Quinn, John Gerard v. State

Opinion

AFFIRM; and Opinion Filed May 17, 2013.

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

No. 05-12-00049-CR

JOHN GERARD QUINN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 429-81971-09

OPINION Before Justices Moseley, O’Neill, and Lewis Opinion by Justice Lewis Appellant John Gerard Quinn was charged with aggravated assault of a peace officer and

possession of cocaine in an amount less than one gram. The jury found him not guilty of the

assault, but guilty of the possession offense. The trial court assessed Quinn’s punishment at 180

days’ confinement, suspended, and he was placed on community supervision for two years and

ordered to pay a $500 fine. Quinn raises three appellate issues: he contends the trial court erred

in making its response to a jury question and in denying Quinn’s motion to suppress; he also

contends the evidence is insufficient to establish he knew the substance in his safe was

contraband. We affirm the trial court’s judgment.

Background

A SWAT team served a search warrant on Quinn’s home after he had gone to bed. The

warrant was issued after two informants told police that Quinn’s son, Brian, was manufacturing and selling drugs at the Quinn residence and that Brian kept a number of weapons in the house,

including an AK-47 rifle. Quinn awoke during the entrance of the SWAT team and grabbed his

handgun. One officer on the SWAT team testified he saw Quinn point the gun at him, and the

officer shot Quinn in the hand. The police found a number of guns and a bag containing less

than a gram of cocaine in two safes in Quinn’s bedroom. Quinn was charged with aggravated

assault of a peace officer and possession of cocaine; the jury found him not guilty of the assault

but guilty of the possession. The trial court assessed his punishment at two years of probation

and a $500 fine.

The Motion to Suppress

Quinn filed a motion to suppress the evidence acquired pursuant to the search warrant;

the trial court denied the motion. In this Court, Quinn challenges the sufficiency of the affidavit

that supported the warrant and the police’s no-knock entry into his home to execute the warrant.

We review the trial court’s ruling on a motion to suppress by viewing all of the evidence in the

light most favorable to the court’s ruling. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim.

App. 2012). We afford the trial court’s determination of historical facts almost total deference,

and we afford the prevailing party the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence. Id. Likewise, we give almost total

deference to the trial court’s ruling on any mixed questions of law and fact that depend on an

evaluation of credibility and demeanor. Id. We review legal questions—and any mixed

questions of law and fact that do not involve issues of credibility or demeanor—de novo. Id.

Sufficiency of the Affidavit

Quinn contends that the affidavit offered in support of the search warrant in this case

contained unreliable and false information and could not justify a finding of probable cause.

Before a magistrate can issue a search warrant, he must first find probable cause that a particular

–2– item will be found in a particular location. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim.

App. 2012). We review the four corners of the supporting affidavit to determine whether it

provides a substantial basis for issuing the warrant. Id. Probable cause exists if, given the

totality of the circumstances, there is a fair probability that contraband will be found at the

location identified. Id. “This is a flexible, nondemanding standard.” Id. We will uphold the

magistrate’s decision so long as he had a substantial basis for concluding that probable cause

existed. Id.

Quinn challenges the reliability of the two informants who brought the information to the

police. He stresses that neither had provided information to the police before. But both

informants were identified by name in the warrant affidavit, a fact that lends credibility to their

statements. See Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995) (when

probable cause affidavit specifies named informant as supplying information upon which

probable cause is based, affidavit is sufficient if it is sufficiently detailed to suggest direct

knowledge on informant’s part). Both informants admitted activity related to Brian’s drug

dealing but—at least at the time they assisted police—neither was offered leniency in return.

Both informants appeared to be motivated in part by Brian’s telling them that people had died

after taking his drugs. And both informants independently gave significant details about where

contraband could be found: they identified Brian’s house, specific rooms in the house, and

hiding places in those rooms. In effect, the informants corroborated each other. Both identified

the same list of drugs Brian was involved with; both told police about a storage unit where Brian

kept supplies; and both described pill presses of different sizes that Brian owned and used in his

drug trade. Finally, one of the informants cooperated with police in sending a text to Brian from

the informant’s phone, asking to buy Xanax. He received a texted reply from Brian’s number,

–3– agreeing to provide the drugs when Brian got home. We conclude the informants’ information

was sufficiently reliable for the magistrate to rely upon in determining probable cause.

Quinn also challenges the veracity of the affiant-officer, Detective Christopher Grollnek,

particularly concerning whether benefits were offered to the informants that would make their

information less reliable. Grollnek stated in his affidavit that both informants made statements

against their penal interest with no promise of leniency. Quinn elicited testimony, however, that

neither informant was ever convicted: one informant’s case was ultimately dropped, and the

second informant never had charges filed against him. Quinn charges that Grollnek’s statement

was false when made. But Grollnek testified at trial that, at the time his affidavit was made, his

statement was true; only afterwards did circumstances change for both informants. We give

almost total deference to the trial court’s determination on issues involving credibility and

demeanor. See Gonzales, 369 S.W.3d at 854. We cannot conclude the affidavit contained a

deliberate falsehood that would support voiding the search warrant.

We conclude the magistrate had adequate reliable information in Grollnek’s affidavit to

conclude, within a fair probability, that drugs and guns would be found in Quinn’s residence.

Thus, the police obtained a valid search warrant based on probable cause.

The No-Knock Entry

Quinn also contends evidence should have been suppressed because the police entered his

residence unannounced. The Fourth Amendment does not require the police to knock and

announce in all cases. Richards v. Wisconsin, 520 U.S. 385, 395 (1997). It is not necessary

when circumstances present a threat of physical violence or when there is reason to believe that

evidence would likely be destroyed if advance notice were given. Hudson v. Michigan, 547 U.S.

586, 589 (2006). When reviewing a no-knock issue, we ask whether police had a reasonable

suspicion under the particular circumstances that one of these grounds for failing to knock and

–4– announce exists. Id. at 590. The United States Supreme Court acknowledges that this

reasonable-suspicion showing is not high. Id. Nevertheless, the police are required to make that

showing whenever a defendant challenges the reasonableness of a no-knock entry. Richards,

520 U.S. at 394.

We conclude the State has made a satisfactory showing that the circumstances presented

a threat of physical violence in this case, based upon the informants’ statements that Brian kept a

number of guns in his home, including an AK-47. Unannounced entries have been upheld as

reasonable when the police had information there were guns on the premises to be searched. See,

e.g., Stokes v. State, 978 S.W.2d 674, 677 (Tex. App.—Eastland 1998, pet. ref’d) (testimony that

police had been informed marijuana and guns were present in house to be searched made no-

knock entry reasonable under circumstances); Klepper v. State, No. 05-02-01283-CR, 2003 WL

22663508 (Tex. App.—Dallas Nov. 12, 2003, pet. ref’d) (given confidential informant’s report

that house to be searched contained weapons, together with surveillance equipment observed by

police, police could have reasonably suspected threat to officers’ safety). Officers involved in

the planning, preparation, and execution of the operation testified they believed the operation

was high-risk because of the presence of guns on the premises. One officer testified the presence

of an AK-47 particularly concerned the team, because the officers’ body armor would not protect

them from its shots. We conclude the officers’ knowledge that guns, including the exceptionally

dangerous AK-47, were likely to be on the premises to be searched made the no-knock entry

reasonable under the existing circumstances.

However, even if we were persuaded the unannounced entry was not reasonable, we

would conclude the evidence seized from Quinn’s house should not have been suppressed.

Texas law provides that:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of –5– the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). But Texas courts have established that

evidence is not obtained in violation of a provision of law when there is no causal connection

between the illegal conduct and the acquisition of the evidence. Gonzales v. State, 67 S.W.3d

910, 912 (Tex. Crim. App. 2002); see also Pham v. State, 175 S.W.3d 767, 772–73 (Tex. Crim.

App. 2005) (causal connection between violation and obtaining evidence must be shown before

evidence is rendered inadmissible). The burden is on the moving party to produce evidence

demonstrating that causal connection. Pham, 175 S.W.3d at 774.

In this case the police were permitted to search the residence pursuant to a valid warrant.

Regardless of how they entered the house, they would have legally found the cocaine in Quinn’s

safe. Accordingly, there was no causal connection between the no-knock entry and the discovery

of the cocaine; the evidence would not be suppressed. 1

We overrule Quinn’s second issue.

Sufficiency of Evidence

In his third issue, Quinn contends there is insufficient evidence to support his conviction.

Quinn’s specific argument is that the evidence is insufficient to establish that he knew the

substance in his safe was contraband. To prove unlawful possession of a controlled substance,

the State must prove that: (1) the accused exercised control, management, or care over the

substance; and (2) the accused knew the matter possessed was contraband. Poindexter v. State,

153 S.W.3d 402, 405 (Tex. Crim. App. 2005). We determine whether the evidence is sufficient

to support a conviction by asking whether, after viewing the evidence in the light most favorable 1 Quinn equates this requirement of causal connection with the doctrine of inevitable discovery, and he correctly points out that the federal inevitable discovery doctrine does not apply to the Texas exclusionary rule. See State v. Daugherty, 931 S.W.2d 268, 273 (Tex. Crim. App. 1996) (“Article 38.23 does not contemplate an inevitable discovery exception.”). But the causal connection required by Gonzales and Pham is not the same as inevitable discovery. See State v. Callaghan, 222 S.W.3d 610, 615 and n.6 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (“[C]ourts and legal commentators have agreed the majority opinion in Hudson is about causation and not about the inevitable discovery doctrine.”).

–6– to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim. App. 2012).

In the absence of an admission by the accused, knowledge must be proven

circumstantially. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). “One’s

acts are generally reliable circumstantial evidence of one’s intent.” Laster v. State, 275 S.W.3d

512, 524 (Tex. Crim. App. 2009). The record indicates Quinn locked the cocaine in a safe in his

bedroom along with a loaded gun, a vial of testosterone, and his passport. Accordingly, the jury

could infer Quinn believed that the substance had some value to him and that he wanted it kept

safe from theft or loss or misuse. Brian testified he did not have the combination to his father’s

safe. Thus, the jury could also infer that Quinn intended to keep the substance private.

Brian testified his father did not use drugs, and the cocaine probably belonged to him or

to friends of his who had brought drugs to the house. However, jurors are the sole judges of the

credibility of the witnesses, and they may choose to believe or disbelieve any witness. Lancon v.

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Brian also testified that his father had

thrown him of the house for drug use once before. He related that his father would confront him

with drugs when he discovered them so that Brian would be forced to acknowledge he was using

them. Thus, he suggested, Quinn may have been holding drugs he found to confront Brian. But

this contention proves too much: Quinn would only confront Brian if he knew the bag contained

illegal drugs. 2

In the end the bag containing cocaine was in Quinn’s safe, and only he knew the

combination. The State was not required to prove the reason he held or hid the cocaine. He

clearly possessed it, and given that he must have put it in the locked location, the jury could infer

he knew what was in the bag. A rational juror could certainly have concluded Quinn knew what

2 Quinn asks us to create a “parental exception” to Texas law on possession. Such a creation is the job of the Legislature, not this Court.

–7– was in the bag was contraband. Accordingly, the evidence of knowledge is sufficient, and we

overrule Quinn’s third issue. 3

Response to Jury Question

In his first issue, Quinn complained that the trial court’s answer to a question from the

jury was an improper comment on the weight of the evidence and the defense’s theory of the

case. However, Quinn has acknowledged a mistake in his understanding of the record on this

issue. The jury sent this question to the judge:

In the 8th paragraph of cause 429-81971-09 it states:

A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

The Question: Does the possessor have to know the thing is illegal.

And, without objection from either party, the judge sent this answer:

You have all the law and the evidence in this case. Please continue your deliberations.

However, Quinn thought the judge had sent this answer to the above-quoted question instead:

In response to the jury note, you have all the law and the evidence in this case. A rereading of the closing arguments is not permitted. Please continue your deliberations.

In reality, this second answer was sent in response to the intervening jury question:

Can we get the closing arguments?

Because Quinn has acknowledged his confusion, we need not address the first issue. 4

3 At oral argument counsel for Quinn contended that, although the jury charge tracked the statute for possession of contraband, the trial court should have specifically instructed the jury that the defendant must know the substance he possesses is illegal. Quinn failed to raise or brief this issue on appeal, and it is not before us. 4 In his reply brief, Quinn acknowledges his initial mistake, but then says the court’s refusal to allow a rereading of closing arguments constituted error. Quinn may not use his reply brief to raise new issues. See Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.—Dallas 2006, pet. denied). Indeed, Quinn’s original brief conceded that “counsels’ closing statements are not reread after deliberations begin.”

–8– Conclusion

We have decided each of Quinn’s issues against him. Accordingly, we affirm the trial

court’s judgment.

/David Lewis/ DAVID LEWIS JUSTICE

Do Not Publish TEX. R. APP. P. 47

120049F.U05

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

JOHN GERARD QUINN, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-12-00049-CR V. Trial Court Cause No. 429-81971-09. Opinion delivered by Justice Lewis. THE STATE OF TEXAS, Appellee Justices Moseley and O’Neill participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 17th day of May, 2013.

–10–