
No. 04-01-00187-CR
Deborah Rene TAYLOR,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-3962A
Honorable Raymond Angelini, Judge Presiding
Opinion by:	Phil Hardberger, Chief Justice
Sitting:	Phil Hardberger, Chief Justice
		Catherine Stone, Justice
		Sandee Bryan Marion, Justice
Delivered and Filed:	May 8, 2002
AFFIRMED
	Deborah Rene Taylor ("Taylor") appeals her conviction for capital murder. In three points
of error, Taylor argues: (1) the trial court erred in failing to suppress her written confession obtained
pursuant to an illegal arrest in violation of the United States Constitution, the Texas Constitution, and
the Texas Code of Criminal Procedure; and (2) the trial court erred in failing to instruct the jury as
to felony murder.  We affirm the trial court's judgment.
Facts & Procedural History
	Taylor was convicted for the murder of Aurora Hernandez ("Hernandez").  Hernandez owned
property located at 15878 Trawalter Road in Bexar County, Texas.  Hernandez rented a portion of
the property to David and Karen Kupp ("Kupp").  Karen Kupp's son, Glenn Wilson ("Wilson"), lived
on the property along with his girlfriend, Taylor.
	On April 30, 2000, Hernandez telephoned her son, Trinidad Hernandez ("Trinidad"), and told
him she was going to the ranch.  Trinidad never saw or heard from his mother again.  Later that day,
Kenneth Mann ("Mann"), who lived next to the rental property, saw Wilson and Taylor loading
furniture onto Hernandez's white, 1989 Ford Ranger truck.  Wilson and Taylor then got into the
truck and drove off the property. Trinidad found his mother's body on the rental property early on
the morning of May 1, 2000. 
	After discovering his mother's body, Trinidad contacted the Bexar County Sheriff's
Department.  Dalton Baker ("Baker"), an investigator with the Sheriff's Department, was dispatched
to the scene of the crime.  During the course of his investigation, Baker spoke with Trinidad, Kupp,
and Mann.  He also called James Wilson, the natural father of Glenn Wilson, who resided in Reading,
Pennsylvania.  After these interviews, Baker developed the following facts: (1) Hernandez had been
shot to death with a .22 caliber weapon; (2) Wilson and Taylor were in possession of Hernandez's
Ford Ranger and were enroute to the home of James Wilson in Pennsylvania; (3) Hernandez never
let anyone else drive or borrow her truck; (4) Wilson and Taylor possibly were armed and dangerous
- both Karen Kupp and James Wilson told Baker that their son would likely go down fighting rather
than submit to any law enforcement.
	Based upon these facts, Baker felt that he had probable cause to believe that theft of a motor
vehicle and possibly a homicide had occurred.  Baker then prepared a BOLO (being on the lookout
for), which was transmitted from Bexar County to various law enforcement agencies, including the
Pennsylvania State Police.  The BOLO included a description of Wilson and Taylor and a description
of the Ford Ranger, including the license plate number.  The BOLO stated that the two suspects were
possibly armed and dangerous and were headed to a particular address in Reading, Pennsylvania. 
	On May 2, Baker spoke with James Biever ("Biever") of the Pennsylvania State Police.
During the conversation, Baker provided Biever with more details concerning the theft of the Ford
Ranger and the possible homicide committed by Wilson and Taylor.  Baker  informed Biever that
there was an outstanding arrest warrant in Texas for Taylor on the charge of misdemeanor assault.
On May 3, Biever forwarded all of this information to Corporal Bruce Edwards ("Edwards") of the
Pennsylvania State Police.
	Shortly after Edwards received the information from Biever, Pennsylvania State Police near
the Reading area were notified of a suspicious vehicle that was blocking the driveway on someone's
property.  The description of the vehicle and the license plate number matched that of Hernandez's
Ford Ranger.  Trooper Bruce Millhouse ("Millhouse") was sent to the location where the vehicle had
been seen.  Edwards had given Millhouse all the information regarding Wilson and Taylor, including
their descriptions, the circumstances regarding the stolen vehicle, and the fact that Wilson and Taylor
might be armed and dangerous.  Upon arriving at the scene, Millhouse saw the Ford Ranger stuck
in a ditch on the side of the road.  He also saw a male and a female walking down the road
approximately 100 yards away from the truck.  Millhouse drove by the couple to get a closer look,
and realized they matched the description of Wilson and Taylor.  Millhouse and several other troopers
then converged on the couple, guns drawn, and identified themselves as Pennsylvania State Police.
After asking them their identity, the male suspect identified himself as Glenn Wilson.  The troopers
handcuffed the suspects and took them into custody.  Millhouse put the female in a marked police car
where she identified herself as Deborah Taylor.  Millhouse then placed Wilson and Taylor under
arrest for possession of a stolen vehicle under Pennsylvania law.  After the arrest, the outstanding
Texas warrant for Taylor was faxed to the authorities in Pennsylvania.
	Taylor was eventually extradited to Bexar County and indicted for the murder of Hernandez.
After her extradition, Taylor gave a written statement to Deputy Sal Marin of the Bexar County
Sheriff's Department, confessing to the murder of Hernandez.  Prior to trial, Taylor filed a motion
to suppress her confession because it was obtained pursuant to an illegal arrest.  After a three day
hearing, the trial court denied Taylor's motion.  Taylor was convicted of capital murder and
sentenced to life in prison.
Discussion
I.  Legality of Taylor's Arrest
	In her first two points of error, Taylor argues that the trial court reversibly erred in failing to
suppress her confession obtained pursuant to her illegal arrest.  In three subpoints, Taylor contends:
(1) her out-of-state arrest was unlawful because it was based upon a void misdemeanor capias; (2)
her out of state arrest was unlawful because it was not based upon a fugitive warrant or governor's
warrant; and (3) her out-of-state arrest was unlawful because it was not based upon probable cause.
Taylor does not challenge the confession itself.  Her points of error focus on her arrest by
Pennsylvania State Police.
	As an initial counter to Taylor's arguments regarding her arrest, the State contends that
Taylor failed to preserve error because her trial counsel stated "no further objection" when the State
admitted the evidence of Taylor's written confession.  "It is well settled that when a pre-trial motion
to suppress evidence is overruled, the defendant need not subsequently object at trial to the same
evidence in order to preserve error on appeal."  Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim.
App. 1986) (en banc); Welch v. State, 993 S.W.2d 690, 694 (Tex. App.-San Antonio 1999, no pet.).
"However, when the defendant affirmatively asserts during trial he has 'no objection' to the admission
of the complained of evidence, he waives any error in the admission of the evidence despite the pre-trial ruling."  Moraguez, 701 S.W.2d at 904; Welch, 993 S.W.2d at 694. 
	Although stating "no objection" to the admission of previously complained of evidence does
waive error, adding the word "further" changes this result.  See Welch, 993 S.W.2d at 694. Stating
"no further objections" impliedly references the pre-trial motion to suppress.  While there are safer
ways for defense counsel to avoid this challenge, we believe the error was properly preserved.
	We now decide whether Taylor's arrest in Pennsylvania was legal.  Taylor's arguments
regarding the illegality of the Texas misdemeanor capias and the lack of a governor's or fugitive
warrant are contrary to the facts developed at the motion to suppress hearing.  Both of these
arguments hinge on Taylor's assertion that she was arrested by Pennsylvania State Police because of
her outstanding Texas warrant (capias) for misdemeanor assault.  However, both Edwards and
Millhouse testified that Taylor was arrested for possession of a stolen vehicle under Pennsylvania law.
Although the Pennsylvania State Troopers were aware of the outstanding Texas warrant (capias),
they did not arrest Taylor solely because of it.   Our analysis shifts to whether the Pennsylvania State
Police had probable cause to arrest Taylor for possession of a stolen vehicle under Pennsylvania law.
	Under Pennsylvania law, a law enforcement officer may arrest without a warrant for any
felony theft offense.  18 Pa. C.S.A. § 3904.  It is an offense to intentionally posses the property of
another knowing it has been stolen.  Id. § 3925.  Any theft offense involving a vehicle is a third
degree felony.  Id. § 3903(a.1); Commonwealth v. Holzlein, 706 A.2d 848, 852 (Pa. Super. Ct.
1997).
					 "The test for determining the existence of probable cause for a warrantless arrest is whether
at that moment the facts and circumstances within the officer's knowledge and of which he had
sufficient trustworthy information were sufficient to warrant a prudent man in believing the arrested
person had committed or was committing an offense."  Johnson v. State, 32 S.W.3d 294, 298 (Tex.
App.-San Antonio 2000, pet. ref'd). "Probable cause deals with probabilities; it requires more than
mere suspicion but far less evidence than that needed to support a conviction or even that needed to
support a finding by a preponderance of the evidence."  State v. Parson, 988 S.W.2d  264, 267 (Tex.
App.-San Antonio 1998, no pet.).  "To determine whether probable cause exists, we must look to
the totality of the circumstances." Johnson, 32 S.W.3d at 298. "[W]hen there has been some
cooperation between law enforcement agencies or between members of the same agency, the sum of
the information known to the cooperating agencies or officers at the time of an arrest is to be
considered in determining whether there was sufficient probable cause therefor."  Woodward v. State,
668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (en banc).
	Whether the State had probable cause to arrest is a question we review under a de novo
standard.   Parson, 988 S.W.2d at 267.  It is a mixed question of law and fact that does not turn on
an evaluation of credibility and demeanor.  Id.  "[A]n appellate court should give deference to the trial
court's determination of facts as revealed in the testimony at trial, but review whether, considering
those facts, the law was properly applied."  Id.
	Prior to arresting Wilson and Taylor, Millhouse knew the following: (1) their physical
description; (2) information that they were possibly armed and dangerous; (3) information that Taylor
and Wilson were on route to the Reading, Pennsylvania area; (4) a description of the Ford Ranger,
its license plate number, and the fact that it was listed as stolen and possibly involved in a homicide.
Millhouse learned this information from the BOLO and from Edwards.  The source of all this
information comes from the investigation by Baker of the Bexar County Sheriff's Department.
	Based on the totality of the circumstances, Millhouse had probable cause to arrest Taylor for
possession of stolen vehicle under Pennsylvania law.  See Johnson, 32 S.W.3d at 298. The truck he
saw on the side of the road matched the description.  The license plate number had already been
identified  as that of Hernandez's Ford Ranger.  The male and female he saw walking away from the
truck matched the description of Wilson and Taylor.  Millhouse knew the truck was stolen, and that
Wilson and Taylor were possibly involved in a homicide.  He also knew that  they might be armed
and dangerous.  Once he confronted the couple and Wilson positively identified himself, Millhouse
knew he had the right people.  Based on the information provided by Baker resulting from his
investigation, Millhouse had sufficient probable cause to arrest Taylor without a warrant under
Pennsylvania law.  See Woodward, 668 S.W.2d at 344.  We overrule Taylor's first and second points
of error.
II.  Felony Murder
	In her third point of error, Taylor argues that the trial court reversibly erred in failing to
instruct the jury as to felony murder.  Taylor asserts that she raised the issue as to whether she
accidentally shot Hernandez in the course of committing an aggravated robbery.  She contends that
there was evidence presented that would permit a jury to rationally find that she had the intent to
commit the robbery but not to cause the death of Hernandez.
	The Penal Code sets forth the offense of felony murder: 
A person commits an offense if he commits or attempts to commit a
felony, other than manslaughter, and in the course of and in
furtherance of the commission or attempt, or in immediate flight from
the commission or attempt, he commits or attempts to commit an act
clearly dangerous to human life that causes the death of an individual.
 
Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 1994).
	To establish a defendant's entitlement to an instruction on felony murder, the defendant
"must establish that felony murder is a lesser included offense of capital murder and that there was
evidence that if guilty of an offense, appellant was guilty only of felony murder."  Fuentes v. State,
991 S.W.2d 267, 272 (Tex. Crim. App. 1999).  The second prong of the test requires some evidence
that would permit the jury to rationally find the defendant guilty of only the lesser included offense.
Burnett v. State, 865 S.W.2d 223, 227 (Tex. App.-San Antonio 1993, pet. ref'd).  The entire record
must be examined in determining whether a defendant was entitled to a lesser included offense
instruction, and facts must not be isolated and taken out of context.  Ramos v. State, 865 S.W.2d 463,
465 (Tex. Crim. App. 1993) (en banc).  "In determining whether the trial court erred in failing to give
a charge on a lesser included offense, all of the evidence presented by the State and the defendant
must be considered."  Burnett, 856 S.W.2d at 228.  " Entitlement to a jury instruction on a lesser
included offense must be made on a case-by-case basis according to the particular facts."  Id.
	In its brief, the State concedes that felony murder is a lesser included offense of capital
murder.  We must decide whether, considering all the evidence, a jury could rationally find Taylor
guilty of only felony murder.  See id. at 227.  Taylor points to her written confession as evidence
allowing her to be found guilty of only felony murder.  
	In the written confession admitted by the State, Taylor stated that she only pointed the gun
in the general direction of Hernandez and did not intend to shoot her.  She stated that the gun
unexpectedly went off and shot Hernandez.  She further explained that she then ran off and left
Hernandez alive in the woods.  Viewing this evidence in isolation does provide some evidence that
would allow a jury to rationally find Taylor guilty of only felony murder.  However, we must look
at the entire record in making our determination.  See id. at 228.  
	The undisputed evidence at trial established that Hernandez had been shot twice by a .22
caliber weapon.  One gunshot wound was to her upper back, and the other wound was to her head,
just above her ear canal.  The medical examiner testified that the shot to the head killed Hernandez
instantly.  This evidence contradicts Taylor's assertion that she shot Hernandez accidently, and that
she left her injured, but alive.  Further evidence also contradicts her claim.  Trooper Barry Whitmoyer
("Whitmoyer") of the Pennsylvania State Police testified at trial.  After Taylor had been arrested, he
was assigned to watch her for a short period of time.  During this time, Taylor made several
statements to him.  Whitmoyer testified that Taylor said the first shot was an accident, but that
Hernandez was laying on the ground moaning and groaning.  According to Whitmoyer, Taylor then
stated that "she walked over to her and saw her moaning and felt that she was in pain, so she put her
out of her misery."
	Looking at the evidence as a whole, we believe a jury could not rationally find Taylor guilty
of only felony murder.  See id. at 227.  Her assertion that she accidently shot Hernandez during the
course of a robbery is in direct conflict with other evidence presented at trial.  It is completely
irrational that Taylor shot Hernandez accidently twice, once to the back, and once to the head.  The
head shot was fatal, meaning that Taylor could not have left Hernandez alive as she claims.  The trial
court did not err by not charging the jury as to felony murder.  We overrule Taylor's third point of
error.
Conclusion
	The judgment of the trial court is affirmed.
							Phil Hardberger, Chief Justice
PUBLISH
