Opinion
No. 13-08-00543-CR
Delivered and filed March 25, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 94th District Court of Nueces County, Texas.
Before Justices YAÑEZ, BENAVIDES, and VELA.
MEMORANDUM OPINION
Following the trial court's denial of his motion to suppress, appellant, Miles Park, pleaded guilty to the offense of unlawful possession of methamphetamine. The trial court placed appellant on deferred adjudication community supervision for four years, assessed a $1,000 fine, and certified appellant's right to appeal. By one issue, appellant appeals the trial court's denial of his motion to suppress. We reverse and remand.
See Tex. Health Safety Code Ann. § 481.115(a)-(b) (Vernon Supp. 2009).
I. Procedural Background
On December 19, 2007, the trial court held a hearing on appellant's motion to suppress evidence. Officer Carl Wright and Linda Park testified at the hearing. The trial court granted appellant's motion to substitute counsel, and on May 22, 2008, the trial court held a hearing on defendant's motion for reconsideration of his motion to suppress. At this hearing, appellant and his girlfriend, Robin Caatz, testified. The trial court denied appellant's motion to suppress evidence. Appellant pleaded guilty to unlawful possession of methamphetamine ("meth"), and the trial court placed him on deferred adjudication community supervision. This appeal ensued.II. Preservation and Waiver
As a preliminary matter, we must address the State's assertions that appellant has not preserved his issue for appellate review and has waived his appeal. The State first argues that appellant did not preserve error because he did not specifically identify what evidence he wanted suppressed in his motion. The State relies on Amador v. State, where the court of criminal appeals stated the following:Appellant's motion to suppress did not identify what evidence he wanted suppressed, nor, as far as we can discern from the record, was such evidence identified at the suppression hearing. This is troubling. As Professor LaFave has pointed out, a motion to suppress "must . . . identify the items which the defendant seeks to suppress." In the absence of such identification, the State and the trial court are left unaware of how the defendant was harmed by the allegedly illegal government activity. It could be argued that, under such circumstances, the trial court could properly deny the motion to suppress as inadequate. In the instant case, however, the State has not made such an argument, and we did not grant review to consider it.Although we agree with the State that in this case, appellant's motion to suppress did not specifically state the items he sought suppressed, it was apparent from the context of the suppression hearing what items appellant sought to suppress. At the suppression hearing, defense counsel identified the following evidence that the police allegedly obtained illegally: (1) a pipe; and (2) some "baggies" that contained meth. Moreover, at the suppression hearing, the State demonstrated an understanding that appellant sought to suppress the pipe and the baggies containing the meth. Finally, appellant pleaded guilty to unlawful possession of meth. Based on this record, the State and the trial court were aware that appellant sought to suppress the meth found in his residence and were aware of how appellant was harmed by the allegedly illegal government activity. Therefore, we conclude that appellant has preserved error in this case. Next, the State argues that appellant agreed to waive "all pretrial motions on file" in his plea agreement. In Durham v. State, this Court concluded that the appellant waived his right to appeal all pretrial motions because his plea agreement expressly stated that he agreed to "waive all pretrial motions on appeal." However, in Hubert v. State, we concluded that although Hubert initialed provisions in a plea agreement stating that he waived any right to appeal any pretrial motions filed on his behalf, "[t]he State's waiver argument fail[ed] because it [was] based on select portions of the record that [were] undercut by other handwritten statements." We reasoned that Hubert had not waived his right to appeal his pretrial motions because "[a] contradictory record may rebut the validity of a boilerplate waiver" and "[b]ecause the record contain[ed] at least two specific, holographic instances evidencing Hubert's intent to retain his right to appeal pre-plea bargain motions that the trial court ruled on." In this case, the plea agreement states that appellant waived any pretrial motions on file; however, it also states that appellant did not waive his right to appeal an adverse ruling on his pretrial motions. In a document entitled "Defendant's Statement Understanding Admonishments," appellant's initials appear next to the following statement:
With the assistance of my lawyer, I have entered into a plea bargain agreement with the State. My lawyer has explained the plea bargain to me. I understand the plea bargain and I agree to it. I understand that if the [trial court] follows the plea bargain, I am not allowed to appeal the judgment of the [trial court] unless the [trial court] gives me permission to appeal or except on those matters raised by pretrial motion and ruled upon by the [trial court]. Nonetheless, I want the [trial court] to accept my plea and to follow the plea bargain agreement. [Emphasis added].Finally, the trial court certified that appellant had the right to appeal although this was a plea bargain case, because "matters were raised by written motion filed and ruled on before trial and not withdrawn or waived." This case is much like Hubert because the record evidences appellant's intent to retain his right to appeal pre-plea-bargain motions that the trial court ruled on. Therefore, assuming without deciding, that the complained-of language could be construed as a waiver of appellant's right to appeal his pretrial motions, the language in the trial court's certification of appeal, defendant's statement understanding admonishments, and appellant's plea agreement "directly contradicts and rebuts any presumption raised by the terms of the boiler-plate plea form signed by appellant and reflects that appellant did not waive appeal." Therefore, we conclude that appellant has not waived his right to appeal his pretrial motion to suppress.
III. Suppression Hearing
Officer Wright testified that he went to appellant's residence with Officer B. Moss, who had previously attempted to "do an undercover narcotics buy from that apartment" after appellant's neighbor had complained "that there was constant traffic at all hours of the night to and from the residence" and that "[t]here was always the smell of marijuana, burnt marijuana, but mainly just traffic up and down the stairs." Officer Moss was unsuccessful in his attempt to purchase narcotics from anyone at appellant's residence. According to Officer Wright, because the undercover buy was unsuccessful and there were "no informants to that house," the next step was to knock on the door and explain why they were there. A couple of weeks later on May 5, 2007, Officers Wright and Moss returned to appellant's apartment for "a knock and talk." Officer Wright acknowledged that they did not have a warrant or probable cause to acquire a warrant to enter appellant's residence; however, according to Officer Wright, if appellant consented, they could have entered appellant's residence. When Officer Wright knocked on the door, appellant answered, and Officer Wright, who was not wearing a police uniform, showed appellant his badge and informed appellant that he was investigating "complaints of drug dealing." According to Officer Wright, while the officers were still outside, appellant explained "that he had briefly had a bad roommate that kind of took over his apartment and that person was actually the one selling drugs." Officer Wright also testified that during the initial conversation, appellant stated that "all he had done was smoke a little weed." Officer Wright stated that appellant did not ask him to enter the residence. According to Officer Wright, while still outside, he observed appellant's "hand [go] into that couch that was right by the door," and entered appellant's residence for his "safety." Officer Wright explained, "I didn't know what he was reaching for so I grabbed him and secured him." Officer Wright handcuffed appellant. Officer Wright explained that appellant was not placed under arrest, but was "being lawfully detained for [the officers'] safety." Officer Wright stated that Officer Moss then conducted a "protective sweep" of the apartment for their "safety." Appellant would not consent to a search of his apartment; therefore, Officer Moss obtained a search warrant based on items that were allegedly in "plain view." In his affidavit for the search warrant, admitted as defense exhibit one, Officer Moss stated:[Officer] Wright made a protective sweep of the back room and the remaining portions of the apartment. During the sweep [Officer] Wright observed mushrooms growing in the middle bedroom. He also observed a clear plastic baggie with a crystaline [sic] substance in the back bedroom where [Caatz] was and also in plain view in the living room was several small plastic baggies containing more crystline [sic] substance believed to be a controlled substance.Caatz testified that she was asleep in the back bedroom when the police arrived at her residence. She stated that the police spoke with appellant at the front door for about five minutes and then appellant came into the bedroom to get his wallet. According to Caatz, she opened the bedroom door and could see appellant; however she was unable to see the police because the front door was blocking her view. Caatz testified that appellant was "keeping the [front] door a little bit-barely open and just standing there." Caatz stated that the "first time" she saw the police officers was "after they came in and put [appellant] in handcuffs and set him on the couch." Caatz closed her bedroom door. The officers then asked Caatz to come out of the bedroom, and she complied. The officers placed Caatz in handcuffs and asked her to sit on the couch. According to Caatz, Officer Wright then conducted a "sweep" of the apartment without a warrant. Approximately two-and-one-half hours later, the officers acquired a warrant to search the apartment. Appellant testified that he heard a knock at the door. When he answered the door, he saw Officer Moss standing behind Officer Wright. According to appellant, he "cracked" the door open, and he talked to the officers through this "crack." After the officer requested his identification, appellant closed the door and got his identification and then showed it to the officers, who explained that they had "suspicion that [appellant was] selling narcotics out of his apartment. . . ." The officers informed appellant that they did not have a warrant; however, according to appellant, the officers stated that if he did not give them consent to enter his residence, one officer would stand outside the apartment, while the other obtained a warrant. Appellant testified that he stated, "Okay, well come back with a search warrant." According to appellant, he attempted to close the front door when Officer Wright "stopped" him, and the two officers entered appellant's apartment. Appellant stated that he asked Officer Wright, "So, what's going on?," and Officer Wright replied, "Sir, I smell marijuana and I'm patting you down. . . . I'm patting you down for a protective sweep." Appellant asserted that he reached for the couch after Officer Wright came into the house, stating, "And as [Officer Wright was] patting down, I reached into my pocket and I pitched the pipe into the corner of the couch." Then according to appellant, Officer Moss retrieved the pipe and said, "Now we have probable cause." The officers placed Caatz in handcuffs, and Officer Wright "went through the apartment and did . . . a protective sweep." Appellant testified that one of the officers "kept asking [him] for consent to search" and presented him with a consent form; however, appellant asked to speak to his attorney, and the officers stated they were no longer able to ask for consent to search the apartment. According to appellant, Officer Moss left to "type up . . . the report for the search warrant." Defense exhibit one, a blank consent-to-search form with the word "Kaatz" [sic] handwritten on it was admitted through appellant's testimony. Appellant asserted that he later found the form in the trash can in his apartment.