Court of Appeals of Texas, Fourteenth District, Houston
On Appeal from the 262nd District Court, Harris County, Texas. Trial Court Cause No. 1319044.
For APPELLANT: Scott Ramsey, HOUSTON, TX.
For STATE: Jessica Alane Caird, HOUSTON, TX.
Panel consists of Chief Justice Frost and Justices Boyce and Jamison (Frost, C.J., concurring).
Martha Hill Jamison, Justice.
Appellant Richard Earl Ortiz appeals from his conviction for aggravated assault of a family member. Prior to trial, the court below denied appellant's motion to suppress out-of-court statements he made
to a police officer before he was administered Miranda warnings. A jury then found appellant guilty and assessed his punishment at 35-years' imprisonment. In a single issue on appeal, appellant contends the trial court erred in denying his motion to suppress. We affirm.
At the suppression hearing, Officer Jeffrey Spencer of the Baytown Police Department testified that on September 5, 2011, he was dispatched to a residence in response to a report of an assault involving appellant. Spencer recognized appellant's name, he said, because several officers in the department had spoken with appellant in the past and appellant had assaulted one of the department's sergeants. Because of appellant's past history, Spencer waited for backup before proceeding to the residence in question. When he arrived at the location, Spencer saw appellant walking out of a yard towards the street. Spencer stopped his patrol car a couple of houses away and observed appellant walking down the middle of the street with his fists clenched by his side. Spencer believed at that point that appellant was ready to fight the officers, and Spencer asked appellant " what was going on . . . how was it going . . . ?" Appellant then looked up and yelled, " It's a beautiful night tonight."
Spencer told appellant to stop and turn around. Appellant did so, and without being given further instructions, appellant placed his hands behind his back. Spencer then observed blood on appellant's hands and handcuffed appellant. Spencer told appellant, " Richard, you're not under arrest right now. You're just being detained until we figure out what's going on." Spencer further explained to appellant that he was only being detained until the officers could figure out what had happened. According to Spencer, at that time, he did not know whether there was even a victim in the area, so he would not have known what, if any, charge appellant should be arrested for.
Spencer asked appellant if appellant and his father had gotten into a fight. In response, appellant " kind of nodded his head towards his yard and said: Your victim's over there." At that point, Spencer had not seen appellant's father, Ricardo Ortiz. Spencer asked appellant, " Did you hit your dad or use a stick or anything like that?" Appellant replied that he had used his fists and then yelled that " God gave me these fists for a reason." Spencer stated that at this time, appellant was standing beside him in the street and had not been placed on the ground or in a patrol car, and Spencer had not drawn his firearm or shone a light in appellant's eyes.
Meanwhile, a third officer had arrived on the scene, located appellant's father nearby, and was calling for Emergency Medical Services to hurry to the scene. When Spencer heard the stress in the other officer's voice, he decided to place appellant in the police vehicle. After seeing the victim's injuries and speaking with appellant's wife regarding what had transpired, Spencer placed appellant under arrest and transported him to jail. Spencer estimated that he asked his initial question of ...