Brown v. State, No. 14-05-01022-CR (Tex. App. 2/1/2007)
| Decision Date | 01 February 2007 |
| Docket Number | No. 14-05-01022-CR.,14-05-01022-CR. |
| Parties | ROBERT LYNN BROWN, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 1013109.
Affirmed.
Panel consists of Justices ANDERSON, HUDSON, and GUZMAN.
Appellant, Robert Lynn Brown, plead guilty to the aggravated robbery of Jamie Melchor and was sentenced to confinement for fifteen years in the Texas Department of Criminal Justice, Institutional Division. In two points of error, appellant claims the trial court erred in denying his motion to suppress evidence and his motion to suppress oral statements. We affirm.
On the morning of December 8, 2004, Deputy Victor Zigmont of the Harris County Sheriff's Department responded to a call from J.C. Rutherford, a resident of northeast Harris County. Rutherford stated that two men named "Bobby" and "Ryan" had come to his home and accused him of breaking into their nearby residence. Rutherford told Zigmont that "Bobby" and "Ryan" had stolen property, including stolen vehicles and license plates from stolen vehicles, at their residence. Zigmont took Rutherford to a residence on Spicewood Lane, where "Bobby" and "Ryan" were alleged to live. Rutherford found license plates on the property and showed them to Zigmont. Zigmont determined that one of the license plates belonged to a stolen Chevrolet Suburban. Zigmont also observed one of the windows on the front of the residence was broken. However, the opening in the broken window was not large enough for a person to pass through.
Also on December 8, Deputies Gregg Board and Jesse Aranda went to the same residence on Spicewood Lane to execute multiple warrants for the arrest of Christopher Moak. When the officers arrived, they observed the back door was open and a window was unsecured. Board and Aranda entered the rear of the residence and determined that no burglary was in progress at that time. While the officers were at the location, they received information from Rutherford that an occupant of the Spicewood residence might be driving a stolen Chevrolet Suburban. Board and Aranda believed that Moak was the owner and occupant of the Spicewood residence.
On December 9, 2004, Deputy Board returned to the Spicewood residence to execute arrest warrants for Moak. Board observed the glass in the front window of the residence was completely broken out, which was significantly different from the condition he had seen the prior day. A Chevrolet Suburban with no license plates was backed into the driveway of the residence. Board checked the vehicle identification number ("VIN") on the Suburban and learned that the vehicle had been reported stolen. Board suspected a burglary was in progress at the residence and called for the assistance of other officers. Board entered the Suburban and found appellant's wallet and cellular telephone, neither of which contained any information indicating appellant lived at the Spicewood residence. A purse belonging to Susan Lopez was also recovered from the Suburban. The purse contained a checkbook belonging to Megan Goodman, the girlfriend of the complainant, Jamie Melchor.
Additional officers arrived at the scene and secured the perimeter of the residence. The officers heard movement inside the residence and repeatedly instructed the occupants to come outside. The officers observed Susan Lopez, who began to exit the residence, but instead walked back down a hallway and into a bedroom. Deputy Board contacted his supervisor, Sergeant Steubing, and stated that he believed a burglary was in progress at the residence. Board informed Steubing that a stolen vehicle was backed into the driveway, the picture window on the front of the residence had been broken out, and the people inside the residence refused to come out. Steubing instructed Board to enter the residence through the broken window.
The officers entered the residence and found appellant and Lopez in a bedroom. A loaded pistol-grip shotgun was lying on the bed near appellant. It was subsequently determined that the shotgun had been stolen, and the same type of weapon had been used to commit an aggravated robbery involving Jamie Melchor. It was also later determined that the residence on Spicewood Lane was owned by appellant's mother and leased to appellant by his mother.
Appellant was taken into custody and advised of his Miranda1 rights. Deputy Board transported appellant to the police station. While being transported, appellant sua sponte stated that he bought the Suburban for $500; he thought the VIN plate on the vehicle had been changed; and the vehicle would not show up as having been stolen. Appellant further stated that he "was going to take the rap for all this" because his wife was a good person. After arriving at the police station, appellant was interviewed by Houston Police Officer David Pena, Jr., who was investigating the aggravated robbery of complainant, Jamie Melchor. Appellant made additional statements to Officer Pena.
On February 22, 2005, a Harris County grand jury indicted appellant for the aggravated robbery of Jamie Melchor. Appellant filed a motion to suppress evidence and a motion to suppress oral statements. On September 16, 2005, the trial court held a suppression hearing and considered both of appellant's motions. At the conclusion of the hearing, the trial court denied appellant's motion to suppress evidence and denied appellant's motion to suppress oral statements with regard to statements made by appellant to Deputy Board. On September 21, 2005, appellant changed his plea from not guilty to guilty. Appellant was convicted of aggravated robbery and sentenced to fifteen years' confinement. This appeal followed.
When reviewing a trial court's suppression ruling, we give almost total deference to the trial court's determination of historical facts that the record supports. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same degree of deference to a trial court's ruling on mixed questions of law and fact when the resolution of the ultimate question turns on an evaluation of credibility and demeanor of witnesses. Id. We review de novo mixed questions of law and fact when the resolution of the issue does not turn on an evaluation of credibility and demeanor. Id. During a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). We must sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
In his first point of error, appellant argues the trial court erred in denying his motion to suppress evidence because the police entered his house without a warrant, probable cause, or exigent circumstances in violation of his Fourth Amendment rights. The State argues the police officers who entered the residence had probable cause to believe a burglary was in progress, and exigent circumstances justifying entry into the residence also existed based upon the reasonable belief that a burglary was in progress.
The Fourth Amendment prohibits the warrantless entry of a residence by police without probable cause and exigent circumstances. Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006). It is undisputed that the police did not have a warrant to search the premises. Therefore, we must determine whether, under the facts of this case, the police had probable cause and exigent circumstances to enter appellant's residence without a warrant.
Probable cause is the accumulation of facts which, when viewed in their totality, would lead a reasonable police officer to conclude, with fair probability, that a crime has been committed or is being committed. Id. at 599. Probable cause to search 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 of a crime or evidence of a crime will be found. Id. at 597.
When the police decided to enter appellant's residence without a warrant, the following facts were known to them:
(1) The glass was completely broken out of a window on the front of the residence, more so than it had been on the previous day.
(2) A Chevrolet Suburban was backed into the driveway of the residence, and the vehicle had no front or back license plates.
(3) A check of the Suburban's VIN indicated that the vehicle was stolen.
(4) A wallet containing appellant's birth certificate and social security card was found in the Suburban. Nothing in the wallet indicated appellant lived at the residence.
(5) A purse belonging to Susan Lopez was found in the Suburban. The purse contained a checkbook that belonged to Megan Goodman.
(6) Before the officers entered the residence, they heard movement inside the residence and repeatedly instructed the occupants to come outside.
(7) Susan Lopez began to walk out of the residence, but then walked back down a hallway.
Under factually similar circumstances, the Fourth Court of Appeals held that police had probable cause to believe a burglary had been committed. See In re J.D., 68 S.W.3d 775, 779B80 (Tex. App.-San Antonio 2001, pet. denied). In In re J.D., police responded to a report that two juveniles had been seen carrying a rifle in the vicinity of an elementary school. Id. at 779. A witness at the scene told police that the juveniles had entered a nearby residence. Id. Two officers...
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