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Adkins v. State3/24/2003
, as I remember, went by with him still having the club like this. He then dropped the weapon.
[PROSECUTOR:] Did you take his position with the club to be menacing in any way? [MORALES:] I did.
[PROSECUTOR:] Were you in fear for your own safety or the safety of Officer Horton?
[MORALES:] I was. [Emphasis added.]
On cross-examination, defense counsel asked Officer Morales:
[DEFENSE COUNSEL:] . . . ou say that . . . [appellant] . . . opened . . . one of the doors and reached in and went into the truck and came out with this club in a threatening manner. Is that your testimony?
[MORALES:] Yes, it is. [Emphasis added.]
At the conclusion of the suppression hearing, the trial judge stated that he felt appellant entered the truck and "came out with the instrument in question in a threatening manner according to [the officers'] testimony." Thus, it appears from the judge's statements that he believed the officers had probable cause to arrest appellant for threatening the officers rather than for the offense of unlawful carrying of a weapon. The evidence shows that appellant entered the truck after the officers repeatedly told him not to, advanced toward Officer Horton with the stick in his hand, and did not drop the stick immediately when repeatedly ordered to do so. Although Officer Morales indicated that he was unsure of appellant's intentions, Officer Horton stated that he thought appellant was "coming after him with the stick."
The record contains several references to the officers' demonstrations of the manner in which appellant was holding the stick but no descriptions of the demonstrations. We cannot determine from the record how appellant was holding the stick when he walked toward Officer Horton. The trial judge was in the best position of being able to judge the credibility and demeanor of the witnesses, and he found that appellant's manner was threatening. Accordingly, we hold that on the facts of this case, the officers had a reasonable belief that appellant committed assault in their presence and, thus, had probable cause to arrest appellant.
Because the officers had probable cause to arrest appellant for assault, their warrantless arrest of appellant was valid. See Tex. Code Crim. Proc. Ann. art. 14.01(b). Accordingly, the trial court did not abuse its discretion in denying appellant's motion to suppress. Appellant's first issue is overruled.
Miranda Warnings
In his third issue, appellant claims that the trial court erred in overruling his motion to suppress and motion for directed verdict because the officers obtained evidence that appellant owned the stick in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and Texas Code of Criminal Procedure article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2002). To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). Further, the trial court must have ruled on the request, objection, or motion, expressly or implicitly, or refused to rule, and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a)(2); Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996). Even constitutional error can be waived. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001).
Here, appe
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