AFFIRMED; Opinion Filed August 23, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01092-CR
PRISCILLA DIANE LONG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-80161-2012
MEMORANDUM OPINION
Before Justices Myers, Stoddart, and Whitehill
Opinion by Justice Myers
Appellant Priscilla Diane Long pleaded no contest to aggravated assault against a public
servant. The trial court accepted her plea, deferred adjudication of guilt, and placed Long on five
years of community supervision. In one issue, she alleges the trial court erred by denying her
motion to suppress. We affirm.
DISCUSSION
In her issue, appellant contends the trial court erred by denying her pretrial motion to
suppress because the officers’ actions were not reasonable under the emergency doctrine
exception to the warrant requirement.
The evidence presented at the suppression hearing showed that Priscilla Diane Long and
her husband, Dave, rented a home from Barbara Schneider, a real estate broker. Although the
Longs usually paid their rent on time or early, they failed to make a rent payment for the month
of September, 2011. On September 28, 2011, Schneider went to the tenants’ home to determine
whether they were going to pay their overdue balance or to see if they had begun moving out.
Schneider intended to start eviction proceedings against the tenants if they did not pay the past-
due amount.
When Schneider rang the doorbell, Long answered. Long “appeared very ill,” “[h]er hair
was messed up,” she was wrapped in an afghan, and she appeared “very kind of lethargic” and
gave off the smell of someone who had been in bed for a long time. Schneider asked to speak
with Long’s husband, with whom she usually dealt. Long said he was “indisposed.” Schneider
told Long that she was going to have to file the eviction notice the next day, at which point Long
began to shut the door on Schneider, but then slumped, fell to the floor, and slammed the door
shut. Schneider was concerned and asked through the closed door whether Long was okay. She
responded that she was okay and that Schneider should leave. Schneider started to leave, and
then turned around and walked back to the door. She asked several times through the closed
door if Long was all right, and received no response. Schneider also called Long’s husband and
left a message that she was worried about his wife. Schneider called 911 because she was
concerned about Long’s safety and did not know if Long was all right, if she had struck her head
while falling, had passed out, or had suffered a heart attack.
McKinney Police Officer Rene Fernandez was the first officer to respond to the call, with
Officer Eric Casebolt arriving several minutes later. Officer Fernandez knocked on the tenants’
door and Long’s husband answered. Fernandez explained that the police were there to do a
welfare check on Long, and Long’s husband responded that his wife had cancer, had tripped over
a blanket, and that she was fine. Schneider, however, never mentioned to the police that Long
tripped over a blanket. Schneider told them Long slumped down, fell, and shut the door. Officer
Fernandez was concerned and stated that he needed to hear from Long that she was okay, but
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Long’s husband was, as Fernandez testified, “hesitant” to let the officers check on her. He went
up the stairs several times to speak with his wife, but returned each time and reiterated that she
did not want any visitors. Officer Fernandez said they were not there to visit with Long; they
wanted to check on her welfare. After interacting with Long’s husband for ten to fifteen
minutes, the officers made it clear they needed to see Long personally, whether she came
downstairs or they went up the stairs to see her.
Long’s husband escorted the officers upstairs to where his wife was residing. Officer
Fernandez agreed that this was not a consensual entry because he told Long’s husband he was
going to come inside regardless. The officers went up the stairs to the master bedroom, where
they saw Long kneeling on the other side of her bed. She was wearing pajamas and looked like
she had just been in bed. She asked the officers if they were paramedics. Officer Fernandez––
who, like Casebolt, was in uniform––made it clear to Long that he was a police officer, not a
paramedic, but that they could call for paramedics if she needed them. Long also wanted to
know if the officers had a warrant; they explained that they were there to check on her welfare.
She told them to leave. Officer Fernandez turned his head briefly and when he looked back
Long pulled out a Beretta 9 mm handgun, pointed it at Officer Fernandez’s face, and screamed at
the officers to get out her house.
Long was subsequently indicted for aggravated assault against a public servant. The
indictment alleged that, on or about September 28, 2011, in Collin County, Texas, Long did:
then and there intentionally and knowingly threaten Rene Fernandez with
imminent bodily injury by pointing a firearm at Rene Fernandez, and did then and
there use and exhibit a deadly weapon, to-wit: a firearm, during the commission
of said assault, and the defendant did then and there know that the said Rene
Fernandez was then and there a public servant, to-wit: a Police Officer employed
by the City of McKinney Police Department, and that the said Rene Fernandez
was then and there lawfully discharging an official duty, to-wit: welfare check on
the said defendant[.]
See TEX. PENAL CODE ANN. § 22.02(b)(2)(B).
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The day after the suppression hearing, the trial court notified the parties by letter that the
motion to suppress was denied. The trial court did not make findings of fact and conclusions of
law.
We review a trial court’s ruling on a motion to suppress using a bifurcated standard of
review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). A trial court’s
determination of historical facts is afforded almost total deference when those facts are supported
by the record, but all purely legal questions and all application-of-law-to-established-facts
questions are reviewed de novo. State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App.
2011). When, as here, the trial court does not make findings of fact and conclusions of law, we
view the evidence in the light most favorable to the trial court’s ruling and assume the court
made implicit findings of fact that support its ruling as long as those findings are supported by
the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000).
The Fourth Amendment protects individuals from unreasonable searches and seizures.
See U.S. CONST. amend. IV; Mincey v. Arizona, 437 U.S. 385, 390 (1978); Luna v. State, 268
S.W.3d 594, 603 (Tex. Crim. App. 2008). The emergency doctrine, which is an exception to the
warrant requirement, permits warrantless police action where “the officer has an immediate,
reasonable belief that he or she must act ‘to protect or preserve life or avoid serious injury.’”
Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003) (quoting Mincey, 437 U.S. at 392).
Long argues her motion to suppress should have been granted because the facts do not support
any kind of finding that she or any other individual in the home was at risk of any kind of serious
bodily injury, or that entry was required to preserve life.
However, in State v. Iduarte, the defendant was convicted of aggravated assault on a
police officer because he pointed a gun at an officer after the officer unlawfully entered his
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apartment. 268 S.W.3d 544, 547–48 (Tex. Crim. App. 2008). The defendant argued the
officer’s testimony about the assault should be excluded as fruit of the unlawful entry. Id. at 549.
The court of criminal appeals disagreed, holding that if the defendant pointed a gun at the officer,
“that act constituted an independent criminal offense committed after the complained-of entry,
and the acquisition of evidence of the independent offense was not causally connected to the
officer’s allegedly illegal entry.” Id. at 551. The court explained its reasoning as follows:
The exclusionary rule was designed to protect individuals from the use at trial of
evidence that was obtained in an unlawful manner. It does not, however, provide
limitless protection to one who chooses to react illegally to an unlawful act by a
state agent. If that were allowed, the genuine protection that the exclusionary rule
provides would be undermined. Here, evidence of the charged offense did not
exist before the officer’s challenged actions because the charged offense had not
yet occurred; the evidence showed a subsequent independent criminal act that was
not causally connected to any unlawful entry by a state agent. Therefore, the
exclusionary rule does not apply to this case.
Id. (citations and footnote omitted); see also Gautreaux v. State, No. 02–11–00514–CR, 02–11–
00515–CR, 2013 WL 709070, at *3 (Tex. App.––Fort Worth Feb. 28, 2013, no pet.) (mem. op.,
not designated for publication) (“[T]he evidence concerning appellant’s independent assaultive
act could not be suppressed as a result of any illegal entry into his house.”); Smith v. State, No.
01–12–00518–CR, 2013 WL 3877637, at *6 (Tex. App.––Houston [1st Dist.] July 25, 2013, pet.
ref’d) (mem op., not designated for publication) (“Even if we were to accept appellant’s
argument that he was illegally arrested, we would nonetheless conclude that Officer
Krietemeyer’s conduct in making an illegal arrest would not require suppression of appellant’s
own subsequent illegal conduct in firing at the officer, the offense with which he is charged.”);
Siaz v. State, No. 03–10–00135–CR, 2011 WL 4424971, at *1–2 (Tex. App.––Austin Sept. 21,
2011, no pet.) (mem. op., not designated for publication) (even if officer lacked probable cause
to arrest defendant for public intoxication, suppression was not required of evidence that
defendant spat on officer because spitting comprised independent offense that was not causally
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connected to officer’s allegedly illegal act).
In this case, as in Iduarte, Long’s action of pointing a gun at Officer Fernandez was an
independent criminal action that occurred after the complained-of entry. Even if we accept
Long’s argument that the entry into her home was impermissible under the emergency doctrine
(and we do not so conclude), “such a violation does not justify a subsequent assault.” Iduarte,
268 S.W.3d at 551. “Evidence of the charged offense did not exist before the officer’s
challenged actions because the charged offense had not yet occurred,” and Long’s subsequent
independent criminal act “was not causally connected to any unlawful [action] by a state agent.”
See id. Thus, the exclusionary rule was not applicable and the trial court did not err by denying
the motion to suppress. We overrule Long’s issue.
The trial court’s judgment is affirmed.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
151092F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PRISCILLA DIANE LONG, Appellant On Appeal from the 380th Judicial District
Court, Collin County, Texas
No. 05-15-01092-CR V. Trial Court Cause No. 380-80161-2012.
Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee Stoddart and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 23rd day of August, 2016.
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Priscilla Diane Long v. State
Combined Opinion