No. 05-02-01651-CR
Opinion Issued December 31, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-39403-RW. Affirmed.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
Opinion By Justice WHITTINGTON.
Ronald Wayne Cady appeals his conviction for possession with intent to deliver four grams or more but less than 200 grams of methamphetamine. See Tex. Health Safety Code Ann. §§ 481.102, 481.112(d) (Vernon 2003 Supp. 2004). After finding appellant guilty, the jury assessed punishment at sixty-five years' confinement. In addition, the jury found appellant used or exhibited a deadly weapon during the commission of the offense. In three points of error, appellant contends the trial judge erred in overruling his motion to suppress, admitting certain evidence, and failing to charge the jury on the law of exclusionary evidence. We affirm the trial court's judgment.
Motion to Suppress
In his first point of error, appellant contends the trial judge erred in overruling his motion to suppress. Appellant claims the police should have obtained a search warrant prior to entering appellant's motel room and the failure to do so violated his state constitutional rights. We disagree. In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. See Roy v. State, 90 S.W.3d 720, 723 (Tex.Crim.App. 2002) (per curiam). We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's application of law to the facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim. App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim. App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.-Dallas 2002, pet. ref'd). A search conducted without a warrant based on probable cause is "per se unreasonable," subject only to a few specifically established and well-delineated exceptions. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). For a warrantless search to be justified, "the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances which made the procuring of a warrant impracticable." McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim. App. 1991). Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a person of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. McNairy, 835 S.W.2d at 106. In this case, Officer Joe Charles Hall of the Lancaster Police Department testified during the suppression hearing that the department received information about a possible methamphetamine laboratory at the Royal Inn in Lancaster. Hall accompanied three other officers to the motel. The desk clerk told the officers appellant had rented room 221 and room 229 and that motel personnel thought appellant had a police scanner and was armed. The clerk gave them a pass key "in case something happened that [they] needed it in a hurry." Hall explained that methamphetamine labs were volatile in nature, and it was possible they would need to enter a room immediately for the safety of anyone in the room or in the general area. According to Hall, he smelled the odor from the methamphetamine lab as he drove to the south side of the building where rooms 221 and 229 were located. He testified he was driving the car with the windows rolled up. As the officers approached room 229, they saw "smoke, mist, something of that nature real thick in the air . . . coming out of that room from under the door, around the door." Looking through a space in the curtains, the officers saw a lot of smoke and equipment set up in the room. They knocked, but no one answered. They used the key to open the door because they were concerned that anyone in the room would have been overcome by the fumes. They were also concerned about the potential fire hazard. Finding no one in the room, the officers closed the door and called the fire department. Next, the officers went to room 221. As they approached, Hall noticed two video cameras set up between the curtain and the glass in the window. The cameras were pointed to the outside of the door to monitor who was approaching. This concerned Hall; he was afraid that the occupants, upon seeing the police approach, "would arm themselves to try to harm [the officers] or destroy evidence." In light of these issues, the officers decided not to knock. Upon entering the room, the officers found Vanessa Bean, appellant's girlfriend. Appellant was in the bathroom. When he came out of the bathroom, the officers handcuffed them both. After Hall read appellant his Miranda rights, appellant signed a form giving officers his consent to search the room. Thus, the evidence shows: (i) the officers received a report from motel personnel that appellant had a methamphetamine lab in one of the rooms he had rented; (ii) motel personnel believed appellant had a police scanner and was armed; (iii) police smelled a methamphetamine lab smell emanating from the motel room and saw smoke or mist coming out from under and around the door; (iv) room 229 contained a methamphetamine lab with dense smoke; and (v) police saw video cameras directed at the door of room 221. In addition, Hall testified he had over twenty-three years experience working in law enforcement with particularized training in narcotics investigations. He had participated in several investigations of methamphetamine labs and was very familiar with the different smells involved in the methamphetamine production process. Given the information available to Hall, the reasonable inferences that could be drawn from that information, and his experience in seizing similar operations, we conclude that probable cause did exist at the time of the initial entry into appellant's motel room. See McNairy, 835 S.W.2d at 106. Once probable cause is present, the inquiry becomes whether exigent circumstances existed to obviate the need for a search warrant and justify the initial warrantless entry into appellant's room. See McNairy, 835 S.W.2d at 107. Hall testified that as the officers approached the second room and saw the video cameras, their main concern was the destruction of evidence by anybody in the room and the immediate danger to the officers. On cross-examination, Hall testified he did not believe it would have been practical to get a search warrant at that time. Based on this evidence, we conclude the officers faced a real possibility that (i) any evidence in room 221 could have been destroyed as the officers approached and (ii) the officers faced immediate danger. McNairy, 835 S.W.2d at 107. Because exigent circumstances existed, we conclude the officers were justified in entering appellant's motel room without a warrant. McNairy, 835 S.W.2d at 107. We conclude the trial judge did not abuse his discretion in denying appellant's motion to suppress. We overrule appellant's first point of error. Written Statement Jury Charge
In his second point of error, appellant claims the trial judge erred in admitting his written statement in which he admitted manufacturing and selling methamphetamine because the statement was not voluntarily made. In his third point of error, appellant claims the trial judge erred in failing to instruct the jury on the law of exclusionary evidence as required by article 38.22 of the code of criminal procedure. We conclude both appellant's points lack merit. When a judge overrules a pretrial motion to suppress evidence, the defendant need not subsequently object to the admission of the same evidence at trial to preserve error. Fiero v. State, 969 S.W.2d 51, 55 (Tex. App.-Austin 1998, no pet.) ( citing Harris v. State, 656 S.W.2d 481, 485 (Tex.Crim.App. 1983)). Nevertheless, "the defendant waives his pretrial objection if he affirmatively asserts at trial that he has no objection to the admission of the evidence." Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988) ("When an accused affirmatively asserts during trial that he has `no objection' to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pretrial ruling.); Fiero, 969 S.W.2d at 55. In this case, when the State offered appellant's statement during trial, defense counsel responded, "No objection, Your Honor." Appellant has waived his right to appeal the admissibility of his written statement. Moreover, because he did not object to the admission of his written statement, he was not entitled to an article 38.23(a) instruction. We overrule his second and third points of error. We affirm the trial court's judgment.