### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00173- CR

Sierra William s, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 299 TH JUDICI AL DISTRICT NO. D-1 -DC- 09- 9040 05, H ONO RAB LE CHARLES F . B AIRD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Following a bench trial, appellant Sierra Wil liams was convicted of the offe n s e of burg lary of a habitation. See Tex. Penal Code Ann. § 30.02(a) (1) (West 2003). Punishm ent was assessed at six y ear s’ imprisonment. I n a single point of err or, Wil liams asser ts that the district court abused its discre tion in deny ing he r motion to suppress. We will affirm the judg ment.

BACK GR OUND T h e d i s t rict court hear d evidenc e that on the morning of October 30, 20 0 8 , Daphne Hodg es perc eived a “ver y loud shout” coming from outside her house. Hodg es looked out her window and observe d two women “kind of walking back and forth” on the fron t p orch of

a neig hbor’s house, “looking in the windows and the door.” One of the women “shou t ed again,” which, acc ording to Hodg es, prompted a man she had seen acr oss the street to come and join thewomen on the porch. Hodg es recalled, “The moment that y oung man s t epped on the front porch,

one of those y oung women turned and kicked [t he neig hbor’s] door in, and all three p eo ple went inside the house.” Hodg es then y elled for her son, Br adley , to g et up and told him “something to the eff ect that the neig hbor’s house was being broken into, that he neede d to g et up and help me.” Hodg es called 911 while Br adley g rabbe d a shotgun and rushed outside. I n court, Hodg es identified Wil liams as one of the women who ha d enter ed the house

.

Bradley testified t hat as he approac hed the neig hbor’s house, he “saw feet ru n n i n g back and forth in the house, throug h the front door, which was open.” He acknow ledg ed that he had
not seen any one brea

k into the house and did not know who was inside. Standing at the curb of the neig hbor’s property , Br adley issued a “ve rbal c halleng e” f or the pe ople to come out of the house. Acc ording to Bra dley , the man ca me out of t he house first, followed by the two women. I n court, Br adley identified Will iams as one of the women. Br adley tes t i fi ed t h at the women, afte r exit ing the house, moved to his left in an attempt to esc ape, w hile the man slowly retre ated back int o the hous e. Br adley also moved to 1 his left, try ing to “kee p ever y body in front of me.” The women slowly advanc ed on Br adley ’s position and wer e eventua lly “fa ce to fac e” with him. As one of the women tried to “fla nk” Br adley

on his left side, Br adley “che cked that with the barr el of the shotgun, into her chest, and she stopped.” Br adley then backe d awa y from the women, returne d to his orig inal position, and order ed the women to stay wher e they wer e until the police arr ived. Acc ording to Br adley , the women ag ain tried to g et awa

y from him but were appre hended by the police be fore they

could esc ape.

The man a

ppare ntly esca ped and w as neve r appr ehende d. 1 2The first office r to arr ive on the scene was Offic er L ee Atchley of the Austin Police

Depa rtment. Upon his arr ival, Atchley obser v ed Br adley in the front y ard of the neig hbor’s house holding a shotgun in “a r eady position” but not aiming the g un at any one. Atchley drew his firea rm and commanded Br adley to drop his wea pon. Br adley complied and then direc ted Atchley ’s attention to the two women, acc using them of brea king into the house. Atchley arr ested both of the women. I n court, Atc hley identified Will iams as one of the women he had appr ehende d. After the State rested its case , Wil liams prese nted an out-of-time “motion to suppress identification of the appellant.” The district court allowed Wil liams to arg ue the motion. Wil liams

asser ted that her identification by Hodg es, Br adley , and Atchley should be sup p ressed beca use their i d en t i fi cation of her was the “fr uit” of an illega l citizen’s arr est. Acc ording to Wil liams, Br adley did not have probable cause to believe that the people in the house wer e committing burg lary and, there fore , did not have the authority to arr est Wil liams and the others. See Tex. Code Crim. Proc. Ann. art. 14.01(a) (West 2005) (providin g t h at citizen may arr est felony offe nder only when “the offe nse is c ommitt ed in his pre sence or within his view”)

. The district c ourt denied the motion to s uppress.

Wil liams then prese nted evidenc e in h er defe nse, including the testimony of J olanda Armstrong , another neig hbor, who was driving in her ca r when she witnessed the confr ontation betwee n Br adley and the women. Armstrong descr ibed what she saw as “a tall, white b ald-he aded male drag g ing a black g irl with a g un.” When asked to descr ibe what Br ad l ey wa s doing with the g un, Armstrong rec alled, “He was drag g ing her down, pointing the g un. I f she tried
to walk awa

y or whateve r, he would drag her. She did eventua lly g et acr oss the street

. . . . At that

3point [t he other woman] showed up (indicating ) coming from the front of the house, and he drag g ed

her

. . . . Eac h time he would drag and then she was try ing to g et awa y , he would aim the g un.” Armstrong testified that Br adley was aiming the g un “[a]t eac h person. Which ev er o n e h e was holding is the person he would aim th e gu n at

. ” Acc ording to Armstrong , Br adley order ed the

women to “[g]et down, y ou are not g oing any wher e.” Armstrong called the police and repor ted the incident. Off

icer Atchley arr ived shortly

there afte r. After considering the e v id e n c e , th e d is tr ic t c ourt found Wil liams g uilty of committing the offe nse of burg lary of a habitation. Wil liams then p leade d true to an enhanc ement count in the indictment alleg ing that she had previously been convicted of the o ff en s es of possession and delivery of a controlled substance. After hear ing evidenc e on punishment, the district court sentenc ed Willi ams to six y ear s’ imprisonment. This appeal f ollowed.

ANALYSIS I n her sole issue on appea l, Wil liams asser ts that the district court abused its discretion in deny ing her motion to suppress her identification by witness es Hodg es, Br adley , and Atchley

. “A trial court’s ruling on a motion to suppress, li k e an y ruling on the admission of evidenc e, is subject to revie w on appea l for abuse of discretion.” Amador v. State , 275 S.W .3d 872, 878 (Tex. Crim. App. 2009) (citing State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). “‘In other words, the trial court’s ruling will be upheld if it is rea sonably supported by the rec ord and is corr ect under any theory of law applicable to the case .’” Id

. (quoting Ramos v. State , 245 S.W .3d 410, 417-18 (Tex. Crim. App. 2008)). “I n revie wing a trial c ourt’s ruling on a motion to suppress,

4appellate courts must view all of the evidenc e in the light most favor able to the trial court’s ruling .”

State v. Garc ia-Cantu , 253 S.W .3d 236, 241 (Tex. Crim. App. 2008).

W e are to “af

ford almost total defe renc e to a trial court’s deter mination of t h e historical fa cts that the re cord suppor ts especia lly

when the trial court’s fact f indings a re ba sed on

an evalua tion o f cr ed i b ility and demea nor.” State v. Ross , 32 S.W .3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997)). We are to “af ford the

same amount of defe renc e to trial courts’ rulings o n ‘a p p lication of law to fac t questions,’ also known as ‘mix ed questions of law and fac t,’ if the resolution of those ultimate questions turns on an evalua tion of cre dibilit y and demea nor.” Id

. We revie w de novo “mix ed questions of law and fac t” not falling within that categ ory . Id

.

On this rec ord, we cannot conclude that the d i s t ri ct co urt abused its discretion in deny in g W i l l i am s ’s motion to suppress. I t has long been the rule in Texas that a defe ndant’s fac e cannot be a sup p re s s i b l e fr u i t of an illega l arr est. See Pichon v. State , 683 S.W .2d 422, 426 (T ex . C ri m. App. 1984) (citing United States v. Crews , 445 U.S. 463, 477-79 (1980) (White, J .,
concur ring )); Hende rson v. State , 82 S.W .3d 750, 754 (Tex. App.—Corpus Christi 2002, pet. ref ’d); Blondett v. State , 921 S.W .2d 469, 473 (Tex. App.—Houston [14t h Dist.] 1996, pet. ref ’d); see also Thornton v. State , 145 S.W .3d 228, 234 (Tex. Crim. Ap p . 2 0 04) (discussing differ ent concur ring opinions in Crews and obs er v ing that majority of justices reje cted claim that “a defe ndant’s fac e

can be a suppressible fruit of an illega l arr est”). I n other words, a witness’s id en t i fi cation of the d e f e n d ant will not be suppressed simply beca use the arr est that enable d the identification was illega l. See Crews , 445 U.S. at 478 (W h ite, J ., concur ring ) (“A holding that a defe ndant’s fac e can be

5considere d evidenc e suppressible for no rea son other than that the defe ndant’s prese nce in the

courtroom is the fruit of an ill ega l ar rest would be tantamount to holding that an illega l arr est eff ecti v el y insulates one from conviction for any crime wher e an in-court identification is essential.”)

. Her e, the only evidenc e that Wil liams soug ht to suppress was her identification by the witnesses. There fore , even assuming the citizen’s arr est was illega l, the district court would not have abused its discretion in deny ing the motion to suppress. See W hithurst v. State , 690 S.W .2d 110, 111 (Tex. App.—Houston [14t h Dist.] 1985, no pet.) (“Eve n if the appellant wer e under unlawful arr est at the time the witness identified him, the illega l arr est could not have tainted the witness’s in-court identification.”)

. 2

Additionally , we cannot conclude on this rec ord th a t th e c it iz e n ’ s a

r r e s t w a s u n la w f ul. I n the case of a felony , a citize n h as p ro b ab l e cause to arr est an offe nder when the offe nse is committed in his prese nce or within his view. Tex. Code Crim

. P roc. Ann. art. 14.01(a)

. This require s the citi zen to “obser ve enough of the s ituation to establish probable ca u s e t h at a crime is being committed.” McG uire v. State , 847 S.W .2d 684, 686 (Tex. App.—Houston [1st Dist.] 1993,

no pet.). Her e, Br adley testified that his mothe r— who direc tly observe d the brea k-in—informed him that the house had been broken into, and, when he approa ched the house, he saw “fe et running back and forth in the house, throug h t h e front door, which was open.” Br adley further testified that, althoug h he could not identify who was inside the house, he “could tell it wasn’t Sara,” the wife

I n her motion to suppress, Wil liams challeng ed her identification by the witnesses both in 2 court and “at the scene .” Howeve r, there is no basis in the rec ord for distinguishing betwee n the incourt and out-of-c ourt identifications, nor does Wil liams provide any arg ument or authority for why they should be trea ted diffe rently

. 6of the homeowner

. Also, Paul Mason, the homeowner , testified that the burg lars had damag ed the

front d o o r and that this damag e was visible from outside the house. The district court could have rea sonably inferr ed that Br adley had observe d this damag e to the door when he approa ched the house and conclude d that the house was being burg larized. Viewing this evidenc e in the light most favorable to the ruling , we cannot conclude that the district court abused its discretion i n fi n d i n g that Br adley had probable cause to believe that a burg lary was being committe d

. S ee Marion

v. State , 6 4 2 S.W .2d 55, 58 (Tex. App.—El Paso 1982, pet. ref ’d); see also Carmona v. State , No. 03-02-00201- CR, 2003 Tex. App. L EXI S 4900, at *7 -8 (T ex. App.—Austin J une 12, 2003, pet. ref ’d) (mem. op.) (finding that citize n s h ad p ro b able cause to believe burg lary was being committed when they wer e informed by apar tment manag er of burg lary and they observe d individual that they did not recog nize leaving apar tment). Moreove r, the district court hear d evidenc e that Hodg es saw Wil l i am s enter the proper ty befor e her son took any action. Thus, the district court would not have abused its discretion in finding that the events which enable d Hodg es t o i d en t ify Wil liams occur red befor e and wer e independe nt of the alleg ed illega l arr est. Additionally , Wil liams was identified in court by another

n ei g hbor, Ray

mond Roberts, who testified that he had observe d Wil liams and her companions walking around the neig hborhood shortly befor e the alleg ed burg lary , “g oing door to door.” Wil liams did not challeng e this identification. Acc ording ly , the identification of Wil liams by Br adley and Atchley , eve n if err oneously admitted, was mere ly cumulative of other proper ly admitted evidenc e and thus harmless. See Mack v. State , 928 S.W .2d 219, 225 (Tex. App.—Austin 1996, pet. re f’d)

.

7We overrule Wil liams’s sole issue on appea l.

CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: F ebrua

ry 12, 2010 Do Not Publish

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