                                  NUMBERS
                                13-10-00417-CR
                                13-10-00418-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

DAVID ALLEN OWEN,                                                      Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 82nd District Court
                         of Falls County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Benavides
               Memorandum Opinion by Justice Garza
      David Allen Owen, appellant, was convicted of two counts of burglary of a

building, a state jail felony. See TEX. PENAL CODE ANN. § 30.02(a)(3), (c)(1) (West

2003). Finding two enhancement paragraphs to be true, the trial court set punishment

at twenty years‘ imprisonment and a $10,000 fine for each count, with the prison
sentences to run concurrently. See id. § 12.42(a)(2) (West Supp. 2010) (providing

generally that, if it is shown on the trial of a state jail felony that the defendant previously

was finally convicted of two felonies, the defendant shall be punished for a second-

degree felony); see also id. § 12.33 (West Supp. 2010) (setting forth range of

punishment for second-degree felony). On appeal, Owen contends that: (1) the trial

court erred in failing to grant his motion to exclude evidence; (2) his trial counsel was

ineffective ―in failing to adopt or otherwise file‖ a motion to exclude in one of the cause

numbers; and (3) the instructions in the jury charge were erroneous, causing him

egregious harm. We affirm.

                                          I. BACKGROUND

       Owen was charged with burglarizing the offices of the Tri-County Special Utility

District (―TCSUD‖) in Marlin, Falls County, Texas. The burglaries, charged in separate

indictments, were alleged to have occurred on December 13, 2009,1 and January 6,

2010.2 Prior to trial, the trial court granted the State‘s motion to consolidate the cause

numbers.

       At trial, it was established that the December 13 burglary occurred at around 1:00

a.m. When police arrived at the scene, the building was unoccupied, but a large piece

of glass from the front door of the building was found lying on the floor.               Using

fingerprinting techniques, police discovered an unidentified shoeprint on the piece of

glass. Police determined that the burglar had gained entry to the building by breaking

out the building‘s front door. No other evidence was found, and no arrests were made

at that time.

       1
           Trial court cause number 8814; appellate cause number 13-10-00418-CR.
       2
           Trial court cause number 8813; appellate cause number 13-10-00417-CR.

                                                  2
        The second burglary occurred around midnight on January 6.         Deputy Louis

Lourcey of the Falls County Sheriff‘s Department was dispatched to the scene. While

en route to the TCSUD office building, Deputy Lourcey noticed a single truck parked in

the parking lot of the Marlin High School football stadium, which is located about one

third of a mile away from the TCSUD building. Initially, Deputy Lourcey did not see

anyone in the truck, so he proceeded to the office building. However, Deputy Lourcey

returned to the truck a few minutes later and observed Owen ―reclined‖ inside the

vehicle. Deputy Lourcey questioned Owen and noticed that Owen smelled of alcohol,

had slurred speech, and appeared to be wet from the waist down. Upon determining

that Owen met the description of a man caught on video at a separate burglary that

occurred roughly two weeks earlier at a Dairy Queen in Marlin, Deputy Lourcey arrested

Owen.

        Falls County Sheriff Ben Kirk was the first police officer to arrive at the TCSUD

office building.   Sheriff Kirk located a footprint in the mud toward the back of the

building.   The footprint matched a shoe that Owen was wearing.         Sheriff Kirk and

Deputy Lourcey then employed a tracking dog that followed Owen‘s scent from the

crime scene to the truck in which Owen was found. The officers searched the truck and

found ―several screw drivers, pairs of gloves, a flashlight, and what appeared to be the

key to the vehicle.‖

        Subsequently, police compared Owen‘s shoes with the shoe print found on the

piece of glass recovered after the December 13 burglary. The shoe print on the glass

matched Owen‘s right shoe.

        Owen‘s neighbor, Jose Lopez, testified that Owen was ―chopping wood‖ with him



                                            3
on the night of December 13, 2009, until around 9:00 or 9:30 p.m. Owen‘s sister,

Sharon Briggs, testified that, at around 6:30 p.m. on January 6, 2010, Owen ―left [her]

house and went across the street, split wood, and loaded it up, and took it to Wallisville,‖

a town in Chambers County, nearly 200 miles away from Marlin. Briggs further testified

that Owen suffers from various health problems, including Hepatitis C, and that he

receives regular disability compensation from the federal Veterans Administration.

       Prior to trial, Owen‘s defense counsel filed a motion to exclude from evidence the

shoes Owen was wearing at the time of his arrest. The motion was filed only in trial

court cause number 8814. After a hearing, the trial court denied the motion.3

       Trial then proceeded on both burglary counts. Owen was found guilty by a jury

and was sentenced by the trial court to twenty years‘ imprisonment. Subsequently, the

trial court entered findings of fact and conclusions of law with respect to its denial of

Owen‘s motion to exclude evidence. The conclusions of law stated as follows:

       1. At the time the Defendant was detained at the football stadium parking
          lot, he was technically under arrest for burglary.

       2. Deputy Louis Lourcey effected this arrest based upon the following
          circumstances:

                 a. Defendant was located alone in his vehicle in the early morning
                    hours in close proximity to the crime scene.

                 b. Defendant was in wet clothing from the waist down on a cold
                    misty winter morning.

                 c. A burglary had been committed in close proximity to
                    Defendant[‘]s vehicle.

                 d. Defendant‘s appearance matched that of a person who was
                    caught on video tape of the Dairy Queen [b]urglary
                    approximately two weeks before this incident.

       3
           The shoes were entered into evidence at trial without any further objection by defense counsel.


                                                     4
                e. Defendant possessed no identification.

        3. The detention and arrest of Defendant was permissible under Code of
           Criminal Procedure Articles 14.03(a)(1) and 14.04 as there were
           sufficient facts and circumstances for the officer to conclude that this
           Defendant was found in a suspicious place and under circumstances
           which reasonably show that that the Defendant has been guilty of
           some felony. Further, . . . there was no time to procure the issuance of
           a warrant.

This appeal followed.4

                                           II. DISCUSSION

A.      Motion to Exclude Evidence

        By his first issue, Owen contends that the trial court erred by denying his motion

to exclude from evidence the shoes Owen was wearing at the time of his arrest.

Specifically, Owen argues that there was no probable cause to effect his arrest, and

therefore, any evidence obtained as a result of the arrest, such as the shoes, should

have been excluded. See Monge v. State, 315 S.W.3d 35, 40 (Tex. Crim. App. 2010)

(―The ‗fruit of the poisonous tree‘ doctrine generally precludes the use of evidence, both

direct and indirect, obtained following an illegal arrest.‖ (citations omitted)).

        We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.

App. 2000). We defer to the trial court‘s findings of fact that are reasonable in light of

the evidence presented. Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App.

2011). However, the trial court‘s conclusions on pure issues of law, and its decisions on

mixed questions of law and fact that do not depend on credibility determinations, are

reviewed de novo.        Id.   If the trial court‘s decision is correct on any theory of law

        4
         This appeal was transferred to this Court from the Tenth Court of Appeals under an order issued
by the Supreme Court of Texas. See TEX. GOV‘T CODE ANN. § 73.001 (West 2005).

                                                   5
applicable to the case, it will be sustained. State v. Ross, 32 S.W.3d 853, 855–56 (Tex.

Crim. App. 2000).

       Warrantless arrests are authorized only if (1) there is probable cause, and (2) the

arrest falls within one of the limited circumstances provided by statute. Lunde v. State,

736 S.W.2d 665, 666 (Tex. Crim. App. 1997) (citing Henry v. United States, 361 U.S. 98

(1959) and Self v. State, 709 S.W.2d 662 (Tex. Crim. App. 1986)).

       1.     Probable Cause

       Probable cause exists where the police have relatively trustworthy information,

considered as a whole, sufficient to warrant a reasonable person to believe a particular

person has committed or is committing an offense. Hughes v. State, 24 S.W.3d 833,

838 (Tex. Crim. App. 2000). ―Probable cause is a ‗fluid concept‘ that cannot be ‗readily,

or even usefully, reduced to a neat set of legal rules.‘‖ Baldwin v. State, 278 S.W.3d

367, 371 (Tex. Crim. App. 2009) (quoting Maryland v. Pringle, 540 U.S. 366, 370–71

(2003)).    ―Though the concept evades precise definition, it involves ‗a reasonable

ground for belief of guilt‘ that is ‗particularized with respect to the person to be searched

or seized.‘‖ Id. (quoting Pringle, 540 U.S. at 370–71).

       The facts relevant to this issue are largely undisputed. At the time of Owen‘s

arrest, Deputy Lourcey was aware of the following facts: (1) Owen was ―reclined‖ inside

a truck about one third of a mile away from the scene of the burglary; (2) the truck was

parked, alone, in a high school stadium parking lot, even though it was well after

midnight; (3) the truck appeared to be empty mere minutes before Owen was observed

in the truck; (4) Owen smelled of alcohol and had slurred speech; (5) Owen appeared to

be wet from the waist down; (6) Owen was not in possession of any identification; and



                                             6
(7) Owen met the description of a man observed at a burglary that occurred two weeks

earlier in the same town.

        Owen points to Townsley v. State, 652 S.W.2d 791, 796 (Tex. Crim. App. 1983),

in arguing that these facts are not sufficient to generate probable cause. In Townsley,

the court of criminal appeals concluded that the following information available to police

was insufficient to establish probable cause to arrest the appellant for murder:

        (1)   Cut hair on appellant‘s boots, apparently matching the cut hair on the
              deceased‘s pillow.

        (2)   Appellant‘s admission that he was at the scene of the crime with the
              deceased on [the night before the deceased‘s body was discovered].

        (3)   Discoloration on appellant‘s boots, possibly matching the [acidic]
              substance poured on the deceased‘s face.

        (4)   Appellant‘s unlikely story of his activities on the night of the murder.

        (5)   The highly personalized nature of the crime against the deceased
              coupled with appellant‘s intimate relationship with her.

        (6)   Discrepancies between the statements of appellant and his mother.

Id.5   Owen argues that ―[i]f physical evidence on the defendant‘s person, admitted

presence on the day of the murder, and stories with less than stellar credibility [are]

insufficient for probable cause, then the arrest of [Owen] fall[s] short, too.‖ We disagree.

First, we note that probable cause is a supremely fact-intensive inquiry; as Owen

acknowledges in his brief, in this context, ―two cases are seldom sufficiently alike for the

first to be an absolute binding precedent for the second.‖ W AYNE R. LAFAVE,                       ET AL.,




        5
          The court noted that probable cause had, in fact, been established later after police made two
additional discoveries: (1) ―[t]he discovery of red pubic hair on the deceased‘s body which matched
appellant‘s hair color‖; and (2) ―[t]he discovery that on the night of the offense the appellant borrowed a
chair and a pair of binoculars from the deceased‘s next-door[ ]neighbor so that he could look into the
deceased‘s mobile home.‖ Townsley v. State, 652 S.W.2d 791, 796 (Tex. Crim. App. 1983).


                                                    7
CRIMINAL PROCEDURE § 3.3(f) (3d ed. 2010) (quoting Arrington v. United States, 311

A.2d 838, 840 (D.C. 1973)). Second, Townsley is distinguishable because the arresting

officer there was not armed with information that a man meeting the appellant‘s

description had committed the same crime at a different location only two weeks earlier;

nor did the officer find appellant in a suspicious place shortly after the crime was

committed, as was the case here.6

        We conclude that the information known by Deputy Lourcey at the time of

Owen‘s arrest, viewed as a whole, was sufficient to allow a reasonable person to

believe that Owen had probably committed an offense. See Hughes, 24 S.W.3d at 838;

see also Illinois v. Gates, 462 U.S. 213, 245 (1983) (―[P]robable cause requires only a

probability or substantial chance of criminal activity, not an actual showing of such

activity.‖). Accordingly, Deputy Lourcey had probable cause to arrest Owen.

        2.      Statutory Authorization

        We must next determine whether the arrest was authorized by statute. The trial

court concluded that Owen‘s arrest was authorized under articles 14.03(a)(1) and 14.04

of the Texas Code of Criminal Procedure. The former permits warrantless arrests when

―persons [are] found in suspicious places and under circumstances which reasonably

show that such persons have been guilty of some felony . . . or are about to commit

some offense against the laws.‖ TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1) (West

Supp. 2010). The latter permits a warrantless arrest ―[w]here it is shown by satisfactory

proof to a peace officer, upon the representation of a credible person, that a felony has




        6
        Owen disputes the trial court‘s finding that the location of his arrest was a ―suspicious place.‖
We address that contention infra.

                                                   8
been committed, and that the offender is about to escape, so that there is no time to

procure a warrant . . . .‖ Id. art. 14.04 (West 2005).

       Whether a place is properly classified as ―suspicious‖ is, like the probable cause

analysis, a highly fact-specific inquiry. Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim.

App. 2003). A place may become suspicious, from a police officer‘s perspective, due to

facts and circumstances known to the officer and any reasonable inferences that can be

drawn from those facts. Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993).

A vehicle may be a suspicious place under this standard. Cornejo v. State, 917 S.W.2d

480, 483 (Tex. App.—Houston [14th Dist.] 1996, pet. ref‘d).

       Here, the facts and circumstances known by Deputy Lourcey at the time of

Owen‘s arrest, which we have already determined were sufficient to establish probable

cause, were also sufficient to establish that the truck Owen was found in was a

―suspicious place‖ under article 14.03(a)(1). In particular, the truck was a ―suspicious

place‖ because it was parked in an otherwise-vacant high school stadium parking lot in

the middle of the night in January, and because it was located in close proximity to the

scene of the burglary. With these facts in mind, along with the fact that a man meeting

Owen‘s description had recently committed a separate burglary, Deputy Lourcey could

have reasonably inferred that Owen was ―guilty of some felony‖ or was ―about to commit

some offense against the laws.‖ See TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1);

Muniz, 851 S.W.2d at 251. Finally, it is noteworthy that Deputy Lourcey apprehended

Owen only about thirty minutes after he was dispatched to the scene. See Dyer, 125

S.W.3d at 468 (―[T]he time between the crime and the apprehension of the suspect in a

suspicious place is an important factor.‖).



                                              9
        For the foregoing reasons, we find that Owen‘s arrest was authorized by code of

criminal procedure article 14.03(a)(1).7 Because the arrest was supported by probable

cause and statutory authorization, the trial court did not err in denying Owen‘s motion to

exclude evidence. We overrule Owen‘s first issue.

B.      Ineffective Assistance of Counsel

        As noted, Owen‘s trial counsel filed the motion to exclude evidence only in trial

court cause number 8814, not in trial court cause number 8813. Owen argues by his

second issue that his trial counsel was ineffective for failing to file the motion in both

cause numbers.8

        Because we have concluded that the trial court did not err in denying Owen‘s

motion in cause number 8814, Owen cannot establish an ineffective assistance claim

based on his trial counsel‘s failure to file such a motion in cause number 8813. See

Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (noting that, to establish

an ineffective assistance claim based on counsel‘s failure to move for suppression of

evidence, an appellant must show that the motion would have been granted). Owen‘s

second issue is overruled.

C.      Jury Charge Instructions

        By his third issue, Owen asserts that he ―was egregiously harmed by the trial

court‘s failure to correctly instruct the jury as to [its] responsibility to use only the

evidence concerning each cause separately and not to use evidence in one case in the


        7
           In light of this conclusion, we need not examine whether the arrest was also authorized under
article 14.04. See TEX. R. APP. P. 47.1; State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000).
        8
          Owen contends that, because the trial court entered findings of fact and conclusions of law in
both cause numbers, his motion to exclude evidence was applicable to both cause numbers, even though
it was technically filed in only one cause number. For purposes of this issue, we assume but do not
decide that the motion was applicable only to cause number 8814.

                                                  10
other.‖ Owen argues that the trial court had a duty to sua sponte include such a limiting

instruction in the jury charge.

       When analyzing a jury charge issue, our initial inquiry is whether error exists in

the charge submitted to the jury. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

2005) (en banc). If we find error, we will reverse only if Owen suffered ―egregious

harm,‖ because Owen did not propose a limiting instruction and failed to object to the

charge at trial. Id. at 743–44; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op. on reh‘g).

       In arguing that the charge was erroneous, Owen cites Gordon v. State, in which

the court of criminal appeals held:

       [W]hen an accused is prosecuted in a single criminal action for two or
       more offenses arising out of the same criminal episode, evidence properly
       admitted as proof of one offense is not ipso facto available for
       consideration by the factfinder with respect to another offense in issue,
       and may not be used by the jury as proof of an element of the other
       offense without appropriate instructions limiting consideration of such
       evidence for its proper purpose.

633 S.W.2d 872, 878 (Tex. Crim. App. 1982). Owen further suggests that, because his

cause numbers were consolidated, we must ―presume‖ that the jury used evidence

related to one charge in determining Owen‘s guilt as to the other charge.

       We disagree. Texas Rule of Evidence 105(a) states as follows:

       When evidence which is admissible as to . . . one purpose but not
       admissible as to another . . . purpose is admitted, the court, upon request,
       shall restrict the evidence to its proper scope and instruct the jury
       accordingly; but, in the absence of such request the court’s action in
       admitting such evidence without limitation shall not be a ground for
       complaint on appeal.

TEX. R. EVID. 105(a) (emphasis added). Owen has not provided this Court with any

reason to deviate from the clear dictates of rule 105(a). Moreover, though Owen relies

                                           11
principally on Gordon, the Court in that case concluded that there was no reversible

error, even though the trial court there specifically informed the jury that it may consider

all evidence presented for all purposes. 633 S.W.2d at 878. The Gordon Court found

that, even in the absence of a limiting instruction, if there is nothing in the record

suggesting that the jury failed to decide each case on its own merits, the appeals court

may not speculate to the contrary. See id.; see also Salazar v. State, 07-97-0199-CR &

07-97-0200-CR, 1998 Tex. App. LEXIS 3734, at *3–7 (Tex. App.—Amarillo June 19,

1998, no pet.) (not designated for publication). As in Gordon, there is nothing in the

record before us here indicating that the jury improperly considered evidence of one

case in arriving at a verdict on the other. We conclude that the jury charge was not

erroneous.

       We also find that Owen suffered no egregious harm. An egregious harm claim

will be sustained only if the reviewing court is convinced, after consideration of the

entire record, including the nature of the testimony and the jury argument, that the

appellant was deprived of a fair trial.    Almanza, 686 S.W.2d at 171.        After careful

consideration of the entire record before us, we find that Owen has not established that

he was deprived of a fair trial. Owen has not identified the piece or pieces of evidence

that he believes the jury may have improperly considered in finding him guilty, nor has

he identified which of his convictions allegedly resulted from the jury‘s improper

consideration of evidence. Additionally, the evidence adduced at trial was more than

sufficient for the jury to conclude that Owen was guilty of each burglary without resorting

to evidence relevant only to the other burglary. Finally, unlike in Gordon, the jury was

not told by the trial court or counsel that evidence from one case could be used to



                                            12
determine a verdict in the other. See Gordon, 633 S.W.2d at 875–76. We therefore

conclude that, even if error were to be presumed, Owen has not suffered egregious

harm due to the lack of a limiting instruction in the jury charge.

       We overrule Owen‘s third issue.

                                      III. CONCLUSION

       The judgments of the trial court are affirmed.


                                                  DORI CONTRERAS GARZA
                                                  Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
10th day of November, 2011.




                                             13
