Opinion
No. 05-01-01160-CR; No. 05-01-01161-CR; No. 05-01-01162-CR
Opinion Filed June 16, 2003 Do Not Publish
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F96-50924-VQ, F01-49564-PQ and F01-49565-SQ. AFFIRMED
OPINION
Appellant Daryl Dmon Hamilton was charged by indictment with the felony offense of possession of cocaine in an amount of more than one gram but less than four grams. Pursuant to a plea bargain, he pleaded guilty and was placed on probation for five years, the underlying sentence being seven years' confinement in prison and a $1000 fine. Subsequently, he was indicted for two felony offenses, possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams, and possession of a firearm by a felon. Based on these offenses and other violations of the terms and conditions of probation imposed upon Hamilton, the State moved to have Hamilton's probation revoked. Hamilton filed a pretrial motion to suppress evidence on the two newer indictments and that motion was heard and denied by the trial court. Subsequently, Hamilton pleaded "true" to all of the allegations in the motion to revoke his probation, and guilty to the two indictments. The trial court revoked Hamilton's probation and, following a plea bargain, sentenced him to seven years in prison in the possession of cocaine case. The trial court also found Hamilton guilty in the possession with intent to deliver cocaine case and the possession of a firearm case. Following a plea bargain, the trial court sentenced Hamilton to twelve years in prison, assessed a $5000 fine, and entered a deadly weapon finding in the possession with intent to deliver case. Pursuant to a plea bargain agreement, the trial court assessed punishment at ten years in prison and a $5000 fine in the firearm case. Hamilton was given permission by the trial court to appeal the ruling on the motion to suppress. On appeal, Hamilton brings one point of error in each case contesting the trial court's decision to overrule his motion to suppress. We affirm. The facts brought forward by the State at the pretrial hearing on Hamilton's motion to suppress showed that on the night of February 18, 2001, Dallas police officers Kurt Hibbets and Chris Wagner were on routine patrol when they received a tip that drugs were being sold at a particular duplex. The tip was delivered personally by an unnamed citizen who was not known to the officers. However, previous information gathered by the officers corroborated the fresher information from the unnamed citizen. Five officers drove to the residence and parked their patrol cars so as not to be seen from the duplex. The officers approached the front of the residence by stealth and watched as a male went to the front door and knocked. The front door was actually two doors, one wooden and the other metal "burglar bars." When the door was opened from inside by another male, later identified as Hamilton, the officers observed that Hamilton was holding a pistol equipped with an activated, red laser gunsight. At this point, Hibbits stepped into view and shined his flashlight on Hamilton, who was beginning to open the burglar bar door. Hamilton stepped backward and raised his gun toward Hibbets. As the red dot projected by the laser sight went past his foot, Hibbets yelled "police" and began drawing his own weapon. Appellant backpedaled into the house and fell onto a couch, dropping his pistol. Hibbets scanned the room and saw what he knew to be "rocks" of crack cocaine in plain view on top of a VCR. The officers then entered the house and conducted a cursory search for any persons who might pose a threat to their safety. During this search, Hibbets saw more crack cocaine and a handgun in plain view inside an open closet large enough to conceal a person. Hamilton was then arrested for possession with intent to deliver cocaine and possession of a weapon. At some point in these events, the man who initially knocked on the front door disappeared into the night. Based on these facts, the trial court overruled Hamilton's motion to suppress the cocaine and weapon. On June 29, 2001, Hamilton entered his pleas of true and guilty and was sentenced. On that same date, he filed a general notice of appeal in each case. Subsequently, and before filing his brief, appellant amended his notices of appeal to recite he raised the substance of his complaint before trial, the trial court ruled on his motion, and the trial court had given him permission to appeal. On appeal, Hamilton maintains that the officers' entry into the apartment without a warrant was violative of the warrant requirement of the Fourth Amendment. After a thorough review of the law and the evidence, we believe that the officers' warrantless entry into the house Hamilton was in was justified under the plain view doctrine, the probable cause doctrine, and the exigent circumstances doctrine. Police entry of a residence without consent of its residents constitutes a search. See McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991) (citing Katz v. United States, 389 U.S. 347, 351 and n. 8 (1967)). Such a search generally must occur pursuant to a warrant based on probable cause. See Schneckloth v. Bustamonte, 412 U.S. 218, 219-21 (1973); Janicek v. State, 634 S.W.2d 687, 690 (Tex.Crim.App. [Panel Op.] 1982). A search based on probable cause, when that probable cause is coupled with exigent circumstances which make the procuring of a warrant impracticable, is an exception to the warrant requirement. See McNairy, 835 S.W.2d at 106-07. The burden of proving this or any exception to the warrant requirement falls on the State. See McDonald v. United States, 335 U.S. 451, 455-56 (1948); Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986). The probable cause requirement of a warrantless entry into a house is met when the facts and circumstances within the officer's knowledge, and of which he had reasonably trustworthy information, would be sufficient in themselves to warrant a person of reasonable caution to believe that the person inside the house had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964); Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). The concept of probable cause itself is a flexible, common sense concept. Miller v. State, 667 S.W.2d 773, 777 (Tex.Crim.App. 1984) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). In deciding whether there is probable cause to make a warrantless arrest, an officer is entitled to draw upon both law enforcement experience and the totality of circumstances within his or her knowledge at the time of the arrest. See Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App. 1991). The exigent circumstances requirement of a warrantless entry into a house is met when officers are justified in believing that evidence or contraband will be destroyed if entry is not made immediately. McNairy, 835 S.W.2d at 107. In McNairy the court set out several factors to analyze in determining whether the law enforcement authorities could have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant. Id. at 107. Those factors included:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant . . .; (2) reasonable belief that the contraband is about to be removed . . .; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought . . .; (4) information indicating the possessors of the contraband are aware that the police are on their trail . . .; and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.Id. (quoting United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973)). Concerning the plain view doctrine, three conditions must be met before the plain view doctrine may be invoked: (1) the police had a right to be where they were when the item in question is viewed; (2) the discovery of the evidence must be inadvertent; and (3) the item's character as contraband must be "immediately apparent." Brown, 460 U.S. 730, 737 (1983); see also Arizona v. Hicks, 480 U.S. 321, 326-28 (1987). This "immediately apparent" prong of the plain view analysis does not require actual knowledge of incriminating evidence. Brown, 460 U.S. at 741-42. Rather, the seizure of property in plain view is presumptively reasonable if there is probable cause to associate the property with criminal activity. Hicks, 480 U.S. at 326; Brown, 460 U.S. at 741-42. In this case, the testimony at the motion to suppress hearing was that Hibbits and Wagner had both old and fresh information that drugs were being sold out of a house. In hiding, they watched a man knock on the front door and observed Hamilton come from inside the house to answer the knock with a firearm in his hand. Firearms have been associated with illegal drug dealing. See Gale v. State 998 S.W.2d 221, 225 (Tex.Crim.App. 1999); Dimas v. State, 987 S.W.2d 152, 154 (Tex.App.-Fort Worth 1999, pet. ref'd.). Hibbits quickly opened the burglar bar door but did not enter the house, rather he scanned the room with his flashlight and observed what he knew to be "rocks" of crack cocaine in plain view. Up to this point, Hibbits was where he had a perfect right to be. See Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex.Crim.App. 1995) (police have the same right as anyone to go to the front door of a residence and knock). From these facts, we believe Hibbits had the right under the probable cause and plain view doctrines to seize the cocaine. As previously stated, justification for Hibbits's entry into the house without a warrant necessitates analysis under the exigent circumstances doctrine. Using the factors in McNairy, it is apparent that once Hibbits identified the cocaine from his vantage point at the front door, Hamilton was aware that Hibbits was a police officer. Certainly the officers would have been justified in believing that Hamilton would dispose of the cocaine at this point if given the opportunity. The cocaine was in such a quantity that it would have been easy to dispose of it in a sink or toilet. Hamilton's possession of a pistol, especially a pistol with a sophisticated laser sight attached, would have justified the officers in believing that it would have been dangerous to just guard the house while a warrant was obtained. Given these realities, we believe that Hibbits had exigent circumstances justifying the warrantless entry into the house. See McNairy, 835 S.W.2d at 106-07. From this analysis, we hold that when Hibbits entered Hamilton's house he was justified in doing so under the plain view doctrine, the probable cause doctrine, and the exigent circumstances doctrine. Therefore, we conclude the trial court did not err in overruling the motion to suppress filed in cause numbers 05-01-01161-CR and 05-01-01162-CR. In cause number 05-01-01160-CR (F96-50924-VQ in the trial court), the probation revocation appeal, Hamilton's amended notice of appeal was identical to that filed in the two cases previously discussed. However, Hamilton did not file a motion to suppress in that appeal and, therefore, the amended notice of appeal's representation that the substance of the appeal was raised by written motion and ruled on before trial is inaccurate. See Solis v. State, 890 S.W.2d 518, 520 (Tex.App.-Dallas 1994, no pet.) (holding representations in notice of appeal of compliance with rules must be accurate to trigger this Court's jurisdiction). Thus, we must consider whether to dismiss this appeal for want of jurisdiction as requested by the State. See Woods v. State, 68 S.W.3d 667, 669-70 (Tex.Crim.App. 2002). We note there is a strong argument, contra to that embraced by the State, to the effect that rule 25.2(b)(3) is superseded by procedural code article 42.12, section 23(b). See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2003). That section provides that "When he [a defendant] is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in jail or in the institutional division of the Texas Department of Criminal Justice, he may appeal the revocation." Id. (Emphasis added). The court of criminal appeals has, in fact, held that rule 25.2(b)(3) (then rule 40(b)(1)) was inapplicable to appeals from revocation of regular community supervision, and therefore a general notice of appeal from such a revocation was sufficient to vest an appellate court with jurisdiction. Feagin v. State, 967 S.W.2d 417, 419 (Tex.Crim.App. 1998). Although the broad language in Woods seems contra, Woods was not a regular probation case which activated art. 42.12, section 23(b). Woods, 68 S.W.3d at 670-71 (Womack, J., concurring). On balance, and out of an abundance of caution, we hold that under the authority of art. 42.12, section 23(b), this court has jurisdiction to hear Hamilton's appeal in case number 05-01-01160-CR. Our decision to entertain jurisdiction on this point of error is, however, unhelpful to Hamilton's attempt to have the trial court's decision to revoke his probation overturned. This is true, in part, because we have held above that the actions of the police officers that lead to Hamilton's arrest were not violative of the Fourth Amendment. This is further true because the record reflects no motion to suppress was ever filed in case number 05-01-01160-CR. At the start of the hearing on Hamilton's motion to suppress, the trial court specifically noted that it was a hearing in cause numbers F01-49564-PQ and F01-49565-SQ only. Thus, it is evident that in case number 05-01-01160-CR, trial cause number F96-50924-VQ, Hamilton never complained of any search error in the trial court below. This being the case, he has failed to preserve error on appeal. Tex.R.App.P. 33.1(a)(1); Hull v. State, 67 S.W.3d 215, 217 (Tex.Crim.App. 2002). Moreover, in the motion to revoke probation, there were numerous allegations of violations of the conditions of probation that did not rely on or allude to the search complained of on appeal. Hamilton pleaded true to all of the allegations in the motion to revoke. The judgment reflects that the trial court found all of the allegations in the motion to be true. Case law is well settled that as long as one ground in a motion to revoke probation is valid, there can be no abuse of discretion in revoking a defendant's probation. Dunn v. State, 997 S.W.2d 885, 887 (Tex.App.-Waco 1999, pet. ref'd.); Anthony v. State, 962 S.W.2d 242, 246 (Tex.App.-Fort Worth 1998, no pet.). For all of the above reasons, Hamilton's point of error in case number 05-01-01160-CR should therefore be overruled. We find Hamilton's sole point of error in each case to be without merit. Hamilton's point of error challenging the warrantless entry of the police into his house in each case is overruled. The judgment of the trial court is affirmed in each case.
Trial court cause number F96-50924-VQ. Our case number 05-01-01160-CR.
Trial court cause number F01-49564-PQ. Our case number 05-01-01161-CR.
Trial court cause number F01-49565-SQ. Our case number 05-01-01162-CR.
These other allegations included three positive urine tests for cocaine, not reporting to the probation officer, failure to pay probation fees, and failure to pay court costs on a payout plan as directed.
There is no separate briefing or reasoning that invokes the protections of the Texas Constitution. See Tex. Const. art. I, § 9. Thus, we will only discuss Hamilton's contentions under the Fourth Amendment. See Barley v. State, 906 S.W.2d 27, 36 (Tex.Crim.App. 1995); Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App. 1991).
The State contends that we lack jurisdiction over these appeals because Hamilton filed general notices of appeal after receiving sentences that did not exceed the agreed punishments in his plea bargain agreements. The State cites us to rule of appellate procedure 25.2(b)(3). See Tex.R.App.P. 25.2(b)(3). Rule 25.2, governing notice of appeal in criminal cases, states:
25.2 Criminal Cases.
(a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal. In a death-penalty case, however, it is unnecessary to file a notice of appeal.
(b) Form and Sufficiency of Notice.
(1) Notice must be given in writing and filed with the trial court clerk.
(2) Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order, and,
if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01.
(3) But if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code
of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishmentrecommended by the prosecutor and agreed to by the defendant, the notice must: (A) specify that the appeal is for a jurisdictional defect; (B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (C) state that the trial court granted permission to appeal.
Id. [Emphasis supplied]. The State further cites Woods v. State as authority on point. See Woods v. State, 68 S.W.3d 667, 670 (Tex.Crim.App. 2002).
After the State's brief was filed in this court, the court of criminal appeals rendered Bayless v. State, which held that where, as here, an appellant files an amended notice of appeal that conforms to rule 25.2(b)(3), then the appellate court has jurisdiction to hear the appeal. See Bayless v. State, 91 S.W.3d 801, 805-06 (Tex.Crim.App. 2002). Hamilton's amended notice of appeal does so conform. Thus, we will proceed to decide cause numbers 05-01-01161-CR and 05-01-01162-CR on the merits. For reasons stated separately herein, we will also decide cause no. 05-01-01160-CR on the merits.