      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00173-CR



                                     Sierra Williams, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
      NO. D-1-DC-09-904005, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Following a bench trial, appellant Sierra Williams was convicted of the offense

of burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(1) (West 2003). Punishment was

assessed at six years’ imprisonment. In a single point of error, Williams asserts that the district court

abused its discretion in denying her motion to suppress. We will affirm the judgment.


                                          BACKGROUND

                The district court heard evidence that on the morning of October 30, 2008,

Daphne Hodges perceived a “very loud shout” coming from outside her house. Hodges looked out

her window and observed two women “kind of walking back and forth” on the front porch of

a neighbor’s house, “looking in the windows and the door.” One of the women “shouted again,”

which, according to Hodges, prompted a man she had seen across the street to come and join the
women on the porch. Hodges recalled, “The moment that young man stepped on the front porch,

one of those young women turned and kicked [the neighbor’s] door in, and all three people went

inside the house.” Hodges then yelled for her son, Bradley, to get up and told him “something to the

effect that the neighbor’s house was being broken into, that he needed to get up and help me.”

Hodges called 911 while Bradley grabbed a shotgun and rushed outside. In court, Hodges identified

Williams as one of the women who had entered the house.

                Bradley testified that as he approached the neighbor’s house, he “saw feet running

back and forth in the house, through the front door, which was open.” He acknowledged that he had

not seen anyone break into the house and did not know who was inside. Standing at the curb of the

neighbor’s property, Bradley issued a “verbal challenge” for the people to come out of the house.

According to Bradley, the man came out of the house first, followed by the two women. In court,

Bradley identified Williams as one of the women.

                Bradley testified that the women, after exiting the house, moved to his left in

an attempt to escape, while the man slowly retreated back into the house.1 Bradley also moved to

his left, trying to “keep everybody in front of me.” The women slowly advanced on Bradley’s

position and were eventually “face to face” with him. As one of the women tried to “flank” Bradley

on his left side, Bradley “checked that with the barrel of the shotgun, into her chest, and she

stopped.” Bradley then backed away from the women, returned to his original position, and ordered

the women to stay where they were until the police arrived. According to Bradley, the women again

tried to get away from him but were apprehended by the police before they could escape.




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           The man apparently escaped and was never apprehended.

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               The first officer to arrive on the scene was Officer Lee Atchley of the Austin Police

Department. Upon his arrival, Atchley observed Bradley in the front yard of the neighbor’s

house holding a shotgun in “a ready position” but not aiming the gun at anyone. Atchley drew his

firearm and commanded Bradley to drop his weapon. Bradley complied and then directed Atchley’s

attention to the two women, accusing them of breaking into the house. Atchley arrested both of the

women. In court, Atchley identified Williams as one of the women he had apprehended.

               After the State rested its case, Williams presented an out-of-time “motion to suppress

identification of the appellant.” The district court allowed Williams to argue the motion. Williams

asserted that her identification by Hodges, Bradley, and Atchley should be suppressed because

their identification of her was the “fruit” of an illegal citizen’s arrest. According to Williams,

Bradley did not have probable cause to believe that the people in the house were committing burglary

and, therefore, did not have the authority to arrest Williams and the others. See Tex. Code Crim.

Proc. Ann. art. 14.01(a) (West 2005) (providing that citizen may arrest felony offender only

when “the offense is committed in his presence or within his view”). The district court denied the

motion to suppress.

               Williams then presented evidence in her defense, including the testimony of

Jolanda Armstrong, another neighbor, who was driving in her car when she witnessed the

confrontation between Bradley and the women. Armstrong described what she saw as “a tall, white

bald-headed male dragging a black girl with a gun.” When asked to describe what Bradley was

doing with the gun, Armstrong recalled, “He was dragging her down, pointing the gun. If she tried

to walk away or whatever, he would drag her. She did eventually get across the street . . . . At that



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point [the other woman] showed up (indicating) coming from the front of the house, and he dragged

her . . . . Each time he would drag and then she was trying to get away, he would aim the gun.”

Armstrong testified that Bradley was aiming the gun “[a]t each person. Whichever one he was

holding is the person he would aim the gun at.” According to Armstrong, Bradley ordered the

women to “[g]et down, you are not going anywhere.” Armstrong called the police and reported the

incident. Officer Atchley arrived shortly thereafter.

                After considering the evidence, the district court found Williams guilty of committing

the offense of burglary of a habitation. Williams then pleaded true to an enhancement count in

the indictment alleging that she had previously been convicted of the offenses of possession and

delivery of a controlled substance. After hearing evidence on punishment, the district court

sentenced Williams to six years’ imprisonment. This appeal followed.


                                             ANALYSIS

                In her sole issue on appeal, Williams asserts that the district court abused its

discretion in denying her motion to suppress her identification by witnesses Hodges, Bradley,

and Atchley. “A trial court’s ruling on a motion to suppress, like any ruling on the admission of

evidence, is subject to review on appeal for abuse of discretion.” Amador v. State, 275 S.W.3d 872,

878 (Tex. Crim. App. 2009) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).

“‘In other words, the trial court’s ruling will be upheld if it is reasonably supported by the record and

is correct under any theory of law applicable to the case.’” Id. (quoting Ramos v. State, 245 S.W.3d

410, 417-18 (Tex. Crim. App. 2008)). “In reviewing a trial court’s ruling on a motion to suppress,




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appellate courts must view all of the evidence in the light most favorable to the trial court’s ruling.”

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

                We are to “afford almost total deference to a trial court’s determination of the

historical facts that the record supports especially when the trial court’s fact findings are based on

an evaluation of credibility and demeanor.” State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App.

2000) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We are to “afford the

same amount of deference to trial courts’ rulings on ‘application of law to fact questions,’ also

known as ‘mixed questions of law and fact,’ if the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor.” Id. We review de novo “mixed questions of law and fact”

not falling within that category. Id.

                On this record, we cannot conclude that the district court abused its discretion

in denying Williams’s motion to suppress. It has long been the rule in Texas that a defendant’s

face cannot be a suppressible fruit of an illegal arrest. See Pichon v. State, 683 S.W.2d 422, 426

(Tex. Crim. App. 1984) (citing United States v. Crews, 445 U.S. 463, 477-79 (1980) (White, J.,

concurring)); Henderson v. State, 82 S.W.3d 750, 754 (Tex. App.—Corpus Christi 2002, pet. ref’d);

Blondett v. State, 921 S.W.2d 469, 473 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d); see also

Thornton v. State, 145 S.W.3d 228, 234 (Tex. Crim. App. 2004) (discussing different concurring

opinions in Crews and observing that majority of justices rejected claim that “a defendant’s face

can be a suppressible fruit of an illegal arrest”). In other words, a witness’s identification of the

defendant will not be suppressed simply because the arrest that enabled the identification was illegal.

See Crews, 445 U.S. at 478 (White, J., concurring) (“A holding that a defendant’s face can be



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considered evidence suppressible for no reason other than that the defendant’s presence in the

courtroom is the fruit of an illegal arrest would be tantamount to holding that an illegal arrest

effectively insulates one from conviction for any crime where an in-court identification is

essential.”). Here, the only evidence that Williams sought to suppress was her identification by the

witnesses. Therefore, even assuming the citizen’s arrest was illegal, the district court would not have

abused its discretion in denying the motion to suppress. See Whithurst v. State, 690 S.W.2d 110, 111

(Tex. App.—Houston [14th Dist.] 1985, no pet.) (“Even if the appellant were under unlawful arrest

at the time the witness identified him, the illegal arrest could not have tainted the witness’s in-court

identification.”).2

                Additionally, we cannot conclude on this record that the citizen’s arrest was unlawful.

In the case of a felony, a citizen has probable cause to arrest an offender when the offense

is committed in his presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(a). This

requires the citizen to “observe enough of the situation to establish probable cause that a crime is

being committed.” McGuire v. State, 847 S.W.2d 684, 686 (Tex. App.—Houston [1st Dist.] 1993,

no pet.). Here, Bradley testified that his mother—who directly observed the break-in—informed

him that the house had been broken into, and, when he approached the house, he saw “feet running

back and forth in the house, through the front door, which was open.” Bradley further testified

that, although he could not identify who was inside the house, he “could tell it wasn’t Sara,” the wife




        2
         In her motion to suppress, Williams challenged her identification by the witnesses both in
court and “at the scene.” However, there is no basis in the record for distinguishing between the in-
court and out-of-court identifications, nor does Williams provide any argument or authority for why
they should be treated differently.

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of the homeowner. Also, Paul Mason, the homeowner, testified that the burglars had damaged the

front door and that this damage was visible from outside the house. The district court could

have reasonably inferred that Bradley had observed this damage to the door when he approached the

house and concluded that the house was being burglarized. Viewing this evidence in the light most

favorable to the ruling, we cannot conclude that the district court abused its discretion in finding

that Bradley had probable cause to believe that a burglary was being committed. See Marion

v. State, 642 S.W.2d 55, 58 (Tex. App.—El Paso 1982, pet. ref’d); see also Carmona v. State,

No. 03-02-00201-CR, 2003 Tex. App. LEXIS 4900, at *7-8 (Tex. App.—Austin June 12, 2003,

pet. ref’d) (mem. op.) (finding that citizens had probable cause to believe burglary was being

committed when they were informed by apartment manager of burglary and they observed individual

that they did not recognize leaving apartment).

                Moreover, the district court heard evidence that Hodges saw Williams enter the

property before her son took any action. Thus, the district court would not have abused its discretion

in finding that the events which enabled Hodges to identify Williams occurred before and were

independent of the alleged illegal arrest. Additionally, Williams was identified in court by another

neighbor, Raymond Roberts, who testified that he had observed Williams and her companions

walking around the neighborhood shortly before the alleged burglary, “going door to door.”

Williams did not challenge this identification. Accordingly, the identification of Williams by

Bradley and Atchley, even if erroneously admitted, was merely cumulative of other properly

admitted evidence and thus harmless. See Mack v. State, 928 S.W.2d 219, 225 (Tex. App.—Austin

1996, pet. ref’d).



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              We overrule Williams’s sole issue on appeal.


                                       CONCLUSION

              We affirm the judgment of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: February 12, 2010

Do Not Publish




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