Gary Wayne McGruder v. State ( 2008 )


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  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-07-00348-CR
    GARY WAYNE McGRUDER,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 272nd District Court
    Brazos County, Texas
    Trial Court No. 06-03839-CRF-272
    MEMORANDUM OPINION
    A jury convicted Gary Wayne McGruder of burglary of a habitation and, after
    finding enhancement allegations true, assessed his punishment at forty years’
    imprisonment. McGruder contends in four points that the court abused its discretion
    by: (1) overruling his motion to suppress evidence seized as a result of his warrantless
    arrest; (2) overruling his motion to suppress the complainant’s identification of him at
    an in-field showup; (3) overruling his motion for mistrial after the prosecutor
    commented on his silence; and (4) denying his request for submission of jury
    instructions on the lesser-included offenses of theft and criminal trespass. We will
    affirm.
    Background
    McGruder was charged with entering the habitation of the complainant Will Bess
    without effective consent and committing or attempting to commit theft. See TEX. PEN.
    CODE ANN. § 30.02(a)(3) (Vernon 2003). According to the evidence, Bess went into his
    backyard to feed his dog and, upon returning to the front, noticed that someone had left
    a bicycle beside his truck in the driveway. He found McGruder inside. When he
    confronted McGruder, McGruder started hitting him. Bess attempted to defend himself
    with his pocketknife and cut McGruder at some point in the struggle. McGruder fled
    the scene on his bicycle.
    Bess gave chase in his pickup and called 9-1-1, giving the operator a description
    of his assailant. He met a responding police officer and showed the officer the direction
    in which McGruder had fled. The officer found McGruder a few blocks away. His
    clothing and general appearance matched the description given. In addition, he had a
    blood-soaked towel wrapped around his right arm, and he was out of breath. After he
    was detained, another officer found Bess’s wristwatch in his front pocket. Bess was
    brought to that location, and he identified McGruder as the burglar.
    A detective obtained a search warrant to collect DNA specimens from McGruder
    to compare with bloodstains on Bess’s pocketknife and recovered from his home. The
    DNA from these blood specimens was consistent with McGruder’s DNA.
    McGruder v. State                                                                    Page 2
    Motion to Suppress
    McGruder contends in his first point that the court abused its discretion by
    overruling his motion to suppress evidence seized as a result of his warrantless arrest
    because the arresting officer lacked probable cause. Specifically, he complains about the
    admission of evidence regarding the discovery of Bess’s wristwatch and the admission
    of the DNA evidence.
    We review a suppression ruling under an abuse-of-discretion standard.               See
    Montanez v. State, 
    195 S.W.3d 101
    , 108 (Tex. Crim. App. 2006); Johnson v. State, 
    237 S.W.3d 390
    , 392 (Tex. App.—Waco 2007, pet. ref’d). We afford almost total deference to
    the court’s determination of historical facts but review de novo the court’s ruling on
    mixed questions of law and fact which do not turn on the credibility and demeanor of
    witnesses. Neal v. State, 
    256 S.W.3d 264
    , 281 (Tex. Crim. App. 2008); 
    Johnson, 237 S.W.3d at 392
    . We apply a de novo standard of review in this case because the pertinent facts are
    not disputed and because the only issue to be determined is whether the trial court
    correctly applied the law to those facts. See Oles v. State, 
    993 S.W.2d 103
    , 106 (Tex. Crim.
    App. 1999); 
    Johnson, 237 S.W.3d at 392
    .
    “Probable cause exists if the officer knows of facts that would lead a reasonable
    person to believe that the suspect has committed or will soon commit a crime.” 
    Neal, 256 S.W.3d at 280
    . To determine the existence of probable cause, a court must consider
    the totality of the circumstances. Illinois v. Gates, 
    462 U.S. 213
    , 238, 
    103 S. Ct. 2317
    , 2332,
    
    76 L. Ed. 2d 527
    (1983); 
    Neal, 256 S.W.3d at 280
    ; Curry v. State, 
    228 S.W.3d 292
    , 295 (Tex.
    McGruder v. State                                                                       Page 3
    App.—Waco 2007, pet. ref’d). A court may consider the sum of the information known
    to the cooperating officers at the time of the search or seizure. 
    Curry, 228 S.W.3d at 295
    .
    When an arrest is made within a short period of time after a crime is committed,
    and frequently on the basis of information broadcast by a dispatcher, courts focus on
    whether the arresting officer’s information originated from “a known, credible person”
    and “whether any other action, regardless of how minute, gave the officer additional
    probable cause to arrest.” See Rodriguez v. State, 
    975 S.W.2d 667
    , 678 (Tex. App.—
    Texarkana 1998, pet. ref’d). Here, both factors are present.
    First, the description of McGruder originated with the complainant Bess who
    personally described McGruder’s appearance and the direction in which he had fled to
    the officer who arrested him only moments later. See 
    id. at 679;
    Shipman v. State, 
    935 S.W.2d 880
    , 884 (Tex. App.—San Antonio 1996, pet. ref’d).
    And second, McGruder was arrested in an area close to the direction in which he
    was alleged to have fled, he matched the description given by Bess, he had a blood-
    soaked towel wrapped around his right arm (consistent with Bess’s statement that the
    burglar was bleeding profusely), and he was out of breath and “sweating profusely”
    (indicating flight and, as an officer testified, as if “he had finished exerting himself in a
    physical altercation”). See Goldberg v. State, 
    95 S.W.3d 345
    , 362-63 (Tex. App.—Houston
    [1st Dist.] 2002, pet. ref’d); 
    Rodriguez, 975 S.W.2d at 679
    ; 
    Shipman, 935 S.W.2d at 884-85
    .
    Accordingly, we hold that under the totality of the circumstances there was
    probable cause for McGruder’s arrest when he was initially detained by the officer.
    McGruder v. State                                                                      Page 4
    Thus, the court did not abuse its discretion by overruling his suppression motion. We
    overrule McGruder’s first point.
    In-Field Showup
    McGruder contends in his second point that the court abused its discretion by
    overruling his motion to suppress Bess’s identification of him during an in-field
    showup.
    We have recently addressed the factors to be considered and the appropriate
    standard for determining whether a pre-trial identification made during an in-field
    showup should be excluded. Wilson v. State, 
    267 S.W.3d 215
    , 217 (Tex. App.—Waco
    2008, pet. filed). We assume without deciding that the showup in McGruder’s case was
    impermissibly suggestive and focus on the issue of whether, under the totality of the
    circumstances, there was a very substantial likelihood of irreparable misidentification.
    See Delk v. State, 
    855 S.W.2d 700
    , 706 (Tex. Crim. App. 1993); 
    Wilson, 267 S.W.3d at 217
    ;
    Williams v. State, 
    243 S.W.3d 787
    , 789 (Tex. App.—Amarillo 2007, pet. ref’d); Pace v. State,
    
    986 S.W.2d 740
    , 744 (Tex. App.—El Paso 1999, pet. ref’d).
    The first factor we consider is the opportunity of the witness to view the criminal
    at the time of the crime. Webb v. State, 
    760 S.W.2d 263
    , 269 (Tex. Crim. App. 1988)
    (citing Manson v. Brathwaite, 
    432 U.S. 98
    , 114, 
    97 S. Ct. 2243
    , 2253, 
    53 L. Ed. 2d 140
    (1977)); 
    Wilson, 267 S.W.3d at 217
    ; accord Loserth v. State, 
    963 S.W.2d 770
    , 772 (Tex. Crim.
    App. 1998); 
    Williams, 243 S.W.3d at 790
    ; 
    Pace, 986 S.W.2d at 744-45
    . Bess testified that
    the lighting was bright in his hallway where he first observed McGruder, nothing
    McGruder v. State                                                                     Page 5
    interfered with his view, and he was “able to get a clear look at [McGruder’s] face and
    his build and all of that.”
    The second factor is the witness’s degree of attention. 
    Id. Bess testified
    that he
    got a “clear look” at McGruder and that he was “paying attention to what he was
    doing” as they were engaged in a struggle. In addition, Bess testified that he has seven
    or eight years of prior experience as a police officer which gave him experience
    observing others and remembering their appearance.
    The third factor is the accuracy of the witness’s prior description. 
    Id. Bess testified
    that the intruder was “[a] very big man, built across the chest”; a black man;
    and “[h]e had on a white shirt; and I don’t remember the color of the pants.” He
    clarified on cross-examination that the intruder was wearing a shirt and shorts.
    Sergeant John Campbell testified that Bess also described the intruder as wearing a
    black cap and stated that he was bleeding profusely. McGruder is an African American.
    When he was apprehended, he was wearing a dark baseball cap and a light-colored
    shirt and had a blood-soaked towel wrapped around his right arm.
    The fourth factor is the level of certainty demonstrated by the witness at the
    confrontation. 
    Id. According to
    Sergeant Campbell, Bess observed McGruder and said,
    “That’s him, no doubt about it.”
    The last of the listed factors is the length of time between the crime and the
    confrontation. 
    Id. McGruder concedes
    that this factor is favorable to the State.
    In addition to the five listed factors, we may also consider other relevant factors
    in evaluating the reliability of the witness’s identification. 
    Delk, 855 S.W.2d at 706
    ;
    McGruder v. State                                                                   Page 6
    
    Wilson, 267 S.W.3d at 217
    ; 
    Pace, 986 S.W.2d at 745
    . Here, other relevant factors include
    the following: (1) McGruder was arrested in an area close to the direction in which he
    was alleged to have fled; (2) he was out of breath and “sweating profusely”; (3) he had
    Bess’s wristwatch in his pocket; and (4) his DNA matched the blood specimens taken
    from Bess’s pocket knife and from his home.
    Viewed deferentially in a light favorable to the trial court’s decision, the evidence
    relevant to each of the foregoing factors supports the court’s determination that, under
    the totality of the circumstances, there was no substantial likelihood of irreparable
    misidentification. See 
    Delk, 855 S.W.2d at 707-08
    ; 
    Wilson, 267 S.W.3d at 217
    ; 
    Williams, 243 S.W.3d at 791
    ; 
    Pace, 986 S.W.2d at 745
    . Accordingly, we overrule McGruder’s
    second issue.
    Comment on Failure to Testify
    McGruder contends in his third issue that the court abused its discretion by
    overruling his motion for mistrial after the prosecutor commented on his failure to
    testify in closing argument. The State responds that McGruder failed to preserve this
    issue for appellate review because he failed to object on several occasions when
    evidence was admitted regarding his failure to answer an officer’s questions about his
    identity at the time of his arrest.
    The complained-of argument occurred during the following colloquy:
    Prosecutor: Not only does he flee, but he ditches the bicycle on one street and
    pops out on the next street, where the officers do catch him. So not
    only is he fleeing, now he’s trying to ditch the bike so when the
    officers do find him he’s no longer a man on a bike, he’s a walking,
    McGruder v. State                                                                     Page 7
    [sic] because he knows he’s being followed and he’s been seen
    leaving on a bike.
    He refuses to answer the officer’s questions.       You know what?
    Right there, again—
    Defense:         Judge, I object. That’s a comment on my client’s right to remain
    silence [sic].
    Prosecutor: Pre-arrest silence is admissible as evidence, Your Honor, and
    admissible to be argued.
    Defense:         He was in custody.
    The Court:       Approach the bench, please.
    (At Bench)       I remember the officer testified that he wasn’t under arrest yet, but
    I also know there are some times when a person’s liberty is so
    restrained that the thinks he’s in custody.
    Prosecutor: But as far as “What’s your name?” “Where do you live?” those are
    not questions that are interrogation.
    Defense:         It’s clearly an argument that my client was remaining silent, and
    I’m objecting.
    The Court:       All right. I’ll sustain the objection.
    (Open Court)I’m going to sustain the objection.
    Defense:         Judge, I ask for an instruction to disregard, please.
    The Court:       Members of the jury, you are instructed to disregard the last
    statement.
    Defense:         Request for mistrial.
    The Court:       Denied
    We must uphold a trial court’s ruling on a motion for mistrial if it is within the
    zone of reasonable disagreement. Archie v. State, 
    221 S.W.3d 695
    , 699 (Tex. Crim. App.
    McGruder v. State                                                                     Page 8
    2007). “Only in extreme circumstances, where the prejudice is incurable, will a mistrial
    be required.” 
    Id. (quoting Hawkins
    v. State, 
    135 S.W.3d 72
    , 77 (Tex. Crim. App. 2004)).
    We review the court’s ruling under an abuse-of-discretion standard. 
    Id. First, we
    address the State’s argument that McGruder failed to preserve this issue
    for appellate review. McGruder’s complaint is that the court abused its discretion by
    overruling his motion for mistrial. He requested a mistrial as part of the preferred
    sequence for preserving error in cases involving allegedly improper jury argument. In
    terms of Rule of Appellate Procedure 33.1(a), he made a timely motion for mistrial and
    obtained an adverse ruling. See TEX. R. APP. P. 33.1(a); Tucker v. State, 
    990 S.W.2d 261
    ,
    262 (Tex. Crim. App. 1999); Badall v. State, 
    216 S.W.3d 865
    , 867 (Tex. App.—Beaumont
    2007, pet. ref’d). Thus, he preserved the issue for appellate review. Contra Whitfield v.
    State, No. 01-92-00617-CR, 
    1993 WL 322738
    , at *3 (Tex. App.—Houston [1st Dist.] Aug.
    26, 1993, pet. ref’d) (failure to object to two of four trial references to post-arrest silence
    waived complaint regarding denial of motion for mistrial).
    Nevertheless, the State’s observation that McGruder failed to object when
    evidence was admitted regarding his failure to answer officers’ questions about his
    identity is relevant to the merits of McGruder’s complaint.
    “Proper jury argument includes four areas: (1) summation of the evidence
    presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the
    opposing counsel’s argument, or (4) a plea for law enforcement.” Jackson v. State, 
    17 S.W.3d 664
    , 673 (Tex. Crim. App. 2000); accord York v. State, 
    258 S.W.3d 712
    , 717 (Tex.
    McGruder v. State                                                                       Page 9
    App.—Waco 2008, pet. ref’d); Cole v. State, 
    194 S.W.3d 538
    , 544 (Tex. App.—Houston
    [1st Dist.] 2006, pet. ref’d).
    Here, the complained-of argument properly referred to evidence which had been
    admitted at trial without objection. See 
    id. A defendant
    cannot permit evidence to be
    admitted without objection and then later complain when the State refers to that
    evidence in its closing argument. Cf. Leday v. State, 
    983 S.W.2d 713
    , 718 nn.6-7 (Tex.
    Crim. App. 1998) (erroneous admission of evidence is generally rendered harmless
    when similar evidence is admitted without objection); Elder v. State, 
    132 S.W.3d 20
    , 27
    (Tex. App.—Fort Worth 2004, pet. ref’d) (same); Webster v. State, 
    26 S.W.3d 717
    , 723
    (Tex. App.—Waco 2000, pet. ref’d) (same).
    Therefore, because the complained-of argument properly referred to evidence
    which had been admitted at trial, the court did not abuse its discretion by denying
    McGruder’s motion for mistrial. Accordingly, we overrule his third issue.
    Lesser-Included Offenses
    McGruder contends in his fourth issue that the court abused its discretion by
    denying his request for submission of jury instructions on the lesser-included offenses
    of theft and criminal trespass.
    In determining whether to submit a lesser included charge, the court must
    conclude that: (1) the requested charge is for a lesser-included offense of the charged
    offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty of
    only the lesser offense. Guzman v. State, 
    188 S.W.3d 185
    , 188 (Tex. Crim. App. 2006);
    Pierce v. State, 
    234 S.W.3d 265
    , 269 (Tex. App.—Waco 2007, pet. ref’d). We determine
    McGruder v. State                                                                 Page 10
    the first issue from the pleadings. Hall v. State, 
    225 S.W.3d 524
    , 535 (Tex. Crim. App.
    2007); 
    Pierce, 234 S.W.3d at 269
    . Therefore, we must compare the statutory elements of
    burglary as set out in the indictment to the elements of the requested lesser offenses.
    See 
    Hall, 225 S.W.3d at 535-36
    ; 
    Pierce, 234 S.W.3d at 269
    . If the first requirement is met,
    we determine the second issue by reviewing the evidence to determine if there is any
    evidence that, if McGruder is guilty, he is guilty only of one of the lesser offenses. See
    
    Hall, 225 S.W.3d at 536
    ; 
    Pierce, 234 S.W.3d at 269
    .
    Applying the first step of the analysis, the indictment alleges the following
    statutory elements: (1) McGruder; (2) intentionally or knowingly; (3) entered Bess’s
    habitation; (4) without his effective consent; and (5)(A) attempted to commit theft of
    Bess’s watch; or (B) committed theft of Bess’s watch.                    See TEX. PEN. CODE ANN. §
    30.02(a)(3) (Vernon 2003); Day v. State, 
    532 S.W.2d 302
    , 305 (Tex. Crim. App. 1975),
    disapproved in part on other grounds by 
    Hall, 225 S.W.3d at 537
    ; Salazar v. State, 
    259 S.W.3d 232
    , 233 (Tex. App.—Amarillo 2008, pet. granted).
    Regarding the lesser offense of theft, the State does not dispute that theft is a
    lesser-included offense under this indictment. The pertinent elements would be that:
    (1) McGruder; (2) committed theft of Bess’s watch.1
    Regarding the lesser offense of criminal trespass, the statutory elements are: (1) a
    person; (2) without effective consent; (3) enters or remains on the property or in a
    1
    The statutory elements of theft are: (1) a person; (2) with intent to deprive the owner of property;
    (3) appropriates that property; (4) without the effective consent of the owner. See TEX. PEN. CODE ANN. §
    31.03(a), (b)(1) (Vernon Supp. 2008); Thomason v. State, 
    892 S.W.2d 8
    , 10 (Tex. Crim. App. 1994); Bokor v.
    State, 
    114 S.W.3d 558
    , 560 (Tex. App.—Fort Worth 2002, no pet.). The latter three elements are subsumed
    within the indictment’s allegation that McGruder “committed theft.”
    McGruder v. State                                                                                   Page 11
    building of another; (4) knowingly or intentionally or recklessly; (5) when he had notice
    that entry was forbidden or received notice to depart but failed to do so. 2 
    Id. §§ 6.02(c),
    30.05(a) (Vernon Supp. 2008); 
    Day, 532 S.W.2d at 306
    ; DeVaughn v. State, 
    239 S.W.3d 351
    ,
    356 (Tex. App.—San Antonio 2007, no pet.).
    The parties dispute whether the fifth element is included within the statutory
    elements for burglary. The Court of Criminal Appeals has held that it is. 
    Day, 532 S.W.2d at 306
    (“the elements of criminal trespass, including ‘notice,’ could be
    established by proof of the same facts necessary to prove the offense of burglary”);
    accord 
    DeVaughn, 239 S.W.3d at 356
    . The Amarillo Court has recently held that it is not.
    
    Salazar, 259 S.W.3d at 233-34
    .3 Although, the Amarillo Court’s reasoning is persuasive,
    we are duty-bound to follow the Court of Criminal Appeals. Villarreal v. State, 
    267 S.W.3d 204
    , 209 (Tex. App.—Corpus Christi 2008, no pet.); Flores v. State, 
    883 S.W.2d 383
    ,
    385 (Tex. App.—Amarillo 1994, pet. ref’d). Therefore, following Day and DeVaughn, we
    hold that criminal trespass is a lesser-included offense of burglary of a habitation.
    2
    Section 30.05 of the Penal Code does not prescribe a culpable mental state and does not “plainly
    dispense[ ] with any mental element.” See TEX. PEN. CODE ANN. §§ 6.02(b), 30.05(a) (Vernon Supp. 2008).
    Thus, under section 6.02(c), the State must prove “intent, knowledge, or recklessness.” 
    Id. § 6.02(c)
    (Vernon Supp. 2008). The Court of Criminal Appeals has so held. West v. State, 
    567 S.W.2d 515
    , 516 (Tex.
    Crim. App. [Panel Op.] 1978); accord DeVaughn v. State, 
    239 S.W.3d 351
    , 356 (Tex. App.—San Antonio
    2007, no pet.); Bustillos v. State, 
    832 S.W.2d 668
    , 674 (Tex. App.—El Paso 1992, pet. ref’d). Contra Dunn v.
    State, 
    979 S.W.2d 403
    , 408 (Tex. App.—Amarillo 1998, pet. ref’d) (“no culpable mental state is required to
    establish criminal trespassing”); Reed v. State, 
    762 S.W.2d 640
    , 646 (Tex. App.—Texarkana 1988, pet. ref’d)
    (“No culpable mental state is required for a conviction under this statute, other than a volitional refusal to
    leave when requested.”).
    3
    The Court of Criminal Appeals has granted review in Salazar on the issue, “Does a habitation
    inherently give notice that entry is forbidden?” See Salazar v. State, No. PD-08-0956 (Tex. Crim. App. Oct.
    1, 2008) (order granting discretionary review). A current listing of issues on which the Court of Criminal
    Appeals has granted review may be found at the Court’s website. See Texas Court of Criminal Appeals,
    Granted Issues, http://www.cca.courts.state.tx.us/issues/ISSUES.htm (last visited Dec. 11, 2008).
    McGruder v. State                                                                                    Page 12
    Next we must determine whether there is some evidence that, if McGruder is
    guilty, he is guilty only of one of the lesser offenses. See 
    Hall, 225 S.W.3d at 536
    ; 
    Pierce, 234 S.W.3d at 269
    . This requires “anything more than a scintilla of evidence” which
    establishes a lesser-included offense as “a valid rational alternative to the charged
    offense.” 
    Hall, 225 S.W.3d at 536
    (quoting Forest v. State, 
    989 S.W.2d 365
    , 367 (Tex. Crim.
    App. 1999) (quoting Arevalo v. State, 
    943 S.W.2d 887
    , 889 (Tex. Crim. App. 1997))); 
    Pierce, 234 S.W.3d at 271
    .
    With regard to theft, McGruder relies solely on Bess’s testimony that, when he
    confronted McGruder in his home, McGruder told him some unidentified “white man”4
    had told him to come in the house. However, there is no evidence in the record that this
    unidentified person was an owner or occupant of Bess’s home. Rather, the evidence
    established that McGruder entered Bess’s home without Bess’s consent and that no
    other owner or occupant consented to McGruder’s entry. Thus, the record contains no
    evidence that if McGruder is guilty, he is guilty of only theft. See Smith v. State, No. 02-
    06-00073-CR, 
    2007 WL 704894
    , at *2-3 (Tex. App.—Fort Worth Mar. 8, 2007, no pet.)
    (mem. op.).
    With regard to criminal trespass, McGruder relies on Bess’s testimony that
    McGruder was “babbling” and “wild eyed” (and similar characterizations) when Bess
    confronted him.      McGruder contends that this is evidence which would call into
    question his mental culpability, particularly with regard to whether he intentionally or
    knowingly entered the house without Bess’s consent. He suggests that a rational juror
    4
    Bess is African-American. He testified that no “white man” lives in his home.
    McGruder v. State                                                                      Page 13
    may have determined from this evidence that he did not possess the requisite
    culpability to commit theft until after he entered the house. However, there is no
    evidence to show that McGruder’s mental culpability was any different before he
    entered the house than after, and the evidence on which McGruder relies is nonetheless
    more indicative of his mental culpability at the time he stole the watch than at the time
    he entered the house. If McGruder did not possess the requisite culpability to commit
    theft, then he did not possess the requisite culpability to commit burglary either.
    Evidence that the defendant committed no offense is not evidence that the
    defendant committed a lesser-included offense. See Lofton v. State, 
    45 S.W.3d 649
    , 652
    (Tex. Crim. App. 2001); Martin v. State, 
    246 S.W.3d 246
    , 267 (Tex. App.—Houston [14th
    Dist.] 2007, no pet.); Bradford v. State, 
    178 S.W.3d 875
    , 878 (Tex. App.—Fort Worth 2005,
    pet. ref’d). Accordingly, we overrule McGruder’s fourth issue.
    We affirm the judgment.
    FELIPE REYNA
    Justice
    Before Chief Justice Gray,
    Justice Vance, and
    Justice Reyna
    Affirmed
    Opinion delivered and filed December 17, 2008
    Do not publish
    [CRPM]
    McGruder v. State                                                                     Page 14