Gallups v. State
| Decision Date | 08 December 2004 |
| Docket Number | No. PD-897-03.,PD-897-03. |
| Citation | 151 S.W.3d 196 |
| Parties | Tracy Glenn GALLUPS, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Lorin M. Subar, Dallas, for Appellant.
Manuel Gonzalez, Asst. District Atty., McKinney, Matthew Paul, State's Atty., Austin, for State.
HERVEY, J., delivered the opinion of the Court in which WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.
In this case, appellant was convicted of a felony driving while intoxicated offense. He challenges the legality of his warrantless home arrest. We decide that this arrest did not violate state law.
The record reflects that appellant filed a motion to suppress, challenging the legality of his warrantless home arrest. Appellant claimed in his motion to suppress that this arrest was illegal under state law solely because it did not meet the exception to the warrant requirement set out in Article 14.04, TEX.CODE CRIMS. PROC., which provides:
Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.
Appellant claimed at the beginning of the suppression hearing, however, that the police "entry into [appellant's] home, is what's at question, and the subsequent arrest that took place there." The issue of whether appellant consented to the police entry into his home (and not whether he was about to escape) was the main issue litigated at the suppression hearing.1
The evidence presented at the suppression hearing shows that the police had probable cause to believe that appellant was intoxicated when in the middle of the afternoon appellant wrecked his truck, abandoned it, and "bleeding from the mouth" walked home, which was a short distance away. See Gallups v. State, 104 S.W.3d 361, 363-65 (Tex.App.-Dallas 2003). Very soon thereafter, a police officer went to appellant's home to investigate. See id. This officer testified that, while outside, he saw appellant with blood around his mouth standing behind a full-length glass storm door and that appellant eventually motioned for the officer to come inside. See id.
Q. How did he do it? Can you describe for the court how he did it?
A. To the best of my recollection, I was standing to the left side of the doorway, and I asked him. And I just reached out and opened the door, and I had to step around and walk around the door as it opened up.
Q. Did he ever tell you you couldn't come in?
A. No.
Q. How did he motion for you to come in?
A. He just kind of indicated (demonstrating).
Q. That meant open the door?
For purposes of the record, you have your hand being extended out and coming back toward you.
A. Yes.
The officer went inside appellant's home and arrested him shortly after corroborating other information he had that appellant was intoxicated and was the driver of the wrecked truck. See id. Appellant testified at the suppression hearing and denied that he invited the officer to come inside his home. See id. Appellant claimed on direct examination that the officer just walked inside his home and asked him if he had been driving his truck to which appellant replied that he had not.
Q. Where were you in the home?
A. I was sitting on the couch next to my mother.
Q. All right. Sitting on the couch. Could you see the front door where you were seated?
A. I could see the wooden door.
Q. But could someone on the outside of that door necessarily see you?
A. No.
Q. All right. When Officer Perkins arrived, were you standing in that glass doorway?
A. No, sir.
Q. Did you open the door for Officer Perkins?
A. No, sir.
Q. Did you make any motions towards Officer Perkins to invite him into your home?
A. No, sir.
Q. When was the first time that you physically saw Officer Perkins at your house?
A. He stepped into the doorway, and when he did, he seen me and asked me to come outside and I refused.
Q. You told him no?
A. Yes.
Q. All right. Did you have any other conversations with Officer Perkins?
A. Yes. He walked over to me where I was at and asked me if I was driving a vehicle up the street, and I told him, no, I wasn't; that she might have been, and he asked my mother if she was driving.
Appellant later contradicted himself on cross-examination when he testified that it took him five minutes to walk from his wrecked truck to his home.
A. Yes.
Immediately following the suppression hearing, the trial court denied appellant's motion to suppress without specifying its reasons for doing so. On direct appeal, appellant claimed that his warrantless home arrest was "tainted" because the police entry into his home was illegal under state law. See Gallups, 104 S.W.3d at 363. In a 2-1 decision, the Court of Appeals rejected this claim. See id. Apparently applying the well-settled rule that an appellate court can affirm a trial court's decision if it is correct on any theory of law applicable to the case,2 the Court of Appeals decided that appellant's warrantless home arrest met the exceptions to the warrant requirement set out in Article 14.05(1) and Article 14.03(a)(1), Tex.Code Crim. Proc. See Gallups, 104 S.W.3d at 368 n. 8.3
We exercised our discretionary authority to review this decision. On discretionary review, appellant claims that his warrantless home arrest violated state and federal constitutional law and was also not authorized by any provision in Chapter 14 of the Texas Code of Criminal Procedure. The grounds upon which we granted discretionary review state:
1) Petitioner's arrest in his residence was in violation of the Tex.Code Crim. Proc. Art. 14.01-14.05.
2) Petitioner's arrest in his residence was in violation of Tex. Const. art. I, § 9.
3) Petitioner's arrest in his residence was in violation of U.S. Const., Amend. IV.
4) The error committed by the trial court contributed to Petitioner's conviction.
Appellant's constitutional claims (grounds two and three) were not raised in the trial court or in the Court of Appeals which did not address these claims either. We, therefore, exercise our discretion to dismiss them as improvidently granted. See Leday v. State, 983 S.W.2d 713, 714, 725 (Tex.Cr.App.1998) () and at 730 (McCormick, P.J., dissenting) (); but see Arline, 721 S.W.2d at 353.
We decide that appellant's warrantless home arrest was authorized by Article 14.05(1) which provides:
In each case enumerated where arrests may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all measures which he might adopt in cases of arrest under warrant, except that an officer making an arrest without a warrant may not enter a residence to make the arrest[4] unless:
(1) a person who resides in the residence consents to the entry ...
First we address whether the record supports a finding that appellant consented to the police entry into his home. See Reyes v. State, 741 S.W.2d 414, 430 (Tex.Cr.App.1987) (); see also Guzman v. State, 955 S.W.2d 85, 87-89 (Tex.Cr.App.1997) (). The dissenting opinion in the Court of Appeals asserts that the prosecution did not meet its burden to prove by clear and convincing evidence that appellant consented to the police entry into his home. See Gallups, 104 S.W.3d at 371 (Bridges, J., dissenting). This dissenting opinion asserts that the prosecution did not meet this burden with the officer's testimony that appellant "motioned for [the officer] to come forward" and "just kind of indicated" and with the other evidence that the dissenting opinion characterized as "some unspecified hand gesture" by appellant. See id.
This, however, does not take into account the other evidence from the officer demonstrating how appellant motioned for him not only to "come forward" but also to "come in." And, the evidence does not show just "some unspecified hand gesture." The evidence shows appellant's "hand being extended out and coming back toward him."5 These facts also distinguish this case from the cases cited in the dissenting opinion. See id.6 On this record, the trial court was in the best position to decide whether appellant consented to the police entry into his home. See Guzman, 955 S.W.2d at 87 ().
Having determined that the record supports a finding that appellant consented to the police entry into his home, the next issue under Article 14.05 is whether appellant's warrantless arrest falls within another provision...
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