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                   COURT    OF
                                  IN    THE

                                 CRIMINAL         APPEALS
                                                                             ORIGINAL
                                 OF    TEXAS




                                                                              RECEIVED IfM
                      HOWARD      MARTIN        HARRIS                      COURT OF CRIMINAL APPEALS
                             Petitioner
                                                                                  DEC 112015
                                      v-



                       THE   STATE         OF   TEXAS                       Abe! Acosta, Clerk
                             Respondent



 Petition is in Appeal from Cause Numbers 12CR1863 and 14CR0154
    in the 212th District Court of Galveston County/                        Texas*
Honorable Bret Griffin, Judqe Presiding/ and Nos. 14-14-00391-CR
  and 14-14-00392-CR in the Court of Appeals for the Fourteenth
                 District    of   Texas         at    Houston


                                                                                   FILED IN
                                                                      COURT OF CRIMINAL APPEALS
                                                                                  CEC H2Q15
               PETITION    FOR   DISCRETIONARY           REVIEW

                                                                            Abel Acosta, Clerk




                                                Howard Martin Harris              #1940422

                                                Petitioner      Pro   se

                                                Huntsville      Walls      Unit

                                                815    12th     Street

                                                Huntsville,      Texas 77348




                    ORAL   ARGUMENT REQUESTED
                              TABLE OF CONTENTS



 Table of Contents                                                      i


 List    of   Parties                                                  11




 Table of Authorities                                                 iii


 Statement Regarding Oral Argument                                     iv


 Statement of the Case                                          • .. . iv



Statement of Procedural History                                         1


Grounds       for Review


        Part A. The Fourteenth Court of Appeals   (COA) erred
                  when it found the trial court did not err in
                  denying Harris' motion to suppress .                  1

        Burden of proof                                                 2

        Conclusion                                                      4

        Part B. The COA failed to consider the totality of the
                circumstances surrounding Harris' warrantless
                arrest, resulting in a misapplication of law  . .       1

        Discussion                                                      5

        List of Facts                                       5,6,10,11

        Arguments and Authorities                                       7

        Summary of Argument                                            13


Prayer                                                                ,13


Certificate of Service                                            .    14



Sworn Declaration                                                      14



Appendix                                                              End


                                      i
                            LIST   OF   PARTIES


Petitioner:                                  Howard       Martin    Harris    #1940422

                                             Huntsville       Unit

                                             815     12th     Street

                                             Huntsville,          Texas 77348



Petitioner's Trial Attorney:                 Stacy Valdez
                                             711 W. Bay Area Blvd., Ste 600
                                             Houston,       Texas 77598



Petitioner's Appellate Attorney:             Joel    H.    Bennett

                                             1100 Nasa Parkway,            Ste 302
                                             Houston,       Texas 77058



Presiding Judge,   Trial:                    Honorable Bret          Griffin

                                                              &

Presiding Judge, Suppression:                Honorable David          E.   Garner

                                             212    District       Court   Galveston

                                             Justice      Center     600   59th St.

                                             Galveston,       Texas 77551



Attorney for State, Trial:                   Candice       Freeman

                                             Paul    Love

                                                              &

Attorney for State, Appeal:                  Rebecca       Klaren

                                             Galveston County Criminal
                                             District Attorney's Office
                                             600    59th Street,       Ste.    1001

                                             Galveston,       Texas 77551




                                        li
                             LIST    OF   AUTHORITIES


Mores v.    State,   816 S.W.2d 407 (Tex. Crim. App. 1991)           3, 10

Caramouche v.    State,    10 S.W.3d 323(Tex.Crim.App.2000)       .... 10

Evitts v. Lucey,     105 S.-Ct.     830    (1985)                          4

Ford v. State,    158 S.-W.3d 488 (Tex. Crim. App. 2005)                   1

Gutierrez v. State,       221 S.W.3d 680(Tex.Crim.App.2007)       ....     7

Hardinson v. State,       597 S.W.2d 355(Tex.Crim.App.1980)       .... 12

Hicks v.Oklahoma,     100 S. Ct.     2227    (1980)                        4

Honeycutt v. State,       499 S.W.2d 662(Tex.Crim.App.1973)       ....     7

Jeffley v. State,38 S.W.3d'847(Tex.App.Houston[14 Dist.]2001)              3

Kennedy v. State,     338 S.W.3d (Tex.App.-Austin 2011)                    5

Missouri v. McNeeley,       133 S. Ct. 1552         (2013)                12

Pennywell v. State,       125 S.W.3d 473(Tex.Crim.App.2003)       ....     5

Pennywell v. State, 127 S.W.3d 149(Tex.App.Hou[14, Dist.]2001.             3

Polk v. State,    738 S.W.2d .274(Tex.Crim.App.1987)                       4

Randolph v. State, 152 S.W.3d 764 (Tex. Crim. App. 2004) . . . .'        8,9
Smith v. State,      739 S.W.2d 848(Tex.Crim.App.1987)                   7,8

Vitek V.Jones,    100 S. Ct.   1254       (1980)                           4

Welsh v. Wisconsin,       104 S. Ct.      2091   (1984)                  3,9

       ,              CONSTITUTIONS,        STATUTES,     RULES

U.S.   Constitution Amendment Four                                       8,9

U.S.   Constitution Amendment Fourteen.,                                   4

Tex.CodeCrim.Proc.art.       38.23(a)                                    3,4

Tex.CodeCrim.Proc.art. 14.03(a)(2)                                       7;8

Tex.RulesApp.Proc.      44.2(a)                                            5

Tex.RulesApp.Proc. 47.1                                                    5

Tex.RulesApp.Proc. 66.3                                                  1,2


                                       in
                               REASONS      SUPPORTING             ORAL    ARGUMENT


        Petitioner              lacks       the        acquired          knowledge      and   experience

necessary           to        fully       explain        and        convey the particulars of his

argument           within          the     confines           of     the     written Petition.      There

are     relevant              points       of fact and counter-point issues that need

to     be     argued           and       considered           in order to determine the intent

and     proper           application             of     law.        Petitioner asserts that there

is     more        at     stake          here     than deciding whether or not to uphold

a lower courts decision.                        The relevant issue here is the interpre

tation        of        law     vs.      the intent of law,                which is a    crucial   factor

and can only be adequately addressed through live oral arguments.

Petitioner              request          that     oral        argument be granted and that the

Honorable Court re-instate Petitioner's court appointed appellate

counsel,           Joel       H.     Bennett,         Sears &       Bennett,    LLP,    Houston,   Texas,

to represent the interest of Petitioner in oral arguments.

                                         STATEMENT OF              THE   CASE


        Petitioner              was       charged        in two indictments with aggravated

sexual        assault           (with       no enhancement) and aggravated kidnapping

with one enhancement. Petitioner initially pled not guilty to the

allegations             and        a trial by jury began on March 17, 2014. During

the     presentation                of    evidence, Petitioner changed his plea from

"not     guilty"          to         "guilty"         and was sentenced pursuant to a plea

agreement.          The        trial       court        pronounced sentence at twenty (20)
years in the Institutional Division of Texas Department of Crimi
nal Justice and no fine in both cases,run concurrent in accordance

with        the    plea        agreement.             Judgment was entered March 19, 2014.

A     motion       for new trial was overruled on May 16, 2014. An appeal

was granted and is the subject of this PDR.


                                                         iv
                                      PROCEDURAL          HISTORY


        Petitioner           appealed        to the 14th District Court of Appeals,

Cause Nos. 14-14-00391-CR and 14-14-00392-CR, raising the follow

ing issues on appeal:

        "The     Trial        Court        Erred     In    Denying Appellant's Motion To

Suppress        His        Statements.        His       statements was obtained after an

illegal        warrantless           arrest.        The    trial     court erred in finding

there     was        probable cause of future bodily injury. Additionally,

the State wholly failed to show that getting a warrant was impra

cticable."           The     court     of    appeals           affirmed   the trial   court's

decision        on     August        25,    2015. A motion for rehearing was filed

asserting:           "The     original       opinion of the court of appeals omits

the    key      and        undisputed fact which proves that the complaintant

was    not      in     danger        of further bodily injury at the time of the

warrantless           arrest."       The     court        of    appeals   denied the motion

for rehearing September 10,                  2015. This PDR ensues.

                                      GROUNDS       FOR   REVIEW


I.    The Fourteenth Court of Appeals (COA) erred when it found the
      trial court did not err in denying Harris's motion to supress.

      A. The  COA  improperly shifted the burden of proof to Harris
         to prove the validity of his warrantless arrest.

      B. The  COA failed to consider the totality of circumstances
         surrounding  Harris'   warrantless arrest resulting  in a
         misapplication of law.

                                      REASONS       FOR    REVIEW


1. The COA appears to have misconstrued Tex.CodeCrim.Pro.art -14.03
   (a)(2),  thereby deciding   an important question of State and
      Federal        law which has not been,               but should be,     settled by the
      Court of Criminal Appeals.                                           T.R.A.P. 66.3(b).

2. The Decision in this case.conflicts with decisions rendered by
   Court  of Criminal Appeals and the Supreme Court of the United
   States..                                     T.R.A.P. 66.3(c).

                                                    1
3.   The decision          below has declared                  that   the warrantless         arrest   of
     persons in the privacy                   of their homes is not a constitutional
     issue to be decided.                                                        T.R.A.P.      66.3(d).

4.   The     decision      in      this    case    so    far    deviates      from    the   fair   admin
     istration of   justice,  or  has sanctioned such departure by
     a  lower  court, that the Court of Criminal Appeals correction
     is required.                                 T.R.A.p. 66.3(f).

A.     THE     COA       IMPROPERLY          SHIFTED           THE    BURDEN    OF    PROOF   TO   HARRIS

       TO    PROVE   THE       VALIDITY      OF    HIS    WARRENTLESS         ARREST.


     This      ground is premised on the COA impermissibly shifting the

burden of proof upon Harris to prove his warrantless arrest in his

home        violated       his constitutional rights. The COA foreclosed the

important constitutional implications of Harris'                                     illegal, warran

tless arrest in his home,                    articulating the following reasons:

             "We    do     not      address       whether      the    arrest    occurred      in   a
            constitutionally protected area because appellant has
            not  argued, either in the trial court or this court,
            that the arrest was illegal for that reason."
                                         [Memorandum Opinion (mem op) pg 6 n-2]

     Harris        should not have been required to argue the facts here.

Facts       are     established,             not argued. And under the facts of this

case,       not     in     dispute,          as     articulated          by the COA, Harris was

arrested without               a   warrant    in    his      home:

             "Keele'       testified...             He and [Cooley]. .. hand cuffed
             appellant... in his home... had not obtained an.arrest
             warrant prior to placing   appellant under arrest."
                                                                                [mem op pg 3]

     Thus,    the        COA       decision       in this case         conflicts      with decisions

rendered post,            by the Court of Criminal Appeals in Ford v State;

and the Supreme Court of the United States in Welsh v Wisconsin:

                                            BURDEN      OF   PROOF


     Ford v State, 158 S.W.3d 488, 492 (Tex-Crim.App. 2005)

            "To     suppress             evidence       on     an     alleged     Fourth Amendment
            violation,             the     defendant         bears      the     initial       burden   of
            proving   evidence     that  rebuts  the presumption of proper
            police   conduct.    A   defendant  satisfies  this  burden by
            establishing    that    a search or seizure occurred without a
            warrant.   Once   the    defendant  has made this showing, the
             burden        of        proof shifts.to the State where it is required
             to establish              that     the     search . or    seizure was conducted
             pursuant to a warrant or was reasonable." (emphasis added)

      Welsh v Wisconsin,                  104 S.Ct-     2091,   2098 (1984)

             "When        an officer undertakes to act as                his own magistrate,
             he ought to be                in a position to justify it by pointing to
             some        real        immediate and serious consequences if he post
             poned        action          to get a warrant." Citing Mc. Donald v U.S.
             551    (1948) (emphasis added)

      Here,        the     State bore the burden of establishing the validity

and     reasonableness                of      Harris'     4th Amendment encroachment. The

trial court was entrusted with the responsibility of finding facts

and     making           conclusions           of     law. This also entails establishing

facts "subject to a more detached, neutral scrutiny of a judge who

must evaluate the reasonableness of a particular search or seizure

in light of the particular circumstances." Ford,supra at 493 n.16.
      The        proper Standard of Review the COA should have applied was

the     'totality of the circumstances, known to the officer, at the

time        of     the arrest', test. See Amores v State, 816 S.W.2d 407,

413-415(Tex.Crim.App.1991)-                         Additionally,       the   COA   decision is

inconsistent with other sister courts decisions on the same issue.

C.f. Pennywell v State, 127 S.W.3d 149 (Tex.App.-Houston[IstDist]
2001.)(When              the     pertinent facts are undisputed, appellate court

reviews          the      trial       court's         resolution      of a motion to suppress

evidence de novo,[as a legal ruling]-)(emphasis supplied).

      Harris        filed        a    4th     Amend.      Const, claim asserting that his

warrantless              arrest       was      illegal,     further he sought to suppress

evidence           obtained          as     fruit     of that illegal warrantless arrest

under Tex.CodeCrim.Proc.art. 38.23(a). See [mem op pg 5].

   Harris           has        a due process protected liberty interest right in

C.C.P.art.             38.23,        that no evidence seized in violation of Texas

law or the U.S.                Constitution shall be admitted at a trial against
 him.       Rulings on a motion to suppress lies within the sound discr

 etion        of    the        trial    court.           However,      because    C.C.P.art.    38.23

 requirements             are     mandatory,             i.e.,     "[no]      evidence...    obtained

 illegally          [shall]          be admitted-..," a judge has no discretion in

 ruling on exclusion of that evidence- Jeffley v State, 38                                     S.W.3d

847,        858     (Tex.App.-Houston[14thDist]                       2001,     pet-    ref'd); Polk

v State, 738 S.W.2d 274,                     276 (Tex.Crim.App.1987).

      The     U.S. Supreme Court has repeatedly held that State statutes

may      create          liberty interest that are entitled to the procedural

protections              of    the Due Process Clause of the 14th Amend.                       Once a

State grants a right dependant on the observance of State laws or

the Constitution, due process protections                                  attach to the decision

to      follow       that       right        of     exclusion,        to insure that the State-

created           right       is not arbitrarily abrogated. C.f. Vitek v Jones,

100 S-Ct-          1254,      1261   (1980):        Hicks v Oklahoma, .100 S.Ct- 2227, 2229

(1980): Evitts v Lucey,                  105 S.Ct. 830, 839 (1985).

                                                  CONCLUSION


      The     facts of Harris's arrest are undisputed, he was arrested,

in     his        home,       without        a     warrant-      Harris     asserted a    4th Amend.

claim        in     the COA requesting the Court to reverse and remand his

plea        agreement obtained through the erroneous denial of a motion

suppress           the     fruits       of        that        arrest under mandatory state law

C.C.P.art.          38.23(a).

      The     State        wholly,      failed           to    shoulder       it's burden to prove

Harris' arrest [was not in his home], or that ^exigent                                 circumstances

existed to justify the warrantless arrest [in his home]. Therefore ,

under Pennywell v State,                 post,           the    COA   was     required to address

the     issue       of        Harris1    warrantless              arrest in the important 4th

Amendment Constitutional context which applies:
      On Petition for Discretionary Review the Pennywell Court held:

             "that  the  Court of Appeals was required to address issue
             that  defendant raised in his brief..- because this ground
             was 'necessary to the final disposition of the appeal1 the
             Court of Appeals was required to address it," (Citing Tex.
             RulesApp.Proc- 47 .1 ). Pennywell v State, 125 S.W.3d 473 (T.C.A.2003)

      Harris        has     yet to receive a full and fair hearing on his 4th

amend, suppression claim, which admitted illegally seized evidence.

      This     error        contributed         to the State's leverage in obtaining

his        guilty plea and thus,           his conviction.     See Tex-RulesApp.Proc-

44.2(a): Kennedy vState, 338 S.W.3d 81, 102-03(Tex.App.Austin2011) .

B.    THE    COA    FAILED TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES SURROUNDING

      HARRIS' WARRANTLESS ARREST,         RESULTING IN A MISAPPLICATION OF LAW.

                                           DISCUSSION


      In     part   'B'     of this ground,        Harris will show how the Court of

Appeals        in     reaching         their    decision    afforded   great weight to

certain        isolated         facts and,       wholly ignored other relevant facts

that        contravene         the     existence      of   probable cause. Harris will

further show how this procrustean method of review is a departure

from        established         procedure        resulting in an erroneous decision,

even absent that found in part "A" above.

      The COA opinion provides the necessary framework for                    detailed

discussion concerning the issue presented here. As in part "A"

the        relevant       facts aren't in dispute. With the exception of one

highly        relevant         fact,     all facts necessary to the resolution of

this        portion       of    Harris'        argument    shall cite to the facts, as

relied       on,      and      recorded        by the COA in it's Memorandum Opinion

affirming this case.

                                                FACTS


      The    facts        are separated into two different groups. The first

group       are     the facts relied on by the trial court and the COA in
                                                  5
reaching       their    respective          decisions. The second group of facts

contravene       those decisions.           All   facts    are numbered   for    conveini^-

ence during further discussion and arguments.

   *vThe     trial court made findings of fact that the deputies were

concerned for further violence to the complainant due to:

   1) the nature of the assault and the injuries she suffered;

   2) appellant's           alleged        use of a weapon in the assault and to
       threaten the complainant;

   3) appellant's           relationship with             the complainant and his act
       of  following  the  complainant  to  her truck, which would
       allow him to locate+he complainant in the future; and

  4) defendant's departure from his apartment shortly after the
     complainant  fled,  which  supported a reasonable inference
     that he was looking for the complainant."[mem op pg 7].

                                   CONTRAVENING      FACTS


  5) Although,          the       complainant      alleged,        and appeared to have
       been     assaulted,          she was   within      the immediate       confines   and
       protections of the Dickinson Police Department.[mem op pg 2]

  6) Detective Balchunas   was  in possession of facts which, he
     believed, supported probable cause to arrest Harris. He was
       inside  the police station where a warrant could be secured
       in a reasonably efficient manner and he instructed Cooley to
       secure the   scene while he decided whether to get a search
       warrant. (Reporter's Record Vol. 3 pg 41).

  7) Upon arriving   at  Harris'  home,  Cooley and Keele placed
     Harris in cuffs, where Harris was completely compliant with
       the officer's request to search for evidence of a crime.
                                                                         [mem op pg 3].

  8) At the conclusion of a fruitless search,                        even though Cooley
       and Keel       found   not    one   scintilla of      evidence    to    substantiate
       the     complainant's          allegations,         the     officers remained in
       Haris' home,         [mem op pg 3]-

  9) Clearly,   at    that    point  the  facts  established that the
     complainant    was safely located inside the Dickinson Police
     Department, Harris was inside his home in handcuffs, Detec
     tive  Balchunas      was   at the ready, and able to present his
     suspicions    to   a   neutral   magistrate, and Sergeant Cooley
       chose     to     contact the Assistant District Attorney for some
       guidance on how to proceed.[mem op pg 3].

 10)   Harris     did       not     consent for officers to enter his home to
       effectuate       a     warrantless         arrest,    and    the officers hadn't
       obtained an arrest warrant prior to arresting Harris.
                                                                         [mem op pg 3] .
                                     ARGUMENT     AND   AUTHORITIES


     In a hearing on a motion to suppress the State relied on Texas

Code of Criminal Procedure art.                     14.03(a)(2)      for statutory author

ization           to        arrest   Harris,      inside     his    home,   without warrant.

     The statute provides that:

            "Any peace officer may arrest     without warrant persons
            who  the peace officer has probable cause to believe, have
            committed           an   assault causing bodily injury, and the peace
           officer has cause to believe                    there    is a threat of further
            bodily injury to the victim."

      Harris           does not challenge the statute nor question the sound

ness of excepting the warrant requirement when a situation arises

where there is a legitimate need to stop further bodily injury to

any        victim. Never-the-less, the issueat bar is purely a question

of     law        concerning              the   legistative        intent, and the legal or
practicable application of the meaning of "FURTHER" as it applies

to the Fourth Amendment reasonableness requirement.

      In     the        hearing      on     the motion to suppress, the State, under

Texas law,             was shouldered with the burden of proof on two specific

points; that the arrest was authorized under Texas statutory law,

and,        that        circumstances           existed which made procuring a warrant

impracticable.

            "If  an  officer  arrest  a  suspect without a warrant, the
            arrest  must  fall within an exception listed in Chapter 14
            of     the        Texas Code of Criminal Procedure. These exceptions
            are strictly construed." Honeycutt v State, 499 S.W.2d 662,
           .665 (Tex.Crim.App.1973).

            "The warrant requirement is not lightly set aside, and
            the State shoulders the burden to prove that an exception
            to the warrant applies." Gutierrez v State, 221 S.W.3d 680,
            685    (Tex.Crim-App.2007).

            "It        is    axiomatic in this State that warrantless arrest may
            occur only in the most limited of circumstances, and the
            power to make a warrantless arrest is governed by statutes
            as     well as case            law on the subject--- Furthermore,         it has
            long        been the law of this State, that in order for a warr
            antless  arrest to be justified, the State must show the
            existence of   circumstances which made the procuring of a
           warrant impracticable." Smith v State,                    739 S.W.2d 848,         851-
           852 (Tex.Crim.App.1«|87)

     The trial court            made explicit findings of fact, which included

finding          that,    "At     this hearing officers Cooley, Hunt and Keele

each       testified       that    they     believed      that there was a.threat of

future harm to the complainant." [mem op pg 4]

      Additionally,         the    trial court ruled that Harris'                warrantless

arrest       was     legal and denied the motion to suppress articulating

the following reason:

           "The  thing  that  is  persuasive to the court is;that there
           was  a threat. Your're going to end up in a ditch, words to
           the effect [sic], if you go to the police or whatever- Well,
           she's at the police... And              I believe that the police could
           and   should   take    into    consideration       the    future   threat    to   the
           victim."      [mem op pg 4] (emphasis added).

      Clearly,     the    trial     court appears to have enacted and the COA

has     sanctioned,        a     new, per se exception to the general warrant

requirement         premised       on     a mere allegation of,"future danger to

the     victim." However, Texas legislative intent in passing C.C.P.

art. 14.03(a)(2) remains sparse and                     there       is   no   definition of

"further         bodily    injury". Therefore, it is left for the Court of

Criminal Appeals to interpret.

      The COA uses an overbroad interpretation of facts which satisfy

the    Fourth Amendment            definition of exigent circumstances". And,

in    so    doing makes an erroneous conclusion of law. The COA in 41 '1,Ss

Memorandum Opinion affirming this case,                       states the following:

           "Appellant      contends        that    it    is     also settled law that a
           warrantless     arrest       violates   the Fourth        Amendment   when    there
           is no showing that seeking a warrant would have been impra
           cticable.      The     risk of future harm to the victim,               however,
           is  itself  a  circumstance  that  legitimizes an otherwise
           illegal warrantless arrest. Randolph v State, 152 S.W.3d -
           764, 771-73 (Tex.App.Dallas 2004 no pet.) (Concluding exig
           ent circumstances include risk of danger to victim.)"
                                                        [mem op pg 6].

     The circumstances surrounding the arrest in                         'Randolph' are,       -
factually        and critically,               distinguishable from the circumstances

which     existed           at'    the       time     of arrest in the present case. The

C OvA     takes        the conclusion of Randolph out of context,                        and mis

applies     it        to     Harris'         case without giving consideration to the

unique circumstances surrounding his arrest.

      When viewing 'Randolph'                   in     context the COA misapplication of

law becomes apparent- See                     'Randolph', Id at 771,

         "Exigent   circumstances  embrace  situations in which real,
         immediate, and serious consequences will certainly occur if
         a   police  officer  postpones  action  to obtain a warrant.
         Welsh, 466 U.S. at 751, 104 S.Ct. 2091- Exigent circumstan
         ces   affecting  the  validity of a•warrantless entry into a
         residence resulting in an arrest include the following:(1)
         a risk of danger to the police or victim,... Officer Quillin
         had 'a need to act quickly' under the Facts presented in or-n
         der to   prevent  appellant from engaging in further violent
         attacks upon his pregnant wife."(Id at 773).

      It is clear           that       the     officer in 'Randolph' was faced with a

situation        where,           a real and immediate, danger of FURTHER bodily

injury     to     the        victim existed. Thusly, the COA conclusion, that

the holding in •'Randolph' supports                           a    finding     that   the risk of

"FUTURE"        harm        to     the       victim     is,       in itself, an impracticable

circumstance           that        legitimizes an other-wise illegal warrantless

arrest,    is    in    error.

      The COA applies the erroneous conclusion of law to the present

case in an effort to justify Harris' warrantless arrest under the

Fourth     Amendment.              Thusly,       the COAs' determination that Harris'

arrest     was        legal        under       the     Fourth Amendment is predicated on

a misapplication of law.

      Because,        the        COA   relied         on their "Future harm" conclusion,

the     Court did not deem it necessary to give consideration to the

relevant        facts       and        circumstances,             which,     the   record clearly

supports.        This is an even further misapplication of law, regard-
less        of       whether   the     "Future          harm"       conclusion is found       to be

correct or in error. To determine whether a particular warrantless

arrest is legal or not, the Court of Appeals must look to all the

facts       known         to the officer at the time of arrest, and apply the

totality of the circumstances test- Amores,, supra 413-15.

      The        simple    fact      that        a    statutory exception to the warrant

requirement exist, does not automatically mean that the exception

applies in every case. The statute does not overrule the Constit

utional          requirements         of     the       necessity of a warrant. It merely

defines          a     particular set of facts, that meet the requirement of

"impracticality" to obtain a warrant.                           In Caramouche v State,10 S.

W.3d 323(Tex.Crim.App.2000),                          this    Court     of     Criminal     Appeals

quoted the language of the United States Supreme Court,

        "The essence of all                that has been written              is that the total
        ity       of    the    circumstances             -    the     whole picture - must be
        taken        intoaccount."         Id.   at    328.

      The     trial       court   based it's determination on facts 1 thru 4,

founds in            the list of facts located at the beginning of part "B"

of     this       ground.      The record supports that the State established

these facts.           However,   in the process of establishing these facts,

the     State         established      other           clearly relevant facts.            See facts

5 thru 10 in that same list. With the exception of fact #6 all the

facts       are       cited    from    the           COAs'    opinion,       and are here cross-

referenced to the record from the suppression hearing.

      #5. "Because  Deputy   Hunt and his partner could not be at the
          police station with the complainant and at the crime scene,
        "Sergeant •Cooleyv.went oto Harris' apartment."
                                      (Reporter's Record Vol. 3 p. 35)

      #6. (Reporter's Record Vol. 3 p. 41)

      #7. (Reporter's Record Vol. 3 p. 42-43, 45)

     #8. (Reporter's Record Vol.                      3 p. 57-58)
     #9. (Reporter's Record Vol. 3 p. 51)

                                                 10
      #10.       (Reporter's Record Vol.               3 p. 45, 5)

      The        only    persons           to testify in the suppression hearing were

Galveston County Sheriff's Deputies. All the facts were establisi-

hed,        by     the       State,        through the testimony of the officers.                   The

trial court made the following finding of fact:

             "Testifying Deputies   of  the Galveston County Sheriff's
             Department were credible." (Findings of Fact And Conclusion
             of Law # 23)

      Since,      the officers             themselves       testified to these       facts,    we    can

draw        an    undeniable           conclusion          that   these   facts   were   within     the

collective             knowledge           of the officers at the time of arrest-                   And

under the law must be considered in a fact-intensive,                                    totality of

the    circumstances            review.


      The COA adopted the trial court's exclusionary method of review

of     the       facts.        In     it's Memorandum Opinion the Court of Appeals

provides its Analysis,                     [mem op pg 5-7]. At no point in its Analy

sis     does          the COA afford any weight or give consideration to the

contravening.;               facts     established          by the officers. Facts clearly

within       the officers'             knowledge at the time of arrest. Therefore,

the     only          conclusion           which     can    be drawn is,      that the Court of

Appeals          has failed to consider the totality of-frhe circumstances.

Failure          to     apply        the     totality       of the circumstances test is a

departure             from    the      established method of review required under

Texas       law, and a misapplication of law. Any determination predi

cated upon this misapplication of law is in error.

            In the hearing on the motion to suppress the State failed,

under       the       circumstances            surrounding         Harris'    arrest to produce

sufficient            facts         conclusive to prove impracticality to obtain^a

warrant.          The    record        of      the     hearing is completely void of any

testimony or other evidence specific to the issue of practicality

                                                     11
to     obtain      a    warrant-     The relevant facts show that opportunity

existed      for       the    officers      to     seek a warrant without creating a

situation        which       would   have        placed   the complainant at risk of

further    assaults.


          "A  police  officer should always obtain an arrest warrant
          whenever possible." Hardison v State, 597 S.W.2d 355, 357-
          (Tex.Crim.App.[Panel Op.] 1980).

      Yet, the State does not establish any facts to show why one of

the officers located inside the police station with the complaint-

ant could have attempted to obtain a warrant.

      Additionally       the     State   does       not   produce   any testimony or

other evidence concerning how long it would thave taken to obtain

an     arrest     warrant-        The time necessary to obtain a warrant is a

relevant factor in the determination of the impracticality to do

so.



           "Technological  developments  that  enable police officers
           to  secure  warrants more quickly, and do so without under
           mining  the  neutral magistrate's essential role as a check
  . p.;."• on  police  discretion,  is  relevant  to the assessment of
         exigency." Missouri v McNeely, 133 S.Ct. 1552,                  1562-63(2013)

There     are     too     many     unknown fact to show it was impractical to

get a warrant.

      However,    the State succeeds in establishing sufficient contra

vening     facts        which     mitigate       the   officers'    probable cause to

believe a danger of further bodily injury to the complaint existed.

The     officers        testified that they were inside the police station

with the complainant, and that additional officers were dispatched

to Harris'       residence.      Where   the officers secured the crime scene

and' placed        Harris        in cuffs. At the time of Harris'         arrest, all

the    officers        knew beyond any doubt that the complainant was not

in    danger of further assaults. With the officers possessing such

knowledge        the    warrantless      arrest does not properly comply with

                                            12
the statute,         and is not        justified by law.

                                      SUMMARY    OF   ARGUMENT


      The relevant facts established by the State are not in dispute-

In this case there is no fact which requires a credibility determ

ination-        Nor,        does     the     entire     lack of evidence regarding the

practicality           to     a     warrant require a credibility determination.

The State failed to produce sufficient facts to support a probable

cause        finding        that there was a danger of further bodily injury.

Additionally,          The        State wholly failed to produce any evidence on

why     it was impracticable to obtain a warrant for Harris'                      arrest.

The     14th District Court of Appeals draws erroneous conclusion_of

law     and     applies it          to the present case in an attempt to satisfy

the State's burden to prove the impracticality to obtain a warrant -

Independant of whether or not the Court of Appeals'                        conclusion_of

law was proper,             the Court of Appeals fails to consider the total

ity     of     the circumstances in determining the legality of Harris'

warrantless arrest. Such is the departure of a warrantless arrest,

and is a misapplication of law. Any determination reached through

this misapplication of law is in error.

      For     the    foregoing         reasons        the Fourteenth District Court of

Appeals' decision should be reviewed and reversed. Harris'                         state

ment,        resulting        from     the illegal warrantless arrest, should be

suppressed          and      this    case      remanded back to the trial court for

further proceedings consistent with the findings of this court.

                                               PRAYER


      PETITIONER       RESPECTFULLY PRAYS,             that   the   Honorable   Court   of

Criminal Appeals, having found just cause, will grant this Petit

ion     for     Discretionary              Review,    and award Petitioner the relief
requested -

                                                13
                                       CERTIFICATE     OF    SERVICE


      I hereby certify that a true and correct copy of the foregoing

instrument          has     been mailed by first class mail,                   postage prepaid

to the Attorney for the State, and the                            Galveston County District

Attorney on the date listed below-


                                                H
Executed      on    this    the             1           day of ^DeCCm heX                >2015

                                                             H/rLi/ttAa /^/jL
                                                                            / L/Lnj^dJ
                                                             Petitioner pro se.



                                         SWORN    DECLARATION


      I, Howard Harris,            TDCJ No.       1940422,      being presently incarcerated

in    the     Huntsville           Walls        Unit    in Walker County County, Texas,

verify       and     declare           under penalty of perjury that the foregoing

statements         are    true    and    correct.


                                            -rk
Executed      on    this    the         1              day    o£ Decemb                  ,2015




                                                              jL fW^
                                                             Petitioner pro se
                                                                                ASULud



Howard      Harris       TDGJ    No-    1940422

Huntsville         Walls    Unit

815    ,12th Street

Huntsville,        Texas 77348




                                                  14
            APPENDIX




          HOWARD MARTIN HARRIS

                 Petitioner


                     v-



           THE   STATE    OF TEXAS

                 Respondent




Memorandum Opinion filed August 25, 2015




                 FROM     THE


      FOURTEENTH   COURT    OF   APPEALS
Affirmed and Memorandum Opinion filed August 25,2015.




                                       In The


                      Fourteenth Court of Appeals

                               NO. 14-14-00391-CR
                               NO. 14-14-00392-CR




                   HOWARD MARTIN HARRIS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 212th District Court
                          Galveston County, Texas
                 Trial Court Cause Nos. 14CR0154 &12CR1863


                 MEMORANDUM                      OPINION



      Appellant Howard Martin Harris appeals his convictions for aggravated
sexual assault and aggravated kidnapping, challenging the trial court's order
denying his motion to suppress a videotaped statement used by the State at his trial.
Appellant claims that the statement was obtained as a result of an illegal
warrantless arrest and thus should have been suppressed. See Reed v. State, 809
 S.W.2d 940, 944 (Tex. App.—Dallas 1991, no pet.) (stating that the use of
evidence obtained through an illegal arrest is forbidden). We hold the trial court
did not err in denying the motion to suppress because the warrantless arrest of
appellant was not illegal given the officer's belief that an assault had occurred and
genuine concern for the complainant's safety. See McClatchy v. State, 758 S.W.2d
328, 330 (Tex. App.—Houston [14th Dist.] 1988, pet. ref d). We therefore affirm
the judgments of the trial court.

                                    Background


         According to testimony at the evidentiary hearing on appellant's motion to
suppress, the complainant went to clean appellant's home on the night of July 11,
2012. When the complainant arrived, appellant threw her on the bed and began
striking her repeatedly with his belt and fists. Appellant cut off* the complainant's
bra with a hunting knife. Appellant then pulled off the complainant's pants and
forced her to spread her legs. Appellant threatened her and stated that the police
would find her in a ditch if she did not comply. Appellant then penetrated the
complainant's vagina with his fingers, causing her extreme pain.

         Eventually, appellant set the hunting knife down and the complainant picked
it up.    Wielding the knife, the complainant successfully escaped the house and
made her way to her truck that was parked outside. Appellant followed her outside
and stated that if she did not give him his knife back, he would come through the
truck window. The complainant threw down the knife and drove directly to a
nearby police station.

         When she arrived, the complainant spoke with Deputies Hunt and
Ostermayer of the Galveston County Sheriff's Office. The deputies observed that
the complainant was distraught and had marks all over her body that she claimed
were the result of appellant's beatings. The complainant told Hunt what happened
                                          2
 to her and stated that her friend, appellant, was responsible for her injuries. Hunt
 communicated this information to his supervisor, Sergeant Brent Cooley. At this
point, both Hunt and Cooley believed that they had probable cause to arrest
appellant for assault.

       Cooley and Corporal Keele, another officer on duty, travelled to appellant's
home and knocked on his door. Cooley testified that he called Corporal Keele to
assist him in the interest of officer safety based on the complainant's allegation that
appellant had used a weapon in assaulting her. Appellant answered the door, and
Cooley and Keele explained why they were there.              Keele testified that he
handcuffed appellant for investigative detention.       He and Cooley then asked
appellant if they could speak in his home because it was hot and there were
mosquitoes outside. Appellant allowed the officers inside.

      Keele read appellant his Miranda rights.1 Cooley then asked if appellant
would be willing to speak with them regarding the allegations made against him by
the complainant. Appellant affirmed that he understood his rights and then gave
oral consent to speak with the officers and written consent for the officers to search
his home and vehicle for the hunting knife described by the complainant. The
officers were unable to locate the hunting knife the complainant alleged appellant
had used in the assault.

      At the conclusion of the search, Cooley called the assistant district attorney
on duty for guidance on the case.          The assistant district attorney confirmed
Cooley's suspicions that probable cause existed to arrest appellant for assault
causing bodily injury.     The officers then arrested appellant for assault causing
bodily injury. The officers had not obtained an arrest warrant prior to placing
appellant under arrest. The officers brought appellant back to the sheriff's station,

       Miranda v. Arizona, 384 U.S. 436 (1966).

                                            3
where Detective Balchunas interviewed him. The entire interview was videotaped.

       Appellant filed a pre-trial motion to suppress his statement to Detective
Balchunas, alleging it was the fruit of an illegal arrest. At this hearing, Cooley,
Hunt, and Keele each testified that they believed that there was a threat of future
harm to the complainant. The trial court ruled that appellant's warrantless arrest
was legal and denied the motion to suppress the statement.              The trial court
articulated the following reason:

      The thing that is persuasive to the court is that there was a threat.
      You're going to end up in the ditch, words to the effect [sic], if you go
      to the police, or whatever. Well, she's at the police. There was a knife
      used. How she got away, whether she had a knife to use to get away
      is —there some testimony of that, but there is physical damage on the
      victim. There is [sic] pictures of a bra that has been raggedly severed,
      and I believe that the police could and should take into consideration
      the future threat to the victim.

The trial court later signed findings of fact and conclusions of law.

      Appellant pled not guilty and went to trial on both charges. Appellant's
video statement was played for the jury during the trial. After the video was
played, appellant decided to accept a plea agreement.        He pled guilty to both
aggravated sexual assault and aggravated kidnapping and pled true to a deadly
weapon enhancement to the latter charge.         The trial court accepted the plea,
admonished appellant, and sentenced him to twenty years' imprisonment on each
count with the sentences to run concurrently in accordance with the plea
agreement.

      Appellant filed motions for new trial in both cases, which the trial court
denied. These appeals followed.
                                     Analysis

       In a single issue in each appeal, appellant contends the trial court abused its
discretion when it denied his motion to suppress because his video statement was
obtained through an illegal warrantless arrest. See Tex. Code Crim. Proc. Ann. art.
38.23(a) (West 2015).

I.    Standard of review and applicable law

      We review the trial court's ruling on a motion to suppress under a bifurcated
standard. Douds v. State, 434 S.W.3d 842, 846 (Tex. App.—Houston [14th Dist.]
2014, pet. granted) (en banc). We afford almost total deference to the trial court's
determinations of historical facts that the record supports, especially those based
on an evaluation of credibility and demeanor. State v. Elias, 339 S.W.3d 667, 673
(Tex. Crim. App. 2011). We afford the same amount of deference to the trial
court's rulings on mixed questions of law and fact when the resolution of those
ultimate questions turns on evaluations of credibility and demeanor.       Id. When
those rulings do not turn on credibility and demeanor evaluations, we review them
de novo. Id.    We will uphold the trial court's ruling if it is correct under any
theory of law applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005).

II.   The trial court did not err in denying appellant's motion to suppress.

      A.    A danger of further bodily injury authorizes a warrantless arrest.

      [A]ll arrests and searches without valid warrants are unreasonable
      unless shown to be within one of the exceptions to the rule that an
      arrest or a search must rest upon a valid warrant. A valid exception
      must exist and the burden is on the State to show that a warrantless
      arrest or search comes within some exception to the above general
      rule of exclusion.

Wilson v. State, 621 S.W.2d 799, 803-04 (Tex. Crim. App. [Panel Op.] 1981).
         Such an exception exists in this case.             In Texas, warrantless arrests are
 authorized in limited situations primarily set out in the Code of Criminal
 Procedure. See Tex. Code Crim. Proc. Ann. arts. 14.01-14.03 (West 2015); Swain
 v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005). Article 14.03(a)(2)
 provides that a police officer may arrest a person without a warrant if the officer
 has probable cause to believe: that the person committed an assault resulting in
 bodily injury, and that there is danger of further bodily injury to the victim. Tex.
 Code Crim. Proc. Ann. art. 14.03(a)(2).

        Appellant contends that it is also settled law that a warrantless arrest violates
the Fourth Amendment when there is no showing that seeking a warrant would
have been impracticable. The risk of future harm to the victim, however, is itself
an impracticable circumstance that legitimizes an otherwise-illegal warrantless
arrest. Randolph v. State, 152 S.W.3d 764, 771-73 (Tex. App.—Dallas 2004, no
pet.) (concluding exigent circumstances include risk of danger to victim).2
        In sum, under the Fourth Amendment and Texas law, a warrantless arrest is
not illegal when the arresting officers have probable cause to believe that an assault
causing bodily injury occurred and that there is a danger of further bodily injury. It
is uncontested that the arresting deputies had probable cause to believe that
appellant had committed an assault causing bodily injury.                          Thus, whether
appellant's arrest was illegal (and his resulting statement should be suppressed)
hinges on whether the arresting officers had probable cause at the time of the arrest
to believe that there was a danger of further bodily injury to the victim.



          We do not address whether the arrest occurred in a constitutionally protected area
because appellant has not argued, either in the trial court or this court, that the arrest was illegal
for that reason. In any event, there is some evidence that appellant was handcuffed for officer
safety and that appellant consented to the deputies entering his home before he was arrested.
          B.    The record supports the trial court's findings and its conclusion
                that the officers had probable cause to believe there was a danger
                of further bodily injury.

          The trial court made findings of fact that the deputies were concerned for
further violence to the complainant due to: the nature of the assault and the injuries
she suffered; appellant's alleged use of a weapon in the assault and to threaten the
complainant; appellant's relationship with the complainant and his act of following
the complainant to her truck, which could allow him to locate the complainant in
the future; and defendant's departure from the apartment shortly after the
complainant fled, which supported a reasonable inference that he was looking for
the complainant. Based on these facts, the trial court concluded that the deputies
had probable cause to believe that there was a danger of further bodily injury to the
complainant.

      The trial court's factual findings are supported by the evidence from the
hearing on appellant's motion to suppress, which is summarized in the background
section above. In addition, the record reflects that Cooley, Hunt, and Keele each
testified that they had strong concerns about a threat of future harm to the
complainant. We conclude that, when viewed under the appropriate standard of
review, the evidence from the suppression hearing supports the trial court's
conclusion that the deputies had probable cause to believe that there was a danger
of further bodily injury to the complainant. See McClatchy, 758 S.W.2d at 330
(concluding that although suspect was no longer in same location as victim,
officers had sufficient facts on which to base belief that suspect might return to
harm victim). We therefore hold that the trial court did not err when it denied
appellant's motion to suppress, and we overrule appellant's single issue in each
appeal.
                                  Conclusion

      Having overruled appellant's issues on appeal, we affirm the trial court's
judgments.




                                      /s/   J. Brett Busby
                                            Justice




Panel consists of ChiefJustice Frost and Justices Jamison and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
