Reginald Doney Thompson v. State

• Court: Court of Appeals of Texas
• Decided: December 18, 2014
• Docket: 05-14-00141-CR
• Status: Published

Opinion

AFFIRMED; Opinion Filed December 15, 2014.

S Court of Appeals In The

Fifth District of Texas at Dallas No. 05-14-00139-CR No. 05-14-00140-CR No. 05-14-00141-CR No. 05-14–00142-CR No. 05-14-00143-CR REGINALD DONEY THOMPSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause Nos. F07-24608-L, F11-61783-L, F11-61784-L, F13-57590-L, and F13-57591-L

MEMORANDUM OPINION Before Justices Bridges, Lang, and Evans Opinion by Justice Evans Reginald Doney Thompson appeals the trial court’s revocation of his community

supervision and adjudication of guilt for aggravated robbery in cause number F07-24608-L,

unlawful possession of a firearm by a felon in cause number F11-61783-L, and possession of less

than one gram of cocaine in cause number F11-61784-L. 1 After entering into negotiated plea

agreements in cause numbers F13-57590-L (unlawful possession of firearm by a felon) and F13-

57591-L (possession of more than one gram, but less than four grams of cocaine) 2, he also

1 Appellate cause numbers 05-14-00139-CR, 05-14-00140-CR, and 05-14-00141 respectively. 2 Appellate cause numbers 05-14-00142-CR and 05-14-00143-CR respectively. appeals the trial court’s denial of his motion to suppress. 3 In one issue, appellant challenges the

trial court’s jurisdiction in all five cases because they were never transferred to its docket. In

another issue, he contends trial court abused its discretion in denying his motion to suppress.

Concluding both issues lack merit, we affirm the trial court’s judgments in all five cases.

BACKGROUND

Appellant was on deferred adjudication community supervision for three prior offenses

when he was arrested on July 3, 2013 and charged with unlawful possession of a firearm by a

felon and possession of cocaine. The State moved to proceed to adjudicate guilt in the three

community supervision cases based on the 2013 offenses and appellant’s failure to comply with

additional conditions of his community supervision. Appellant pleaded not true to the State’s

allegations. Appellant also moved to suppress the evidence obtained in the warrantless search

leading to his arrest and the 2013 charges. After a hearing, the trial court denied the motion to

suppress and found appellant guilty in three deferred adjudication cases and assessed punishment

at ten years’ imprisonment for each case. Appellant pleaded guilty to the 2013 offenses and

pursuant to a negotiated plea agreement, the trial court sentenced appellant to six years’

imprisonment for each case.

ANALYSIS

I. Docket Transfer

We first address the issue in which appellant argues the Criminal District Court No. 5 of

Dallas County, Texas lacked jurisdiction in all five cases because the indictments were presented

to other Dallas County Criminal District or District Courts and not properly transferred to the

docket of the Criminal District Court No. 5. A defendant has the right to be tried in a court with

jurisdiction over him and the subject-matter of the case. See Saldano v. State, 70 S.W.3d 873,

3 The trial court certified appellant’s right to appeal the denial of his motion to suppress in these cases.

–2– 888 (Tex. Crim. App. 2002). Jurisdiction over felony cases such as appellant’s lies in the district

or criminal district court where the indictment is first filed. See TEX. CODE CRIM. PROC. ANN.

arts. 4.05, 4.16 (West 2005). No transfer order, however, is required where one court empanels

the grand jury that returns the indictment in the case, but the indictment is filed in another court.

See Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d). The record

here shows that the indictment in cause number F-07-24608 was presented to the 204th District

Court; the indictment in cause number F11-61783 was presented to Criminal District Court No.

3; the indictment in cause number F11-61784 was presented to the 363rd District Court; and the

indictments in cause numbers F13-57590 and F13-57591 were presented to Criminal District

Court No. 2. All five indictments, however, were filed in Criminal District Court No. 5 and there

is nothing in the record to indicate the cases were originally filed in a court other than the

Criminal District Court No. 5. Accordingly, no transfer order was needed to confer Criminal

District Court No. 5 with jurisdiction over these cases. See id.

Moreover, Texas courts have held that even when such a transfer order is required, its

absence from the record is a procedural error rather than jurisdictional error. See Lemasurier v.

State, 91 S.W.3d 897, 899 (Tex. App.—Fort Worth 2002, pet ref’d); Mills v. State, 742 S.W.2d

831, 834–35 (Tex. App.—Dallas 1987, no writ.). The absence of a transfer order merely

subjects the transferee court to a timely plea to the jurisdiction; it does not render actions of the

transferee court void. Lemasurier, 91 S.W.3d at 899; Mills, 742 S.W.2d at 835. If no timely

plea to the jurisdiction is filed in the trial court, appellant waives the right to complain about the

lack of a transfer order on appeal. See Mills, 742 S.W.2d at 835. Appellant acknowledges that

Mills and other cases directly contradict his position that the lack of transfer order constitutes

jurisdictional error that may be presented for the first time on appeal. The only reason appellant

presents for departing from long-standing precedent is his contention that these cases “simply

–3– cite to their antecedents without any Constitutional or statutory authority for the proposition that

a jurisdictional defect can be cured by a procedural default.” We are not persuaded by appellant’s

argument. Because appellant did not file a plea to the jurisdiction in the trial court, he has

waived his complaint about the lack of a transfer order. See Lemasurier, 91 S.W.3d at 899;

Mills, 742 S.W.2d at 835. We therefore resolve this issue against appellant.

II. Motion to Suppress

In cause numbers F13-57590 (unlawful possession of firearm by a felon) and F13-57591

(possession of more than one gram, but less than four grams of cocaine) appellant raises an issue

complaining of the trial court’s denial of his motion to suppress. Specifically, appellant argues

the trial court erred by finding the officers had a reasonable belief there might be someone inside

the apartment needing aid, thereby justifying the warrantless entry into the apartment.

In its written findings of fact, the trial court found the following. On July 3, 2013, Dallas

police officers received a dispatch regarding shots fired at apartment 518 at 520 West Page

Avenue in Dallas, Texas. The caller told dispatch a heavy-set black male with braided hair

carrying a shotgun or pump style gun had entered his apartment, unit 518. The caller also

reported hearing gunshots fired inside the apartment.

Officers went to the apartment complex and knocked on the door of unit 518. No one

answered immediately. Shortly after their arrival, officers encountered a woman approaching the

door to unit 518 who indicated she knew the occupant. She also knocked on the door and

attempted to get the occupant to answer. After a couple of minutes, a heavy-set black male with

braided hair, later identified as appellant, opened the door. He matched the caller’s description

and stood in the doorway blocking the officer’s view into the apartment. One of the officers

advised appellant why they were and asked to enter the apartment. When appellant attempted to

close the door, officers pushed it open and entered the apartment. One of the officers testified

–4– that they entered the apartment to ensure no one was injured, to determine if anyone was in need

of assistance, to investigate or prevent a dangerous situation, or to protect someone who might be

in the apartment. After entering the apartment, officers observed a handgun, marijuana, and

cocaine in plain view.

The trial court found that, based on the facts known at the time, the officers reasonably

believed someone inside the residence could be in need of immediate aid and they needed to act

to preserve life or avoid serious injury. The trial court concluded the warrantless search was

justified under the both the emergency doctrine and exigent circumstances doctrine.

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review where we afford almost total deference to the trial court’s findings of historical fact while

applying a de novo review to the trial court’s application of the law of search and seizure to the

facts. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We view the evidence in

the light most favorable to the trial court’s ruling, so long as its express or implied findings are

supported by the record. Id. The trial court’s ruling will be upheld if it is “reasonably supported

by the record and is correct on any theory of law applicable to the case.” Id. (quoting State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

A warrantless search of a premises is unreasonable under the Fourth Amendment to the

United States Constitution unless it falls within one of the recognized exceptions to the warrant

requirement. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). One of these

exceptions is the emergency doctrine. Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App.

2003). This exception applies when the police act in their community caretaking role and is

limited to the caretaking functions of protecting or preserving life or avoiding serious injury. Id.

at 860–61. A warrantless entry and search is justified under the emergency doctrine when the

officers reasonably believe a person within is in need of immediate aid. Id. at 860. When

–5– assessing whether a warrantless search is justified under the emergency doctrine, we apply an

objective standard based on the police officers’ conduct and the facts and circumstances known

to the officers at the time of the search. Id. at 862. If the doctrine applies, police may seize

evidence in plain view during the course of their legitimate emergency activities. Id.

Based on the record before us, we conclude the emergency doctrine justified the

warrantless entry into the apartment. Officers testified that they went to the apartment where

they encountered appellant in response to a 911 call stating a man with a gun entered that

apartment and that the caller heard shots fired inside that apartment. When the officers first

knocked on the door, no one responded. Appellant answered the door a couple of minutes later

and matched the description of the man with the gun provided by the 911 caller. When the

officers explained why they were there and asked to enter the apartment to make sure no one was

injured or shot inside, appellant tried to shut the door. The officers then pushed the door open

and proceeded to check the apartment to make sure no one was injured or shot inside or needed

assistance. It was during this check that the officers found the gun and drugs in plain view. One

testifying officer continued to emphasize the purpose in entering the apartment was to make sure

no one was injured or needed assistance based on the 911 report and appellant’s behavior of not

answering the door when the police first knocked and then attempted to the shut the door when

he asked to enter. Based on these facts, an officer could have reasonably believed entering the

apartment was necessary to protect or preserve life or avoid serious injury.

Reviewing the totality of the circumstances in the light most favorable to the support the

trial court’s judgment, we conclude the trial court did not abuse its discretion in determining the

emergency doctrine applied to these facts. Our conclusion that the emergency doctrine supports

the trial court’s ruling make is unnecessary to address whether the trial court’s denial of the

–6– motion to suppress can also be upheld based on the exigent circumstances doctrine. We resolve

this issue against appellant.

We affirm the trial court’s judgments.

/David Evans/ DAVID EVANS JUSTICE

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

140139F.U05

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

REGINALD DONEY THOMPSON, On Appeal from the Criminal District Court Appellant No. 5, Dallas County, Texas Trial Court Cause No. F07-24608-L No. 05-14-00139-CR V. Opinion delivered by Justice Evans, Justices Bridges and Lang participating. THE STATE OF TEXAS, Appellee

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

Judgment entered this 15th day of December, 2014.

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

REGINALD DONEY THOMPSON, On Appeal from the Criminal District Court Appellant No. 5, Dallas County, Texas Trial Court Cause No. F11-61783-L No. 05-14-00140-CR V. Opinion delivered by Justice Evans, Justices Bridges and Lang participating. THE STATE OF TEXAS, Appellee

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

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

REGINALD DONEY THOMPSON, On Appeal from the Criminal District Court Appellant No. 5, Dallas County, Texas Trial Court Cause No. F11-61784-L No. 05-14-00141-CR V. Opinion delivered by Justice Evans, Justices Bridges and Lang participating. THE STATE OF TEXAS, Appellee

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

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

REGINALD DONEY THOMPSON, On Appeal from the Criminal District Court Appellant No. 5, Dallas County, Texas Trial Court Cause No. F13-57590-L No. 05-14-00142-CR V. Opinion delivered by Justice Evans, Justices Bridges and Lang participating. THE STATE OF TEXAS, Appellee

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

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

REGINALD DONEY THOMPSON, On Appeal from the Criminal District Court Appellant No. 5, Dallas County, Texas Trial Court Cause No. F13-57591-L No. 05-14-00143-CR V. Opinion delivered by Justice Evans, Justices Bridges and Lang participating. THE STATE OF TEXAS, Appellee

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

–12–