                                                                         ACCEPTED
                                                                     14-14-00391-CR
                                                     FOURTEENTH COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                                8/25/2015 6:06:31 PM
                                                               CHRISTOPHER PRINE
                                                                              CLERK

                     NOS. 14-14-00391-CR
                       14-14-00392-CR
                                                     FILED IN
                                              14th COURT OF APPEALS
                                                 HOUSTON, TEXAS
                  IN THE COURT OF APPEALS
                                              8/25/2015 6:06:31 PM
                                              CHRISTOPHER A. PRINE
                           FOR THE                     Clerk


               FOURTEENTH DISTRICT OF TEXAS

                      HOUSTON, TEXAS

             HOWARD MARTIN HARRIS, APPELLANT

                               VS.

               THE STATE OF TEXAS, APPELLEE


            APPELLANT’S MOTION FOR REHEARING



     TRIAL COURT CAUSE NUMBERS 12CR1863 AND 14CR0154
               IN THE 212TH DISTRICT COURT OF
                 GALVESTON COUNTY, TEXAS

SEARS & BENNETT, LLP
JOEL H. BENNETT
STATE BAR NO. 00787069
1100 NASA PARKWAY, SUITE 302
HOUSTON, TEXAS 77058
(281) 389-2118
FAX (866) 817-5155
joel@searsandbennett.com

Attorneys for HOWARD MARTIN HARRIS
                           LIST OF PARTIES

Presiding Judge                        Honorable Bret Griffin

Appellant                              Howard Martin Harris

Appellee                               The State of Texas

Attorney for Appellant                 Ms. Stacy Valdez
     (Trial only)                      711 W. Bay Area Blvd.,
                                       Ste 600
                                       Houston, Texas 77598

Attorney for Appellant                 Mr. Joel H. Bennett
     (Appeal only)                     Sears & Bennett, LLP
                                       1100 Nasa Parkway, Suite 302
                                       Houston, Texas 77058

Attorney for Appellee                  Ms. Candice Freeman
     (Trial only)                      Ms. Paul Love
                                       Galveston County Criminal
                                       District Attorney’s Office
                                       600 59th Street, Suite 1001
                                       Galveston, Texas

Attorney for Appellee                  Ms. Rebecca Klaren
     (Appeal only)                     Galveston County Criminal
                                       District Attorney’s Office
                                       600 59th Street, Suite 1001
                                       Galveston, Texas

                        CITATION TO THE RECORD

Clerk’s Record (12CR1863) ..................... C.R.I (volume and
page)

Clerk’s Record (14CR0154) .................... C.R.II (volume and
page)

Reporter’s Record .............................. R.R. (volume and
page)


                               ii
                         TABLE OF CONTENTS

                                                             PAGE

List of Parties .........................................           ii

Table of Contents .......................................       iii

List of Authorities   ....................................          iv

Appellant’s Sole Ground for Rehearing ..................            6

    APPELLANT   RESPECTFULLY   SUBMITS   THAT   THE
    ORIGINAL OPINION OF THIS COURT OMITS THE KEY
    AND UNDISPUTED FACT THAT PROVES THAT THE
    COMPLAINANT WAS NOT IN DANGER OF FURTHER BODILY
    INJURY AT THE TIME OF THE WARRANTLESS ARREST.


Argument and Authorities ................................           6

Certificate of Service ..................................           13




                              iii
                       LIST OF AUTHORITIES


CASES
Amores, 816 S.W.2d at 415 ............................... 10

Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App.
 1996) .................................................. 11

Atkins v. State, 919 S.W.2d 770, 774 (Tex. App.—Houston
 [14th Dist.] 1996, no pet. ............................. 10

Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972)
  ....................................................... 10

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69
 L.Ed. 543 (1923) ....................................... 10

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23
 L.Ed.2d 685 (1969) ..................................... 10

Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990)
  ....................................................... 11

Hernandez v. State, 14-00-00134-CR, 2002 WL 58823 (Tex.
 App.—Houston [14th Dist.] Jan. 17, 2002, no pet.)(not
 designated for publication) ............................ 11

McClatchy v. State, 758 S.W.2d 328, 330 (Tex. App.-
            TH
 Houston [14 Dist.] 1998, pet. ref’d) ................... 7

Randolph v. State, 152 S.W.3d 764, 771-73 (Tex. App.—Dallas
 2004, no pet.) .......................................... 7

Stoddard v. State, Tex. Crim. App., 475 S.W.2d 744 ...... 10

Wilson v. State, 621 S.W.2d 799, 803–04 (Tex. Crim. App.
 1981) .................................................. 11

STATUTES
Tex. Code Crim. Proc. Ann. art. 14.01 14.03 (Vernon 1977) 11



                             iv
                       NOS. 14-14-00391-CR
                          14-14-00392-CR



                                IN THE

                            COURT OF APPEALS

                                FOR THE

                   FOURTEENTH DISTRICT OF TEXAS

                            HOUSTON, TEXAS


                  HOWARD MARTIN HARRIS, Appellant

                                  v.

                   THE STATE OF TEXAS, Appellee


              Appealed from 212TH District Court
                  of Galveston County, Texas
               Cause Nos. 12CR1863 and 14CR0154


                  APPELLANT’S MOTION FOR REHEARING


TO THE HONORABLE COURT OF APPEALS:

    Now   comes    Howard    Martin       Harris,   by   and   through   his

attorney of record Joel H. Bennett, of Sears & Bennett, LLP,

and files this Motion for Rehearing.

    Appellant respectfully moves this Court for a rehearing

in these cases.       The Court accurately sets forth the law
                                      5
related to a warrantless arrest with regards to a danger of

further    bodily     injury.           Appellant         submits       that    key    and

undisputed factual issue of this case was not addressed in

the Court’s opinion.           The key factual issue distinguishes

this    case   from   those     cited         in    the    Court’s       opinion       and

should lead to a different result.

           APPELLANT’S SOLE ISSUE REGARDING REHEARING

       APPELLANT   RESPECTFULLY   SUBMITS   THAT   THE
       ORIGINAL OPINION OF THIS COURT OMITS THE KEY
       AND UNDISPUTED FACT THAT PROVES THAT THE
       COMPLAINANT WAS NOT IN DANGER OF FURTHER BODILY
       INJURY AT THE TIME OF THE WARRANTLESS ARREST.

                       ARGUMENT AND AUTHORITIES

       The opinion of the Court accurately sets forth the law

related to the warrantless arrest of Appellant.                                Appellant

was    arrested    without     a    warrant          on    the    grounds       that    an

assault occurred and there was a danger of further bodily

injury    to   the    victim.           The        Court’s       opinion       correctly

states, “Thus, whether appellant’s arrest was illegal (and

his    resulting     statement      should         be     suppressed)        hinges    on

whether the arresting officers had probable cause at the

time of the arrest to believe that there was a danger of

further    bodily     injury       to    the       victim.”        p.    6     (Emphasis

                                          6
added).

      The    key       issue     raised     by   Appellant        was    that,    under

specific facts of this case, there was no threat of future

danger to the complainant at the time of the warrantless

arrest.       The complainant was safely and securely located

inside      the        Dickinson        Police     Department       at     the     time

Appellant was arrested.                 The complainant was not at risk of

future danger when the police decided to arrest Appellant

without a warrant.

      The cases cited by the Court are Randolph v. State, 152

S.W.3d 764, 771-73 (Tex. App.—Dallas 2004, no pet.) and

McClatchy         v.    State,    758     S.W.2d          328,    330    (Tex.    App.-

Houston [14TH Dist.] 1998, pet. ref’d).                     Both of these cases

are   factually           distinguishable          from     the     present.         In

Randolph,         the     complainant       was      home    at     the    time     the

defendant in that case returned home and he was arrested

due to the threat of further violence.                           In McClatchy, the

defendant assaulted the complainant in her own home and he

was gone when the police arrived at the residence.                               He was

later arrested at a motel room.                      The Court held that the

arrest      was    lawful      due   to    the     threat   that    the    defendant

                                            7
might return to the complainant’s home and commit a future

assault.      The fact that the officers responded to another

call    prior      to    proceeding      to    the     motel   to   arrest    the

defendant did not vitiate the threat of future violence.

       In the present case, the complainant was located inside

the Dickinson Police Department.                  Neither the trial court

findings      nor       this   Court’s        opinion    addressed    how     the

complainant was in danger of further violence at the time

of Appellant’s arrest.           The facts of the case affirmatively

disprove the threat of future violence at the time of the

arrest.

       This   is    not    a   situation       where    the    defendant     could

return to the home of the complainant and renew an assault.

Nor is it a situation where the defendant could track down

the complainant to renew the assault.                    At the key point in

time—the specific time Appellant was arrested—there was no

possible danger of further bodily injury to the victim.

       Appellant even agrees that it could be argued that the

complainant in the present case may be in danger if she

left Appellant’s house and went back to her home.                      Although

there is no evidence that Appellant knew where she lived or

                                         8
how to find her; but, based upon the evidence that “they

were friends”, one could infer that he may know how to

locate her.

    As   argued     in     Appellant’s      original       brief,     the

complainant was at the police station, surrounded by law

enforcement officers.      Unless Appellant was going storm the

Dickinson Police Department, the complainant was safe at

that time from any danger of further bodily injury.                  This

is the crucial and undisputed fact that should lead to a

different result in Appellant’s case. The two cases cited

by the Court in its opinion are factually distinguishable.

Both of the complainants in those two cases (Randolph and

McClatchy) were assaulted in there own homes and remained

in their homes after the assault.

    But the specific facts of this case are drastically and

critically    different.   All   the    officers   knew,    beyond   any

doubt, that the complainant was not in danger of future

violence at the time he was arrested.         To determine whether

a particular warrantless arrest is legal or not, the Court

of Appeals must look at all the facts known to the officers

at the time of the arrest.             “In reviewing a warrantless

                                  9
arrest to determine the existence of probable cause, we

look to the facts known to the officer at the time of the

arrest. Amores, 816 S.W.2d at 415...Whether probable cause

exists    is     determined     by      applying        the     totality        of   the

circumstances test. Id. at 413. The State bears the burden

to    prove    the    existence      of    probable       cause       to   justify      a

warrantless arrest or search. Id.” Atkins v. State, 919

S.W.2d 770, 774 (Tex. App.—Houston [14th Dist.] 1996, no

pet. (Emphasis added).

      The simple fact that there is a statutory exception to

the warrant requirement does not automatically mean that

the    exception      applies     in      every    case.       “In    order      for    a

warrantless arrest or search to be justified, the state

must show the existence of probable cause at the time the

arrest    or      search      was       made      and      the       existence         of

circumstances         which   made        the     procuring          of    a    warrant

impracticable. E.g. Chimel v. California, 395 U.S. 752, 89

S.Ct.    2034,       23   L.Ed.2d      685      (1969);       Carroll      v.    United

States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1923);

Stoddard v. State, Tex. Crim. App., 475 S.W.2d 744.” Brown

v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972).                                The

                                          10
statutory     exception     does     not    overrule    the    Constitutional

requirements     of   the    necessity       of   a   warrant.     It   merely

defines a particular set of facts that meet the requirement

of “impracticality” to obtain the warrant.

       “Generally, an arrest or search without a valid arrest

warrant is unreasonable. See Wilson v. State, 621 S.W.2d 799,

803–04 (Tex. Crim. App. 1981). However, this rule has several

exceptions. See Tex. Code Crim. Proc. Ann. art. 14.01 14.03

(Vernon 1977). An officer may make a warrantless arrest or

search if (1) there is probable cause and (2) the arrest

falls within the provision of one of the statutes authorizing

a warrantless arrest. Anderson v. State, 932 S.W.2d 502, 506

(Tex. Crim. App. 1996); McGee v. State, 23 S.W.3d 156 (Tex.

App.-Houston [14th Dist.] 2000, pet. granted). The State must

show the existence of probable cause at the time of the

arrest or search and the existence of circumstances which

made    the   procuring     of   a   warrant      impracticable.      Crane   v.

State,    786   S.W.2d      338,     346     (Tex.     Crim.   App.     1990).”

Hernandez v. State, 14-00-00134-CR, 2002 WL 58823 (Tex. App.—

Houston [14th Dist.] Jan. 17, 2002, no pet.)(not designated

for publication).

                                       11
      It is the second prong of the statutory exception that

the State failed to prove. Specifically, that there was a

danger of future violence to the complainant at the time

Appellant     was    arrested.         As      this       Court   held    in    Atkins,

supra, it is the State that bears the burden to prove the

existence     of    probable       cause       to    justify      the    warrantless

arrest      under    the       totality     of      the    circumstances.            The

linchpin of this case is the location of the complainant

and the inability of Appellant to cause her future bodily

injury at the time of the arrest.                         At the time Appellant

was   arrested,          the   complainant          was    safely    and       securely

located     at     the    Dickinson       Police      Department         and    in   the

presence      of    numerous       law      enforcement           officers.          The

complainant was in absolutely no danger of further bodily

injury from Appellant at the time of his arrest.                                Without

such danger of future bodily injury, the warrantless arrest

was not authorized by law.

      For    all    the    foregoing      reasons,         Appellant      moves      this

Court to grant a rehearing in this matter and after due

consideration, sustain Appellant’s Sole Issue on appeal, that

the case be reversed, and the case remanded for further

                                          12
proceedings.


                           Respectfully submitted,

                           SEARS & BENNETT, LLP

                           /s/ Joel H. Bennett
                           JOEL H. BENNETT
                           Texas State Bar No. 00787069
                           1100 Nasa Parkway, Suite 302
                           Houston, Texas 77058
                           Telephone: (281) 389-2118
                           Facsimile: (866) 817-5155
                           joel@searsandbennett.com

                           ATTORNEY FOR HOWARD MARTIN
                           HARRIS

                   CERTIFICATE OF SERVICE

     I hereby certify that Appellant’s Motion for Rehearing
has been served upon Allison Lindblade and Rebecca Klaren
at the Galveston County Criminal District attorney’s office
on this the 25th day of August, 2015 by email to
Allison.lindblade@co.galveston.tx.us.                   and
Rebecca.klaren@co.galveston.tx.us.


                           /s/ Joel H. Bennett
                           Joel H. Bennett

                 Certificate of Compliance

     In compliance with TRAP 9.4(i), I certify that the word
count in this reply brief is approximately 1832 words.

                           /s/ Joel H. Bennett
                           Joel H. Bennett



                             13
