NO. 07-00-0571 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D SEPTE MBE R 30, 2002

______________________________ CONRADO MALTOS LOPEZ, AP PELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 56 TH DISTRI CT COURT OF GALVESTO N COUNTY; NO. 99CR1745; HONORAB LE NEIL CALDWELL, JUDGE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ. Upon a plea of not guilty, appellant Conrado Maltos Lopez w as convicted by

a j ury of aggravated assault, twice enhanced, and the trial court assessed puni shment at twentyfive years confinem ent. By seven points of error, appellant con ten ds ( 1) h is c onv icti on is
vo i d because it wa s enhanced by a 1991 conviction that was based on 1986 and 1987 convictions obtaine d in v iolat ion o f his right to counsel under

the United States and Texas2

Constitutions and the Texas Code of Criminal Procedure; (2) the term s “cut and stabbed” in theindic

tm ent w ere unn ece ssa ril y s pec ificallegations requiri ng proof to sustain the conviction and there was no eviden ce that the victim was s tabbed; (3) the trial court erred in overrul ing hi s objection to the in clusio n in the jury charge oth er means of co m m ittin g aggravated assault other than that alleged in the indictment; (4) it w as error to include an affirmative deadly weapo n f inding in the judgm ent because it was also used as an essential element

of the offense alleged in the indictment ; (5) use of the sam e conduct to support an element of the offense and to also make a deadly weapon finding violates dou ble jeopardy; (6) the trial court erred in denying his motion to suppress and introducing the knife in to evidence b ecause itwas inadmissible und er an unjustifi ed warrantless arr est in violation of the United States and Tex as Constitutions and the Texas Co de of Crim inal Procedure; and (7) the trial court erred in den ying his req uested m ultiple assailant jury charge. Based upo n the rationale expressed herein, w e affirm.
On the afternoon of October 4, 1999, app ellant and his girlfriend, L inda, were ma king a telephone call at a local convenience store in Galveston, Texas, when
com plainant, a fo rmer bo yf ri en d o f L in da ’s, ar ri ve d i n a tr uc k wi th hi s fr ie nd And re w. Com plainant waite d in the truck w hile Andrew went into the store to buy complainant a beer. Com plainant testified that the window on the passenger’s s ide was down and that the doo r was b rok en a nd d id not ope n. He further testified that although he w as not acquainted with him , appellant approached the truck and “pun che d” h im in theface in3

retaliation for damage he allegedly had done to Linda’s car after she br ok e u p wi th hi m. A ccording to com plainant’s testimony, he noticed that appellant had his han ds in hi s pockets as if looking for somet hing. As Andrew exited the store, appellant and Linda were walking awa y and A ndrew heard Lind a say, “not her e.”
Later th at da y at ap pr oxi mate ly 6: 00 p. m., c ompl ai na nt , An dr ew, an d h is two brothers, Albert and Raymond w ere gathered in front of Raymond’s hom e. Com plainant,
a mec han ic, was repairing the passenger door to Raym ond’s truck. A s appellant and Linda were w

alking toward her hom e which w as located across the s treetfrom Raym ond’s home, appellant crossed the street and approac hed c ompl ainant. Albert, a friend of appell ant’s for ten years, test ified that appellant app ear ed “ piss ed o ff” and Alb ert told him not to start trouble. Ap pellant told Albert to get out of the way. Com plainant testified that when confronted a second tim e, he felt uneasy and threatened because he noti ced that appel lant’s hands were i n his pockets. He t hr ew a can of beer on appellant. Andrew t est ified tha t heobs erv ed asilv er- tipp ed o bj ect in appellant’s pocket. An altercation ensued and appellant pulled a knife out of his pocket and cutcomplainant’s neck. Albert attem pted to go inside the house to call the police, but after finding the d oor locked, he noticed two pair of tree trimm ers on the porch and provided one to com plainant to d efe nd h im self. H e used t he seco nd pair to scare appellant away. Raym ond unlocked the do or to his house and went inside to call the1 Unless other wise designated, all references to articles are to the Texas Code of

Criminal Procedure. 4 po lice. Linda testified that appellant panicked after he realized he cut com plainant an d told her he was going to his brother’ s house. She remained at th e scene. Officer Owens arrived at th e scene in response to a disturbance call and wa s informed by witnesse s that appellant had cut com plainant. He observed A lbert holding a bloody washcloth to complainant’s n eck. Afte r Officer Heysearrived asbackup , Albert offered to show

him w here appel lant h ad gone and urged him to “hurry up” because he believed appell ant was on his way out of town. Appellant’s bro ther’s house was n ot fa r from the crime scene and as Officer He yse approached the alle y, Albert identified appellant in the back seat of a m oving vehicle at the end of the alley. Appellant’s brother
wasdriving the car and his wife and thei r four c hildre n were also passenger s. Heyse blocked their path with his patrol car and activated his lights. He ordered everyone out of the car and took appellant dow n to the ground to arre st and handcuff him . He helped appellant up and then conducted a pat dow n search and discovered the knife used to cut
com plainant. Byhis fir stpoin t of

err or, app ellan t co nte ndshis conviction is void because it was enhanced bya 1991 conviction which w as based on 1986 and 1987 convictions obtained in violation of h is right to counsel under the United States and TexasConstitutions and the Texas Code of Crim inal Procedure. 1 W e disagree. W here an indictment relies on a prior5

void conviction for purposes of enhancem ent, the indict ment contains a cogniza ble defect and is voida ble. Ex parte Patterso n, 969 S.W.2 d 16, 19 (Tex.C r.App. 1998). The enh anc em ent

por tion of t he in dict m ent

is subjec

t to being voided by com pliance with the app licab le rules of procedural default, ( i.e ., requiring a defendant to objec t to any defects of subs ta nc e o r f or m in the charging instrument prior to the d ay of trial). Id. ; see also art icle 1.14(b). Appellant’s failure to obje ct to any defect in the enhancem entportion of the indictment

waived the error by procedural default. Moreover, penitentiary packets of appellant'spriorconvictions were adm itted without obj ection and established that he was represented by counsel in the underlying cases used toenhance his conviction. Point of error one is overruled. Bypoint of error two, appellant alleges charge error by the addition of the term s “cut and stabbed” as unnece ssaril y specifi c a l legations requiring proof to sustain the conviction, and that there w as no evidence that the v ictim w as stabbed. A rticle 36.14 provides that in orde r to preserve cha rge error fo r review, a defendan t must pre sen t his spe cifi cobjec

tions either in writing or orally to the court reporter in the presence of the court and State’s couns el . During the charge conferencethe following discussion occurred: [Defense cou nse l]: A

s fa r asj ust

gra m m ar, if y ou w ill, in the body on page 4 the fift h line fro m t he bo tto m up, it s ays : “A nd t hen he s hot thesaid [com plainant].” W e don’t have a sho oting incide nt in this case. So that needs to be changed to“stabbed.” Court: Or cut.6

[Defense counsel]: C ut. Changed to cu t. He cut the said [com plainant]. [Prosecution]: I think probably to track w hat’s in the indictment we need to say “stabbed or cut. ” Court: W e’ll change on page 4 the fifth line from the bottom strike “shot” and put “stabbed or cut.” Counsel and the trial court then proceeded to discus s other portions of the charge. Byhis brief, appellant specificall y asserts that defe nse counsel obj ected to inclusion of “cut or stabbed” in the charge. However, our review of the charge conference did not reveal a s pec ific

obj ect ion r

ega rdin g th is com plaint. See Tex. R. App. P. 3 8.1(h) (requiring the brief to contain record references for t he con ten tion s m ade ). H oweve r, m indf ul of Rul e 38.9, which requires briefing rules to b e libe rall y construed, we address appel lant’s
com p laint. The indictment alleged that appellant caused serious bodily injury to com plainant by cutting and stabbi ng the said com plain ant w ith aknif

e . . . . (E m pha sis added). The trial court, however, c harged the ju ry that appellant injured com plainant by cutting or

stabbing. (Em phasis added). Although an indictment m ay allege differing methods of com m ittin g an off ens e in the conjunct ive, itis proper for a jury

to be charged in the disj unctive. Kitchens v. S tate, 823 S.W.2d 256, 257 (Tex.C r.App. 1991) (en banc), cert. deni ed , 504 U.S. 95 8, 112 S.Ct. 2309, 119 L.E d.2d 230(1992). It is app ropriate w here alternate theories of com mitting an offense are sub m itted to ajur yin the disjunctive for the j ury to return a general ver dict if the evidence is sufficient to suppo rt a finding under any of the theories subm itted. Id.7

Several witnesses, including appell ant and Officer Owenstestified that appellant had been dee ply cut in hi s neck a rea. Thu s, no e rror occ urred by charging t he j uryin the di sjunctive thatappellant caused com plainant’s injury by “cutting or stabbing.” Point

of e rro r tw

o is overruled. By point o f error three, appellant contends the trial court erred in overruling hi s objection to the inclusion in thejur ycharge other m eans of com mitting aggravated ass ault other than that alleged in the indictment. Appellant argues that because he was c harged in the indictment with assault, aggravated by the use or exh ibition of a deadly weapon, t he definition of aggravated assa ult in the jury charge sh ould have been limited to section 22.02(a)(2) of

the Texas Penal Code, nam ely “[a] person com mits an offense if the person
com mitsassault as define d in Sec tion 22.01 and theperson: . . . ( 2) uses or exhibits a dea dly weapon during the comm ission of the assault.” He f urther argues the inclusion of the statutory definition of “serious bodily injury” in the jury charge was

error. W e disagree.
The charg e subm itte d to the j ury included the statutory definitions of “assault,” “agg ravated a ssault,” “bodily injury,” “serious bodily injury” and “deadly weapon.” The record of t he c har

ge conf ere ncerev ealsonly

tw o ob j ect ionsspe cifi cally

overruled by the trial court, neither of w hich relate to the inclusion of the definitions about which appellant
now complains. All o ther diffe rences were resolved by agreem ent during the charge conference. An appellant who complains on appeal of an unobj ected-to error in the charge
w ill obtain a reversal only if the error w as so e gregious a nd created such harm tha t hedid8

notrec eivea fa ir

and impartial trial. Barrera v. Sta te, 982 S.W.2d 415, 417 (Tex.Cr.A pp. 1998) (en ban c). W here however, the appl icati on paragrap h correctl y instructs the jury, an error in the abstract instruction is not egregious. M edina v. State, 7 S.W.3d 633,640 (Tex.Cr.A pp. 1999) (en banc), cert. deni ed , 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). The inclusion of a me rely superfluous abstraction does not pro duc e re ver

sible
error in t he cour

t'scha rge becaus e it

has no eff

ect on t he j ury 's a bility

fair ly an d ac cur

ate ly to implem ent the com mands of the application paragraph or paragraphs. Id. Appellant cites Sa ndi g v. State, 5 80 S.W.2d 584, 586 (Tex.Cr.App. 1979) for the pro pos ition tha t an ove rly b roa d de finit ion in the abstract instruction can constitute error when it authorizes conviction on an unalleged theory when read in combination w ith the application paragraph of the charge. However, the San dig Court announced: [w]hile it is true that an abstract statem ent of the law t hat goes beyond the allegations in the indictment ordinarily will not present reversible error, that is true because ord inari ly su c h expansions on t he indictment's allegations are effectively restricted by the charge's ap plication of the law to the facts, which should limit the jury's deliberations to the allegations in the indictment supported by evidence. Id. The defini tion of “ser ious b odily in jury” wa s undou btedly req uired beca use theterm
wasused in the char ge’s statutory d efinition of “de adly w eap on. ” Th ere for

e, t he o nly arg uab lysuperfluous definition was the com plet e stat utory definition of “aggravated assault” rat herthan one limited to use or exhibition of a deadly weapon. W e conclude there was no reversible errorby theincl usio n of thecom plet e ag gra vated a ssa ult definition under section 22. 02 of the Penal C ode bec ause th e application paragrap h of thejur y9

charge app rop riat ely

limited the j ury’s considerations to the allegations in the indictment. Point of error three is overruled. Bypoint of err or four, appel lant conten ds it was error to i nclude an af firmative dea dly weapon find ing in th e judgm ent because it was also an essential element of the offense alleged in the indictment. W e disagre e. W hen the fact fin der makes an affirmative finding as to deadly weapon us e, a trial court shall enter the finding in the court's j udgme nt. Art icle 42.12, § 3g(a)( 2) (Vernon Supp. 200 2). The jury makes a n aff irmative finding of dea dly weapon us e when (1) use of a deadly weapon has been specifically all eged (using the nom en c lature "deadly weapon") in the indictm ent and the j urors find the defendant guil ty, "as charged in the indictment"; (2) theweapon allegedly used is a deadly weapon per se; or (3) the j urors have answ ered affirmati vel y a special issue. Polk v. State, 693 S.W.2d 391, 396 (Tex.C r.App. 1985) (en banc). W here the jur y is trier of fact at the guil t-innoce nce phase and the jurors make an affirmative dea dly weapon finding, the trial court has no discretion and m ust enter in its judgm ent the j ury's finding. Ex parte Poe, 751 S.W.2d 873, 876 (Tex.C r.App. 1988) (en banc). The jury found appellant guilty "as charged in the in dictment," and the in dictment alle ged the use of a deadl y weapon. Thus, the st atute required the trial court to enter a deadly weapon finding, even withou t subm ission of the special issue to the j ury. Brooks v . State , 900 S.W.2d 468, 474 (Tex.App.–Tex

arkana 1995, no pet.). P oint of error four is overruled.10

Bypoint of error five, appellant contends using the sam e conduct to find an essential element of

the offense and also support a deadly weapon finding in the judgm ent violates double jeopardy. W e disagree. Appellant cites no supp o rtin g au tho rity for his contention that the allegation of use or ex hibition of a deadly weapon as an aggravating element of the ass ault offense prohibits the trial court from a lso using the allegation to support a deadly weapon f

inding. However, appellant con c edes that his argum ent has been rejected in Martinez v. State, 883 S.W.2d 771, 772 (Tex.A pp.–Fort W orth 1994, pet. ref'd); see also Th oma s v. State , 2 S. W .3d 640, 642 (Tex .App. –Dallas 199 9, no pe t.). Because a deadly weapon fi nding doe s not affect theass ess m ent of p unis hm ent , bu t on ly affects the am ount of the assess ed sentence that m ust be served, j eopardy does not bar
a deadly weapon fi nding when the deadl y weapon allega tion i s als o an element of the offense. Pachecano v. State, 88 1 S.W.2d 537, 546 (Tex .App. –Fort Worth 1994, no pet. ). As the Martinez

court stated, “[w

]e see nothing that wo uld lead us to any other conclusion butthat the legislature intended for the deadly weapon pro vis ionsto a pply in every felony
case as the contex

t of the law s uggests.” 883 S .W .2d at 774. In this case, use of a dea dly weapon as an essential element of the offense and inclusion of a deadly weapon finding in the judgm ent created no conflict w ith the range of punishm ent. The refore , do uble jeopardy w

as not im plicated. Point of error five is overruled. Bypoint of error six, appellant contends the trial court erred in denying his mo tion to suppress and introducing the knife into evidence because it was inadm issible under the11

United States and Texas C onstitutions, and violated his rights under the Texas Code of Criminal Procedure. W e disagre e. In reviewing a tr ial cou rt's d enia l o f a m otion to suppress, almost total deference is afforded to the trial court's decision on mix ed questions of law and fact

that turn on an evaluation of credibility and dem eanor. State v. R oss, 32 S.W.3d 853 (Tex.Cr.App. 2000); Gu zman v. State, 955 S.W.2d 85, 89 (Tex. Cr.Ap p. 1997)

. However, for mixed questions of law and fact which do not fall within this category, we m ay conduct a de novo review. Hernande z v. State, 957 S.W.2d 851, 852 (Tex .Cr.A pp. 1998 ). Byits brief, the State asserts that the factsare not disputed; however, appellant’s sister-inlaw testified thatat the tim e appellant was arrested they w ere en route to the scen e of the
cr i me to work things out because of thefrie nds hip Albert and appellant’s brother shared. The State, on the ot her hand, by its w itnesses attem pted to justify the warrantless arrest and search on the basi s that Officer Heyse observed conduct th at indi ca ted appellant might escape. Thus, w

e review the denial of th e mo tion to suppress giving great deference to the trial court. At a hearing on a m otion to suppress, the initial burden rests on the def endantto establi sh thata warrantless arrest and search occurred. Russell v. State, 717 S.W.2d 7, 9 (Tex.Cr.A pp. 1986) (en banc). Once a def endant m eets his initial burden, the burden of proof shifts to the State to s how that a warrant existed or that the warrantless arrest was justified by probable cause. St ull v. State, 772 S.W.2d 449, 453 (Tex.Cr.A pp . 198 9). Probable cause ex ists where thefac ts a nd c ircu m sta nce s w ithin the officer's know ledge12

and of which he has

reas ona blytrustwort hy information are su fficient in themselves to warrant a m an of reasonable caution in the belief that a particular person has com mitted
or is com mitting an offens e. Am ores v. State, 816 S.W.2d 407, 413 (Tex.C r.App. 1991) (en banc).
General ly, police of

fice rs m ust

alwaysobtain a warrant prior to tak ing someoneinto custody. Crane v. State, 786 S.W.2d 338, 346 (Tex.Cr.A pp. 1990) (en banc ). How ever, art icle 14.04 provides an exception to the gen era l rule“[w ]he re it is show n by sa tisfactory proof to a peace officer, upon therepresentation of a credible person, tha t a felony has been co mm itted, and that the offender is about to escape, so t hat there is no tim e to procurea warrant, such peace officer m ay, witho ut wa rrant, pursue and arrest the accused.” Under article 14.04, there are four basic requirem ents that m ust be m et: (1) the person who gives the infor mation to the peace offi cer must be c redibl e; (2) the offense must be a felony; (3) the offender m ust be about to escape; and (4) there m ust be no ti me to procure a warrant. Crane , 786 S.W.2d at 346.
Atthe hearing on the mo tion to suppress, Officer Owens testified that he responded to a disturbance involving a po ssi ble stabbing. When he arri ved at the scene h e observed Albert ho ld in g a bl oo dy wa shc loth on com plainant’s neck and was told by several witnessesthat appell ant had cut complaina nt. W hen Officer Heyse arrived as Owens’s backup, Owens r elayed the facts to himand Albert offered to ride w ith Heyse to locate appellant, whom he beli eved had gone to hi s brother’s residence. Albert also indicated13

a sense of urgency to Heyse believing appe llant was on h is way out of town. As they approached the location of the brother’s residence, A lbert observed a car at the end of the alley and identi fied appel lant, a passen ger in the b ackseat of the car, a s the person w ho
com mitted the offense. Off icer Heyse observed that the c ar was also o ccu pi ed by t wo other adults and som e children, later identifi ed as appell ant’s bro the r, h is w ife, and the ir four children. Heyse activated the lights of his patrol car and pulled directly in front of the
car appellant was riding in to block it from leaving the alley. Know ing that appellant was armed, he h ad h im ex it th e ca r w ith h is arms raised and drop to the ground. Appellant was handcuffed and Hey

se cond ucted apat

dow n se arc h th at le ad to disco very of the knife used to cut com plainant. Appellant concedes the arresting officer had probable cause to believe a felony had been com mitted, but

argues that

there is no evidence from a credible person to indicate escape or lack of timeto obtain a war rant. He con ten ds t hat ridin g in acar

w ith f am ily
m em bers and children is not evidence of escape. W here a nam ed informant is a private citize n w hose only cont act with the poli ce is a resul t of having witnesse d a criminal act
com mitted by another, the credibility and reliabil ity of the information is inherent. Esco v. State, 668 S .W .2d 358, 360-61 (Tex.C r.App. [Panel Op.] 1982). Whi le our sister courts have ext en de d t hi s c re di bi l i ty to cr i me victims and com plaining witnesses, we are m indful tha t po lice sho uld r

em ain alert to the existence of any cir cumstances which would m ake thatpresum ption inoperative in a particular case. See Cornejo v. State, 917 S .W .2d 480,14

483 (Tex.App. –Houston [14th D ist.] 1996, pet. ref’d); Nelson v. S tate, 855 S.W.2d 26, 30 (Tex.App .–El Paso 1993, no pet.); Cf

. Mungia v. Sta te, 911 S.W.2d 164, 167 (Tex. App.– CorpusChristi 199 5, no pe t.).
A showing of es cape does not need to beof afac tua l nat ure beyond a re aso nab le doubt, but need only establish that the officer was ac ting upon satisfactory proof tha t the suspect is about to escape. Dej arnettev. State, 73 2 S.W.2d 346, 3 50 (Tex .Cr.A pp. 1987 ). Furthermore, a warrantless arr est m ay be j ust ified w hen a po lice off icer , a “ cre dible person,” observes conduct which indicates that the off ender is about to escape. Id. Thus, considering that Officer Heyse had satisfactory proof that a ppellant had comm itted a felony and observed him in a mov ing vehicle with knowledge that he m aybe le aving town just sho rtly after the in cident i s sufficie nt to establi sh that there was no tim e to obtain a warrant, therebyjustifying appel lant’s warrantl ess arrest and seiz ure of t he k nife . P oint of e rro r six is overruled. Bypoin t of

err or s eve n, a ppe llant

con ten ds t he t rial cour t er red in de nyin g his requested mu ltiple assail ant jury charge. Appellanthas not properly preserved this issue for review. In order

to preserve error relating to the j ury charge there m ust either be an objection or a requested charge. Boles v . Sta te, 598 S.W.2d 274, 27 8 (Tex .Cr.A pp. 1980 ).

“ We have interpreted articles 36.14 and 36.15 as dealing w ith th os e t wo distin ct situati ons: an objection to the charge and a requested spe cial i nstruction , respective ly.” Vasquez v. State, 919 S.W.2d 433, 435 (Tex.Cr. Ap p. 1 996 ). U nde r ar ticl e 36 .14 a de fen dan t is15

required to objec

t and obtain an adverse ruling to preserve any error. Id. However, under art icle 36.15, if a defendant requests a special charge, no objection is requi red to preserve
error. Guzman v. St ate , 56 7 S .W.2d 1 88, 190 (Te x. Cr. Ap p. 1 978 ). A ll that is n ecess ary under article 36.1 5 is that t he reque sted c harge bein writing or dictated to th e court reporter. Vasquez

, 919 S.W.2d at 435. From t he record before us it appears appellant neither presented t he proposed charge in w riting to the trial court, nor dictated it to the court reporter. Thus, error, if any, w as waived. P oint of error seven is overruled. Accordingly, the j udgme nt of the trial court is affirmed.
Don H. Rea vis Justice Do not publish.