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Court of Appeals of Texas, Fourteenth District, HoustonMay 20, 2008
No. 14-07-00318-CR (Tex. App. May. 20, 2008)

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No. 14-07-00318-CR

Opinion filed May 20, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

Appeal from the 178th District Court Harris County, Texas, Trial Court Cause No. 1102936.

Panel consists of Chief Justice HEDGES and Justices ANDERSON and BOYCE.


ADELE HEDGES, Chief Justice.

After the trial court denied his motion to suppress, appellant, Marcos Resendez, entered a plea of guilty to one count of possession of marijuana. The trial court then found him guilty and sentenced him to five years imprisonment. On appeal, appellant argues that the trial court erred in not suppressing (1) physical evidence seized at his residence because the original entry into his residence was illegal and because the consent provided for the evidentiary search was not voluntary, and (2) his oral statements to police after their entry into his residence but before he was read his Miranda rights. We affirm.

I. Background

Sergeant Jose Diaz of the Texas Department of Public Safety, Narcotics Division Task Force, testified during the Motion to Suppress hearing. Officer Diaz received information on February 3, 2007, from ATF agents, who themselves had received a tip from a confidential informant, regarding a possible "kick robbery" at appellant's home. Diaz interpreted the tip to mean that the targeted residence might be a "stash house"; that the individuals who had delivered the drugs were in a dispute with the residents; that they were planning to steal the drugs back; and that they would harm appellant and his family in the process. The decision to act on the information was based on the safety of those in the home. Regarding his initial approach to the house, Diaz noted that it was nearly dark and the street lighting was dim, and he was mindful of the fact that narcotics traffickers commonly carry weapons. Diaz further testified that as he approached the house along with another uniformed trooper and several ATF agents, none of them had weapons drawn. Appellant opened the door after Diaz announced his group's presence. When the door was opened, Diaz instantly smelled the odor of both fresh and burning marijuana. Diaz asked about the presence of drugs, and appellant "went to the ground on his own" upon seeing the police. Diaz asked appellant to get up and join him in the foyer. Appellant was cooperative and pleasant and "knew right away why [the police] were there so he helped out the whole way." Diaz later testified during cross-examination that while appellant was on the ground, he was pat searched, handcuffed, and then walked back to the front door. He described appellant as very nervous and agitated. According to the officer, at no time was a gun ever pointed at anyone. After the discussion at the door, Diaz accompanied appellant back to Diaz's surveillance truck. Appellant was uncuffed and the two discussed the information regarding the kick robbery. During this time, appellant remained cooperative and gave Diaz additional information, including who had delivered the drugs, what they drove, and where weapons and marijuana were held inside the house. While Diaz and appellant were at the truck, agents conducted a protective sweep of the house for safety reasons. During the sweep, marijuana weighing 1,200 pounds was observed in plain view. At some point after the sweep, appellant consented to a search of the house and then accompanied Diaz on the search. The exact timing of the consent with respect to the initial sweep is not clear from the testimony, but it is clear that consent was given before the subsequent search was conducted. Later that night, appellant's home was struck by thirty rounds of fire from an AK47 and ten from a shotgun. In describing the circumstances surrounding his request for consent to search the home, Diaz testified that he read the consent form to appellant rather than let appellant read it himself. He also confirmed that (1) no one ever told appellant that he had to consent, (2) appellant never asked whether he had to consent, (3) appellant never indicated that he did not want to consent, and (4) no threats were made regarding the need to consent. Diaz testified that appellant signed the consent freely and voluntarily. Diaz explained that the right to refuse consent is mentioned in the written consent form; therefore, appellant was informed of his right to refuse consent in the process of being read the contents of the consent form. Though the conversation between Diaz and appellant was in mixed English and Spanish, the consent form was read only in English.

II. Search and Seizure of Physical Evidence

In his first issue, appellant argues that the initial entry of the police into his house lacked probable cause and, without a warrant, was illegal. Further, appellant argues that the subsequent search of his home was also illegal and therefore any physical evidence seized therein should have been suppressed.

A. Standards of Review

As a general rule, the appellate courts afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the trial court's findings are based on an evaluation of witness credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App. 1998) (explaining Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). Here, the trial court made no formal findings of fact; thus, we view the evidence in the light most favorable to the trial court's ruling and uphold that ruling if proper under any theory of law applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005); State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). Because the determination of whether probable cause exists is a mixed question of law and fact, we review de novo the application of the law of search and seizure to the facts of the case. Estrada, 154 S.W.3d at 607; see also Ross, 32 S.W.3d at 856 (noting that this standard applies where the trial court has established facts either impliedly or expressly). When a defendant in a criminal proceeding alleges a violation of the Fourth Amendment, the presumption that the police conduct was proper is rebutted by the defendant's showing that the search was conducted without a warrant. Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App. 2007). Under both the United States and Texas constitutions, a warrantless search of a residence is illegal unless probable cause exists in combination with exigent circumstances; however, this principle is subject to a "few specifically defined and well established exceptions." Estrada 154 S.W.3d at 608 (quoting McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003)). Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a person of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. Id. at 609. Exigent circumstances justifying a warrantless entry include the need to: (1) render aid or assistance to persons whom the officers reasonably believe are in need of assistance; (2) prevent destruction of evidence or contraband; and (3) protect the officers from persons whom they reasonably believe to be present and armed and dangerous. Id. at 608 n. 12. Voluntary consent to search is a well established exception to the warrant and probable cause requirements of the Fourth Amendment to the United States Constitution. Montanez v. State, 195 S.W.3d 101, 105 (Tex.Crim.App. 2006). Under Article I, Section 9 of the Texas Constitution, voluntary consent must be proven by clear and convincing evidence. Id.

B. Initial Entry

Our analysis begins with whether the initial entry was justified by probable cause coupled with exigent circumstances. Here, Estrada is particularly instructive. Like the present case, the police officer in Estrada smelled marijuana when the door of a residence was opened, a fact that the court stressed was an "element or layer" in determining whether probable cause existed, though not by itself sufficient. 154 S.W.3d at 607-09. A decisive additional fact in Estrada was that upon arriving at the residence, minors were observed trying to leave in their car and then admitted to police that they had been drinking alcohol and smoking marijuana inside the residence. Id. In addition, the police officer had smelled marijuana on the defendant when she had met the police at the end of the driveway to her house. Id. at 606. The Estrada court found probable cause for the search of the residence based on the combination of the admission of the minors and the detection of marijuana at the door and on the defendant. Id. at 609. In Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006), another case where marijuana was detected at the outset of a police entry into a residence, the Court of Criminal Appeals elaborated upon the relevance that the detection of ongoing use of contraband has in regard to a finding of probable cause.
The odor of contraband is certainly an important fact which may (or may not) be dispositive, given a specific context, in assessing whether probable cause exists. But probable cause does not depend upon the accumulation of only those facts which show overtly criminal conduct. Instead, probable cause is the accumulation of facts which, when viewed in their totality, would lead a reasonable police officer to conclude, with a fair probability, that a crime has been committed or is being committed by someone.
Id. at 599. In the present case, Diaz testified that when appellant opened the door to his house, Diaz "instantly smelled . . . a real strong odor of burning marijuana and then . . . fresh marijuana." Consistent with Parker, the trial court could have reasonably given considerable weight to the smell of the contraband. Additionally, the detection of marijuana was consistent with the informant's tip that a major delivery of drugs had been made to the house, a delivery that brought with it imminent danger to the residents of the house. Notably, in Estrada and Parker, both of which focused upon the smell of marijuana at the entrance to a house as a prelude to police entry, the tip upon which the police initially relied was unrelated to drug use, yet in each case probable cause was found. Also, consistent with the facts in Parker and Estrada, there were other circumstances that the trial court could have relied upon to find that police entry was justified. Specifically, Diaz testified as to his concern for the safety of his officers in their approach to the house, knowing that there may have been armed individuals inside the house. Diaz also explained that part of the reason for performing a sweep of the house after entry was to guard against an assault by another person who might be in the house (a particular concern here given that the house was reputedly a "stash house," and a "kick robbery" was reportedly scheduled to occur at some point). In addition, Diaz characterized the behavior of appellant in dropping to the floor upon seeing the police as "odd"; such conduct raised a "safety issue" in his mind. In light of these facts and the guidance of Parker, the trial court could have reasonably found there to be trustworthy facts and circumstances within the knowledge of officer Diaz leading a person of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime would be found. We therefore hold that the trial court could have found that probable cause supported the action of the police in entering appellant's house. In addition to the inquiry into probable cause, we must also consider whether the original entry into the house was supported by exigent circumstances. See Estrada 154 S.W.3d at 608 (holding that a warrantless search of a residence is illegal unless probable cause exists in combination with exigent circumstances). Exigent circumstances include the need to: (1) render aid or assistance; (2) prevent destruction of contraband; and (3) protect officers. Id. at 608 n. 12. In reversing the court of appeals, the Estrada court pointed to the facts that police had seen minors attempting to leave the premises and had heard people inside the house who did not respond when the police first announced their presence. Id. at 610. The court found that those facts supported a finding that the warrantless search was justified by the need to prevent the possible destruction of evidence in the time it would have taken the police to procure a warrant. Id. The Estrada court also found support in evidence that the police had reason to believe the people inside the house were armed and dangerous, and out of concern for his own safety, the officer's stepping inside the house was justified by his wanting to see for himself who was present in the house. Id. The facts before us show that the police had information suggesting that drug traffickers had already delivered drugs to the house. Diaz testified that when dealing with drug traffickers, guns are often present. The information received by the police also indicated that the drug traffickers intended to return to the residence to retake their drugs and harm the residents. Diaz considered appellant's home to be a possible stash house for contraband. Diaz's testimony clearly indicated that their reasons for approaching the house included concern for the safety of its residents based on the tip information, a concern that was discussed with appellant in conversation subsequent to the original entry. Diaz's testimony regarding his concern for the safety of his own personnel has already been noted. These facts and circumstances collectively show that the trial court had ample evidence upon which it could have concluded that exigent circumstances existed with respect to the original entry into appellant's home. Because the trial court did not err in finding that the initial entry into appellant's house was supported by probable cause and exigent circumstances, appellant's first argument is without merit.

C. Subsequent Search

Appellant next argues that the consent he provided to the police to search the house was coerced and, therefore, did not constitute an exception to the general prohibition of warrantless searches. In order to show that proper consent was provided, the State must demonstrate that consent was not the result of duress or coercion. Gutierrez v. State, 221 S.W.3d 680, 686 (Tex.Crim.App. 2007). Whether or not consent in a particular case was voluntary turns on questions of fact, and a finding in this regard is reviewed only for an abuse of discretion. Johnson v. State, 226 S.W.3d 439, 443 (Tex.Crim.App. 2007). A judge may believe or disbelieve all or any part of a witness's testimony. Ross, 32 S.W.3d at 855. In the absence of formal findings of fact, we give deference to the trial court's ruling if supported by the record. Id. at 856. In the case before us, the court heard conflicting evidence as to the circumstances surrounding the consent form signed by appellant. The trial judge's decision as to whether to believe the testimony of Officer Diaz or that of appellant was based on credibility and demeanor, and we therefore must give almost total deference to that decision. See Loserth, 963 S.W.2d at 772. The trial court acted within its discretion in accepting the testimony of Diaz, who stated that he read the consent to appellant in full, under calm circumstances, with no threats raised or handcuffs used, and following a calm conversation. Additionally, appellant had clearly presented to Diaz that he was concerned about his family and wanted to cooperate. Testimony by both appellant and Diaz indicated that appellant had been cooperative throughout his interaction with the police. Appellant testified that at no time did Diaz ever raise his voice toward appellant. Appellant also testified that right after Diaz told him about the threat to his family, appellant disclosed to Diaz the fact of marijuana in the house and told Diaz where it could be found. Based on this testimony, it was reasonable for the trial court to conclude that appellant voluntarily signed the consent form. Accordingly, in regard to the subsequent search, there was no error on the part of the trial court. We find that trial court could have reasonably found that the initial entry was supported by probable cause and exigent circumstances, and that the subsequent search was supported by voluntary consent. Therefore, the trial judge did not err in denying the motion to suppress the physical evidence. We overrule appellant's first issue.

III. Statements made in custody

In his second issue, appellant argues that all statements he made while in custody, prior to the reading of Miranda rights, are inadmissible, relying on Vrba v. State, 69 S.W.3d 713 (Tex.App.-Waco 2002, pet. ref'd). Generally, to preserve error on a motion to suppress, a defendant is required to obtain a ruling from the trial court on the motion. Tex. R. App. Pro. 33.1(a)(2); Dunavin v. State, 611 S.W.2d 91, 94, 97 (Tex.Crim.App. 1981) (finding the defendant failed to preserve error where trial court refused to rule on motion to suppress until "facts were developed," and defendant failed to re-raise the motion); Bollinger v. State, 224 S.W.3d 768, 778 (Tex.App.-Eastland 2007, pet. ref'd) (holding defendant who failed to obtain a ruling on any of three pretrial motions to suppress failed to preserve error). Here, during the hearing on the motion to suppress, the trial court denied the motion in regard to the physical evidence but expressly deferred a ruling on the statements to a point in time when it would be known whether the case would go to trial. Because appellant subsequently pleaded guilty, the case never went to trial, appellant never re-raised the motion to suppress the statements, and the trial court never ruled in regard to the statements. Consequently, appellant failed to preserve the issue for appellate review. We therefore overrule appellant's second issue. We affirm the trial court's judgment.

Diaz testified that he no longer had a copy of the report documenting the tip and had no knowledge of the informant's identity, but that it was very common to use information from confidential informants. Under cross-examination, Diaz further testified that an ATF agent had contacted the DPS, saying that the dispute involved 3,000 pounds of marijuana delivered to appellant's home the previous Thursday, and that the reason for the threat upon appellant's life was nonpayment for the drugs.

Appellant's recollection of the events that transpired at the door differs markedly from Diaz's testimony. Appellant testified that he had seen the police through the window, and when he went to open the door, "they pushed it," and Officer Diaz pointed a gun at him. Appellant was ordered to get on the floor, and an agent handcuffed him. Hands cuffed behind his back, appellant was brought outside by the agents, "[dragged] from behind," and put on the ground near the house. Appellant's wife corroborated his testimony, saying that the police had pushed or kicked the door in when her husband opened it "because I could see his hand fly out" when it was opened. She testified that the agents' guns were drawn upon entry and were pointed at appellant while he was on the floor.

In his testimony, Diaz distinguished between a "search" and a "sweep." The protective sweep was performed as a precautionary measure for safety purposes, even though marijuana was observed during the sweep. According to Diaz, the search was conducted later, after the sweep had been completed and after consent to the search had been signed.
Legally speaking, a protective sweep is a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Reasor v. State, 12 S.W.3d 813, 815 (Tex.Crim.App. 2000) (quoting Maryland v. Buie, 494 U.S. 325, 327 (1990)). A sweep is not a thorough search of the premises; rather, it is only a cursory inspection of those spaces where a person might be found. Buie, 494 U.S. at 335; Reasor, 12 S.W.3d at 816.

Here again, appellant's testimony differs dramatically. Appellant testified that an agent who was holding a rifle near Diaz's truck told appellant that if he did not sign the consent form they would "tear down the house." Appellant feared for his wife's safety, wanted to cooperate, and signed the form after Diaz had the other agent uncuff appellant so he could do so. Appellant asserted that the consent form was never read to him, that it was "presented me so I sign it (sic)." Appellant acknowledged on several occasions that he wanted to cooperate but insisted that part of the reason was because a gun was being pointed at him.

The Ross court does point out one exception to the general rule regarding de novo review of the existence of probable cause: where the sole evidence presented is that of the arresting officer, almost total deference is afforded to the ruling of the trial court. 32 S.W.3d at 856. Such is not the case here.

Other than a general assertion that the police lacked probable cause, appellant raises no issue with regard to the credibility of the tip provided by the confidential informant. It should be noted that a tip from an informant, even if anonymous, can provide a basis for probable cause. See Eisenhauer v. State, 678 S.W.2d 947, 955 (Tex.Crim.App. 1984). Indicia of credibility of the informant's tip include the extent of detail that is provided and whether future events are predicted; also supportive of probable cause are observations by police that corroborate the tip information. See id; see also Illinois v. Gates, 462 U.S. 213, 244-46 (1983); Rojas v. State, 797 S.W.2d 41, 44 (Tex.Crim.App. 1990). Generally, an anonymous phone call, without corroboration, will never provide sufficient facts that would authorize a warrantless arrest or search. Glass v. State, 681 S.W.2d 599, 601 (Tex.Crim.App. 1984). In this case, the informant's tip included details (the amount of marijuana involved, the nature of the dispute between appellant and those who made the delivery), and it also predicted future events (that the drug deliverers would return to the residence to take back their drugs); there was also corroboration of the tip by the police based on physical observations (smelling the odor of marijuana upon opening the door).

The informants' tips in Estrada and Parker respectively involved vehicular speeding, loud music ( 154 S.W.3d at 605), and the serving of alcohol to minors ( 206 S.W.3d at 595).

Parker confirmed that the same facts can be supportive of both probable cause as well as exigent circumstances. 206 S.W.3d at 600-01.

According to Diaz, while cuffs were used in the initial confrontation as part of stabilizing the situation, after appellant put himself on the floor, they were removed when appellant and Diaz walked out of the house.

It should be noted that under certain circumstances, an implied adverse ruling can be found based on events that take place after a hearing, including a certification by the trial court of appellant's right to appeal based on an implied pre-trial ruling. Montanez v. State, 195 S.W.3d 101, 104-05 (Tex.Crim.App. 2006). In Montanez, the court record contained no formal ruling on the motion to suppress. Id. at 103. However, the transcript of the hearing showed that the trial judge stated a clear intent to make a ruling on the motion the next day, explaining that he still needed to review a videotape and possibly the State's brief in order to be in a position to make a ruling. Id. at 103, 105. Corroborating that intent was the certification of the right to appeal, wherein the judge checked a box to indicate that it was "a plea-bargain case, and is on matters that were raised by written motion filed and ruled on before trial." Id. In addition, the last line on the trial court's docket sheet stated "appeal preserved as to issues presented." Id. Citing those three indicators of the trial court's intent, the Court of Criminal Appeals found an implied adverse ruling on the defendant's motion to suppress. Id. at 105 (finding that the trial judge's actions and statements had "unquestionably indicate[d]" an adverse ruling on the motion (quoting Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App. 1995)).
is distinguishable from the present case in two critical respects. First, the judges selected different check-boxes in their appeal certifications (one indicating that written motions had been ruled on and one not). In addition, while the Montanez trial judge had clearly stated an intent at the time of the hearing to rule on the matter the next day, the trial judge in the present case expressed no such intent with respect to custodial statements. To the contrary, the trial judge here deferred the matter to an indefinite future date. Accordingly, we find nothing in the record before us upon which we could imply an adverse ruling by the trial judge regarding custodial statements.

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