State v. Iduarte

232 S.W.3d 133, 2007 WL 1228769

• Court: Court of Appeals of Texas
• Decided: July 12, 2007
• Docket: 2-06-179-CR
• Status: Published

Opinions

OPINION

TERRIE LIVINGSTON, Justice.

In this aggravated assault case, the State appeals the trial court’s order granting appellee’s motion to suppress. We reverse and remand.

Background Facts

Police officers Travis Eddleman and David DeLeon of the Fort Worth Police Department were dispatched to the Fossil Ridge Apartments in Fort Worth on November 22, 2001, based on a call reporting that a male and female were arguing and that gunshots had been fired. The officers arrived at the apartment building at approximately 3:19 a.m. and saw two males and a female arguing. The males were Jorge Iduarte, appellee, and Bacilio Leyva, appellee’s coworker, and the female was Yasamin Iduarte, appellee’s wife. Officer Eddleman drew his weapon, held it at his side, and covered Officer DeLeon while Officer DeLeon conducted a patdown search of the two males. Officer DeLeon had the two males get on their knees and hold their hands on top of their heads; Leyva complied immediately, but appellee took an aggressive fighting stance and had to be told several times before complying. Officer DeLeon testified that appellee was being detained for shooting a gun in a municipality.

The officers also determined that appel-lee was intoxicated. Specifically, appellee had a hard time staying balanced, his eyes were bloodshot, his speech was slurred, and the officers could smell alcohol on his breath. The officers believed that appel-lee posed a threat to himself or others due to his intoxication.

Yasamin was crying, upset, and screaming, and appellee was agitated and angry. Yasamin had several red marks around her neck and chest area, and she was having a hard time speaking. When questioned, Yasamin stated that she had been assaulted, but that she did not want to talk about it. Officer Eddleman then asked Yasamin if she knew anything about the gun shots. Yasamin looked at appellee, then told Officer Eddleman that she “was not going to talk about that.”

Next, Yasamin told Officer Eddleman that she wanted the keys to a truck parked at the apartment complex so she could leave. Officer Eddleman had Yasamin get into her car because she was cold.¹ According to Yasamin, there were two sets of keys to the pickup truck. When Officer Eddleman asked appellee about the keys, appellee gave one set to him and told him that the other set was upstairs. It was at this point that Officer Eddleman decided that he was going to arrest appellee for public intoxication.²

After being asked about the keys, appel-lee began to walk towards the apartment. When Officer Eddleman suggested, “[W]hy don’t we go get [the keys]?,” appel-lee stopped and said that there was no electricity. Officer Eddleman replied, “[LJuckily, I have my flashlight.” As ap-pellee went up the stairs, he began to run faster. Officer Eddleman followed him upstairs because he “felt [appellee] was possibly going to get a weapon.” By the time Officer Eddleman caught up to him, appel-lee was inside the apartment standing at the dining room table with his back to the door. Officer Eddleman testified that he entered the apartment at that point because he did not want to let appellee out of his sight due to the nature of the call, i.e. shots being fired, and he was unsure whether there were any other people in the apartment. When Officer Eddleman shined his flashlight on appellee, appellee reached with his right hand out of Officer Eddleman’s view, held up a board used to hang keys on, and stated that he did not have Yasamin’s other keys after all. They both left the apartment without incident.

However, after they left the apartment, Officer Eddleman saw an empty gun holster and empty gun case outside the front door and said, “I thought you said you didn’t have a gun.” Appellee replied, “I don’t,” and leaned down to open the gun case. Officer Eddleman told appellee not to open the case, but appellee told Officer Eddleman that he could open it. Officer Eddleman opened it and saw that it was empty. Officer Eddleman again asked ap-pellee where the gun was, and appellee became agitated. At this point, Officer Eddleman told appellee he was arresting him for public intoxication. Appellee began clenching his fists. Officer Eddleman told appellee, “[Y]ou don’t want to fight; I’m not going to lose.” Appellee shouted, “You want the gun? I will show you the gun.”

Appellee then turned and ran back into the apartment towards the dining room table. Officer Eddleman shined the flashlight on appellee and followed him back inside the apartment. When Officer Ed-dleman was within several feet of appellee, he saw a gun in appellee’s hands and heard a hammer cocking back. Appellee turned toward Officer Eddleman, who was now standing a few feet away, and, according to Officer Eddleman, pointed the gun at his face. There is disputed testimony as to whether appellee picked up the gun and pointed it directly at Officer Eddleman or picked up the gun and stated that he was going to shoot himself. Regardless, Officer Eddleman dropped to his right knee and fired twice, striking appellee two times.

Before appellee’s aggravated assault trial, appellee filed a motion to suppress, arguing that his constitutional rights were violated because there was no probable cause to enter his apartment to obtain the keys. After a hearing, the trial court held that the entry into appellee’s apartment was not for a community caretaking function, was not due to exigent circumstances, and was not authorized by appellee’s consent, but instead was a mere acquiescence to a showing of police authority. Therefore, the trial court concluded that the officer’s first entry into appellee’s apartment to obtain the car keys was not a valid warrantless entry. The trial court also concluded that the officer’s second entry circumvented the law and the constitution by creating his own exigent circumstances. Consequently, the trial court granted ap-pellee’s motion to suppress the evidence of his assault on Officer Eddleman, and the State filed this appeal. See Tex.Code Crim. PROC. Ann. art. 44.01(a)(5) (Vernon 2006).

Points on Appeal

In its first point, the State challenges the trial court’s granting of the motion to suppress on the basis that an independent crime had occurred after the alleged violation of appellee’s constitutional rights. In its second point, the State contends that the trial court improperly held that a constitutional violation occurred when Officer Eddleman first followed appellee into the apartment. The State asserts that Officer Eddleman could lawfully stay with appel-lee at all times once he determined that there was probable cause to arrest appel-lee.

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.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given them testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact, even if the trial court’s determination of those facts was not based on an evaluation of credibility and demean- or, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex.App.-Fort Worth 2004, pet. ref'd). But when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson, 68 S.W.3d at 652-53.

Stated another way, when reviewing the trial court’s ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those fact findings. Id. at 818-19. We then review the trial court’s legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 819.

We must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case, even if the trial court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004); Ross, 32 S.W.3d at 856; Romero, 800 S.W.2d at 543.

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492.

Whether a search is reasonable is a question of law that we review de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004). Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a balancing of the public interest and the individual’s right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the “specifically defined and well-established” exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003); see Best, 118 S.W.3d at 862.

Discussion

In its first point, the State contends that the trial court erred by suppressing evidence that appellee committed aggravated assault by pointing a pistol at Officer Ed-dleman because this was a “new crime” that was committed after Officer Eddle-man allegedly violated appellee’s constitutional rights. Here, the trial court made extensive and detailed written findings of fact which we take as true unless unsupported by the evidence. Kelly, 204 S.W.3d at 818. Because the first issue raised by the State is a legal issue, we will take all these findings as true and only review the trial court’s conclusions of law de novo. Id.

When Officer Eddleman and appellee left the apartment after looking for the truck keys, Officer Eddleman saw an empty gun holster and gun case on the exterior staircase. Officer Eddleman stated, “I thought you said you didn’t have a gun,” and appellee responded that he did not have one and leaned down to open the case. Officer Eddleman told him not to, and appellee then said that the officer could; the case was empty. Officer Eddle-man next asked appellee where the gun was, and appellee became agitated.

At that point, Officer Eddleman told appellee that he was arresting him for public intoxication, and appellee clenched his fists. This drew Officer DeLeon’s attention, and he began walking up the steps. When Officer Eddleman warned appellee that he should not attempt to fight, appellee shouted, “You want the gun? I will show you the gun.” Appellee then turned and ran back into the apartment towards the dining room table, and Officer Eddleman followed him inside, pointing his flashlight at appellee.³ When Officer Eddleman was within a few feet of appellee, appellee raised the .357 revolver, cocked the hammer, and either pointed it at Officer Eddleman’s face or stated that he was going to shoot himself. Officer Ed-dleman dropped to one knee and shot ap-pellee two times.

At the suppression hearing, the trial court concluded that the officers had probable cause to arrest appellee for public intoxication. However, according to the trial court, by not arresting appellee before entering the apartment, “the officers were trying to create a circumstance where they could create exigent circumstances.” Because of this initial illegal entry, the trial court suppressed all of the testimony of appellee’s alleged aggravated assault on Officer Eddleman.

Under the Texas exclusionary rule, evidence obtained in violation of state or federal law may not be admitted against the accused in a criminal case. Tex.Code CRiM. PROC. Ann. art. 38.23 (Vernon 2005). The phrase “obtained in violation of the law” contemplates that a crime has been committed, that evidence of a crime exists, and that the officer violated the law by attempting to obtain evidence of the previously committed crime. State v. Mayorga, 901 S.W.2d 943, 946 (Tex.Crim.App.1995) (plurality opinion)⁴; Donoho v. State, 39 S.W.3d 324, 327 (Tex.App.-Fort Worth 2001, pet. ref'd); Cooper v. State, 956 S.W.2d 95, 98 (Tex.App.-Tyler 1997, pet. ref'd). Thus, the evidence that must be excluded under article 38.23 is evidence of the crime that was committed before the officer’s unlawful search or seizure, not evidence of a crime that was committed thereafter. See Mayorga, 901 S.W.2d at 946; Donoho, 39 S.W.3d at 327 (holding that because appellant committed the aggravated assault after his warrantless arrest, evidence of the assault was not obtained in “violation of the law”); Cooper, 956 S.W.2d at 98 (holding that the evidence of aggravated assault on a peace officer did not exist at the time the lawful or unlawful arrest was attempted, and that the alleged illegality of the arrest was irrelevant to the crime of aggravated assault). Article 38.23 does not require the exclusion of evidence of a crime that occurred after the officer’s unlawful search or seizure. See Martinez, 91 S.W.3d at 340 (“That theory is not the law.”).

Here, giving complete deference to the trial court’s credibility determinations and findings of fact, it is clear that appellee’s alleged aggravated assault against Officer Eddleman took place after the officer’s alleged improper conduct had occurred. Indeed, Officer Eddleman had already left appellee’s apartment when he noticed the empty gun case on the landing outside the apartment and asked appellee about it. The record is unclear when, if ever, Officer Eddleman first asked appel-lee about the gun, but when the officer continued to question him about it, appel-lee became visibly angry. Then, when Officer Eddleman told appellee that he was under arrest for public intoxication, appel-lee clenched his fists and shouted, “You want the gun? I will show you the gun.” This heated exchange, combined with the prior call Officer Eddleman received regarding the argument between the male and female and the gunshots being fired, appellee’s aggression when the officers initially arrived at the apartment complex, Yasamin’s admission that she had been assaulted and her non-verbal responses to questions about the gunshots, coupled with the presence of the empty gun case outside appellee’s apartment, gave Officer Eddle-man reasonable suspicion to believe that appellee had a gun, had likely fired the missing gun, and now had gone inside to retrieve it.⁵ See Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005) (holding that reasonable suspicion exists if the officer has specific, articulable facts which, when combined with rational inference from those facts, would lead him to reasonably-concluded that a particular person has engaged in criminal activity). This reasonable suspicion of criminal activity, coupled with the need for officer safety, gave Officer Eddleman justification to follow appel-lee into the unlighted apartment when he ran inside. See Cardenas v. State, 115 S.W.3d 54, 61-62 (Tex.App.-San Antonio 2003, no pet.) (holding that an officer may follow a suspect when the officer can articulate reasons why the he must do so for officer safety).

Additionally, appellee ran away from Officer Eddleman and into the unlighted apartment after Officer Eddleman told him that he was arresting him for public intoxication. Officer Eddleman certainly had the right, if not the duty, to follow appellee back into the apartment to apprehend him.⁶ See Tex.Code Crim. Proc. Ann. art. 15.24 (Vernon 2005); Tex. Penal Code Ann. § 9.51 (Vernon 2003); Manzi v. State, 56 S.W.3d 710, 717 (Tex.App.-Houston [14th Dist.] 2001), aff'd, 88 S.W.3d 240 (Tex.Crim.App.2002).

Thus, even if Officer Eddleman’s first entry into the apartment was illegal, his second entry was legal, and evidence of the alleged assault that occurred after the unlawful entry was not obtained in violation of the law.⁷ See Donoho, 39 S.W.3d at 327; Cooper, 956 S.W.2d at 98. Because evidence of appellee’s aggravated assault was a separate and new crime distinct from the alleged unlawful entry, the testimony regarding the assault should not be suppressed under the exclusionary rule, and the trial court erred by excluding it. See Mayorga, 901 S.W.2d at 946; Donoho, 39 S.W.3d at 327; Cooper, 956 S.W.2d at 98. Accordingly, we sustain the State’s first point.

Because our ruling regarding the State’s first point disposes of the appeal, we do not reach the State’s second point. See Tex.R.App. P. 47.1 (providing that appellate courts need only address issues that are “necessary to final disposition of the appeal”); Freeman v. State, 985 S.W.2d 588, 590 (Tex.App.-Beaumont 1999, pet. ref'd) (same).

Conclusion

Having sustained the State’s first point, we reverse the trial court’s order granting the motion to suppress and remand the case to the trial court for further proceedings consistent with this opinion.

DAUPHINOT, J. filed a dissenting opinion.

1 . There were two vehicles at the scene. Yasa-min was sitting in her own car while Officer Eddleman went to get the keys for the pickup truck that was also at the apartment complex.

2 . There is nothing in the record indicating that, at this point, Officer Eddleman informed appellee that he was under arrest.

3 . Although the trial court found that Officer Eddleman’s credibility was lacking, no evidence or testimony presented at the suppression hearing contradicted his version of the incident from when he emerged from the apartment the first time until he stepped into appellee’s apartment the second time.

4 . Although Mayorga is a plurality opinion and therefore is not binding precedent, the court of criminal appeals has cited it with approval and stated that it may be cited for its reasoning. See Martinez v. State, 91 S.W.3d 331, 340 & nn. 34-35 (Tex.Crim.App.2002).

5 . The dissent mistakenly asserts that we have substituted our own findings of fact and determinations of credibility for those of the trial court. On the contrary, the findings of fact made by the trial court at the suppression hearing were largely based on uncontested testimony. The only significant dispute still unanswered is whether appellee pointed the gun at Officer Eddleman or at himself, and that is an issue that we leave to the fact finders’ determination at the trial on the merits. Despite the dissent’s contentions, we have accepted the trial court’s finding of fact that Officer Eddleman was not a credible witness. However, we do not accept the trial court’s conclusion of law that Officer Eddie-man’s second entry into the apartment was illegal.

6 . The dissent also claims that Officer Eddle-man created an exigent circumstance to enter appellee’s apartment. The dissent claims that Officer Eddleman “told Appellee to go upstairs to his apartment....” See Dissenting Op. at 141. However, the reporter’s record and the trial court’s findings of fact do not state this; the record and findings of fact show that when Officer Eddleman asked appellant about the second set of keys, appellant unilaterally stood up and began walking back to the apartment. The dissent also completely ignores Officer Eddleman’s uncontroverted sighting of the empty gun case and appellee’s disturbing reactions after the initial alleged illegal search had concluded, when the two men were out on the landing.

7 . The dissent points out the discrepancies between Officer Eddleman’s and Officer De-Leon’s version of events. These discrepancies, while relevant when considering Officer Eddleman’s credibility, do not create a factual dispute for this suppression issue. Indeed, the officers’ testimonies do not conflict over either of Officer Eddleman’s two entries into the apartment. Instead, they conflict on whether or not the actual alleged assault occurred, and the conflict on that issue should be reconciled at the trial on the merits.