COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-04-450-CR
2-04-451-CR
KRISTY
R. GARRISON APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 396TH DISTRICT COURT OF TARRANT COUNTY
OPINION
I. Introduction
The
primary issue we address in these appeals concerns whether evidence discovered
by Fire Investigator Timothy Hardeman during his cause and origin investigation
of a fire at Appellant Kristy R. Garrison’s residence should have been
suppressed. The evidence Hardeman discovered led to the issuance of a
search warrant for Garrison’s residence and to the discovery of additional
evidence; Garrison subsequently pleaded guilty to manufacture of a controlled
substance of 400 grams or more (methamphetamine) and to possession or transport
of certain chemicals with intent to manufacture a controlled substance
(methamphetamine). The trial court placed Garrison on deferred
adjudication community supervision for a period of ten years for the
manufacturing offense and sentenced her to five years’ confinement for the
possession offense. Because we hold that Hardeman’s warrantless entry
into Garrison’s residence at the tail end of the fire-fighting efforts and
while the fire department remained in control of the premises was reasonable and
falls within a recognized exception to the Fourth Amendment’s protections, we
hold that the trial court did not abuse its discretion by denying Garrison’s
motion to suppress. See Michigan v. Clifford, 464 U.S. 287, 291-95,
104 S. Ct. 641, 646-47 (1984); Michigan v. Tyler, 436 U.S. 499, 509-10,
98 S. Ct. 1942, 1950 (1978). We will affirm.
II. Factual
Background
A
one-alarm fire occurred at Garrison’s residence on March 25, 2003. The
fire department responded; firefighters eventually extinguished the blaze.
Investigator Hardeman was dispatched to the scene to investigate the cause and
origin of the fire. Investigator Hardeman arrived at the residence and the
fire department incident commander advised him that the main body of the fire
had been extinguished, but the fire department was still on the scene and in
control of the premises. Investigator Hardeman spoke with Garrison, who
identified herself as an occupant of the burned house. Investigator
Hardeman told Garrison that he was going to enter the residence to conduct a
cause and origin investigation.
The
residence was a one-story, wood frame house with a covered patio/carport in the
back. Investigator Hardeman discovered several one gallon cans of acetone on the
patio/carport. A full-size van was parked six to eight feet from the
house, and a small, detached metal storage shed was located east of the
van. Investigator Hardeman observed numerous extension cords running
throughout the house and learned that a gas generator was being used to provide
electricity to the residence. He followed the extension cords to the rear
portion of the house and discovered the remains of a gas generator located
against the back wall of a “lean-to” type shed attached to the house.
The rear wall of the shed had burned away, and Investigator Hardeman ultimately
determined that the generator was the cause, or “heat source,” of the fire.
Additional
extension cords extended out into the yard; one orange extension cord was draped
over the van parked near the house and extended into the detached metal
shed. Investigator Hardeman followed this cord to the shed and saw that
the shed doors were open about four inches. The extension cord was
attached to another cord which was, in turn, plugged into a six-outlet power
strip. Investigator Hardeman could not see if anything else was plugged
into the power strip, so he opened the doors to the shed and observed what he
believed to be a methamphetamine lab. Investigator Hardeman notified the
incident commander of his discovery and requested further support from patrol
officers and the narcotics unit. Officers later acquired a warrant to
search the residence based entirely on Investigator Hardeman’s findings.
Investigator
Hardeman was the only witness to testify during Garrison’s motion to suppress
hearing. In addition to other findings, the trial court made the following
findings of fact:
2. In the process of extinguishing the fire, members of the Fire
Department located various items that were being used to apparently manufacture
a controlled substance. The Fort Worth Police Department was notified to
respond to the location by the Fort Worth Fire Department.
.
. . .
4.
A search warrant for the residence was properly obtained and, pursuant to the
warrant, the officers began searching the residence.
The
trial court concluded that “[t]he discovery of the items by the Fort Worth
Fire Department was done by exigent circumstances pursuant to their response to
the fire at the residence.” The trial court ultimately denied
Garrison’s motion to suppress evidence, and she entered an open plea of guilty
to both offenses.
III. Motion to
Suppress
In
her first point, Garrison argues that the trial court abused its discretion by
denying her motion to suppress evidence because “(1) the fire had been
extinguished and the exigency had expired with it so that a search warrant was
required” and (2) Investigator Hardeman’s entry into the detached metal shed
occurred after the cause and origin of the fire had been determined, thus
requiring a search warrant because the shed’s contents were not in plain view
and he did not have Garrison’s consent to make the entry.
A. Standard of Review
We
review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323,
327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997). In reviewing the trial court’s decision, we do not
engage in our own factual review. Romero v. State, 800 S.W.2d 539,
543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex.
App.—Fort Worth 2003, no pet.). At a suppression hearing, the trial
judge is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given to their testimony. State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000). Therefore, we give almost total
deference to the trial court’s ruling on (1) questions of historical fact and
(2) application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53
(Tex. Crim. App. 2002); Best, 118 S.W.3d at 861-62. However, we
review de novo a trial court’s rulings on mixed questions of law and fact if
they do not turn on the credibility and demeanor of witnesses. Johnson,
68 S.W.3d at 652-53. We will uphold the trial court’s ruling if it is
reasonably supported by the record and correct under any applicable theory of
law. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).
B. The Law Concerning Warrantless Entries onto
Fire-Damaged Property
Generally,
except in carefully defined classes of cases, the nonconsensual entry and search
of property is governed by the warrant requirement of the Fourth and Fourteenth
Amendments. Michigan v. Clifford, 464 U.S. at 291-92, 104 S. Ct. at
646. This general rule applies equally to fire-damaged property—unless
the fire is so devastating that no reasonable privacy interests remain in the
ash and ruins—absent consent or some exigent circumstances. See id.
A burning building creates an exigency that justifies a warrantless entry by
fire officials to fight the blaze. Id. at 293, 104 S. Ct. at
646. Once such an entry is made, officials do not need a warrant to remain
for a reasonable time to investigate the cause of the blaze after it has been
extinguished. Id. (citing Michigan v. Tyler, 436 U.S.
at 510, 98 S. Ct. at 1950)). When the fire has been extinguished and fire
and police officials have left the scene, re-entry requires either a warrant or
the identification of some new exigency. Id. at 293, 104 S. Ct. at
647.
C. Application to the Present Facts
The
State argues at the outset that Garrison lacks standing to complain about the
search of the detached storage shed because she had no reasonable expectation of
privacy in the shed. Privacy interests are especially strong in a private
residence. Id. at 296, 104 S. Ct. at 648. This privacy
interest extends to a storage shed located within the curtilage of a residence;
entry into such a shed implicates privacy rights concerning personal property
within the shed and may instigate a potentially violent response from a resident
or owner of the property. See, e.g., Garza v. State, 632 N.W.2d
633, 639 (Minn. 2001) (recognizing resident’s privacy interest in detached
storage shed); Ingram v. State, 703 P.2d 415, 429 (Alaska 1985) (same); see
also Buchanan v. State, 129 S.W.3d 767, 774 n.1 (Tex. App.—Amarillo 2004,
pet. ref’d) (recognizing expectation of privacy in home extends to curtilage
surrounding home and citing Oliver v. United States, 466 U.S. 170, 182
n.12, 104 S. Ct. 1735, 1743 n.12 (1984)). Because Garrison was an occupant
of the residence, we hold that Garrison possessed a reasonable expectation of
privacy in the detached storage shed and that, consequently, she possessed
standing to challenge Investigator Hardeman’s warrantless entry into the shed.
Turning
to Garrison’s arguments, she first argues that Investigator Hardeman was
required to obtain a warrant to investigate at her residence because the fire
had been extinguished and the “exigency had expired.” Investigator
Hardeman began his investigation just after firemen extinguished the main body
of the fire. Some “smoldering” was still occurring. Fire
department personnel were still at the scene. The United States Supreme
Court in both Michigan v. Clifford and Michigan v. Tyler held that
cause and origin investigations in the immediate aftermath of a fire fall within
the exigent circumstances exception to the warrant requirement. See
Michigan v. Clifford, 464 U.S. at 293, 104 S. Ct. at 647 (holding warrant
requirement does not apply to cause and origin investigation conducted in
immediate aftermath of fire); Michigan v. Tyler, 436 U.S. at 510, 98 S.
Ct. at 1950 (holding officials need no warrant to remain to determine cause and
origin of fire). Because Investigator Hardeman conducted a cause and
origin investigation in the immediate aftermath of the fire, he did not need a
warrant.
Garrison
next argues that Investigator Hardeman needed a warrant to enter the metal shed
because the cause of the fire had already been determined. This argument
would be more persuasive had Investigator Hardeman not observed the orange
extension cord running from the generator out through the yard to the
shed. Although Investigator Hardeman testified that the “heat source,”
for the fire—the fire’s origin—was the gas powered generator, he
said that he saw the orange extension cord snaking out to the shed and that he
entered the metal shed in the process of and in furtherance of his efforts to
determine the cause of the fire.
[Prosecutor:] And, Investigator Hardeman, why were you trying to search and find
the -- where the power cords snaked to or trying to follow the power cords from
what you determined to be the gas generator, the origin of the heat source?
[Hardeman:]
It was -- as part of the investigation, my fire investigation, I’m trying to
determine what caused this fire. With an electric generator, it’s
required to provide electricity. I was trying to determine what was being
required of this generator. Was it being overloaded? What caused it
to malfunction, if it did malfunction, to cause this fire?
[Prosecutor:]
And is that normal protocol for you when you determine -- in this type of
situation?
[Hardeman:]
Yes, it is.
Because
Investigator Hardeman saw the extension cord running from the generator to the
shed and entered the shed in furtherance of his investigation into the cause of
the fire, his entry did not require a warrant. See Michigan v. Tyler,
436 U.S. at 510, 98 S. Ct. at 1950. If officers are permitted to conduct a
warrantless cause and origin search of a home in the immediate aftermath of a
fire, they are equally entitled to conduct a warrantless cause and origin search
of a detached storage shed when it reasonably appears related to the cause or
origin of the fire. See id.
Garrison
also contends that Investigator Hardeman could not enter the shed without a
warrant because there was never any fire in the shed. Again, this argument
would be more persuasive if Investigator Hardeman had not observed the orange
extension cord running from the generator to the shed. It was this
extension cord, linked to the point of the origin of the fire, that made
Investigator Hardeman suspect that something in the shed may have caused the
generator to overload or malfunction. Because Investigator Hardeman was
authorized to search areas where the cause of the fire would likely be found, he
was—in light of the orange extension cord—authorized to search the
shed. See Michigan v. Clifford, 464 U.S. at 295 n.6, 104 S.
Ct. at 647 n.6 (“In searching solely to ascertain the cause [of the fire],
firemen customarily must . . . search other areas where the cause of fires are
likely to be found. An object that comes into view during such a search
may be preserved without a warrant.”) Because Investigator Hardeman
discovered the methamphetamine lab and contraband in plain view inside the shed,
this evidence was properly used to establish probable cause to obtain the search
warrant. See id. at 294, 104 S. Ct. at 647.
We
hold that the trial court did not abuse its discretion by determining that
Investigator Hardeman’s cause and origin investigation fell within the exigent
circumstances exception to the warrant requirement or by denying Garrison’s
motion to suppress. See Carmouche, 10 S.W.3d at 327. We
overrule Garrison’s first point.
IV. Motion To
Dismiss—Collateral Estoppel
Federal
charges were filed against Garrison allegedly arising out of the same series of
events giving rise to her prosecution in this case. Eventually, in the
federal case, the United States filed a motion to dismiss the indictment against
Garrison, and it was granted. Garrison then filed a motion to dismiss her
state court indictment in this case. She attached to her motion a copy of
the federal motion to dismiss and the order granting dismissal. She argued
that the dismissal of the federal charges collaterally estopped her subsequent
prosecution in state court.
The
doctrine of collateral estoppel, also known as issue preclusion, generally
prohibits relitigation between the same parties of an issue of ultimate fact
that has already been determined by a valid and final judgment. See Ashe v.
Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194 (1970). Unsuccessful
criminal prosecution by the federal government, however, typically does not
collaterally estop the State from prosecuting an individual based on the same
conduct even if the elements of the state and federal offenses are
identical. See United States v. Angleton, 314 F.3d 767, 771
(5th Cir. 2002), cert. denied, 538 U.S. 946 (2003). Similarly, the
State may prosecute a defendant for the same conduct underlying a previous
prosecution in federal court. See Reynolds v. State, 548 S.W.2d
733, 735 (Tex. Crim. App. 1977). This is so because “[w]hen a defendant
in a single act violates the ‘peace and dignity’ of two sovereigns by
breaking the laws of each, he has committed two distinct
‘offenses.’” Heath v. Alabama, 474 U.S. 82, 88, 106 S. Ct.
433, 437 (1985). The United States and the State of Texas are separate
sovereigns; they are not the same parties for purposes of collateral estoppel.
See Ashe, 397 U.S. at 443, 90 S. Ct. at 1194; Angleton, 314 F.3d
at 776.1 Accordingly, because Garrison
failed to establish the first element of her collateral estoppel claim—that
there was a full hearing at which both parties had an opportunity to
litigate the relevant fact issue—the trial court did not err by implicitly
denying Garrison’s motion to dismiss. See State v. Aguilar, 947
S.W.2d 257, 259-60 (Tex. Crim. App. 1997); see also Kappmeyer v. State,
127 S.W.3d 178, 181-83 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding
State not collaterally estopped from prosecuting defendant because United States
and State of Texas are separate sovereigns). We overrule Garrison’s
second point.2
V. Sufficiency
Of Fact Findings & Conclusions of Law
In
her third point, Garrison argues that the evidence is insufficient to support
the findings of fact made by the trial court after the suppression
hearing. Our review of the trial court’s findings of fact, however, is
limited by the applicable standard of review. As stated above, we do not
engage in our own factual review. Best, 118 S.W.3d at 861. We
give almost total deference to the trial court’s ruling on questions of
historical fact. Id. at 861-62. The testimony and evidence
recited above support the trial court’s findings of fact; thus, we decline to
disturb them. See Romero, 800 S.W.2d at 543. We overrule
Garrison’s third point.
VI. Double
Jeopardy
In
her fourth point, Garrison argues that her conviction for manufacture of a
controlled substance and for possession or transport of certain chemicals with
intent to manufacture a controlled substance violate the prohibition against
double jeopardy because possession of acetone with intent to manufacture a
controlled substance (methamphetamine) “is in truth and fact part and parcel
of the greater offense” (manufacture of methamphetamine). The State
argues that Garrison has forfeited this argument by failing to raise it in the
trial court.
The
double jeopardy clause of the Fifth Amendment to the United Stats Constitution
provides that no person shall “be subject for the same offense to be twice put
in jeopardy of life or limb.” U.S.
Const. amend. V. Article I, Section 14 of the Texas Constitution contains
a similar provision and is conceptually identical to its federal
counterpart. Stephens v. State, 806 S.W.2d 812, 814-15 (Tex. Crim.
App. 1990). The guarantee against double jeopardy consists of three
separate constitutional protections: (1) it protects against a second
prosecution for the same offense after acquittal; (2) it protects against a
second prosecution for the same offense after conviction; and (3) it protects
against multiple punishments for the “same offense.” Illinois v.
Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264 (1980); Lopez v. State,
108 S.W.3d 293, 295-96 (Tex. Crim. App. 2003). Garrison’s double
jeopardy claim implicates the third, multiple punishments category. See
Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990) (op. on reh’g).3
Garrison
failed to make a request, objection, or motion raising her double jeopardy
complaint to the trial court. Generally, this failure to preserve error would
preclude us from considering the alleged error. See Tex. R. App. P. 33.1; Gonzalez v.
State, 8 S.W.3d 640, 642-43 (Tex. Crim. App. 2000). A double jeopardy
claim may be raised for the first time on appeal, however, when (1) the
undisputed facts show the double jeopardy violation is clearly apparent on the
face of the record and (2) the enforcement of the usual rule of procedural
default serves no legitimate State purpose. See Gonzalez, 8 S.W.3d
at 643; Murray v. State, 24 S.W.3d 881, 888-89 (Tex. App.—Waco 2000,
pet. ref’d). Both prongs of this test must be satisfied before an
appellate court will consider a multiple-punishments double jeopardy claim that
is raised for the first time on appeal. See Murray, 24 S.W.3d at
888-89 (citing Gonzalez).
We
first consider whether it is clearly apparent from the face of the record that
Garrison’s convictions for manufacture of methamphetamine and for possession
of acetone with intent to manufacture methamphetamine violate the prohibition
against double jeopardy. The threshold question in assessing Garrison’s
double jeopardy issue is whether the face of the record demonstrates that she is
being punished twice for the "same offense." See State v.
Perez, 947 S.W.2d 268, 270 (Tex. Crim. App. 1997). The principal test
for determining whether two offenses are the same for the purposes of double
jeopardy was set out by the United States Supreme Court in Blockburger v.
United States:
The applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision
requires proof of an additional fact which the other does not.
284
U.S. 299, 304, 52 S. Ct. 180, 182 (1932). Greater and lesser included
offenses are the "same" offense for double-jeopardy purposes. Parrish
v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994).
Here,
Garrison’s indictment in the manufacturing case alleged that on or about the
26th day of March 2003 she did
then and there intentionally or knowingly manufacture a controlled substance,
namely methamphetamine of four hundred grams or more, including any adulterants
or dilutants, by producing, preparing, propagating, compounding, converting, or
processing said controlled substance, independently by means of chemical
synthesis.
See
Tex. Health & Safety Code Ann.
§ 481.112 (Vernon 2003). The indictment in her possession of acetone case
alleged that on or about the 26th day of March 2003 she did
with intent to unlawfully manufacture a controlled substance, namely:
methamphetamine possess or transport immediate precursor, to-wit: acetone.
See
id. § 481.124 (Vernon Supp. 2004-05). These two offenses, on their
face, constitute two separate statutory offenses in that each requires proof of
a fact which the other does not. The manufacturing offense requires proof
of the manufacture of over four hundred grams of methamphetamine; the possession
charge does not. The possession charge requires proof of possession of
acetone; the manufacturing charge does not.4
Garrison
entered an open plea of guilty to both these offenses. “[A] defendant
who pleads guilty to two counts with facial allegations of distinct offenses
concede[s] that he has committed two separate crimes.” United
States v. Broce, 488 U.S. 563, 570, 109 S. Ct. 757, 763 (1989) (emphasis
added). Garrison’s plea of guilty thus waived her right to contest the
indictments as violative of the prohibition against double jeopardy in a
subsequent factual proceeding below, and without such a record, the two
indictments and remaining record are insufficient to show a double jeopardy
violation. See id. at 576, 109 S. Ct. at 766. Because the
indictments describe separate offenses and because Garrison’s double jeopardy
argument has the effect of contradicting the indictments, additional proceedings
by which to expand the record would be necessary to address Garrison’s double
jeopardy claim in light of her guilty pleas. On the face of the record,
absent additional proceedings, no double jeopardy claim is clearly
apparent. Compare Saenz v. State, 131 S.W.3d 43, 50 (Tex.
App.—San Antonio 2003, pet. granted) (concluding double jeopardy violation
apparent from face of record because all three murders before the same court,
all three counts before the trial court, and record fully developed); Roy v.
State, 76 S.W.3d 87, 94 (Tex. App.—Houston [14th Dist] 2002, no pet.)
(“Appellant stood trial for both offenses and presented a complete record of
that trial for our consideration.”). We hold that Garrison may not raise
her unpreserved double jeopardy claim for the first time on appeal because it is
not clearly apparent on the face of the record. See Gonzalez, 8
S.W.3d at 643; King v. State, 161 S.W.3d 264, 267-69 (Tex.
App.—Texarkana 2005, pet. filed). We overrule Garrison’s fourth point.
VII. Conclusion
Having
overruled all four of Garrison’s points, we affirm the trial court’s
judgments.
SUE
WALKER
JUSTICE
PANEL
A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
July 7, 2005
NOTES
1.
The State argued that it is not that same party as the United States at the
hearing on Garrison’s motion to suppress and motion to dismiss.
2.
Because Garrison failed to establish the “same parties” element of her
collateral estoppel claim, we need not address the remaining elements of
collateral estoppel.
3.
Garrison argues, “As such the Appellant cannot be punished for both offenses
and the latter must be dismissed for violation of the double jeopardy clause
prohibition against multiple trials and punishments for the same events.”
4.
The evidence adduced at the suppression hearing likewise indicates that
factually these two offenses are different; the gallons of acetone were found in
the house and in the carport while the manufacturing laboratory was found in the
detached metal shed.