Jeffery v. State

• Decision Date: 15 July 2005
• Docket Number: No. 06-04-00098-CR.,06-04-00098-CR.
• Parties: Robert Doyle JEFFERY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

169 S.W.3d 439

Robert Doyle JEFFERY, Appellant, v. The STATE of Texas, Appellee.

No. 06-04-00098-CR.

Court of Appeals of Texas, Texarkana.

Submitted May 30, 2005.

Decided July 15, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Eddie Northcutt, Sulphur Springs, for appellant.

Christopher Parker, Asst. Dist. Atty., Sulphur Springs, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Based on a prior "controlled buy" of crack cocaine by a covert witness from Robert Doyle Jeffrey, the Delta County Sheriff's Office obtained a search warrant to search Jeffrey's residence for controlled substances. In executing the warrant, the deputies knocked three times on the front door, announced their presence and their intent to execute the warrant, immediately heard someone running inside the residence, and entered the residence after waiting approximately five seconds. Inside Jeffrey's bedroom, the deputies discovered several rocks of crack cocaine in a pill bottle, a crack pipe, an electronic scale, a balance beam scale, and a ledger listing names and figures. After a jury trial and a conviction on charges of possession of a controlled substance with intent to deliver, Jeffrey was sentenced to thirty years' imprisonment.

There are two major issues raised on appeal: whether the short delay between deputies' "knock and announce" at the residence and the deputies' entrance into the residence was justified in light of the constitutional "knock and announce" requirement, and whether the State introduced insufficient evidence to corroborate the testimony of the covert witness. We affirm because we hold (1) the trial court did not abuse its discretion in denying the motion to suppress based on the alleged failure to "knock and announce" properly, and (2) the State introduced evidence to sufficiently corroborate the covert witness.

(1) The Trial Court Did Not Err in Denying the Motion To Suppress

Jeffrey argues, in his first point of error, that the State failed to establish that, when deputies executed the search warrant, they satisfied the "knock and announce" requirement.¹ Jeffrey contends the approximately five second delay, between when the deputies knocked on the door and announced their presence and when the deputies entered the residence, is insufficient to satisfy the "knock and announce" requirement. Jeffrey also argues the State failed to prove an exception to the "knock and announce" requirement. We disagree.

A trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Villarreal, 935 S.W.2d at 138. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We are also to afford such deference to a trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those questions turns on an evaluation of credibility and demeanor. Villarreal, 935 S.W.2d at 138. We review de novo those questions not turning on credibility and demeanor. Id.

Both the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, houses, papers, and effects.² U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. Under certain circumstances, the failure of police to knock and announce their presence and purpose before executing a search warrant may make the search unreasonable. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Police may dispense with the "knock and announce" requirement if they "have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or ... would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence."³ Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). Even if a warrant does not expressly authorize a "no-knock" entry, police may enter without an announcement if circumstances support a reasonable suspicion of exigency. Id. at 392-94, 117 S.Ct. 1416.

We agree with the Eastland Court of Appeals that a short delay between the announcement and the forced entry does not make the search unreasonable as a matter of law. See Stokes v. State, 978 S.W.2d 674, 676 (Tex.App.-Eastland 1998, pet. ref'd) ("two second" delay between the announcement and the forced entry does not make the search unreasonable "as a matter of law"). The United States Supreme Court, rejecting "bright-line" time guidelines for how long a police officer must wait before forcible entry, has held that the same criteria for dispensing with a knock and announcement "bear on when the officers can legitimately enter after knocking." United States v. Banks, 540 U.S. 31, 35, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003); see Flores v. State, ___ S.W.3d ___, ___, No. 01-03-00910-CR, 2005 WL 20532, *3 n. 5, 2005 Tex.App. LEXIS 68, at *9 n. 5 (Tex.App.-Houston [1st Dist.] Jan. 6, 2005, no pet.) (not designated for publication). In Banks, the United States Supreme Court found that entry was reasonable fifteen to twenty seconds after the announcement because the officers could reasonably expect destruction of the evidence if they delayed longer. Banks, 540 U.S. at 40, 124 S.Ct. 521. The United States Supreme Court held that the exigency had matured after fifteen to twenty seconds and entry was reasonable. Id. Therefore, if a reasonable suspicion of exigency had matured by the time the deputies entered Jeffrey's residence, the entry was not unreasonable.

The burden of proof is on the State to justify dispensing with the "knock and announce" requirement by showing exigent circumstances. Ballard, 104 S.W.3d at 376. We evaluate whether the execution of a warrant was reasonable on a case-by-case basis and consider the "totality of the circumstances." Banks, 540 U.S. at 35-36, 124 S.Ct. 521. The reasonableness of the forced entry is judged by the facts known to the officer at the time of entry. Id. at 39, 124 S.Ct. 521 (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The mere assumption that those in possession of controlled substances are normally also in possession of firearms is insufficient as a matter of law to relieve the authorities of their historical duty to knock and announce their presence. Price v. State, 93 S.W.3d 358, 367 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd).

The State presented sufficient evidence of exigent circumstances in this case. Deputy John Plemons testified he knocked three times on the front door, announced his presence and his intent to execute the warrant, and entered after approximately five seconds. On cross-examination, Plemons admitted it may have only been four or four and a half seconds. Plemons testified he immediately heard the sound of running when he commenced knocking. Sheriff Mark Bassham, who was at the side of the house, testified he heard the announcement. The burden to justify a "no-knock" entry "is not high." Ballard, 104 S.W.3d at 375-76. Although the deputies in this case entered more quickly than the officers in Banks, they had heard the sound of someone running inside. As the United States Supreme Court noted in Banks, drugs can be disposed of in a relatively short period of time. Banks, 540 U.S. at 40, 124 S.Ct. 521. The approximately five second wait, combined with the sound, coming from inside the house, of someone running in reaction to the knocking, provided the deputies with specific articulable facts creating reasonable suspicion that further delay would result in the suspects fleeing the scene or destroying evidence. Under the totality of the circumstances, the trial court did not abuse its discretion in determining that a reasonable suspicion of exigency had matured at the point the officers entered the residence.

Jeffrey cites Ballard in support of his argument that the entry was unreasonable. In Ballard, the parties did not dispute that the officers failed to knock and announce their presence before entering the house. Ballard, 104 S.W.3d at 376. The Beaumont Court of Appeals ruled there were not sufficient specific articulable facts to create a reasonable suspicion of exigent circumstances, and refused to create a per se exception for searches of methamphetamine labs. Id. at 383-84. Unlike officers in Ballard, the officers in this case did have specific articulable facts that created reasonable suspicion. The officers heard footsteps and had waited a few seconds. The trial court could have reasonably concluded these facts provided sufficient specific articulable facts to create reasonable suspicion of exigency.

While we may have reached a different conclusion as to the reasonableness of the entry, we cannot conclude the trial court abused its discretion in finding the entry reasonable. The trial court did not abuse its discretion in determining that a reasonable suspicion of exigency had matured by the time the officers entered the residence. Since the trial court did not abuse its discretion in denying the motion to suppress, we overrule Jeffrey's first point of error.

(2) The Evidence Sufficiently Corroborates the Covert Witness' Testimony

In his second point of error, Jeffrey argues that the evidence corroborating the testimony of the covert witness was insufficient.⁴...