                                    NO. 07-08-0296-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                    JANUARY 21, 2010

                           ______________________________


                      LEONARD L. MARTINEZ, SR., APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2007-416,142; HONORABLE JIM BOB DARNELL, JUDGE

                           _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                         OPINION


       Appellant, Leonard L. Martinez, Senior, was convicted by a jury of felony burglary

of a habitation enhanced by two prior felony convictions and sentenced by the trial court

to confinement for life.    Appellant asserts (1) the evidence is legally and factually

insufficient, and the trial court erred by (2) admitting an unwarned statement in violation of

his right against self-incrimination and article 38.22 of the Texas Code of Criminal
Procedure; (3) admitting evidence of an extraneous burglary in violation of Rules 404(b)

and 403 of the Texas Rules of Evidence; and (4) denying his motion to suppress evidence

based upon an illegal arrest. We affirm.


                                        Background


       On May 15, 2007, a Lubbock County Grand Jury returned an indictment against

Appellant alleging that he intentionally entered the habitation of Candra Fulford, on or

about April 24, 2007, without her consent, and with the intent to commit theft. The

indictment also contained enhancement paragraphs which alleged Appellant had twice

before been convicted of the felony offense of delivery of a controlled substance.


       I.     Hearing on Appellant’s Motion to Suppress


       In his motion to suppress, Appellant asserted he was illegally arrested without

probable cause. As a result, he sought to suppress all evidence derived from the seizure.

He also asserted his unwarned statements, made prior to receiving any admonition

concerning his rights against self-incrimination, were inadmissible.


       At the suppression hearing, Sergeant Mark Wims of the Lubbock Burglary Unit,

testified that, on April 24, 2007, he received a call reporting a burglary at 2705 86th Street.

That call implicated three Hispanic males and a maroon Ford Expedition in the burglary.

The SUV’s description was similar to a particular SUV linked to Leonard Martinez, Junior,



                                              2
a burglary suspect that his unit had been investigating for several months.1 The ongoing

investigation by the Burglary Unit linked Appellant, Martinez Junior (his son), and a maroon

Ford Expedition with a dent on the rear hatch, to a house located at 2810 65th Street.2

After receiving the call reporting the burglary, Sergeant Wims sent out a call that the

vehicle connected with the reported burglary matched the description of a similar vehicle

seen parked at 2810 65th Street.


        At approximately 11:30 a.m., Detective Bobby Thompson, Property Crime Division,

received Sergeant Wims’s call reporting a burglary involving three Hispanic males and a

maroon Expedition that could be located at 2810 65th Street. Detective Thompson

proceeded to the location in an unmarked car. When he didn’t locate the Expedition, he

parked in a lot across from the residence at the intersection of 65th and Canton Streets.

Sergeant Wims also proceeded to that location as did other officers responding to his call.

Sergeant Wims was aware Detective Thompson was on location looking for the vehicle.


        At approximately 12:27 p.m., Detective Thompson spotted a maroon SUV driven by

a Hispanic male. After the SUV drove through the intersection, he pulled behind and

turned on his flashing lights. The SUV then pulled into the driveway at 2810 65th Street and

stopped.



        1
          Sergeant W im s initiated an investigation of Martinez Junior’s activities after receiving anonym ous
tips that he was responsible for burglaries in the area and was attem pting to sell stolen m erchandise.

        2
         Appellant, Martinez Junior, and a m aroon Ford Expedition had been seen at the residence num erous
tim es. Appellant was believed to be living at the address.

                                                      3
        In conformance with his training and experience, Detective Thompson treated the

stop as a “high risk felony stop” because burglary suspects have been known to be armed.

From a vantage point behind his car door and engine firewall, Detective Thompson drew

his weapon and ordered the occupants out of the SUV. The driver exited and joined two

passengers on the opposite side of the SUV. Detective Thompson then ordered the three

men to lie down on the ground. Uncertain whether anyone was inside, he covered the front

of the house and the SUV until Officer Richard Calderon arrived and handcuffed the three

men. The officers then patted them down, separated them, and placed them in the back

seats of different patrol cars for safety reasons. Detective Thompson testified they were

not under arrest but detained for further investigation. After the scene was secured,

Detective Thompson looked inside the SUV to make certain there were no other

passengers and observed a Sony PlayStation and video camera lying in the front

floorboard on the passenger side of the vehicle.


        Detective Thompson then spoke to each of the three men without warning them of

their rights against self-incrimination.3 He asked their identities, where they lived, what they

were doing at the residence, and whether there was anyone in the house. Appellant

asserted he did not live at the residence but owned the SUV. Appellant also stated he


        3
          The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), com e
into play when a person in custody is subjected to either express questioning or its functional equivalent.
Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). A confession m ay be
deem ed “involuntary” either through a failure to com ply with the dictates of Miranda, noncom pliance with
article 38.22 of the Code of Crim inal Procedure or failure to com ply with due process or due course of law
because the confession was not freely given as a result of coercion, im proper influences, or incom petency.
W olfe v. State, 917 S.W .2d 270, 282 (Tex.Crim .App. 1996).

                                                     4
loaned the SUV to his son whom he had just picked up. Appellant explained the

PlayStation and video camera were in the vehicle “when he got there.”


       When questioned by Detective Thompson, Martinez Junior indicated Appellant and

Daniel Trevino, the third passenger in the SUV, picked him up about eight minutes before

the stop. He claimed the PlayStation and video camera were in the SUV when Appellant

picked him up. Trevino refused to speak with Detective Thompson.


       According to testimony given by Sergeant Wims, Candra Fulford, the victim who

reported the burglary, was brought to the location of the stop. She placed Martinez Junior

and the SUV at the scene of the burglary. Based upon surveillance connecting Appellant,

Martinez Junior, the Ford Expedition and the residence at 2810 65th Street to a burglary

investigation, the victim’s identification of Martinez Junior and the Expedition as being

involved in the Fulford burglary, the suspects’ conflicting stories regarding their prior

activities and the items found in the SUV, the three men were placed under arrest and the

SUV impounded.


       When the SUV’s contents were inventoried, Detective Thompson found a receipt

in the video camera bag from Royal Carribean International to Myrna Porras. Later that

day, he arranged to meet Porras at her home. When she arrived, Porras determined that

her house had been burglarized that morning while she was at work. She also identified

the video camera, PlayStation, and jewelry taken from Trevino’s pockets as belonging to

her.

                                            5
      Appellant testified that, when he was arrested, he was driving his girlfriend’s SUV.

He further testified Detective Thompson asked for permission to search the SUV, Appellant

refused, and the vehicle was searched without permission. He also testified that, while he

was in the patrol car, Detective Thompson told him nothing was taken at the burglary on

86th Street. When asked by the State whether he voluntarily answered questions by

Detective Thompson, Appellant responded affirmatively.


      The trial court ruled that Appellant’s statements made during the stop were

inadmissible because he had not been “mirandized” but denied the remainder of the

motion.


      II.    The Trial


      Candra Fulford testified she lived at 2705 86th Street and was home with her little

brother on the night of April 19, 2007, when a strange man began banging on the front

door. There were no vehicles in the driveway because her older brother and parents were

out for the evening. She did not recognize the caller but could tell he was Hispanic. After

she phoned her mother who phoned her older brother, the man walked away. Her older

brother arrived minutes later and confronted the man, who then left in a pickup.


      On the morning of April 24, 2007, a day when everyone in the Fulford family was

typically at school or work, Fulford was home alone because she was not feeling well. She

again heard someone beating on the front door. When she looked out a window, she


                                            6
observed the same man who had been pounding on the door several days earlier. She

saw him walk away and enter a maroon Expedition with tinted windows. The Expedition

was parked facing away from the cul-de-sac and, as it drove away, she observed a large

dent in the rear end of the SUV. She called her mother and told her the same man was

back. As instructed by her mother, Fulford locked the front and rear doors to the house

securing the deadbolts.


        Shortly thereafter, she heard two loud bangs and a cracking noise. She thought

someone was in the house. She called her mother and then called 911. She locked

herself in the bathroom and waited for the police to arrive. Within minutes, her grandfather

arrived followed by police officers. Later, the same day, she accompanied the police to a

location where she identified a Hispanic male as the person she had seen outside her

house several nights earlier4 and that same day. She also identified a maroon Expedition

with tinted windows and a dented rear hatch as the vehicle she had seen the man enter

outside her house that same day.


        Detective Thompson next testified.5 Appellant objected to any testimony related to

Appellant’s statements during the stop because Appellant was in custody and received no



        4
          At trial, Hagen Fulford, Candra’s brother, described the events that occurred after his arrival at their
house the night of April 19. He identified Martinez Junior as the person he confronted walking through his
front yard after he arrived. He also identified Martinez Junior’s pickup truck parked outside his house. He
could not identify the driver of the truck.

        5
        Those portions of Detective Thom pson’s testim ony at trial that m irrored his testim ony at the
suppression hearing will not be reiterated.

                                                        7
Miranda warnings. The State asserted that, because Appellant’s counsel argued the SUV’s

ownership during his opening statement,6 the State should be able to elicit testimony of

Appellant’s unwarned statements at the stop regarding the SUV’s ownership. The trial

court overruled Appellant’s objection and permitted Detective Thompson to testify that, at

the stop, Appellant informed him he owned the SUV.


        Jose Velasquez testified, on the morning of the incident, he was preparing to eat

breakfast when he saw someone jump the Fulford’s back fence. Within seconds, he heard

a loud smashing sound, ran to the back door, looked into the Fulford’s yard, and observed

two Hispanic males standing near the Fulford residence. He yelled, “Hey!” The two men

then ran through Fulford’s back yard gate bordering the alley. Velasquez observed the two

men jump into an Expedition as it sped away. He told police the Expedition was a dark

color, burgundy with a dent in the back near the latch beneath the rear window, and there

were at least three persons in the Expedition. Later that day, he accompanied police

officers to another location where he identified the Expedition he observed speeding away

in the alley and Martinez Junior as one of the persons he observed running from the

Fulford house.


        Jeremy Winters, Crime Scene Officer, testified he had taken photographs of the

Fulford’s back door the day of the burglary. He testified there was a shoe print on the door.


        6
            In his opening statem ent, Appellant’s counsel asserted that, when the SUV was stopped by Detective
Thom pson, “[Appellant] just happened to be in the car that belonged to his girlfriend, which he had lent his
son. . . .”

                                                      8
In his opinion, the door was locked and either kicked in, or forced open by someone putting

their shoulder to the door, with sufficient force to remove a deadbolt from the door jamb.

Al Erucliani, Fulford’s grandfather, testified the door “was just totally blown off” and

“everything was busted on the door.”


            Sergeant Wims testified7 that, when inventoried, the SUV contained two crowbars,

a Colt air pistol, a prepaid mobile phone, walkie-talkies, black cotton gloves, and leather

gloves. The items located beneath the front seat and within the center console were, in

his training and experience, frequently used as weapons or criminal instruments, i.e.,

burglary tools. He also testified the Fulford residence, Porras residence, and the location

where the SUV was stopped were located near each other off University Avenue. He

estimated the locations were no more than ten to fifteen minutes apart traveling by car.


        Officer Sean Gonzales testified that, prior to April 24, he had observed the SUV in

the driveway at 2810 65th Street. He also observed Appellant and Martinez Junior near the

SUV at that location. Officer Billy Green testified that, when he spoke with Velasquez the

day of the burglary, Velasquez told him he observed two persons in the SUV’s backseat

as it sped away in the alley. Myrna Porras testified that the video camera and PlayStation

found in the SUV were her property. She also identified the jewelry found on Trevino’s

person as her own. Although Appellant objected to any evidence of the Porrras burglary

being admitted because the evidence was irrelevant under Rule 401 of the Texas Rules

        7
         Those portions of Sergeant W im s’s testim ony at trial that m irrored his testim ony at the suppression
hearing will not be reiterated.

                                                       9
of Evidence8 and impermissible character evidence under Rule 404(b), the trial court

overruled the objection.


        At the conclusion of the evidence, the jury returned a verdict of guilty on the felony

offense of burglary of a habitation.               Appellant pled true to the indictment’s two

enhancement paragraphs and the trial court sentenced Appellant to confinement for life.

This appeal followed.


                                               Discussion


         Appellant first asserts the evidence at trial was legally and factually insufficient to

convict him because the State failed to prove anyone entered the Fulford residence. He

next asserts the trial court erred by admitting into evidence Appellant’s unwarned

statement that he owned the SUV. He contends the trial court erred by admitting evidence

of the Porras burglary because the extraneous offense was irrelevant and more prejudicial

than probative. Finally, he contends the trial court erred by denying his motion to suppress

all evidence discovered as a result of the stop because the officers did not have probable

cause to arrest him when he was ordered out of the SUV, told to lie on the ground,

handcuffed, and placed in the backseat of a patrol car.




        8
          For convenience, the Texas Rules of Evidence will be cited throughout the rem ainder of this opinion
sim ply as “Rule ___.”

                                                     10
       Logic dictates that we consider Appellant’s evidentiary issues before making a

determination whether the evidence is legally and factually sufficient. Accordingly, we will

address Appellant’s suppression (Issue 7) and evidentiary (Issues 3, 4, 5 and 6) issues

prior to his sufficiency issues (Issues 1 and 2).


       I.     Motion To Suppress


       Appellant contends Detective Thompson effected an unlawful arrest by drawing his

service weapon, ordering him out of the SUV onto the ground, handcuffing him, and placing

him in the backseat of a patrol car because Detective Thompson lacked probable cause to

arrest him for burglary at that time. As a result, Appellant asserts the trial court should have

suppressed all evidence obtained by the officers after Appellant was stopped.


       A.     Standard of Review


        A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion.

Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Hudson v. State, 247

S.W.3d 780, 783 (Tex.App.–Amarillo 2008, no pet.).              In reviewing a trial court’s

determination of the reasonableness of a temporary investigative detention, appellate

courts use a bifurcated standard of review.          Ford v. State, 158 S.W.3d 488, 493

(Tex.Crim.App. 2005). Almost total deference is given to a trial court’s determination of the

historical facts that the record supports especially when the trial court’s fact findings are

based on an evaluation of credibility and demeanor. St. George v. State, 237 S.W.3d 720,


                                              11
725 (Tex.Crim.App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

The same level of deference is also afforded to a trial court’s ruling on application of law

to fact questions or mixed questions of law and fact if the resolution of those questions also

turn on an evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101,

108-09 (Tex.Crim.App. 2006). However, if mixed questions of law and fact do not fall

within these categories, appellate courts may conduct a de novo review of the trial court’s

ruling. Guzman, 955 S.W.2d at 87.


       When, as here, no findings of fact were requested nor filed, we view the evidence

in the light most favorable to the trial court’s ruling and assume the trial court made implicit

findings of fact supported by the record. See State v. Ross, 32 S.W.3d 853, 855-56

(Tex.Crim.App. 2000). If the trial court’s decision is correct on any theory of the law

applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401, 404

(Tex.Crim.App. 2003); Ross, 32 S.W.3d at 855. Further, the legal question of whether the

totality of the circumstances is sufficient to support an officer’s reasonable suspicion

underlying an investigatory detention is reviewed de novo. See State v. Sheppard, 271

S.W.3d 281, 286-87 (Tex.Crim.App. 2008); Kothe v. State, 152 S.W.3d 54, 62-63

(Tex.Crim.App. 2004).




                                              12
        B.       Investigatory Detention v. Arrest


        The Fourth Amendment does not forbid all seizures, just unreasonable seizures;

Rhodes v. State, 945 S.W .2d 115, 117 (Tex.Crim.App.), cert. denied, 522 U.S. 894, 118 S.Ct.

236, 139 L.Ed.2d 167 (1997), and, for purposes of constitutional analysis,9 both investigative

detentions and arrests are seizures of a citizen by law enforcement officers. Zayas v. State,

972 S.W.2d 779, 789 (Tex.App.–Corpus Christi 1998, pet. ref’d). The differences between

the two are the degrees of intrusion involved and the different legal justifications required of

each. Id. at 788-89.


        An investigative detention occurs when an officer lacks probable cause to arrest but

nonetheless possesses a reasonable suspicion: that is, the officer is able to point to

specific, articulable facts that, taken together with rational inferences from those facts,

reasonably warrants the detention. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.

1997). The articulable facts used by the officer must create some reasonable suspicion

that some activity out of the ordinary is occurring, or has occurred, some suggestion to

connect the detainee with the unusual activity, and some indication the unusual activity is

related to criminal activity. Id. (citing Meeks v. State, 653 S.W.2d 6, 12 (Tex.Crim.App.

1983 ). An arrest, on the other hand, is a greater restraint upon a person’s freedom to

leave or move than is a temporary detention which also restrains a person’s freedom.



        9
         Texas courts follow federal standards with respect to tem porary investigative stops and arrests rather
than apply a m ore stringent standard under the Texas Constitution. Johnson v. State, 912 S.W .2d 227, 231-
34 (Tex.Crim .App. 1995).

                                                      13
Shepard, 271 S.W.3d at 290.          “If the degree of incapacitation appears more than

necessary to simply safeguard the officers and assure the suspect’s presence during a

period of investigation, this suggests the detention is an arrest.” Id. (quoting 40 George E.

Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 7.34, 462

(2d ed. 2001)).


       The standard for distinguishing between an arrest and investigative detention is not

always clear because the distinction between these seizures rests on a fact-specific inquiry

rather than clearly delineated criteria. Johnson, 912 S.W .2d at 235. See Morris v. State, 50

S.W .3d 89, 94 (Tex.App.–Fort W orth 2001, no pet.); Josey v. State, 981 S.W .2d 831, 839

(Tex.App.–Houston [14 th Dist.] 1998, pet. ref’d). By definition, “[a] person is arrested when he

has been actually placed under restraint or taken into custody by an officer or person

executing a warrant of arrest, or by an officer or person arresting without a warrant.” Tex.

Code Crim. Proc. Ann. art. 15.22 (Vernon 2005). This “restraint of liberty” standard, however,

is not adequate when distinguishing between an arrest and a detention because it is a

characteristic common to both. Frances v. State, 922 S.W .2d 176, 179 (Tex.Crim.App. 1996)

(J. Baird, concurring and dissenting). W hether a person is under arrest or subject to a

temporary investigative detention is a matter of degree and depends on the length of the

detention, the amount of force employed, and whether the officer actually conducts an

investigation. See Woods v. State, 970 S.W .2d 770, 775 (Tex.App.–Austin 1998, pet. ref’d).


       During an investigative detention, an officer may employ the force necessary to effect

the reasonable goals of the detention: investigation, maintenance of the status quo, and

                                               14
officer safety. Rhodes, 945 S.W .2d at 117. An officer may conduct a limited pat-down

search of the outer clothing for weapons during an investigative detention if the officer

fears for his safety or that of others. Josey, 981 S.W.2d at 840 (citing Davis v. State, 829

S.W.2d 218, 220 (Tex.Crim.App. 1992). Police officers are not required to use the “least

intrusive means” to verify or dispel their suspicions; United States v. Sokolow, 490 U.S. 1, 11,

109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), however, if the force utilized exceeds that reasonably

necessary to effect the goal of the stop, this force may transform an investigative detention

into a full-blown arrest. See State v. Moore, 25 S.W .3d 383, 386 (Tex.App.–Austin 2000, no

pet.).


         Because an officer’s safety may be threatened by a passenger’s access to weapons

in an automobile, an officer may, as a matter of course, order a passenger lawfully stopped

to exit the vehicle; Rhodes, 945 S.W.2d at 118 (citing Pennsylvania v. Mimms, 434 U.S.

106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1997), and lie down on the ground pending completion

of the stop. See Smith v. State, 813 S.W.2d 599, 601 (Tex.App.–Houston [14th Dist.] 1991,

pet. ref’d) (investigative detention not transformed into an arrest when officer requested

that suspect exit his car, lie on the ground, and submit to a pat-down for officer safety

reasons). Furthermore, approaching a vehicle with a service weapon drawn does not

transform an investigative detention to an arrest. See Marsh v. State, 684 S.W.2d 676,

679 (Tex.Crim.App. 1984) (one officer approaching driver’s side of vehicle with a rifle

drawn, while another officer approached the passenger’s side of vehicle with his gun in




                                              15
hand); Mount v. State, 217 S.W.3d 717, 726-27 (Tex.App.–Houston [14th Dist.] 2007, no

pet.).


         Likewise, the use of handcuffs does not automatically convert an investigative

detention into an arrest; Shepard, 271 S.W.3d at 286, and there is no bright line rule that

handcuffing a suspect always constitutes an arrest; Rhodes, 945 S.W.2d at 116-18.

Ordinarily handcuffing a suspect is more consistent with a full-blown arrest than it is with

an investigatory detention; Rhodes, 945 S.W.2d at 117, however, an officer may resort to

handcuffs without transforming an investigative detention into an arrest when he or she is

reasonably concerned for their safety or to maintain the status quo. Shepard, 271 S.W.3d

at 286 (handcuffed suspect during investigative detention for safety purposes and to

maintain status quo). See also Balentine, 71 S.W.3d at 771 (investigative detention did

not evolve into an arrest simply because appellant was escorted to patrol car and

handcuffed); Rhodes, 945 S.W.2d at 116-118 (appellant required to exit vehicle and

handcuffed); Mays v. State, 726 S.W.2d 937, 944 (Tex.Crim.App. 1986), cert. denied, 484

U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1020 (1988) (frisked and handcuffed); Spight v.

State, 76 S.W.3d 761, 769-70 (Tex.App.–Houston [1st Dist.] 2002, no pet.) (handcuffed);

Goldberg v. State, 95 S.W.3d 345, 360 (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d), cert.

denied, 540 U.S. 1190, 124 S.Ct. 1436, 158 L.Ed.2d 99 (2004) (handcuffed); Morris, 50

S.W.3d at 97-98 (removed from truck at gunpoint, placed on ground, and handcuffed

behind back); Josey, 981 S.W.2d at 839-40 (removed from car, patted-down, and

handcuffed); Nargi v. State, 895 S.W.2d 820, 823 (Tex.App.–Houston [14th Dist.] 1995),

                                            16
pet. dism’d, improvidently granted, 922 S.W.2d 180 (Tex.Crim.App. 1996) (handcuffed);

Salazar v. State, 805 S.W.2d 538, 540 (Tex.App.–Fort Worth 1991, pet. ref’d) (removed

from car, hands on head, handcuffed, and patted-down).


       In the absence of a reasonable safety concern or need to maintain the status quo,

however, officers’ use of force to secure a suspect has been held to constitute an arrest.

See Amores v. State, 816 S.W.2d 407, 411-12 (Tex.Crim.App. 1991) (arrest where

handcuffed and no investigation performed). See also Burkes v. State, 830 S.W.2d at 925

(arrest where handcuffed and no investigation performed); Akins v. State, 202 S.W .3d 879,

888 (Tex.App.–Fort W orth 2006, pet. ref’d) (arrest where car boxed in, approached with

guns drawn, placed on ground, and handcuffed in absence of any necessity to maintain

officer safety or status quo); Moore, 25 S.W.3d at 386-87 (forgery suspect handcuffed in

absence of officer safety concern); Gordon v. State, 4 S.W.3d 32, 37 (Tex.App.–El Paso

1999, no pet.) (handcuffed and placed in backseat of patrol car solely to keep suspect out

of house while K-9 search performed); Rodriquez v. State, 975 S.W.2d 667, 675-77

(Tex.App.–Texarkana 1998, pet. ref’d) (boxed in car, removed suspect at gunpoint, had

him lie face down in parking lot, and performed no investigation); Flores v. State, 895

S.W.2d 435, 441 (Tex.App.–San Antonio 1995, no pet.) (removed from car at gunpoint

assuming spread-eagle position with hands on roof of car, officer testified suspect was not

free to leave, and no evidence of officer safety concerns).




                                            17
       In evaluating whether police conduct during an investigatory detention is reasonable,

common sense and ordinary human experience govern over rigid criteria. See Rhodes, 945

S.W .2d at 118. W hether a detention is an actual arrest or an investigative detention depends

on the reasonableness of the intrusion under all the facts. Id. Reasonableness is measured

by balancing the nature of the intrusion into an individual’s Fourth Amendment interests

against the public interest of legitimate government interest at stake; Zayas, 972 S.W.2d

at 789, and must be judged from the perspective of a reasonable officer at the scene,

rather than with the advantage of hindsight. Rhodes, 945 S.W.2d at 118. Allowances must

be made for the fact that officers must often make quick decisions under tense, uncertain, and

rapidly changing circumstances.     Id.   Additional factors to consider in determining the

reasonableness of the detention include the nature of the crime under investigation, the

degree of suspicion, the location of the stop, the time of day, the number of suspects present,

and the reaction of each suspect. See Akins v. State, 202 S.W .3d at 885 (citing Illinois v.

Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). The officer’s

opinion, while not determinative, is another factor to be considered. Amores, 816 S.W .2d at

413. Also very important is whether the officers actually conducted an investigation after

seizing the suspect. Burkes, 830 S.W .2d at 925; Moore, 25 S.W .3d at 386.


       Based on the information known to the officers investigating the burglary at the

Fulford residence, gathered by Sergeant Wims as a result of the Burglary Units ongoing

investigation of Martinez Junior and the observations of Detective Thompson, we find the




                                              18
police acted within constitutional parameters of a reasonable investigative detention.10 See,

e.g., Gaines v. State, 888 S.W.2d 504, 509 (Tex.App.–El Paso 1994, no pet.) (finding

reasonable suspicion where officer saw two black males in a yellow Honda Civic on a

certain road after receiving a radio broadcast that two black males had committed a

burglary only minutes before, and fled in a late model yellow Honda Civic and were last

seen traveling south on the same road). Appellant‘s detention was reasonably related in

scope to the circumstances that justified the interference at the outset and lasted only so

long as was reasonably necessary to include, or exclude, him as a suspect. After obtaining

conflicting responses to questions related to their prior whereabouts and ownership of

property in the SUV, Appellant was detained until Fulford and Velasquez could be brought

to the scene.11 After Fulford and Velasquez placed the maroon SUV and Martinez Junior

at the Fulford residence at the time of the burglary, sufficient probable cause for arrest

existed, and Appellant was arrested.




        10
           Detective Thom pson stopped the SUV pursuant to radio calls describing the suspects in a felony
burglary as three Hispanic m ales driving a m aroon Expedition that could be located at the address where the
SUV ultim ately stopped. W hen there has been som e cooperation am ong the police officers, the cum ulative
inform ation known to the cooperating officers at the tim e of the stop is to be considered in determ ining
whether reasonable suspicion exists. Hoag v. State, 728 S.W .2d 375, 380 (Tex.Crim .App. 1987). Moreover,
the determ ination of reasonable suspicion is not lim ited to the facts solely within the detaining officer’s
knowledge. See State v. Jennings, 958 S.W .2d 930, 933 (Tex.App.–Am arillo 1997, no pet.). Reasonable
suspicion can also be based on inform ation relayed to one officer by other officers and the sum of the
inform ation known to those officers cooperating with him . See Fearance v. State, 771 S.W .2d 486, 509
(Tex.Crim .App. 1988), cert. denied, 492 U.S. 927, 109 S.Ct. 326, 196 L.Ed.2d 611 (1989).

        11
           The continuation of a tem porary detention m ay be justified by efforts to determ ine whether the victim
or a witness can identify the suspect. Clarke v. State, 785 S.W .2d 860, 869 (Tex.App.–Fort W orth 1990),
aff’d, 811 S.W .2d 99 (Tex.Crim .App. 1991), cert. denied, 502 U.S. 946, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991)
(citing Mays v. State, 726 S.W .2d 937, 944 (Tex.Crim .App. 1986) (en banc)).

                                                        19
       We find the duration of the stop was reasonable and the officers diligently pursued

a means of investigation that was likely to dispel or confirm their suspicions as quickly as

possible. See Josey, 981 S.W.2d at 840-41 (ninety minute detention reasonable). The

SUV was stopped at approximately 12:30 p.m. By 1:23 p.m., the SUV and Martinez Junior

had been identified, and the three men arrested were in the process of being transported

to jail. During this period of time, the officers stopped Appellant, secured the scene,

identified the three men, questioned them regarding their whereabouts and ownership

interest in the SUV, concluded the identification process with Fulford and Velasquez,

arrested the three men, and inventoried the SUV’s contents.


       The force Detective Thompson employed during the detention was also reasonable

under the circumstances. Detective Thompson acted alone when he stopped an SUV

anticipated to contain at least three suspects in a felony burglary. The SUV’s windows were

tinted and stopped at its destination, a house with two windows facing the street–curtains

drawn. In his experience and training, he treated the stop as a “high risk felony stop” because

burglars are known to be armed. He was also concerned for his safety because he did not

know how many occupants were in the SUV, whether they had weapons, and whether there

were persons in the house that might also be armed.


       After the SUV’s occupants were lying on the ground, Detective Thompson kept an eye

on the SUV and the house while Officer Calderon handcuffed Appellant and his two

passengers. The three were then patted-down after which Detective Thompson visually

swept the SUV from outside to assure there were no other passengers. As he did so, he

                                              20
observed a video camera and gaming device in the front floorboard of the passenger side.

W hen the scene was secured, Detective Thompson placed the three men in the backseats

of separate patrol cars for safety reasons and to maintain the status quo. He questioned them

regarding their identities, the SUV’s ownership, their whereabouts that day, where they lived,

and whether anyone was in the house. After receiving inconsistent explanations of their

whereabouts and the ownership of property on the floorboard, he ceased questioning and

awaited the arrival of Fulford and Velasquez.


       W e find Detective Thompson’s need for officer safety and to maintain the status quo

during the investigative detention reasonable.     He was outnumbered at the outset and

attempting to initiate an investigation in an open area where he could easily be targeted from

the SUV’s tinted windows or the residence linked to the suspects. After he secured the area,

he conducted an investigation appropriate to an investigative detention. He held Appellant

only so long as was necessary to eliminate or verify him as a suspect. After Fulford and

Velasquez identified the SUV and Martinez Junior, the three men were arrested and the SUV

impounded. The entire detention took a little less than an hour. On this record, we find

Appellant’s detention was reasonable under the circumstances and the trial court did not

abuse its discretion in denying Appellant’s motion to suppress evidence due to an illegal

arrest. Appellant’s seventh issue pertaining to the trial court’s overruling of his motion to

suppress is overruled.




                                             21
       II.    Unwarned Statement


       Appellant next asserts the trial court improperly permitted the State to offer

evidence of his unwarned statement that he was the SUV’s owner because, at the time the

unwarned statement was made, he was in custody and the subject of a custodial

interrogation. He contends the trial court admitted the unwarned statement in violation of

the dictates of Miranda, supra, and article 38.22 of the Texas Code of Criminal Procedure.


       For purposes of analysis, we will assume without deciding error in the admission of

Appellant’s statement and proceed directly to the harm analysis. See Coleman v. State,

188 S.W.3d 708, 726 (Tex.App.–Tyler 2005, pet. ref’d) (assuming error in admission of

complained-of evidence and addressing appellant’s contention that error was harmful).

Because a correct ruling in this instant is constitutionally required under Miranda; see

Dickerson v. United States, 530 U.S. 428, 439-40, 120 S.Ct. 2326, 147 L.Ed.2d 405

(2000), the error is constitutional error; Alford v. State, 22 S.W.3d 669, 673 (Tex.App.–Fort

Worth 2000, pet. ref’d), and Rule 44.2(a) is applicable. Tex. R. App. P. 44.2 (a). Thus, we

evaluate the entire record in a neutral, impartial, and even-handed manner, not in the light

most favorable to the prosecution; Harris v. State, 790 S.W.2d 568, 586 (Tex.Crim.App.

1989); Kane v. State, 173 S.W.3d 589, 594 (Tex.App.–Fort Worth 2005, no pet.), and must

reverse unless we determine beyond a reasonable doubt that error did not contribute to

Appellant’s conviction or punishment. Alford, 22 S.W.3d at 673.




                                             22
        Appellant contends the State used his unwarned admission, that he owned the

SUV, to link him to the burglary. Aside from the unwarned statement, the State’s evidence

showed that (1) the police had received anonymous tips that Appellant’s son was involved

in burglaries and was attempting to sell stolen property; (2) Appellant had been observed

numerous times at the residence on 65th Street with his son and the SUV; (3) on the day

of the burglary, Appellant was driving the SUV when Detective Thompson made the stop

approximately an hour after the burglary was reported; (4) the SUV contained burglary

tools in and around the console between the driver’s and front passenger’s seats; (5)

stolen property from a second burglary that occurred nearby that morning was lying on the

front floorboard on the passenger side of the SUV in clear view; (6) Appellant’s version of

how he came to be driving the SUV at the time of the stop and his son’s version conflicted;

(7) Appellant’s version of how the stolen items in the floorboard came to be in the SUV and

his son’s version also conflicted; (8) Velasquez told police he observed two Hispanic males

jump into a moving SUV in the alleyway;12 (9) Velasquez and the victim placed the SUV

and Appellant’s son at the scene of the burglary; (10) the victim also placed Appellant’s son

at the burgled residence several days before; (11) the victim’s brother placed Appellant’s

son, his pickup, and an unknown driver at the victim’s residence several days before the


        12
            Although Velasquez’s testim ony at trial and his statem ents to police officers at the scene of the
burglary appeared to equivocate regarding the num ber of persons he saw leaving the Fulford residence in the
SUV and where they were positioned inside the vehicle, a jury is in the best position to evaluate the credibility
of witnesses, and we are required to afford “due deference” to jury determ inations. Marshall v. State, 210
S.W .3d 618, 625 (Tex.Crim .App. 2000). “A jury is the exclusive judge of the credibility of witnesses and of
the weight to be given their testim ony;” Barnes v. State, 876 S.W .2d 316, 321 (Tex.Crim .App. 1994) cert.
denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994), and “reconciliations of conflicts in the evidence
is within the exclusive province of the jury.” Losada v. State, 721 S.W .2d 305, 309 (Tex.Crim .App. 1986).

                                                       23
burglary; and, (12) Trevino, a passenger in the SUV being driven by Appellant at the time

of the stop, had stolen property on his person from a second burglary that occurred that

morning. Having reviewed the entire record, we find beyond a reasonable doubt that the

error did not contribute to Appellant’s conviction. Appellant’s third and fourth issues are

overruled.


       III.   Extraneous Offense


       Appellant next asserts the trial court erred by admitting extraneous offense evidence

of the Porras burglary that occurred the same morning as the Fulford burglary. He

contends its admission violated Rules 404(b) and 403 because the evidence was irrelevant

and overly prejudicial. He also asserts the trial court erred in its admission because the

State failed to prove the Porras burglary beyond a reasonable doubt.


       As a general rule, to prevent an accused from being prosecuted for some collateral

crime or misconduct, the State may not introduce evidence of bad acts similar to the

offense charged. Roberts v. State, 29 S.W.3d 596, 600-01 (Tex.App.–Houston [1st Dist.]

2000, pet. ref’d). Rule 404(b) provides that evidence of “other crimes, wrongs or acts” is

not admissible to prove a defendant’s character in order to show action in conformity

therewith. Nevertheless, such evidence may “be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Tex. R. Evid. 404(b). In addition, a “party may introduce evidence

of other crimes, wrongs, or acts if such evidence logically serves to make more or less

                                            24
probable an elemental fact, an evidentiary fact that inferentially leads to an elemental fact,

or defensive evidence that undermines an elemental fact.” Martin v. State, 173 S.W.3d

463, 466 (Tex.Crim.App. 2005).


       Whether extraneous offense evidence has relevance apart from character

conformity, as required by Rule 404(b), is a question for the trial court. Moses v. State, 105

S.W.3d 622, 627 (Tex.Crim.App. 2003). So, too, is a ruling on the balance between

probative value and the countervailing factors set out in Rule 403, although that balance

is always slanted toward admission of otherwise relevant evidence. De La Paz v. State,

279 S.W.3d 336, 343 (Tex.Crim.App. 2009). Thus, we review a trial court’s decision to

admit extraneous offenses under an abuse-of-discretion standard; Prible v. State, 175

S.W .3d 724, 731 (Tex.Crim.App. 2005), cert. denied, 546 U.S. 962, 126 S.Ct. 481, 163

L.Ed.2d 367 (2005), and, so long as the trial court’s ruling is within the zone of reasonable

disagreement, there is no abuse of discretion and the trial court’s ruling will be upheld.

Montgomery v. State, 810 S.W .2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g). See

Hernandez v. State, 205 S.W .3d 555, 558 (Tex.App.--Amarillo 2006, pet. ref’d).


       Where the charge is burglary with intent to commit theft, the offense is complete if

the entry is made with the requisite intent, regardless of whether a theft is actually

committed . Moore, 54 S.W.3d at 539. Here, we conclude evidence of the Porras burglary

was admissible to show the intent with which “entry” was made into the Fulford residence,

i.e., intent to commit theft. The Porras burglary was close in time and location to the



                                             25
Fulford burglary and subsequent stop on 65th Street. Moreover, the SUV driven by

Appellant contained property stolen from the Porras residence but no property stolen from

the Fulford residence. Thus, evidence of the Porras burglary was relevant under Rules

401 and 404(b) to establish an elemental fact, i.e., intent to commit theft. See, e.g., Banda

v. State, 768 S.W.2d 294, 296 (Tex.Crim.App. 1989) cert. denied, 493 U.S. 923, 110 S.Ct.

291, 107 L.Ed.2d 270 (1989) (“an extraneous transaction will be admissible so long as it

logically tends to make the existence of some fact of consequence more or less probable”).


       We must next consider whether the unfair prejudicial effect of the extraneous

evidence substantially outweighed its probative value and, in doing so, we give great

deference to the trial court’s determination of admissibility. Montgomery, 810 S.W.2d at

391-92.   Here, any prejudicial effect of admitting the extraneous offense evidence was

outweighed by its probative value. The evidence of the Porras burglary was near in time

and location to the Fulford burglary and necessary for the jury to consider in its

determination whether the entry into the Fulford residence was for the purpose of

committing theft. Thus, we agree with the trial court’s determination that evidence of the

Porras burglary was not so egregious as to be highly prejudicial.


       Finally, whether an extraneous offense or bad act is established beyond a

reasonable doubt is a question of fact for the jury, not a preliminary question of

admissibility for the trial court. Mitchell v. State, 931 S.W.2d 950, 953-54 (Tex.Crim.App.




                                             26
1996). See Nanez v. State, 179 S.W.3d 149, 151-52 (Tex.App.–Amarillo 2005, no pet.).13

Once all of the evidence was in, the trial court properly instructed the jury that, before it

could consider extraneous act evidence in its determination of guilt or innocence, it must

be satisfied beyond a reasonable doubt that the acts are attributable to the defendant.


        Here, the trial court did exactly what is required when considering the issue of

extraneous offenses. See Jordan v. State, 271 S.W.3d 850, 855-56 (Tex.App.–Amarillo

2008, no pet.). Consequently, the trial court did not abuse its discretion in admitting this

evidence. Appellant’s fifth and sixth issues are overruled.


        IV.     Legal and Factual Sufficiency


        When appellant challenges both legal and factual sufficiency, we are required to

conduct an analysis of the legal sufficiency of the evidence first and then, only if we find

the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.

Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). In assessing the legal

sufficiency of the evidence, we review all the evidence in the light most favorable to the

verdict to determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt.                 Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. 2007).



        13
           Although the trial court is the sole authority on the threshold issue of adm issibility of relevant
evidence, the jury determ ines whether the burden of proof of extraneous offenses presented has been
satisfied. Nanez, 179 S.W .3d at 152.

                                                     27
       In a factual sufficiency review, we must consider all of the evidence in a neutral light

to determine whether a jury was rationally justified in finding guilt beyond a reasonable

doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In our analysis

we must determine whether the evidence supporting the verdict is so weak or so against

the great weight and preponderance of the evidence as to render the verdict manifestly

unjust. See Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App. 2009). A wrong and

unjust verdict includes instances in which the jury’s findings “shocks the conscience,” or

clearly demonstrates bias. See Grotti v. State, 273 S.W.3d 273, 280 (Tex.Crim.App.

2008). In doing a factual sufficiency review, we must be mindful that a jury has already

passed on the facts and must give due deference to the determinations of the jury. See

Lancon v. State, 253 S.W.3d 699, 704-05 (Tex.Crim.App. 2008). If our decision is to set

aside the verdict of the jury, our opinion should clearly explain how the evidence supporting

the verdict is too weak on its own or how the contradicting evidence so greatly outweighs

the evidence in support of the verdict. See id. Conversely, if our decision is to uphold a

verdict, we are required to consider the most important evidence that the appellant claims

undermines the jury's verdict and explain why that evidence does not have the persuasive

force the appellant believes is sufficient to overturn the verdict. See Sims v. State, 99

S.W.3d 600, 603 (Tex.Crim.App. 2003).


       In a sufficiency of the evidence review, the essential elements of the offense are

those of a hypothetically correct jury charge for the offense in question (i.e., one that

accurately sets out the law and adequately describes the offense for which the appellant

                                              28
was tried without increasing the state’s burden of proof or restricting the state’s theory of

criminal responsibility.) Hooper, 214 S.W.3d at 14; Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997).


         Circumstantial evidence alone is sufficient to establish the guilt of the accused and

the standard of review as to the sufficiency of the evidence is the same for both direct and

circumstantial evidence cases.       Hooper, 214 S.W.3d at 13. Each fact need not point

directly and independently to the guilt of the accused, so long as the cumulative force of

all the evidence, when coupled with reasonable inferences to be drawn therefrom, is

sufficient to support the conviction. Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App.

2006).


         Appellant asserts the evidence at trial was legally and factually insufficient because,

although the back door of the residence was kicked in, there was no testimonial or physical

evidence that anyone actually entered the Fulford residence or took any property from that

residence. More specifically, Appellant contends there was no evidence that the “close”

of the Fulford residence was broken.


         A person commits the second degree felony offense of burglary if he or she enters

a habitation, without the consent of the owner, with the intent to commit a felony, theft or

an assault. Emphasis added. See Tex. Penal Code Ann. § 30.02(a), (c)(2) (Vernon 2003).

A person “enters” a habitation if he or she intrudes any part of their body, or any physical

object connected to their body. Id. at § 30.02(b). “Entry” is established when the plane of

the opening of the house is broken, and may be accomplished by placing a foot inside a


                                               29
door frame, by cutting window or door screens, or by breaking a door lock or frame. See

Ortega v. State, 626 S.W.2d 746, 747 (Tex.Crim.App. 1981) (concluding there was “entry”

when evidence showed screen door latch was pulled off, wooden door’s knob was

disabled, and pry marks were on wooden door). See also Moore v. State, 54 S.W.3d 529,

539-40 (Tex.App.–Fort Worth 2001, pet. ref’d) (testimony of 11-year-old victim that

defendant “entered” the house by placing his foot in the door with intent to engage in

sexual contact with the victim held factually sufficient to support conviction for burglary of

a habitation); Williams v. State, 997 S.W.2d 415, 417 (Tex.App.–Beaumont 1999, no pet.)

(evidence of broken padlock and broken door frame on garage established entry into

building as required for burglary of building); Woods v. State, 814 S.W.2d 213, 215-16

(Tex.App.–Tyler 1991, no pet.) (homeowner’s testimony that four window screens and door

screen had been cut, along with police officer’s testimony that defendant was apprehended

nearby with a knife in his hand, was sufficient evidence of accused’s “entry” into

habitation); Hayes v. State, 656 S.W.2d 926, 927 (Tex.App.–Eastland 1983, no pet.) (jury

could properly infer “entry” from presence of lug wrench and hole in the roof of a store).

Thus, entry can be any breach of the “close” of the residence.


       The entry element of a burglary offense may be proven by inferences, just as

inferences may be used to prove the elements of any other offense. Lopez v. State, 884

S.W.2d 918, 921 (Tex.App.–Austin 1994, pet. ref’d). Moreover, Section 30.02 “does not

require proof of a completed theft; all that needs to be shown is an attempt to commit a

felony or theft.” Williams, 997 S.W.2d at 418 (emphasis added).




                                             30
       At trial, Fulford testified she heard two loud bangs, then a cracking noise, and she

thought someone was in the house. Officer Winters testified there was a shoe print on the

backdoor and, in his opinion, the door had been kicked in or shouldered open with

sufficient force to tear the deadbolt from the door jamb. His photographs showed the back

door opened into the house with the deadbolt torn from the jamb, dangling from the

cracked door frame. Fulford’s grandfather testified the door was “totally blown off” and

“everything was busted on the door.”        This testimony along with Officer Winters’s

photographs were sufficient for the jury to find beyond a reasonable doubt that some part

of the burglar’s body, presumably either a shoulder or foot, breached the plane, or “close,”

of the Fulford residence thereby establishing the element of “entry.” Accordingly, having

reviewed the entire record, we find that the jury’s findings were rational and the great

weight and preponderance of the evidence supports, rather than contradicts, the verdict.

See Williams, 997 S.W.2d at 417 (“the action of breaking the lock and door frame was the

‘breaking of the close’”). Appellant’s first and second issues are overruled.


                                       Conclusion


       The trial court’s judgment is affirmed.


                                                 Patrick A. Pirtle
                                                      Justice

Publish.




                                            31
