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TERRANCE DEWAYNE BROOKS, Appellant v. THE STATE OF TEXAS, Appellee COURT OF APPEALS OF TEXAS, F.OURTEENlH;DISTRICT, HOUSTON 

# 76 s.w.3d426;**2oo:tr~.t.w:-·i?Exls"'1'1'62"'** NO. 14-01-00080-CR February 14, 2002, Rendered February 14, 2002, Opinion Filed

Editorial Information: Prior History

On Appeal from the 10th District**Cou!~~~)Y;,T;exas.** Trial Court Cause No. 99CR0188. Disposition: Affirmed. Counsel

. ForAppellants: Kevin C. Rekoff ofGalveston, Tx. For Appellees: 8. Warran Goodson, Jr. of Galvaston, Tx. Judges: Panel consists of Justices Anderson, Hudson, and Frost. CASE SUMMARY

PROCEDURAL POSTURE: After the 1Oth District

### Courtf_fl~~~siciii!e]ljJ:6.1Y;·;T;ex;i~. denied defendant's motion to suppress, he pled no contest to possession witnintent to delivera controlled substance and was sentenced to prison. Defendant appealed.Defendant's motion to suppress on the grounds ofan illegal arrest was properly denied, because some arrest warrants for his failure to appearwere valid, he ran from police, and they had probable cause to believe he was possessing cocaine.

OVERVIEW: Defendantwas a crime suspect and had several outstanding warrants. Police saw a man matching defendant's description holding a clear plastic bag containing a white substance. He got in a car and drove off. They pursued him; hejumped from the moving vehicle and ran. He was captured, the bag was recovered, and its contents proved to be cocaine. The appellate court held that the suppression motion was properly denied, as defendant's arrest was lawful for three reasons: (1) 7 ofthe 19 arrest warrants for failure to appearwere valid, as theywere issued upon the clerk's affidavit of personal knowledge ofdefendant's failure to appear; (2) defendant's flight gave the officers probable cause to arrest him; and (3) seeing the bag ofwhite powder gave police probable cause to believe defendant was committing a crime. As the trial court stated that its sentence would not be based on any prior arrest or offense for which defendantwas not convicted, the failure of the State to give defendant notice underTex. Code Grim. Proc. Ann. art. 37.07, 

### § 3(g) (Vernon Supp. 2002) ofthe offenses it presented to the trial court, even iferror, was harmless erroron the facts of the case.

OUTCOME: Thejudgment was affirmed.

LexisNexis Headnotes



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### Criminal Law& 

### Procedure 

### > Appeals 

### > Standards ofReview> Abuse ofDiscretion 

### > General Overview Criminal Law& 

### Procedure 

### > Pretrial Motions 

### > Suppression ofEvidence Criminal Law

### & Procedure 

### > Witnesses 

### > Credibility Criminal Law& 

### Procedure 

### > Appeals 

### > General Overview Criminal Law& 

### Procedure 

### > Appeals 

### > Standards ofReview

### > Abuse ofDiscretion 

### > Evidence
An appellate court reviews the trial court's ruling on a motion to suppress evidence underan abuse of discretion standard. A trial court's ruling on a motion to suppress, if supported by the record, will not be overturned. At a suppression hearing, the trial judge is the sole finder offact. The trial judge is free to believe ordisbelieve any orall ofthe evidence presented. In reviewing a trial court's ruling on a motion to suppress, the appellate court affords almost total deference to the trial court's determination ofthe historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor. It affords the same amount of deference to the trial court's ruling on application of law to fact questions, also known as "mixed questions of law and fact," if resolving those ultimate questions turns on evaluating credibility and demeanor. 

### Criminal Law& 

### Procedure 

### > Appeals 

### > Standards ofReview

### > De Novo Review

### > General Overview Criminal Law

### & Procedure 

### > Search 

### & Seizure 

### > Search Warrants 

### > Probable Cause 

### > Sensory Perceptions Criminal Law& 

### Procedure 

### > Pretrial Motions 

### > Suppression ofEvidence Criminal Law& 

### Procedure 

### > Appeals 

### > Standards ofReview

### > De Novo Review

### > Motions to 

### Suppress
Review of a trial court's decision on a motion to su-ppress calls for the reviewing court to consider de novo issues that are purely questions of law, such as whether reasonable suspicion or probable cause existed atthe time of the search or seizure. Ifthe trial court's ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. This is true even ifthe decision is correct for reasons totally different from those espoused at the hearing. 

### Criminal Law& 

### Procedure 

### > Appeals 

### > Standards ofReview> General Overview Civil Procedure 

### > Judgments 

### > ReliefFrom Judgment 

### > General Overview Criminal Law& 

### Procedure 

### > Search & 

### Seizure 

### > Search Warrants 

### > General Overview · Criminal Law& 

### Procedure 

### > Search & 

### Seizure 

### > Search Warrants 

### > Probable Cause 

### > General Overview Criminal Law& 

### Procedure 

### > Pretrial Motions 

### > Suppression ofEvidence
If an appellate court disagrees with the trial court's reason for denying a motion to suppress. but finds its ruling on the motion correct on a different theory of law applicable to the case. it still may sustain its decision. 

### Criminal Law

### & Procedure 

### > Search 

### & Seizure 

### > Search Warrants 

### > Probable Cause 

### > General Overview Constitutional Law

### > Bill ofRights 

### > Fundamental Rights 

### > Search & 

### Seizure 

### > Scope 

### ofProtection. Constitutional Law

### > Bill ofRights 

### > Fundamental Rights 

### > Search & 

### Seizure 

### > General Overview Constitutional Law

### > Bill ofRights 

### > Fundamental Rights 

### > Search & 

### Seizure >Probable Cause Constitutional Law

### > Bill ofRights 

### > Fundamental Rights 

### > Search & 

### Seizure 

### > Warrants Criminal Law& 

### Procedure 

### > Search & 

### Seizure 

### > Search Warrants 

### > General Overview Criminal Law

### & Procedure 

### > Search 

### & Seizure 

### > Warrantless Searches 

### > General Overview



## Itxcases

.· 

### . 

## e 2015 Mauhcw Bender& Company. Inc

.. a member ofthe Lc:cisNc.xis Group. All rights reserved.;Usc ofthis product is subject to the restrictions and tem1s and conditions ofthe Matthew Bender**~laster Agreeme~t.**  IThe United States and Texas Constitutions protect against unreasonable seizures and prohibit warrants lacking probable cause. U.S. Const. amend. IV; Tex. Canst. art. I,§ 9. Arrests generally must be supported by the same level of probable cause, with orwithout a warrant. 

### Criminal Law& 

### Procedure> Search & 

### Seizure> Search,Warrants> Issuance byNeutral & 

### DetachedMagistrates Criminal Law& 

### Procedure > Search & 

### Seizure > Search Warrants > Probable Cause > General Overview Constitutional Law> Bill ofRights > Fundamental Rights > Search & 

### Seizure > Probable Cause Constitutional Law> Bill ofRights > Fundamental Rights > Search & 

### Seizure > Warrants Criminal Law& 

### Procedure > AccusatoryInstruments >.General Overview Governments > Courts > Judges
A detached and neutral magistrate mustfind probable cause before a warrant for an arrest may be issued. For purposes ofconstitutional scrutiny, there is no substantial difference between an arrest warrant and a capias. An affidavit must provide the magistrate with sufficient factual information to support an independentjudgmentthat probable cause exists to believe that the accused has committed an offense. Thus, the magistrate's action cannot be a mere ratification ofthe bare conclusions of others. In determining the sufficiency of an affidavit supporting an arrest warrant, a reviewing court is limited to the 'lour corners" ofthe affidavit. Affidavits are viewed in a common sense rather than hypertechnical manner. A presumption is indulged in favor ofthe regularity ofthe proceedings in a lowercourt unless the record presents affirmative evidence to the contrary. 

### Constitutional Law> Bill ofRights > Fundamental Rights > Search & 

### Seizure > Probable Cause The failure to appear in court is a unique offense for purposes of issuing an arrest warrant. By its very nature, a defendant's failure to appear is typically within the court's personal knowiedge. Whetherthe defendant appears orfails to appear is an easily ascertainable, objective event- either the party is in court or he is not in court. Where the trial court issuing the warrant is supplied with sufficient information to support an independentjudgment that probable cause exists for the warrants, the fact that an accused has such an outstanding warrant gives officers probable cause to arrest him. 

### Constitutional Law> Bill ofRights > Fundamental Rights > Search & 

### Seizure > Probable Cause Criminal Law& 

### Procedure > Search & 

### Seizure > Search Warrants > Probable Cause > Personal Knowledge
An arrest warrant forfailure to appear is supported by probable cause where the personal knowledge of thejudge and clerk is expressly set forth in the warrant and the clerk's certificate, respectively. 

### Criminal Law& 

### Procedure > Appeals > Standards ofReview> General Overview CriminalLaw & 

### Procedure > PretrialMotions > Suppression ofEvidence
Ifa trial court's ruling is correct on any theory of law applicable to the case, an appellate court may sustain it upon review. This is true even 

### ifthe decision is correct for reasons totally different from those espoused at the hearing. 

### Criminal Law& Procedure > Search & Seizure > Seizures ofPersons CriminalLaw & 

### Procedure > Criminal Offenses > Vehicular Crimes > General Overview
A suspect's flight from police officers, afterthey order him to stop, provides the police with probable cause



### ltxcases 3

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.. a memberofthe LcxisNcxis Group. All rights rcsen·cd. Usc ofthis product is subject to'the rcstrict.ions and tcmls and conditions ofthe MatthC\10 Bender Master Agreement. to believe that the suspect is evading arrest or detention. Flight from a show ofauthority is a factor in support ofa finding reasonable suspicion ofcriminal activity. 

### CriminalLaw& 

### Procedure > Criminal Offenses > Miscellaneous Offenses > ResistingArrest> General Overview CriminalLaw& Procedure > Criminal Offenses > Miscellaneous Offenses > Fleeing & Eluding > General Overview CriminalLaw& 

### Procedure > Criminal Offenses > Miscellaneous Offenses > Fleeing & 

### Eluding > Elements
A person evades arrest or detention if he intentionally flees from a person he knows is a peace officer· attempting to lawlully arrest or detain him. Tex. Penal Code Ann.§ 38.04(a) (Vernon 1994). 

### CriminalLaw& Procedure 

### > Search & Seizure 

### > Seizures ofPersons
A peace officer mayarrest an offender without a warrant for any offense committed in the officer's presence or within the**office~s** view. Tex. Code Grim. Proc. Ann. art.14.01(b) (Vernon 1977). 

### CriminalLaw& 

### Procedure > Appeals > Standards ofReview> Abuse ofDiscretion > General Overview Criminal taw& 

### Procedure > Sentencing > Presentence Reports CriminalLaw& 

### Procedure > Appeals > Standards ofReview> Abuse ofDiscretion > Evidence
An appellate court reviews the trial court's ruling as to the admissibility ofextraneous offense evidence under an abuse of discretion standard. 

### Evidence > Relevance > PriorActs, Crimes & 

### Wrongs
Tex. Code Grim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2002). 

### Evidence > 

### Relevance > PriorActs, Crimes & 

### Wrongs Reports of prior arrests and offenses without convictions are generally held not admissible on the issue of punishment. Tex. Code Grim. Proc. Ann. art. 37.07, § 3(a) (Vernon 1981). However, if the trial court considers onjy evidence which has resulted in a final conviction, notice is not required. 

### CriminalLaw& 

### Procedure > Appeals > Reversible Errors > General Overview CriminalLaw& 

### Procedure 

### > Sentencing 

### > Presentence Reports
Error affects·

# asubstantial right and is reversible when it has a substantial and injurious effect or influence in determining the trial court's sentencing decision.
Opinion Opinion by: LaWanda Shelton]; Kern Thompson Frost Opinion

{76 S.W.3d 428) Appellant Terrance Dewayne Brooks appeals his conviction of possession with intent



### ltxcases 4
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### ./ to deliver a controlled substance. He contends the trial court erred by denying his motion to suppress and by improperly admitting evidence of extraneous offenses during punishment. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND On December 30, 1998, during the usual midnight shift briefing, Texas City patrol {76 S.W.3d 429} officers learned that appellant was a suspect in a series of anned robberies and had several outstanding municipal court warrants. The officers were provided with a description of appellant and his vehicle. The vehicle was described as a beige Oldsmobile Cutlass Supreme. with license plate number 117VQN. · Early the next morning, Officer John Zimmers saw an unoccupied vehicle matching the description of appellant's automobile at the Sundance Apartments in Texas City. After a few hours of surveillance, Officer Zimmers saw an African American malefitting appellant's description. using a cellular · telephone and holding a plastic bag containing a white substance, get in the car and drive away. Officer Zimmers immediately notified the police dispatch operator and his supervisor, Sergeant LaRoe. Officer Brett Cyr. patrolling nearby in an unmarked police car. saw the vehicle leave the apartment complex. Officer Cyr allowed the vehicle to pass him and then positioned his vehicle behind appellant's vehicle at a stop light and activated his emergency lights. Two other police cars did the same. Appellant slowed briefly, but continued through the red light, going east. Officer Cyr turned on nis siren after he saw appellant running the red light. With emergency lights engaged and siren on, Officer Cyr pursued the vehicle to 13th Avenue. where it turned into the parking lot ofthe Bay Point Apartments. OfficerZimmers. already parked in the Bay Point Apartments' parking lot, watched appellant's vehicle as it entered the complex. Officer Zimmers got out of his car and drew his weapon when appellant's car approached him. Appellant accelerated and drove toward Officer Zimmers. After passing Officer Zimmers. appellantjumped from his still moving vehicle and started to run. OfficerZimmers and Sergent LaRoe saw appellant run into the apartment complex carrying a transparent plastic bag containing a white substance. Sergeant LaRoe chased appellant until he eventually tackled him. Then, with assistance from other officers, Sergeant LaRoe restrained appellant. The officers took appellant into custody and seized the plastic bag in his possession. The contents ofthe plastic bag tested positive for cocaine. The Texas City police arrested appellant.

- · Appellant provided a slightly different version ofthe events. Appellant testified that although he saw

the police car behind him, he did not stop because he believed he was not doing anything wrong. Furthennore, appellant testified that the reason hejumped from his moving car and started to run was not because he was carrying 400 grams ofcocaine, but because he saw an officer holding a weapon and was afraid of being shot. Appellant claims that OfficerZimmers drew his gun before appellant drove toward him. Appellant was indicted with the felony offense of possession of more than 400 grams of cocaine with the intent to deliver. He filed a motion to suppress the cocaine seized during his arrest. After a hearing, the trial court denied appellant's motion to suppress. Appellant then entered a plea of no contest and waived his right to ajury trial. The trial court found appellant guilty as charged and assessed punishment at forty years' confinement in the Texas Department of Criminal Justice. Institutional Division. II. MOTION TO SUPPRESS In his first point of error, appellant contends the trial court erred in denying his motion to suppress


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# v t 

# ..

...

# - '· evidence obtained during his arrest. More specifically, appellant argues that the police lacked probable cause to arrest and search him based on outstanding municipal arrest warrants.**~ ~**  .... t {76 S.W.3d 430} At'the

### he~ring on appellant's motion to suppress, the State asserted the following three grounds in justification of appellant's arrest and search: (1) nineteen separate Texas City municipal arrest warrants 'for the failure to appear'; (2) evading arrest; and (3) possession ofcocaine. The trial court denied appellant's motion to suppress on the ground that seven ofthe nineteen municipal arrest warrants were supported by probable cause. Appellant contends the trial court erred because the warrants fail to contain sufficient factual assertions by an affiantwith personal knowledge to establish probable cause. Appellant's**co~tention,** as to the seven warrants at issue, lacks merit. 1 A. Standard of Review We review the trial court's ruling on a motion to suppress evidence under an abuse ofdiscretion standard. Long v. State, 823 S.W.2d 259,277 (Tex. Grim. App. 1991). A trial court's ruling on a motion to suppress, if supported by the record, will not be overturned. Hill

### v. State, 902 S.W.2d 57, 59 (Tex. App.--Houston [1st Dis!.] 1995, pet. refd). At a suppression hearing, the trial judge is the sole finder offact. Arnold

### v. State, 873 S.W.2d.27, 34 (Tex. Grim. App. 1993); Hill, 902 S.W.2d at 59. The trial judge is free to believe or disbelieve any or all ofthe evidence presented. Romero 

### v. State, 800 S.W.2d 539,543 (Tex. Grim. App. 1990)

..-· In reviewing a trial court's ruling on a motion to suppress, we afford almosttotal deference to the trial court's detennination ofthe historical facts that the record supports, especiallywhen the trial court's findings tum on evaluating a witness's credibility and demeanor. State 

### v. Ross, 32 S.W.3d 853, 856 (Tex. Grim. App. 2000); Guzman 

### v. State, 955 S.W.2d 85, 89 (Tex. Grim. App. 1997). We afford the same amount of deference to the trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if resolving those ultimate questions turns on evaluating credibility and demeanor. Ross. 32 S.W.3d at 856. Review of a trial court's decision on a motion to suppress calls for the reviewing court to consider de novo issues that are purely questions of law, such as whether reasonable suspicion or probable cause existed at the time ofthe search or seizure. See Guzman, 955 S.W.2d at 89. Ifthe trial court's ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. See Villarreal

### v. State, 935 S.W.2d 134, 138 (Tex. Grim. App. 1996). This is true even ifthe decision is correct for reasons totally differentfrom those espoused at the hearing. See id. 1 In this case, the trial court specifically stated itwas denying the motion to suppress on the sole ground that the seven municipal warrants provided the officers with probable cause to arrest and search appellant. Because the trial court specified its reason for denying the motion, we must first address

.that ground. However. ifwe disagree with the trial court's reason, but find its ruling on the motion to suppress {76 S.W.3d 431} correct on a different theory of law applicable to the case, we still may sustain its decision. B. Probable Cause to Arrest and Search· The United States and Texas Constitutions protect against unreasonable seizures and prohibit warrants lacking probable cause. See U.S. CONST. amend. IV; TEX. CONST. art. I 

### § 9. Arrests generally must be supported by the same level of probable cause. with orwithout a warrant. See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560. 564-66, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971). A detached and neutral magistrate must find probable cause before a warrant for an arrest may be issued. Coolidge v. New Hampshire, 403 U.S. 443, 449, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). For purposes ofconstitutional scrutiny, there is no substantial difference between an arrest


## Itxcases 6
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.. a member ofthe Lc.xisNexis Group. All rights rcsen:cd. Usc ofthis product is subject to the restrictions and tcnns and conditions ofthe Matthew BenderMaster Agreement.to deliver a controlled substance. He contends the trial court erred by denying his motion to suppress and by improperly admitting evidence of extraneous offenses during punishment. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND On December 30. 1998, during the usual midnight shift briefing, Texas City patrol {76 S.W.3d 429) officers learned that appellant was a suspect in a series of armed robberies and had several outstanding municipal court warrants. The officers were provided with a description ofappellant and his vehicle. The vehicle was described as a beige Oldsmobile Cutlass Supreme. with license plate number 117VQN. Early the next morning. Officer John Zimmers saw an unoccupied vehicle matching the description of appellant's automobile at the Sundance Apartments in Texas City. Alter a few hours of surveillance, Officer Zimmers saw an African American male fitting appellant's description, using a cellular·· telephone and holding a plastic bag containing a white substance, get in the car and drive away. Officer Zimmers immediately notified the police dispatch operator and his supervisor. Sergeant LaRoe. Officer Brett Cyr, patrolling nearby in an unmarked police car, saw the vehicle leave the apartment complex. Officer Cyr allowed the vehicle to pass him and then positioned his vehicle behind appellant's vehicle ata stop light and activated his emergency lights. Two other police cars did the same. Appellant slowed briefly, but continued through the red light, going east. Officer Cyr turned on nis siren alter he saw appellant running the red light. With emergency lights engaged and siren on. Officer Cyr pursued the vehicle to 13th Avenue, where it turned into the parking lot of the Bay Point Apartments. OfficerZimmers. already parked in the Bay Point Apartments' parking lot, watched appellant's vehicle as it entered the complex. OfficerZimmers got out of his car and drew his weapon when appellant's car approached him. Appellant accelerated and drove toward Officer Zimmers. After passing Officer Zimmers. appellantjumped from his still moving vehicle and started to run. OfficerZimmers and Sergent LaRoe saw appellant run into the apartment complex carrying a transparent plastic bag containing a white substance. Sergeant LaRoe chased appellant until he eventually tackled him. Then. ' with assistance from other officers, Sergeant LaRoe restrained appellant. The officers took appellant

into custody and seized the plastic bag in his possession. The contents ofthe plastic bag tested positive for cocaine. The Texas City police arrested appellant. Appellant provided a slightly different version ofthe events. Appellant testified that although he saw the police car behind him, he did not stop because he believed he was not doing anything wrong. Furthermore. appellanttestified thatthe reason hejumped from his moving car and started to run was not because hewas carrying 400 grams ofcocaine, but because he saw an officer holding a weapon and was afraid of being shot. Appellant claims that Officer Zimmers drew his gun before appellant drove toward him. Appellant was indicted with the felony offense of possession of more than 400 grams ofcocaine with the intent to deliver. He filed a motion to suppress the cocaine seized during his arrest. After a hearing, the trial court denied appellant's motion to suppress. Appellant then entered a plea of no contest and waived his right to ajury trial. The trial courtfound appellant guilty as charged and assessed punishment atforty years' confinement in the Texas Department of Criminal Justice, Institutional Division. II. MOTION TO SUPPRESS In his first point of error. appellant contends the trial court erred in denying his motion to suppress



### I

### txcases

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# ,.- '· evidence obtained during his arrest. More specifically, appellant argues that the police lacked probable cause to arrest and search him based on outstanding municipal arrestwarrants.

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# .**~** {76 S.W.3d 430) At'the

### he~ring on appellant's motion to suppress. the State asserted the following three grounds in justification of appellant's arrest and search: (1) nineteen separate Texas City municipal arrest warrants 'for the failure to appear'; (2) evading arrest; and (3) possession ofcocaine. The trial court denied appellant's motion to suppress on the ground that seven ofthe nineteen municipal arrest warrants were supported by probable cause. Appellant contends the trial court erred because the warrants fail to contain sufficient factual assertions by

## im affiant with personal knowledge to establish probable cause. Appellant's**co~tention.** as to the seven warrants at issue, lacks merit. 1 A. Standard of Review We review thetrial court's ruling on a motion to suppress evidence under an abuse ofdiscretion standard. 

### Long v. State. 823 S.W.2d 259,277 (Tex. Crim. App. 1991). A trial court's ruling on a motion to suppress, if supported by the record. will not be overturned. 

### Hill

### v. State. 902 S.W.2d 57, 59 (Tex. App.-Houston [1st Dist.]1995, pet. ref'd). At a suppression hearing, the trial judge is the sole finder offact. 

### Arnold

### v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993); 

### Hill, 902 S.W.2d at 59. The trial judge is free to believe or disbelieve any or all ofthe evidence presented. 

### Romero 

### v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). In reviewing a trial court's ruling on a motion to suppress, we afford almosttotal deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings tum on evaluating a witness's credibility and demeanor. 

### State 

### v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); 

### Guzman 

### v. State, 955 S.W.2d 85. 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if resolving those ultimate questions turns on evaluating credibility and demeanor. 

### Ross, 32 S.W.3d at 856. Review of a trial court's decision on a molion to suppress calls for the reviewing court to consider 

### de novo issues that are purely questions of law, such as whether reasonable suspicion or probable cause existed at the time ofthe search or seizure. 

### See Guzman, 955 S.W.2d at 89. Ifthe trial court's ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. the reviewing court will sustain it upon review. 

### See Villarreal 

### v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). This is true even ifthe decision is correct for reasons totally differentfrom those espoused at the hearing. 

### See id. In this case, the trial court specifically staled it was denying the motion to suppress on the sole ground that the seven municipal warrants provided the officers with probable cause to arrest and search appellant. Because the trial court specified its reason for denying the motion, we must first address

.that ground. However, ifwe disagreewith the trial court's reason, but find its ruling on the motion to suppress {76 S.W.3d 431) correct on a different theory of law applicable to the case, we still may sustain its decision. B. Probable Cause to Arrest and Search The United States and Texas

### Constitutio~s protect against unreasonable seizures and prohibit warrants lacking probable cause. 

### See U.S. CONST. amend. IV; TEX. CONST. art. I§ 9. Arrests generally must be supported bythe same level of probable cause. with orwithout a warrant. 

### See Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560. 564-66, 28 

### L Ed. 2d 306, 91 S. Ct. 1031 (1971). A detached and neutral magistrate mustfind probable cause before a warrant for an arrest may be issued. 

### Coolidge v. NewHampshire, 403 U.S. 443, 449, 29 

### L Ed. 2d 564, 91 S. Ct. 2022 (1971). For purposes ofconstitutional scrutiny, there is no substantial difference between an arrest


### Itxcases

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# ,..................................... We note that the record does not include any clerk's certificate. which is frequently used in failure-to-appear cases to provide factual information to show the underlying bases for the affiant's conclusions. 

### See, e.g., Mavins v. State, 886 S.W.2d 378,379-80 (Tex. App.--Houston [1st Dist.] 1994, pet. dism'd). Neither the warrants northe complaint refer to any clerk's certificate, and it appears that none were prepared in this case. Nevertheless, the clerk's affidavit and each complaint of appellant's failure to appear is signed and stamped with the Seal of the State of Texas; the clerk issued them under the authority of her office, and her office gives her the authority to issue oaths. 

### See Tex. 

### GOVTCODE ANN.§§ 30.265 (Vernon 1988) & 602.002 (Vernon 1994); 

### Tullos v. State, 162 Tex. Crim. 271, 284 S.W.2d 715, 717-18 (Tex. Crim. App. 1955) (finding deputy municipal court clerk authorized to act in own name). We hold that the municipal warrants issued were valid. The failure to appear in court is a unique offense for purposes of issuing a warrant. By its very nature, a defendant's failure to appear is typically within the court's personal knowledge. 

### Atkins 

### v. State, 984 S.W.2d 780;783 (Tex. App.--Houston [1st Dist.]1999, no pet.). Whether the defendant appears orfails to appear is an easily ascertainable, objective event- either the party is in court or he is {76 S.W.3d 434} not in court. 

### Atkins, 984 S.W.2d at 783. 2 The trial court issuing each ofthe warrants in this case was supplied with sufficient information to support an independentjudgment that probable cause existed forthe warrants. Therefore, the fact that appellant had several outstanding warrants gave the officers probable cause to arrest him. 

### See Welcome v. State, 865 S.W.2d 128, 134 (Tex. App.--Dallas 1993, pet. refd); 

### Dempsey

### v. State. 857 S.W.2d 759,761 (Tex. App.--Houston [14th Dist.]1993, no pet.). Because the warrants provided the officers with probable cause to follow and arrest appellant, the subsequent search and seizure was also justified. The search which yielded the cocaine was a search incident to a lawful arrest. Even ifwe determined that the municipal warrants were not supported by probable cause, the officers still had probable cause based on the other two grounds urged by the State at the suppression hearing. If the trial court's ruling is correct on anytheory of law applicable to the case, we may sustain it upon review. 

### See Villarreal

### v. State, 935 S.W.2d 13!1. 138 (Tex. Crim. App. 1996). This is true even ifthe decision is correct for reasons totally different from those espoused at the hearing. See 

### ia. Therefore, even if the trial court stated an incorrect reason for denying the motion to suppress. we may sustain its ruling on separate grounds. The State urged that the officers also had probable cause based on the fact that appellant evaded arrest and was in possession of cocaine. We agree. Appellant testified that he saw the police following him, but he failed to stop because he believed that he was not doing anything wrong. Appellant continued to drive through a red light, jumped from his car when he saw a policeman trying to stop him, and ran awayfrom the police into an apartment complex. Appellant's flight from the police officers, after they ordered him to stop, provided the police with probable cause to believe that appellant was evading arrestor detention. 

### See Reyes v. State, 899 S.W.2d 319, 324 (Tex. App.--Houston [14th Dist.]1995, pet. refd) (stating flight from show of authority is a factor in support offinding reasonable suspicion ofcriminal activity). A person evades arrest or detention ifhe intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him. 

### See TEX. PEN. CODE ANN.§ 38.04(a) (Vernon 1994). Furthermore, the police saw appellant carrying a bag ofcocaine in his hand as he ran from his carto the apartment complex. A peace officer may arrest an offenderwithout a warrant for any offense committed in the officer's presence orwithin the officer's view. 

### See TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (Vernon 1977). Before the officers even touched appellant, they had probable cause to arrest him for unlawful possession of cocaine because they could see a white substance they believed to be cocaine in a transparent bag in appellant's hands. 

### See Haley v. State, 811 S.W.2d 600, 603 (Tex. Crim. App.


### Itxcases 9


## e 2015 Matthew Bender &Company. Inc
.. a memberofthe Lc.xisNexis Group. All rig!l.ts reserYed. Use ofthis product is subject to the restrictions and tenns and conditions ofthe Matthew BenderMaster Agreement. 1::/::IIJ, r;u:odlt:"- v. ,:,LaLr::, ot;:J ;:,.vv..£u tuo, r.£U-.£ 1\1 ex. 1-\PP---uauas**~~~.,.pet.** reraJ. 1nererore. we find the trial court did not abuse its discretion in {76 S.W.3d 435} denying appellant's motion to suppress. We overrule appellant's first point of error. Ill. EXTRANEOUS OFFENSES In his second point oferror, appellant contends the trial court erred by considering, during punishment, extraneous offenses contained in a pre-sentence investigation report. More specifically, appellant argues the trial court should not have considered the offenses because the State failed to provide notice under article 37.07, section 3(g) of_the Texas Code of Criminal Procedure. We review the trial court's ruling as to the admissibility ofextraneous offense evidence under an abuse of discretion standard. 

### Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). Appellant timely sent a letter to the State requesting notice of all extraneous offenses, bad acts or character evidence to be used against him at the punishment hearing. The State does not dispute this fact, but maintains that there is no showing that the trial court considered anything otherthan final convictions. Thus, the State argues, appellant's rights under section 3(g) were not violated. We agree. At the punishment hearing, appellant's objection to the pre-sentence report was based solely on article 37.07, section 3(g) ofthe Texas Code of Criminal Procedure, which provides: On timely request ofthe defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b}, Texas Rules of Criminal Evidence. Ifthe attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a 

### finalconviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only**~the** notice includes the date on which and the county in which the alleged crime or bad act occurred and the name ofthe alleged victim ofthe crime or bad act. The requirement underthis subsection that the attorney representing the state give notice applies only ifthe defendant makes a timely request to the attorney representing the state for the notice.TEX. CODE CRIM. PROC. ANN. art. 37.07. § 3(g) (Vernon Supp. 2002) (emphasis added). The purpose ofthe notice requirement is to avoid unfair surprise and trial by ambush. 

### See Nance v. State, 946 S.W.2d 490,493 (Tex. App.--Fort Worth 1997, pet. refd). Reports of prior arrests and offenses without convictions are generally held not admissible on the issue of punishment. 

### Bermudez v. State, 504 S.W.2d 868, 872 (Tex. Crim. App. 1974): 

### see TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (Vernon 1981). However. if the trial court considers only evidence which has resulted in a final conviction, notice is not required. 

### See Woodard v. State, 931 S.W.2d 747, 750 (Tex. App.--Waco 1996, no pet.) (holding that appellant was not entitled to notice for extraneous offenses which have resulted in a final conviction). Even ifthe information in the pre-sentence report about the prior arrests or bad acts without final convictions was improperly admitted without notice over appellant's valid objection, we still must determine whether it was reversible error because it affected appellant's substantial rights. TEX. R. APP. P. 44.2(b); 

### Johnson v. State, 43 S.W.3d 1, 3-4 (Tex. Crim. App. 2001). In this context, error affects a substantial right when it has a substantial and injurious effect or influence in determining the trial court's sentencing decision. 

### See Johnson, 43 S.W.3d at 4. When overruling appellant's objections to the pre- sentence investigation report, the tnal court specifically stated itwould consider {76 S.W.3d 436} 

### onlythose offenses which had resulted in a final conviction. The range of punishment for possession of400 or more grams of cocaine with the intent to deliver is fifteen to ninety-nine years or life and a fine of up to$ 250,000. TEX. HEALTH & SAFETY CODE ANN.§ 481.112 (Vernon 2001). The trial court sentenced appellant to forty years' imprisonment and no fine, after the State requested a sentence ofsixty years' imprisonment. Appellant's priorfinal



### Itxcases 10**~-** 2015 Matthew Bender& Company. Inc
.. amemberofthe LcxisNcxis Group. All rights reserved. Usc ofthis product is subject to the restrictions and tem1s and conditions ofthe Matthew Bender Master Agreement.convictions included a felony conviction for cocaine possession. This conviction appears in the enhancement paragraph of the indictment. Given appellant's prior conviction for cocaine possession, the trial court's statement that its punishment determination would not be based on any price arrest or offense forwhich there was no final conviction. and the sentence given by the trial court, we conclude that the failure ofthe State to give appellant notice under article 37.07, section 3(g) ofthe Texas Code of Criminal Procedure did not have a substantial and injurious effect or influence in determining the trial court's sentencing decision. 

### See Patton v. State. 25 S.W.3d 387, 394 (Tex. App.--Austin 2000, pei. refd) (holding that even if admission of prior conviction for criminal mischief during punishment phase was erroneous. itwould not have been reversible error). Therefore, we hold that. even ifthe State's failure to give appellant notice under article 37.07, section 3(g) ofthe Texas Code of Criminal Procedure was error. itwas harmless error on the facts ofthis case. 

### See TEX. R. APP. P. 44.2(b); 

### Patton. 25 S.W.3d at 394. We overrule appellant's second point oferror. Having found no error. we affirm the trial court's judgment. Is/Kern Thompson Frost Justice Footnotes



### ,-
Appellant correctly notes, however, that State's exhibits eight through nineteen, the other arrest warrants considered by the court during the motion to suppress hearing, lack probable cause because they are not supported by affidavits made by individuals with personal knowledge. During the motion to suppress hearing, testimony revealed that several ofthe affidavits were not sworn by the officer who actually observed events alleged in the warrant itself. Moreover, at the end ofthe suppression hearing, the trial court specifically held that exhibits eight through nineteen are not valid warrants and could not be used to provide probable cause to arrest and search appellant. 

### 2 Compare Mavins v. State. 886 S.W.2d 378. 379 (Tex. App.-- Houston [1st Dist.]1994, pei. dism'd) (holding that arrest warrant for failure to appear was supported by probable cause where personal knowledge ofjudge and cler1< was expressly set forth in warrant and cler1<'s certificate respectively) 

### with Kosanda v. State. 727 S.W.2d 783,785 (Tex. App.--Houston [1st Dist.]1987, pet. refd) (holding arrest warrant for failure to appear invalid because there was no evidence that the alleged failure to appear had occurred in the presence ofthe justice ofthe peace. and no authority that would allow the court to assume that thejustice had such personal knowledge).



### Itxcases II


### t: 2015 Matthew Bender& Company. Inc
.. a memberofthe LcxisNcxis Group. All rights reserved. Usc ofthis product is subject to the restrictions and tcmts and conditions ofthe Matthcn BenderMaster Agreement