Darrell Dewayne Morgan v. State

Opinion

AFFIRMED as Modified; and Opinion Filed December 4, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-12-01442-CR

DARRELL DEWAYNE MORGAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F11-60422-X

MEMORANDUM OPINION Before Justices FitzGerald, Francis, and Myers Opinion by Justice Myers Appellant Darrell Dewayne Morgan was convicted of the offense of possession of one

gram or more but less than four grams of cocaine, with the intent to deliver, and was sentenced to

eighteen years in the Institutional Division of the Texas Department of Criminal Justice. In two

issues, he argues the trial court erred by denying his motion to suppress and that the judgment

should be reformed to reflect a plea of “not true” to the enhancement paragraph. As modified,

we affirm the trial court’s judgment.

BACKGROUND AND PROCEDURAL HISTORY

According to the testimony of Officer David Roach of the Dallas Police Department, the

only witness who testified at the motion to suppress hearing, on September 28, 2011, at

approximately 10:00 p.m., Dallas police officers received an anonymous tip regarding the sale of

narcotics from an apartment, number 101, located at 2811 Holmes Street in Dallas, Texas. After Roach and the other officers reached the location and approached the apartment, one of the

officers noticed the electricity meter for apartment 101 had been “tampered with” and that the

apartment was receiving stolen electricity.

Planning to conduct a “knock and talk” to investigate the narcotics complaint, the officers

moved towards the front door of the apartment by walking up the steps located on Holmes Street

and entering the breezeway that allowed access to all eight apartments in the two-story complex.

A ramp was located to the left of the stairs. The path to the breezeway was not enclosed by any

fence, and was open to the public. A gate located in front of the breezeway was open when the

officers arrived. On the lower level of the complex, to the left of the breezeway, was apartment

101. The apartment’s front door was just inside the breezeway; the front window faced Holmes

Street.

Roach approached the apartment window by walking on the grass located in front of the

complex. A small flowerbed was situated in front of the window; from the front of the building

the flowerbed was “[m]aybe a foot and a half” in width. The window had an air conditioning

unit located in it. There was a “no trespassing” sign on the window. The blinds on the window

were open and the curtain was tied up.

Roach remained on the grass and did not step over or into the flowerbed. When he

looked into the window, he saw appellant standing in the living room holding a gallon-sized

Ziplock bag that contained what Roach believed to be marijuana and U.S. currency. Roach

estimated that appellant was “between six and ten feet” from where he was standing outside the

window.

Roach testified that he could see appellant because the light from the television screen

illuminated the room. Roach also saw another individual, Natasha Thomas, sitting on one of two

couches. When he shined his flashlight into the living room, Roach saw appellant throw the

–2– baggie of marijuana onto a couch and run down the hallway. Before doing so, appellant grabbed

an item containing “several orange translucent baggies” from an end table next to the couch, and

“threw the contents of that object into the bathroom and the hallway.” Upon seeing the light

from Roach’s flashlight, Thomas began screaming, “[F]lush the rock, flush the rock!’ Roach

told Thomas to put her hands up and get on the floor, which she did.

Roach testified that the orange baggies were “consistent with the packaging of crack

cocaine,” and that, based on what he had observed, his first “thought was that [appellant] was

attempting to destroy evidence of the narcotics.” Roach added: “And then as he ran down the

hallway and entered the secondary bedroom, we were unsure what was in the bedroom. It could

have been more evidence and possibly a weapon.” After he saw appellant run down the hallway

and heard Thomas shout “flush the rock,” Roach yelled for his other team members to enter the

apartment, but they were unable to do so because of a cage that surrounded the front door.

Roach told Thomas to open the front door, and she complied. After the officers entered the

apartment and took appellant and Thomas into custody, a “presumptive field test” conducted by

Roach showed the substance in the Ziplock bag tested positive for marijuana. The officers also

tested the substance in the three orange baggies, each of which had a “positive result for

cocaine.” 1

The trial court denied the motion to suppress. Appellant was subsequently convicted of

the charged offense by a jury, which found the enhancement paragraph true and assessed an

eighteen-year prison sentence. This appeal followed.

DISCUSSION

1. MOTION TO SUPPRESS

1 After appellant and Thomas were arrested, officers contacted the narcotics division, which instructed the officers that, based on the circumstances, a search of the apartment was unnecessary, so a warrant was not obtained.

–3– In this first issue, appellant argues the trial court erred by denying the motion to suppress.

Appellant contends Roach made his observations from the curtilage of appellant’s apartment,

and that the officer was not on the public pathway to the front door––the lawful means of

access––nor was he lawfully entitled to be standing in front of the window when he observed

appellant holding the bag of marijuana. Furthermore, the “no trespassing” sign on the window

“enhanced” appellant’s expectation of privacy.

Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We

review the trial court’s factual findings for an abuse of discretion, but review the trial court’s

application of the law to the facts de novo. Id. We give almost total deference to the trial court’s

determination of historical facts, particularly when the trial court’s fact findings are based on an

evaluation of credibility and demeanor. Id.; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010). We give the same deference to the trial court’s conclusions with respect to mixed

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367,

372 (Tex. Crim. App. 2012) (citing Guzman v. State, 955 S.W.2d 85, 87–89 (Tex. Crim. App.

1997)). We review mixed questions of law and fact that do not depend on credibility and

demeanor as well as purely legal questions de novo. State v. Woodward, 341 S.W.3d 404, 410

(Tex. Crim. App. 2011); Guzman, 955 S.W.2d at 89. As a general rule, we view the evidence in

the light most favorable to the trial court’s ruling and afford the prevailing party the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from that

evidence. State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold the

trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law

applicable to the case. Turrubiate, 399 S.W.3d at 150.

–4– Applicable Law

Warrantless entries into homes are presumptively unreasonable. Turrubiate, 399 S.W.3d

at 151. “When a defendant moves to suppress evidence based on a warrantless search, the State

has the burden of showing that probable cause existed at the time the search was made and that

exigent circumstances requiring immediate entry made obtaining a warrant impracticable.” Id.;

see also Pair v. State, 184 S.W.3d 329, 334 (Tex. App.––Fort Worth 2006, no pet.). Probable

cause to search exists when reasonably trustworthy circumstances within the knowledge of the

police officer on the scene would lead the officer to reasonably believe evidence of a crime will

be found. Turrubiate, 399 S.W.3d at 151.

If probable cause exists, exigent circumstances may require immediate, warrantless entry by officers who are (1) providing aid to persons whom law enforcement reasonably believes are in need of it; (2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; or (3) preventing the destruction of evidence or contraband.

Id. (citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007)).

The curtilage of a person’s home, which is the area immediately surrounding and

associated with the home, is protected by the Fourth Amendment. See Florida v. Jardines, 185

L. Ed. 2d 495, 133 S. Ct. 1409, 1414–15 (2013); State v. Betts, 397 S.W.3d 198, 207 (Tex. Crim.

App. 2013). Whether a particular area is included within the home’s curtilage is determined by

whether the defendant had a reasonable expectation of privacy in the area. Matthews v. State,

165 S.W.3d 104, 113 (Tex. App.––Ft. Worth 2005, no pet.). Curtilage includes a home’s doors

and porch but not open fields, which are outside the bounds of the home and are not immediately

surrounding and associated with the home. See Jardines, 133 S. Ct. at 1412; United States v.

Dunn, 480 U.S. 294, 303 (1987); Oliver v. United States, 466 U.S. 170, 180–81 (1984).

Similarly, curtilage does not include public spaces such as the common areas or hallways of an

apartment complex. See Evans v. State, 995 S.W.2d 284, 285–86 (Tex. App.––Houston [14th

–5– Dist.] 1999, pet. ref’d) (concluding that fenced-in common area of apartment complex, open to

other residents and guests, was not part of curtilage of defendant’s apartment protected by Fourth

Amendment); see also U.S. v. Miravalles, 280 F.3d 1328, 1332–33 (11th Cir. 2002) (tenants of

large, high-rise apartment building lacked reasonable expectation of privacy in common areas of

building that were open to not only tenants and their visitors but to public at large); United States

v. Ramirez, 145 Fed.Appx. 915, 922–23 (5th Cir. 2005) (“defendants possessed no reasonable

expectation of privacy in the common balcony area on the second floor above the carport.”);

United States v. Hawkins, 139 F.3d 29, 32–33 (1st Cir. 1998) (“a tenant lacks a reasonable

expectation of privacy in the common areas of an apartment building.”); United States v. Acosta,

965 F.2d 1248, 1252 (3d Cir. 1992) (defendants could not “have reasonably expected their

privacy to extend beyond their apartment door” because apartment building’s door was not

locked and “inner hallway was easily accessible to tenants, visitors, solicitors, workmen and

other members of the public.”). In determining whether a particular area is curtilage, we

consider the proximity of the area claimed to be curtilage to the home, whether the area is

included within an enclosure surrounding the home, the nature of the uses to which the area is

put, and the steps taken by the resident to protect the area from observation by people passing by.

Dunn, 480 U.S. at 301; Cooksey v. State, 350 S.W.3d 177, 183–84 (Tex. App.––San Antonio

2011, no pet.).

The protection afforded curtilage is not unlimited. Cooksey, 350 S.W.3d at 184; Tijerina

v. State, 334 S.W.3d 825, 833 (Tex. App.––Amarillo 2011, pet. ref’d). A law enforcement

officer’s entry onto the curtilage or approach to the entrances of a residence does not necessarily

rise to the level of a search as contemplated by the Fourth Amendment. Tijerina, 334 S.W.3d at

833; Rodgers v. State, 162 S.W.3d 698, 709 (Tex. App.––Texarkana 2005), aff’d, 205 S.W.3d

525 (Tex. Crim. App. 2006). For instance, a law enforcement officer, like any other member of

–6– the public, has the right to enter onto a residential property, walk up to the front door, and knock

on the front door for the purpose of contacting the occupants. Cornealius v. State, 900 S.W.2d

731, 733–34 (Tex. Crim. App. 1995); Tijerina, 334 S.W.3d at 834; Washington v. State, 152

S.W.3d 209, 214 (Tex. App.––Amarillo 2004, no pet.); but see McClintock v. State, No. 405

S.W.3d 277, 284 (Tex. App.––Houston [1st Dist.] 2013, pet. granted) (landing in front of

apartment’s door was part of apartment’s curtilage and bringing trained drug-detection dog to

conduct search from the landing in front of the appellant’s door exceeded any license that

impliedly may have been granted to approach and solicit residents of the apartment). A law

enforcement officer may approach the residence’s back door for the same purpose. Long v.

State, 532 S.W.2d 591, 594–95 (Tex. Crim. App. 1975); Duhig v. State, 171 S.W.3d 631, 637–38

(Tex. App.––Houston [14th Dist.] 2005, pet. ref’d); Atkins v. State, 882 S.W.2d 910, 913 (Tex.

App.––Houston [1st Dist.] 1994, pet. ref’d). Because entry onto the property is impliedly

authorized, there is no reasonable expectation of privacy with regard to things observed by those

on the pathway to the doors of the house. Washington, 152 S.W.3d at 214; see also Bradley v.

State, No. 07-05-0144-CR, 2006 WL 3740335, at *3–4 (Tex. App.––Amarillo Dec. 20, 2006,

pet. ref’d) (mem. op., not designated for publication) (police approached front door of residence

for a “knock and talk” and, while standing at the front door, looked through an unobstructed

window and could see appellant inside the bedroom holding a bag of cocaine). “If the person in

possession of the property has not made express orders prohibiting any form of trespass, and if

the police follow the usual path to the front door, then the police have not violated the person’s

Fourth Amendment rights.” See Nored v. State, 875 S.W.2d 392, 397 (Tex. App.––Dallas 1994,

pet. ref’d) (record did not show “No Entry” or “No Trespassing” signs had been posted on the

fence or gate of the apartment property, and the gate was unlocked and could be opened by

pushing down the handle); see also Cooksey, 350 S.W.3d at 184; Tijerina, 334 S.W.3d at 834.

–7– Analysis

In this case, the police officers received an anonymous tip that narcotics were being sold

out of apartment 101 of the property in question. When the officers approached the apartment to

conduct a “knock and talk,” they discovered that the electricity meter for the apartment had been

tampered with. Roach looked through the apartment’s unobstructed window and saw appellant

holding a Ziplock bag containing what Roach believed to be marijuana and U.S. currency.

Roach then used his flashlight “to illuminate it” and he “again believed that it was marijuana.”

As soon as he used his flashlight, appellant threw the Ziplock bag onto the couch, grabbed an

item containing several small orange translucent baggies, “threw the contents of that object into

the bathroom and the hallway,” and ran down the hallway. Thomas reacted immediately after

Roach shined his flashlight and shouted to appellant, “[F]lush the rock, flush the rock!”

Appellant’s arguments notwithstanding, Roach was not within the apartment’s curtilage

when he made his observations. Roach testified that he was approximately six to ten feet away

from appellant, he did not step over or into the flowerbed, the window’s blinds were open, and

the curtain was tied up. The area where Roach stood was accessible to the public––no gates or

fences shielded it. Appellant had no reasonable expectation of privacy in the apartment

complex’s hallways or other common areas. See, e.g., Acosta, 965 F.2d at 1252 (“only when the

defendant has the right to keep a place private and subject to his exclusive control would

reasonable expectations of privacy attach.”). Additionally, the presence of a no-trespassing sign

cannot confer curtilage status on an area that otherwise lacks it. See U.S. v. Elkins, 300 F.3d 648,

654 (6th Cir. 2002) (areas that adjoin a commercial building but are accessible to public do not

receive curtilage-like protection from a search).

Our review of the record in the light of these factors shows the officers could reasonably

have concluded evidence would be destroyed or removed before they could obtain a search

–8– warrant. Therefore, exigent circumstances existed that made the obtaining of a search warrant

impracticable, and the trial court did not abuse its discretion when it denied appellant’s motion to

suppress. 2 We overrule appellant’s first issue.

2. REFORMATION OF JUDGMENT

In his second issue, appellant contends the judgment should be reformed to reflect

appellant’s plea of “not true” to the indictment’s enhancement paragraph. The judgment in this

case states that appellant pleaded “true” to the enhancement paragraph, which alleged that

appellant was convicted of aggravated robbery with a deadly weapon in August of 1992. The

reporter’s record, however, shows he pleaded “not true” to the enhancement paragraph. The

State concedes the judgment should be reformed to reflect the plea of “not true,” as evidenced by

the record. We may correct or reform the judgment when we have the proper information to do

so. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.––Dallas 1991, pet. ref’d); see also

TEX. R. APP. P. 43.2(b). Accordingly, we reform the judgment in the above case to reflect that

appellant pleaded “not true” to the enhancement paragraph.

As modified, the judgment of the trial court is affirmed.

/Lana Myers/ LANA MYERS JUSTICE

Do Not Publish TEX. R. APP. P. 47 121442F.U05

2 Appellant argues that the State stipulated there were no exigent circumstances in this case. According to the record, however, the State stipulated that there were no exigent circumstances before Roach approached the window. Such a stipulation does not render the entry invalid because the officers had probable cause to approach the apartment and exigent circumstances subsequently arose that justified their warrantless entry into the apartment.

–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DARRELL DEWAYNE MORGAN, On Appeal from the Criminal District Court Appellant No. 6, Dallas County, Texas Trial Court Cause No. F11-60422-X. No. 05-12-01442-CR V. Opinion delivered by Justice Myers. Justices FitzGerald and Francis participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

“Plea to 1st Enhancement Paragraph: Not True.”

As MODIFIED, the judgment is AFFIRMED. We direct the trial court to enter a new judgment that reflects this modification.

Judgment entered this 4th day of December, 2013.

–10–