In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00134-CR
______________________________
SERGIO DOMINGUEZ, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 19,247-2006
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
When the door to apartment thirteen of the Lake Hollybrook Apartments in Wood County was opened to the two officers from the Wood County Sheriff's Department, Deputy Wes Criddle immediately smelled the strong odor of marihuana coming from inside the apartment. Criddle and his fellow officer, Lieutenant J. L. Miller, had been dispatched to the location in response to an anonymous tip concerning loud noises coming from, and possible narcotics use occurring in, the apartment. From outside the closed door, the officers had heard "a lot of noise coming from inside" the apartment. During the one or two minutes between the time the officers knocked on the door and the time the door was opened to them, they heard several occupants running around inside, engaging in "rapid activity." The officers' subsequent warrantless search of the apartment yielded various controlled substances and the prosecution of at least one of the apartment's occupants, Sergio Dominguez, Jr.
Dominguez filed a motion to suppress the resulting evidence of controlled substances, but his motion was denied. Dominguez pled guilty to possessing, with intent to distribute, more than four grams, but less than 200 grams, of cocaine. Dominguez appeals his resulting ten-year deferred adjudication, urging only that the trial court erroneously denied his motion to suppress. We affirm the trial court's judgment.
"[W]hen reviewing a trial court's decision to deny a motion to suppress, an appellate court 'should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.'" Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). "An appellate court 'should afford the same amount of deference to trial court's rulings on 'application of law to fact questions,' also known as 'mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.'" Id.
In this case, the reporter's record of the suppression hearing occupies 115 pages of testimony and argument of counsel. Only Criddle testified at the hearing. Thus, the trial court's implied fact-findings, as well as its application of the law to facts, necessarily turned on that court's evaluation of Criddle's credibility and demeanor. (1) We must, therefore, afford almost total deference to the trial court's decision to uphold the search because it is an issue that presents a mixed question of law and fact.
Criddle, a fifteen-year veteran of law enforcement, testified that, on December 17, 2005, when he was a deputy for the Wood County Sheriff's Department, he was dispatched to the apartments in response to an anonymous tip. Criddle joined Miller, and together they went to investigate the tip. On arrival at the apartments, they heard "a lot of noise coming from inside" apartment thirteen. The officers knocked on that apartment's door, announced themselves, and could then hear people inside the apartment shouting profanities and running around inside. After a one- or two-minute delay, someone inside the apartment finally opened the door. Once the door opened, Criddle immediately smelled "the strong odor of marijuana coming out of the apartment." Criddle testified he immediately recognized the distinctive smell, which to him provided probable cause to believe criminal activity was occurring inside the apartment. Criddle and Miller subsequently entered the apartment.
Inside, the officers ordered the six people that were in the front of the apartment to sit in the living room--to protect the officers' safety, according to Criddle. Miller then performed a protective sweep of the remainder of the apartment. During this visual scan, Miller saw the remains of several marihuana cigarettes in ashtrays around the apartment. He also heard someone flushing a toilet inside one of the apartment's two bathrooms. Criddle testified that, based on their experience as police officers, he and Miller suspected someone was inside the bathroom disposing of narcotics or other illegal contraband. Eventually, a twelve-year-old juvenile exited the bathroom and was instructed to join the others in the living room. Five of the suspects were eventually placed in handcuffs--again, for the safety of the two officers, according to Criddle--while the officers continued their investigation.
In a second bathroom, Miller saw several "cookies" of suspected crack cocaine inside a plastic bag. (2) Criddle later weighed these "cookies" and determined they weighed approximately 100 grams. A field test gave a preliminary indication that the "cookies" contained cocaine.
Miller subsequently read the Miranda (3) warnings to the suspects, asked each individual if he or she understood those rights, and received acknowledgment from each that he or she understood. None of the suspects requested an attorney or invoked the right to remain silent. Miller eventually asked an individual named Isaias Santos, III, for consent to search the apartment, which Santos gave. Santos had earlier claimed the apartment was his. Criddle testified that Santos' consent was freely and voluntarily given and was not the product of threats, promises, or coercion on the part of the officers.
Following receipt of Santos' consent, the officers conducted a more thorough search. Criddle began by searching the kitchen. In that room, Criddle found a box of plastic bags, a couple of electronic scales, and other items of suspected drug paraphernalia. In one of the bedrooms, Criddle found a small plastic bag of suspected crack cocaine hidden under a mattress. This quantity of suspected cocaine weighed approximately one tenth of a gram.
Generally, the Fourth Amendment to the United States Constitution prohibits the government and its agents from searching the person or the property of individual citizens without a search warrant. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003); see U.S. Const. amend IV. There are, however, exceptions to the Fourth Amendment's warrant requirement. One such exception arises when the government's representative, typically a police officer, has accumulated sufficient facts that, when those facts are considered in the aggregate, the officer has probable cause to believe that a crime is being committed and when exigent circumstances justify searching the place without first taking time to secure a search warrant from a neutral magistrate. Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005); McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Stated more succinctly, for a warrantless search of a private location to be upheld under judicial scrutiny, there must be sufficient evidence of both probable cause and exigent circumstances.
Probable Cause. "[P]robable cause is the accumulation of facts which, when viewed in their totality, would lead a reasonable officer to conclude, with a fair probability, that a crime has been committed or is being committed by someone." Parker v. State, 206 S.W.3d 593, 599 (Tex. Crim. App. 2006). The odor of marihuana can provide an officer with probable cause regarding the presence of illegal narcotics within a particular location, as opposed to being on a particular individual. Estrada, 93 S.W.3d at 608-09 ("odor of marijuana . . . was indeed an element or layer in determining whether Officer Baladez had probable cause to believe an offense was being committed"); Taylor v. State, 20 S.W.3d 51, 55 (Tex. App.--Texarkana 2000, pet. ref'd). In this case, there was the strong odor of marihuana coming from the apartment's open front door, as well as several occupants running around inside the apartment engaging in "rapid activity" during the minute or two before the door had been opened. The odor confirmed the original reason for dispatching the officers to the apartment: possible narcotics use. We conclude that these considerations, when viewed in the light most favorable to the trial court's ruling, were enough to establish the officers reasonably believed that marihuana--a controlled substance, the possession of which is illegal, see Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003)--would be found inside that apartment. The trial court, therefore, did not err by determining the officers had probable cause to enter the apartment.
We now turn to whether there was also evidence of exigent circumstances.
Exigent Circumstances. There are three categories of exigent circumstances that justify an officer's warrantless entry into a private residence: (1) the need to render aid or assistance to a person whom the officer reasonably believes is in need of such assistance, (2) the need to prevent the destruction of evidence or contraband, and (3) the need to protect the officer from a person or persons whom the officer reasonably believes to be present and armed and dangerous. Parker, 206 S.W.3d at 597 n.16 (citing McNairy, 835 S.W.2d at 107). This case involves the second justification.
The United States Supreme Court has noted that narcotics and other illegal contraband can be disposed of in a relatively short period of time. United States v. Banks, 540 U.S. 31, 40 (2003). We conclude that, in the case now before us, the officers had several considerations that could reasonably lead them to believe that, absent police intervention, evidence of contraband would be destroyed. First, there was the one- or two-minute delay before the door was opened. Second, the officers heard "rapid activity" inside the apartment following their knock on the door while they waited that minute or two for the door to be opened. Third, the officers immediately detected the pungent odor of marihuana when the door was opened. Fourth, that odor confirmed the anonymous tip about illegal narcotics use in the apartment. We agree with the trial court that these considerations validated the officers' reasonable belief that exigent circumstances permitted the warrantless entry into the apartment. (4)
What the Officers Found. Once inside the apartment, the two officers immediately found five or six persons in the living room. They had also heard people running about inside the apartment during the minute or two before the occupants opened the front door. It was, therefore, reasonable for the officers to first conduct a "protective sweep" of the area to protect the safety of the officers or others, given that they did not know how many other people were inside or whether any were armed. See Maryland v. Buie, 494 U.S. 325, 334 (1990); Reasor v. State, 12 S.W.3d 813, 815-16 (Tex. Crim. App. 2000). If, during a protective sweep, a police officer comes across contraband, the criminality of which is readily apparent, he or she need not turn a blind eye to such evidence; instead, such evidence may be immediately seized. Texas v. Brown, 460 U.S. 730, 738-39 (1983); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
Such is what occurred in this case. Criddle testified that he secured the suspects who were present in the living room of the apartment while Miller conducted a protective sweep of the apartment for other persons. During the sweep, Miller found three people: one inside a bathroom, two inside a bedroom. Miller also found the crack cocaine which the record before us suggests was in plain view in a trash bag. Because such evidence was in plain view, and because the officers' initial entry and protective sweep of the apartment was authorized by an exception to the Fourth Amendment, our law authorized Miller to seize the suspected illegal drugs, which the record suggests the officers immediately recognized as cocaine. See, e.g., Horton v. California, 496 U.S. 128, 135 (1990) ("Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate."). It necessarily follows, then, that the officers could arrest Dominguez and the other occupants for their joint possession of these illegal narcotics.
Following his arrest, Dominguez provided the officers with a custodial confession. On appeal, Dominguez has not challenged the voluntariness of that confession; instead, he asserts only that it is fruit of an arrest made without a warrant or probable cause. But, because the officers did have probable cause to arrest, Dominguez cannot prevail in his challenge to the trial court's ruling on the admissibility of Dominguez's confession.
On the record before us, we cannot say the trial court erred by concluding the officers had probable cause to enter the apartment. Nor can we say the lower court's decision regarding the existence of exigent circumstances was erroneous. On entry, the officers performed a protective sweep of the apartment, during which the record suggests the officers found illegal narcotics in plain view. The plain-view doctrine authorizes the seizure of any contraband found by officers in plain sight, even if such contraband is found during a warrantless search (so long as that warrantless search is otherwise authorized by an exception to the Fourth Amendment). Dominguez's subsequent arrest was supported by probable cause, and there is no suggestion in the record before us that his custodial confession was the product of an illegal arrest.
Accordingly, we affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 28, 2007
Date Decided: March 15, 2007
Do Not Publish
1. The trial court did not enter written findings of fact and conclusions of law regarding the suppression hearing. In such a case, we will affirm the trial court's judgment on the motion to suppress if that ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Cisneros v. State, 165 S.W.3d 853, 856 (Tex. App.--Texarkana 2005, no pet.) (citing Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990); Shaw v. State, 122 S.W.3d 358, 363 (Tex. App.--Texarkana 2003, no pet.)).
2. The officers did not see any visible marihuana during this protective sweep. Later, they saw evidence that marihuana had been flushed down the toilet.
3. Miranda v. Arizona, 384 U.S. 486 (1966).
4. Although post-entry discoveries cannot subsequently be relied on to validate pre-entry determinations regarding the existence of exigent circumstances, we note that the officers' hunches regarding the potential destruction of contraband were, in this case, correct. Shortly after entering the apartment, Miller heard a toilet being flushed. When he later inspected that bathroom, he saw evidence that marihuana had been flushed down the toilet.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00047-CR
______________________________
CHRISTOPHER E. JACOBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 09-0291X
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Christopher E. Jacobs appeals his conviction on multiple counts on his open plea of guilty to each count. He was sentenced to two life terms for two counts of aggravated sexual assault, twenty years each on two counts of sexual performance by a child, and ten years for possession of child pornography.
Jacobs attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail, combined with a discussion of one issue that counsel nonetheless believes may be arguable, although without meritconstitutionally disproportionate sentencing. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief to Jacobs on July 15, 2010, informing Jacobs of his right to file a pro se response and of his right to review the record. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. Jacobs has now filed his pro se response, alleging that his confession was coerced, his punishment was unjust, the search and seizure at his residence was illegal and there was no probable cause to do so, his arrest was illegal, and the search warrant was illegal.
We have determined that this appeal is wholly frivolous. The possible issue proposed by counsel was not preserved for review, see Williamson v. State, 175 S.W.3d 522, 52324 (Tex. App.Texarkana 2005, no pet.), and even had it been, there is nothing to support an argument that the punishments assessed (within the statutory ranges) is constitutionally grossly disproportionate to the gravity of the offenses. Id.; see Latham v. State, 20 S.W.3d 63, 69 (Tex. App.Texarkana 2000, pet. refd). We have independently reviewed the clerks record and the reporters record, in light of Jacobs pro se response, and we agree with counsel that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 82627 (Tex. Crim. App. 2005).
In a frivolous appeal situation, we are to determine whether the appeal is without merit and is frivolous, and if so, the appeal must be dismissed or affirmed. See Anders, 386 U.S. 738. We affirm the judgment of the trial court.[1]
Jack Carter
Justice
Date Submitted: March 28, 2011
Date Decided: March 29, 2011
Do Not Publish
[1]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsels request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.