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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.3d 426; 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 . For Appellants: Kevin C. Rekoff of Galveston, 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 deliver a controlled substance and was 

sentenced to prison. Defendant appealed .Defendant's motion to suppress on the grounds of an illegal 

arrest was properly denied, because some arrest warrants for his failure to appear were valid, he ran from 

police, and they had probable cause to believe he was possessing cocaine. 

OVERVIEW: Defendant was 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; he jumped 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 of the 19 arrest 

warrants for failure to appear were valid, as they were issued upon the clerk's affidavit of personal 

knowledge of defendant's failure to appear; (2) defendant's flight gave the officers probable cause to 

arrest him; and (3) seeing the bag of white 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 defendant was not convicted, the failure of the State to give defendant notice under Tex. 

Code Grim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2002) of the offenses it presented to the trial 

court, even if error, was harmless error on the facts of the case. 

OUTCOME: The judgment was affirmed. 

LexisNexis Headnotes 

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restrictions and tenns and conditions of the Matthew Bender Master Agreement. 

Criminal Law & Procedure > Appeals > Standards of Review> Abuse of Discretion > General 

Overview 

Criminal Law & Procedure > Pretrial Motions > Suppression of Evidence 

Criminal Law & Procedure > Witnesses > Credibility 

Criminal Law & Procedure > Appeals > General Overview 

Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > Evidence 

An appellate court reviews the trial court's ruling on a motion to suppress evidence under an 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 of fact. The trial judge is free to 

believe or disbelieve any or all of the 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 of the 

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 of Review > De Novo Review > General Overview 

Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > Sensory 

Perceptions 

Criminal Law & Procedure > Pretrial Motions > Suppression of Evidence 

Criminal Law & Procedure > Appeals > Standards of Review > 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 

at the time of the search or seizure. If the 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 if the decision is correct for reasons totally different from those espoused at the hearing. 

Criminal Law & Procedure > Appeals > Standards of Review> General Overview 

Civil Procedure > Judgments > Relief From 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 of Evidence 

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 of Protection. 

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > General Overview 

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure >Probable Cause 

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Warrants 

Criminal Law & Procedure > Search & Seizure > Search Warrants > General Overview 

Criminal Law & Procedure > Search & Seizure > Warrantless Searches > General Overview 

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I 
The United States and Texas Constitutions protect against unreasonable seizures and prohibit warrants 

lacking probable cause. U.S. Con st. amend. IV; Tex. Canst. art. I,§ 9. Arrests generally must be 

supported by the same level of probable cause, with or without a warrant. 

Criminal Law & Procedure> Search & Seizure> Search ,Warrants> Issuance by Neutral & 

Detached Magistrates 

Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General 

Overview 

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause 

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Warrants 

Criminal Law & Procedure > Accusatory Instruments >.General Overview 

Governments > Courts > Judges 

A detached and neutral magistrate must find probable cause before a warrant for an arrest may be issued. 

For purposes of constitutional 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 

independent judgment that probable cause exists to believe that the accused has committed an offense. 

Thus, the magistrate's action cannot be a mere ratification of the bare conclusions of others. In 

determining the sufficiency of an affidavit supporting an arrest warrant, a reviewing court is limited to the 

'lour corners" of the affidavit. Affidavits are viewed in a common sense rather than hypertechnical 

manner. A presumption is indulged in favor of the regularity of the proceedings in a lower court unless the 

record presents affirmative evidence to the contrary. 

Constitutional Law > Bill of Rights > 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. Whether the 

defendant appears or fails 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 independent judgment 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 of Rights > Fundamental Rights > Search & Seizure > Probable Cause 

Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > Personal 

Knowledge 

An arrest warrant for failure to appear is supported by probable cause where the personal knowledge of 

the judge and clerk is expressly set forth in the warrant and the clerk's certificate, respectively. 

Criminal Law & Procedure > Appeals > Standards of Review > General Overview 

Criminal Law & Procedure > Pretrial Motions > Suppression of Evidence 

If a 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 if the decision is correct for reasons totally different from those espoused 

at the hearing. 

Criminal Law & Procedure > Search & Seizure > Seizures of Persons 

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > General Overview 

A suspect's flight from police officers, after they order him to stop, provides the police with probable cause 

ltxcases 3 

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rcstrict.ions and tcmls and conditions of the MatthC\10 Bender Master Agreement. 

to believe that the suspect is evading arrest or detention. Flight from a show of authority is a factor in 

support of a finding reasonable suspicion of criminal activity. 

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Resisting Arrest > 

General Overview 

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Fleeing & Eluding > 

General Overview 

Criminal Law & 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). 

Criminal Law & Procedure > Search & Seizure > Seizures of Persons 

A peace officer may arrest 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). 

Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > General 

Overview 

Criminal taw & Procedure > Sentencing > Presentence Reports 

Criminal Law & Procedure > Appeals > Standards of Review> Abuse of Discretion > Evidence 

An appellate court reviews the trial court's ruling as to the admissibility of extraneous offense evidence 

under an abuse of discretion standard. 

Evidence > Relevance > Prior Acts, Crimes & Wrongs 

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

Evidence > Relevance > Prior Acts, 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. 

Criminal Law & Procedure > Appeals > Reversible Errors > General Overview 

Criminal Law & Procedure > Sentencing > Presentence Reports 

Error affects· a substantial 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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restrictions and tcnns and conditions of the Matthew Bender Master 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 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 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 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 of the Bay Point 

Apartments. 

Officer Zimmers. 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. appellant jumped from his still moving vehicle and started to run. Officer Zimmers 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 of the plastic bag tested 

positive for cocaine. The Texas City police arrested appellant. 

- · Appellant provided a slightly different version of the 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 he jumped from his moving car and started to run was 

not because he was carrying 400 grams of cocaine, 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 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 a jury 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 

ltxcases 

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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 of cocaine. 

The trial court denied appellant's motion to suppress on the ground that seven of the 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 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 the trial court's ruling on a motion to suppress evidence under an abuse of discretion 

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 of fact. 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 of the 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 almost total deference to the trial 

court's detennination 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. 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 of the search or seizure. See Guzman, 955 S.W.2d at 89. If the 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 if the decision is correct for reasons totally different from those 

espoused at the hearing. See id. 1 

In this case, the trial court specifically stated 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. if we 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 or without 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 of constitutional scrutiny, there is no substantial difference between an arrest 

I txcases 6 

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restrictions and tcnns and conditions of the Matthew Bender Master 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 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. 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 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 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. 

Officer Zimmers. 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. appellant jumped from his still moving vehicle and started to run. Officer Zimmers 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 of the plastic bag tested 

positive for cocaine. The Texas City police arrested appellant. 

Appellant provided a slightly different version of the 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. appellant testified that the reason he jumped from his moving car and started to run was 

not because he was carrying 400 grams of cocaine, 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 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 a jury 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 

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 arrest warrants. --..,._ ~ ... . ~ 

{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 of cocaine. 

The trial court denied appellant's motion to suppress on the ground that seven of the 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 the trial court's ruling on a motion to suppress evidence under an abuse of discretion 

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 of fact. 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 of the 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 almost total 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 of the search or seizure. See Guzman, 955 S. W.2d at 89. If the 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 if the decision is correct for reasons totally different from 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, if we 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 Constitutio~s protect against unreasonable seizures and prohibit 

warrants lacking probable cause. See U.S. CONST. amend. IV; TEX. CON ST. art. I§ 9. Arrests 

generally must be supported by the same level of probable cause. with or without 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 of constitutional scrutiny, there is no substantial difference between an arrest 

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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 nor the 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. GOVT CODE 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 or fails 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 of the warrants in this case was supplied with sufficient 

information to support an independent judgment that probable cause existed for the 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 if we 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 any theory 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 

if the 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 away from 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 arrest or 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 of finding reasonable suspicion of criminal activity). A person evades arrest or 

detention if he 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 of cocaine in his hand as he ran from his car to the apartment complex. 

A peace officer may arrest an offender without a warrant for any offense committed in the officer's 

presence or within 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. 

I txcases 9 

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restrictions and tenns and conditions of the Matthew Bender Master Agreement. 

1::/::IIJ, r;u:odlt:"- v. ,:,LaLr::, ot;:J ;:,.vv . .£u tuo, r .£U-.£ 1 \1 ex. 1-\PP---uauas ~~~.,.pet. reraJ. 1 nererore. 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 of error, 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 of extraneous 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 other than 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) of the Texas Code of Criminal Procedure, which provides: 

On timely request of the 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. If the 

attorney representing the state intends to introduce an extraneous crime or bad act that has not 

resulted in a final conviction 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 of the alleged victim of the crime or bad act. The 

requirement under this subsection that the attorney representing the state give notice applies only 

if the 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 of the 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 if the 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 it would consider 

{76 S.W.3d 436} only those offenses which had resulted in a final conviction. 

The range of punishment for possession of 400 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 of sixty years' imprisonment. Appellant's prior final 

I txcases 10 

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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 for which there was no final conviction. and the sentence given by the trial court, we conclude 

that the failure of the State to give appellant notice under article 37.07, section 3(g) of the 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. it would not have been reversible error). Therefore, we hold that. even if the 

State's failure to give appellant notice under article 37.07, section 3(g) of the Texas Code of Criminal 

Procedure was error. it was harmless error on the facts of this case. See TEX. R. APP. P. 44.2(b); 

Patton. 25 S.W.3d at 394. We overrule appellant's second point of error. 

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 of the affidavits were not sworn by the officer 

who actually observed events alleged in the warrant itself. Moreover, at the end of the 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 of judge 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 of the justice of the peace. and no authority that would allow the 

court to assume that the justice had such personal knowledge). 

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