In Re SMC

338 S.W.3d 161, 2011 WL 1136192
CourtCourt of Appeals of Texas
DecidedMarch 23, 2011
Docket08-09-00184-CV
StatusPublished

This text of 338 S.W.3d 161 (In Re SMC) 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
In Re SMC, 338 S.W.3d 161, 2011 WL 1136192 (Tex. Ct. App. 2011).

Opinion

338 S.W.3d 161 (2011)

In the Matter of S.M.C., a Juvenile.

No. 08-09-00184-CV.

Court of Appeals of Texas, El Paso.

March 23, 2011.

*162 M. Clara Hernandez, EI Paso County Public Defender, El Paso, TX, for Appellant.

Jo Anne Bernal, County Attorney, El Paso, TX, for Appellee.

Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

GUADALUPE RIVERA, Justice.

By petition, Appellant, S.M.C., was charged with the offense of possessing a prohibited weapon, namely, knuckles, on the physical premises of his junior high school in violation of Texas Penal Code 46.03(a)(1). TEX. PENAL CODE ANN. §§ 46.03(a)(1), 46.05(a)(6) (West Supp. 2010). Appellant now appeals the trial court's denial of his motion to suppress evidence recovered during a search of his school locker. We affirm.

BACKGROUND

By amended petition, Appellant was alleged to have engaged in delinquent conduct, which included criminal mischief (Count I) and possessing a prohibited weapon, knuckles, on the physical premises of a school or educational institution (Count II). TEX. PENAL CODE ANN. §§ 28.03(a), (b)(2), 46.03(a)(1), 46.05(a)(6). *163 Thereafter, Appellant filed a motion to suppress evidence.

Evidence presented at the suppression hearing showed that on or about March 11, 2009, a student at East Montana Middle School informed Ms. Josephine Angerstein-Guzman, an Assistant Principal, that "[Appellant] is high, you might want to check him out." The same student had on a previous occasion discussed with Angerstein-Guzman Appellant's use of drugs before school. Angerstein-Guzman thereafter encountered the school district's canine officer, Officer Harrison, in the hallway of the school, advised him of the information she had received regarding Appellant, and upon seeing Appellant in the hallway, Angerstein-Guzman and Harrison escorted Appellant to the nurse's office, where nurse's aide Gonzalez was present.[1] Angerstein-Guzman requested that campus security Officer Ponce attend Gonzalez' examination of Appellant.[2] Upon examination, Gonzalez found Appellant's eyes to be red, but did not consider him to be under the influence of drugs. Angerstein-Guzman, who had previous experience in observing individuals with red, glossy, and dilated eyes who were under the influence of drugs, observed Appellant's eyes to be red as well as slightly glossy and dilated. Although Appellant asserted that pink eye and eye drops were the cause of his red eyes, Gonzalez had no parental note indicating that Appellant had pink eye or was otherwise being treated for that ailment. Gonzalez acknowledged that Appellant's red eyes could have resulted from smoking marijuana.

Angerstein-Guzman testified that upon receiving the tip and seeing Appellant's eyes, she suspected that he had used something, even if it was not enough to charge him with being under the influence. She also testified that the school's administration follows through on every tip that comes in. In accordance with school procedure, Angerstein-Guzman continued to investigate the possibility that Appellant was under the influence of or had drugs at school. Angerstein-Guzman explained that when conducting a search, school officials search the person's belongings, backpack, person, pockets and "[i]f there is reasonable suspicion, we go ahead and continue to search lockers [and] vehicles, if we need to [.]" Angerstein-Guzman stated that her training and experience have demonstrated that students hide drugs in shoes, notebooks, backpacks, lockers, and vehicles.

Appellant's notebook was searched for packets or residue of drugs, but none were found. Officer Ponce did a "pat down" search of Appellant for weapons. Appellant was asked to untuck his shirt and run his own fingers along the waistband of his pants, empty and turn out his pockets, and remove his socks and shoes but no drugs were found. Angerstein-Guzman then directed Officers Ponce and Harrison to check Appellant's locker because he may have been hiding drugs there. Appellant was asked to accompany the officers to the locker. Officer Harrison asked Appellant if he had anything illegal in his locker, and Appellant initially said that he did not, but upon arriving at the locker, Appellant informed the officers that he had a belt buckle. As Officer Ponce proceeded to open the locker, Appellant told the officers that he had brass knuckles. As Officer Ponce pulled a backpack from Appellant's locker, Officer Harrison noted that there *164 was something shiny in the backpack. Officer Harrison reached into the backpack and retrieved brass knuckles, a weapon whose possession is prohibited on school premises. TEX. PENAL CODE ANN. §§ 46.03(a)(1), 46.05(a)(6). No other contraband was discovered in the locker.

The Clint Independent School District's Student Code of Conduct was admitted into evidence along with a receipt signed by Appellant and his mother, acknowledging that they had received, read, and agreed to abide by the Code of Conduct. The Code of Conduct provides:

Students shall have a diminished expectation of privacy while under the jurisdiction of the District. School administrators may search a student's outer clothing, pockets, or property by establishing reasonable suspicion or securing the student's voluntary consent. . . . Areas such as lockers, which are owned by the District and jointly controlled by the District and student, may be searched, and school Administrators may routinely conduct blanket locker searches. Students shall not place, keep, or maintain any article or material in school-owned lockers that is forbidden by District Policy or that would lead school officials to reasonably believe that it would cause a substantial disruption on school property or at a school-sponsored function. Students are responsible for any prohibited item found in their possession, in their lockers, or in vehicles parked on school property, and shall be subject to appropriate school disciplinary action in accordance with this CISD Student Code of Conduct and/or [prosecution].

The Code of Conduct states that a student's possession of a prohibited weapon, including knuckles, as defined in the Texas Penal Code is an offense for which a student may be expelled.

East Montana Middle School Principal Alfredo Solis testified that school lockers are searched "continuously," and that students are aware of the searches. When random searches are performed at the school, they are typically performed sporadically with the assistance of a dog.

Based on the evidence and testimony presented, the trial court denied Appellant's motion to suppress, and upon consideration of the stipulated evidence, dismissed Count I, and adjudicated Appellant delinquent under Count II, possession of a prohibited weapon on school premises.

DISCUSSION

In his sole issue on appeal, Appellant complains that the trial court committed error when it denied his motion to suppress evidence because the search of his locker was conducted without any reasonable suspicion and in violation of his rights under the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution. U.S. CONST. amends. IV, XIV; TEX. CONST, art. I, § 9. We disagree.

Standard of Review

In reviewing a motion to suppress in a juvenile case, we utilize the same standard as in a non-juvenile criminal case. TEX. FAM.CODE ANN. § 51.17(c) (West Supp.2010); In the Matter of S.J., 977 S.W.2d 147, 151 (Tex.App.-San Antonio 1998, no pet.).

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Cite This Page — Counsel Stack

Bluebook (online)
338 S.W.3d 161, 2011 WL 1136192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-smc-texapp-2011.