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                   /                                                                                                                       Criminal Law & Procedure              > Appeals > Standards of Review> Abuse of Discretion > General
                                                                                                                                           Overview
                                                                                                                                           Criminal Law & Procedure              > Pretrial Motions > Suppression of Evidence
                                                                                                                                           Criminal Law & Procedure              > Witnesses > Credibility
              TERRANCE DEWAYNE BROOKS, Appellant v. THE STATE OF TEXAS, Appellee                                                           Criminal Law & Procedure              > Appeals > General Overview
                 COURT OF APPEALS OF TEXAS, F.OURTEENlH;DISTRICT, HOUSTON                                                                  Criminal Law & Procedure              > Appeals > Standards of Review > Abuse of Discretion > Evidence
                                         76 s.w.3d 426; 2oo:tr~.t.w:-·i?Exls"'1'1'62"'
                                                       NO. 14-01-00080-CR                                                                  An appellate court reviews the trial court's ruling on a motion to suppress evidence under an abuse of
                                                   February 14, 2002, Rendered                                                             discretion standard. A trial court's ruling on a motion to suppress, if supported by the record, will not be
                                                 February 14, 2002, Opinion Filed                                                          overturned. At a suppression hearing, the trial judge is the sole finder of fact. The trial judge is free to
                                                                                                                                           believe or disbelieve any or all of the evidence presented. In reviewing a trial court's ruling on a motion to
                                                                                                                                           suppress, the appellate court affords almost total deference to the trial court's determination of the
Editorial Information: Prior History                                                                                                       historical facts that the record supports, especially when the trial court's findings turn on evaluating a
                                                                                                                                           witness's credibility and demeanor. It affords the same amount of deference to the trial court's ruling on
On Appeal from the 10th District Cou!~~~)Y;,T;exas. Trial Court Cause No. 99CR0188.                                                        application of law to fact questions, also known as "mixed questions of law and fact," if resolving those
                                                                                                                                           ultimate questions turns on evaluating credibility and demeanor.
Disposition:
           Affirmed.                                                                                                                       Criminal Law &        Procedure > Appeals > Standards of Review > De Novo Review > General Overview
                                                                                                                                           Criminal Law &        Procedure > Search & Seizure > Search Warrants > Probable Cause > Sensory
Counsel        .                For Appellants: Kevin C. Rekoff of Galveston, Tx.
                                                                                                                                           Perceptions
                                       For Appellees: 8. Warran Goodson, Jr. of Galvaston, Tx.
                                                                                                                                           Criminal Law &        Procedure > Pretrial Motions > Suppression of Evidence
Judges: Panel consists of Justices Anderson, Hudson, and Frost.
                                                                                                                                           Criminal Law &        Procedure > Appeals > Standards of Review > De Novo Review > Motions to
CASE SUMMARY                                                                                                                               Suppress

                                                                                                                                           Review of a trial court's decision on a motion to su-ppress calls for the reviewing court to consider de novo
PROCEDURAL POSTURE: After the 1Oth District Courtf_fl~~~siciii!e]ljJ:6.1Y;·;T;ex;i~. denied defendant's                                    issues that are purely questions of law, such as whether reasonable suspicion or probable cause existed
motion to suppress, he pled no contest to possession witnintent to deliver a controlled substance and was                                  at the time of the search or seizure. If the trial court's ruling is reasonably supported by the record and is
sentenced to prison. Defendant appealed .Defendant's motion to suppress on the grounds of an illegal                                       correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. This is
arrest was properly denied, because some arrest warrants for his failure to appear were valid, he ran from                                 true even if the decision is correct for reasons totally different from those espoused at the hearing.
police, and they had probable cause to believe he was possessing cocaine.
                                                                                                                                           Criminal Law & Procedure > Appeals > Standards of Review> General Overview
                                                                                                                                           Civil Procedure > Judgments > Relief From Judgment > General Overview
OVERVIEW: Defendant was a crime suspect and had several outstanding warrants. Police saw a man                                             Criminal Law & Procedure > Search & Seizure > Search Warrants > General Overview ·
matching defendant's description holding a clear plastic bag containing a white substance. He got in a car                                 Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General
and drove off. They pursued him; he jumped from the moving vehicle and ran. He was captured, the bag                                       Overview
was recovered, and its contents proved to be cocaine. The appellate court held that the suppression                                        Criminal Law & Procedure > Pretrial Motions > Suppression of Evidence
motion was properly denied, as defendant's arrest was lawful for three reasons: (1) 7 of the 19 arrest
warrants for failure to appear were valid, as they were issued upon the clerk's affidavit of personal                                      If an appellate court disagrees with the trial court's reason for denying a motion to suppress. but finds its
knowledge of defendant's failure to appear; (2) defendant's flight gave the officers probable cause to                                     ruling on the motion correct on a different theory of law applicable to the case. it still may sustain its
arrest him; and (3) seeing the bag of white powder gave police probable cause to believe defendant was                                     decision.
committing a crime. As the trial court stated that its sentence would not be based on any prior arrest or
offense for which defendant was not convicted, the failure of the State to give defendant notice under Tex.                                Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General
Code Grim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2002) of the offenses it presented to the trial                                     Overview
court, even if error, was harmless error on the facts of the case.                                                                         Constitutional Law > Bill ofRights > Fundamental Rights > Search & Seizure > Scope of Protection.
                                                                                                                                           Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > General Overview
                                                                                                                                           Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure >Probable Cause
OUTCOME: The judgment was affirmed.                                                                                                        Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Warrants
                                                                                                                                           Criminal Law & Procedure > Search & Seizure > Search Warrants > General Overview
LexisNexis Headnotes                                                                                                                       Criminal Law & Procedure > Search & Seizure > Warrantless Searches > General Overview



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i.! 2015 Matthew Bender & Company. Inc .. a member of the LexisNc.xis Group. All rights reserved. Use of this product is subject to th.c   e 2015 Mauhcw Bender & Company. Inc .. a member of the Lc:cisNc.xis Group. All rights reserved.;Usc of this product is subject to the
restrictions and tenns and conditions of the Matthew Bender Master Agreement.                                                              restrictions and tem1s and conditions of the Matthew Bender ~laster Agreeme~t.
                                                                                                                                                                                                      I
                                                                                                                                           to believe that the suspect is evading arrest or detention. Flight from a show of authority is a factor in
The United States and Texas Constitutions protect against unreasonable seizures and prohibit warrants                                      support of a finding reasonable suspicion of criminal activity.
lacking probable cause. U.S. Con st. amend. IV; Tex. Canst. art. I,§ 9. Arrests generally must be
supported by the same level of probable cause, with or without a warrant.                                                                  Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Resisting Arrest >
                                                                                                                                           General Overview
Criminal Law & Procedure> Search & Seizure> Search ,Warrants> Issuance by Neutral &                                                        Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Fleeing & Eluding >
Detached Magistrates                                                                                                                       General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General                                                   Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Fleeing & Eluding >
Overview                                                                                                                                   Elements
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Warrants                                                     A person evades arrest or detention if he intentionally flees from a person he knows is a peace officer·
Criminal Law & Procedure > Accusatory Instruments >.General Overview                                                                       attempting to lawlully arrest or detain him. Tex. Penal Code Ann.§ 38.04(a) (Vernon 1994).
Governments > Courts > Judges
                                                                                                                                           Criminal Law & Procedure > Search & Seizure > Seizures of Persons
A detached and neutral magistrate must find probable cause before a warrant for an arrest may be issued.
For purposes of constitutional scrutiny, there is no substantial difference between an arrest warrant and a                                A peace officer may arrest an offender without a warrant for any offense committed in the officer's
capias. An affidavit must provide the magistrate with sufficient factual information to support an                                         presence or within the office~s view. Tex. Code Grim. Proc. Ann. art.14.01(b) (Vernon 1977).
independent judgment that probable cause exists to believe that the accused has committed an offense.
                                                                                                                                           Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > General
Thus, the magistrate's action cannot be a mere ratification of the bare conclusions of others. In
                                                                                                                                           Overview
determining the sufficiency of an affidavit supporting an arrest warrant, a reviewing court is limited to the
                                                                                                                                           Criminal taw & Procedure > Sentencing > Presentence Reports
'lour corners" of the affidavit. Affidavits are viewed in a common sense rather than hypertechnical
manner. A presumption is indulged in favor of the regularity of the proceedings in a lower court unless the                                Criminal Law & Procedure > Appeals > Standards of Review> Abuse of Discretion > Evidence
record presents affirmative evidence to the contrary.                                                                                                                                                                                                                              ;   .
                                                                                                                                           An appellate court reviews the trial court's ruling as to the admissibility of extraneous offense evidence
                                                                                                                                           under an abuse of discretion standard.
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
                                                                                                                                           Evidence > Relevance > Prior Acts, Crimes & Wrongs
The failure to appear in court is a unique offense for purposes of issuing an arrest warrant. By its very
nature, a defendant's failure to appear is typically within the court's personal knowiedge. Whether the                                    Tex. Code Grim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2002).
defendant appears or fails to appear is an easily ascertainable, objective event- either the party is in court
or he is not in court. Where the trial court issuing the warrant is supplied with sufficient information to                                Evidence > Relevance > Prior Acts, Crimes & Wrongs
support an independent judgment that probable cause exists for the warrants, the fact that an accused
has such an outstanding warrant gives officers probable cause to arrest him.                                                               Reports of prior arrests and offenses without convictions are generally held not admissible on the issue of
                                                                                                                                           punishment. Tex. Code Grim. Proc. Ann. art. 37.07, § 3(a) (Vernon 1981). However, if the trial court
Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause                                               considers onjy evidence which has resulted in a final conviction, notice is not required.
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > Personal
Knowledge                                                                                                                                  Criminal Law & Procedure > Appeals > Reversible Errors > General Overview
                                                                                                                                           Criminal Law & Procedure > Sentencing > Presentence Reports
An arrest warrant for failure to appear is supported by probable cause where the personal knowledge of
the judge and clerk is expressly set forth in the warrant and the clerk's certificate, respectively.                                                        a
                                                                                                                                           Error affects· substantial right and is reversible when it has a substantial and injurious effect or influence
                                                                                                                                           in determining the trial court's sentencing decision.
Criminal Law & Procedure > Appeals > Standards of Review > General Overview
Criminal Law & Procedure > Pretrial Motions > Suppression of Evidence
                                                                                                                                                                                                            Opinion
If a trial court's ruling is correct on any theory of law applicable to the case, an appellate court may sustain
it upon review. This is true even if the decision is correct for reasons totally different from those espoused                             Opinion by:                     LaWanda Shelton]; Kern Thompson Frost
at the hearing.
                                                                                                                                                                                                            Opinion
Criminal Law & Procedure > Search & Seizure > Seizures of Persons
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > General Overview

A suspect's flight from police officers, after they order him to stop, provides the police with probable cause                                  {76 S.W.3d 428) Appellant Terrance Dewayne Brooks appeals his conviction of possession with intent


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<.:· 2015 Matthew Bender & Company. Inc .. a member of the LcxisNcxis Group. All rights rcsen·cd. Usc of this product is subject to' the   C 2015 Matthew Bender& Company. Inc .. a member of the Lcx.isNc.xis Group. All rights reserved. Usc of this product is subject to the
rcstrict.ions and tcmls and conditions of the MatthC\10 Bender Master Agreement.                                                           restrictions and tcnns and conditions of the Matthew Bender Master Agreement.
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                                                                                                                                                                                .
        to deliver a controlled substance. He contends the trial court erred by denying his motion to suppress                                   evidence obtained during his arrest. More specifically, appellant argues that the police lacked
        and by improperly admitting evidence of extraneous offenses during punishment. We affirm.                                                probable cause to arrest and search him based on outstanding municipal arrest warrants.
                                                                                                                                                      ~              ~   ....       t
        I. FACTUAL AND PROCEDURAL BACKGROUND                                                                                                     {76 S.W.3d 430} At'the he~ring on appellant's motion to suppress, the State asserted the following
                                                                                                                                                 three grounds in justification of appellant's arrest and search: (1) nineteen separate Texas City
         On December 30, 1998, during the usual midnight shift briefing, Texas City patrol {76 S.W.3d 429}
                                                                                                                                                 municipal arrest warrants 'for the failure to appear'; (2) evading arrest; and (3) possession of cocaine.
         officers learned that appellant was a suspect in a series of anned robberies and had several
                                                                                                                                                 The trial court denied appellant's motion to suppress on the ground that seven of the nineteen
         outstanding municipal court warrants. The officers were provided with a description of appellant and
                                                                                                                                                 municipal arrest warrants were supported by probable cause. Appellant contends the trial court erred
         his vehicle. The vehicle was described as a beige Oldsmobile Cutlass Supreme. with license plate
                                                                                                                                                 because the warrants fail to contain sufficient factual assertions by an affiant with personal knowledge
         number 117VQN.                                                                                 ·
                                                                                                                                                 to establish probable cause. Appellant's co~tention, as to the seven warrants at issue, lacks merit. 1
         Early the next morning, Officer John Zimmers saw an unoccupied vehicle matching the description of
                                                                                                                                                 A. Standard of Review
         appellant's automobile at the Sundance Apartments in Texas City. After a few hours of surveillance,
         Officer Zimmers saw an African American male fitting appellant's description. using a cellular ·                                        We review the trial court's ruling on a motion to suppress evidence under an abuse of discretion
         telephone and holding a plastic bag containing a white substance, get in the car and drive away.                                        standard. Long v. State, 823 S.W.2d 259,277 (Tex. Grim. App. 1991). A trial court's ruling on a
         Officer Zimmers immediately notified the police dispatch operator and his supervisor, Sergeant                                          motion to suppress, if supported by the record, will not be overturned. Hill v. State, 902 S.W.2d 57, 59
         LaRoe.                                                                                                                                  (Tex. App.--Houston [1st Dis!.] 1995, pet. refd). At a suppression hearing, the trial judge is the sole
                                                                                                                                                 finder of fact. Arnold v. State, 873 S.W.2d.27, 34 (Tex. Grim. App. 1993); Hill, 902 S.W.2d at 59. The
         Officer Brett Cyr. patrolling nearby in an unmarked police car. saw the vehicle leave the apartment
                                                                                                                                                 trial judge is free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800
         complex. Officer Cyr allowed the vehicle to pass him and then positioned his vehicle behind
         appellant's vehicle at a stop light and activated his emergency lights. Two other police cars did the                                   S.W.2d 539,543 (Tex. Grim. App. 1990) .. -·
         same. Appellant slowed briefly, but continued through the red light, going east. Officer Cyr turned on                                  In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial
         nis siren after he saw appellant running the red light. With emergency lights engaged and siren on,                                     court's detennination of the historical facts that the record supports, especially when the trial court's
         Officer Cyr pursued the vehicle to 13th Avenue. where it turned into the parking lot of the Bay Point                                   findings tum on evaluating a witness's credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856
         Apartments.                                                                                                                             (Tex. Grim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Grim. App. 1997). We afford the
         Officer Zimmers. already parked in the Bay Point Apartments' parking lot, watched appellant's vehicle                                   same amount of deference to the trial court's ruling on "application of law to fact questions," also
         as it entered the complex. Officer Zimmers got out of his car and drew his weapon when appellant's                                      known as "mixed questions of law and fact," if resolving those ultimate questions turns on evaluating
         car approached him. Appellant accelerated and drove toward Officer Zimmers. After passing Officer                                       credibility and demeanor. Ross. 32 S.W.3d at 856.

/        Zimmers. appellant jumped from his still moving vehicle and started to run. Officer Zimmers and                                         Review of a trial court's decision on a motion to suppress calls for the reviewing court to consider de
         Sergent LaRoe saw appellant run into the apartment complex carrying a transparent plastic bag                                           novo issues that are purely questions of law, such as whether reasonable suspicion or probable cause
         containing a white substance. Sergeant LaRoe chased appellant until he eventually tackled him. Then,                                    existed at the time of the search or seizure. See Guzman, 955 S.W.2d at 89. If the trial court's ruling
         with assistance from other officers, Sergeant LaRoe restrained appellant. The officers took appellant                                   is reasonably supported by the record and is correct on any theory of law applicable to the case, the
         into custody and seized the plastic bag in his possession. The contents of the plastic bag tested                                       reviewing court will sustain it upon review. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Grim.
         positive for cocaine. The Texas City police arrested appellant.                                                                         App. 1996). This is true even if the decision is correct for reasons totally different from those
    - · Appellant provided a slightly different version of the events. Appellant testified that although he saw                                  espoused at the hearing. See id.           1
        the police car behind him, he did not stop because he believed he was not doing anything wrong.                                           In this case, the trial court specifically stated it was denying the motion to suppress on the sole ground
        Furthennore, appellant testified that the reason he jumped from his moving car and started to run was                                     that the seven municipal warrants provided the officers with probable cause to arrest and search
        not because he was carrying 400 grams of cocaine, but because he saw an officer holding a weapon                                          appellant. Because the trial court specified its reason for denying the motion, we must first address
        and was afraid of being shot. Appellant claims that Officer Zimmers drew his gun before appellant                                       . that ground. However. if we disagree with the trial court's reason, but find its ruling on the motion to
        drove toward him.                                                                                                                         suppress {76 S.W.3d 431} correct on a different theory of law applicable to the case, we still may
         Appellant was indicted with the felony offense of possession of more than 400 grams of cocaine with                                      sustain its decision.
         the intent to deliver. He filed a motion to suppress the cocaine seized during his arrest. After a                                      B. Probable Cause to Arrest and Search·
         hearing, the trial court denied appellant's motion to suppress. Appellant then entered a plea of no
         contest and waived his right to a jury trial. The trial court found appellant guilty as charged and                                     The United States and Texas Constitutions protect against unreasonable seizures and prohibit
         assessed punishment at forty years' confinement in the Texas Department of Criminal Justice.                                            warrants lacking probable cause. See U.S. CONST. amend. IV; TEX. CONST. art. I § 9. Arrests
         Institutional Division.                                                                                                                 generally must be supported by the same level of probable cause. with or without a warrant. See
                                                                                                                                                 Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560. 564-66, 28 L. Ed. 2d 306, 91 S. Ct. 1031
         II. MOTION TO SUPPRESS                                                                                                                  (1971). A detached and neutral magistrate must find probable cause before a warrant for an arrest
         In his first point of error, appellant contends the trial court erred in denying his motion to suppress                                 may be issued. Coolidge v. New Hampshire, 403 U.S. 443, 449, 29 L. Ed. 2d 564, 91 S. Ct. 2022
                                                                                                                                                 (1971). For purposes of constitutional scrutiny, there is no substantial difference between an arrest

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    restrictions and tcnns and conditions of the Matt he" Bender Master Agreement.                                                          restrictions and tcnns and conditions of the Matthew Bender Master Agreement.
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                                                                                                                                                                              '·
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    to deliver a controlled substance. He contends the trial court erred by denying his motion to suppress                                             evidence obtained during his arrest. More specifically, appellant argues that the police lacked
    and by improperly admitting evidence of extraneous offenses during punishment. We affirm.                                                          probable cause to arrest and search him based on outstanding municipal arrest warrants.
                                                                                                                                                          --..,._         ~   ...    .     ~
    I. FACTUAL AND PROCEDURAL BACKGROUND                                                                                                               {76 S.W.3d 430) At'the he~ring on appellant's motion to suppress. the State asserted the following
                                                                                                                                                       three grounds in justification of appellant's arrest and search: (1) nineteen separate Texas City
    On December 30. 1998, during the usual midnight shift briefing, Texas City patrol {76 S.W.3d 429)
                                                                                                                                                       municipal arrest warrants 'for the failure to appear'; (2) evading arrest; and (3) possession of cocaine.
    officers learned that appellant was a suspect in a series of armed robberies and had several
                                                                                                                                                       The trial court denied appellant's motion to suppress on the ground that seven of the nineteen
    outstanding municipal court warrants. The officers were provided with a description of appellant and
                                                                                                                                                       municipal arrest warrants were supported by probable cause. Appellant contends the trial court erred
    his vehicle. The vehicle was described as a beige Oldsmobile Cutlass Supreme. with license plate
                                                                                                                                                       because the warrants fail to contain sufficient factual assertions by im affiant with personal knowledge
    number 117VQN.
                                                                                                                                                       to establish probable cause. Appellant's co~tention. as to the seven warrants at issue, lacks merit. 1
    Early the next morning. Officer John Zimmers saw an unoccupied vehicle matching the description of
                                                                                                                                                      A. Standard of Review
    appellant's automobile at the Sundance Apartments in Texas City. Alter a few hours of surveillance,
    Officer Zimmers saw an African American male fitting appellant's description, using a cellular··                                                  We review the trial court's ruling on a motion to suppress evidence under an abuse of discretion
    telephone and holding a plastic bag containing a white substance, get in the car and drive away.                                                  standard. Long v. State. 823 S.W.2d 259,277 (Tex. Crim. App. 1991). A trial court's ruling on a
    Officer Zimmers immediately notified the police dispatch operator and his supervisor. Sergeant                                                    motion to suppress, if supported by the record. will not be overturned. Hill v. State. 902 S.W.2d 57, 59
    LaRoe.                                                                                                                                            (Tex. App.-Houston [1st Dist.]1995, pet. ref'd). At a suppression hearing, the trial judge is the sole
                                                                                                                                                      finder of fact. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993); Hill, 902 S.W.2d at 59. The
    Officer Brett Cyr, patrolling nearby in an unmarked police car, saw the vehicle leave the apartment
                                                                                                                                                      trial judge is free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800
    complex. Officer Cyr allowed the vehicle to pass him and then positioned his vehicle behind
                                                                                                                                                      S.W.2d 539, 543 (Tex. Crim. App. 1990).
    appellant's vehicle at a stop light and activated his emergency lights. Two other police cars did the
    same. Appellant slowed briefly, but continued through the red light, going east. Officer Cyr turned on                                            In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial
    nis siren alter he saw appellant running the red light. With emergency lights engaged and siren on.                                               court's determination of the historical facts that the record supports, especially when the trial court's
    Officer Cyr pursued the vehicle to 13th Avenue, where it turned into the parking lot of the Bay Point                                             findings tum on evaluating a witness's credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856
    Apartments.                                                                                                                                       (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85. 89 (Tex. Crim. App. 1997). We afford the
    Officer Zimmers. already parked in the Bay Point Apartments' parking lot, watched appellant's vehicle                                             same amount of deference to the trial court's ruling on "application of law to fact questions," also
    as it entered the complex. Officer Zimmers got out of his car and drew his weapon when appellant's                                                known as "mixed questions of law and fact," if resolving those ultimate questions turns on evaluating
    car approached him. Appellant accelerated and drove toward Officer Zimmers. After passing Officer                                                 credibility and demeanor. Ross, 32 S.W.3d at 856.
    Zimmers. appellant jumped from his still moving vehicle and started to run. Officer Zimmers and                                                   Review of a trial court's decision on a molion to suppress calls for the reviewing court to consider de
    Sergent LaRoe saw appellant run into the apartment complex carrying a transparent plastic bag                                                     novo issues that are purely questions of law, such as whether reasonable suspicion or probable cause
    containing a white substance. Sergeant LaRoe chased appellant until he eventually tackled him. Then.                                              existed at the time of the search or seizure. See Guzman, 955 S. W.2d at 89. If the trial court's ruling
  ' with assistance from other officers, Sergeant LaRoe restrained appellant. The officers took appellant                                             is reasonably supported by the record and is correct on any theory of law applicable to the case. the
    into custody and seized the plastic bag in his possession. The contents of the plastic bag tested                                                 reviewing court will sustain it upon review. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.
    positive for cocaine. The Texas City police arrested appellant.                                                                                   App. 1996). This is true even if the decision is correct for reasons totally different from those
     Appellant provided a slightly different version of the events. Appellant testified that although he saw                                          espoused at the hearing. See id.
     the police car behind him, he did not stop because he believed he was not doing anything wrong.                                                    In this case, the trial court specifically staled it was denying the motion to suppress on the sole ground
     Furthermore. appellant testified that the reason he jumped from his moving car and started to run was                                              that the seven municipal warrants provided the officers with probable cause to arrest and search
     not because he was carrying 400 grams of cocaine, but because he saw an officer holding a weapon                                                   appellant. Because the trial court specified its reason for denying the motion, we must first address
     and was afraid of being shot. Appellant claims that Officer Zimmers drew his gun before appellant                                                . that ground. However, if we disagree with the trial court's reason, but find its ruling on the motion to
     drove toward him.                                                                                                                                  suppress {76 S.W.3d 431) correct on a different theory of law applicable to the case, we still may
     Appellant was indicted with the felony offense of possession of more than 400 grams of cocaine with                                                sustain its decision.
     the intent to deliver. He filed a motion to suppress the cocaine seized during his arrest. After a                                               B. Probable Cause to Arrest and Search
     hearing, the trial court denied appellant's motion to suppress. Appellant then entered a plea of no
     contest and waived his right to a jury trial. The trial court found appellant guilty as charged and                                              The United States and Texas Constitutio~s protect against unreasonable seizures and prohibit
     assessed punishment at forty years' confinement in the Texas Department of Criminal Justice,                                                     warrants lacking probable cause. See U.S. CONST. amend. IV; TEX. CON ST. art. I§ 9. Arrests
     Institutional Division.                                                                                                                          generally must be supported by the same level of probable cause. with or without a warrant. See
                                                                                                                                                      Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560. 564-66, 28 L Ed. 2d 306, 91 S. Ct. 1031
     II. MOTION TO SUPPRESS                                                                                                                           (1971). A detached and neutral magistrate must find probable cause before a warrant for an arrest
     In his first point of error. appellant contends the trial court erred in denying his motion to suppress                                          may be issued. Coolidge v. New Hampshire, 403 U.S. 443, 449, 29 L Ed. 2d 564, 91 S. Ct. 2022
                                                                                                                                                      (1971). For purposes of constitutional scrutiny, there is no substantial difference between an arrest

I txcases                                                                                                                                        I txcases
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restrictions and tenns and conditions of the Matthew Bender Master Agreement.                                                                    restrictions and tcnns and conditions of the Malt he\\ Bender Master Agreement.
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    We note that the record does not include any clerk's certificate. which is frequently used in                                                                                       find the trial court did not abuse its discretion in {76 S.W.3d 435} denying appellant's motion to
    failure-to-appear cases to provide factual information to show the underlying bases for the affiant's                                                                               suppress. We overrule appellant's first point of error.
    conclusions. See, e.g., Mavins v. State, 886 S.W.2d 378,379-80 (Tex. App.--Houston [1st Dist.]                                                                                      Ill. EXTRANEOUS OFFENSES
    1994, pet. dism'd). Neither the warrants nor the complaint refer to any clerk's certificate, and it
    appears that none were prepared in this case. Nevertheless, the clerk's affidavit and each complaint                                                                                In his second point of error, appellant contends the trial court erred by considering, during
    of appellant's failure to appear is signed and stamped with the Seal of the State of Texas; the clerk                                                                              punishment, extraneous offenses contained in a pre-sentence investigation report. More specifically,
    issued them under the authority of her office, and her office gives her the authority to issue oaths. See                                                                          appellant argues the trial court should not have considered the offenses because the State failed to
    Tex. GOVT CODE ANN.§§ 30.265 (Vernon 1988) & 602.002 (Vernon 1994); Tullos v. State, 162                                                                                           provide notice under article 37.07, section 3(g) of_ the Texas Code of Criminal Procedure. We review
    Tex. Crim. 271, 284 S.W.2d 715, 717-18 (Tex. Crim. App. 1955) (finding deputy municipal court clerk                                                                                the trial court's ruling as to the admissibility of extraneous offense evidence under an abuse of
    authorized to act in own name).                                                                                                                                                    discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).

     We hold that the municipal warrants issued were valid. The failure to appear in court is a unique                                                                                 Appellant timely sent a letter to the State requesting notice of all extraneous offenses, bad acts or
     offense for purposes of issuing a warrant. By its very nature, a defendant's failure to appear is typically                                                                       character evidence to be used against him at the punishment hearing. The State does not dispute this
     within the court's personal knowledge. Atkins v. State, 984 S.W.2d 780;783 (Tex. App.--Houston [1st                                                                               fact, but maintains that there is no showing that the trial court considered anything other than final
     Dist.]1999, no pet.). Whether the defendant appears or fails to appear is an easily ascertainable,                                                                                convictions. Thus, the State argues, appellant's rights under section 3(g) were not violated. We agree.
     objective event- either the party is in court or he is {76 S.W.3d 434} not in court. Atkins, 984 S.W.2d                                                                           At the punishment hearing, appellant's objection to the pre-sentence report was based solely on article
     at 783. 2 The trial court issuing each of the warrants in this case was supplied with sufficient                                                                                  37.07, section 3(g) of the Texas Code of Criminal Procedure, which provides:
     information to support an independent judgment that probable cause existed for the warrants.
     Therefore, the fact that appellant had several outstanding warrants gave the officers probable cause                                                                                     On timely request of the defendant, notice of intent to introduce evidence under this article shall
     to arrest him. See Welcome v. State, 865 S.W.2d 128, 134 (Tex. App.--Dallas 1993, pet. refd);                                                                                            be given in the same manner required by Rule 404(b}, Texas Rules of Criminal Evidence. If the
     Dempsey v. State. 857 S.W.2d 759,761 (Tex. App.--Houston [14th Dist.]1993, no pet.). Because the                                                                                         attorney representing the state intends to introduce an extraneous crime or bad act that has not
     warrants provided the officers with probable cause to follow and arrest appellant, the subsequent                                                                                        resulted in a final conviction in a court of record or a probated or suspended sentence, notice of
     search and seizure was also justified. The search which yielded the cocaine was a search incident to                                                                                     that intent is reasonable only ~the notice includes the date on which and the county in which the
                                                                                                                                                                                              alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The
     a lawful arrest.
                                                                                                                                                                                              requirement under this subsection that the attorney representing the state give notice applies only
      Even if we determined that the municipal warrants were not supported by probable cause, the officers                                                                                    if the defendant makes a timely request to the attorney representing the state for the notice.TEX.
     still had probable cause based on the other two grounds urged by the State at the suppression                                                                                            CODE CRIM. PROC. ANN. art. 37.07. § 3(g) (Vernon Supp. 2002) (emphasis added). The
     hearing. If the trial court's ruling is correct on any theory of law applicable to the case, we may sustain                                                                              purpose of the notice requirement is to avoid unfair surprise and trial by ambush. See Nance v.
     it upon review. See Villarreal v. State, 935 S.W.2d 13!1. 138 (Tex. Crim. App. 1996). This is true even                                                                                  State, 946 S.W.2d 490,493 (Tex. App.--Fort Worth 1997, pet. refd). Reports of prior arrests and
     if the decision is correct for reasons totally different from those espoused at the hearing. See ia.                                                                                     offenses without convictions are generally held not admissible on the issue of punishment.
     Therefore, even if the trial court stated an incorrect reason for denying the motion to suppress. we                                                                                     Bermudez v. State, 504 S.W.2d 868, 872 (Tex. Crim. App. 1974): see TEX. CODE CRIM. PROC.
     may sustain its ruling on separate grounds. The State urged that the officers also had probable cause                                                                                    ANN. art. 37.07, § 3(a) (Vernon 1981). However. if the trial court considers only evidence which
     based on the fact that appellant evaded arrest and was in possession of cocaine. We agree.                                                                                               has resulted in a final conviction, notice is not required. See Woodard v. State, 931 S.W.2d 747,
                                                                                                                                                                                              750 (Tex. App.--Waco 1996, no pet.) (holding that appellant was not entitled to notice for
     Appellant testified that he saw the police following him, but he failed to stop because he believed that
                                                                                                                                                                                              extraneous offenses which have resulted in a final conviction).
     he was not doing anything wrong. Appellant continued to drive through a red light, jumped from his car
     when he saw a policeman trying to stop him, and ran away from the police into an apartment complex.                                                                               Even if the information in the pre-sentence report about the prior arrests or bad acts without final
     Appellant's flight from the police officers, after they ordered him to stop, provided the police with                                                                             convictions was improperly admitted without notice over appellant's valid objection, we still must
     probable cause to believe that appellant was evading arrest or detention. See Reyes v. State, 899                                                                                 determine whether it was reversible error because it affected appellant's substantial rights. TEX. R.
     S.W.2d 319, 324 (Tex. App.--Houston [14th Dist.]1995, pet. refd) (stating flight from show of authority                                                                           APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 3-4 (Tex. Crim. App. 2001). In this context, error
     is a factor in support of finding reasonable suspicion of criminal activity). A person evades arrest or                                                                           affects a substantial right when it has a substantial and injurious effect or influence in determining the
     detention if he intentionally flees from a person he knows is a peace officer attempting to lawfully                                                                              trial court's sentencing decision. See Johnson, 43 S.W.3d at 4. When overruling appellant's
     arrest or detain him. See TEX. PEN. CODE ANN.§ 38.04(a) (Vernon 1994). Furthermore, the police                                                                                    objections to the pre- sentence investigation report, the tnal court specifically stated it would consider
     saw appellant carrying a bag of cocaine in his hand as he ran from his car to the apartment complex.                                                                              {76 S.W.3d 436} only those offenses which had resulted in a final conviction.
     A peace officer may arrest an offender without a warrant for any offense committed in the officer's
     presence or within the officer's view. See TEX. CODE CRIM. PROC. ANN. art. 14.01 (b) (Vernon                                                                                      The range of punishment for possession of 400 or more grams of cocaine with the intent to deliver is
     1977). Before the officers even touched appellant, they had probable cause to arrest him for unlawful                                                                             fifteen to ninety-nine years or life and a fine of up to$ 250,000. TEX. HEALTH & SAFETY CODE
     possession of cocaine because they could see a white substance they believed to be cocaine in a                                                                                   ANN.§ 481.112 (Vernon 2001). The trial court sentenced appellant to forty years' imprisonment and
     transparent bag in appellant's hands. See Haley v. State, 811 S.W.2d 600, 603 (Tex. Crim. App.                                                                                    no fine, after the State requested a sentence of sixty years' imprisonment. Appellant's prior final


I txcases                                                                                                             9                                                         I txcases                                                                            10

e 2015 Matthew Bender & Company. Inc .. a member of the Lc.xisNexis Group. All rig!l.ts reserYed. Use of this product is subject to the                                         ~-   2015 Matthew Bender& Company. Inc .. a member of the LcxisNcxis Group. All rights reserved. Usc of this product is subject to the
restrictions and tenns and conditions of the Matthew Bender Master Agreement.                                                                                                   restrictions and tem1s and conditions of the Matthew Bender Master Agreement.
    convictions included a felony conviction for cocaine possession. This conviction appears in the
    enhancement paragraph of the indictment. Given appellant's prior conviction for cocaine possession,
    the trial court's statement that its punishment determination would not be based on any price arrest or
    offense for which there was no final conviction. and the sentence given by the trial court, we conclude
    that the failure of the State to give appellant notice under article 37.07, section 3(g) of the Texas Code
    of Criminal Procedure did not have a substantial and injurious effect or influence in determining the
    trial court's sentencing decision. See Patton v. State. 25 S.W.3d 387, 394 (Tex. App.--Austin 2000,
    pei. refd) (holding that even if admission of prior conviction for criminal mischief during punishment
    phase was erroneous. it would not have been reversible error). Therefore, we hold that. even if the
    State's failure to give appellant notice under article 37.07, section 3(g) of the Texas Code of Criminal
    Procedure was error. it was harmless error on the facts of this case. See TEX. R. APP. P. 44.2(b);
    Patton. 25 S.W.3d at 394. We overrule appellant's second point of error.
     Having found no error. we affirm the trial court's judgment.
    Is/ Kern Thompson Frost
     Justice

                                                                Footnotes

                                                                                                            ,-


     Appellant correctly notes, however, that State's exhibits eight through nineteen, the other arrest
     warrants considered by the court during the motion to suppress hearing, lack probable cause because
     they are not supported by affidavits made by individuals with personal knowledge. During the motion
     to suppress hearing, testimony revealed that several of the affidavits were not sworn by the officer
     who actually observed events alleged in the warrant itself. Moreover, at the end of the suppression
     hearing, the trial court specifically held that exhibits eight through nineteen are not valid warrants and
     could not be used to provide probable cause to arrest and search appellant.
     2
     Compare Mavins v. State. 886 S.W.2d 378. 379 (Tex. App.-- Houston [1st Dist.]1994, pei. dism'd)
     (holding that arrest warrant for failure to appear was supported by probable cause where personal
     knowledge of judge and cler1< was expressly set forth in warrant and cler1<'s certificate respectively)
     with Kosanda v. State. 727 S.W.2d 783,785 (Tex. App.--Houston [1st Dist.]1987, pet. refd) (holding
     arrest warrant for failure to appear invalid because there was no evidence that the alleged failure to
     appear had occurred in the presence of the justice of the peace. and no authority that would allow the
     court to assume that the justice had such personal knowledge).




I txcases                                                             II

t: 2015 Matthew Bender& Company. Inc .. a member of the LcxisNcxis Group. All rights reserved. Usc of this product is subject to the
restrictions and tcmts and conditions of the Matthcn Bender Master Agreement
