                                             NO. 07-01-0425-CR

                                      IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                                AT AMARILLO

                                                    PANEL E

                                               APRIL 15, 2004

                                 ______________________________


                              ALEXIUS JAMALL NELSON, APPELLANT

                                                        V.

                                 THE STATE OF TEXAS, APPELLEE


                              _________________________________

                 FROM THE 184TH DISTRICT COURT OF HARRIS COUNTY;

                       NO. 833021; HONORABLE JAN KROCKER, JUDGE

                                _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.*


                             MEMORANDUM OPINION
                 ON REMAND FROM THE COURT OF CRIMINAL APPEALS1


      In our opinion on motion for rehearing of April 24, 2003, we overruled appellant’s

third point contending the evidence was legally insufficient to prove he knowingly or

      *
          Joh n T . Boyd, Chief Justice (Re t.), Seventh Court of A ppe als, sitting by ass ignm ent.

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          Tex . R. App. P. 47.2(a).
intentionally caused the death of the victim. However, we sustained appellant’s fifth point

of error asserting the trial court erred in permitting an absolutely disqualified juror to serve

on the jury and, accordingly, reversed and remanded the case. On review by the Court of

Criminal Appeals, it held that the error, if any, was not preserved for review and reversed

our judgment and remanded the cause for further proceedings. By his remaining points

of error, appellant contends (1) the trial court erred in finding the officer had probable

cause to believe he committed a felony and was about to escape under article 14.04 of the

Texas Code of Criminal Procedure, (2) the trial court erred in finding that the taint from the

illegal arrest was sufficiently attenuated to render his confession voluntary, and (4) the

evidence is factually insufficient to prove he knowingly or intentionally caused the death of

the victim. We affirm.


       Having found the evidence was legally sufficient to support appellant’s conviction

in our opinion of April 24, 2003, we now address his fourth point by which he challenges

the factual sufficiency of the evidence to prove that he knowingly or intentionally caused

the death of the victim. In our review of the factual sufficiency of the evidence, we apply

the standard of review set out in Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Cr.App. 2000),

and set aside the verdict only if the evidence standing alone is “so weak” as to be clearly

wrong or manifestly unjust. Also, we conduct a neutral review of all the evidence and

recognize that it is the exclusive province of the jury to determine the credibility of the

witnesses and the weight to be given their testimony. Johnson v. State, 571 S.W.2d 170,




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173 (Tex.Cr.App. 1978); Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo

1997, pet. ref’d).


       In addition, we also note that intent and knowledge are fact issues for the jury and

are almost always proved through evidence of the circumstances surrounding the crime.

Manrique v. State, 994 S.W.2d 640, 649 (Tex.Cr.App. 1999), citing Robles v. State, 664

S.W.2d 91, 94 (Tex.Cr.App. 1984). Intent may be inferred from any facts which tend to

prove its existence, including the acts, words, and conduct of the accused, the method of

committing the crime, and from the nature of wounds inflicted on the victim. Hernandez

v. State, 819 S.W.2d 806, 810 (Tex.Cr.App. 1991), cert. denied, 504 U.S. 974, 112 S.Ct.

2944, 119 L.Ed.2d 568 (1992).


       In our prior opinion, in connection with our legal sufficiency review, we detailed the

evidence in eight separate paragraphs. The State established that appellant was alone

with the victim when he sustained fatal injuries. Considering the victim’s size and age, the

attending circumstances, and the medical examiner’s report that the victim suffered at least

13 blows to his body, including rib fractures, injuries to his head, and that intent may be

inferred, we conclude the evidence, standing alone, was not so weak as to render the

verdict clearly wrong and manifestly unjust. Appellant’s fourth point is overruled.


       By his first point of error, appellant contends the trial court erred in finding the

officers had probable cause to believe he committed a felony and was about to escape

under article 14.04 of the Code of Criminal Procedure. We disagree. We apply the abuse

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of discretion standard of review discussed in State v. Ballard, 987 S.W.2d 889, 891

(Tex.Cr.App. 1999) and Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App. 1990).

Because appellant does not challenge the finding by the trial court that both counsel

agreed that his first statement was admissible, we limit our review to appellant’s second

written statement which was given after the results of the autopsy of the victim were known.


       Focusing our attention on article 14.04, we must determine whether appellant

demonstrated the trial court abused its discretion in finding there was probable cause to

believe he had committed a felony and was about to escape. Appellant’s arrest without

a warrant was proper if exigent circumstances justified his arrest under article 14.04.

Farrah v. State, 883 S.W.2d 674, 677 (Tex.Cr.App. 1994). The requirements for a

warrantless arrest are (1) the person who provides the officer information must be credible;

(2) the offense must be a felony; (3) the offender must be about to escape ; and (4) there

must be no time to obtain a warrant. Crane v. State, 786 S.W.2d 338, 346 (Tex.Cr.App.

1990). In Allridge v. State, 850 S.W.2d 471, 491 (Tex.Cr.App. 1991), in discussing the

factors which constitute reasonable conclusion of probable cause to make a warrantless

arrest, the last element discussed by the Court of Criminal Appeals was the “arresting

officers’ basis for believing that a suspect would take flight if not placed in custody.” Thus,

we need not decide whether the evidence shows that appellant was in the process of

escaping but instead, the discreet question is whether it supported “the arresting officers’

basis for believing” that appellant “would take flight if not placed in custody.”




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       At the conclusion of the hearing on the motion to suppress, the trial court, with

obvious precision and care, announced her findings of fact on the record. As material

here, the trial court found:


       C      the arresting officer had received satisfactory proof from several
              credible witnesses that a felony had been committed;
       C      the officer had a belief that appellant was about to escape and that
              there was no time to procure a warrant;
       C      the requirements of article 14.04 of the Code of Criminal Procedure
              were met;
       C      appellant was leaving the scene to avoid confrontations by persons
              who had learned the results of the autopsy report;
       C      based upon the officer’s testimony that appellant was attempting to
              escape;
       C      appellant’s testimony that he did not understand the warnings given
              to him was not credible;
       C      appellant knowingly, intelligently, and voluntarily waived the rights
              regarding the statement; and
       C      the statement given after the results of the autopsy report became
              public knowledge was voluntarily given.


       Appellant admits that the family of the victim leaked the results of the autopsy. Also,

admitting the evidence does show that he was trying to avoid an assault by angry family

members, appellant argues that it does not support the trial court’s finding that he was

trying to escape from police. We disagree. An intention to escape from angry family

members is not inconsistent with an intention to also escape from the police. Obviously,

when he became aware that the family members had learned the findings of the autopsy

report, no doubt, he also concluded that the police would not be far behind. Thus, we


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conclude the trial court did not abuse its discretion in overruling appellant’s motion to

suppress. Appellant’s first point of error is overruled. Our disposition of appellant’s first

point pretermits our consideration of his second point.


       Accordingly, the judgment of the trial court is affirmed.


                                                  Don H. Reavis
                                                    Justice


Do not publish.




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