No. 08-03-00080-CR.
May 13, 2004. DO NOT PUBLISH.
Appeal from 109th District Court of Andrews County, Texas, (Tc# 4223).
Before Panel No. 4, BARAJAS, C.J., LARSEN, and McCLURE, JJ.
ANN CRAWFORD McCLURE, Justice.
Mauricio Michel appeals his conviction for felony theft of a firearm with enhancement. A jury found Appellant guilty and assessed punishment at ten years' confinement. Finding that his motion to suppress should have been granted, we reverse and remand
FACTUAL SUMMARY
Shannon Willis arrived home in Andrews County on January 24, 2002 to discover that his house had been burglarized. Willis was a gun collector and seven of his pistols were stolen. He had recorded the serial numbers of all his guns in anticipation of procuring insurance, but had not yet done so. He called the police, who came to his house, took fingerprints, and investigated the scene. Willis gave the police the serial numbers and identifying details of the pistols stolen. The police then had the dispatcher enter the make, caliber, serial number, and model number of the stolen pistols into the NCIC, so that if they were recovered their owner could be located. Police were unable to retrieve usable fingerprints. On January 30, 2002, Lovington police officers Brad Riley and David Rodriguez responded to a call on West Tyler Street. The officers saw Appellant standing on his porch across the street, and Appellant asked if they were there about the gun shots. The officers asked for consent to enter Appellant's house in order to examine the scene of the shooting. They found evidence of gunfire, and Appellant was arrested for interfering with their investigation. Riley then conducted a protective sweep of the house and found two firearms under the carpet in a bedroom. After completing the sweep, Riley called Detective Jamie Harden to investigate the scene. Harden photographed the weapons, collected them from the scene, and took them to the Lovington Police Department. The guns were fingerprinted, but no prints of value were found. The serial numbers were run through the NCIC. The Glock 17 nine millimeter gun matched the serial number of a pistol stolen from Willis's residence. The Colt pistol matched another serial number in the system except for one digit. Appellant was indicted for theft of a firearm, with enhancement. On appeal he complains of the denial of his motion to suppress, the legal and factual sufficiency of the evidence, and improper jury argument. We will address the render point first, as we are required to do, and then focus on the remand issues. This analysis requires that we consider Appellant's points of error out of numerical order. LEGAL SUFFICIENCY OF THE EVIDENCE
In Point of Error No. Two, Appellant challenges the sufficiency of the evidence to support his conviction. In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. All the evidence that the jury was permitted to consider properly or improperly must be taken into account in determining the legal sufficiency of the evidence. Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158; Chesnut v. State, 959 S.W.2d 308, 311 (Tex.App.-El Paso 1997, no pet.). Appellant was charged with theft of a firearm, a state jail felony. Tex.Pen. Code Ann. § 31.03(e)(4)(C) (Vernon 2003). The essential elements of a conviction for theft include the unlawful appropriation of property and the intent to deprive the owner of property. Tex.Pen. Code Ann. § 31.03(a). "Appropriate" means the acquisition of or the exercise of control over property other than real property. Tex.Pen. Code Ann. § 31.01(4)(B). Appellant appears to challenge the element of appropriation by claiming there is no evidence that he ever knew about the guns, handled them, or exercised care, control, management, or custody over the guns. Recent, unexplained possession of stolen property is a sufficient circumstance, in and of itself, to convict a possessor of stolen property of the theft of the property. See Sutherlin v. State, 682 S.W.2d 546, 549 (Tex.Crim.App. 1984); Taylor v. State, 921 S.W.2d 740, 744 (Tex.App.-El Paso 1996, no pet.). This rule of sufficiency is based upon a belief that those who steal property usually remain in possession of it for some time afterwards and persons acquiring property honestly during such an interval are typically willing to explain how they came by it. See Chavez v. State, 843 S.W.2d 586, 588 (Tex.Crim.App. 1992); Sweeny v. State, 925 S.W.2d 268, 270-71 (Tex.App.-Corpus Christi 1996, no pet.). Mere possession of stolen property, however, does not give rise to a presumption of guilt; it is only an inference of guilt which is not conclusive. See Hardesty v. State, 656 S.W.2d 73, 77 (Tex.Crim.App. 1983). To warrant an inference of guilt from the evidence of possession alone, such possession must be personal, recent, and unexplained, and must involve a distinct and conscious assertion of the right to the property by the defendant. Sutherlin, 682 S.W.2d at 549; Taylor, 921 S.W.2d at 745. If the defendant explains his possession of the property, the record must demonstrate the explanation is false or unreasonable. See Adams v. State, 552 S.W.2d 812, 815 (Tex.Crim.App. 1977); Taylor, 921 S.W.2d at 744. Whether the defendant's explanation is false or unreasonable is an issue to be decided by the trier of fact, and the falsity of the explanation may be shown by circumstantial evidence. See Adams, 552 S.W.2d at 815; Havard v. State, 972 S.W.2d 200, 202 (Tex.App.-Beaumont 1998, no pet.), quoting Price v. State, 902 S.W.2d 677, 680 (Tex.App.-Amarillo 1995, no pet.). Additionally, the defendant's explanation must be made when he is first called upon directly or circumstantially to do so. See Chavez, 843 S.W.2d at 587; Smith v. State, 518 S.W.2d 823, 824 (Tex.Crim.App. 1975), overruled on other grounds by Hardesty v. State, 656 S.W.2d 73, 77 (Tex.Crim.App. 1983); Taylor, 921 S.W.2d at 745. If the defendant fails to offer an explanation when first called upon to do so, the State is not required to refute an explanation made for the first time at trial. See Valdez v. State, 623 S.W.2d 317, 322 (Tex.Crim.App. 1979); Simmons v. State, 493 S.W.2d 937, 939 (Tex.Crim.App. 1973). The record reflects that each element required to warrant an inference of guilt is present. The firearms were discovered approximately five days after the burglary occurred. They were found inside Appellant's residence and there is no evidence that other persons had an equal right or facility of access to Appellant's home. See England v. State, 727 S.W.2d 810, 811 (Tex.App.-Austin 1987, no pet.) (holding that an inference of guilt based on the accused's personal possession of stolen goods is not raised where the stolen property is found in a place where others had an equal right and facility of access). The guns were hidden under the carpet in a bedroom and Appellant offered no explanation for their presence. Although he testified that he had a party that evening and that he did not personally know all of the attendees, he never contended that one of the party-goers placed the guns under his carpet. Our review of the record yields more than sufficient evidence to permit a rational jury to find beyond a reasonable doubt that Appellant was guilty of theft of a firearm. Therefore, the evidence is legally sufficient to sustain his conviction. Point of Error No. Two is overruled. We defer for the moment consideration of his factual sufficiency complaint. MOTION TO SUPPRESS
In Point of Error No. One, Appellant challenges the trial court's denial of his motion to suppress. He contends that the officers did not have consent to search or a search warrant and that the search did not fall under the protective sweep exception to the Fourth Amendment. Standard of Review
We review the denial of a motion to suppress for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). An abuse of discretion occurs when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). The court's findings of fact are given almost total deference, and in the absence of explicit findings, we assume the trial court made whatever appropriate implicit findings are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex.Crim.App. 1997). However, we review de novo the application of the relevant law to the facts, including Fourth Amendment search and seizure law. Carmouche, 10 S.W.3d at 327. When the facts are undisputed and we are presented with a pure question of law, de novo review is proper. Oles, 993 S.W.2d at 106. Thus, for example, when the issue to be determined on appeal is whether an officer had probable cause, the trial judge is not in an appreciably better position than the reviewing court to make that determination. Guzman, 955 S.W.2d at 87. Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of matters such as reasonable suspicion and probable cause should be reviewed de novo on appeal. Id., citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). A judicial ruling will not be reversed on appeal, even if made for the wrong reason, if the ruling is supported by the record and correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 139 (Tex.Crim.App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Calloway v. State, 743 S.W.2d 645, 652 (Tex.Crim.App. 1988). Similarly, when officers give the wrong reason for why their actions were legal under the Fourth Amendment, the case will not be reversed if the facts support a correct reason. Williams v. State, 726 S.W.2d 99, 100-01 (Tex.Crim.App. 1986); Esco v. State, 668 S.W.2d 358, 366 (Tex.Crim.App. 1982). Evidence Concerning the Seizure
Officer Riley testified that at 10:30 p.m. on the evening of January 30, 2002, the dispatcher received a 911 call from a residence on Tyler Street reporting that shots had been fired from a residence west of his. Riley and another officer went to the scene to determine where the gunfire originated. When he arrived, Riley did not notice anyone outside or see any vehicles leaving the area, but he did smell the odor of gunfire. Riley then looked to the north side of the street and saw a man whom he recognized as Appellant. Riley had dealt with Appellant in the past and had recently stopped a car in which Appellant was a passenger and from which Riley confiscated a sawed-off shot gun. Riley also knew that Appellant had been convicted of aggravated assault of a peace officer with a firearm. Appellant asked the officers if they were there because of the gun shots, which Appellant said had come from the back of his house. The officers asked if they could come inside and Appellant allowed them to enter. Riley could then smell the gun powder even more strongly. Upon entering the kitchen, Riley saw shattered glass; the back door was open but the screen was shut. He also noticed bullet holes in the drywall and spent shell casings on the floor. Appellant initially claimed he did not know who had fired the shots at his house, but he later said that "a friend" did it. He also said that a friend had returned the gunfire. The officers stressed that they needed to know who was responsible for the shooting and where the weapons were located, but Appellant refused to identify his friend. He was then taken into custody, handcuffed, and placed in a locked patrol car. Riley had seen a female walk from the kitchen into a bedroom before he had entered the house. Because he did not see her after he went inside and there were areas closed off from his view, Riley conducted a protective sweep to determine who was in the residence. He went into the bedroom where the woman was located and asked her to step outside. He saw a closed closet door and stepped to the side in order to open it. As he did so, he stepped on a bulge in the carpet which made a metal clicking sound. Riley admitted on cross examination that the carpet bulge was not large enough to accommodate a person and that he was not sure what the object was. He cleared the closet, rolled the carpet back where it had been pulled up, and found two handguns. He then left the guns unattended while he completed his protective sweep. Upon returning to the bedroom, Riley found a Glock 17 nine millimeter pistol with a fired shell lodged in the weapon. The gun appeared to have jammed when it was fired. A Colt pistol was loaded and ready to be fired. Riley admitted he did not obtain a search warrant. He felt it was necessary to conduct a protective sweep for his personal safety due to Appellant's history with weapons, his violent tendencies, and evidence of gunfire at the home. He acknowledged that he had reason to believe firearms were located in the home and he was looking for them during his protective sweep. Protective Sweep
A protective sweep is a quick and limited search of premises incident to an arrest and conducted to protect the safety of police officers or others. Maryland v. Buie, 494 U.S. 325, 328, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); Reasor v. State, 12 S.W.3d 813, 815 (Tex.Crim.App. 2000). In Buie, the Supreme Court found that while a defendant has a legitimate privacy interest in his home, a police officer also has a strong interest in ensuring that the house in which a suspect is arrested does not contain other persons who are dangerous and who could unexpectedly launch an attack. Buie, 494 U.S. at 333, 110 S.Ct 1093, 108 L.Ed.2d 276. The Supreme Court determined that a warrant was not required when officers, as a precautionary matter, were looking in areas from which an attack could be immediately launched. Id. at 334, 110 S.Ct 1093, 108 L.Ed.2d 276. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger on the arrest scene. Id. at 337, 110 S.Ct 1093, 108 L.Ed.2d 276; Reasor, 12 S.W.3d at 816. The sweep must not rise to a full search of the premises and may only extend to a cursory inspection of those spaces where a person may be found and last only long enough to dispel the reasonable suspicion of danger. Id. at 335, 110 S.Ct 1093, 108 L.Ed.2d 276. We have no doubt that the officers' protective sweep was proper. The officers testified that Appellant gave them permission to enter his home. He refused to give them information regarding his "friend" who had returned gunfire. The officers had taken Appellant into custody and knew a female was inside the residence. They had seen evidence of gunfire, broken glass, bullet holes in the drywall, and spent shell casings on the floor. Riley testified that he conducted the sweep due to Appellant's history with weapons, his violent tendencies, and evidence of recent gunfire. He had reason to believe that weapons were present in the residence. The officers were in the home with permission, took Appellant into custody, and articulated facts that the area to be swept harbored an individual posing a danger on the arrest scene. Buie, 494 U.S. at 337. Riley looked into the closet because it was large enough to hold a person. Id. at 335. We conclude the protective sweep and search of the bedroom closet was proper. However, the discovery of the firearms is more problematic. It does not fall within the protective sweep exception to the requirement of a warrant which authorizes only a cursory inspection. Reasor, 12 S.W.3d at 816. Officers are given authority to inspect spaces large enough to hold a person, not to pull back carpets and open drawers. See id.; Ramirez v. State, 105 S.W.3d 730, 743 (Tex.App.-Austin 2003, no pet.) (disallowing the opening of a cooler under the protective sweep exception because the officer could not reasonably believe it held a person); Torrez v. State, 34 S.W.3d 10, 18 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (expressing concern as to whether the opening of drawers, moving of furniture, opening of kitchen cupboards, searching under and between mattresses, and searching the top of closet shelves constituted a cursory inspection). Riley admitted that the carpet bulge he stepped on could not have hidden a person. Buie, 494 U.S. at 335. We must next determine whether the seizure of the firearms was permissible under another exception. Search Incident To Arrest
When a suspect is arrested, officers may search his person and the area within his immediate control for weapons that might be used to harm the officers and for evidence that might be destroyed. Jones v. State, 568 S.W.2d 847, 856 (Tex.Crim.App. 1978). The record suggests that Appellant was arrested inside the kitchen area while the officers were viewing the evidence of gunshots. The officers would have been justified in searching the kitchen as an area from which Appellant might have gained possession of a weapon. See Jones, 568 S.W.2d at 856. However, the firearms weren't found in the kitchen; they were located in a bedroom. Although the officers discovered a woman in the bedroom where the guns were discovered, there is no evidence that she was armed or that she was arrested. Consequently, the discovery would not fall under this exception. Exigent Circumstances
Exigent circumstances may also justify a warrantless search. A finding of exigent circumstances usually includes factors pointing to some danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible destruction of evidence. McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App. 1991). To prove exigent circumstances existed, the State must show that the officers could have reasonably concluded that evidence would be destroyed or removed before they could obtain a warrant. Id. Five factors are relevant to a reasonable determination by the searching officers that evidence might be destroyed or removed before they obtained a search warrant: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) a reasonable belief that contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that police are on their trail; and (5) the ready destructibility of the contraband Id. at 107, citing United States v. Rubin, 474 F.2d 262, 268 (3rd Cir. 1973). Once Riley discovered the firearms, he continued to secure the remaining rooms of the house before returning to the guns and calling Detective Hardin. There is no indication of urgency since the house had already been secured. One officer was watching the female occupant of the house, and Appellant was in custody in the police car. There is no evidence that the officers had a reasonable belief that the evidence would be removed while a search warrant was obtained or that the officers would be in danger while awaiting the warrant. Thus, exigent circumstances do not justify the warrantless seizure of the firearms. Plain View Doctrine
The plain view doctrine provides yet another exception to the requirement of a warrant. It requires that an officer see an item in plain view at a vantage point where he has the right to be, and that the officer immediately recognize the seized item constitutes evidence. Martinez v. State, 17 S.W.3d 677, 685 (Tex.Crim.App. 2000); Ramos v. State, 934 S.W.2d 358, 365 (Tex.Crim.App. 1996). The seizing officer must also have probable cause to associate the item with criminal activity. Martinez, 17 S.W.3d at 685. However, the exception does not justify warrantless, exploratory searches of closed containers that purport to contain innocuous materials. Id. Officer Riley had a plain view of the bulge in the carpet, but not a plain view of the guns. While he heard a metal clicking sound when he stepped on the bulge, he did not immediately recognize what was under the carpet. Because the guns were not in the officer's "plain view," this exception does not apply. Harm Analysis
Having found error, we proceed to a harm analysis. As a general rule, error in the admission or exclusion of evidence does not rise to a constitutional level. Arzaga v. State, 86 S.W.3d 767, 776 (Tex.App.-El Paso 2002, no pet.). Therefore, we apply the harmless error standard found in Tex.R.App.P. 44.2(b). Under this rule, the erroneous admission of evidence warrants reversal only if the evidence had a substantial and injurious effect or influence in determining the jury's verdict. See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). In assessing the likelihood that the error adversely affected the jury's decision, we consider everything in the record, including all testimony and evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might have been considered in connection with other evidence in the case. See Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002). We may also consider the State's theory of the case, any defensive theories, closing arguments, and voir dire. See Motilla, 78 S.W.3d at 355-56; Arzaga, 86 S.W.3d at 776. Appellant was charged with theft of a firearm. In order to convict Appellant of theft of a firearm, the State necessarily had to show that Appellant unlawfully appropriated the guns and that Appellant intended to deprive the owner of the guns. See Tex.Pen. Code Ann. § 31.01(4)(B). Appellant was convicted as a result of his possession of the guns, which was personal, recent, unexplained, and involved a conscious assertion of his right to the property. See Sutherlin, 682 S.W.2d at 549; Taylor v. State, 921 S.W.2d 740, 744 (Tex.App.-El Paso 1996, no pet.). Absent admission of the guns, the State had no other evidence to show that Appellant had possession of the guns. Therefore, the jury's verdict rested solely on the warrantless search and seizure of the firearms found in Appellant's house. This evidence then substantially and injuriously affected and influenced the jury's finding of guilt. CONCLUSION
We conclude that while the officer had probable cause to apply for a warrant and to secure the premises while awaiting the warrant, he did not have the authority to search under the carpet. Finding that the trial court abused its discretion in denying the motion to suppress the firearms, we sustain Point of Error No. One. Because our resolution of this issue requires remand, we need not address factual sufficiency of the evidence. Nor do we consider Point of Error No. Three concerning improper jury argument. The judgment is reversed and remanded.