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Adkins v. State3/24/2003
he stick are clearly visible even from a distance. In addition, the marks appear to have been created by a sharp object or objects, such as animal teeth; we cannot see how the marks could have resulted from striking a human. As a result, we hold that the officers in this case could not have reasonably believed that appellant committed the offense of unlawful carrying of a weapon and, thus, did not have probable cause to arrest appellant for that offense.
Assault
Although we have concluded that the officers did not have probable cause to arrest appellant for unlawfully carrying a weapon, our discussion cannot end here. In reviewing a trial court's decision on a motion to suppress, appellate courts must affirm the decision if it is correct on any theory of law that finds support in the record. Roquemore v. State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001); Pettigrew v. State, 908 S.W.2d 563, 567 (Tex. App.--Fort Worth 1995, pet. ref'd). The State argues that although the officers arrested appellant for committing the offense of unlawful carrying of a weapon, the officers could have arrested appellant for aggravated assault because he threatened the officers with the stick.
A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury. Tex. Penal Code Ann. § 22.01(a)(2) (Vernon Supp. 2002); Donoho v. State, 39 S.W.3d 324, 328 (Tex. App.--Fort Worth 2001, pet. ref'd). Aggravated assault occurs if the person commits an assault and uses or exhibits a deadly weapon during the offense. Tex. Penal Code Ann. § 22.02(a)(2) (Vernon 1994); Donoho, 39 S.W.3d at 328.
Absent proof of sham or fraud, an arrest that is unlawful for the offense for which a person was arrested is valid when the crime for which the person was arrested and a crime the police had probable cause to believe the person committed are closely related. Warrick v. State, 634 S.W.2d 707, 709 (Tex. Crim. App. [Panel Op.] 1982); Reynolds v. State, 902 S.W.2d 558, 560 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd). For example, this court has held that an unlawful arrest for driving while intoxicated was nevertheless valid because the officer had probable cause to arrest the defendant for public intoxication. Jones v. State, 949 S.W.2d 509, 516 (Tex. App.--Fort Worth 1997, no pet.).
In this case, the arrest for unlawful carrying of a weapon was based on appellant's possession of the stick. The State's arguments in support of the arrest on the basis of aggravated assault focus on appellant's use of the stick during the officers' investigation of his possession of the stick. Accordingly, we believe that the two offenses are closely related. Furthermore, there is no evidence of any "sham or fraud" by the officers. Therefore, we will address the State's alternative argument. However, because we hold that the officers had probable cause to arrest appellant for the lesser-included offense of assault, we do not need to address whether the officers had probable cause to believe the stick is a deadly weapon. We will instead focus on whether the officers had probable cause to believe that appellant intentionally or knowingly threatened either of them with imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2).
A threat is not limited to a spoken intent to do violence. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984); Preston v. State, 675 S.W.2d 598, 601 (Tex. App.--Dallas 1984, pet. ref'd), cert. denied, 474 U.S. 982 (1985). Threats may be communicated by actions, speech, or conduct. McGowan, 664 S.W.2d at 357. A threat even may include an offer to use future force. See, e.g., Berry v. State, 579 S.W.2d 487, 489 (Tex
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