Nos. 05-04-01810-CR, 05-04-01812-CR, 05-04-01813-CR, 05-04-01811-CR
Opinion issued December 20, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F03-57980-VH, F03-57981-JH, F03-57982-KH, F03-57983-IH. Affirmed.
Before Chief Justice THOMAS and Justices FITZGERALD and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Subject to his motion to suppress, appellant Maurio M. Butler pleaded guilty before the trial court to four offenses: aggravated robbery; unlawful possession of a firearm by a felon; possession of cocaine less than one gram; and possession of 3, 4 — methylenedioxymethamphetamine (ecstasy) in an amount of four grams or more but less than 400 grams. The trial court sentenced appellant to fifteen years' imprisonment for the aggravated robbery, ten years' imprisonment each for the firearm and ecstasy cases, and one year's confinement in a state jail facility for the cocaine offense. In his sole issue on appeal, appellant contends the trial court erred in denying his motion to suppress. For reasons that follow, we resolve appellant's issue against him and affirm the trial court's judgments.
The trial court made a deadly weapon finding in the aggravated robbery judgment.
Background
1. Plea Hearing At the plea hearing, Antonio Thomas testified he was twenty-six years old. On November 29, 2003, he had just returned to Dallas from Shreveport. As he was leaving the "beer store" where his cousin worked, he saw appellant, whom he had known "briefly" for a year or two, walking on the sidewalk. Appellant approached Thomas and asked for a ride "to his house." Thomas said he was in a hurry and, initially, declined to give appellant a ride. However, appellant, whose arm was in a cast, pleaded that it was cold and his arm was hurting. Appellant asked Thomas to just give him a ride "around the corner" to some apartments. Thomas drove appellant to the apartments. When Thomas stopped, appellant stayed in the car and just looked at him. They then talked about exchanging telephone numbers. When Thomas asked if appellant had a pen, appellant put his hand in his coat and pulled out a chrome nine-millimeter gun. Appellant said he was mad because Thomas had not given Tory Swatts a/k/a "Frog" $2500 to get out of jail. When appellant first pulled out the gun, he cocked it, pointed it at Thomas, and said, "I hate to do this, but I'm going to have to shoot you." Appellant told Thomas he was going to take him over to the "old K-Mart store." Thomas interpreted appellant's comment to mean appellant was going to take his body over there and dump it after appellant killed him. When appellant got out of the parked car, Thomas jumped out of the car and ran behind the apartments, leaving behind his car, coat, jewelry, $800 cash, and two cell phones. One of the cell phones belonged to Thomas's girlfriend. Thomas knocked on the door of one of the apartments and asked the occupant to call the police. A police unit arrived and took Thomas home. Thomas later called his cell phone number several times and, eventually, a woman answered. Thomas told her she had his cell phone, and asked where she was. The woman told him she was at a 7-Eleven store, and Thomas arranged to meet her there. Thomas's cousin agreed to drive him to the 7-Eleven. Enroute, Thomas flagged down a police car and explained to the two officers what had occurred. They all then drove to the 7-Eleven store. There, Thomas met with the woman, who returned to him his cell phones and some, but not all, of his property. The police also talked to the woman, after which they followed her to an apartment complex, where Thomas's car was found in the parking lot. The police released the car to Thomas. None of Thomas's property was recovered from appellant's apartment. After hearing the above evidence, the trial court accepted appellant's guilty pleas, found the evidence sufficient to support the pleas, and set the cases for a punishment hearing on November 21, 2004. The trial court then heard evidence on appellant's motion to suppress. 2. Suppression Hearing Appellant's pretrial motion to suppress, in relevant part, requested the trial court to "suppress the following evidence seized as a result of a search of the apartment of the Defendant, to-wit: All evidence seized November 30, 2003." As a basis for his request to suppress, appellant alleged, I.
The Defendant was arrested in Dallas, Texas on November 30, 2003 for Aggravated Robbery, Unlawful Possession of a Firearm by a Felon, and two charges of Unlawful Possession of a Controlled Substance, taken to the Dallas Police Department where he was photographed and interrogated.
II.
This arrest was made without a warrant. The arrest is without probable cause and the subsequent search and seizure lacked probable cause.
Two State's witnesses and appellant testified at the suppression hearing. Dallas Police officer Chad Brindley testified that in November 2003, he was working the first watch, which was from midnight until 8:00 a.m. In the early morning hours of November 30, 2003, he and his partner, Officer Bearden, were on patrol in uniform and in a marked squad car in east Dallas. They were flagged down by Antonio Thomas. Thomas asked the officers to accompany him to a 7-Eleven store, where, he contended, a female had a cell phone that was taken from him during a robbery at approximately 9:30 the night before. Thomas told the officers he had given appellant, who he knew, a ride. At the end of the ride, appellant robbed Thomas at gunpoint. Appellant took Thomas's necklace, a coat, two cell phones, money, and car. The officers followed Thomas and his cousin to the 7-Eleven store. After talking to the female, the officers followed her to an apartment complex, where Thomas's car was found. The officers released the car and the cell phones to Thomas, who then left. The female told the officers who had given her the cell phones and where that person lived-apartment 905. The officers had also learned the suspect was named "Maurio" and that he was wearing black clothes with red shoes at the time of the robbery. Armed with that information, the officers went to apartment 905 and knocked on the door. After several knocks, appellant answered the door. Appellant was wearing black clothes and red shoes and answered to the name "Maurio." Because the officers knew a gun had been used in the robbery, they handcuffed appellant immediately, without any further questioning. Appellant's apartment was small and appellant was handcuffed at the threshold of the apartment. The officers detained appellant to allow Thomas to come to the scene and identify him and, also, to request their supervisor, Sergeant Bruce Bryant, to come to the scene. During the five minutes it took their supervisor to arrive, the officers questioned appellant. They asked appellant if he had a gun. Appellant replied that he did, but he did not know where the gun was. Thomas arrived at the scene and identified appellant as the person who had robbed him at gunpoint. When Bryant arrived, he asked appellant for consent to search his apartment. Brindley heard appellant give his verbal consent to search. Bryant went to his car to get a written consent to search form. The officers decided to place appellant on a sofa in the living room and remove the handcuffs so he could sign the written consent form when Bryant returned with it. Before doing so, they conducted a protective sweep of the immediate area. Under a pillow on the sofa where they were going to seat appellant, they found a loaded nine-millimeter pistol. The pistol fit the description Thomas had given them of the gun used in the robbery. After finding the gun, the officers arrested appellant for the aggravated robbery of Thomas. Incident to that arrest, they searched appellant's person. During the search, the officers found cocaine. When appellant was asked about other drugs, he told the officers they would find more drugs in the kitchen sink. The officers looked in the sink and found several individually-wrapped green pills, later determined to be ecstasy, hidden in the garbage disposal. Bryant testified he arrived at the scene within five minutes of getting the call. When he arrived, appellant was already handcuffed and was being held by the officers just inside the apartment. Bryant obtained appellant's verbal consent to search the apartment, but no written consent to search form was ever signed. Appellant testified that in November 2003, he lived in apartment 905 with his wife and three children. On the date of his arrest, appellant answered the door wearing red house shoes. After appellant answered to the name "Maurio," the officers looked at his red shoes, then entered the apartment without his consent, and handcuffed him. The officers picked up a jacket in the living room and said "Yep, this is it." Appellant was never presented with a written consent form to sign. In response to the officers question about whether appellant had a gun, appellant told the officers he had a gun but it was not his and he did not recall where it was. The officers then put him on the couch and found the gun. The State offered no rebuttal evidence. Without making explicit findings of fact, the trial court denied appellant's motion to suppress. Standard of Review
We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. Almost total deference is given to a trial court's determination of historical facts and de novo review is given to a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). When a trial judge does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling. See Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). We will uphold a trial court's ruling on any theory of law supported by the evidence, even if the trial court gave an incorrect reason for its ruling. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004). This is true even if the theory was not raised in the trial court. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003), cert. denied, 451 U.S. 974 (2004). However, an appellate court may not reverse on a ground not raised in the trial court or argued on appeal. See Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 1060 (2003). Analysis
Appellant, relying on Payton v. New York, 445 U.S. 573 (1980), argues the State has the burden of proving the reasonableness of an arrest made without a warrant, and that a search of a residence without a warrant is presumptively unreasonable. Citing United States v. Robinson, 414 U.S. 218 (1973), and McGee v. Texas, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. denied, 540 U.S. 1004 (2003), appellant also contends the State must show the need for an exception. Appellant claims the officers exceeded the lawful authority to arrest without a warrant by arresting and handcuffing him in his residence; therefore, all of the evidence seized thereafter should have been suppressed. Appellant contends the trial court erred in "applying exigent circumstances, voluntary consent, and search incident to arrest exceptions." Appellant contends that had the trial court properly applied the law, the judge would have suppressed the gun, Thomas's identification of appellant, and the drug evidence under the federal exclusionary rule and article 38.23. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Appellant further argues there was no hot pursuit because the offenses had occurred three hours earlier, Thomas did not have clean hands, there was no evidence appellant consented to the officers entering his apartment, and he was never given the Miranda warnings. Appellant asks us to reverse the trial court's ruling on his motion to suppress and remand these cases to the trial court with an order that all of the evidence gathered is inadmissible at his trial. The State responds that the record supports the trial court's denial of appellant's motion to suppress. First, the State contends, appellant's motion to suppress was inadequate to preserve error on the issue of whether the officers had appellant's consent to enter, or re-enter, his apartment. Alternatively, the State asserts, appellant consented to a limited entry into his apartment because of the number of people and small size of the apartment. That State further claims appellant's complaint that his arrest was illegal because it was without a warrant is waived because he is making that argument for the first time on appeal. At trial, appellant argued the police had no general authority to search without a warrant because he did not consent and the search incident to arrest was illegal. The State next argues that even if error is preserved, appellant's warrantless arrest was valid because under Terry v. Ohio, 392 U.S. 1 (1968), the police had reasonable suspicion to briefly detain appellant while they further investigated the aggravated robbery. After Thomas identified appellant as the person who robbed him at gunpoint, the police had probable cause to arrest appellant for the aggravated robbery. Further, after the police found the gun during a "protective sweep" of the immediate area around appellant, they did, in fact, arrest appellant for the aggravated robbery. Therefore, the cocaine was found in a search incident to that valid arrest. After the police found the cocaine, appellant told the officers they would find more drugs in the kitchen sink. Moreover, the State argues, regardless of the legality of the initial entry into the apartment, the gun and drugs were seized after appellant orally consented to a search of his apartment. Finally, the State argues that even if error occurred, it was harmless with respect to the aggravated robbery. Thomas's in-court identification of appellant, whom Thomas knew, as the armed robber, was not subject to suppression, and the stolen property that was recovered was found outside appellant's apartment and was not subject to the motion to suppress. Concluding this case is factually similar to Gallups v. State, 151 S.W.3d 196 (Tex.Crim.App. 2004), the State contends the trial court did not err in denying appellant's motion to suppress. 1. Aggravated Robbery We agree with the State that, independent of any alleged taint of an illegal arrest or search, there remains sufficient evidence to support appellant's conviction in the aggravated robbery case. Appellant does not really contend otherwise. 2. Initial Entry of Appellant's Apartment Appellant acknowledges the evidence was inconsistent about whether the police were just inside or just outside the threshold of the apartment on their initial approach. It is the trial court's prerogative to resolve any inconsistencies and conflicts within the evidence. See Ross, 32 S.W.3d at 855. Viewing the evidence under the appropriate standard, we conclude the trial court could have reasonably concluded the officers were just at or outside the threshold of appellant's apartment upon their initial approach when they handcuffed appellant. Thus, the trial court did not abuse its discretion in denying appellant's motion to suppress on this basis. 3. Re-entry into the Apartment Appellant contends that when the officers went beyond the threshold into the interior of appellant's apartment, such "re-entry" was illegal because it was without appellant's consent. The State contends the re-entry did not violate Payton because the officers were legally inside the premises pursuant to appellant's consent to enter the threshold area of the apartment. Thereafter, the State contends, any search was lawful pursuant to both appellant's oral consent to search and the search incident to arrest doctrine. Appellant correctly states that a search conducted without a warrant issued upon probable cause is presumptively unreasonable. Payton, 445 U.S. at 586. However, there are a few specifically well-established and delineated exceptions. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). One such exception to the warrant and probable cause requirements is a search conducted pursuant to consent. See id. at 219; Garcia v. State, 887 S.W.2d 846, 851 (Tex.Crim.App. 1994). To be valid, the consent must be voluntary. See Schneckloth, 412 U.S. at 223. One under arrest may freely and voluntarily consent to a search. See Paulus v. State, 633 S.W.2d 827, 851 (Tex.Crim.App. 1982) (op. on reh'g) (en banc). The State has the burden of proving by clear and convincing evidence from a totality of the circumstances that the consent was: (1) freely and voluntarily given; (2) positive and unequivocal; (3) not the product of duress or coercion, actual or implied; and (4) not merely submission to a claim of lawful authority. See id. at 850. In determining whether consent was voluntarily given, we look to the totality of the circumstances surrounding the statement of consent. Lackey v. State, 638 S.W.2d 439, 447 (Tex.Crim.App. 1982). Appellant contends he gave no consent for the police to either enter his apartment or to search his apartment. The State contends appellant impliedly gave consent to enter his apartment and orally and explicitly gave consent to search. Conflicting evidence was presented on the issue of consent. Thus, the trial court's ruling turned on credibility determinations, and we must apply a deferential standard of review to the ruling. Two police officers testified that while appellant was detained, but not under arrest, he orally consented to a search of his apartment. There was no evidence, or suggestion, of coercion, nor does appellant claim he was coerced to consent. Appellant simply denies he gave consent. The credibility choice was the trial judge's. Viewing the evidence in the light most favorable to the trial court's ruling, see Walter, 28 S.W.3d at 540, we conclude the trial court could have reasonably found appellant freely and voluntarily consented to a search of his apartment. Therefore, the trial court did not abuse its discretion in denying the motion to suppress on this basis. In light of our disposition of this issue, we need not reach the alternative issues regarding the legality of the arrest, whether the gun was found in a valid search incident to arrest, or whether any error was harmless. 4. Thomas's Identification of Appellant During the five minute period between the time the officers detained and handcuffed appellant at the at the threshold of his apartment and their supervisor arrived, Thomas arrived at the scene and identified appellant as the person who had robbed him at gunpoint. After Thomas identified appellant, the officers conducted a protective sweep of the immediate area around appellant and found the gun on the couch. The gun matched the description of the gun Thomas had earlier given. The police then arrested appellant. Appellant makes no specific argument as to why Thomas's identification of appellant should be suppressed beyond the general argument that appellant was arrested at the time he was handcuffed and that Thomas's identification was "fruit of the poisonous tree." There is no evidence Thomas ever entered appellant's apartment when he identified appellant. Moreover, appellant concedes the police had reasonable suspicion to detain him. Viewing the evidence in a light most favorable to the trial court's ruling, we conclude Thomas's identification was not the fruit of the poisonous tree. Therefore, the trial court did not err in denying the motion to suppress Thomas's identification of appellant. Having rejected each of appellant's arguments, we overrule appellant's sole issue on appeal. We affirm the trial court's judgments.