Phillips v. State

161 S.W.3d 511, 2005 Tex. Crim. App. LEXIS 701, 2005 WL 957274
CourtCourt of Criminal Appeals of Texas
DecidedApril 27, 2005
DocketPD-1400-03
StatusPublished
Cited by15 cases

This text of 161 S.W.3d 511 (Phillips v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. State, 161 S.W.3d 511, 2005 Tex. Crim. App. LEXIS 701, 2005 WL 957274 (Tex. 2005).

Opinions

OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, J.J., joined.

After appellant pled nolo contendere to the offense of the sale of an alcoholic beverage to a minor,1 she timely filed an appeal with the Thirteenth Court of Appeals in Corpus Christi pursuant to Texas Rule of Appellate Procedure Article [512]*51225.2(b)(3),2 claiming that the trial court improperly denied her motion to suppress evidence. The court of appeals held that the trial court erred in denying Appellant’s motion to suppress, and remanded the case for further proceedings consistent with its opinion.3 We will reverse.

I. Facts

On October 30, 1998, 17-year-old Shannon Berger entered the Mustang Lounge at the direction of her Aunt, Berenice Berger, a Texas Alcoholic Beverage Commission (“TABC”) agent. Shannon Berger was to attempt to purchase an alcoholic beverage inside the bar as part of an undercover operation by the TABC. She was accompanied by another TABC agent, Daryl Darnell, who witnessed the events that occurred inside the bar. Appellant sold a beer to Shannon Berger, a minor, without asking for identification in violation of § 106.03 of the Texas Alcoholic Beverage Code.4 TABC agents subsequently detained Appellant and issued her a citation.

Appellant filed a motion to suppress “any evidence acquired as a result of the actions” of the TABC officers. Appellant based this motion on the fact that there was a sign posted in the Mustang Lounge5 which prohibited any persons younger than 18 years of age from being on the premises. Appellant argued that because Shannon Berger was 17 years old, she committed criminal trespass at the direction of the TABC agents by remaining on the property despite the existence of the sign. Thus, Appellant asserted that the actions of the TABC agents were illegal, and any evidence acquired by them as a result of their investigation should be suppressed according to Texas Code of Criminal Procedure Article 38.23 and Article 1 § 9 of the Texas Constitution.6 A hearing on the motion was granted, and an associate judge granted the motion to suppress. The State appealed the judge’s order and requested a hearing de novo before the trial court, which subsequently denied the motion to suppress. The Thirteenth Court of Appeals reversed the trial court’s judgment on April 24, 2003. The State’s motion for rehearing was overruled, and the State subsequently filed a timely petition for discretionary review with this Court.

II. Appellate Decision and Grounds for Review

The court of appeals held that Shannon Berger was a trespasser under Texas Penal Code § 30.05, and that she was not an “authorized representative” of the TABC under § 101.04 of the Texas Alcoholic Beverage Code, which would permit her entry onto the premises without a warrant.7 [513]*513Texas Alcoholic Beverage Code § 101.04 provides:

By accepting a license or permit, the holder consents that the commission, an authorized representative of the commission, or a peace officer may enter the licensed premises at any time to conduct an investigation or inspect the premises for the purpose of performing any duty imposed by this code, (emphasis added)

The court of appeals further held that Shannon Berger was not an authorized representative because, despite the State’s contention that § 106.05 of the Texas Alcoholic Beverage Code allowed Shannon Berger to participate in the undercover operation, the provision “does not expressly authorize TABC agents to recruit minors to enter licensed premises for the purpose of purchasing alcohol.”8 The court of appeals finally held that the violation of the trespass statute falls under the protections of Texas Code of Criminal Procedure Article 38.23, and that Appellant had standing to invoke the provisions of article 38.23 in a representative capacity.9 Based on these holdings, the court of appeals reversed the trial court’s judgment.

This Court granted review on two questions: first, does a 17-year-old commit criminal trespass by entering and remaining in a bar under the direction of the TABC despite the existence of a sign inside the bar seeking to exclude minors? Second, does a violation of the criminal trespass statute invoke article 38.23 of the Texas Code of Criminal Procedure?

The State argues that Shannon Berger was an “authorized representative” of the TABC and therefore was statutorily authorized to enter the premises. Further, the State argues that even if the court found she was not an “authorized representative,” the trial court could have found her conduct justified under Texas Penal Code § 9.21, and found that her conduct did not constitute criminal trespass.10 The State also asserts that the court of appeals erred in holding that a violation of the criminal trespass statute invokes Texas Code of Criminal Procedure Art. 38.23.

Appellant argues that Shannon Berger’s conduct was unarguably criminal trespass under Texas Penal Code § 30.05, due to the fact that the Mustang Lounge had posted a “no trespassing” sign giving notice that minors were not to enter the premises. Thus, Appellant asserts that this violation of the penal code by Shannon Berger acting in conjunction with the TABC agents triggers the application of Texas Code of Criminal Procedure Article 38.23.

III. Analysis

The primary question in this case, as posed in the first ground for review, is whether a minor recruited by the TABC to enforce the provisions of the Texas Alcoholic Beverage Code through conducting a sting operation inside a bar, commits criminal trespass if the target establishment has posted a “no trespassing to those under 21” sign. To answer this question, it is helpful to analyze as a whole the way the code addresses issues related to minors.

Section 101.04 of the Texas Alcoholic Beverage Code provides TABC officers [514]*514with the authority to enter a licensed establishment at any time for an inspection without first notifying the owner or obtaining any sort of warrant as long as they are performing duties given to them by the Texas Alcoholic Beverage Code.11 This section of the code also grants this right to the commission itself, or authorized representatives of the commission. The court of appeals is correct when it points out that § 101.04 does not expressly authorize TABC agents to recruit and use minors to enforce the provisions of the code. However, the court of appeals fails to consider the purpose behind the code.

In particular, two sections relating to minors are informative in trying to discern whether minors acting under TABC authority are criminal trespassers in this situation. Section 106.05, entitled “Possession of Alcohol by a Minor,” states that a minor commits an offense if he or she possesses an alcoholic beverage, subject only to several exceptions listed. The exception relevant to our inquiry is the following: the minor may possess an alcoholic beverage “if the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.”12

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Phillips v. State
161 S.W.3d 511 (Court of Criminal Appeals of Texas, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
161 S.W.3d 511, 2005 Tex. Crim. App. LEXIS 701, 2005 WL 957274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-state-texcrimapp-2005.