In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00553-CR ____________________
CHARLES JEROME VERDINE, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-130341-R ________________________________________________________ _____________
MEMORANDUM OPINION
In this appeal, we must decide whether the trial court erred by failing to
instruct the jury that it could disregard the evidence obtained by police during the
defendant’s arrest if it believed or had a reasonable doubt about whether the
officers reasonably believed the defendant was inside the house they entered to
execute the warrant for the defendant’s arrest. We conclude that the evidence
before the jury did not raise an issue of material fact about whether the officers’
reasonably believed they would find the defendant inside the house. Therefore, we
1 hold the trial court did not err by failing to provide the jury with a conditional
instruction to advise them that they could disregard the evidence obtained during
the arrest if they believed the police obtained the evidence illegally. See Tex. Code
Crim. Proc. Ann. art. 38.23(a) (West 2005) (providing that no evidence obtained
by an officer in violation of the Constitution or law of the United States shall be
admitted against the accused in a criminal case).
The appeal arises following a trial by jury that resulted in Charles Jerome
Verdine’s conviction for possessing a controlled substance, cocaine. See Tex.
Health & Safety Code Ann. § 481.115(c) (West 2010). Verdine raises only one
issue in his appeal, claiming that the trial court should have instructed the jury that
it could disregard the evidence that the police discovered during Verdine’s arrest.
See Tex. Code Crim. Proc. Ann. art. 38.23(a); see also id. art. 38.23(b) (allowing
the evidence to be admitted without instruction if the police were acting in
objective good faith reliance upon a warrant that had been issued by a neutral
magistrate based on probable cause). In this case, it is undisputed that the police
had a warrant that authorized Verdine’s arrest. Upon entering the house, the police
found Verdine in a bedroom, and they discovered cocaine on the bed where he was
sitting immediately after they took Verdine into custody.
2 There are three requirements that a defendant must meet to show that he is
entitled to have the jury instructed as required by 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.
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). In this case,
Verdine contends that whether he was sitting on the porch when police arrived is a
contested fact that is material to the lawfulness of the decision the police made to
enter the house to execute the warrant that a magistrate had issued for his arrest.
However, given the undisputed facts that show that Verdine could reasonably be
expected to be present in the house, regardless of whether he was on the porch
when police arrived, we conclude that the contested factual issue about whether he
was sitting on the porch is not material with respect to whether the police could
lawfully enter the home.
We agree that whether Verdine was on the porch or inside the house when
the police arrived was a disputed fact. The two police officers who came to the
home testified that before they entered the house, they saw Verdine on the porch
when they pulled up to the house. However, Verdine’s sister testified that Verdine
was inside the house when the police pulled up, and she stated that Verdine was
not on the porch at that time. According to Verdine, the jury could have believed 3 the testimony of his sister. He contends that the decision that the police made to
enter the home without having first seen him on the porch makes their entry into
the home unlawful. Given that that there is a dispute regarding Verdine’s location
when they first arrived at the home, Verdine argues the trial court had a mandatory
duty to give the jury an article 38.23 instruction that would have authorized the
jury to disregard the evidence that showed the police found drugs on the bed where
Verdine had been sitting when he was arrested.
Given the evidence of the other circumstances showing that police could
reasonably expect Verdine to be found in the house when they arrived, whether
they saw Verdine on the porch before entering the house is not a material fact that
is needed in this case to decide whether the police were acting lawfully when they
entered the house. In this case, before police arrived at the house, they were given
an arrest warrant that had been issued by a magistrate. Although the police did not
have a warrant to search the house, the evidence shows that Verdine’s relatives
lived there and that he sometimes stayed there. The officers arrived at the house
around 5:40 p.m., a time when the occupants of the house would reasonably be
expected to be present. Verdine’s sister, Sharon Stevens, admitted during the trial
that Verdine used the address for the home as his permanent address. Additionally,
Stevens never testified that Verdine was living at another residence when the arrest
4 occurred, nor did she testify that it was unlikely that he would have been present at
the house on the date or at the time he was arrested.
In his brief, Verdine argues that his location, either inside the house or on
the porch, was a contested fact issue that is material to the lawfulness of the
decision the police made to enter the house. See generally Madden, 242 S.W.3d at
510. However, police officers are not required to be certain that the individual they
seek to arrest is inside a house they may be required to enter to execute an arrest
warrant. Morgan v. State, 963 S.W.2d 201, 204 (Tex. App.—Houston [14th Dist.]
1998, no pet.). Instead, for the entry to be lawful in circumstances where the police
have a warrant authorizing an individual’s arrest, the circumstances as a whole
must show that the belief that the suspect would be found inside the home was
reasonable. Id.
Generally, the Fourth Amendment prohibits the police from entering a home
without a search warrant. Payton v. New York, 445 U.S. 573, 589-90 (1980).
However, “an arrest warrant founded on probable cause implicitly carries with it
the limited authority to enter a dwelling in which the suspect lives when there is
reason to believe the suspect is within.” Id. at 603. In Texas, this limited authority
applies to the execution of felony and misdemeanor warrants. Green v. State, 78
S.W.3d 604, 611 (Tex. App.—Fort Worth 2002, no pet.). Moreover, officers are
5 not required to thoroughly investigate whether the person named in an arrest
warrant is actually present in a house before they may enter the house in order to
execute the warrant. See United States v.
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00553-CR ____________________
CHARLES JEROME VERDINE, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-130341-R ________________________________________________________ _____________
MEMORANDUM OPINION
In this appeal, we must decide whether the trial court erred by failing to
instruct the jury that it could disregard the evidence obtained by police during the
defendant’s arrest if it believed or had a reasonable doubt about whether the
officers reasonably believed the defendant was inside the house they entered to
execute the warrant for the defendant’s arrest. We conclude that the evidence
before the jury did not raise an issue of material fact about whether the officers’
reasonably believed they would find the defendant inside the house. Therefore, we
1 hold the trial court did not err by failing to provide the jury with a conditional
instruction to advise them that they could disregard the evidence obtained during
the arrest if they believed the police obtained the evidence illegally. See Tex. Code
Crim. Proc. Ann. art. 38.23(a) (West 2005) (providing that no evidence obtained
by an officer in violation of the Constitution or law of the United States shall be
admitted against the accused in a criminal case).
The appeal arises following a trial by jury that resulted in Charles Jerome
Verdine’s conviction for possessing a controlled substance, cocaine. See Tex.
Health & Safety Code Ann. § 481.115(c) (West 2010). Verdine raises only one
issue in his appeal, claiming that the trial court should have instructed the jury that
it could disregard the evidence that the police discovered during Verdine’s arrest.
See Tex. Code Crim. Proc. Ann. art. 38.23(a); see also id. art. 38.23(b) (allowing
the evidence to be admitted without instruction if the police were acting in
objective good faith reliance upon a warrant that had been issued by a neutral
magistrate based on probable cause). In this case, it is undisputed that the police
had a warrant that authorized Verdine’s arrest. Upon entering the house, the police
found Verdine in a bedroom, and they discovered cocaine on the bed where he was
sitting immediately after they took Verdine into custody.
2 There are three requirements that a defendant must meet to show that he is
entitled to have the jury instructed as required by 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.
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). In this case,
Verdine contends that whether he was sitting on the porch when police arrived is a
contested fact that is material to the lawfulness of the decision the police made to
enter the house to execute the warrant that a magistrate had issued for his arrest.
However, given the undisputed facts that show that Verdine could reasonably be
expected to be present in the house, regardless of whether he was on the porch
when police arrived, we conclude that the contested factual issue about whether he
was sitting on the porch is not material with respect to whether the police could
lawfully enter the home.
We agree that whether Verdine was on the porch or inside the house when
the police arrived was a disputed fact. The two police officers who came to the
home testified that before they entered the house, they saw Verdine on the porch
when they pulled up to the house. However, Verdine’s sister testified that Verdine
was inside the house when the police pulled up, and she stated that Verdine was
not on the porch at that time. According to Verdine, the jury could have believed 3 the testimony of his sister. He contends that the decision that the police made to
enter the home without having first seen him on the porch makes their entry into
the home unlawful. Given that that there is a dispute regarding Verdine’s location
when they first arrived at the home, Verdine argues the trial court had a mandatory
duty to give the jury an article 38.23 instruction that would have authorized the
jury to disregard the evidence that showed the police found drugs on the bed where
Verdine had been sitting when he was arrested.
Given the evidence of the other circumstances showing that police could
reasonably expect Verdine to be found in the house when they arrived, whether
they saw Verdine on the porch before entering the house is not a material fact that
is needed in this case to decide whether the police were acting lawfully when they
entered the house. In this case, before police arrived at the house, they were given
an arrest warrant that had been issued by a magistrate. Although the police did not
have a warrant to search the house, the evidence shows that Verdine’s relatives
lived there and that he sometimes stayed there. The officers arrived at the house
around 5:40 p.m., a time when the occupants of the house would reasonably be
expected to be present. Verdine’s sister, Sharon Stevens, admitted during the trial
that Verdine used the address for the home as his permanent address. Additionally,
Stevens never testified that Verdine was living at another residence when the arrest
4 occurred, nor did she testify that it was unlikely that he would have been present at
the house on the date or at the time he was arrested.
In his brief, Verdine argues that his location, either inside the house or on
the porch, was a contested fact issue that is material to the lawfulness of the
decision the police made to enter the house. See generally Madden, 242 S.W.3d at
510. However, police officers are not required to be certain that the individual they
seek to arrest is inside a house they may be required to enter to execute an arrest
warrant. Morgan v. State, 963 S.W.2d 201, 204 (Tex. App.—Houston [14th Dist.]
1998, no pet.). Instead, for the entry to be lawful in circumstances where the police
have a warrant authorizing an individual’s arrest, the circumstances as a whole
must show that the belief that the suspect would be found inside the home was
reasonable. Id.
Generally, the Fourth Amendment prohibits the police from entering a home
without a search warrant. Payton v. New York, 445 U.S. 573, 589-90 (1980).
However, “an arrest warrant founded on probable cause implicitly carries with it
the limited authority to enter a dwelling in which the suspect lives when there is
reason to believe the suspect is within.” Id. at 603. In Texas, this limited authority
applies to the execution of felony and misdemeanor warrants. Green v. State, 78
S.W.3d 604, 611 (Tex. App.—Fort Worth 2002, no pet.). Moreover, officers are
5 not required to thoroughly investigate whether the person named in an arrest
warrant is actually present in a house before they may enter the house in order to
execute the warrant. See United States v. Terry, 702 F.2d 299, 319 (2nd Cir.), cert.
denied sub nom., Williams v. United States, 461 U.S. 931 (1983). When the
execution of an arrest warrant requires the entry into a residence, the totality of all
of the facts and circumstances must warrant a reasonable belief that the suspect
will be found inside the residence. See United States v. Magluta, 44 F.3d 1530,
1535 (11th Cir.), cert. denied, 516 U.S. 869 (1995).
In Verdine’s case, the officers arrived at a location that Verdine was using
as his permanent address. They arrived at the house when the occupants of the
house could reasonably be expected to be present. Verdine’s relatives were present
when police arrived, so the house was neither empty, nor did the appearance of the
home indicate that it was unlikely that anyone would be inside the home. When
police arrived, a door to the house was open, and at least one person was sitting on
the porch. These “common sense” indications support a conclusion that regardless
of whether Verdine was seen on the porch before the police entered the house, it
was reasonable to believe that Verdine would be found inside. See id. (“officers
may presume that a person is at home at certain times of the day”). Additionally,
6 the record does not show that the officers had any information that Verdine was
not at home when they found him inside the home. See Terry, 702 F.2d at 319.
In our opinion, the objective circumstances as shown by the evidence before
the jury demonstrated that the officers had reason to believe that Verdine would be
inside the residence immediately before they entered the house to execute the
warrant. See Morgan, 963 S.W.2d at 204 (officers may enter premises to execute
an arrest warrant for a person the officers reasonably believe to be a co-resident of
the property). Based on the evidence before the jury, we hold that Verdine was not
entitled to the instruction that is required in some cases by article 38.23(a). See
Madden, 242 S.W.3d at 510.
We overrule Verdine’s sole issue, and we affirm the trial court’s judgment.
AFFIRMED.
________________________________ HOLLIS HORTON Justice
Submitted on January 6, 2015 Opinion Delivered October 14, 2015 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.