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
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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,
      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

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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.




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                                    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).

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       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.



       2
          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.

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      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.



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




                                      /s/       J. Brett Busby
                                                Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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