Hawkins v. State

968 S.W.2d 382, 1997 Tex. App. LEXIS 5612, 1997 WL 674529
CourtCourt of Appeals of Texas
DecidedOctober 22, 1997
DocketNo. 12-96-00050-CR
StatusPublished
Cited by4 cases

This text of 968 S.W.2d 382 (Hawkins v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hawkins v. State, 968 S.W.2d 382, 1997 Tex. App. LEXIS 5612, 1997 WL 674529 (Tex. Ct. App. 1997).

Opinion

RAMEY, Chief Justice.

Sidney Village Hawkins (“Appellant”) was indicted on two counts of aggravated assault on a peace officer and convicted on both counts by a jury. The jury assessed his punishment at imprisonment for a period of 25 years on each count. Appellant raises two points of error; we will affirm the judgment of the trial court.

In both of Appellant’s assignments of error, he contends that the trial court erred in denying his motion to suppress evidence, namely the twenty-gauge shotgun that the jury found he pointed at two police officers. In his first point, he asserts that the trial court’s failure to suppress the shotgun violated the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures, and his second point of error alleges a violation of Article 1, section 9 of the Texas Constitution. Both parties argue that the two points of error may be analyzed as one, and we will consider them together.

At a hearing on a motion to suppress, “the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses, as well as the weight to be given their testimony.” DuBose v. State, 915 S.W.2d 493, 496 (Tex.Cr.App.1996) (citing Taylor v. State, 604 S.W.2d 175, 177 (Tex.Cr.App. [Panel Op.] 1980)). The trial court is also the initial arbiter regarding the legal significance of the facts presented. Id. The trial court’s decisions concerning these matters will not be disturbed absent a clear abuse of discretion. Id.; Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Cr.App.1993). Because the trial judge is the sole trier of fact at a suppression hearing, we are not at liberty to disturb any finding supported by the record. Brimage v. State, 918 S.W.2d 466, 504 (Tex.Cr.App.1994). In other words, this Court may not intercede even if the evidence would have led us to a different ruling, “as long as the trial court’s rulings are at least within the ‘zone’ of reasonable disagreement.’” DuBose, 915 S.W.2d at 496-497.

At the suppression hearing in the instant case, the trial court received the testimony of three police officers and the woman with whom Appellant had shared an apartment for three or four months. Appellant’s girlfriend, Melissa Minchew (“Minchew”), called police complaining that Appellant had threatened her and her baby with a shotgun. Appellant still had the baby in the couple’s apartment and would not let Minchew retrieve the baby. The police officers claimed that Minchew was extremely upset and begged them to go with her to get her child and help her move out of the apartment. At about 8:30 p.m., they arrived at the apartment, and Minchew entered it. The officers could hear her arguing with Appellant. The officers then entered the apartment and observed Minchew and Appellant physically fighting over the child. According to the officers, when Appellant saw them, he pointed a sawed-off shotgun at them, and they quickly exited. Another officer arrived and talked Appellant into releasing Minchew and the baby, after which all of the officers and Minchew with the baby left the scene and returned to the police station.

The officers further testified that when they then took Minchew and her baby to the police station, they left Appellant unsupervised until about 10:00 p.m., when they dispatched- another officer to keep the apartment under surveillance. While at the station, Minchew told them that Appellant had a warrant out for his arrest based on a probation violation. The officers testified that Minchew declared that she wanted [384]*384them to arrest Appellant, and while Min-ehew admitted such a statement, she denied giving the officers permission to reenter the apartment.

At approximately 10:30 p.m., some two hours after leaving the apartment with Min-chew and the baby, the officers returned with reinforcements and negotiated with Appellant to surrender. During the negotiations, some of the officers were able to see through an apartment window and observed Appellant holding the illegal shotgun. The police captain, Marvin Acker, testified that when he talked Appellant into surrendering, Appellant offered to bring the shotgun outside the apartment but that he instructed Appellant to leave the shotgun in the apartment for the sake of safety. Once Appellant was in custody, the officers retrieved the shotgun from the apartment where Appellant had lain it on abed.

At the hearing on the motion to suppress, Minchew contradicted the officers’ version of events on most points and testified that the officers never requested her permission to enter the apartment and that she never gave them consent to enter it. She claimed that she and Appellant neither argued nor raised their voices while the officers waited outside the apartment. She also disputed the officers’ claim that Appellant pointed the gun at them or threatened them.

Appellant argues that the trial court abused its discretion in refusing to suppress the evidence of the illegal shotgun because no exception to the constitutional ban on warrantless searches and seizures pertains in this case. The State argues that the entry of the apartment to retrieve the gun was valid because the officers had consent to enter in the first place, observed Appellant holding the shotgun during negotiations, and possessed an arrest warrant from the probation violation. That warrant, however, did not expressly authorize a search and seizure.

Whenever police enter a residential unit without consent of the residents, that entry constitutes a search. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Cr.App.1991) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). “In order for a warrantless search to be justified, the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances which made the procuring of a warrant impracticable.” Id.; Delgado v. State, 718 S.W.2d 718 (Tex.Cr.App.1986). The United States Supreme Court has established that even in the presence of probable cause, a warrantless search of a dwelling will withstand constitutional scrutiny “only in ‘a few specifically established and well-delineated’ situations.” Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970) (quoting Katz, 389 U.S. at 357, 88 S.Ct. at 514). Those exceptions include situations in which police have consent, are responding to an emergency or are in hot pursuit of a fleeing felon, and when contraband is in the process of being destroyed or about to be removed from the jurisdiction. Vale, 399 U.S. at 34-35, 90 S.Ct. at 1972. The State bears the burden of establishing the existence of these exceptions. Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Cr.App.1979). Probable cause is not an issue here. The three police officers testified that Appellant had been observed in possession of the illegal shotgun, and that the gun was used in the commission of the offenses.

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Bluebook (online)
968 S.W.2d 382, 1997 Tex. App. LEXIS 5612, 1997 WL 674529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkins-v-state-texapp-1997.