Porter v. State

TAFT, Justice,

concurring.

I concur with the majority opinion, but write separately to state a different rationale for overruling points of error one through four.

Factual Context

Before trial, appellant filed a pro forma motion to suppress, asserting that his arrest and detention were made without a warrant, were contrary to article one, section nine of the Texas Constitution and chapter 14 of the Texas Code of Criminal Procedure. Appellant asked the trial court to suppress the resulting evidence. Also before trial, appellant filed a motion in limine that the trial court instruct the assistant district attorney and the investigating police officers that they not mention or allude to any statements *730 made to them by the complainant, Rose Marie Belle, or any extraneous offenses alleged to have been committed by appellant at or about the time of his arrest. On November 14, 1994, at a pretrial hearing, appellant’s counsel stated that appellant would carry his motion to suppress to the trial.

On December 14, 1994, the trial court heard appellant’s motion in limine. At the hearing, appellant’s counsel, Ms. Kahn, requested the trial court grant her motion in limine regarding any statements made by the complainant to the investigating police officers because such statements would be “highly prejudicial and irrelevant to the offense charged.” In response, the prosecutor stated:

Judge, perhaps a brief going into the underlying facts of the case might help Your Honor in understanding what Ms. Kahn is talking about. What happened is on March 19,1994, officers were flagged down by Ms. Belle because she told the officers that her common-law husband, [appellant], was hitting her and taking off in her car. She was able to point out a car to the officers and told them that was her boyfriend or common-law husband, and that he assaulted her and he was leaving in her car.

Officers pursued, they went on a chase. He eventually got out of the complainant’s ear, abandoned it, ran on foot, jumped a fence, went through some wooded areas and attempted to get in a taxicab. The officers were able to detain him there at the cab, where they recovered some rocks of cocaine in the cab, and hence, he was charged with possession of a controlled substance, as well as an assault case.

In the context of her motion in limine, Ms. Kahn discussed the State’s notice to her of its intention at trial to use three extraneous offenses:

These [the first two of the three extraneous offenses] are prior convictions. These are not notice of any extraneous offenses, and it’s our understanding that the only extraneous offense that they could be referring to in this matter would be the assault of the complainant.

After hearing that the State’s assault case against appellant had been dismissed, the trial court ruled evidence of the assault would not be admissible at trial. At this point, the following colloquy occurred:

Prosecutor: I understand that we would not be allowed to go into the fact that an assault case was filed or that an assault case was dismissed. However, the jury is not allowed to understand why it is the officers took after the defendant? That might lead to a confusion of issues, and I can understand how, if we’re not able to tell the jury what prompted the police officers to try to detain the suspect. Then they will be left without any evidence at all and wondering why this defendant became a subject for these officers. And I don’t think that that’s fair to hold the State to not allow us to explain why the complaining witness flagged down the officers.

Court: It may not be fair in your mind, but I think the law is clear....

I think you’re going to be able to do exactly what you’ve always done, that is, to elicit from Ms. Belle, based on a conversation she had with certain officers, did those officers take certain action based upon her conversation. “Yes, they did.” “And what was that?” Then you get into the chasing him, whatever it is, and arresting him, and whatever else it was. But I think that’s as far as you can go, based upon the law that I know....

Prosecutor: If Ms. Belle takes the stand, will I be allowed to ask her what prompted her to flag the officers down?

Court: I think you can. I don’t know whether you can ask her what prompted her because I’m not sure what questions— or what answer you’re hoping to get from that. But if you were to be hoping to be able to ask what prompted her to flag the officers down, and she were to blurt out, “Well, because he assaulted me,” then, of course, you’re going to be in violation of the motion, the ruling of the Court.

Just before trial, which took place January 5,1995, the court and counsel had the following colloquy about testimony related to the police officers’ conversation with the com *731 plainant that motivated their pursuit of appellant:

Prosecutor: I just want to make sure— there was a motion in limine which you instructed a previous prosecutor and instructed me on a ruling on the assault, the underlying assault, and I instructed my officers not to discuss the fact that it was an assault. I believe that’s correct but, however, they were entitled to mention that they were flagged down, that they talked to an individual and — the result of that conversation, they did something. They did something. They went after this particular person

Court: But not to discuss the basis or the conversation itself.

Prosecutor: Not to discussion [sic] the conversation itself and it was also including the fact that there was an assault, underlying assault.

Ms. Kahn: They cannot discuss it.

Court: They are not to talk about the assault, period.

At trial, Officer Eckenrode testified to the following. On March 19, 1994, he and his partner were flagged down by a female and that: “She described to us an incident that had occurred just then. And at that time she pointed to a vehicle that — she was saying, that’s the one, that’s the one that did it.” The female described the person in question as a black male, five feet 11 inches tall, weighing 175 pounds, and having a salt and pepper beard. With lights and sirens on, the officers gave chase. When the car stopped, and the man fled from it, the officers chased him on foot until they lost him, at which point they broadcast his description on the police radio.

Officer Vigil testified as follows. As he was passing a taxi, he looked inside and recognized the passenger, who was sliding down in the backseat, as fitting the description of the person given on the radio. He and his partner exited their patrol car and motioned for the taxi to stop. The taxi stopped, the officers drew their weapons, and Officer Vigil saw appellant, who had a clear plastic baggie his right hand, reach under the seat with it. Appellant was ordered out of the taxi, and Officer Vigil’s partner retrieved the baggie from under the backseat where appellant had placed it. Appellant was arrested and taken to the police station.

The State did not call the complainant, Rose Marie Belle. When the State’s chemist witness testified that the substance in the baggie was cocaine and the State offered it into evidence, appellant objected to its admission, asking the trial court for a ruling on the motion to suppress. The trial court overruled appellant’s motion to suppress.

Invited Error

Appellant now complains that the trial court erred in overruling his motion to suppress because the cocaine was the product of either a warrantless arrest unsupported by probable cause or of an invalid investigatory detention unsupported by reasonable suspicion. Specifically, appellant asserts, “The State failed to present any evidence that they sought appellant in the first place in connection with any offense.”

Having sought and secured the trial court’s ruling preventing the State from presenting evidence of the initial conversation between complainant and the police about her report of appellant’s assault on her, appellant cannot now be heard to complain about a lack of evidence relative to probable cause or reasonable suspicion to pursue appellant. It is clear from this record that the reason the State did not present such evidence was out of obedience to the trial court’s order not to go into the matter. The trial court’s order not to go into the matter resulted from appellant’s own motion to exclude the evidence on the ground that such evidence of assault would be “prejudicial” and “irrelevant” in his trial on the possession of cocaine charge.

Appellant’s points of error one through four should be overruled based on the doctrine of invited error. See Hill v. State, 913 S.W.2d 581, 586 (Tex.Crim.App.1996) (defendant may not complain of submission of issue of deadly weapon at punishment phase where he objected to its submission at guilt phase); Tucker v. State, 771 S.W.2d 523, 534 (Tex.Crim.App.1988) (defendant may not complain about erroneous jury charge he requested); *732 Ex parte Hargett, 827 S.W.2d 606, 607, 608 (Tex.App.—Austin 1992, pet. ref'd) (defendant may not complain of failure of trial court to hold evidentiary hearing where defendant asked writ to be determined on record alone). For this reason, I concur with the majority opinion.