ACCEPTED 14-14-00391-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 8/25/2015 6:06:31 PM CHRISTOPHER PRINE CLERK
NOS. 14-14-00391-CR 14-14-00392-CR FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 8/25/2015 6:06:31 PM CHRISTOPHER A. PRINE FOR THE Clerk
FOURTEENTH DISTRICT OF TEXAS
HOUSTON, TEXAS
HOWARD MARTIN HARRIS, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S MOTION FOR REHEARING
TRIAL COURT CAUSE NUMBERS 12CR1863 AND 14CR0154 IN THE 212TH DISTRICT COURT OF GALVESTON COUNTY, TEXAS
SEARS & BENNETT, LLP JOEL H. BENNETT STATE BAR NO. 00787069 1100 NASA PARKWAY, SUITE 302 HOUSTON, TEXAS 77058 (281) 389-2118 FAX (866) 817-5155 joel@searsandbennett.com
Attorneys for HOWARD MARTIN HARRIS
LIST OF PARTIES
Presiding Judge Honorable Bret Griffin Appellant Howard Martin Harris Appellee The State of Texas
Attorney for Appellant Ms. Stacy Valdez (Trial only) 711 W. Bay Area Blvd., Ste 600 Houston, Texas 77598
Attorney for Appellant Mr. Joel H. Bennett (Appeal only) Sears & Bennett, LLP 1100 Nasa Parkway, Suite 302 Houston, Texas 77058
Attorney for Appellee Ms. Candice Freeman (Trial only) Ms. Paul Love Galveston County Criminal District Attorney’s Office 600 59th Street, Suite 1001 Galveston, Texas
Attorney for Appellee Ms. Rebecca Klaren (Appeal only) Galveston County Criminal District Attorney’s Office 600 59th Street, Suite 1001 Galveston, Texas
CITATION TO THE RECORD
Clerk’s Record (12CR1863) ..................... C.R.I (volume and page)
Clerk’s Record (14CR0154) .................... C.R.II (volume and page)
Reporter’s Record .............................. R.R. (volume and page)
ii
TABLE OF CONTENTS
PAGE
List of Parties ......................................... ii Table of Contents ....................................... iii List of Authorities .................................... iv Appellant’s Sole Ground for Rehearing .................. 6
APPELLANT RESPECTFULLY SUBMITS THAT THE ORIGINAL OPINION OF THIS COURT OMITS THE KEY AND UNDISPUTED FACT THAT PROVES THAT THE COMPLAINANT WAS NOT IN DANGER OF FURTHER BODILY INJURY AT THE TIME OF THE WARRANTLESS ARREST.
Argument and Authorities ................................ 6 Certificate of Service .................................. 13
iii
LIST OF AUTHORITIES
CASES Amores, 816 S.W.2d at 415 ............................... 10
Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App. 1996) .................................................. 11
Atkins v. State, 919 S.W.2d 770, 774 (Tex. App.—Houston [14th Dist.] 1996, no pet. ............................. 10
Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972) ....................................................... 10
Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1923) ....................................... 10
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ..................................... 10
Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990) ....................................................... 11
Hernandez v. State, 14-00-00134-CR, 2002 WL 58823 (Tex. App.—Houston [14th Dist.] Jan. 17, 2002, no pet.)(not designated for publication) ............................ 11
McClatchy v. State, 758 S.W.2d 328, 330 (Tex. App.- TH Houston [14 Dist.] 1998, pet. ref’d) ................... 7
Randolph v. State, 152 S.W.3d 764, 771-73 (Tex. App.—Dallas 2004, no pet.) .......................................... 7
Stoddard v. State, Tex. Crim. App., 475 S.W.2d 744 ...... 10
Wilson v. State, 621 S.W.2d 799, 803–04 (Tex. Crim. App. 1981) .................................................. 11
STATUTES Tex. Code Crim. Proc. Ann. art. 14.01 14.03 (Vernon 1977) 11
iv
NOS. 14-14-00391-CR 14-14-00392-CR
IN THE
COURT OF APPEALS
FOR THE
FOURTEENTH DISTRICT OF TEXAS
HOUSTON, TEXAS
HOWARD MARTIN HARRIS, Appellant
v.
THE STATE OF TEXAS, Appellee
Appealed from 212TH District Court of Galveston County, Texas Cause Nos. 12CR1863 and 14CR0154
APPELLANT’S MOTION FOR REHEARING TO THE HONORABLE COURT OF APPEALS:
Now comes Howard Martin Harris, by and through his attorney of record Joel H. Bennett, of Sears & Bennett, LLP, and files this Motion for Rehearing.
Appellant respectfully moves this Court for a rehearing in these cases. The Court accurately sets forth the law *6 related to a warrantless arrest with regards to a danger of further bodily injury. Appellant submits that key and undisputed factual issue of this case was not addressed in the Court’s opinion. The key factual issue distinguishes this case from those cited in the Court’s opinion and should lead to a different result.
APPELLANT’S SOLE ISSUE REGARDING REHEARING
APPELLANT RESPECTFULLY SUBMITS THAT THE ORIGINAL OPINION OF THIS COURT OMITS THE KEY AND UNDISPUTED FACT THAT PROVES THAT THE COMPLAINANT WAS NOT IN DANGER OF FURTHER BODILY INJURY AT THE TIME OF THE WARRANTLESS ARREST.
ARGUMENT AND AUTHORITIES
The opinion of the Court accurately sets forth the law related to the warrantless arrest of Appellant. Appellant was arrested without a warrant on the grounds that an assault occurred and there was a danger of further bodily injury to the victim. The Court’s opinion correctly states, “Thus, whether appellant’s arrest was illegal (and his resulting statement should be suppressed) hinges on whether the arresting officers had probable cause at the time of the arrest to believe that there was a danger of further bodily injury to the victim.” p. 6 (Emphasis *7 added).
The key issue raised by Appellant was that, under specific facts of this case, there was no threat of future danger to the complainant at the time of the warrantless arrest. The complainant was safely and securely located inside the Dickinson Police Department at the time Appellant was arrested. The complainant was not at risk of future danger when the police decided to arrest Appellant without a warrant.
The cases cited by the Court are Randolph v. State, 152 S.W.3d 764, 771-73 (Tex. App.—Dallas 2004, no pet.) and McClatchy v. State, 758 S.W.2d 328, 330 (Tex. App.-Houston [14TH Dist.] 1998, pet. ref’d). Both of these cases are factually distinguishable from the present. In Randolph, the complainant was home at the time the defendant in that case returned home and he was arrested due to the threat of further violence. In McClatchy, the defendant assaulted the complainant in her own home and he was gone when the police arrived at the residence. He was later arrested at a motel room. The Court held that the arrest was lawful due to the threat that the defendant *8 might return to the complainant’s home and commit a future assault. The fact that the officers responded to another call prior to proceeding to the motel to arrest the defendant did not vitiate the threat of future violence.
In the present case, the complainant was located inside the Dickinson Police Department. Neither the trial court findings nor this Court’s opinion addressed how the complainant was in danger of further violence at the time of Appellant’s arrest. The facts of the case affirmatively disprove the threat of future violence at the time of the arrest.
This is not a situation where the defendant could return to the home of the complainant and renew an assault. Nor is it a situation where the defendant could track down the complainant to renew the assault. At the key point in time—the specific time Appellant was arrested—there was no possible danger of further bodily injury to the victim.
Appellant even agrees that it could be argued that the complainant in the present case may be in danger if she left Appellant’s house and went back to her home. Although there is no evidence that Appellant knew where she lived or *9 how to find her; but, based upon the evidence that “they were friends”, one could infer that he may know how to locate her.
As argued in Appellant’s original brief, the complainant was at the police station, surrounded by law enforcement officers. Unless Appellant was going storm the Dickinson Police Department, the complainant was safe at that time from any danger of further bodily injury. This is the crucial and undisputed fact that should lead to a different result in Appellant’s case. The two cases cited by the Court in its opinion are factually distinguishable. Both of the complainants in those two cases (Randolph and McClatchy) were assaulted in there own homes and remained in their homes after the assault.
But the specific facts of this case are drastically and critically different. All the officers knew, beyond any doubt, that the complainant was not in danger of future violence at the time he was arrested. To determine whether a particular warrantless arrest is legal or not, the Court of Appeals must look at all the facts known to the officers at the time of the arrest. “In reviewing a warrantless *10 arrest to determine the existence of probable cause, we look to the facts known to the officer at the time of the arrest. Amores, 816 S.W.2d at 415...Whether probable cause exists is determined by applying the totality of the circumstances test. Id. at 413. The State bears the burden to prove the existence of probable cause to justify a warrantless arrest or search. Id.” Atkins v. State, 919 S.W.2d 770, 774 (Tex. App.—Houston [14th Dist.] 1996, no pet. (Emphasis added).
The simple fact that there is a statutory exception to the warrant requirement does not automatically mean that the exception applies in every case. “In order for a warrantless arrest or search to be justified, the state must show the existence of probable cause at the time the arrest or search was made and the existence of circumstances which made the procuring of a warrant impracticable. E.g. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1923); Stoddard v. State, Tex. Crim. App., 475 S.W.2d 744.” Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972). The *11 statutory exception does not overrule the Constitutional requirements of the necessity of a warrant. It merely defines a particular set of facts that meet the requirement of “impracticality” to obtain the warrant.
“Generally, an arrest or search without a valid arrest warrant is unreasonable. See Wilson v. State, 621 S.W.2d 799, 803–04 (Tex. Crim. App. 1981). However, this rule has several exceptions. See Tex. Code Crim. Proc. Ann. art. 14.01 14.03 (Vernon 1977). An officer may make a warrantless arrest or search if (1) there is probable cause and (2) the arrest falls within the provision of one of the statutes authorizing a warrantless arrest. Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App. 1996); McGee v. State, 23 S.W.3d 156 (Tex. App.-Houston [14th Dist.] 2000, pet. granted). The State must show the existence of probable cause at the time of the arrest or search and the existence of circumstances which made the procuring of a warrant impracticable. Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990).” Hernandez v. State, 14-00-00134-CR, 2002 WL 58823 (Tex. App.— Houston [14th Dist.] Jan. 17, 2002, no pet.)(not designated for publication).
It is the second prong of the statutory exception that the State failed to prove. Specifically, that there was a danger of future violence to the complainant at the time Appellant was arrested. As this Court held in Atkins, supra, it is the State that bears the burden to prove the existence of probable cause to justify the warrantless arrest under the totality of the circumstances. The linchpin of this case is the location of the complainant and the inability of Appellant to cause her future bodily injury at the time of the arrest. At the time Appellant was arrested, the complainant was safely and securely located at the Dickinson Police Department and in the presence of numerous law enforcement officers. The complainant was in absolutely no danger of further bodily injury from Appellant at the time of his arrest. Without such danger of future bodily injury, the warrantless arrest was not authorized by law.
For all the foregoing reasons, Appellant moves this Court to grant a rehearing in this matter and after due consideration, sustain Appellant’s Sole Issue on appeal, that the case be reversed, and the case remanded for further *13 proceedings.
Respectfully submitted,
SEARS & BENNETT, LLP
/s/ Joel H. Bennett JOEL H. BENNETT Texas State Bar No. 00787069 1100 Nasa Parkway, Suite 302 Houston, Texas 77058 Telephone: (281) 389-2118 Facsimile: (866) 817-5155 joel@searsandbennett.com
ATTORNEY FOR HOWARD MARTIN HARRIS
CERTIFICATE OF SERVICE
I hereby certify that Appellant’s Motion for Rehearing has been served upon Allison Lindblade and Rebecca Klaren at the Galveston County Criminal District attorney’s office on this the 25th day of August, 2015 by email to Allison.lindblade@co.galveston.tx.us. and Rebecca.klaren@co.galveston.tx.us.
/s/ Joel H. Bennett Joel H. Bennett
Certificate of Compliance
In compliance with TRAP 9.4(i), I certify that the word count in this reply brief is approximately 1832 words.
/s/ Joel H. Bennett Joel H. Bennett