COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00393-CR
STEPHEN LEONARD SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION1
Although the indictment was amended to charge Appellant Stephen
Leonard Smith with possession of anhydrous ammonia with intent to
manufacture a controlled substance, specifically, methamphetamine, when he
entered his guilty plea, the trial court instructed the jury to convict him of and to
assess his punishment for ―Possession or Transportation of Certain Chemicals
with Intent to Manufacture a Controlled Substance,‖ enhanced by two prior
1 See Tex. R. App. P. 47.4. convictions. [Emphasis added.] The trial court also instructed the jury on the law
of parties. The jury convicted Appellant and assessed his punishment at
seventy-five years‘ confinement. The trial court sentenced him accordingly. In
two issues, Appellant challenges the trial court‘s denial of his motion to suppress
and contends that the trial court abused its discretion by overruling his objection
to a sitting juror. Because the trial court committed no reversible error, we affirm
the trial court‘s judgment.
I. Limited Right of Appeal
The record shows that Appellant pled guilty in exchange for the State‘s
agreement to abandon Count One of its indictment, which alleged that he had
manufactured methamphetamine. Consequently, despite the trial court‘s
incorrect certification that this is not a plea-bargained case and that Appellant
has the right of appeal, we hold that the case is a ―charge-bargained‖ case, that
the written motion to suppress was filed and ruled on before trial, and that
therefore we may entertain Appellant‘s suppression issue.2
The State appears to agree with this holding but argues in the alternative
that if we do not hold this case to be a charge-bargained case, then Appellant
has forfeited his suppression issue by pleading guilty before the jury. Although
2 See Tex. R. App. P. 25.2(a)(2); Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009) (applying Shankle analysis to allow appeal of ruling on motion to suppress); Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (holding that charge bargain that ―effectively puts a cap on punishment‖ is a bargain governed by rule 25.2(a)(2)).
2 we do not need to reach the State‘s alternative argument because of our holding
that this is a charge-bargained case, we note for the sake of clarity that the
Texas Court of Criminal Appeals has made clear in Kennedy, delivered later than
all cases relied on by the State in its alternative argument, that if a charge
bargain is present, rule 25.2 controls over the line of cases governing guilty
pleas.3
The absence of evidence of the trial court‘s granting Appellant permission
to appeal, however, indicates that Appellant has no right to raise a jury selection
issue on appeal; we therefore may not entertain it.4 We consequently dismiss his
second issue.
II. Motion to Suppress
In his first issue, Appellant argues that the trial court erred by not
suppressing the evidence seized in his apartment pursuant to a search warrant
when the police first entered his apartment without a warrant, invitation, or
consent and under exigent circumstances created by the police. The State
argues that Appellant did not preserve this argument. We disagree.
Before entering his guilty plea, Appellant filed a motion to suppress any
and all tangible evidence seized by law enforcement officers in connection with
the investigation of the case and all evidence relating to the arrest, arguing that
3 Kennedy, 297 S.W.3d at 341–42. 4 See Tex. R. App. P. 25.2(a)(2); Shankle, 119 S.W.3d at 814.
3 the search and seizure of his person and the evidence violated his rights under
the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution, Article I, sections nine, ten, and nineteen of the Texas Constitution,
and article 38.23 of the code of criminal procedure. The bases of his motion
were that (1) the supporting affidavit was improperly and illegally executed; (2)
the supporting affidavit does not reflect sufficient probable cause because it lacks
sufficient underlying circumstances to permit the conclusion that the alleged
contraband was at the claimed location and fatally fails to state sufficient
underlying circumstances to establish the affiant‘s credibility; (3) the supporting
affidavit does not show sufficient probable cause because the issuing magistrate
did not have a substantial basis for concluding that the alleged contraband would
be found in a particular place; and (4) the police began the search and seizure
before the warrant was issued and without Appellant‘s consent. At the
suppression hearing, Appellant‘s trial counsel distinctively argued that the search
began at 3:00 a.m., but the warrant was not signed until 4:50 a.m. Absent
consent, only exigent circumstances would have allowed such a warrantless
search and seizure under the facts as portrayed by Appellant,5 and it would have
been the State‘s burden to prove any exigency.6 Consequently, Appellant‘s
5 See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007); Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). 6 See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797 (1990); Hubert v. State, 312 S.W.3d 554, 561–62 (Tex. Crim. App. 2010).
4 argument on appeal that the State created exigent circumstances, that is, that no
valid exigency existed to support the alleged warrantless search, is not an
argument distinctive from his argument below but rather the same argument; he
merely anticipates the State‘s argument that exigent circumstances justified the
police‘s warrantless entry into the home, an argument that the State in fact
makes. Because we hold that Appellant‘s issue on appeal is merely a more
refined statement of his argument in his motion to suppress and hearing thereof,
we shall address it.
We review a trial court‘s ruling on a motion to suppress evidence under a
bifurcated standard of review.7 In reviewing the trial court‘s decision, we do not
engage in our own factual review.8 The trial judge is the sole trier of fact and
judge of the credibility of the witnesses and the weight to be given their
testimony.9 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 demeanor, and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility
7 Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 8 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.). 9 Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).
5 and demeanor.10 But when application-of-law-to-fact questions do not turn on
the credibility and demeanor of the witnesses, we review the trial court‘s rulings
on those questions de novo.11
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.12 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.13 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.14
In determining whether a trial court‘s decision is supported by the record,
we generally consider only evidence adduced at the suppression hearing
because the ruling was based on it rather than evidence introduced later. 15 But
10 Amador, 221 S.W.3d at 673; 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). 11 Amador, 221 S.W.3d at 673; Estrada, 154 S.W.3d at 607; Johnson, 68 S.W.3d at 652–53. 12 Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). 13 Kelly, 204 S.W.3d at 818–19. 14 Id. at 818. 15 See Gutierrez, 221 S.W.3d at 687; Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S. 1043 (1996).
6 this general rule is inapplicable when the parties consensually relitigated the
suppression issue during trial on the merits.16 If the State raised the issue at trial
either without objection or with subsequent participation in the inquiry by the
defense, the defendant is deemed to have elected to re-open the evidence, and
we may consider the relevant trial testimony in our review.17
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.18
The Fourth Amendment protects against unreasonable searches and
seizures by government officials.19 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.20 A defendant
satisfies this burden by establishing that a search or seizure occurred without a
warrant.21 Once the defendant has made this showing, the burden of proof shifts
16 Gutierrez, 221 S.W.3d at 687; Rachal, 917 S.W.2d at 809. 17 Rachal, 917 S.W.2d at 809. 18 State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004). 19 U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. 20 Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009). 21 Amador, 221 S.W.3d at 672.
7 to the State, which is then required to establish that the search or seizure was
conducted pursuant to a warrant or was reasonable.22
Whether a search is reasonable is a question of law that we review
de novo.23 Reasonableness is measured by examining the totality of the
circumstances.24 It requires a balancing of the public interest and the individual‘s
right to be free from arbitrary detentions and intrusions.25 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.26
In assessing the sufficiency of an affidavit for an arrest or a search
warrant, the reviewing court is limited to the four corners of the affidavit. 27 The
reviewing court should interpret the affidavit in a common sense and realistic
22 Id. at 672–73; 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). 23 Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). 24 Id. at 63. 25 Id. 26 McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004 (2003); see Best, 118 S.W.3d at 862. 27 Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921 (1993).
8 manner, recognizing that the magistrate was permitted to draw reasonable
inferences.28
Unconstitutional portions of a search warrant do not necessarily invalidate
the entire warrant or taint all of the evidence seized pursuant to the warrant.29 If
only certain portions of a search warrant are invalid, only the evidence gathered
pursuant to the offending portions is tainted.30
In the affidavit in support of the search and arrest warrant leading to
Appellant‘s arrest, Wichita Falls Police Officer Karen Wade charged that
Appellant and others were manufacturing methamphetamine inside apartment
10A at 5232 Professional Drive. She stated that on March 12, 2008, Wichita
Falls police officers Tony Ozuna and Charles Roberts were informed by tactical
officers about a chemical odor coming from an apartment in the area of 5232
Professional Drive and that upon investigation, the officers were able to ―narrow
the smell to be emitting from apartment 10 A.‖ The officers put the apartment
under surveillance and saw a white male twice exit the apartment and put items
in a trash dumpster. The officers decided to investigate further by conducting a
―knock and talk‖ at the apartment. When their knock was answered, the officers
identified themselves, and a male suspect, later identified as Charles Daniels,
28 Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006). 29 Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996). 30 Id.
9 attempted to flee. He was detained on the balcony outside the apartment with
the assistance of several officers and the use of a taser.
Roberts did not testify at the hearing on the motion to suppress. Ozuna
did testify at the hearing. He stated that in the early morning hours of March 12,
2008, while out on patrol, he drove through the Highland Oaks apartment
complex. He had the windows down on the patrol car, and as he drove past
building 5232, he could smell ether and ammonia. From his training as a
certified clandestine lab investigator, he concluded that someone in the area
―was cooking meth.‖ He determined that the smell was coming from the air vent
of apartment 10A. Based on that information, he and Roberts decided to set up
surveillance on the apartment. Ozuna saw an individual come out of the
apartment twice, walk over to a trash dumpster, and throw a white trash bag into
the dumpster. After over an hour had passed, the officers decided to ―do a
knock-and-talk‖ with the apartment‘s residents, that is, knock on the door, identify
themselves as officers, and notify the occupants of ―the reason [the officers were]
there.‖ While standing at the front door, Ozuna could smell the odor of ether and
ammonia coming from the door.
Ozuna testified at the hearing that when he and the other officers went to
the door for a ―knock and talk,‖ Daniels, one of the men inside the apartment, ran
and briefly struggled with the ―several‖ officers who were trying to ―subdue‖ him
without a warrant. Ozuna testified that Roberts went into the apartment to secure
the evidence and for officer safety. Similarly, at trial, Ozuna testified that when
10 Daniels ran out of the apartment, Roberts ―instinctively‖ entered the apartment,
yelling, ―Police!‖ He entered with his weapon drawn, pointed the weapon at a
male and female inside the living room of the apartment, and ordered them to get
on the floor.
Roberts testified at trial that he ―went ahead and entered to—to first, clear
the apartment for officers‘ safety. Make sure that there was no one inside going
to hurt us.‖ He also implied that he needed to secure the occupants and prevent
the destruction of evidence. He testified that he also entered the apartment to
determine if there were any children inside, to get everybody out, and to secure
everything. While Roberts was ―clearing the apartment,‖ he discovered Appellant
in the back bedroom, sitting on the side of the bed. Roberts ordered Appellant to
get on the floor, and Appellant complied. Roberts then began to handcuff
everyone in the apartment.
This ―knock and talk‖ occurred at approximately 3:00 a.m. After the
officers entered, and before they secured the warrant, they discovered that no
one was cooking methamphetamine inside the apartment as they had originally
supposed. Nor were any drugs found on Appellant‘s person. But after the
officers read the handcuffed persons a Miranda warning, one of them, Teresa
Reid, stated that there was methamphetamine inside the residence.
After everyone was handcuffed and the premises were secured, the
officers on the scene called narcotics officers to secure a warrant.
11 Wade testified that on the morning of March 12, she responded to a call
from Sergeant Robinett reporting a meth lab. She found two plastic bags in the
dumpster, one containing an HCL generator and the other containing lithium
batteries, filters, and a can of starter fluid. After speaking with Reid, the person
in the apartment who told the police that methamphetamine was in the
apartment, Wade typed up an affidavit and obtained a search warrant. She then
returned to the apartment, and the officers conducted a search. The officers
found a package of lithium batteries, baggies of powdered methamphetamine,
and a jar of liquid methamphetamine. They also found mail with Appellant‘s
name on it and a fire extinguisher that tested positive for anhydrous ammonia.
Wade‘s affidavit supporting the warrant also provides, and testimony
confirms, that officers checked the dumpsters, where they located an HCL
generator, lithium battery trash, pseudoephedrine packages, and used filters.
The affidavit points out that all of these items were known to the affiant to be
used in the manufacture of methamphetamine. Wade stated in the affidavit that
based on her experience as a narcotics officer, she presumed that records of
drug deals would be found on the premises, as well as tools of the trade (such as
scales, cutting equipment, and plastic baggies), and possibly weapons. She also
alleged that the premises were in charge of and controlled by the persons named
in the affidavit, including Appellant. The warrant was issued at 4:50 a.m. on
March 12, 2008, almost two hours after the ―knock and talk.‖
12 The search and seizure log lists evidence seized by Wade, Robinett, and
Officer Bobby Dilbeck and gives the date and time as ―3-12-08 0300.‖ Wade
testified that the log states a time of 3:00 a.m. because she ―wrote down what
time the initial contact with the persons in the apartment happened. Not actually
what time [the police] began [their] search.‖
It is problematic that the police officers here pulled their weapons, entered
the apartment, handcuffed its occupants, and searched them under the guise of
a voluntary ―knock and talk.‖ The ―knock and talk‖ is supposed to be an
opportunity for the police to determine whether occupants of a residence are
willing to talk to the police; it is a form of consensual encounter. The persons
involved are supposed to be free to refuse to talk to the police and free to refuse
to allow them to enter.31 Were the ―knock and talk‖ the only source of the
evidence, the outcome of this case would likely be different.
We also note that the odor coming from the apartment was stronger after
the police entered the open door, but there was nothing in plain view to indicate
that methamphetamine was being cooked. Except for the methamphetamine
found on Daniels, the officers had exactly as much information after they entered
under the guise of a ―knock and talk‖ as they did before they entered.
The first drugs, however, were found on the person of Daniels. Appellant
does not and cannot challenge the drugs found on Daniels because he had no
31 Bumper v. North Carolina, 391 U.S. 543, 548–50, 88 S. Ct. 1788, 1791– 92 (1968).
13 expectation of privacy in the person of Daniels.32 Further, Daniels was arrested
outside the apartment. Too, the surveillance was properly conducted, and the
abandoned property that the police found in the dumpster—evidence of the
manufacture of methamphetamine—was evidence that they personally could
connect to a person inside the apartment.33 The contents of the bags the police
found in the dumpster, the odor coming from the apartment, and the man leaving
the apartment, dumping the trash bags, and returning to the apartment when
taken together are sufficient to justify a warrant to search the apartment in
question for methamphetamine or the precursors for the manufacture of
methamphetamine.
Although Appellant clearly points out and complains about the nature of
the conduct of the police, he does not argue that their conduct tainted the
discovery of the contents of the garbage bags. We, therefore, have no need to
address whether the taint was attenuated.34
32 See Kothe, 152 S.W.3d at 59. 33 See Swearingen v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003) (providing that garbage or trash is considered abandoned property and that the police may freely search it without a warrant). 34 See Tex. R. App. P. 38.1(i); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998) (op. on reh‘g), cert. denied, 526 U.S. 1070 (1999).
14 Because the evidence in the dumpster was sufficient to support a warrant,
and because Appellant does not argue that discovery of the contents of the
garbage bags was tainted by the conduct of the police before they secured the
warrant, we hold that the contents of the garbage bags found in the dumpster
were sufficiently connected to at least one person inside the apartment in
question and, consequently, that the trial court did not err by denying Appellant‘s
motion to suppress. Under the limited facts of this case, we overrule Appellant‘s
first issue.
III. Conclusion
Having overruled Appellant‘s first issue and having dismissed his
remaining issue, we affirm the trial court‘s judgment.
LEE ANN DAUPHINOT JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
LIVINGSTON, C.J. filed a concurring opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 18, 2011
15 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
CONCURRING MEMORANDUM OPINION1
I concur with the majority‘s ultimate disposition of the appeal but would
decide part of it on a different basis. The first issue in appellant‘s brief concerns
the trial court‘s denial of his motion to suppress. Appellant asks whether the trial
court erred by not suppressing evidence found in appellant‘s apartment under a
search warrant because before the issuance of the warrant, officers entered the
apartment under exigent circumstances that they created and without consent.
1 See Tex. R. App. P. 47.4. The body of the brief focuses on appellant‘s contention that the officers‘
warrantless nighttime entry into his home resulted from an unreasonable ―knock
and talk‖ investigative technique.2
The grounds of appellant‘s motion to suppress in the trial court were the
following: (1) the search warrant was invalid because of an improper and illegal
affidavit that did not establish probable cause for issuing the warrant or show that
the affiant was credible, and (2) officers began searching and seizing evidence
without consent before the warrant was signed. In the written motion, appellant
did not make any argument regarding the reasonableness of the officers‘ knock
and talk or about whether the State created exigent circumstances.
During the hearing on the motion, appellant argued that the evidence
should be suppressed because (1) the warrant was invalid since it was not
supported by probable cause, (2) the warrant did not particularly describe the
place to be searched or items to be seized, and (3) the police‘s search and
seizure record showed that items were seized at 3:00 a.m. while the warrant was
not signed until 4:50 a.m. Appellant described the third argument as a
―technicality.‖ His counsel said, ―My . . . problem is the search log. Clearly, I
mean, in black and white, Judge Brotherton signed this warrant at 4:50 a.m.
2 In the ―Summary of Argument‖ section of his brief, appellant contends that the trial court erred by ―not suppressing the evidence . . . because the seizure of the evidence was the result of an unlawful, warrantless raid and entry into [a]ppellant‘s home based on an unreasonable ‗knock and talk‘ investigative technique conducted at 3:00 a.m.‖
2 [The] seizure log . . . says things were being seized at 3:00 a.m.‖ A detective
testified that when she completed the search and seizure record, which
contained a description of the items that the police found in the apartment, she
mistakenly wrote the time of the police‘s initial contact with appellant rather than
the time the search began. Nothing in the record of the hearing on appellant‘s
motion to suppress indicates that he predicated his one-sentence written
argument about the officers‘ ―searching and seizing evidence without consent
before any lawful warrant was signed‖ on anything other than the technical
discrepancy between the time that the magistrate signed the warrant and the
time of the search that the detective erroneously put into the search and seizure
record.
Thus, appellant did not argue in the trial court, either in the written motion
or at the hearing on the motion, that evidence should have been suppressed
because the officers‘ initial entry into appellant‘s apartment was unreasonable or
unconstitutional. The majority holds, however, that appellant‘s first issue on
appeal has been preserved and addresses the issue at length. See Majority Op.
at 3–15. Based on the facts described above, I disagree. We should hold that
the issue has been forfeited and resolve this appeal on the other remaining
issue.3 See Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d 235, 238–39
3 The State correctly observes that appellant‘s trial counsel ―presented nothing that would have put the trial court on notice that he was seeking to suppress evidence based on the theory that the ‗knock and talk‘ was
3 (Tex. Crim. App. 2009); Lugo v. State, 299 S.W.3d 445, 450 (Tex. App.—Fort
Worth 2009, pet. ref‘d) (―[T]he complaint made on appeal must comport with the
complaint made in the trial court or the error is forfeited.‖); see also Swain v.
State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (―Appellant‘s global
statements in his pretrial motion to suppress were not sufficiently specific to
preserve the arguments he now makes on appeal.‖); Martinez v. State, 91
S.W.3d 331, 336 (Tex. Crim. App. 2002) (explaining that an appellate court
normally could not reverse a trial court‘s suppression ruling on a theory that
might have been applicable to the case but was not raised).
Because I would affirm on the other basis addressed by the majority, I join
in the judgment affirming appellant‘s conviction.
TERRIE LIVINGSTON CHIEF JUSTICE
unreasonable.‖ We should not address an issue that has not been preserved. See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).