Affirmed and Opinion Filed April 17, 2015




                                           S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                        No. 05-14-00941-CR

                                ROLANDO GUZMAN, Appellant
                                            V.
                                THE STATE OF TEXAS, Appellee

                        On Appeal from the 401st Judicial District Court
                                     Collin County, Texas
                            Trial Court Cause No. 401-80883-2013

                               MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Whitehill
                                     Opinion by Justice Francis
          A jury convicted Rolando Guzman of possession of four grams or more but less than 200

grams of cocaine and assessed punishment at eight years in prison. In two issues, appellant

argues the trial court erred by failing to suppress evidence of the cocaine and by denying his

request for a jury instruction under article 38.23 of the Texas Code of Criminal Procedure. We

affirm.

          McKinney police officers responded to a call of an assault in progress in the parking lot

of a Waffle House. The caller indicated a male was hitting a female in a black Chevrolet truck.

At trial, Sgt. John Woodruff testified that when he arrived at the scene, he saw a black pickup

occupied by appellant and a woman. Appellant was leaning over towards the female, who was

wearing only a bra and pants, but no shirt. Woodruff had appellant get out of the truck and
placed him in handcuffs while he assessed the situation. The woman looked like she had been

crying and was “visibly upset.” Woodruff noticed a small red mark on her neck. After talking to

the woman, he then talked to people inside the Waffle House and, based on what he saw and the

conversations he had, decided to arrest appellant for assault family violence. A second officer

patted down appellant and found a shopping bag wadded up in his pocket. Before Woodruff

could testify about what was found in the bag, appellant objected to lack of probable cause for

the arrest. At that point, a hearing was conducted outside the jury’s presence.

       During this hearing, Woodruff testified the woman told him she and appellant had been

in an “altercation” but denied it was physical. She explained the altercation was over money

appellant had given her for clothes, so she ripped her shirt off and gave it to appellant. After

speaking to the woman, Woodruff went into the Waffle House and spoke to a waitress and a

couple of other people, who said they saw appellant hit the woman and hold her up against the

door. The waitress, Mary Pierce, said she saw the incident when she stepped outside to smoke a

cigarette. Pierce told Woodruff appellant was holding the woman up against the interior of the

truck and the woman appeared to be trying to get out. Pierce saw an “arm swinging” but did not

say whose arm.

       Woodruff believed the red mark on the woman’s neck was consistent with being held up

against the door and assumed it was made by a finger or hand. He said the mark was about

three-quarters of an inch in length and was “obviously fresh,” but it was not visible enough to be

picked up by a camera. Woodruff said the woman gave a nonsensical explanation for the mark

on her neck. In addition to the red mark, Woodruff also noticed she was missing an earring.

       At the conclusion of Woodruff’s testimony, the trial court asked appellant’s counsel why

he believed there was no probable cause for arrest. Counsel replied that for a Class C assault

arrest, there needed to be facts to show that offensive or provocative contact occurred. He

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argued there were no “specific articulable facts that [the woman] found the contact was offensive

or provocative.” He also challenged Pierce’s credibility, questioning how she could have seen

what she reported given that it was nighttime. Woodruff then testified that the parking lot was

well lit and during his investigation, he could see inside the truck from both inside and outside

the restaurant. The trial court ruled the officer had probable cause to arrest and overruled

appellant’s objection. Thereafter, the jury returned to the courtroom, and the State adduced

evidence that the bag found in appellant’s pocket contained thirteen small Ziploc jewelry bags of

cocaine, weighing 4.38 grams. The jury also heard much of the same evidence that was adduced

in the hearing.

       In his first issue, appellant asserts the trial court reversibly erred in failing to suppress

evidence of the cocaine. He asserts the officer did not have probable cause to arrest him and thus

the search of his person and the seizure of the cocaine were illegal.

       In Texas, a police officer may arrest an individual without a warrant only if probable

cause exists with respect to the individual in question and the arrest falls within one of the

exceptions set out in the code of criminal procedure. See Torres v. State, 182 S.W.3d 899, 901

(Tex. Crim. App. 2005); see also TEX. CODE CRIM. PROC. ANN. art.14.01–.04 (West 2005 &

Supp. 2014). A peace officer may arrest someone without a warrant under article 14.03(a)(4) if

he has probable cause to believe that person committed “an offense involving family violence[.]”

TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(4). Probable cause for a warrantless arrest exists

when facts and circumstances within the officer’s knowledge and about which he or she has

reasonable trustworthy information are sufficient to warrant a person of reasonable caution to

believe that an offense was or is being committed. Torres, 182 S.W.3d at 901. As relevant here,

an assault occurs when a person intentionally or knowingly causes physical contact with another

when the person knows or should reasonably believe that the other will regard the contact as

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offensive or provocative. TEX. PENAL CODE ANN. § 22.01(a)(3) (West Supp. 2014). The offense

is a Class C misdemeanor. Id. § 22.01(c)

          Appellant argues he was arrested for family violence assault, but the record does not

show a “family” relationship as defined in chapter 71 of the Texas Family Code. He contends

that without evidence the woman and appellant were married, were family members, or were

dating each other, the facts fail to establish probable cause. He also asserts the State failed to

show that he was not acting defensively to protect himself.1 The State counters that appellant has

not preserved this issue for review because his complaints on appeal do not comport with his

objection below. We agree with the State.

          To preserve a complaint for review, the record must show that a specific and timely

complaint was made to the trial judge and the trial judge ruled on the complaint. Lovill v. State,

319 S.W.3d 687, 691 (Tex. Crim. App. 2009); see TEX. R. APP. P. 33.1(a). The complaining

party must have informed the trial judge what was wanted and why the party was entitled to it.

Lovill, 319 S.W.3d at 691. 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 an opportunity to

rule on it; and (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). A complaint is not preserved if

the legal basis of the complaint raised on appeal varies from the complaint made at trial. Lovill,

319 S.W.3d at 692.

          Here, appellant complains there was no probable cause for his arrest because the officer

failed to establish a “family” relationship between appellant and the woman or that he was not

acting defensively to protect himself. In the trial court, appellant argued the evidence did not

     1
       Under chapter 71 of the family code, “dating violence” excludes defensive measures to protect oneself. TEX. FAM. CODE ANN. § 71.0021
(West 2014).




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show offensive or provocative contact. Because appellant’s complaint at trial does not comport

with his complaints on appeal, we conclude he has presented nothing for review. We overrule

the first issue.

        In his second issue, appellant asserts the trial court erred in failing to instruct the jury

under article 38.23 of the code of criminal procedure concerning the officer’s probable cause to

arrest him.

        Article 38.23 prohibits the admission of illegally-obtained evidence and requires that, in

any case where a fact issue is raised about whether evidence was obtained in violation of the

Constitution or laws, “the jury shall be instructed that if it believes, or has a reasonable doubt,

that the evidence was obtained in violation of the provisions of this Article, then and in such

event, the jury shall disregard any such evidence so obtained.” TEX. CODE CRIM. PROC. ANN. art.

38.23(a) (West 2005).

        To be entitled to such an instruction, the defendant must show that (1) an issue of

historical fact was raised in front of the jury; (2) the fact was contested by affirmative evidence

at trial; and (3) the fact is material to the constitutional or statutory violation that the defendant

has identified as rendering the particular evidence as inadmissible. Robinson v. State, 377

S.W.3d 712, 719 (Tex. Crim. App. 2012). The evidence must raise a factual dispute about how

the evidence was obtained. Id. Where the issue raised by the evidence at trial does not involve

controverted historical facts, but only the proper application of the law to undisputed facts, that

issue is properly left to the determination of the trial court. Id.

        Here, appellant has not identified any disputed historical fact for the jury to determine;

rather, he generally refers us to “all the explanations about the inadequacy of the facts adduced

by the arresting officer before arresting [him] for family violence that are stated in [his first

issue].” But, whether the particular facts were adequate to give rise to probable cause is a legal

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determination for the trial court, not the jury. See id. We conclude appellant has not shown he

was entitled to an article 38.23 instruction. We overrule the second issue.

       We affirm the trial court’s judgment.




Do Not Publish
TEX. R. APP. P. 47.2(b)                              /Molly Francis/
140941F.U05                                          MOLLY FRANCIS
                                                     JUSTICE




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ROLANDO GUZMAN, Appellant                              On Appeal from the 401st Judicial District
                                                       Court, Collin County, Texas
No. 05-14-00941-CR         V.                          Trial Court Cause No. 401-80883-2013.
                                                       Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                           Justices Lang-Miers and Whitehill
                                                       participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of April, 2015.




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