierrez, 221 S.W.3d at 687. Viewing the evidence in the light most favorable to the trial court=s ruling, we also cannot say that the trial court abused its discretion in determining that appellant=s warrantless arrest was valid under Articles 14.01(b) and 14.03(a)(1) of the Texas Code of Criminal Procedure.[2] See id.
We overrule appellant=s issue regarding admission of evidence seized as a result of his warrantless arrest.
II. Objections to State=s Closing Argument
Appellant contends that the trial court committed reversible error when it overruled his objections to the State=s closing argument. Specifically, appellant argues on appeal that the State impermissibly injected victim impact statements into its closing argument over appellant=s objections.
The four permissible areas of jury argument are (1) summation of evidence; (2) reasonable deductions drawn from the evidence; (3) answers to opposing counsel=s argument; and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Even if a jury argument exceeds these permissible areas, it will not constitute reversible error unless the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc).
Appellant cites on appeal four objections raised during the State=s closing argument. Of these four objections, the first asserted that the State was arguing facts not in evidence and the fourth asserted improper jury argument. An appellant=s issue on appeal must comport with the objection made at trial; otherwise, the appellant has preserved nothing for review. See Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Because appellant=s issue on appeal does not comport with these two cited objections, appellant leaves us nothing to review with regard to them.
The remaining two objections at trial were based on appellant=s contention that certain portions of argument constituted improper victim impact statements, which is the same argument raised on appeal. The trial court sustained one of these victim impact objections and instructed the jury to disregard the challenged statement. The trial court then denied appellant=s motion for mistrial. Appellant argues on appeal only that error was committed in overruling his improper victim impact objections, not that it was error to deny his motion for mistrial. Therefore, appellant leaves us nothing to review regarding this sustained objection. See Tex. R. App. P. 33.1(a).
Furthermore, even if appellant had preserved for review the denial of his motion for mistrial, he failed to demonstrate that he was harmed by such denial. As a general rule, we presume that the jury follows the trial court=s instructions in the manner presented. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). This presumption may be rebutted by pointing to evidence that the jury failed to follow the trial court=s instruction. Id. Because appellant cites no evidence that the jury failed to follow the trial court=s instruction to disregard, he fails to rebut the presumption that the jury followed the instruction and cannot show that he was harmed by the trial court=s denial of his motion for mistrial.
We turn to the remaining victim impact objection. Appellant objected to the following assertion by the State: AThink about Mr. Portillo and his son getting ready for work that day because they work. They=re day laborers, basically, a landscaping job. They got a deal going where the son gets up and goes down and gets the car ready and Mr. Portillo follows . . .@ Once appellant objected, the State asserted that the statement was a summation of witness testimony. The trial court overruled appellant=s objection.
Summation of evidence is one of the four permissible areas of jury argument. Jackson, 17 S.W.3d at 673. The record in this case indicates that the statement quoted above is a summation of approximately three pages of testimony from Jose Portillo admitted without objection. Therefore, the trial court did not err in overruling appellant=s objection to this statement.
We overrule appellant=s issue regarding his objections to the State=s closing argument.
Conclusion
The trial court=s judgment is affirmed.
/s/ William J. Boyce
Justice
Panel consists of Justices Frost, Brown, and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).
1 Appellant=s argument on appeal cites only testimony and evidence from the hearing on his motions to suppress. The State asserts that we should consider both the testimony presented during that hearing and during the guilt-innocence stage of trial in reviewing this issue because the parties consensually re-litigated the validity of appellant=s arrest during the guilt-innocence stage of trial. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). Because the State=s assertion comports with the record and existing case law, we agree and therefore consider testimony elicited during trial and during the suppression hearing regarding the validity of appellant=s warrantless arrest.
2 The State also asserts that appellant=s arrest was legal under Article 14.04. See Tex. Code Crim. Proc. art. 14.04 (Vernon 2005). The record indicates that the trial court made no finding regarding the legality of appellant=s arrest under this statute, relying instead on Articles 14.01(b) and 14.03(a)(1). Because we resolve appellant=s issue on the grounds relied upon by the trial court, we do not address Article 14.04 and express no opinion regarding this article=s applicability to appellant=s arrest.