Gary Allen Herman v. State

Opinion issued May 12, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00344-CR

———————————

Gary Allen Herman , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1228069

MEMORANDUM OPINION

A

jury found Gary Allen Herman guilty of the felony offense of burglary of a habitation

with the intent to commit theft and assessed punishment at 28 years’

confinement. [1] On appeal, Herman contends that the evidence

is legally and factually insufficient to support his conviction, and that the

trial court erred in denying his motion to suppress his statements to a law

enforcement officer at the scene. We

affirm the judgment of the trial court.

Background

Earnest

Jamerson was outside his home when he saw Herman go through the side fence of a

neighbor’s house located across the street and five houses away. Jamerson recognized Herman from seeing him

around the neighborhood attempting to sell merchandise and from a tear-drop

tattoo on his right cheek. Jamerson

believed Herman’s name to be “Dominique.”

Jamerson later saw Herman exit through the front door of the house and

load multiple objects into a grocery cart.

Herman took several trips to fill the cart. The objects appeared to be a square, heavy

object and various tools like a garden rake.

Jamerson watched Herman push the cart down the street and pass directly

in front of his house. Herman met a cab

at the end of the street, loaded the merchandise into the cab, and drove

away.

Lena

Thompson, the owner of the burglarized house, received a call from family

members that lived across the street telling her that Jamerson had seen someone

break into the house. Her family told

her that Jamerson had seen “Dominique” go through the side gate, exit the front

door, carry merchandise to a grocery cart, then load the objects into a cab and

drive away. Thompson arrived to find

that three window air conditioning units and several garden and work tools were

missing. During this time, Thompson saw

Herman ride his bike past the house.

Officer

Small arrived at the scene and spoke to Thompson. Shortly thereafter, Herman again rode past

the house on his bike. Thompson and

several of her family members identified Herman as “Dominique.” Officer Small approached Herman who stopped

to speak with him. Herman wore a blue

jumpsuit with the name “Dominique” on the front. In response to questions, Herman gave the

officer a fake name, his address, and his date of birth, but could not produce

any identification. Officer Small ran

the information through the driver’s license database, but could not find a

match. Herman insisted the information

was correct. He denied any involvement

with the burglary and denied going by the name “Dominique.” Officer Small continued to question Herman

while waiting for Jamerson to arrive.

While talking to the officer, Herman mentioned that his son’s name was

Gary Herman, Jr. Officer Small

eventually called the burglary and theft division at the Houston Police

Department, who confirmed that he did not have enough evidence to hold Herman

without Jamerson’s identification, and he released Herman. The entire encounter between Officer Small

and Herman lasted between 30 to 45 minutes.

Officer

Small returned to the police station and conducted a more extensive database

search of Herman’s fake name without finding a match. He ran the name “Gary Herman,” which Herman

had stated was his son’s name, and found a picture of Herman. He also investigated the address Herman had

given him, but no one answered the door and the condition of the lawn led him

to believe that no one lived at the home.

Based on Officer Small’s report, Officer Mora developed a photo array including

Herman and showed the array to Jamerson two months after the burglary. Jamerson positively identified Herman as the

burglar.

At

trial, the State called Officer Small to describe his investigation and his

conversation with Herman. Herman made an

oral motion to suppress his statements to Officer Small and asserted that he

was under arrest at the time and had not been properly advised of his

rights. Herman specifically requested

that the following statements be suppressed: the discussion of the name

“Dominique,” Herman’s son’s name, the fake name, and his denial that he knew

anything about the robbery.

The trial court conducted a hearing

outside the presence of the jury and gave both sides the opportunity to

question Officer Small. Officer Small

testified that he never arrested Herman or restrained him in any way. He stated that he was conducting an

investigation and that he released Herman without a positive identification. On cross-examination, Officer Small conceded

that he had detained Herman to make an identification and he was not free to

leave at that point. Officer Small later

contradicted himself by saying Herman could have left because the officer had

nothing on which to hold him. The trial

court then the questioned him:

The

Court: [A]fter you got a name, whether it

was a good name or a bad name —

[Officer

Small]: He’s able to go, yes, ma’am.

The

Court: — 10 or 15 minutes later, if

he had gotten on his bike and rode away, would you have held him or would you

have let him go?

[Officer

Small]: I would have let him go.

The trial court concluded that Herman was not in

custody and denied the motion to suppress.

Officer Small then testified before the jury about the results of his

investigation.

In

addition to Officer Small’s testimony, Jamerson testified to witnessing the

crime and Officer Mora testified to the photo array and Jamerson’s clear

identification. The State admitted the

photo array which Jamerson had initialed and dated along with a map and

satellite photo indicating the relative distance between Thompson’s house and

where Jamerson stood on the day of the burglary. Thompson identified the stolen objects.

Herman testified and denied any

involvement in the robbery. He stated he

gave a false name because of an outstanding warrant against him for writing bad

checks. He asserted that the name

“Dominique” on his jumpsuit and in Jamerson’s statement was a coincidence. He testified as to his criminal record

including past felonies in the 1980s and three misdemeanors since his release

from jail in 2000, including one conviction for trespassing. He also stated he lived in the neighborhood

with his family about four blocks from the scene.

The jury found Herman guilty of

burglary of a habitation with the intent to commit theft. At the punishment phase of trial, Herman

stipulated to his prior convictions. The

jury assessed punishment at 28 years’ imprisonment. Herman timely filed this appeal.

Sufficiency of the Evidence

In

his first issue, Herman contends the evidence is insufficient to support the

jury’s finding identifying Herman as the burglar.

A. Standard

of Review

This court reviews sufficiency-of-the-evidence challenges

applying the same standard of review, regardless of whether an appellant raises

a legal or a factual sufficiency challenge. See Brooks v. State , 323 S.W.3d 893, 912 , 927–28 (Tex. Crim. App.

2010); see also Ervin v. State , 331 S.W.3d 49 , 52–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) .

This standard of review is the standard enunciated in Jackson v. Virginia ,

443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979). See Brooks , 323 S.W.3d at 912 , 927–28 . Under

this standard, evidence is insufficient to support a conviction if, considering

all the record evidence in the light most favorable to the verdict, no rational

fact finder could have found that each essential element of the charged offense

was proven beyond a reasonable doubt. See

Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Laster v. State , 275

S.W.3d 512, 517 (Tex. Crim. App. 2009). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the

record contains no evidence, or merely a “modicum” of evidence, probative of an

element of the offense, or (2) the evidence conclusively establishes a reasonable

doubt. See Jackson , 443 U .S. at 314, 320, 99 S. Ct. at 2786,

2789 . The sufficiency-of-the-evidence

standard gives full play to the responsibility of the fact finder to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson , 443

U.S. at 319 , 99 S. Ct. at 2789 ; Clayton v. State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). An appellate court presumes that the fact finder

resolved any conflicts in the evidence in favor of the verdict and defers to

that resolution, provided that the resolution is rational. See Jackson ,

443 U.S. at 326 , 99 S. Ct. at 2793 .

B. Sufficient

Evidence of Burglary of a Habitation

A person

commits the offense of burglary of a habitation if “without the effective

consent of the owner, the person . . . enters a habitation . . . not then open

to the public, within intent to commit a felony, theft, or an assault. See Tex. Penal Code Ann. § 30.02(a)(1)

(West 2003). Herman contends that the

evidence is insufficient to link him to the burglary. More specifically, he asserts that the only

evidence that he committed the burglary is Jamerson’s testimony that he saw

Herman commit the offense and his identification from Officer Mora’s photo

array.

The testimony of a single eyewitness,

however, is sufficient to support a jury’s finding of guilt. See Aguilar

v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); see Davis v. State , 177 S.W.3d 355, 359 (Tex. App.—Houston [1st

Dist.] 2005, no pet.). Jamerson testified that he witnessed Herman

go around the side of the house and leave the house from the front door

carrying objects. He testified that

Herman pushed the loaded grocery cart directly in front of where he stood and

that he recognized Herman from the neighborhood. He also later positively identified Herman

through Officer Mora’s photo array. This

evidence amounts to more than a “ modicum” of evidence to support the

jury’s finding that Herman committed the burglary. See

Burks v. State , No. 01-08-00521-CR, 2010 WL 143463 , at *2 (Tex. App.—Houston [1st Dist.] Jan. 14, 2010, pet. ref’d)

(mem. op., not designated for publication) (holding evidence sufficient for

burglary of habitation when two neighbors testified to seeing defendant exit

front door); see also Hollander v. State ,

No. 09-05-00448-CR, 2006 WL 2623279 , at *1–3 (Tex. App.—Beaumont Sept. 13,

2006, pet. ref’d) (mem. op., not designated for publication) (holding evidence

sufficient for burglary of habitation conviction when neighbor testified to

seeing defendant go around side of mobile home and exit front door with

refrigerator).

Herman

asserts other evidence raises a reasonable doubt on the identity element — namely his testimony denying involvement in the

burglary, the testimony that he rode his bike by the house after the crime

multiple times, the alleged deficiencies in Officer Small’s investigation, and

the fact that Jamerson did not mention seeing Herman carrying air-conditioning

units. The jury is the sole judge of the

weight and credibility to give the evidence at trial and is free to credit some

evidence and discredit other evidence. See Davis , 177 S.W.3d at 359 . Therefore, the jury was free to believe

Jamerson’s testimony and his identification of Herman as the burglar. See

Davis , 177 S.W.3d at 359 .

We overrule

Herman’s first issue.

Motion to Suppress

In his second issue, Herman

contends the trial court erred in denying his motion to suppress his statements

made to Officer Small. He asserts

Officer Small questioned him while he was under arrest and without the benefit

of the statutory warnings under Miranda

v. Arizona , 384 U.S. 436, 444 , 86 S. Ct. 1602, 1612 (1966), and article 38.22 of the Code of Criminal

Procedure. See Tex. Code Crim. Proc.

Ann. art. 38.22 (West 2005).

A. Standard

of Review

We review a trial court’s ruling on

a motion to suppress for abuse of discretion.

Amador v. State , 275 S.W.3d

872, 878 (Tex. Crim. App. 2009). An

appellate court will sustain the trial court’s decision if it concludes that

the decision is correct on any theory of law applicable to the case. Id.

at 878–79

We apply a bifurcated standard of

review to a ruling on a motion to suppress.

St. George v. State , 237

S.W.3d 720, 725 (Tex. Crim. App. 2007). In

a hearing on a motion to suppress, the trial court is the sole and exclusive

trier of fact and judge of the credibility of the witnesses and the weight to

give their testimony. Id. Therefore,

we first give almost total deference to the trial court’s determination of

historical facts that the record supports, especially those “based on an

evaluation of credibility and demeanor.”

State v. Garcia-Cantu , 253

S.W.3d 236, 241 (Tex. Crim. App. 2008).

We apply the same deference to the trial court’s “rulings on application

of the law to questions of fact and to mixed questions of law and fact, if

resolution of those questions depends on evaluation of credibility and

demeanor.” Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Second, we review de novo questions of law

and mixed questions of law and fact that do not turn not credibility and

demeanor. See Garcia-Cantu , 253 S.W.3d at 241 .

Here, the trial court concluded

that Herman was not “in custody” at the time he made the statements to Officer

Small. The trial court did not determine

any “historical facts” such as whether Herman was free to leave during

questioning and the custody finding did not turn on credibility and demeanor. See

State v. Sheppard , 271 S.W.3d 281, 291 (Tex. Crim. App. 2008) (stating

determination of arrest or investigative detention constitutes a legal

conclusion and not a determination of historical fact). Therefore, we review the trial court’s application of legal

principles to historical facts de novo. See id.

B. Arrest

& Investigative Detention

Herman

asserts that his statements to Officer Small are inadmissible because the

length and manner of his detention effectively transformed the stop into an arrest

and triggered the need for Miranda -based

warnings. Miranda or statutory warnings must be given when a person is under

arrest or subject to custodial interrogation.

See Tex. Code Crim. Proc. Ann. art. 38.22; Herrera v. State , 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Miranda -based

warnings are not required in an investigative detention. [2] See Campbell

v. State , 325 S.W.3d 223, 233

(Tex. App.—Fort Worth 2010, no pet.). At trial,

the defendant bears the initial burden of proving that a statement was obtained

in the course of a custodial interrogation.

Herrera , 241 S.W.3d at

526 .

A law enforcement officer

conducting an investigative detention temporarily detains a person suspected of

criminal activity in order to obtain more information. Hoag v.

State , 728 S.W.2d 375, 380

(Tex. Crim. App. 1987); see King v. State ,

35 S.W.3d 740 , 743–44 (Tex. App.—Houston [1st Dist.] 2000, no pet.). An arrest and an investigative detention

differ in the degree of the intrusion and the different legal standards to

justify the officer’s conduct. [3] Akins

v. State, 202 S.W.3d 879, 885 (Tex. App.—Fort Worth 2006, pet. ref’d). A suspect is not free to leave in either an

arrest or an investigative detention and both are considered “seizures” for

constitutional purposes. See Crain , 315 S.W.3d at 49 .

We look to

the totality of the circumstances to determine whether an officer conducted an

arrest or an investigative detention. Sheppard , 271 S.W.3d at 291 ; Herrera , 241 S.W.3d at 525 . Courts consider several factors in distinguishing

between the degree of restraint associated with a formal arrest and an

investigative detention.

These factors include: the degree of force used by the officer, the

duration of the detention, the nature of the crime under investigation, the degree

of suspicion, the location of the stop (i.e., whether the officer transports

the suspect to another location), the time of day, the reaction of the suspect,

and the officer’s intent and opinion. [4] See

Sheppard , 271 S.W.3d at 291 ; Campbell , 325 S.W.3d at 234 . In terms of the degree of force

used, courts consider the presence of multiple officers, use or exhibition of a

weapon, any physical touching of the suspect, and the use of language and tone

of voice indicating that the officer might compel the suspect to comply with

requests. Crain , 315 S.W.3d at 49–50.

For an

investigative detention, an officer must also have actually conducted an

investigation. See Sheppard , 271 S.W.3d at 291 ; Campbell , 325 S.W.3d at 234 . Evidence of an investigation includes

verifying the suspect’s identity, asking for a suspect’s reason for being in

the area, “or similar reasonable inquiries of a truly investigatory nature.” Campbell ,

325 S.W.3d at 234 . Finally, an

investigative detention must be temporary and the questioning may last only as

long as necessary to “effectuate the purpose of the stop.” Balentine

v. State , 71 S.W.3d 763, 770 (Tex. Crim. App. 2002).

Based on the totality of the circumstances, we hold that Herman

was not under arrest at the time of his questioning, but was instead the

subject of a valid investigative detention.

Officer Small approached Herman on foot as the suspect rode in his

bicycle down the public street after Thompson and other bystanders identified

him as “Dominique.” Officer Small did

not use force to detain Herman and the record contains no evidence of any other

method of coercion. At no point in the

encounter was Herman handcuffed, placed in the patrol car, or physically restrained

in any way. Officer Small was the only officer involved. No gun was shown during the encounter, nor is

there evidence that Small’s use of language or tone of voice indicated that

compliance might be compelled. Herman

was never told that he could not leave.

At that time, there was no probable cause to arrest him and Officer

Small released him after HPD told him he did not have sufficient evidence for

probable cause. The

encounter occurred in the afternoon in front of Thompson’s house, another

factor that indicates the lack of a custodial interrogation. See Sheppard , 271 S.W.3d at 291 . The witnesses at trial described Herman as

cooperative as he answered Officer Small’s questions and he made no attempt to

flee the scene. All of these facts together indicate that Herman was not in

custody. See Crain , 315

S.W.3d at 49–50; Sheppard , 271 S.W.3d at 291 ; Dowthitt v. State , 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) .

Officer Small also conducted an

investigation. He asked Herman for his

name and address, whether he ever went by the name “Dominique” as written on

his jumpsuit, and whether he was involved in the burglary. He continued to ask Herman questions after

being unable to verify his identity.

Thus Officer Smith in fact conducted an investigation as required for an

investigative detention. See Sheppard , 271 S.W.3d at 291 .

Herman

asserts that the length of his detention dictates his detention was

unreasonable and amounted to an arrest.

No bright-line rule exists for the length of a permissible investigative

detention, but the detention must be temporary and no longer than necessary to

effectuate the purpose of the stop. Balentine , 71 S.W.3d at 770 . Herman and Officer Small’s encounter lasted

between 30 to 45 minutes. Courts have

found longer detentions to be permissible as long as the stops were not longer

than necessary. See Balentine , 71 S.W.3d at 770–771, 770 n.7 (holding detention

which lasted between 30 and 60 minutes reasonable); Josey v. State , 981 S.W.2d 831, 845 (Tex. App.—Houston [14th Dist.]

1998, pet. ref’d) (holding 90 minute detention reasonable). Officer Small also testified that he could

not verify Herman’s identity because of the fake name Herman gave and continued

to ask follow-up questions. Herman’s

evasive answers, therefore, increased the amount of time needed to conduct the

investigation. See Balentine , 71 S.W.3d at 771 (stating amount of time necessary

for investigation increased because of defendant’s evasive answers).

The parties

dispute whether Herman was free to leave, but this is not the focus of our

inquiry because a person subject to an investigative detention is not free to

leave. See Crain , 315 S.W.3d at 49 .

Further, even more intrusive physical restraints than Officer Small’s

method may constitute investigative detentions.

See, e.g. , Sheppard , 271 S.W.3d at 292 (holding that officer’s brief

handcuffing of suspect in order to conduct search of trailer for another

suspect was investigative detention and not Fourth Amendment arrest); Rhodes v. State , 945 S.W.2d 115, 117

(Tex. Crim. App. 1997) (stating investigative detention occurred when officer

testified he handcuffed suspect chiefly out of safety concerns after car chase

through high-crime area). “In Miranda , the Court was primarily

concerned with the fact that custodial interrogation is inherently coercive; it

typically involves ‘incommunicado’ questioning ‘in a police-dominated

atmosphere’ and ‘compelling pressures which work to undermine the individual’s

will to resist and to compel him to speak where he would not otherwise do so

freely.’” Herrera , 241 S.W.3d at 531 (quoting Miranda , 384 U.S. at 445 , 467 S. Ct. at 1602)). There is no evidence that the coercive

aspects of custodial interrogation were present during Officer Small’s

questioning.

We conclude

that Officer Small conducted a valid investigative detention and not an

arrest. See Balentine , 71 S.W.3d

at 770 . Therefore, no Miranda -based warnings were

required. See Campbell , 325 S.W.3d at 233 . Therefore, the trial court did not err in

denying Herman’s motion to suppress.

We overrule

Herman’s second issue.

Conclusion

We hold the evidence is sufficient to

support the jury’s guilty finding on burglary of a habitation. We also hold the trial court did not err in

denying Herman’s motion to suppress his statements to Officer Small. We therefore affirm the judgment of the trial

court.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Sharp and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. §

30.02(a)(1) (West 2003).

[2] The

Court of Criminal Appeals declined to address the question of whether a

defendant who is arrested under Texas statutes for the purposes of Fourth

Amendment seizure is considered at the same time to be in custody for the

purpose of protecting a defendant’s custodial statements under Miranda and the Fifth Amendment. See Dowthitt v. State , 931 S.W.2d 244 , 268 n.8 (Tex. Crim. App.

1996) . On appeal, Herman does not challenge the legality of his

detention as a Fourth Amendment seizure.

However, this and other courts have looked to Fourth Amendment

jurisprudence for guidance in determining whether a defendant is under arrest

or undergoing custodial interrogation at the time of the defendant’s statements

to law enforcement. See, e.g. , Campbell v. State ,

325 S.W.3d 223, 233 (Tex. App.—Fort Worth 2010, no pet.); see also Maxwell v. State , No. 01-00-00708-CR, 2002 WL 356530 ,

at *4 (Tex. App.—Houston [1st Dist.] Mar. 7, 2002, pet. ref’d) (mem. op., not

designated for publication).

[3] An

arrest requires probable cause to justify the seizure while an investigative

detention requires a reasonable, articulable suspicion that the person detained

is connected with criminal activity. Amores v. State , 816 S.W.2d 407, 411

(Tex. Crim. App. 1991).

[4] Courts

utilize all of these factors in Fourth Amendment cases to determine the type of

seizure conducted by the officer and the justification for the seizure.