Opinion
No. 03-08-00327-CR
Filed: August 13, 2009. DO NOT PUBLISH.
Appealed from the District Court of Travis County, 427th Judicial District, No. D-1-DC-07-201680, Honorable Melissa Young Goodwin, Judge Presiding. Affirmed.
Before Justices PATTERSON, PEMBERTON and WALDROP.
MEMORANDUM OPINION
A jury convicted Freeman Lambeck of aggravated assault, see Tex. Penal Code Ann. § 22.02 (West Supp. 2008), sentenced him to twelve years in prison, and assessed a $10,000 fine. Lambeck argues that he is entitled to a new trial because the trial court erred in denying his motion to suppress evidence and because of the admission of improper testimony during the punishment phase. We affirm the judgment of conviction. Appellant Freeman Lambeck lived in an apartment complex a few doors down from Chrystal Dodson. Lambeck and Dodson were acquainted with each other and had recently discussed maintenance issues at the apartment complex, including Dodson's leaky air conditioner vent. Lambeck told Dodson that he knew how to fix it and that it would only take a few minutes. Around 6:00 p.m. on the evening of March 29, 2007, Lambeck knocked on the door of Dodson's apartment and told her that he had come to fix the leak. Dodson, who had been preparing dinner at the time, testified that she was "shocked" to see Lambeck, but she let him in and continued cooking while Lambeck worked. Lambeck appeared a few minutes later and, explaining that he needed a flashlight, went back to his apartment. He knocked on the door shortly thereafter, and entered with a flashlight in hand. He continued working while Dodson continued cooking. Lambeck then appeared a second time, explaining that he needed a screwdriver. About ten minutes later, Lambeck returned but, this time, did not knock. He entered and slammed the door behind him. He came up behind Dodson and held a knife to her throat, ordered her to various rooms of the apartment, and ordered her to remove her clothing. Lambeck then took Dodson back to the bedroom, ordered her to her knees in front of the bed, and bound her wrists behind her back with zip ties. Eventually, he took her into the bathroom, began to smoke a crack pipe, and unsuccessfully tried to persuade her to smoke it as well. A short time later, he told Dodson that he was sorry and that the crack made him do it. He cut the plastic ties from her wrists and left the apartment. When Dodson was certain that Lambeck had left, she locked the door and called her sister, who called the police. Officer Thornton arrived first, followed by Officer Martinka and two other officers. Dodson told the officers what had happened and that Lambeck lived a few doors down. Not knowing whether Lambeck was inside his apartment, the officers surrounded the apartment to prevent Lambeck from fleeing, and then entered the apartment by force. Despite having secured the premises, Officer Martinka kicked Lambeck's door in. The officers made a sweep of the apartment and, satisfied that Lambeck was not there, waited outside Lambeck's apartment until a search warrant could be obtained. Eventually, Lambeck returned to the apartment complex in his truck. When Lambeck stopped, officers removed him from the truck, handcuffed and frisked him, and searched his truck. Officers then drove Dodson by in a squad car so that she could identify him. At 1:30 a.m., police obtained a search warrant for Lambeck's apartment. Their search of the apartment revealed, among other items, zip ties, one of which had been cut, a folding knife with a black handle, and a screwdriver. On April 20, 2007, Lambeck was indicted for aggravated assault. The trial court denied his motion to suppress evidence obtained from the search of his apartment. A jury convicted him as charged, sentenced him to twelve years in prison, and assessed a $10,000 fine. Lambeck first contends that the trial court erred in denying his motion to suppress. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court's findings of fact are given "almost total deference." Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90. The trial court's denial of a motion to suppress is reviewed for abuse of discretion, Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999), but when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we apply a de novo standard of review, Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). To validate a warrantless search based on exigent circumstances, the State must satisfy a two-step process. Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006). First, there must be probable cause to enter or search a specific location. Id. In the context of warrantless searches, probable cause exists "when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found." Estrada, 154 S.W.3d at 609. Second, an exigency that requires an immediate entry to a particular place without a warrant must exist. Parker, 206 S.W.3d at 597. The Court of Criminal Appeals has identified three categories of exigent circumstances that justify a warrantless intrusion by police officers: (1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; (2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and (3) preventing the destruction of evidence or contraband. McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991). If the State does not adequately establish both probable cause and exigent circumstances, then a warrantless entry will not withstand judicial scrutiny. Parker, 206 S.W.3d at 597. Here, we need not determine whether any exigency required immediate entry into Lambeck's apartment because all evidence recovered was a result of the search conducted after the police had obtained a valid search warrant. According to Lambeck, however, even the evidence recovered from the later search should have been excluded because it was the "indirect product or `fruit' of unlawful police conduct." Evidence initially discovered during a pre-warrant search, but later recovered pursuant to a valid warrant is admissible if the State can demonstrate that, absent any information learned from the pre-warrant search, law enforcement would have sought the warrant and the judge would have issued the warrant. Murray v. United States, 487 U.S. 533, 538-41 (1988); United States v. Runyan, 275 F.3d 449, 467 (5th Cir. 2001). Citing to testimony of Detective Martinka describing items observed during the pre-warrant sweep of the apartment and to testimony of Detective Fox stating that Fox had been briefed by one of the officers who had conducted the pre-warrant sweep, Lambeck contends that "it cannot be reasonably argued (nor was it) that observations made during the pre-warrant `sweep' of Lambeck's apartment had no impact upon the decision to seek a search warrant." Lambeck suggests that, for evidence recovered in a later search to be admissible, the State would have to show that the initial search made no impact on police. The question, however, is whether the warrant would have been sought and issued absent the warrantless sweep, not whether the warrantless entry into the apartment made any impact on the law enforcement officers. Here, even if police had observed nothing of significance during their initial sweep of the apartment, Lambeck's contention that police would not have sought the warrant is unreasonable. Dodson knew that her attacker was Lambeck and knew in which apartment Lambeck lived. There is little question that, even if police observed nothing of relevance to the case in their initial sweep of the apartment, they would have sought a warrant to search the residence of the known assailant. Lambeck next contends that the State has not shown that the magistrate judge would have issued the warrant absent the pre-warrant sweep, arguing that, to satisfy this requirement, "the State must prove that police did not reveal their prior warrantless entry to the magistrate judge — either orally or in writing." Although statements and writings provided to the judge are considerations in determining whether the pre-warrant entry influenced the issuance of the search warrant, they are not determinative. See Runyan, 275 F.3d at 457 ("inclusion of this statement raises a question about whether and to what extent the magistrate judge relied on this statement in issuing the warrants"). Here, regardless of whether police revealed anything about their prior warrantless entry to the magistrate judge, we are of the view that the magistrate judge would have issued the warrant based on the known information unrelated to the warrantless entry. Again, Dodson knew that her attacker was Lambeck and knew in which apartment Lambeck lived. Given that Dodson had identified her attacker and her attacker's place of residence, there can be little dispute that, even in the absence of evidence potentially observed in a warrantless entry, police would have sought, and a judge would have issued, a search warrant for the accused's residence. Accordingly, we overrule Lambeck's first point of error. In his second and third points of error, Lambeck argues that he is entitled to a new trial because of certain testimony of his estranged wife, Anissa Lambeck. According to Lambeck, Anissa committed perjury, and her false statements contributed to the severity of Lambeck's punishment. Lambeck further argues that, while the trial court sustained defense counsel's hearsay objection and directed the jury to disregard portions of Anissa's testimony, the testimony made an impact such that Lambeck is entitled to a new trial. While the State may not obtain a conviction through the knowing use of perjured testimony, the appellant bears the burden of showing that the testimony used by the State was in fact perjured. Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim. App. 1986). "Discrepancies in testimony alone do not make out a case for perjury." Id. at 312. Lambeck challenges Anissa's testimony that Lambeck engaged in inappropriate behavior with his adopted daughter, including drinking and playing strip poker with her at parties. Contrary to Anissa's assertions, Lambeck's daughter testified that those events did not occur and that Lambeck has never "done anything inappropriate" with her or her friends. Other witnesses testified that Anissa was a "chronic liar" or had a reputation for being untruthful. Although Lambeck's daughter denied Anissa's assertions as to Lambeck's inappropriate behavior, Lambeck has failed to prove that Anissa's testimony was, in fact, perjured. See id. at 311. There is no indication that Lambeck's daughter was more credible than Anissa. The existence of conflicting testimony does not demonstrate perjury. Rather, in light of the conflicting testimony, credibility of the various witnesses and the weight to be given their testimony were issues to be determined by the jury. Lambeck also challenges Anissa's statements, arguing that her "testimony constituted inadmissible hearsay and that its admission severely prejudiced . . . Lambeck's punishment-phase defense." Although following defense counsel's objection the trial court sustained Lambeck's hearsay objection and instructed the jury to disregard the objected-to testimony, Lambeck argues that the testimony made an impact on the jury such that he is entitled to a new trial. In support of his contention that the testimony, even though excluded, impacted the severity of his punishment, Lambeck notes that the prosecutor relied on portions of Anissa's testimony during closing arguments. Despite the prosecutor's reference to portions of Anissa's testimony to support the State's contention that "[t]his is not an isolated episode," the prosecutor neither referred to the excluded testimony nor emphasized Anissa's testimony in general, stating, rather, that:
[E]ven if you don't believe anything [Anissa] said and even if you just want to set that aside, that's fine. Focus on this incident. This incident is so disgusting and horrible.The best predictor of the future is the past. And look what he did today. The offense was on its way to being potentially much more serious than it became. What will happen if the defendant ever has a future victim? I want you to send a message to the defendant that you're not going to tolerate that kind of behavior. I want you to send a message to him that's going to make sure he thinks twice before he ever does something like this again. And I want you to send a message to any other people that might consider doing a crime like this that there will be consequence [sic] for that type of conduct. The specific statement about which Lambeck complains — "The best predictor of the future is the past" — was made in reference to the crime for which Lambeck was charged, not the conduct alleged by Anissa. To further support his theory that Anissa's statements influenced the jury in assessing punishment, Lambeck cites to jury questions indicating that jurors were concerned about how much freedom Lambeck would have if placed on probation, arguing that "such questions relate directly to Anissa Lambeck's inadmissible hearsay testimony which portrayed Lambeck as being at high risk for engaging in improper sexual behavior around young women." Jurors sent the following questions to the court:
We would like clarification on incarceration in conjunction with a probation term. Why does Verdict #2 Form have both "years" and "community service"? Are they mutually exclusive?
Article 1 pg 1, para. 2 — why is there a reference to "in whole or in part"?
Verdict Form 2(B) What does "we recommend that the fine be probated" mean?
If probation is violated what is the term of the punishment?Contrary to Lambeck's contention, the jury's questions regarding probation are no indication that it was influenced by Anissa's testimony, much less the specific portions that were excluded. The questions request clarification as to how the probation process works and as to the specific wording used in the charge rather than indicating any particular concern about the amount of freedom Lambeck would have. Juries are presumed to follow the court's instructions to disregard evidence. See Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988). This presumption is rebuttable, but Lambeck points only to the jury's questions, which provide no indication that the jury was influenced by Anissa's testimony. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (jury note indicating jurors discussed matters they were instructed not to consider is no evidence that jurors considered those matters in reaching a verdict). Beyond these jury questions and a brief reference to Anissa's testimony by the prosecutor in closing arguments, Lambeck points to no evidence that any of Anissa's testimony had an impact on the severity of punishment assessed by the jury. As to Lambeck's challenge to the veracity of Anissa's testimony, he has failed to meet his burden to show that the testimony was perjured, and in light of conflicting testimony, credibility was an issue to be determined by the jury. Accordingly, we overrule Lambeck's second and third points of error. Having overruled Lambeck's points of error, we affirm the judgment of the trial court.