DeMoss v. State

• Decision Date: 15 December 1999
• Docket Number: No. 04-98-00301-CR,04-98-00301-CR
• Citation: 12 S.W.3d 553
• Parties: (Tex.App.-San Antonio 1999) James DEMOSS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 553

12 S.W.3d 553 (Tex.App.-San Antonio 1999)

James DEMOSS, Appellant v. The STATE of Texas, Appellee

No. 04-98-00301-CR

Court of Appeals of Texas San Antonio.

December 15, 1999.

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 98-CR-1103

[Copyrighted Material Omitted]

Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LOPEZ, Justice, KAREN ANGELINI, Justice

O P I N I O N

Opinion by: KAREN ANGELINI, Justice

Nature of the Case

James DeMoss was charged in a six-count indictment with aggravated sexual assault of a child, indecency with a child by sexual contact, and inducing sexual performance by a child, all occurring "on or about" February 28, 1996, and March 15, 1996. A.V.,¹ a thirteen year-old girl at the time of the offenses, was the complainant in each count. A jury convicted DeMoss of each of the six counts. DeMoss appeals his convictions in five points of error. This court affirms DeMoss's convictions in part, and reverses and renders his convictions in part.

FACTUAL BACKGROUND

James Jones was a San Antonio police officer, who also worked in his off-duty hours for Paragon Cable to recover illegal cable boxes. While working for Paragon, Jones received a tip from another Paragon employee that an illegal cable box was present at DeMoss's address. Based on this tip, Jones obtained a search warrant to search DeMoss's residence. Jones executed the warrant in his off-duty hours, while working for Paragon. Jones was in plain clothes, but was accompanied by another off-duty police officer in uniform, Raul Alonzo. DeMoss was not at home at the time Jones and Alonzo executed the warrant, but A.V. was, and she allowed the men to conduct the search. Jones did not find a cable box near the television, so the men conducted a general search of the residence. During the search of the residence Jones discovered photographs in a shoe box in A.V.'s closet, which he considered to be child pornography. Jones and Alonzo terminated the search and left after securing the residence with on-duty police officers. Then, in his capacity as a San Antonio police officer, Jones obtained a second search warrant to search for child pornography. Items found during the second search of DeMoss's residence and a third search of the residence next door resulted in the six charged offenses against DeMoss. The items, which included photographs and videos, were admitted during trial.

Discussion

In his first point of error, DeMoss challenges the trial court's denial of his motion to suppress the photographs discovered during the search of his house. DeMoss contends the first search of his residence was illegal because Jones was not acting as a police officer at the time of the search, but was acting in a private capacity for a private corporation. Because only peace officers may execute a search warrant, and Jones was off-duty and working in a private capacity, DeMoss contends Jones was not authorized to execute the search warrant. DeMoss contends the search was illegal, and, therefore, the fruits of the search and subsequent searches should not have been admitted as evidence against him.

It is undisputed that Jones was employed primarily as a San Antonio Police Officer at the time of DeMoss's arrest, and he worked part-time in his off-duty hours for Paragon Cable. The determinate issue is whether an off-duty peace officer working in a private capacity at the time he executes a search warrant is still acting in his capacity as a peace officer to effectuate a legal search. This is an issue of first impression.

To begin, this court must determine whether DeMoss preserved this complaint for appellate review. DeMoss raised the issue whether Jones was authorized to execute the search warrant in one of several motions to suppress he filed in a previous case filed against him. That case was dismissed, and this case was subsequently brought forward, alleging the same crimes, with a new case number. DeMoss did not refile the motions to suppress from the previous case, but filed two new motions raising different challenges to the search of his home. However, at the hearing on the motion to suppress, the State agreed to allow the motions to suppress from the previous case to be brought forward in this case. The problem occurs in DeMoss's statement in his appellate brief that he is only challenging the trial court's overruling of his second motion to suppress filed in this case. This second motion to suppress does not address the issue whether Jones was authorized to execute the search warrant while off-duty and working ina private capacity. At the hearing on the motion, however, DeMoss argued that Jones was not acting as a peace officer because he was an employee of Paragon Cable and was acting in Paragon's interest. Because DeMoss proffered argument at the hearing on this issue and because the issue was raised in a previous motion to suppress, the trial court had the opportunity to address this argument, and DeMoss preserved the issue.

At a hearing on a motion to suppress, the trial court is the sole judge of the witnesses' credibility and the weight given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (en banc). On review, this court must determine whether the trial judge's fact findings are supported by the record. Id. This Court may review the trial judge's application of law to facts under a de novo standard of review where the resolution of the issues does not turn on an evaluation of the witnesses' credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc).

The Code of Criminal Procedure provides that a search warrant may only be issued by a magistrate and may only be executed by a peace officer. Tex. Crim. P. Code Ann. art. 18.01 (Vernon Supp. 1999). A peace officer includes "marshals or police officers of an incorporated city, town, or village." Tex. Crim. P. Code Ann. art. 2.12 (Vernon Supp. 1999). The duties and powers of peace officers under the Code are also described:

It is the duty of every peace officer to preserve peace within his jurisdiction. To effect this purpose, he shall use all lawful means. He shall in every case where he is authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime. He shall execute all lawful process issued to him by any magistrate or court. He shall give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe there has been a violation of the penal law. . . .

Tex. Crim. P. Code Ann. art. 2.13 (Vernon Supp. 1999).

Plain reading of these statutes supports the State's position that it is immaterial to the legality of the execution of the search warrant whether a police officer is off-duty when he executes it; as long as the person executing the warrant is actively employed as a peace officer, he is authorized to execute a search warrant. See Tex. Crim. P. Code Ann. arts. 2.12, 18.01.

The most instructive case on this issue is Moore v. State, 562 S.W.2d 484, 486 (Tex. Crim. App. 1978). In Moore, the Court decided the issue whether an off-duty police officer acted as a private citizen while conducting a search of a van parked in front of a neighbor's house. In that case, the State contended that because the police officer was off-duty, he acted as a private citizen when he searched the van, and, therefore, his action did not "fall within the perimeters of the Fourth Amendment proscription of unreasonable searches and seizures." The Court disagreed, recognizing the longstanding rule of law that "an officer is for many reasons on duty 24 hours a day." Id. The Court held that "'a police officer's 'off-duty' status is not a limitation upon the discharge of police authority'" in the presence of criminal activity. Id. (citing Wood v. State, 486 S.W.2d 771, 774 (Tex. Crim. App. 1972)). Although Moore is factually distinguishable, the rule that a police officer is "on duty 24 hours a day," regardless of the capacity in which he acts, has been followed in other factually distinguishable cases, and the rule is applicable to these facts. See e.g., Blackwell v. Harris County, 909 S.W.2d 135, 138 (Tex. App.-Houston [14th Dist.] 1995, writ denied) (whether an injury sustained by an off-duty officer acting in law enforcement capacity was compensable).

In this case, although Jones was off-duty, and was employed by a private corporation, he was still a "peace officer" to the extent required to execute a search warrant. Jones's duties while employed by Paragon constituted furtherance of his law enforcement duties. Jones's off-duty status and employment by a private corporation did not remove the shroud of his status of a peace officer 24 hours a day and did not limit his discharge of police authority. See Moore, 562 S.W.2d at 486. Accordingly, the trial court did not err by denying DeMoss's motion to suppress based its finding that Jones was authorized to execute the search warrant even though he was off-duty. DeMoss's first point of error is overruled.

In his second point of error, DeMoss contends the trial court erred by denying DeMoss's motion to suppress because Jones's search of his home went beyond the scope of the search warrant. DeMoss contends that the scope of Jones's search of his residence exceeded its justification because Jones looked in a box in A.V.'s room that was not large enough to contain the suspected illegal cable box. DeMoss challenges the validity and reasonableness of the search because its scope was beyond that authorized by the search warrant.

Again, this court must first determine whether DeMoss preserved this error for review. On the first day of trial, DeMoss filed a motion to suppress, which presumably related to this issue. The motion itself did not raise any specific argument, but simply requested the suppression of A.V.'s statement to police and DeMoss's statements. The trial court...