1996 WL 33489699 (Tex.Crim.App.) (Appellate Brief)

Court of Criminal Appeals of Texas.

Kia Levoy JOHNSON, Appellant,

v.

The State of Texas, Appellee.

No. 72,061.

April 19, 1996.

On Appeal from the 226th District Court of Bexar County, Texas Cause Number 94-CR-0502

Brief for the State

Steven C. Hilbig, Criminal District Attorney, Bexar County, Texas, Michael Cohen, Assistant Criminal District Attorney, Bexar County, Texas, Catherine Babbitt, Assistant Criminal District Attorney, Bexar County, Texas, Edward F. Shaughnessy, III, Assistant Criminal District Attorney, Bexar County, Texas, Bexar County Justice Center, 300 Dolorosa, Suite 4025, San Antonio, Texas 78205-3030, PH: (210) 220-2379, Fax: (210) 220-2436, State Bar No. 18134500, (on Appeal), Attorneys for the State.

*1 TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

NOW COMES, Steven C. Hilbig, Criminal District Attorney of Bexar County, Texas, and files this brief for the State. The appellant, Kia Levoy Johnson, was indicted for the offense of Capital Murder, in Cause Number 94-CR-0502. (R. I-7) Trial was before a jury on a plea of not guilty in the 226th Judicial District Court of Bexar County, Texas, the Honorable Sid Harle, Judge presiding. (R. I - 1 thru 4) The appellant was found guilty of the offense as charged in the indictment and a punishment of death was assessed. (R. I - 148, 149) Appellant’s conviction is subject to automatic review by this Court. See: TEX. CODE CRIM. PROC. ANN. § 37.071 (Vernons Supp. 1996). This appeal, alleging five (5) points of error, has followed.

RESPONSE TO APPELLANT’S FIRST POINT OF ERROR (Appellant’s Brief, Page 4)

*2 In his first point of error the appellant contends that the evidence is legally insufficient to support the judgment of conviction.

On January 24, 1994, the appellant was indicted by a Bexar County Grand Jury for the offense of Capital Murder in cause number 94-CR-0502. The indictment alleged, in pertinent part, as follows:

... On or about the 29th day of October, A.D., Kia Levoy Johnson, did then and there intentionally and knowingly cause the death of an individual, namely: William Matthew Rains by shooting William Matthew Rains with a Deadly Weapon, namely: a handgun, and Kia Levoy Johnson did then and there intentionally cause the death of William Matthew Rains, while in the course of committing and attempting to commit the offense of Robbery of William Matthew Rains. (R. I-7)

At the conclusion of the guilt-innocence phase of the trial the trial Court submitted a charge to the jury which applied the law to the facts in the following manner:

Now if you find from the evidence beyond a reasonable doubt that on or about the 29th day of October, A.D., 1993 in Bexar County, Texas, the defendant, Kia Levoy Johnson did intentionally cause the death of an individual, namely: William Matthew Rains, by shooting William Matthew Rains with a deadly weapon, namely: a handgun, and the said Kia Levoy Johnson did intentionally cause the death of William Matthew Rains, while in the course of committing or attempting to commit the offense of robbery of William Matthew Rains, then you will find the defendant guilty of capital murder as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty. (R. I-124)

*3 Sometime after midnight on the morning of October 29, 1993, Jeffrey Elliott, a security guard for a Balcones Heights apartment complex, went to a convenience store across the street from his place of employment. (R. XVI-30) While approaching the front door of the store, Elliott noticed a length of cash register type laying on the ground outside the store. (R. XVI-31) Upon entering the store, Elliott was unable to locate the clerk and noticed that the cash register had been tampered with, and the counter was in disarray. (R. XVI-32) Elliott looked over the counter and saw Matthew Rains laying behind the counter. Elliott checked Rains’ pulse and was unable to locate one. (R. XVI-32) Immediately thereafter, Elliott notified the 911 dispatcher and waited for the Balcones Heights Police Department to arrive. (R. XVI-34)

Troy Lee Powers, a Balcones Heights fireman/medical technician, arrived at the convenience store at approximately 3:30 A.M.¹ (R. XVI-50) Powers examined the victim at that time and was of the opinion that he was deceased. (R. XVI-51)

Tony Rodriguez was a district sales manger for Stop ‘N Go Markets in the city of San Antonio. (R. XVI-78) in his capacity as sales manager, Rodriguez was Matthew Rains’ supervisor. (R. XVI-79) According to Rodriguez, the store at which the offense occurred was equipped with a video recorder on the date of the *4 offense, which was in working order.² (R. XVI - 82 thru 91) On the morning of October 29, 1993, Rodriguez was called by his supervisor who requested that he proceed to the Balcones Heights Stop ‘N Go because there had been a shooting at that location. (R. XVI-91) Rodriguez arrived at the crime scene at approximately 3:30 or 3:45 A.M. (R. XVI-92) When Rodriguez arrived the video recorder was operating. (R. XVI-94) Rodriguez stopped the machine, rewound the tape and viewed the tape. Upon discovering that the tape had recorded a crime, Rodriguez turned it over to the Balcones Heights Police Department. (R. XVI-96) Sometime after the shooting, Rodriguez conducted an audit of the store and determined that $23.00 had been taken during the robbery. (R. XVI-100)

Ray Thompson was an acquaintance of the appellant, and had known him for approximately seven years at the time of the trial. (R. XVI-112) According to Thompson, on the evening of October 29, 1993, members of the Balcones Heights Police Department came to his home and showed him a videotape. (R. XVI - 141, 142) Thompson identified the appellant as the individual on the tape at that time. (R. XVI - 143, 144) Subsequently, Thompson viewed the tape at the Balcones Heights Police Department and once again identified the appellant as the actor appearing thereon. (R. XVI - 146, 147)

*5 Officer Robert De La Garza testified that he arrived at the Stop ‘N Go at approximately 3:40 A.M. on October 29, 1993. (R. XVI-202) At that time, De La Garza viewed a videotape depicting the robbery/murder of Matthew Rains. (R. XVI - 203, 204) Thereafter, De La Garza initiated an investigation in order to determine the identity of the suspect depicted on the videotape. (R. XVI - 205, 206) That afternoon, De La Garza spoke with Ray Thompson and showed him the surveillance tape that he had obtained from the Stop ‘N Go. (R. XVI-209) With the information he obtained from Thompson, De La Garza obtained an arrest warrant for the appellant and executed the warrant later that day. (R. XVI - 211, 212) Upon locating the appellant, who at the time was in the custody of the San Antonio Police Department, De La Garza recognized him as the individual who appeared on the videotape he had viewed earlier that day. (R. XVI - 212, 264) During the course of De La Garza’s testimony on direct examination, a copy of a portion of the original videotape was admitted into evidence.³ (R. XVI - 265, 266) Prior to playing the videotape in the presence of the jury, Officer De La Garza described for the jury what appeared on the tape. That description was as follows:

What the video is going to show is the Defendant as he walks in the double doors of the Stop ‘N Go located at 3309 Hillcrest in the City of Balcones Heights, the Defendant walks in, takes some 5 to 6 steps, approaches the -- here on the left, I believe the third photograph down here. Approaches the counter *6 and you see the victim, Mr. williams Rains, come into the picture from the right rear. Mr. Rains steps up to the rear of this cashier. The defendant pulls out of his waistband a chrome, short barreled weapon, points at the defendant, fires one shot. The defendant (sic) falls back and out of video range. Immediately the Defendant starts making verbal commands of the victim who is now on the floor and is asking him for the key to the register.

The victim can be heard on the video by way and by means of audio where there is a microphone directly over where the cash register is. I believe you can see the cash register right in the middle of No. 3. It’s directly over the cash register itself. The Defendant is asking the Defendant -- I am sorry -- the victim to help him, help him, “hurry up, hurry up,” help him, “How do you open this?”

The victim Mr. Rains throws a key to the Defendant. The defendant misses the key, you can see in the video, as well as he turns around, picks up the key. The Defendant then reaches over the green portion there of the counter with his right hand and starts attempting to place a key on the left or right top portion of the cash box itself.

The Defendant is having extreme difficulty and is again asking Mr. Rains for his assistance. You can hear Mr. Rains saying, “I can’t. I can’t.” And right at that point you will see the key break in one of the two key locks. The Defendant throws a broken portion of the key, grabs or actually leans over the counter, grabs the entire contents of the register, rips it off its secured area, pulls back and goes out the front doors with half of the entire cash box up against his chest.

He exits the store leaving behind what -- you can see a little bit of the white tape, the cash register tape in No. 3 -- up, and No. 1, about half of it, leaving on the front concrete area of the store, the same portion of what you see in No. 3.

Q After the Defendant leaves the store the tape continue for any length of time?

*7 A Yes, sir, that tape will go for approximately another 43 to 45 minutes.

Q All right. Assume with me that the tape is cut off after about 10 or 12 minutes after the Defendant leaves the store. what do you observe? If you could, just summarize what did you observe for the next 10 to 12 minutes?

A Well, the victim, Mr. William Rains, makes a number of attempts to get to his feet back behind the cash register area. In these attempts it looks like he’s attempting to get to a telephone from what I can surmise from viewing the tape. He’s lost all of his motor skills and in each attempt he falls back down to the floor. Making at least 5 or 6 attempts to get up to help himself.

Q I am going to show the tape at this time, Sergeant. I am probably going to turn off the tape after the Defendant exits the store. I just think that is probably all we need to see at this point. Okay?

A Yes, sir. (R. XVI - 268,269,270)

The tape was then played for the benefit of the jury. (R. XVI-272)

Through the testimony of the medical examiner and the father of the deceased, the State established the cause of the victim’s death and his identity. (R. XVII - 28, 62)

The State’s final witness was Henry Wright, another acquaintance of the appellant. (R. XVII-67) According to Wright the appellant was the individual depicted on the videotape which recorded the demise of Williams Matthew Rains. (R. XVII-69)

ARGUMENT AND AUTHORITIES

In ascertaining whether there exists legally sufficient evidence to support a judgment of conviction, this Court must, *8 while viewing the evidence in a light most favorable to the verdict, determine whether evidence was brought forth from which any rational trier of fact could have found the accused guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, (1979) 99 S.Ct. 2781, 61 L.Ed.2d 560; Sonnier v. State, __S.W.2d__ (No. 71,698, Tex. Crim. App., November 29, 1995).

The “reasonable hypotheses other than the appellant’s guilt” analytical construction is no longer utilized in considering challenges to the sufficiency of the evidence. Brown v. State, __S.W.__ (No. 0852-94, Tex. Crim. App., December 13, 1995).

A reviewing court is not permitted to shift through the evidence presented and make an independent, de novo, determination of what is, and what is not, probative evidence in determining the sufficiency of the evidence to support the conviction. Villanon v. State, 791 S.W.2d 130 (Tex. Crim. App. 1990). In addition, the fact/finder is the exclusive judge of the facts, and the sole judge of the credibility of the witnesses. Alvarado v. State, __S.W.2d__, (No. 71,779 slip op. at p. 13, Tex. Crim. App., November 15, 1995); Miller v. State, 566 S.W.2d 614 (Tex. Crim. App. 1978). As such, the trier of fact is entitled to accept or reject any part or all testimony given by witnesses for the State and the accused. Bowden v. State, 628 S.W.2d 782 (Tex. Crim. App. 1982). Furthermore, the existence of evidentiary conflicts will not require a reversal if there exists sufficient evidence to prove the elements of the offense. *9 Banks v. State, 510 S.W.2d 592 (Tex. Crim. App. 1974); Solis v. State, 492 S.W.2d 561 (Tex. Crim. App. 1973).

The appellant’s challenge to the sufficiency of the evidence is limited in scope. He challenges the State’s proof on the issues of identity and intent. The State will respond to those two contentions in that order.

IDENTITY

The appellant asserts that the “only evidence put forth by the State that the appellant committed the offense of murder was a video recording made at the store in which the offense occurred.” He goes on to complain that the corroborating evidence was “unconvincing at the least, and unbelievable at the most.” (Appellant’s Brief, page 5) The appellant’s claim must fail because it fails to account for two well-established principles. First, as previously noted, the credibility of the witnesses is a question for the fact/finder. Alvarado v. State, supra. See also: Clewis v. State, __S.W.2d__ (No. 450-94, Tex. Crim. App., January 31, 1996)(In making a factual sufficiency review, a reviewing appellate court is not permitted to substitute its judgment for that of the jury). As a result, the question of whether the appellant was the individual whose image appears on the videotape depicting the offense was a factual issue determined in the trial Court and should not be overturned by this Court. See: Garcia v. State, 887 S.W.2d 862 (Tex. Crim. App. 1994), cert. den. __U.S.__, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995); *10 Foster v. State, 779 S.W.2d 845 (Tex. Crim. App. 1989), cert. den. 494 U.S.1039, 110 S.Ct. 1505, 108 L.Ed.2d 639 (1990).

Secondly, there exists no requirement under the law that an identification witness’ testimony be corroborated. See generally: Fisher v. State, 851 S.W.2d 298 (Tex. Crim. App. 1993)(Due process clause of the Fourteenth Amendment requires nothing more than, that the State prove the statutorily enumerated elements of the offense).

INTENT

In addition to the arguments advanced with respect to the identity issue, the appellant contends that the evidence is legally insufficient to demonstrate that he acted intentionally in causing the death of the victim.

Intent to kill may be inferred from the use of a deadly weapon in a deadly manner. Adanandus v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993), cert. den. __U.S.__, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994); Ross v. State, 861 S.W.2d 870 (Tex. Crim. App. 1992). The inference can approach conclusive if the deadly weapon is used in a deadly manner. Godsey v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993), The inference should be employed unless, in the manner of the weapons use, it is reasonably apparent that death or serious bodily injury could not result. Staley v. State, 887 S.W.2d 885 (Tex. Crim. App. 1994), cert. den. __U.S.__, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995).

The videotape of the offense contains ample evidence upon which a rational trier of fact could base a conclusion that the *11 appellant intentionally caused the death of William Rains. Wilkerson v. State, 881 S.W.2d 321 (Tex. Crim. App. 1994), cert. den. __U.S.__, 115 S.Ct. 671, 130 L.Ed.2d 604 (1995); Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994), cert. den. __U.S.__, 115 S.Ct. 174, 130 L.Ed.2d 110 (1995); Hernandez v. State, 819 S.W.2d 806 (Tex. Crim. App. 1991), cert. den. __U.S.__, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992); Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991), cert. den. 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1992); Thompson v. State, 691 S.W.2d 627 (Tex. Crim. App. 1984), cert. den. 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1986).

The appellant’s first point of error is without merit and should be overruled.

RESPONSE TO APPELLANT’S SECOND POINT OF ERROR (Appellant’s Brief, Page 17)

In his second point of error, the appellant contends that his first arrest was unlawful, therefore tainting the second arrest.

The appellant goes on to state that “any fruits from this arrest should therefore be inadmissible.”

Due to the somewhat unique nature of the appellant’s claim, a thorough review of the pertinent facts is necessary.

Prior to trial, appellant’s counsel filed three separate motions seeking the suppression of various types of evidence on the grounds that, among other things, the appellant had been illegally arrested. (R. I - 12, 13, 20) in response to those motions, the trial Court conducted a pre-trial hearing on the appellant’s motions. The pertinent testimony from the hearing on *12 the motion was relatively brief. Officer Robert De La Garza of the Balcones Heights Police Department testified that in the early morning hours of October 29, 1993, he was dispatched to a Stop ‘N Go convenience store for a shooting. (R. IV - 14,15) While at the scene, De La Garza obtained a videotape cassette from a video recording machine located within the convenience store. (R. IV-17) De La Garza viewed the tape shortly after obtaining it; it contained a videotape recording of a robbery/murder of the complainant by a then-unidentified individual who subsequently fled the location with the store’s cash register. (R. IV-19)

In an effort to ascertain the identity of the actor, Officer De La Garza enlisted the assistance of the San Antonio Police Department’s Crime Stoppers Program. (R. IV-27) in response to a newscast, a number of citizens called to offer information. Included among those callers was a Mr. Ray Thompson. (R. IV-28) Mr. Thompson viewed the tape and identified the appellant as the actor thereon. (R. IV-28, 141, 143)

Armed with this information, Officer De La Garza obtained an arrest warrant for the appellant, charging him with the offense of Capital Murder. (R. IV -29, 30, 31)

That arrest warrant was obtained from the magistrate at approximately 10:00 P.M. or 10:30 P.M. on the day of the offense.⁴ (R. IV-31) Within approximately an hour of obtaining the arrest *13 warrant, De La Garza executed the warrant by arresting the appellant, who at the time was in the custody of the San Antonio Police Department. (R. IV - 33, 34) De La Garza obtained the appellant’s coat and shoes before he was transported to the jail for booking. (R. IV - 40, 41) No other physical evidence was obtained as a result of the arrest. Moreover, no incriminating statements by the appellant were obtained following the arrest. (R. IV-71)

The other witness of import, at the motion to suppress hearing, was Officer Roger Robles of the San Antonio Police Department. (R. IV-87) Officer Robles arrested the appellant for the offense of failure to identify⁵ at approximately 10:40 P.M. on the day of the offense. (R. IV-97) After his arrest, the appellant was transported to the San Antonio Police Department where Officer De La Garza of the Balcones Heights Police Department executed the warrant he had recently obtained for the appellant for the offense of Capital Murder. (R. IV - 99, 100) It was at this time that De La Garza obtained the appellant’s coat and shoes. Officer Robles did not question the appellant about the Stop ‘N Go homicide, nor did he obtain any physical evidence relevant to the prosecution for that offense. (R. IV-101)

As previously noted, Officer Robles arrested the appellant for the offense of Failure to Identify. (R. IV-96) The basis for that arrest was the appellant’s giving of a false name (Robert Harris) to Officer Robles after appellant was detained by Officer *14 Robles during an investigation into the possible distribution of narcotics by the appellant. (R. IV-93) Officer Robles had been given information shortly after 10:00 P.M. on the day of the offense that an individual was selling cocaine on a street corner in San Antonio. (R. IV-88) Officer Robles and his partner then went to the location given to them by the confidential informant and placed the appellant under surveillance from an unmarked vehicle. (R. IV - 91, 92) While observing the appellant, the officers witnessed certain actions on his part that led them to believe that he was selling narcotics. (R. IV-92) At this time Officer Robles drove towards the appellant, who began to walk away. (R. IV-93) Robles then stopped the appellant and, after identifying himself as a law enforcement officer, asked the appellant for his name. (R. IV-93) The appellant informed Officer Robles that his name was Robert Harris. (R. IV-94) A check of the appellant’s wallet uncovered a T.D.C. inmate card identifying the appellant by his true name. (R. IV-94)

At the conclusion of the motion to suppress hearing the prosecutor informed the trial Court that out of an “abundance of caution” he would not seek to offer into evidence the physical evidence seized from the appellant (his coat and shoes) at the San Antonio Police Department by Officer De La Garza. (R. IV - 161, 162, 166) Because of the prosecutor’s representation, the trial Court declined a ruling on the appellant’s motion to suppress physical evidence. (R. IV-166) in lieu of a ruling on the motion to suppress the trial Court provided the following to the parties:

*15 Okay. Well, since they have indicated those are not going to be offered, I don’t see any need to make a ruling on it at this point. What I will do is grant a motion on it at this point. What I will do is grant a motion in limine as--that will be proffered by the Defense. You can put it in written for if you want to, but basically none of that evidence will be mentioned in the opening statement and voir dire or before the jury. In the event you want to offer it for any purpose, then at that point I will make the ruling as to admissibility. I don’t see any need to make rulings on items that won’t be offered. (R.IV-166)

The appellant asserts that his clothing was illegally seized from his person and that the trial Court reversibly erred in failing to suppress that evidence. (Appellant’s Brief, page 19) The appellant’s contention must fail for four separate and distinct reasons. The State will address those in ascending order of complexity.

ERROR NOT PRESERVED DUE TO ABSENCE OF TRIAL COURT RULING

To preserve an issue for purposes of appellate review an appellant must obtain an adverse ruling. Tex. R. App. Proc. 52(a); Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994); Ramirez v. State, 815 S.W.2d 636 (Tex. Crim. App. 1991). The ruling must be conclusory; this is, it must be clear from the record that the Court was ruling against the accused, otherwise any alleged error is waived. Powell v. State, supra; Ramirez v. State, supra. This rule of law is fully applicable to motions to suppress evidence on the grounds that it was illegally obtained. Garcia v. State, 887 S.W.2d 862 (Tex. Crim. App. 1994), cert. den. __U.S.__, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995); *16 Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992), cert. den.__ U.S.__, 113 S.Ct. 381, 121 L.Ed.2d 292 (1913). In the instant case, the record is devoid of any ruling which constitutes a clearly adverse ruling against the appellant; this allegation of error is not preserved for purposes of review. Garcia v. State, supra; Harris v. State, supra.

THE APPELLANT WAS LAWFULLY ARRESTED FOR THE OFFENSE OF THEFT

As noted above, prior to leaving the scene of the offense Officer De La Garza observed a videotape of an offense during which the suspect was seen stealing a cash register from the Stop ‘N Go and fleeing the scene. Prior to arresting the appellant, Officer De La Garza ascertained the identity of the actor on the videotape.

The applicable provision of the Code of Criminal Procedure provides as follows:

All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay. Art. 18.16, Tex. Code Crim. Proc. Ann. (Vernon 1977)

At the time he was apprehended by Officer Robles, Officer De La Garza was aware of sufficient facts to constitute probable cause to arrest the appellant without a warrant for the offense of theft, and Art. 18.16, id., provided the statutory authority for *17 making such a warrantless arrest. Stewart v. State, 611 S.W.2d 434 (Tex. Crim. App. 1981); Lewis v. State, 598 S.W.2d 280 (Tex. Crim. App. 1980); Trammell v. State, 445 S.W.2d 190 (Tex. Crim. App. 1969); Gonzales v. State, 161 Tex. Crim. 488, 278 S.W.2d 167 (1955); Beeland v. State, 149 Tex. Crim. 272, 193 S.W.2d 687 (1946).

It should be noted that probable cause to arrest can find its foundation in the cumulative knowledge of law enforcement officers. Pyles v. State, 755 S.W.2d 98 (Tex. Crim. App. 1988); Woodward v. State, 668 S.W.2d 337 (Tex. Crim. App. 1982), cert. den. 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985). Inasmuch as the appellant was lawfully arrested, the seizure of his coat and shoes was lawful as an exception to the Fourth Amendment’s warrant requirement, specifically a search incident to arrest. Satterwhite v. State, 726 S.W.2d 81 (Tex. Crim. App. 1986) rev’d in part, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Lalande v. State, 676 S.W.2d 115 (Tex. Crim. App. 1984); Stewart v. State, supra.

THE APPELLANT WAS LAWFULLY ARRESTED FOR THE OFFENSE FAILURE TO IDENTIFY

As noted above the appellant, when asked his name by Officer Robles, stated his name was Robert Harris. When confronted with evidence that Robert Harris was possibly not his true name, the appellant admitted his true name. The appellant was lawfully arrested without an arrest warrant for the offense of Failure To Identify. The provision in question states as follows:

*18 “A person commits an offense if he gives a false or fictitious name... to a peace officer who has ... lawfully detained the person. Sect. 38.02; id.

The facts set forth above indicate that the appellant committed a misdemeanor in the presence of Officer Robles. The subsequent warrantless arrest was legal under the auspices of Art. 14.01(b), Tex. Code Crim. Proc. (Vernon 1977). Pinney v. State, 679 S.W.2d 770 (Tex. App.-Forth Worth, 1984, pet. ref’d).

THE APPELLANT WAS LAWFULLY ARRESTED PURSUANT TO A CAPITAL MURDER WARRANT

Officer De La Garza testified that at the time the appellant was searched he had been arrested pursuant to a warrant charging him with the offense of Capital Murder. The appellant did not challenge the validity of that warrant in the trial Court. Furthermore, he has not challenged the validity of the warrant in this Court. Therefore, the arrest warrant and the ensuing arrest is presumptively valid. See: Russell v. State, 717 S.W.2d 7 (Tex. Crim. App. 1986).

The appellant appears to assert that the arrest for Capital Murder was illegal because it constitutes the fruit of the prior illegal arrest for the offense of Failure to Identify. The appellant’s argument in this regard must fail. The Capital Murder warrant was not based upon any facts obtained as a result of the misdemeanor arrest by Officer Robles. Stated in the alternative, the Capital Murder warrant (and subsequent arrest) was not the fruit of the alleged poisonous tree (the arrest for Failure To *19 Identify) and as a result the felony arrest was legal. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Johnson v. State, 871 S.W.2d 744 (Tex. Crim. App. 1994); Puente v. State, 888 S.W.2d 521 (Tex. App.-San Antonio, 1994); Welcome v. State, 865 S.W.2d 128 (Tex. App.-Dallas, 1993, pet. ref’d); Reed v. State, 809 S.W.2d 940 (Tex. App.-Dallas, 1991).

For the above-stated reasons, the appellant’s second point of error should be overruled.

RESPONSE TO APPELLANT’S THIRD POINT OF ERROR (Appellant’s Brief, Page 23)

In his third point of error the appellant contends that, by bringing forth evidence concerning the clothing being worn by the appellant at the time of his arrest, the prosecution violated a pre-trial Motion in Limine granted by the trial Court.

The evidence in dispute was brought forth during the direct examination of Officer De La Garza at the guilt-innocence phase of the trial. During the course of De La Garza’s testimony, a hearing was held outside the presence of the jury regarding whether or not De La Garza would be permitted to testify regarding what clothing the appellant was seen wearing at the time he was arrested by Officer De La Garza. (R. IV-223) At the conclusion of that hearing the trial Court ruled as follows:

“In regard to his observations solely concerning the clothing he was wearing when he went to execute the warrant, I will overrule the objection and he can testify only to that.” (R. IV-223)

*20 When the time came for Officer De La Garza to testify before the jury the following unfolded:

Q Had you ever seen this defendant before that night?

A Before the night at the R.O.P. office? Yes, sir, on the video tape approximately 22 hours earlier as I reviewed it.

Q Was there anything about him that caused you to recognize him other than his facial features?

A As I walked into the office where they had the Defendant, right away I was struck with the clothing he was wearing.

Q What struck you about the clothing?

A The clothing was identical to that that was on the videotape.

MR. REECE: I object again, Your Honor. That other matter is not in evidence at this point. I thought the Court made it clear to Counsel what the ruling was.

THE COURT: I will sustain the objection.

MR. REECE: I would ask the jury to disregard that, your Honor.

THE COURT: Ladies and gentlemen, you are instructed to disregard the last question and comment by the witness.

MR. REECE: And I move for a mistrial based on the specific violation of the Court’s order by counsel.

THE COURT: I will overrule that request. (R. IV - 264, 265)

The subject matter in dispute arose on two more occasions during the testimony of De La Garza. The initial broaching of the subject occurred in the following fashion:

*21 Q You testified that when you saw Mr. Johnson, the Defendant, at the R.O.P. Office, that not only did you recognize his facial features but you indicated you recognized something else about him that looked identical on the video tape?

A The moment I walked in the room I was elated to see that he had on the same coat that I saw in the surveillance tape, the same color. When I had him stand up so I could pat him down, as I advised him he was under arrest, with the arrest warrant in hand, as I was patting him down, I remembered looking at the video that I had seen a number of times in the morning, even the back portion of his beige and darker brown coat where the hood is in the rear, the flip -- it had a flip crease on it. It had the same crease in my video. I was convinced I had the same man. Thus I took his clothing and his shoes for evidence after he was advised --

Q Let’s not go into those matters.

A Okay.

Q Let’s just -- all we can go into is your observations.

MR. REECE: We need to approach the bench.

MR. REECE: Mr. Serna informed me it appears that Mr. Cohen has violated what the Court had ruled.

MR. SERNA: I believe Mr. Cohen was -- he’s making a comparison to the clothes and as to the video tape. He was not allowed to do that.

MR. COHEN: Only because it hadn’t been introduced. It’s introduced now I believe.

MR. SERNA: He --

THE COURT: Go ahead.

*22 MR. SERNA: Your Honor, he did in fact mention the fact he took his clothes from the Defendant when you specifically told Mr. Cohen those matters weren’t supposed to be gone into. You asked that. We object to it. We would ask that you instruct the jury to disregard that and we would like to ask for -- move for a mistrial at this time.

MR. COHEN: it was not responsive to my question. I certainly did not intentionally ever violate an order of this Court. I asked him, you know, his observations. He volunteered the part about taking the clothing. So I don’t disagree with Mr. Serna.

THE COURT: I will sustain the objection. I will instruct them and I will deny the mistrial. Their deal was in comparison to it, and item that was not in evidence. It is now in evidence.

MR. COHEN: Yes, sir.

THE COURT: it was not responsive to the question, I will note for the record.

MR. COHEN: Yes, sir.

THE COURT: Ladies and gentlemen of the jury, I sustained the objection. You are instructed to disregard the officer’s comments concerning the seizure of clothing and shoes, and I will deny the motion for mistrial for the record. You may proceed.

Questions by Mr. Cohen:

Q But without going into the seizures or anything, I just want to talk about what you visually observed.

A Yes, sir.

Q Sergeant, I believe you indicated it was his jacket, anything else?

MR. REECE: Your Honor, it’s repetitious. He’s gone over it.

*23 MR. COHEN: I guess Mr. Reece can read minds. I haven’t finished the question.

THE COURT: Go ahead and finish the question.

Questions by Mr. Cohen:

Q You have indicated the jacket. what other type of clothing was he wearing that matched what --

MR. REECE: Objection, Your Honor, repetitious. He’s gone over it.

THE COURT: I will overrule that objection.

THE WITNESS: Canvas, white canvas tennis shoes.

MR. COHEN: No further questions, Judge. Pass the witness. (R. IV - thru 286)

The final time the subject was discussed it unfolded in the following manner:

Questions by Mr. Cohen:

Q Again I will re-ask the question. After the Defendant committed this capital murder that you have testified to, how many hours after that did you in fact arrest the Defendant and observe the same clothing you saw on the video tape?

A Approximately 18 hours, sir. (R. IV - 298, 299)

The appellant contends that he is entitled to a new trial on the grounds that the above-cited testimony violated a pre-trial motion in limine. (Appellant’s Brief, pg. 23)

The appellant’s claim must fail for three reasons which will be addressed in turn.

*24 THE GRANTING OF A PRE-TRIAL MOTION IN LIMINE DOES NOT PRESERVE ERROR

A favorable ruling on a pre-trial motion in limine preserves nothing for purposes of review; a timely and specific objection to the admission of the evidence is necessary to preserve a complaint regarding the admission of the evidence. Wilkerson v. State, 881 S.W.2d 321 (Tex. Crim. App. 1994); Goss v. State, 826 S.W.2d 162 (Tex. Crim. App. 1992), cert. den.___U.S.___, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); Willis v. State, 785 S.W.2d 378 (Tex. Crim. App. 1989), cert. den.___U.S.___, 111 S.Ct. 279, 112 L.Ed.2d 234 (1990). It should also be noted that the appellant’s contention that the trial Court ruled in such a fashion as to prohibit the prosecution from introducing evidence that the appellant was arrested wearing the same clothes he was seen wearing on the video-tape is not supported by the record. (R. IV-223)

THE APPELLANT OBTAINED MORE RELIEF FROM THE TRIAL COURT THAN THE LAW REQUIRED

As noted above, on two occasions the trial Court sustained objections, by the appellant, to testimony by Officer De La Garza as to his observation that appellant was wearing the same clothes at the time of his arrest as he was wearing at the time of the offense. (R. IV - 264, 284) in sustaining the appellant’s objections, the trial Court granted the appellant more relief than he was entitled to under the law. (See: Response To Appellant’s Second Point Of Error) As a result, the appellant cannot obtain a reversal on this basis because he received more relief than the *25 law required. See: Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1990), cert. den. 498 U.S. 881, 111 S.Ct. 226, 113 L.Ed.2d (1991); Rule 81 (b)(2), Tex. R. App. Proc.

THE EVIDENCE WAS ADMITTED AT A LATER TIME WITHOUT OBJECTION

As noted, at the end of De La Garza’s testimony, it was established that the clothing being worn by the appellant at the time of his arrest matched what he is seen wearing on the video tape. (R. IV - 298, 299) No objection was lodged at that time. As a result, any error which occurred at the time of De La Garza’s earlier testimony was rendered harmless when the same evidence was later introduced without objection. McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992), cert. den. ___U.S.___, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993); Johnson v.State, 803 S.W.2d 272 (Tex. Crim. App. 1990), cert. den. ___U.S.___, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991).

The appellant’s third point of error is without merit and should be overruled.

RESPONSE TO APPELLANT’S FOURTH POINT OF ERROR (Appellant’s Brief, Page 32)

In his fourth point of error, the appellant contends that the trial Court erred in admitting evidence of extraneous acts of misconduct at the punishment phase of the trial.

More specifically the appellant asserts that because the acts of misconduct in question⁶ were “not final convictions, nor *26 probated or suspended sentences, nor were they material to the offense charged, nor were they relevant to defendant’s background or character,” they were inadmissible under this Court’s holding in Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992) (unadjudicated acts of misconduct inadmissible at the punishment phase of a non-capital offense).

At the outset, the State would urge that this allegation of error is not preserved for purposes of review. An examination of the testimony of Sgt. Gibson reveals that at no time did the appellant raise the objection which forms the basis for this allegation of error. Inasmuch as a timely objection was not raised, and this contention is being raised for the first time on appeal, it is not preserved for purposes of appellate review. Etheridge v. State, 903 S.W.2d 1 (Tex. Crim. App. 1994); Burks v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994), cert. den. __U.S.__, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992), cert. den. __U.S.__, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993); Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990), cert. den. 499 U.S. 931, 111 S.Ct. 1339, 113 L.Ed.2d 271 (1991).

In addition to presenting the issue for the first time to this Court, the appellant is arguing in contravention to the well-established rule of law that unadjudicated acts of misconduct by the accused are admissible at the punishment phase of a capital *27 murder in the absence of the demonstration of surprise to the accused. McFarland v. State, __S.W.2d__ (No. 71, 557, Tex. Crim. App. February 21, 1996); Ramirez v. State, 815 S.w.2d 636 (Tex. Crim. App. 1991); Gentry v. State, 770 S.W.2d 780 (Tex. Crim. App. 1988), cert. den. 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1013 (1989); Rumbaugh v. State, 589 S.W.2d 414 (Tex. Crim. App. 1979).

The appellant’s fourth point of error is neither preserved nor meritorious; it should be overruled.

RESPONSE TO APPELLANT’S FIFTH POINT OF ERROR (Appellant’s Brief, Page 34)

In his final point of error the appellant contends that the death penalty is unconstitutional and inhumane, hence in violation of the Eighth Amendment to the United States Constitution.

The appellant’s point of error appears to be a “facial challenge” to the death penalty; that is, an assertion that a death penalty imposed on an accused under any punishment scheme is violative of the Eighth Amendment’s prohibition against cruel and unusual punishment. His only legal argument in support of that claim is a dissenting opinion to an order denying a writ of certiorari in a federal habeas corpus matter. See: Callins v. Collins, 510U.S.1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994). Justice Blackmun’s abdication in Callins notwithstanding, the death penalty is not violative of the Eighth Amendment per se. Tuilaepa v. California, 512U.S.967, 114 S.Ct 2630, 129 L.Ed.2d 750 (1994); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); *28 Jurek v. State, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See also: Johnson v. Texas, 509 U.S.350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1995).

The appellant’s fifth point of error is without merit and should be overruled.

*29 CONCLUSION

WHEREFORE, PREMISES CONSIDERED, the State submits that the action of the trial court should in all things be affirmed.