Davidson v. State
| Citation | 249 S.W.3d 709 |
| Decision Date | 13 March 2008 |
| Docket Number | No. 03-06-00720-CR.,No. 03-06-00717-CR.,No. 03-06-00721-CR.,03-06-00717-CR.,03-06-00720-CR.,03-06-00721-CR. |
| Parties | Wendi Mae DAVIDSON, Appellant v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas |
Fred C. Brigman III, San Angelo, TX, for Wendi Mae Davidson, appellant.
Stephen R. Lupton, Dist. Atty., San Angelo, TX, for the State of Texas, appellee.
Before Justices PATTERSON, PURYEAR and PEMBERTON.
Appellant Wendi Mae Davidson was indicted for the murder of her husband Michael Severance and for two counts of tampering with or fabricating physical evidence with intent to impair. See Tex. Penal Code Ann. §§ 19.02(b)(1), 37.09 (West 2003). Appellant filed a motion to suppress evidence alleging that the placement and monitoring of a tracking device on her vehicle constituted an unlawful search and therefore violated state statutory requirements and her constitutional rights. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex.Code Crim. Proc. Ann. art. 18.21 (West Supp.2007); Tex. Penal Code Ann. § 16.06 (West 2003). Appellant also asserted that the involvement of Air Force agents in the investigation violated the Posse Comitatus Act. See 18 U.S.C. § 1385 (2000). The trial court denied the motion to suppress, and appellant pleaded no contest to all counts. In one issue on appeal, appellant contends that the trial court erred in denying her motion to suppress evidence obtained from the installation of an electronic tracking device on the undercarriage of her vehicle. For the reasons that follow, we affirm the trial court's order denying appellant's motion to suppress and the judgments of conviction.
The evidence at the hearing on appellant's motion to suppress showed the following facts. On January 16, 2005, appellant reported that Michael Severance, her husband and an airman in the United States Air Force stationed at Dyess Air Force Base in Abilene, had been missing since the day before. She advised the security forces section at the Air Force base that he may have deserted his post, possibly fleeing to Canada because he was scheduled to be deployed. Investigators with the Air Force Office of Special Investigations (AFOSI) began a missing persons/deserter investigation. At the request of his superior officer, Officer Dennis McGuire of the San Angelo Police Department began a parallel investigation into appellant's missing persons report and a report that there was a theft of money from appellant's veterinary clinic located in San Angelo.
During the course of their investigation, AFOSI agents interviewed various family members and other friends and acquaintances of appellant and her husband. Although appellant told the agents Severance had talked about deserting or leaving the service, Severance's family members said that deserting would be uncharacteristic of him. The agents conducted a search of the vicinity of appellant's veterinary clinic. On January 24, the agents met with representatives of various law enforcement offices to coordinate their efforts in the missing person investigation. They learned that Terrell Sheen, a local businessman, owned the building where appellant's veterinary clinic was located and knew appellant and her family. AFOSI Special Agent Greg McCormick testified that, early on in the investigation, the agents learned that appellant had "a horse on a ranch," but they did not know the location of the ranch. The agents began researching Sheen's properties to determine if Severance had access to them and might be found there. On January 28, Air Force personnel conducted a ground search of a two-mile radius of the veterinary clinic "cover[ing] possible areas that [Severance] could have walked off to."
During the course of their investigation, AFOSI agents sought and received written approval from the Regional Commander at Langley Air Force Base in Virginia to place a mobile tracking device on appellant's vehicle, which displayed an Air Force sticker allowing entry onto the Air Force base. On February 26, 2005, shortly after midnight, agents placed a tracking device on the exterior undercarriage of appellant's vehicle as it was parked in the parking lot of her veterinary clinic. The device tracked the whereabouts of appellant's vehicle on February 26 and 27. The data retrieved from the device showed that on February 27, appellant's vehicle traveled to a remote location, identified as ranch property owned by Terrell Sheen. The agents contacted Sheen on March 1. Sheen told the agents that appellant and Severance had access to his ranch property and that appellant kept a horse there. Sheen consented to the agents' search of the property.
Based on this additional information and Sheen's consent, on March 3, Sheen gave the agents a tour of the entire ranch property. Sheen also told them that Severance had been to the property and had access to it. Sheen allowed the agents access to all the buildings on the property and showed them various ponds, including a large stock pond with a boat dock. The agents observed that the ranch was gated and locked with a combination lock. There was a lengthy road leading to a barn, mobile homes, fenced corrals, and ponds. Sheen allowed the agents to walk through the mobile homes, barn, and outbuildings. Special Agent McCormick testified that the agents were looking for a missing person: "We went to every place that someone could possibly hide without going through the brush and looking under every rock."
On March 5, 2005, Texas Ranger Shawn Palmer and San Angelo Police Sergeant Jones interviewed appellant at the veterinary clinic. During the interview, the officers asked about the Sheen property, the pond on the property, and about computer searches done on a computer at the clinic, including internet searches on the subjects of polygraphs and "decomposition of a body in water."1 When the officers asked about the pond, appellant "became more abrupt in her answers ... [and] got kind of defensive," responding that her parents also had a pond on their property and that Sheen's ranch had three ponds, not just one. After the interview, the officers met with AFOSI agents and other officers in the vicinity. When Palmer noticed appellant's vehicle was no longer parked at the clinic, he asked the AFOSI agents and a police officer to set up surveillance in the vicinity of Sheen's ranch. Palmer testified:
After interviewing her and discussing this ranch and the pond, I became concerned that there was in fact something in the pond, possibly this missing person, if not evidence of some sort, but she definitely showed some interest in that pond.
When the officers arrived at the ranch, appellant was attempting to enter the gate. A police officer instructed appellant that she could not enter the property because police were securing the premises for a search. After she was denied access, appellant left.
That same day, Marshall Davidson, appellant's brother, contacted San Angelo police officer McGuire, advising him of the possibility that Severance's body could be found in one of the ponds on the Sheen ranch. Davidson requested a meeting. San Angelo police officers, including McGuire, met with Davidson. Appellant and her parents were also present at the meeting. McGuire testified at the hearing that everyone was "pretty upset." During the meeting, Marshall Davidson informed the officers that they should search the pond on Sheen's property. McGuire and Palmer testified that, during the meeting, they heard appellant say to her parents: Upon searching the pond on Sheen's property pursuant to Sheen's consent, authorities located Michael Severance's body.
Upon locating Severance's body, AFOSI agents ceased their investigation. San Angelo police and Texas Rangers obtained an arrest warrant for appellant and various search warrants for her clinic, home, computer, and vehicle. Appellant was indicted for the murder of Michael Severance and for two counts of tampering with or fabricating physical evidence with intent to impair. See Tex. Penal Code Ann. §§ 19.02(b)(1), 37.09.
Appellant moved to suppress all evidence resulting from the installation and monitoring of the tracking device on her vehicle. After a hearing that included the testimony of five witnesses; the admission of an arrest warrant naming appellant, five search warrants and the affidavits upon which they were based for appellant's clinic, home, computer, and vehicle; and the AFOSI authorization for the tracking device, the trial court denied the motion to suppress. Appellant did not testify. The trial court made the following findings of fact and conclusions of law:
1. United States Air Force personnel were authorized to place the mobile tracking device on the Defendant's vehicle.
2. The mobile tracking device was placed on the Defendant's vehicle in accordance with United States Air Force rules and regulations.
3. There was no search by law enforcement officials in monitoring the tracking device as there is no reasonable expectation of privacy in the observations of Defendant's movements on a public thoroughfare, and therefore no violation of the United States Constitution or the Texas Constitution.
4. There was no violation of Article 18.21, Texas Code of Criminal Procedure, as the placement of the mobile tracking device was authorized by proper United States Air Force personnel.
5. Even assuming there was a search, there was adequate attenuation by the statements made to law enforcement by the Defendant's brother in stating that they needed to look in the stock tank because the body was in the tank, and further by Defendant's statements to her parents that she had placed the body in the stock tank.
After the denial of the motion to suppress, appellant pleaded no contest to all charges. The trial court assessed...
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