
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-99-00673-CR



Noah Daniel Montemayor, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF HARRIS COUNTY, 185TH JUDICIAL DISTRICT

NO. 711,212, HONORABLE ROBERT N. BURDETTE, JUDGE PRESIDING






	A jury found Noah Daniel Montemayor guilty of murdering more than one person in
the same criminal transaction and convicted him of capital murder.  See Tex. Penal Code Ann.
§ 19.03(a)(7)(A) (West 1994).  The jury found that there were sufficient mitigating circumstances
to warrant punishment of life imprisonment rather than death.  See Tex. Code Crim. Proc. Ann. art.
37.071, § 2(e)(i) (West Supp. 2001).  The trial court sentenced appellant to life imprisonment.  See
id. § 2(g).  On appeal, appellant asserts that the evidence is insufficient to support the jury's verdict,
and that the trial court erred in admitting unlawfully obtained evidence, in receiving a coerced
verdict, and in removing appointed trial counsel.  We will affirm the judgment.
	The grand jury charged that appellant did "unlawfully during the same criminal
transaction, intentionally and knowingly cause the death of Edimburgo Martinez by shooting
Edimburgo Martinez with a firearm, and intentionally and knowingly cause the death of Jose Vitela
by shooting Jose Vitela with a firearm."
Sufficiency of the Evidence

	The fifth issue appellant presents is "[w]hether the evidence presented was legally
and factually insufficient to support the jury's verdict." (1)  Appellant summarized his argument as
follows:

	The evidence was legally and factually insufficient to support the jury's verdict.  The
established record fails to show that the State proved that the Appellant killed two
persons, in light of the Appellant's showing of self-defense against one of the
victims.  The State's case is full of holes and material evidence is missing so that the
jury should not have found the Appellant guilty of capital murder beyond a
reasonable doubt.


Appellant concedes that he is guilty of murdering Vitela.  However, he argues that there was
substantial evidence that he shot Edimburgo Martinez in self-defense and was therefore not guilty
of capital murder as charged.
		In reviewing the legal sufficiency of the evidence, "the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt."  Jackson v.
Virginia, 443 U.S. 307, 319 (1979); accord Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App.
1995); Geesa v. State, 820 S.W.2d 154, 167 (Tex. Crim. App. 1991).
		The standard of review to use in resolving the specific issue argued by appellant was
stated in Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991), as follows:
	In resolving the sufficiency of the evidence issue, we look not to whether the State
presented evidence which refuted appellant's self-defense testimony, but rather we
determine whether after viewing all the evidence in the light most favorable to the
prosecution, any rational trier of fact would have found the essential elements of
murder beyond a reasonable doubt and also would have found against appellant on
the self-defense issue beyond a reasonable doubt.


Id. at 914.
		Defensive evidence that is consistent with the physical evidence at the scene of the
alleged offense will not render the State's evidence insufficient because the credibility determination
of such evidence is solely within the jury's province and the jury is free to accept or reject the
defensive evidence.  Id.  A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory.  Id.; Jenkins v. State, 740 S.W.2d 435, 438 (Tex. Crim. App. 1983).
		We will review the evidence to determine its sufficiency as it relates to appellant's
complaint.  Edwardo Martinez and appellant were the only eyewitnesses to testify about the shooting
of Vitela and Edimburgo Martinez.  Edwardo Martinez and Edimburgo Martinez were not related.
Vitela and Edimburgo Martinez, known as "Fausto," were shot by appellant during an aborted drug
transaction.  In the same criminal transaction, appellant shot and seriously wounded Edwardo
Martinez, known as Eddie, another participant in the aborted drug deal.  Outside the apartment where
appellant shot the victims, appellant, as he was escaping, shot and severely wounded Houston Police
Officer Juan Ybarbo.  Ybarbo, who lived in the complex, was returning to his apartment; he was not
on duty and was not wearing his uniform.
		We will summarize Eddie's testimony.  Eddie had been granted immunity from
prosecution.  He testified that he had brokered between five and eight drug deals between appellant
and Fausto, each for 250 grams of cocaine.  On December 21, 1995, Eddie was supposed to arrange
for a deal between appellant and Fausto; according to Eddie, appellant wanted to purchase two
kilograms of cocaine.  Appellant came to Eddie's house about noon, but Eddie had not arranged the
deal because he did not want to broker such a large deal in his house.  Appellant became angry with
Eddie.  Eddie then arranged for the deal to take place later that evening in Fausto's apartment in a
different part of Houston.  Eddie claimed he did not want to participate in such a large deal;
therefore, he would not accept his usual commission.  Appellant, who did not know where Fausto
lived, offered Eddie $500 to drive him to Fausto's apartment.  Eddie intended to give the $500 to his
friend Vitela whose car they used.  According to Eddie, he was going to take appellant to Fausto's
apartment and drop him off; appellant was going to call a taxi when he was ready to leave.  Eddie,
driving Vitela's car and accompanied by Vitela, took appellant to the apartment complex where
Fausto lived.  When they arrived, Vitela needed to use the restroom, so all three men entered
Fausto's apartment.  Vitela, who had recently suffered a stroke and was in poor health, went to the
restroom.  Appellant and Fausto went into the kitchen where appellant inspected the cocaine
exhibited by Fausto.  Fausto asked appellant for the purchase money, some $30,000.  Appellant
asked to use the restroom before he showed Fausto the money.  Eddie and Vitela were preparing to
leave the apartment when Eddie heard Fausto say in Spanish, "Oh, my God what is this?"  Eddie
looked up and saw appellant pointing a gun right at him; appellant aimed the gun and fired it at
Eddie.  The projectile entered Eddie's jaw and exited behind his ear.  Eddie heard three more shots,
and felt Fausto fall over him.  Eddie "played dead"; he felt appellant remove the car keys from his
pocket.  When Eddie heard the appellant leave the apartment, he got up to dial 911.  Eddie heard
appellant tell someone outside the apartment that somebody had shot his friend.  Then Eddie heard
a number of rapidly fired shots just outside the apartment door.  Eddie saw Vitela, who had been shot
in the head, laying face up on the floor.  Fausto and Vitela died as a result of their gunshot wounds. 
		In his brief, appellant summarized his trial testimony.  Appellant was 22 years old on
December 21, 1995.  He met Eddie when he was about 18 after he dropped out of high school. 
Eddie had appellant deliver drugs to a specified location and then paid appellant.  Appellant
continued working for Eddie until he was charged and convicted for assault.  Appellant received
deferred adjudication probation and went to boot camp for ninety days.
		After appellant successfully completed boot camp, he told Eddie that he wanted out
of the drug-dealing business.  Soon after, appellant was shot.  Later, appellant learned that Eddie did
the shooting.  After the shooting, Eddie "advised" appellant to go back to work with him and to not
cross him because he had "connections."
		Appellant was working at Computer City during the period shortly before December
21, 1995.  During that period, Eddie made repeated telephone calls to appellant's parents' house. 
Appellant avoided the calls but eventually spoke with Eddie.
		Appellant admitted that he purchased a gun several days before the December 1995
shootings.  Appellant spoke with Eddie and they agreed to do another deal; as usual, appellant would
deliver a package to a man and the man would in turn give appellant money.  On the day of the
shooting, Eddie picked up appellant at appellant's house.  Eddie showed up with Vitela, who
appellant did not then know.  Appellant took his pistol and a black backpack.  During the drive to
Fausto's apartment, Eddie and Vitela spoke Spanish to each other; appellant did not understand
Spanish.
		Eddie drove to Fausto's apartment.  Appellant had never before been to the apartment. 
Eddie made a phone call from a nearby pay phone to alert Fausto of their pending arrival.  All three
men went to the apartment.  Once they were inside, Fausto left to go get cocaine.  Fausto was gone
long enough that appellant went into the restroom.  Fausto returned with two kilos of cocaine in a
duffle bag.  Each kilo was wrapped in white tape.  Fausto used a kitchen knife to cut into one of the
packages.  Fausto and Eddie spoke Spanish as they looked at the package.  Eddie and Fausto began
talking angrily when Eddie pulled out a chrome revolver.  Eddie pointed the weapon at Fausto and
told him to give appellant the dope.  Appellant said, "This ain't right--I'm not doing this." 
Appellant then backed up when Eddie began to turn.  Appellant took his pistol from his waistband. 
Eddie then pointed the pistol at appellant.  Appellant thought about running but knew that if he
turned, he would get shot in the back.  Fausto had backed up towards appellant.
		Appellant then shot Eddie.  Fausto moved towards appellant with a knife in his hand. 
Appellant responded in self-defense by shooting Fausto.  Vitela then grabbed appellant from behind. 
Appellant reacted by immediately firing his pistol, hitting Vitela in the back of the head.
		Appellant grabbed the cocaine, put it in his backpack, took the car keys from the table
and ran.  When appellant went outside to the balcony, he ran into a man who he later learned was
Juan Ybarbo.  Appellant testified that Ybarbo did not identify himself as a police officer.  Ybarbo
shot at appellant.  Appellant closed his eyes and returned fire to empty his pistol.  When appellant
opened his eyes, he saw Ybarbo at the bottom of the stairs.  Appellant ran to Vitela's car but he could
not get in. Appellant ran and later called his father to pick him up.  Appellant went to his room,
changed clothes, and called his friend Julio.  Julio picked him up that night.  Appellant said that he
told Julio that there had been a shooting and that Eddie was involved but he did not tell Julio any
details.  Appellant stayed with Julio at Julio's girlfriend's house that night.
		The next day, Julio drove appellant back to appellant's house.  Appellant retrieved
one of the kilos from his room and put it into the trunk of Julio's Toyota.  They then waited for
appellant's cousins who arrived in a pickup.  The plan was to sell the kilo of cocaine.  However, they
were stopped and appellant was arrested shortly after they drove off.
		During the trip to the police station, Officer Shirley and his partner engaged in a
conversation with appellant and appellant answered the officers' questions.  Appellant told them that
he had been shot during an earlier incident and that he was afraid of Eddie Martinez.  Appellant told
the officers that he wanted out of the drug business but that Eddie threatened harm to appellant and
appellant's family.
		Conflicts in the testimony of Eddie and appellant were matters for the jury's
resolution.  Viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could find proof of the essential elements of the murder of Fausto beyond a reasonable doubt
and could also find against appellant on the self-defense issue beyond a reasonable doubt.  We
conclude the evidence is legally sufficient to support the jury's verdict finding appellant guilty of
capital murder.
		We now consider whether the evidence is factually sufficient to support the jury's
verdict; this includes the evidence supporting the jury's implied rejection of appellant's claim that
he acted in self-defense.  In performing a factual sufficiency review, the courts of appeals are
required to give deference to the jury's verdict and examine all of the evidence impartially, setting
aside the jury verdict "only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust."  Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (quoting
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). 

	The complete and correct standard a reviewing court must follow to conduct a Clewis
factual sufficiency review of the elements of a criminal offense asks whether a
neutral review of all the evidence, both for and against the finding, demonstrates that
the proof of guilt is so obviously weak as to undermine confidence in the jury's
determination, or the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof.


Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
		Other than appellant's testimony, there is no evidence that any of the other three men
in the apartment when the shootings occurred were armed with a firearm.  The trial court instructed
the jury completely on appellant's right to use appropriate force including deadly force to defend
himself against reasonably perceived real or apparent danger.  After neutral consideration of all of
the evidence, and after giving proper deference to the jury's verdict, including its implied rejection
of the self-defense issue, we conclude that the evidence of appellant's guilt is not so weak as to
undermine confidence in the jury's determination, or that the proof of guilt, although adequate if
taken alone, is greatly outweighed by contrary proof.  The evidence, including the evidence
supporting the jury's implied rejection of appellant's self-defense claim, is factually sufficient to
support the jury's verdict finding appellant guilty of capital murder.  We conclude the evidence is
legally and factually sufficient to support the jury's verdict.
Seizure of Evidence

		The first issue appellant presents is "[w]hether the consent to search appellant's room
by non-relative was valid?"  The State responds that the trial court did not err by denying appellant's 
motion to suppress evidence of the gun and cocaine found in appellant's room because appellant did
not have standing to complain, and because Sandra Montemayor had authority to consent to the
search of appellant's room, and that her consent was freely and voluntarily given.  Furthermore, the
State claims reversible error is not presented because appellant waived any error by testifying that
he possessed the gun and the cocaine.
		We need not determine whether appellant had standing to complain about the search
that resulted in the seizure of the gun and cocaine; neither do we need to determine whether Sandra
Montemayor had actual or apparent authority to consent to the search.  Although we believe the
record shows that the gun and cocaine were lawfully seized, even if we assume that they were not, 
we hold that the admission of this evidence was rendered harmless by appellant's own testimony. 
		When a defendant "testifies to possession of evidence which he has challenged as
being unlawfully seized, he waives the error."  Jones v. State, 843 S.W.2d 487, 493 (Tex. Crim. App.
1992); accord Creel v. State, 493 S.W.2d 814, 819 (Tex. Crim. App. 1973).  Moreover, when "the
defendant testified to 'the same facts that were proved by the State, error, if any, in admitting such
facts was harmless.'"  Jones, 843 S.W.2d at 493; accord Hill v. State, 504 S.W.2d 484, 488 (Tex.
Crim. App. 1974) (overruled on other grounds); see also Murphy v. State, 640 S.W.2d 297, 300
(Tex. Crim. App. 1982); Angelo v. State, 977 S.W.2d 169, 176 (Tex. App.--Austin 1998, pet. ref'd).




	Our rule, therefore, is that overruling an objection to evidence will not result in
reversal when other such evidence was received without objection, either before or
after the complained-of ruling.  This rule applies whether the other evidence was
introduced by the defendant or the State.  See, e.g., Rogers v. State, 853 S.W.2d 29,
35 (Tex. Crim. App. 1993); Stoker v. State, 788 S.W.2d 1, 12 (Tex. Crim. App.
1989) . . . .  The rule has never been otherwise, so far as we know.  In Wagner v.
State . . . 109 S.W. 169, 169 (1908), we said, "It is well settled in this state that the
erroneous admission of testimony is not cause for reversal, if the same fact is proven
by other testimony not objected to.  See . . . West v. State, 2 Tex. App. 460
(1877) . . . ."  


Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).  
		There are exceptions to the general rule.  "One exception is that the defendant's
testimony, which constituted other evidence of the fact that was proved over the defendant's
objection, was impelled by the State's introduction of evidence that was obtained in violation of the
law."  Id. at 718-19; accord Sweeten v. State, 693 S.W.2d 454, 458 (Tex. Crim. App. 1985); Thomas
v. State, 572 S.W.2d 507, 516 (Tex. Crim. App. 1976).  "The other exception . . . is that the harmful
effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet,
destroy, or explain it by introducing rebuttal evidence."  Leday, 983 S.W.2d at 719; accord Thomas,
572 S.W.2d at 516.
		Appellant, in his own defense in direct examination, testified about buying the gun,
how he used it in shooting four men, and about leaving it in his room.  Appellant also testified about
taking possession of the two kilograms of cocaine as he fled after the shootings and taking the
cocaine to his room.  He later removed one of the packages of cocaine from his room and it was
found in the car when he was arrested.  Even if the gun and cocaine were unlawfully obtained as
appellant alleges, in view of appellant's own testimony, admitting in evidence the gun and cocaine
was harmless.  Appellant's testimony was not impelled to meet, destroy, or explain his possession
of the gun or contraband, and appellant makes no such claim.  The record clearly shows that
appellant's testimony was to rebut Eddie's version of the shootings and to advance his self-defense
claim.  Furthermore, when all of the evidence is considered, evidence of the finding of the gun and
cocaine in appellant's room did not substantially benefit the prosecution of appellant for capital
murder.  The issue of whether there was valid consent for the search of appellant's room and the
seizure of the gun and cocaine was rendered harmless by appellant's own testimony.

Jury Deliberations

		The second issue appellant presents is "[w]hether the trial court's instruction to the
jury to continue deliberations was unduly coercive after the jury foreman declared that they were
'hopelessly deadlocked.'"

	After the cause is submitted to the jury, it may be discharged when it cannot agree
and both parties consent to its discharge; or the court may in its discretion discharge
it where it has been kept together for such time as to render it altogether improbable
that it can agree.


Tex. Code Crim. Proc. Ann. art. 36.31 (West 1981).  Here, both parties did not consent to the jury's
discharge.
		"There are no [set] time limits on the amount of time a jury may deliberate."  Guidry
v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999); accord Green v. State, 840 S.W.2d 394, 407
(Tex. Crim. App. 1992).  The length of time a jury may be held for deliberation in a criminal case
rests in the sound discretion of the trial judge, who will not be reversed on appeal absent a showing
by appellant that discretion was abused.  Guidry, 9 S.W.3d at 155; Green, 840 S.W.2d at 407;
Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989); Ford v. State, 14 S.W.3d 382, 394
(Tex. App.--Houston [14th Dist.] 2000, no pet.).
		The trial court's exercise of discretion in discharging a jury is measured by the length
of time the jury deliberated in light of the nature of the case and the evidence.  Patterson v. State,
598 S.W.2d 265, 268 (Tex. Crim. App. 1980); Satterwhite v. State, 505 S.W.2d 870, 871-72 (Tex.
Crim. App. 1974); Galvan v. State, 869 S.W.2d 526, 528 (Tex. App.--Corpus Christi 1993, pet.
ref'd).  The judge trying the case has such discretion because he knows the amount and difficulty of
the evidence, both testimonial and documentary, that a jury must weigh.  Galvan, 869 S.W.2d at 528.
		In this case, jury deliberation started at 1:15 p.m. on Thursday, July 8 and continued 
until 5:32 p.m.  On Friday, July 9, the jury resumed its deliberation at 8:45 a.m.; at 11:52 a.m. the
court received a note from the jury stating that "[a]t this time, we cannot reach a unanimous decision
on the charge."  The trial court instructed the jury to continue its deliberation.  At 4:33 p.m. that day,
the jurors informed the court that they were still unable to come to a unanimous decision.  Appellant
moved for a mistrial; he argued that to compel further deliberations would be coercive.  At 5:16 p.m.,
the jurors indicated they wanted to cease deliberating for the evening.  At that time, the total time
of deliberation had been twelve hours and forty-five minutes.  On Saturday, July 10, the jury began
deliberating at 9:10 a.m.; at 11:02 a.m., the court received a note from the jury stating:  "We honestly
believe that we are hopelessly deadlocked and that no amount of further deliberation will allow us
to come to a unanimous decision."  Defense counsel moved for a mistrial based on the jury's
inability to reach a verdict.  The trial court stated "for the purpose of the record, your motion is
granted."  The court then had the jury return to the courtroom.  Without discharging the jury, (2) and
after a colloquy in open court between the court and the jury foreperson, the court asked: "Are you
satisfied that further deliberations will not allow the jury to arrive at a unanimous decision?"  The
foreperson replied: "At this time, yes, sir."  The court ascertained that since morning the jury had
been divided by a vote of eleven to one; (3) because the foreperson had qualified his statement that the
jury could not reach a unanimous decision "at this time," the court asked the jury to continue to
deliberate.
		Defense counsel objected on grounds that the court's action was coercive and pointed
out that the air conditioning was off and that the jurors and others would be uncomfortably warm. 
After "roughly 60 to 65 minutes," the jury came back into the courtroom.  The court asked if there
had been any changes.  The foreperson said not yet but he anticipated there would be a change.  The
court asked the jury to continue deliberating.  Defense counsel reurged his motion for a mistrial.  It
was noted that the air conditioner was now working.  At 4:00 p.m., the jury notified the court that
it had reached a verdict.  Defense counsel renewed the objection that the jury had been coerced to
reach a verdict.  The jury found appellant guilty of capital murder as charged.  The court polled the
jury individually; each juror affirmed the verdict.  The court noted that the total time the jury
deliberated was eighteen hours.
		This is a capital felony case in which the State vigorously sought the death penalty
and qualified the jury to return such a verdict.  The transcription of the testimony of thirty-one
witnesses required more than 1800 pages of the record.  More than 190 exhibits were admitted in
evidence.  Jury notes submitted to the court evidenced the jury's interest in and consideration of
appellant's theory of self-defense.  After testimony commenced and before the jury was charged, the
trial had taken nine days.  The trial court did not submit an "Allen charge" to the jury.  We conclude
that the trial court did not abuse its discretion in allowing the jury to deliberate for eighteen hours. 
We hold there has been a failure to show that the jury's verdict was coerced.

Removal of Appointed Counsel

		The third issue appellant presents is "[w]hether the trial court erred in removing
appointed trial counsel over appellant's objection."

	Whenever the court determines that a defendant charged with a felony or a
misdemeanor punishable by imprisonment is indigent or that the interests of justice
require representation of a defendant in a criminal proceeding, the court shall appoint
one or more practicing attorneys to defend him.  An attorney appointed under this
subsection shall represent the defendant until charges are dismissed, the defendant
is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the
court or replaced by other counsel.


Tex. Code Crim. Proc. Ann. art. 26.04(a) (West 1989).
		Michael B. Charlton was appointed to represent appellant.  Before pretrial matters
were heard and before trial on the merits, appellant's family employed Richard Haynes to represent
appellant.  The trial court conducted a hearing and allowed appellant to choose whether he wanted
to be represented by Charlton or Haynes.  Appellant chose to be represented by Haynes.  Although
both Haynes and Charlton objected to the trial court requiring appellant to choose counsel for his
representation, the court overruled their objections, and relieved Charlton of his obligation to
represent appellant.  Appellant was represented by Haynes and Donald Rodgers.  On appeal,
appellant makes no claim that he was not well represented in the trial of his case.  The trial court did
not err in removing Charlton as counsel for appellant.

Suppression of Statements

		The fourth issue appellant presents for review is "[w]hether the trial court erred in
denying appellant's motion to suppress his oral and written statements."  We find no evidence that
appellant made a written statement.  Appellant made an oral statement that was tape recorded.  This
audiotape and a written transcript of the tape were admitted in evidence.  The tape recording was
made and authenticated in the manner required by statute.  See id. art. 38.22, § 3 (West Supp. 2001). 
Appellant contends that his statement was tainted and not admissible because it was made after his
unlawful, warrantless arrest.  Appellant urges that his arrest was without probable cause and that
there was no showing that he was about to escape.  Before appellant was arrested, the police knew
that the two surviving victims shot by appellant had identified appellant as the person who shot them
and killed the other two victims.  Eddie, after being shot and while in the hospital unable to speak,
had identified appellant by writing appellant's name, address, and telephone number on paper.  The
officers had ample evidence that appellant had fled from the scene of the crime.  The next morning,
police surveillance near appellant's residence revealed two men acting in a furtive manner.  When
they left the residence in a car, the officers believed their presence had been discovered and that the
men were escaping.  The officers stopped the car on a public street and arrested appellant who was
the passenger in the car.
		The circumstances in this case and appellant's arrest were similar to those in Busby
v. State, 990 S.W.2d 263 (Tex. Crim. App. 1999).  The court there stated:

	The Fourth Amendment requires an arrest warrant only when the arrest occurs in the
suspect's home.  Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App. 1996),
. . . (citing New York v. Harris, 495 U.S. 14 . . . (1990)).  Appellant was not arrested
in his home but on a public highway.

	As for appellant's statutory challenge, we find that the warrantless arrest was
legitimately made under Article 14.04.  That article, known as the felony/escape rule,
states:

		Where it is shown by satisfactory proof to a peace officer, upon the
representation of a credible person, that a felony has been committed,
and that offender is about to escape, so that there is no time to procure
a warrant, such peace officer may, without a warrant, pursue and
arrest the accused.

	Article 14.04. Although we have held that the felony/escape rule is not satisfied
merely by proof that a suspect travels from one place to another, we have also stated
that "[t]he escape requirement is obviously met where the suspect has previously
fled."  Dowthitt v. State, 931 S.W.2d [244, 259 (Tex. Crim. App. 1996)] (citing
Fearance v. State, 771 S.W.2d [486, 510 (Tex. Crim. App. 1988)].


Id. at 269-70.
		In this case, the arresting officers had satisfactory evidence that appellant had
committed murder, a capital felony.  Appellant had fled the scene of the crime and the officers
believed he was attempting to escape when he was arrested.  In these circumstances, appellant's
arrest was lawful.  See Tex. Code Crim. Proc. Ann. art. 14.04 (West 1977); Busby, 990 S.W.2d at
270.  Appellant's subsequent statement was not tainted by an unlawful arrest.
		Appellant also insists that his taped statement should have been suppressed and not
admitted in evidence because prior to making that statement the officers had questioned him without
giving him the "post-arrest warnings" required by Miranda v. Arizona, 384 U.S. 436 (1966). 
Appellant was arrested at 1:15 p.m.  After his arrest, the arresting officers took appellant before a
magistrate to be advised of his constitutional rights.  See Tex. Code Crim. Proc. Ann. arts. 14.06,
15.17 (West Supp. 2001).  At 1:57 p.m., less than forty-five minutes after appellant's arrest, the
magistrate had finished advising appellant of his rights.  The officers then took appellant directly to
the homicide division at the Southeast Houston Command Station.  There, the officers advised
appellant of his rights.  See id. art. 38.22 (West 1979 & Supp. 2001).  When asked if he wanted to
make a statement, appellant responded, "Yes, I want to tell you about it.  I want to make it easy on
you."  The officers started recording appellant's statement at 2:50 p.m., one hour and thirty-five
minutes after he was arrested.  Appellant contends that questions asked during the taping of his
statements were based on unwarned questioning of appellant after his arrest and before he was taken
before the magistrate.  Evidence admitted at the hearing of the motion to suppress showed appellant
may have volunteered some information about which the officers questioned him concerning why
he was afraid of Eddie.  However, if appellant was merely questioned at this time before receiving
Miranda warnings, it would not render his subsequent statement inadmissible.
		"[A] suspect who has once responded to unwarned yet uncoercive questioning is not
thereby disabled from waiving his rights and confessing after he has been given the required
Miranda warnings."  Oregan v. Elstad, 470 U.S. 298, 318 (1985).

	The "fruit of the poisonous tree doctrine" . . . does not apply to mere violations of the
prophylactic requirements in Miranda: while the statement taken in violation of
Miranda must be suppressed, other evidence subsequently obtained as a result of that
statement (i.e. the "fruits" of the statement) need not be suppressed.  Michigan v.
Tucker, 417 U.S. 433, 452 . . . (1974); Oregon v. Elstad, 470 U.S. 298, 314 . . .
(1985).  The rule . . . requires suppressing the fruits of a defendant's statement only
when the statement was obtained through actual coercion.  Tucker, 417 U.S. at 448-449; Elstad, 470 U.S. at 314.


Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997); accord Corwin v. State, 870 S.W.2d 23,
31 (Tex. Crim. App. 1993); Chambers v. State, 866 S.W.2d 9, 21 (Tex. Crim. App. 1993); Griffin
v. State, 765 S.W.2d 422, 428 (Tex. Crim. App. 1989).
		Here, there is no contention that statements appellant may have made before being
advised by the magistrate were coerced.  Moreover, any statements appellant may have made before
he was advised of his rights by the magistrate were not offered or admitted in evidence.  The trial
court did not err in refusing to suppress and in admitting in evidence appellant's tape recorded
statement.  Appellant's fourth issue does not present error.



		The judgment is affirmed.


  
 Carl E. F. Dally, Justice
Before Chief Justice Aboussie, Justices Yeakel and Dally*
Affirmed
Filed:   June 29, 2001
Publish























*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.  See
Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.   In his fifth point of error, appellant has combined and argued together both legal and factual
sufficiency of the evidence.  We have warned against this practice.  See Martinets v. State, 884
S.W.2d 185, 188-89 (Tex. App.--Austin 1994, no pet.).  Nevertheless, we will review both legal and
factual sufficiency of the evidence.
2.   	By failing to discharge the jury and by ordering the jury to resume deliberation, the court
implicitly withdrew its decision to grant a mistrial.  In the circumstances of this case, the trial court
retains authority to withdraw its order for a mistrial.  See Rodriguez v. State, 852 S.W.2d 516, 520
(Tex. Crim. App. 1993).
3.   	The trial court addressed the jury:

		THE COURT:	Let me ask you this, sir, and I don't want you to tell me for
guilty and I don't want for not guilty.  I don't want any
attribution as to which way it is.  But numerically, how do
you find your jury to be split, being 6-6, 10-2 11-2, 8-4?

		THE FOREMAN:	11-1.

		THE COURT: 	How long has it been 11-1?

		THE FOREMAN:	Since this morning.

oman">	The "fruit of the poisonous tree doctrine" . . . does not apply to mere violations of the
prophylactic requirements in Miranda: while the statement taken in violation of
Miranda must be suppressed, other evidence subsequently obtained as a result of that
statement (i.e. the "fruits" of the statement) need not be suppressed.  Michigan v.
Tucker, 417 U.S. 433, 452 . . . (1974); Oregon v. Elstad, 470 U.S. 298, 314 . . .
(1985).  The rule . . . requires suppressing the fruits of a defendant's statement only
when the statement was obtained through actual coercion.  Tucker, 417 U.S. at 448-449; Elstad, 470 U.S. at 314.


Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997); accord Corwin v. State, 870 S.W.2d 23,
31 (Tex. Crim. App. 1993); Chambers v. State, 866 S.W.2d 9, 21 (Tex. Crim. App. 1993); Griffin
v. State, 765 S.W.2d 422, 428 (Tex. Crim. App. 1989).
		Here, there is no contention that statements appellant may have made before being
advised by the magistrate were coerced.  Moreover, any statements appellant may have made before
he was advised of his rights by the magistrate were not offered or admitted in evidence.  The trial
court did not err in refusing to suppress and in admitting in evidence appellant's tape recorded
statement.  Appellant's fourth issue does not present error.



		The judgment is affirmed.


 