Herschel Jerome Hurd v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-09-104-CR
2-09-105-CR
2-09-106-CR
2-09-107-CR
HERSCHEL JEROME HURD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Herschel Jerome Hurd appeals his convictions for one count of
aggravated robbery with a deadly weapon and three counts of aggravated assault
with a deadly weapon. 2 In two issues, he contends that the trial court erred by failing
1
 See Tex. R. App. P. 47.4.
2
 See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009),
§ 29.03(a)(2) (Vernon 2003). Aggravated robbery is a first-degree felony;
aggravated assault, as charged in this case, is a second-degree felony. See id. §§
22.02(b), 29.03(b).
to suppress evidence related to the victim’s identification of him and by failing to
suppress evidence obtained as the result of an allegedly unlawful execution of his
arrest warrant. W e affirm.
Background Facts
In 2005, the State filed three indictments against appellant for aggravated
assaults that occurred on the same day in October 2004; the indictments alleged
that appellant struck someone with a club or bat that qualified as a deadly weapon.
Appellant pled guilty to each indictment. The trial court deferred its adjudication of
appellant’s guilt in each case and placed him on ten years’ community supervision.
A few years later, in April 2008, Ibrahim Soliman was working as a cashier at
Quick Food Grocery in Arlington when a customer entered the store wearing white
gloves and sunglasses. The customer walked around the counter toward the cash
register, commanded Soliman to open the register, held a silver gun to Soliman’s
face, took about $200, and left the store. Soliman feared for his life.
Arlington Police Department Detective Anthony W right arrived at the crime
scene and met with Soliman, who came to the United States from Egypt and speaks
only some English. Detective Wright reviewed video surveillance from Quick Food
Grocery and noticed that the robber was a black male who had a light skin tone and
medium body size. He also saw that the robber used a chrome gun and wore a dark
“do-rag,” sunglasses, shorts with a distinctive pattern, and white gloves. Video
surveillance from a restaurant located next to Quick Food Grocery showed that a
2
mid-sized dark car had parked close to the grocery store near the time of the
robbery, that someone who appeared to look like the robber had stepped out of the
car, and that the car left after the time that the robbery occurred.
Detective W right prepared a photographic spread that contained mug shots
of six people, and six days after the robbery occurred, Soliman selected appellant
as the robber. 3 The police got a warrant for appellant’s arrest. To execute the
warrant, they first went to an Arlington address listed on one of appellant’s
identification cards and found appellant’s father but not appellant. Appellant’s father
took the police to a Grand Prairie apartment where appellant was staying. Courtney
Gibbs, appellant’s girlfriend, answered the door. The police determined that
appellant was inside the apartment, entered inside, and arrested him.
A grand jury indicted appellant with committing aggravated robbery against
Soliman. The indictment contained a repeat offender notice stating that appellant
had previously been convicted of a felony. Appellant moved to suppress any in-court
identification of him by Soliman and any evidence the police gathered as a result of
his allegedly illegal arrest. The State petitioned the trial court to proceed to
adjudication of guilt in each of appellant’s aggravated assault cases on the basis that
3
 Detective W right testified in a pretrial hearing that appellant became a
suspect based on information that another police department provided.
3
he had committed a new offense by possessing a firearm within five years of his
release from confinement following a felony conviction. 4
At his trial, appellant pled not guilty to aggravated robbery and not true to the
State’s petitions to proceed to adjudication in the aggravated assault cases. The
jury convicted appellant of aggravated robbery, and after the jury received evidence
from several witnesses related to appellant’s punishment, it assessed fifty years’
confinement.5 The trial court sentenced him accordingly. It also revoked his
community supervision in the three aggravated assault cases, found him guilty of
each of those charges, and sentenced him to twenty years’ confinement on each
charge to run concurrently with his other sentences. Appellant filed notices of
appeals on all cases.
Appellant’s Arrest
In his second issue, appellant contends that the trial court abused its
discretion by denying his motion to suppress evidence obtained as the result of an
allegedly unlawful entry into the Grand Prairie apartment when the police arrested
him.6 W e review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W .3d 666, 673 (Tex. Crim.
4
 See Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2009).
5
 Appellant pled true to the repeat offender notice of his indictment.
6
 W e will resolve appellant’s second issue first because the admissibility of
the evidence that the police obtained after appellant’s arrest affects our disposition
of appellant’s first issue.
4
Ohio App. 2007); Orr v. State, 306 S.W .3d 380, 398 (Tex. App.—Fort W orth 2010, no
pet.). In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W .2d 539, 543 (Tex. Crim. App. 1990); Orr, 306
S.W .3d at 398. The trial judge is the sole trier of fact and judge of the credibility of
the witnesses and the weight to be given their testimony. Wiede v. State, 214
S.W .3d 17, 24–25 (Tex. Crim. App. 2007); Orr, 306 S.W .3d at 398.
Therefore, we give almost total deference to the trial court’s rulings on (1)
questions of historical fact, even if the trial court’s determination of those facts was
not based on an evaluation of credibility and dem eanor, and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor. Amador, 221 S.W .3d at 673; Montanez v. State, 195 S.W .3d 101,
108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W .3d 644, 652–53 (Tex.
Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the
credibility and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W .3d at 673; Johnson, 68 S.W .3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to suppress,
we must view the evidence in the light most favorable to the ruling. W iede, 214
S.W .3d at 24; State v. Kelly, 204 S.W .3d 808, 818 (Tex. Crim. App. 2006).
The Fourth Amendment states, “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated . . . .” U.S. Const. amend. IV; see State v. Powell, 306 S.W .3d
5
761, 765 (Tex. Crim. App. 2010). W e have explained that the “right of a man to
retreat into his own home and to be free from unreasonable governmental intrusion
stands at the very core of the Fourth Amendment.” Green v. State, 78 S.W .3d 604,
608–09 (Tex. App.—Fort W orth 2002, no pet.) (citing Silverman v. United States,
365 U.S. 505, 511, 81 S. Ct. 679, 683 (1961)).
Thus, absent exigent circumstances or consent, police may not enter a
residence under an arrest warrant for a nonresident without first obtaining a search
warrant. Steagald v. United States, 451 U.S. 204, 205–06, 101 S. Ct. 1642, 1644
(1981); Hudson v. State, 662 S.W .2d 957, 958 (Tex. Crim. App. 1984). However,
an arrest warrant authorizes entry into a defendant’s own residence when there is
reason to believe that the defendant is within. Payton v. New York, 445 U.S. 573,
602–03, 100 S. Ct. 1371, 1388 (1980) (explaining that if there “is sufficient evidence
of a citizen’s participation in a felony to persuade a judicial officer that his arrest is
justified,” the police may “require him to open his doors”); Reno v. State, 882 S.W .2d
106, 108 (Tex. App.—Fort W orth 1994, pet. ref’d); see also Morgan v. State, 963
S.W .2d 201, 204 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (explaining that if
the suspect is a co-resident of a third party, then Steagald does not apply, and
Payton allows the arrest of the subject under an arrest warrant). An officer’s
reasonable belief, considering all the circumstances known to the officer, that a
residence is the defendant’s and that the defendant is inside authorizes entry into
the residence to arrest the defendant under an arrest warrant; the officer’s belief
6
does not have to be proven correct. See Green, 78 S.W .3d at 611–14; Morgan, 963
S.W .2d at 204.
Thus, appellant concedes that if the police had a reasonable belief that he
lived at the Grand Prairie apartment where he was arrested, the “arrest warrant
alone would support entrance into the apartment.” However, he contends that he
did not reside in Grand Prairie but was only Gibbs’s houseguest; therefore, he claims
that all evidence resulting from his allegedly unlawful arrest should have been
suppressed.
At a pretrial hearing on appellant’s motion to suppress, Detective W right
testified that after he obtained appellant’s arrest warrant, he discovered an Arlington
apartment address on appellant’s identification card and went with other officers to
that address “as a starting point . . . to determine what [appellant’s] current address
was.” According to Detective W right, appellant’s father answered the door and said
that appellant did “not live there” but instead lived “in an apartment in Grand Prairie
with his girlfriend, Courtney Gibbs” and that appellant “would be at that apartment.”
Appellant’s father went to the Grand Prairie apartment with the police. The
police knocked on the door and Gibbs answered, at which time officers removed her
from the front of the doorway, went into the apartment, and called out for appellant,
who was in a bedroom. The officers told appellant about his arrest warrant, and
according to Detective W right, appellant told him that he lived at that apartment and
refused to give the officers consent to search it. Detective W right secured a search
7
warrant for the apartment and found items connecting appellant to Soliman’s
robbery.
Appellant called his father and Gibbs to testify at the hearing. Appellant’s
father testified, among other facts, that
• when the police arrived in Arlington, they searched his apartment and
went into appellant’s room;
• he told the police that appellant was “probably at his girlfriend’s house”
because appellant stayed there overnight occasionally;
• appellant did not live at the Grand Prairie apartment because he spent
most nights in Arlington and gave his father money for rent and food;
• appellant worked at the same place as his father, and his father would
sometimes (about twice per week) pick appellant up at the Grand
Prairie apartment before work after he had stayed with Gibbs overnight;
• on other mornings (about once per week), Gibbs would take appellant
to work after he had stayed overnight with her; and
• he does not recall telling the police that appellant lived with Gibbs.
Gibbs testified to the following facts:
• appellant visited her at her apartment three or four times per week and
had brought some of his possessions to her apartment because he was
her boyfriend, but appellant did not live with her and was not going to
stay with her overnight on the night of his arrest;
• appellant’s name is not on her lease contract;
• appellant did not help her with rent and did not have a key to her
apartment; and
• she wrote a love letter to appellant three days before appellant’s arrest
that included the words, “W e wake up to each other everyday,”
8
although she said that the letter was exaggerated and she did not
literally wake up with him every morning.
Obviously, these witnesses’ testimony required the trial court to resolve
conflicting evidence. At the conclusion of the suppression hearing, the trial court
specifically found that the witnesses appellant called were not credible, and the court
therefore denied appellant’s motion.
As explained above, we must defer to the trial court’s credibility determination
and its resolution of conflicting evidence. See Amador, 221 S.W .3d at 673; Orr, 306
S.W .3d at 398, 400. If the trial court believed Detective W right’s testimony that
before the police entered the Grand Prairie apartment, appellant’s father told them
that appellant did not live with him but instead lived with Gibbs, we must defer to the
trial court’s rejection of the conflicting evidence offered by appellant’s witnesses in
that regard. Viewing the evidence in the light most favorable to the trial court’s
ruling, we hold that the trial court could have justifiably determined that the police
reasonably believed that appellant resided at the Grand Prairie apartment where
they executed the arrest warrant. 7 See Wiede, 214 S.W .3d at 24; Green, 78 S.W .3d
at 611–14; Morgan, 963 S.W .2d at 204. W e uphold both the trial court’s implicit
7
 Appellant does not expressly challenge whether the police had a
reasonable belief that appellant was in the Grand Prairie apartment when the police
executed the warrant. W e note that even if the trial court had found Gibbs’s
testimony credible while finding appellant’s father’s testimony not credible, the
officers did not have the benefit of Gibbs’s opinion as to whether appellant resided
with her at the time that they chose to enter the apartment. Thus, the facts that she
testified to cannot defeat their reasonable belief that appellant lived there.
9
determination that the police constitutionally entered the apartment to arrest
appellant and the court’s explicit denial of appellant’s motion to suppress the
evidence obtained as a result of his arrest. W e overrule appellant’s second issue.
Soliman’s Identification of Appellant
In appellant’s first issue, he argues that the trial court erred by denying his
motion to suppress Soliman’s in-court identification. He asserts that the in-court
identification was based on a pretrial identification procedure that was allegedly
impermissible and suggestive because (1) Detective W right used a photographic
array on one sheet of paper rather than a sequential photographic lineup procedure,
(2) Soliman understood little English and Detective W right did not use an interpreter,
(3) Detective W right may not have told Soliman that the suspect may or may not
have been included in the photographic array, and (4) Soliman had a shaky
recollection at trial of what appellant was wearing during the robbery. See Gamboa
v. State, 296 S.W .3d 574, 581–82 (Tex. Crim. App. 2009); Stewart v. State, 198
S.W .3d 60, 62 (Tex. App.—Fort W orth 2006, no pet.).
Assuming without deciding that appellant’s due process rights were violated
by the admission of Soliman’s identification testimony, we would be required to
determine whether the trial court’s admission of the testimony caused harm. 8 See
Tex. R. App. P. 44.2(a); Wheat v. State, 178 S.W .3d 832, 833 (Tex. Crim. App.
8
 It is the “responsibility of the appellate court to assess harm.” Johnson v.
State, 43 S.W .3d 1, 5 (Tex. Crim. App. 2001).
10
2005) (stating that except for “structural” errors, no error is categorically immune
from a harm analysis); Ledesma v. State, 828 S.W .2d 560, 563 (Tex. App.—El Paso
1992, no pet.); Cabello v. State, 655 S.W .2d 293, 296 (Tex. App.—Corpus Christi
1983, no pet.) (“[I]f the admission of Mejia’s identification testimony could be
considered error, it was harmless, in light of the unimpeached and uncomplained of
identification of the appellant by Officer Garza.”); see also Perez v. State, No.
03-07-00606-CR, 2009 W L 2195417, at *5 (Tex. App.—Austin July 23, 2009, no
pet.) (mem. op., not designated for publication) (“W e need not determine whether
the procedures used were impermissibly suggestive such that they created a
substantial likelihood of misidentification because, even assuming that Perez could
prevail on this argument, any error is harmless.”).
W hen we review constitutional error, we “must reverse a judgment of
conviction or punishment unless [we determine] beyond a reasonable doubt that the
error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a).
To make this determination, we should calculate the probable impact of the error on
the jury in light of the other evidence; the error is not harmless if there is a
reasonable likelihood that it materially affected the jury’s deliberations. Neal v.
State, 256 S.W .3d 264, 284 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037
(2009). Stated another way, we must determine whether there is a reasonable
probability that the illegally obtained and wrongly admitted evidence “moved the jury
from a state of non-persuasion to one of persuasion on a particular issue.” Langham
11
v. State, 305 S.W .3d 568, 582 (Tex. Crim. App. 2010); see Scott v. State, 227
S.W .3d 670, 690 (Tex. Crim. App. 2007) (explaining that the “question is the
likelihood that the constitutional error was actually a contributing factor in the jury’s
deliberations in arriving at th[e] verdict”).
Soliman’s testimony that identified appellant as the robber is cumulative of
other evidence, including his own father’s testimony, that identified him as such.
During the trial, appellant’s father testified that when the police came to his house
to look for appellant, they showed him a photograph. The photograph was likely the
same as a photograph that Soliman identified at trial as being captured from the
video surveillance of the robbery. 9 Appellant’s father told the police that he
recognized appellant in the photograph. 10
Also, while being questioned by Detective W right after his arrest, appellant
asked Detective W right if he could “work out some kind of deal.” 11 Later during the
9
 Appellant’s father said that the photograph that the State’s attorney
showed to him during the trial, taken from the video surveillance of the robbery, was
similar to the photograph that he saw on the date of appellant’s arrest because the
picture showed appellant walking toward a convenience store’s counter, and the
convenience store looked the same in both pictures.
10
 W hile trying to persuade the trial court to exclude appellant’s father’s
testimony that identified appellant in the photograph, appellant’s trial counsel stated
that admission of the testimony took “away all defensive theory” and “practically
amount[ed] to an instruction from the State to find [appellant] guilty.”
11
 The video of appellant’s interrogation shows him slouched with his hands
over his face on many occasions as Detective Wright attempted to gain appellant’s
confession.
12
interrogation, Detective W right pointed to a picture from the robbery and asked
appellant, “W hat caused this, man?” Appellant responded, “Too much stress. W ay
too much stress, man.” Next, in response to Detective W right’s telling appellant,
“This is a mistake,” appellant said, “I know that, sir, . . . I was too stressed out and
got fed up . . . and needed money.” Finally, toward the end of the interrogation,
when Detective W right asked appellant what he was thinking about on the night of
the robbery, appellant admitted to being “nervous” and “shaking” and stated that he
had “never really robbed somebody at gunpoint like that” and that he “didn’t even
want to go do it, man.”
Along with appellant’s father’s testimony and appellant’s inculpatory
statements during his interrogation, the following evidence also links appellant to the
robbery:
• appellant’s black and white athletic shoes that he put on when he was
arrested are “very similar” to shoes that Detective W right saw in the
video of the robbery;
• appellant’s earrings that he was wearing when he was arrested look like
the earrings that the robber wore;
• the black “do-rag” that appellant was wearing when he was arrested
looks like the “do-rag” that the robber wore;
• Gibbs’s dark car that the police discovered while arresting appellant
looks like the car from video taken from the restaurant located next to
Quick Food Grocery;
• a loaded, silver/chrome gun that was found upon execution of the
search warrant at the Grand Prairie apartment looks like the gun from
the robbery;
13
• a pair of long male’s shorts found in the Grand Prairie apartment that
have a distinctive design on them and a hanging symbol from a belt
loop appear to match corresponding features of shorts the robber wore;
and
• the police found white gloves in a bedroom of the Grand Prairie
apartment that appear to match the white gloves that the robber wore. 12
Based on all of this evidence that links appellant to the offense, we cannot
conclude that there is a reasonable probability that Soliman’s identification of
appellant as the robber “moved the jury from a state of non-persuasion to one of
persuasion” regarding whether he was the robber. See Langham, 305 S.W .3d at
582. Instead, we hold that Soliman’s identification of appellant did not likely
materially affect the jury’s deliberation. See Neal, 256 S.W .3d at 284.
Thus, after carefully reviewing the record, we hold that even if the trial court
erred by overruling appellant’s motion to suppress Soliman’s in-court identification
of him, then beyond a reasonable doubt, such error did not contribute to his
conviction or punishment. See Tex. R. App. P. 44.2(a). W e overrule appellant’s first
issue.
12
 W e note that appellant’s identification as the robber did not seem to be
the biggest issue at trial; appellant’s counsel spent almost his entire closing
argument talking about alleged violations of appellant’s constitutional rights.
14
Conclusion
Having overruled both of appellant’s issues, we affirm the trial court’s
judgments.13
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 1, 2010
13
 Although appellant filed notices of appeal in each of his three aggravated
assault cases, neither of his issues directly contest the trial court’s revoking his
community supervision and finding him guilty in those cases. To the extent that
appellant’s appeals of his aggravated assault convictions are dependent on his
appeal of his aggravated robbery conviction, we must affirm the aggravated assault
convictions for the reasons stated above.
15