COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00047-CR
NO. 02-14-00048-CR
NO. 02-14-00049-CR
NO. 02-14-00050-CR
NO. 02-14-00051-CR
GILBERT JUNIOR COLLINS A/K/A APPELLANT
GILBERT JOUINOR COLLINS
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NOS. 1324826D, 1324831D, 1324834D, 1324837D, 1324842D
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OPINION
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A jury convicted Appellant Gilbert Junior Collins, also known as Gilbert
Jouinor Collins, of five instances of aggravated robbery with a deadly weapon,
charged in five separate indictments, and assessed his punishment at life
imprisonment in each case. The trial court sentenced him accordingly. Appellant
brings four issues on appeal, challenging the trial court’s ruling on his motion to
suppress and complaining of charge error. Because the trial court committed no
reversible error, we affirm the trial court’s judgments.
Brief Summary of Facts
Fort Worth police suspected Appellant and Lisa Rasberry of aggravated
robbery with a handgun of people at a Fort Worth game room and of another
robbery two days later involving their attempt to steal a car in which they were
riding. Monica Soto, another passenger, was shot and killed, and two other
passengers were injured.
Police obtained warrants for the arrests of Lisa and Appellant for the game
room robbery and executed the warrants at the home of Lisa’s mother, Betty.
The home was located at 3051 Hutchison in Fort Worth, Texas. Betty told the
police that Appellant and Lisa were at the house, and she let the police in upon
their arrival. After they entered the home, the police discovered that Lisa and
Appellant were in a bedroom with the door closed and locked from the inside.
Officer Michael Johnson kicked open the door to execute the arrest warrants.
When the officers entered the bedroom, they saw on the floor near the
mattress a gun matching the description of the one used in the robbery. After
Lisa and Appellant were taken into custody and removed from the room,
Detective Edward Brian Raynsford arrived at the home. He read Betty a
consent-to-search form and asked for permission to search the room. After Betty
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consented to the search, Raynsford seized the handgun and articles of clothing
that he believed were used in the game room robbery.
Appellant was charged with five counts of aggravated robbery for the
events at the game room. He filed a motion to suppress the evidence seized in
the warrantless search. The State stipulated that “this [was] a warrantless
search.” Subsequently, the State clarified its position by agreeing that there was
no search warrant but pointing out that the officers seized the evidence in
question after they had entered under an arrest warrant and had seen the
evidence in plain view. After a hearing, the trial court denied the motion to
suppress.
A senior forensic scientist with the Fort Worth Police Department Crime
Lab testified that a casing found at the scene of the game room robbery matched
the handgun found in the bedroom. A forensic DNA analyst from the UNT Center
for Human Identification testified about her analysis of two swabs taken from the
gun. She stated that there was a mix of DNA from more than one person on the
gun. From her analysis, Appellant could not be excluded as a contributor to DNA
collected in the swabs. His DNA fit the profile found on the grip, and she
expected that one out of every 7,479 people would fit that profile. His profile also
fit the DNA sample taken from the trigger of the gun, and she testified that the
probability of randomly selecting someone with that same profile was 1 in 4.9
million.
3
Appellant requested a jury instruction under code of criminal procedure
article 38.23. 1 His requested instruction would have told the jury to disregard all
evidence obtained from the search of the bedroom if a reasonable person would
believe that Appellant had a reasonable expectation of privacy in the searched
area and did not provide consent to the search, that Betty did not have actual or
apparent authority to consent to the search, and that the weapon was not in plain
view. He also requested that the trial court define “apparent consent” and “actual
consent.” The trial court denied the requests.
Motion to Suppress
In his first issue, Appellant argues that because the police had no search
warrant, and fell within no exception to the warrant requirement, the search of the
bedroom and seizure of evidence violated the Fourth Amendment. He argues
that the police lacked the probable cause coupled with exigent circumstances
required to support the search of the bedroom in which they found the handgun
and clothing used in the robbery. In his second issue, he argues that Betty
lacked the authority and apparent authority to authorize the search of the
bedroom. Although both Appellant and the State agree that there were arrest
warrants for Lisa and Appellant, the arrest warrants are not part of the record.
We therefore cannot say whether the arrest warrants name a location to enter in
order to execute the warrants or whether the warrants contain instructions to
1
See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).
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search. Because no one argues that the warrants were arrest-and-search
warrants, and because there is no evidence that the warrants contained
instructions to conduct a search, we treat the warrants solely as arrest warrants
that authorize no entry into a specific address to locate Appellant or Lisa.
The officers entered the bedroom in Betty’s house where Appellant and
Lisa were sleeping on a mattress on the floor in order to execute arrest warrants
for Lisa and Appellant. The officers saw a black handgun and magazine lying on
the floor near Lisa. They also saw hats on the wall and other items of clothing
around the bedroom. The officers testified that the gun and clothing were in plain
view when they entered the bedroom. State’s Exhibit 43 shows the gun lying on
the floor near the mattress.
While searches conducted without a warrant are per se unreasonable,
seizing contraband in plain view does not run afoul of the Fourth Amendment. 2
“The ‘plain view’ doctrine permits an officer to seize contraband which he sees in
plain sight or open view if he is lawfully where he is.” 3 That is, three
requirements must be met to justify the seizure of an object in plain view:
First, law enforcement officials must lawfully be where the
object can be “plainly viewed.” Second, the “incriminating character”
of the object in plain view must be “immediately apparent” to the
2
Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
3
DeLao v. State, 550 S.W.2d 289, 291 (Tex. Crim. App. 1977).
5
officials. And third, the officials must have the right to access the
object. 4
We conclude that the seizure of the firearm, magazine, and clothing
satisfies these requirements.
A well-recognized exception to the search warrant requirement is a search
pursuant to consent. 5 Betty not only gave the police permission to enter the
house and the bedroom, she called the police to tell them that her daughter and
Appellant had returned to the house so the officers could execute the arrest
warrants. Although Betty and her parents rented the house, it was Betty’s home
and she, therefore, had the authority to grant the police permission to enter the
house. 6
But Appellant relied on Betty’s testimony that Lisa and Appellant stayed in
the searched bedroom about half the time and that they locked the door when
they were there to argue that Betty lacked authority to grant permission to search
the bedroom. 7 In the motion to suppress, Appellant referred to the home as his
residence.
4
Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009) (citations
and internal quotation marks omitted).
5
Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011).
6
See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993
(1974).
7
See Riordan v. State, 905 S.W.2d 765, 772 (Tex. App.—Austin 1995, no
pet.).
6
To comply with Payton v. New York, officers who execute an arrest
warrant must have a “reasonable belief that the suspect resides at the place to
be entered . . . and have reason to believe that the suspect is present” 8 at the
time the warrant is executed. 9 This rule of law presents something of a Catch-22
for Appellant. If the trial judge believed Appellant’s version of the facts, Appellant
was a resident of the home, and the police were lawfully in the home and
bedroom under the arrest warrant for him. 10 An arrest warrant authorizes entry
into a defendant’s own residence when there is reason to believe that the
defendant is within. 11 And, if Lisa was a resident of the house where the officers
executed the arrest warrants for Appellant and Lisa, as her driver’s license
indicates in State’s Exhibit 42, the arrest warrant for Lisa authorized entry into
her residence (and therefore the bedroom) to execute her arrest warrant. 12
Because the police were lawfully inside the bedroom, there was no impediment
8
Morgan v. State, 963 S.W.2d 201, 204 (Tex. App.—Houston [14th Dist.]
1998, no pet.) (citations and quotation marks omitted).
9
445 U.S. 573, 601–05, 100 S. Ct. 1371, 1388–89 (1980) (explaining that if
there “is sufficient evidence of a citizen’s participation in a felony to persuade a
judicial officer that his arrest is justified,” the police may “require him to open his
doors”).
10
See id.
11
Id.; Reno v. State, 882 S.W.2d 106, 108 (Tex. App.—Fort Worth 1994,
pet. ref’d); see also Morgan, 963 S.W.2d at 204.
12
See Payton, 445 U.S. at 601–05, 100 S. Ct. at 1388–89; Reno, 882
S.W.2d at 108; Morgan, 963 S.W.2d at 204.
7
to executing Appellant’s arrest warrant or seizing the evidence. 13 If neither
Appellant nor Lisa was a resident of that house, Betty’s consent validly
authorized the officers’ entry into the home and bedroom. 14
That is, whether because of consent or because they were executing
arrest warrants where Appellant or Lisa lived, the officers were lawfully in the
bedroom to execute the arrest warrants and required no additional search
warrant to discover the firearm, magazine, and items of clothing. The officers
were therefore authorized to seize weapons and evidence plainly visible while
they were executing the arrest warrants. We overrule Appellant’s first and
second issues.
Jury Charge
Appellant contends in his third and fourth issues that the trial court
reversibly erred by denying his requested article 38.23 jury instruction on plain
view and Betty’s apparent authority to consent. The State argues that Appellant
is estopped from complaining about the failure to submit instructions under article
38.23(a) because when testimony about the seized evidence was first elicited, he
informed the trial court that he was “not consenting to the relitigation . . . of the
motion to suppress.” Additionally, the State contends that Appellant was not
13
See Payton, 445 U.S. at 601–05, 100 S. Ct. at 1388–89; Reno, 882
S.W.2d at 108; Morgan, 963 S.W.2d at 204.
14
See Matlock, 415 U.S. at 171, 94 S. Ct. at 993.
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entitled to the instructions because there were no disputed issues of material fact
regarding the search of the bedroom after Appellant’s arrest there.
Article 38.23(a) of the Texas Code of Criminal Procedure provides,
(a) No evidence obtained by an officer or other person in
violation of any provisions of the Constitution or laws of the State of
Texas, or of the Constitution or laws of the United States of America,
shall be admitted in evidence against the accused on the trial of any
criminal case.
In any case where the legal evidence raises an issue
hereunder, the jury shall be instructed that if it believes, or has a
reasonable doubt, that the evidence was obtained in violation of the
provisions of this Article, then and in such event, the jury shall
disregard any such evidence so obtained. 15
Appellant did not litigate the motion to suppress before the jury. He did,
however, challenge the officers’ claim that the objects seized were in plain view.
The Texas Court of Criminal Appeals instructs us that the article 38.23 instruction
is proper only when the motion to suppress is litigated before the jury:
A defendant’s right to the submission of jury instructions under
Article 38.23(a) is limited to disputed issues of fact that are material
to his claim of a constitutional or statutory violation that would render
evidence inadmissible. We have previously explained:
The terms of the statute are mandatory, and
when an issue of fact is raised, a defendant has a
statutory right to have the jury charged accordingly.
The only question is whether under the facts of a
particular case an issue has been raised by the
evidence so as to require a jury instruction. Where no
issue is raised by the evidence, the trial court acts
properly in refusing a request to charge the jury.
15
Tex. Code Crim. Proc. Ann. art. 38.23.
9
There are three requirements that a defendant must meet
before he is entitled to the submission of a jury instruction under
Article 38.23(a):
(1) The evidence heard by the jury must raise an issue of fact;
(2) The evidence on that fact must be affirmatively contested;
and
(3) That contested factual issue must be material to the
lawfulness of the challenged conduct in obtaining the evidence.
There must be a genuine dispute about a material fact. If
there is no disputed factual issue, the legality of the conduct is
determined by the trial judge alone, as a question of law. And if
other facts, not in dispute, are sufficient to support the lawfulness of
the challenged conduct, then the disputed fact issue is not submitted
to the jury because it is not material to the ultimate admissibility of
the evidence. The disputed fact must be an essential one in
deciding the lawfulness of the challenged conduct. 16
Appellant essentially objected to litigating the motion to suppress before
the jury while challenging the justification for seizing the evidence he complains
of. He argued that the gun was not in plain view and supported his argument
with the fact that the gun is not visible in State’s Exhibits 35 and 36. Appellant in
this case established all three elements required for the instruction. Thus, given
the posture of this case at the point the trial court instructed the jury on guilt, we
hold that the trial court erred by refusing Appellant’s requested jury instruction on
plain view. 17
16
Madden v. State, 242 S.W.3d 504, 509–11 (Tex. Crim. App. 2007)
(citations omitted).
17
See Oursbourn v. State, 259 S.W.3d 159, 165 (Tex. Crim. App. 2008).
10
We review jury charge error under the Almanza standard. 18 Error in the
charge, if timely objected to in the trial court, requires reversal if the error was
“calculated to injure the rights of [the] defendant,” which means no more than that
there must be some harm to the accused from the error. 19 In other words, a
properly preserved error will require reversal as long as the error is not
harmless. 20 This analysis requires a reviewing court to consider (1) the jury
charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence,
and (4) other relevant factors present in the record. 21
The police entered the bedroom pursuant to an arrest warrant. They also
had consent to enter both the house and the bedroom. The factual issue of
whether the weapon, clothing, and glasses were in plain view was resolved by
photographic evidence. There was no evidence that State’s Exhibit 43 did not
18
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g).
19
Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Abdnor v. State, 871
S.W.2d 726, 732 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171; see also
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
20
Almanza, 686 S.W.2d at 171.
21
Reeves, 420 S.W.3d at 816; see also Almanza, 686 S.W.2d at 171
(“[T]he actual degree of harm must be assayed in light of the entire jury charge,
the state of the evidence, including the contested issues and weight of probative
evidence, the argument of counsel and any other relevant information revealed
by the record of the trial as a whole.”).
11
accurately depict the location of the gun and no challenge to the clothing’s being
in plain view other than the challenge to the lawfulness of the search.
The police were lawfully in the bedroom when they saw the items depicted
in the photographs. The evidence of Appellant’s guilt was overwhelming. We
therefore hold that the trial court’s error in refusing the requested jury instruction
was harmless beyond a reasonable doubt, and we overrule Appellant’s third
issue.
As for Appellant fourth issue, in which he argues he was entitled to a 38.23
instruction on Betty’s apparent authority to consent, the Texas Court of Criminal
Appeals has explained that a trial judge has a sua sponte duty to prepare a jury
charge that accurately sets out the law applicable to the specific offense
charged. 22 Article 38.23(a) requires a jury instruction only if there is a genuine
dispute about a material fact, and that fact must be essential to deciding the
lawfulness of the challenged conduct in obtaining the evidence. 23
The circumstances of this case are unique. If either Appellant or Lisa lived
at the Hutchison address, as Appellant argues, and if, as a result, Betty had
neither actual nor apparent authority to consent to the police entry into the
bedroom, the police were nonetheless authorized to enter the bedroom to
execute the arrest warrants, as we explained in our disposition of Appellant’s first
22
Oursbourn, 259 S.W.3d at 179.
23
See Madden, 242 S.W.3d at 510.
12
two issues. Betty’s authority to consent to the search under those circumstances
would be irrelevant. If neither Lisa nor Appellant lived at the Hutchison address,
contrary to Appellant’s position, there is no question of Betty’s authority to
consent. Appellant, therefore, was not entitled to a 38.23 instruction regarding
Betty’s authority or apparent authority. We overrule his fourth issue.
Conclusion
Having overruled Appellant’s four issues, we affirm the trial court’s
judgments.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
LIVINGSTON, C.J., filed a concurring opinion in which GABRIEL, J., joins.
PUBLISH
DELIVERED: April 23, 2015
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