Affirmed and Memorandum Opinion filed August 25 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 14

- 00391

- CR NO. 14

- 14

- 00392

- CR

HOWARD MARTIN HARR IS , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No s . 14CR0154 & 12CR1863

M E M O R A N D U M O P I N I O N

A ppellant Howard Martin Harris appeals his convictions for aggravated sexual assault and aggravated kidnapping, challenging the trial court’s order denying his motion to suppr ess a video taped statement used by the S tate at his trial.
A ppellant claims that the statement was obtained as a result of an illegal
warrantless arrest and thus should have been suppressed. See Reed v. State , 8092

S.W.2d 940, 94 4 (Tex. App.

— Dallas 1991, no pet.) (stating that the use of evidence obtained through an illegal arrest is forbidden). We hold the trial court
did not err in denying the motion to suppress because the warrantless arrest of appellant was not illegal given the officer’s belief that an assault had occurred and genuine concern for the complainant’s safety. See McClatchy v. State, 758 S.W.2d 328, 330 (Tex. App.

— Houston [14th Dist.] 1988, pet. ref ’ d). W e therefore affirm the judgment s of the trial court.

B ACKGROUND According to testim ony at the evidentiary hearing on appellant’s motion to suppress, t he complainant went to clean a ppellant’s home on the night of July 11,
2012. Whe n the complainant arrived, a ppellant threw her on the bed and began striking her repeatedly with his belt an d fists. A ppellant cut off the complaina nt’s bra with a hunting knife. Appellant then pulled off the complainant’s pants and forced her to spread her legs. Appellant threatened her and stated that the police would find her in a ditch if she did not comp ly. Appellant then penetrated the complainant’s vagina with his fingers, causing her extreme pain.
Eventually, a ppellant set the hunting knife down and the complainant picked it up. Wielding the knife, the complainant successfully escaped the house and made her way to her truck that was parked outside. A ppellant followed her outside and stated that if she did not give him his knife back , he would come through the truck window. The complainant threw down the knife and drove directly to a nearby police station.
When she arrived, t he complainant spoke with Deputies Hunt and Ostermayer of the Galveston County Sheriff’s Office . The deputies observed that
the complainant was distraught and had marks all over her body that she claimed
were the result of a

p pellant’s beatings. The complainant told Hunt what happened3

to her and stated that her friend , a ppellant , was responsible for her injuries. Hunt communicated this information to his supervisor, Sergeant Brent Cooley. At this point, both Hunt and Cooley believed that they had probable cause to arrest

a ppellant for a ssault.
Cooley and Corporal Keele , another officer on duty, travelled to a ppellant’s
home and knocked on his door

. Cooley testified that he called Corporal Keele to
assist him in the interest of officer safety based on the complainant’s allegation that appellant had used a weapon in assaulting her. A ppellant answered the door , and Cooley and Keele explained why they were there . Keele testified that he
handcuffed a

ppellant for investigative d etention

. He and Cooley then asked

a ppellant if they could speak in his home because it was hot and th ere were mosquitoes outside

. Appellant allowed the officers inside

. Keele read appellant his Miranda rights. 1 Cooley then asked if a ppellant
would be willing to speak with the m regarding the allegations made against him by the complainant

. Appellant affirmed that he understood his rights and then gave oral consent to speak with the officers and w ritten consent for the officers to search
his home and vehicle for the hunting knif e described by the complainant. The
officers were unable to locate the hunting knife the complainant alleged appellant
had used in the assault.

At the conclusion of the search , Cooley called the a ssistant district a ttorney

on duty for guidance on the case. The assistant district attorney confirmed Cooley’s suspicions that pr obable cause existed to arrest a ppellant for assault causing bodily injury. The officers then arrested a ppellant for assault causing bodily injury. The officers had not obtain ed a n arrest warrant prior to placing

a ppellant under arrest

. The officers brought a ppellant back to the sheriff’s station ,

1 Miranda v. Arizona , 384 U.S. 436 (1966)

.4

where Detective B alchunas interviewed him

. The entire interview was videotaped.
Appellant filed a pre

- t rial motion to suppress his statement to Detective
Balchunas , alleging it w as the fruit of an illegal arrest

. At this hearing, Cooley, Hunt, and Keele each testified that they believed that there was a threat of future
harm t o the complainant. The trial court ruled that a ppellant’s warrantless arrest was legal and denied the motion to suppress the statement. The trial court
articulated the follo wing reason:
The thing that is persuasive to the court is that t here was a threat. You're going to end up in the ditch, words to the effect [sic] , if you go to the police, or whatever. Well, she's at the police. There was a knife used. How she got away, whether she had a knife to use to get away is

-- there some testimony of that, but there is physical damage o n the victim. There is [sic] pictures of a bra that has been raggedly severed, and I believe that the police could and should take into consideration the future threat to the vict im. The trial court later signed findings of fact and conclusions of law.

A ppellant pled not guilty and went to trial on both charges

. Appellant’s
video statement was played for the jury during the trial

. After the video was played, a ppellant decided to accept a plea agreement. He pled guilty to both aggravated sexual assault and aggravated kidnapping and pled true to a deadly weapon enhancement to the latter charge

. T he trial court accepted the plea , admonished a ppellant , and sentenced him to twenty years’ imprisonment on each
count with the sentences to run concurrently in accordance with the plea agreement

. A ppellant filed motions for new trial in both cases , which t he trial court
denied

. These appeals followed.5 A NALYSIS In a single issue in each appeal , a ppellant contends the trial court abused its
discretion when it denied his motion to suppress because his video statement was obtained through an illegal warrantless arrest. See Tex. Code Crim. Pro c. Ann . art. 38.23(a) (West 2015 ).

I

. Standard of review and applicable law
We review the trial court’s ruling on a moti on to suppress under a bifurcated
standard. Douds v. State, 434 S.W.3d 842, 846 (Tex. App.

— Hous ton [14th Dist.] 2014, pet. granted ) (en banc). We afford almost total deference to the trial court's determinations of historical facts that the record suppor ts, especially those based on an evaluation of credibility and demeanor. State v. Elias, 339 S.W.3d 667, 673 (Tex. Crim. App. 2011). We afford the same amount of deference to the trial

court ’ s rulings on mixed questions of law and fact when the resolut ion of those ultimate questions turns on evaluations of credibility and demeanor. Id. When
those rulings do not turn on credibility and demeanor evaluations, we review them
de novo

. Id. We will uphold the trial co urt ’ s ruling if it is correct under any theory of law applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005).

II. The trial court did not err in denying appellant’s motion to suppress.

A. A danger of further bodily injury au thorizes a warrantless arrest. [A] ll arrests and searches without valid warrants are unreasonable unless shown to be within one of the exceptions to the rule that an arrest or a search must rest upon a valid warrant. A valid exception must exist and the b urden is on the State to show that a warrantless arrest or search comes within some exception to the above general rule of exclusion.

Wilson v. State , 621 S.W.2d 799, 803

- 04 (Tex. Crim. App. [Panel Op.] 1981).6

S uch an exception exists in this case. In Texas, warrantless arrests are authorized in limited situations primarily set out in the Code of Criminal
Procedure. See T ex . C ode C rim . P roc

. Ann. arts. 14.01

– 14.03 (West 2015 ) ; Swai n v. State
, 181 S.W.3d 359, 366 ( T ex. Crim. App. 2005). Article 14.03( a)(2) provides that a police officer may arrest a person without a warrant if the officer has probable cause to believe : that the person committed an assault resulting in bodily injury , and that there is danger of further bodily injury to the victim. T ex

. C ode C rim . P roc

. Ann. art . 14.0 3(a)(2).
Appellant contends that it is also settled law that a warrantless arrest violates
the Fourth Amendment when there is no showing that seeking a warrant would
have been impracticable. T he risk of future harm to th e victim , however, is itself an impracticable circumstance that legitimizes an otherwise

- illegal warrantless

arrest. Randolph v. State , 152 S.W.3d 764, 771

– 73 (Tex. App.

— Dallas 2004, no pet.) (concluding exigent circumstances include risk of danger to vic tim). 2

In sum, under the Fourth Amendment and Texas law, a warrantless arrest is not illegal when the arresting officers have probable cause to believe that an assault causing bodily injury occurred and that there is a danger of further bodily injury. It is uncontested that the arresting deputies had probable cause to believe that appellant had committed an assault causing bodily injury. Thus, whether appellant’s arrest was illegal (and his resulting statement should be suppressed) hinges on whether the arresting officers ha d probable cause at the time of the arrest
to believe that there was a danger of further bodily injury to the victim

.

2 We do not address whether the arrest occurred in a constitutionally protected area because appellant has not argued, either in the trial court or this court , that the arrest was illegal for that reason. In any event, there is some evidence that appellant was handcuffed for officer safety and that appellant consented to the deputies entering his home before he was arrested.7

B. The record supports the trial court’s finding s and its conclusion that the officers had probable cause to believe there was a danger of further bodily injury

. The trial court made findings of fact that the deputies were concerned for
further violence to the complainant due to : the nature of the assault and the injuries she suffered; appellant’s alleged use of a wea pon in the assault and to threaten the complainant; appellant’s relationship with the complainant and his act of following the complainant to her truck, which could allow him to locate the complainant in
the future ; and defendant’s departure from the apart ment shortly after the complainant fled, which supported a reasonable inference that he was looking for the complainant

. Based on these facts, the trial court concluded that the deputies had probable cause to believe that there was a danger of further bod ily injury to the complainant

. The trial court’s factual findings are supported by the evidence from the hearing on appellant’s motion to suppress, which is summarized in the background section above. In addition, t h e record reflects that Cooley , Hunt, and Keele each testified that they had strong concerns about a threat of future harm to the complainant. We conclude that, when viewed under the appropriate standard of review, the evidence from the suppression hearing supports the trial court’s
conclusio n that the deputies had probable cause to believe that there was a danger of further bodily injury to the complainant

. See McClatchy , 758 S.W.2d at 330 ( concluding that although suspect was no longer in same location as victim,
officers had sufficient fac ts on which to base belief that suspect might return to
harm victim ). We therefore hold that the trial court did not err when it denied appellant’s motion to suppress, and we overrule appellant’s single issue in each appeal

.8 C ONCLUSION Having overruled appellant’s issue s on appeal, we affirm the trial court ’ s judgment s

.

/s/ J. Brett Busby Justice

Panel consists of Chief Justice Frost and Justices Jamison and Busby. Do Not Publish

— T EX

. R. A PP

. P. 47.2 ( b).