Opinion issued December 17, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00876-CR
                            ———————————
                        DERRICK BERNARD, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 185th District Court
                            Harris County, Texas
                        Trial Court Case No. 1550370


                          MEMORANDUM OPINION

      A jury convicted appellant, Derrick Bernard, of capital murder, and the trial

court assessed punishment at confinement for life. In four issues on appeal, appellant

contends that the trial court erred by (1) denying his motion to suppress evidence
that was obtained after his warrantless arrest; (2) admitting statements that appellant

made after allegedly asserting a right to counsel; (3) denying a requested instruction

for the jury to disregard a crime scene technician’s testimony about footprint

evidence; and (4) violating appellant’s due process rights by admitting his statement,

which the State had allegedly agreed not to introduce. We affirm.

                                  BACKGROUND

      The complainant, Lloyd Trim, an alleged drug dealer, borrowed appellant’s

black Infiniti car. In return, Trim gave appellant drugs and the use of his own car.

When the two men also swapped car keys, Trim’s apartment key was on the keychain

he gave to appellant. When Trim and his girlfriend, Jasmaine Gonzales, later

discovered that money was missing from their apartment, they believed that

appellant had used the house key to enter the apartment and steal the money. Trim

texted and called appellant, demanding that he return the money. Trim and Gonzales

later drove to appellant’s trailer to find him, but left without speaking to him.

      Gonzales testified that she and Trim then went home and went to bed. In the

early morning hours, they awoke to the sound of their front door being kicked in.

Gonzales testified that she ran into the closet and Trim ran into the bathroom.

Gonzales recognized appellant’s voice, and she heard him demanding that Trim

return his car keys. She then heard several gunshots. Trim was shot twice in the

head and died. Appellant located Gonzales in the closet and shot her several times


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also. In her call to 911, Gonzales identified appellant as the shooter and described

the car he was driving as a black, two-door Infiniti.

      When police arrived, they discovered Gonzales outside the apartment. She

was injured, but able to identify appellant as the shooter. Based on the information

from Gonzales, police sought a search warrant for Trim’s residence. The warrant

they received had the wrong address, so several officers waited outside his residence

for a corrected warrant.

      Meanwhile, at the scene of the murder, appellant returned to the apartment

complex and tried to pass through the crime scene tape. He was stopped by an officer

who had not yet seen the photograph of appellant that the police had obtained based

on Gonzales’s information. Appellant again left the scene of the crime, but officers

were soon able to obtain the license plate number for his car based on the information

obtained from Gonzales.

      Police officers, who now had a photograph of appellant and knew his license

plate number, spotted appellant driving the black Infiniti approximately five hours

after the murder. They stopped him and made a warrantless arrest based on the

information given them by Gonzales.

      Appellant was taken to the police station, where he was read his statutory

rights. After waiving his rights, appellant spoke with police. At one point during

the conversation, appellant stated, “I ain’t got nothing to say. If y’all trying to say I


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got something to do with it, nothing else to say, man.” He asked if he could go

home, and the officers told him “no” because he was being charged. The officers,

without any further questions, got up to leave the interrogation room, and appellant

indicated that he would like to talk further. Appellant never admitted to the murder,

but he did say that he had gone over to Trim’s apartment to get his keys and car.

                             MOTION TO SUPPRESS

      In his first issue, appellant contends that “[t]he police failed to obtain a warrant

when they arrested [appellant] and thus his arrest and his resulting custodial

statement should have been suppressed.” The State responds that there was a valid,

warrantless arrest based upon probable cause.

Standard of Review

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for an abuse of discretion, and we

review the trial court’s application of the law to the facts de novo. Id. We give

deference to the trial court’s factual determinations because the trial court is the sole

trier of fact and the sole judge of witness credibility and the weight to be given

testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Our

deferential review also applies to the trial court’s conclusions regarding mixed

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382


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S.W.3d 367, 372 (Tex. Crim. App. 2012). We review mixed questions of law and

fact that do not turn on credibility and demeanor, as well as purely legal questions,

de novo. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).

      When the trial court makes explicit findings of fact, we determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling, supports

the fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). If the

trial court fails to make a particular finding, we imply a fact finding to support the

trial court’s ruling when the evidence supports the implied finding. See Gutierrez v.

State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). We afford the prevailing party

the “strongest legitimate view of the evidence” and all reasonable inferences that

may be drawn from that evidence. State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim.

App. 2013) (quoting State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011)).

We will uphold the trial court’s ruling if it is reasonably supported by the record and

is correct on any theory of law applicable to the case. State v. Story, 445 S.W.3d 729,

732 (Tex. Crim. App. 2014).

Analysis

      Appellant argues that the trial court erred in denying his motion to suppress

evidence stemming from his arrest because the arrest was made without a warrant or

probable cause. The State admits that it did not have a warrant but contends that the

officers made a proper warrantless arrest based on probable cause.


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      Under the United States Constitution, police officers may arrest a suspect

without a warrant if they have probable cause. United States v. Watson, 423 U.S.

411, 423–24 (1976). In Texas, however, an officer may make a warrantless arrest

only if the officer has probable cause with respect to the person being arrested and

has statutory authority to make the arrest. Neal v. State, 256 S.W.3d 264, 280 (Tex.

Crim. App. 2008).

      Here, appellant argues only that there was no probable cause to support the

warrantless arrest.1 We disagree. Probable cause exists when the police have

reasonably trustworthy information sufficient to warrant a reasonable person to

believe that a particular person has committed or is committing an offense. Guzman

v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997); Amores v. State, 816 S.W.2d

407, 413 (Tex. Crim. App. 1991). 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. Guzman, 955 S.W.2d at 87. “The rule of probable cause seeks to

accommodate the sometimes-opposing interests of safeguarding citizens from rash


1
      Appellant does not argue or provide authority in his brief that the statutory
      exceptions to the warrant requirement in Article 14 of the Texas Code of Criminal
      Procedure are not applicable. See generally TEX. CODE CRIM. PROC. Chap. 14.
      Thus, any issue relating the applicability of a warrant exception is waived. See TEX.
      R. APP. P. 38.1(i) (requiring briefs to “contain a clear and concise argument for the
      contentions made, with appropriate citations to authorities and the record”).

                                            6
and unreasonable police conduct and giving fair leeway to legitimate law

enforcement efforts.” Id. Police broadcasts that are based on probable cause and that

report a felony and a description of the perpetrator satisfy the requirements for a

warrantless arrest. Law v. State, 574 S.W.2d 82, 84 (Tex. Crim. App. 1978).

      Here, the arresting officers had information that an eyewitness at the scene of

the murder had identified appellant as the assailant, thus they had probable cause to

support a warrantless arrest. See Livingston v. State, 739 S.W.2d 311, 328 (Tex.

Crim. App. 1987) (holding that warrantless arrest of suspect was supported by

probable cause in form of eyewitness identification of suspect as assailant at scene).

      Because police had probable cause, and because appellant does not challenge

or brief the applicability of any warrant exception, we overrule issue one.

                              RIGHT TO COUNSEL

      In his second issue, appellant contends that he “clearly asked for an attorney

and was ignored,” and that, as a result, his statement that he was with the deceased

on the day of the murder should not have been admitted.2 The State argues that (1)


2
      Appellant is relying on the right to counsel provided for in the Fifth Amendment.
      “[T]he Fifth Amendment right to interrogation counsel is triggered by the Miranda
      warnings that police must give before beginning any custodial questioning. The
      Sixth Amendment right to trial counsel is triggered by judicial arraignment or
      Article 15.17 magistration.” Pecina v. State, 361 S.W.3d 68, 71 (Tex. Crim. App.
      2012). “Among the rights about which the police must advise a suspect whom they
      have arrested is the right to have counsel present during any police-initiated
      interrogation.” State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009) (citing
      Miranda v. Arizona, 384 U.S. 436, 479 (1966)). Once a suspect has invoked his
      Fifth Amendment right to counsel, police interrogation must cease until counsel has
                                           7
appellant’s objection at trial does not comport with his issue on appeal and (2) while

appellant may have invoked his right to remain silent, he never invoked his right to

counsel. We agree with both contentions.

Background

      At one point during questioning by police, appellant said, “I ain’t got nothing

to say. If y’all trying to say I got something to do with it, nothing else to say, man.”

The officers then told appellant that they could not ask him any more questions if he

did not want to talk. Appellant asked if he was going to be released. An officer told

him that he was not going to be released; he was going to be charged. The officers

got up to leave the room, and appellant indicated that he wanted to talk further.

During the interview, appellant admitted being with the complainant but insisted that

the complainant was alive when he left.

Error Preservation

      For an issue to be preserved for appeal, there must be a timely objection that

specifically states the legal basis for the objection. TEX. R. APP. P. 33.1(a); Rezac v.

State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). A general or imprecise

objection will not preserve error for appeal unless “the legal basis for the objection

is obvious to the court and to the opposing counsel.” Vasquez v. State, 483 S.W.3d



      been provided or the suspect himself reinitiates a dialogue. Id. (citing Edwards v.
      Arizona, 451 U.S. 477, 484-85 (1981)).
                                           8
550, 554 (Tex. Crim. App. 2016) (quoting Buchanan v. State, 207 S.W.3d 772, 775

(Tex. Crim. App. 2006) (emphasis in original)). When a complaint on appeal differs

from that made at trial, the error is waived. Cook v. State, 858 S.W.2d 467, 474 (Tex.

Crim. App. 1993). “An objection stating one legal basis may not be used to support

a different legal theory on appeal.” Rezac, 782 S.W.2d at 870. “Whether a party’s

particular complaint is preserved depends on whether the complaint on appeal

comports with the complaint made at trial.” Pena v. State, 285 S.W.3d 459, 464

(Tex. Crim. App. 2009). “The purpose of requiring a specific objection in the trial

court is twofold: (1) to inform the trial judge of the basis of the objection and give

him the opportunity to rule on it; (2) to give opposing counsel the opportunity to

respond to the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App.

2009).

      In this case, appellant’s trial counsel stated:

      Your Honor, in the statement, [appellant] invokes his right to remain
      silent and when he does that, the investigator said, made the overture,
      Brother I’m just trying to help you out . . . it wasn’t a voluntary
      statement in the sense that he had . . . invoked his right and then he went
      back on that because he felt the pressure of, oh, my gosh, when I
      exercise my rights, I’m going to get thrown in prison and called a
      suspect and charged with capital murder.

      Counsel, however, never argued to the trial court that appellant had invoked

his right to counsel, and, as a result, the trial court did not have the opportunity to

rule on that basis. Because appellant’s argument on appeal does not comport with


                                           9
his trial objection, appellant has failed to preserve error. See Larkins v. State, No.

13-16-00356-CR, 2018 WL 5074584, at *2 (Tex. App.—Corpus Christi Oct. 18,

2018, no pet.) (holding that “right-to-counsel” trial objection did not preserve error

for “right-to-remain-silent” issue on appeal).

Invoking Right to Counsel

      The State also argues that appellant’s statement—“I ain’t got nothing to say.

If y’all trying to say I got something to do with it, nothing else to say, man”—was

insufficient to invoke his right to counsel.

      The right to counsel is invoked when a suspect indicates that he wants to talk

to an attorney or to have an attorney present during questioning. Edwards v. Arizona,

451 U.S. 477, 482 (1981); Miranda v. Arizona, 384 U.S. 436, 444–45 (1966); Ochoa

v. State, 573 S.W.2d 796, 800 (Tex. Crim. App. 1978). However, if a suspect makes

an ambiguous or equivocal statement with respect to his desire for an attorney,

interrogating officers are not required to stop the interview. State v. Gobert, 275

S.W.3d 888, 892 (Tex. Crim. App. 2009). The use of the word “attorney” or

“lawyer” does not, in and of itself, invoke the right to counsel. Dinkins v. State, 894

S.W.2d 330, 351 (Tex. Crim. App. 1995). The issue as to whether a suspect has

clearly and effectively invoked his right to counsel is determined by a consideration

of the statement itself and the totality of the circumstances that surround the

interrogation. Gobert, 275 S.W.3d at 892; Dinkins, 894 S.W.2d at 351. The test is


                                          10
an objective one, and a suspect “must articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would

understand the statement to be a request for an attorney.” Davis v. U.S., 512 U.S.

452, 459 (1994).

      At no point during questioning did appellant express a desire to talk to an

attorney; rather, he merely stated that he had “nothing else to say.” His statement

does not constitute even an equivocal request for counsel. See, e.g., Davis, 512 U.S.

at 462 (holding that defendant’s statement, “Maybe I should talk to a lawyer,” was

not request for counsel); Davis v. State, 313 S.W.3d 317, 338–41 (Tex. Crim. App.

2010) (holding that defendant’s statement during police interview, “I should have an

attorney,” did not expressly invoke right to counsel under circumstances presented);

Beham v. State, 476 S.W.3d 724, 728-31 (Tex. App.—Texarkana 2015, no pet.)

(holding that defendant’s statement “I was gonna try to see if I could get a lawyer”

did not invoke right to counsel); Hartwell v. State, 476 S.W.3d 523, 529–32 (Tex.

App.—Corpus Christi 2015, pet. ref’d) (holding that defendant’s question, “Should

I maybe call my attorney friend and see what he thinks,” was not unequivocal and

unambiguous request for counsel); Williams v. State, 402 S.W.3d 425, 434 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d) (holding that defendant’s question,

“Do I need a lawyer present for this,” was equivocal request for counsel); Gutierrez

v. State, 150 S.W.3d 827, 832 (Tex. App.—Houston [14th Dist.] 2004, no


                                         11
pet.)(holding that defendant’s question, “Can I have [my attorney] present now?”

constituted ambiguous request); Halbrook v. State, 31 S.W.3d 301, 302 (Tex.

App.—Fort Worth 2000, pet. ref’d) (holding that statement, “Do I get an opportunity

to have my attorney present?” did not constitute clear and unambiguous invocation

of counsel); Flores v. State, 30 S.W.3d 29, 34 (Tex. App.—San Antonio 2000, pet.

ref’d) (holding that question, “Will you allow me to speak to my attorney before?”

was not clear and unequivocal invocation of right to counsel).

      Because appellant neither preserved error nor invoked his right to counsel, we

overrule issue two.

                            FOOTPRINT EVIDENCE

      In issue three, appellant contends that the trial court erred in not granting his

request for an instruction to the jury to disregard a crime scene technician’s

testimony that the tread on appellant’s shoe “matched” a shoe print found on the

door of the Trim’s home. Specifically, appellant argues that the instruction was

required because the crime scene technician was not an “expert” on footprint

evidence.

      The Court of Criminal Appeals has held as follows:

      This type of testimony has long been admissible, in Texas and
      elsewhere, by either lay or expert witnesses. Decades ago, we noted that
      shoe print comparison testimony is generally admissible:

            [T]he unbroken line of decisions of this state, and every
            other state with which we are familiar, hold . . . that a
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              witness who has made measurements of the tracks, and the
              foot or shoe of the defendant, or who has made some such
              comparison between the tracks and the shoes of the
              defendant, as placing the shoe in the tracks, or who has
              detailed peculiarities in the tracks on the ground which
              correspond with the shoes, or with the proven or admitted
              tracks of the defendant, that in either of these cases or
              instances the witness may give his opinion as to the
              similarity of the tracks.

      ****

      The reason this kind of testimony is liberally allowed is that the field of
      tire and shoe comparisons is not particularly complex, the witness’s
      opinions are not conclusive, and consequently, they are generally not
      pivotal to the resolution of the case.

Rodgers v. State, 205 S.W.3d 525, 532–33 (Tex. Crim. App. 2006). Because the

exhibits relied on by the expert were admitted into evidence and available to the jury

in its deliberations, and the jury could make its own comparisons, there was no error

in permitting the witness to testified as to shoe print comparisons. Id. at 533.

      The same is true in this case. The crime scene technician took an imprint of

appellant’s Nike shoe (State’s Exhibit 149), compared it with the print on the door

of the complainant’s apartment (State’s Exhibit 55), and concluded that the treads

“matched.” The technician admitted that she could not tell whether the same shoe

made both marks but testified that the treads looked the same. State’s Exhibits 55

and 149 were both admitted into evidence so that the jury could make its own

comparison.     Because here, as under Rodgers, the shoe tread testimony was



                                          13
admissible, the trial court did not err in failing to instruct the jury to disregard it. See

id.

       We overrule issue three.

                VIOLATION OF EVIDENTIARY AGREEMENT

       In issue four, appellant contends that he was denied due process based on

prosecutorial misconduct because the trial court allowed the State to introduce his

statement in violation of an alleged evidentiary agreement not to do so.

Applicable Law and Standard of Review

       The Texas Court of Criminal Appeals has reversed cases for improper

prosecutorial conduct when (1) the defendant objected to the prosecutor’s

misconduct, (2) the prosecutor’s actions deliberately violated an express court order,

and (3) the prosecutor’s misconduct was so blatant as to border on being

contumacious. Stahl v. State, 749 S.W.2d 826, 831 (Tex. Crim. App. 1988); Haddad

v. State, 860 S.W.2d 947, 954 (Tex. App.—Dallas 1993, pet. ref’d). We examine

each claim of prosecutorial misconduct on a case-by-case basis. Stahl, 749 S.W.2d

at 830; Haddad, 860 S.W.2d at 953. A trial court’s rulings on the conduct of counsel

during trial will be reversed only if an abuse of discretion or resulting injury is

shown. Williams v. State, 220 S.W.2d 663, 664 (Tex. Crim. App. 1949) (op. on

reh’g).




                                            14
Analysis

      Before trial, the State notified appellant, in writing, that it intended to

introduce his statement into evidence. During the jury trial, the following exchange

took place between the trial court and the prosecutor:

      [Trial Court]: For the record, it is my understanding the State does not
      intend to offer the defendant’s statement at this time. Am I correct?

      [Prosecutor]: That’s correct, Your Honor.

      Later in the trial, the State decided that it wished to offer appellant’s statement,

and appellant’s counsel objected, stating,

      I believe it amounts to prosecutorial misconduct would be my
      objection. You can’t advise the Court you’re not going to use a piece of
      evidence in front of defense counsel and cause them to present a
      defense that ultimately, if you turn around and use—allow them use
      that piece of evidence, discredits the attorney, then that’s problematic
      for the defense.

      The trial court overruled appellant’s objection, stating,

      I’m not going to find that the prosecutors have engaged in any kind of
      prosecutorial misconduct. As I think we know in every case, as things
      begin, witnesses testify, both defense lawyers and prosecutors change
      their strategies. I don’t—so based on, I guess, what is—you doing an
      incredible job as the defense lawyer in this matter has changed—has
      caused the State to change courses in midstream. All right.

      As seen from the discussion above, there was no agreement between appellant

and the State that the State would not seek to admit appellant’s statement. At best,

there was a representation from the State to the trial judge, in defense counsel’s

presence, that it did not intend to offer appellant’s statement “at this time.” That the
                                           15
State later decided to admit the defendant’s statement does not render its earlier

representation—that it didn’t seek admission “at this time”—untrue. There being no

misrepresentation by the State, there is no prosecutorial misconduct, and the trial

court did not abuse its discretion by permitting the State to introduce the statement.

      We overrule issue four.

                                  CONCLUSION

      We affirm the trial court’s judgment.



                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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