Davis v. State

• Decision Date: 20 March 2002
• Docket Number: No. 10-00-364-CR.,10-00-364-CR.
• Citation: 74 S.W.3d 90
• Parties: Douglas Joseph DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

74 S.W.3d 90

Douglas Joseph DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 10-00-364-CR.

Court of Appeals of Texas, Waco.

March 20, 2002.

Daniel Burkeen, Groesbeck, for appellant.

Robert W. Gage, Freestone County Atty., Fairfield, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

BILL VANCE, Justice.

An indictment was returned against forty-year-old Douglas Joseph Davis for (1) manufacturing methamphetamine in an amount of 400 grams or more and (2) possession with intent to deliver methamphetamine in an amount of 400 grams or more, both of which are offenses punishable by fifteen to ninety-nine years or life in prison. Tex. Health & Safety Code Ann. § 481.112 (Vernon Supp.2002).¹ It was also alleged in the indictment that Davis had two prior convictions for aggravated robbery (while in his early twenties) and a prior conviction for possession of methamphetamine (he was thirty). At the State's election, the "manufacturing" offense alone was submitted to the jury, which convicted Davis. He elected for the court to assess punishment, pleading "true" to enhancement allegations based on the prior convictions. The court sentenced him to forty years in prison.

Davis asserts three issues on appeal, all of which pertain to the court's denial of his motion to suppress the evidence which was seized from his residence and which is the basis of the offenses for which he was charged. Hearing on the motion was held the day before trial. Specifically, he says: (1) the evidence was obtained pursuant to an illegal search and seizure of his home (a trailer); (2) the court erred in denying his requested jury instruction about illegal searches; and (3) the court erred in concluding that the seizure of the evidence was either incident to an arrest or made during a protective sweep of the premises.

We will reverse the judgment and remand the cause for a new trial.

FACTS

The following evidence was adduced at the suppression hearing from Officers Oates and Utsey, Kathy Nabors who was Davis's girlfriend (one of two females found in Davis's trailer), and Davis. Any disputed facts are so indicated.

• Officers Oates and Utsey, dressed in their uniforms and wearing firearms in plain view, arrived at Davis's trailer on May 8, 2000, without a warrant, acting on a tip from a confidential informant that Davis was in possession of a controlled substance. Oates testified he did not believe he had probable cause for a warrant at that time. Oates and Davis were previously acquainted.

• The officers entered the trailer. The officers testified that Davis freely allowed them into the trailer. Davis testified that they pushed their way in. When the officers entered, two females (including Nabors) were in the living room sitting on the couch. Nabors testified it was her impression that the officers were not invited into the trailer by Davis; she saw Davis "stumble back."

• There was no wall between the living room and kitchen, only blankets hung to separate the two spaces. The Officers could not see into the kitchen.

• Oates asked to speak with Davis and motioned toward the kitchen. Instead, Davis led Oates into the bedroom. Oates explained he thought Davis was in possession of an illegal substance and requested to search the trailer. Davis refused to sign a consent-to-search form, told Oates he needed a warrant, and requested that the officers leave the trailer.

• Meanwhile, Utsey, who had remained in the living room, observed in plain view the butt of a marihuana cigarette in an ash tray on the floor near the two females. (Nabors testified it belonged to her.) Utsey informed Oates about the marihuana who then told Davis, who became irate, entered the kitchen, and quickly returned. (Davis denied entering the kitchen.) Davis said "just take my f—ing ass to jail" and exited the trailer. Oates concluded from Davis's behavior that the marihuana belonged to him, so he followed Davis outside, arrested and handcuffed him, and read him his Miranda rights.

• The two females informed Utsey that they had more marihuana on their persons, and Utsey passed this information along to Oates when Oates returned into the trailer.

• Oates testified he noticed melting ice cream in a one-half gallon container in the living room and asked the two females if they wanted it placed in the freezer. When they answered affirmatively, Oates pulled back the blanket between the living room and kitchen and observed in plain view a methamphetamine lab in the kitchen. Nabors testified she brought the methamphetamine-lab materials to the trailer because she had attempted a "cook" but had made a "big mess," so she brought the materials to Davis to "straighten it out." Davis testified he tried to "fix the problem" but failed.

• For safety from a potential explosion, Oates had everyone exit the trailer. Surrounding residents were also evacuated.

• A lab team from the Texas Department of Public Safety was contacted to collect the items in the methamphetamine lab. No warrant was ever obtained.

At the conclusion of the hearing, the court denied the motion. It made written findings of fact and conclusions of law. The three conclusions of law are:

1. "Deputy David Utsey and Deputy Steven Oates, received an invitation from the defendant Doug Davis to enter the residence in Fairfield, Freestone County, Texas on May 8, 2000."

2. "The marijuana in the living room was in the officer's plain view."

3. "Any search conducted on May 8, 2000 was a search incident to arrest and/or a protective sweep."

We will also consider the trial testimony. When, as here, the defense participates in the examination of witnesses at trial on issues pertinent to a pre-trial motion to suppress, or does not participate but also does not object to the subject matter of the testimony, the defendant has consensually relitigated the suppression issue. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996); Hardesty v. State, 667 S.W.2d 130, 133 n. 6 (Tex.Crim.App.1984). Therefore, the trial court's pre-trial ruling is assessed in light of the evidence at both the pre-trial hearing and at trial. Id.

Only Oates and a chemist testified at trial for the State. Davis called no witnesses. Additional testimony at trial by Oates was that he reentered the trailer after arresting Davis because he was concerned for Utsey's safety in that someone else might be in the trailer or there might be weapons in the trailer. But his fears subsided when he saw that Utsey "showed no adverse reactions that somebody else was there." Then, out of "courtesy," he offered to put the ice cream in the freezer. He also testified that additional marihuana was recovered from the purse of one of the females.

STANDARD OF REVIEW

A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). There is an abuse of discretion "when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." 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 trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes 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, the application of the relevant law to the facts, including Fourth Amendment search and seizure law, is reviewed de novo. Carmouche, 10 S.W.3d at 327. Also, 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)).

However, 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).

APPLICATION

Davis complains that his trailer was searched in violation of the Fourth Amendment and Article I, Section 9 of the Texas Constitution,² because (1) there was no warrant, (2) he did not give consent, (3) there was no protective sweep search, and (4) there was no search incident to an arrest. It is undisputed that there was no warrant and Davis never gave consent to a search. In addition, the two females could not give consent for Oates to have access to the kitchen because it was not their residence and there is no evidence they had authority over the premises. E.g., State v. Derrow, 981 S.W.2d 776, 778 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd). Finally, we give deference to the trial court's determination, from conflicting evidence, that Davis gave the officers permission to enter the trailer. Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90....