Joseph v State

• Decision Date: 23 September 1999
• Parties: <!--3 S.W.3d 627 (Tex.App.-Houston 1999) JIMMY A. JOSEPH, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-98-00356-CR In The
• Court: Texas Court of Appeals

Page 627

3 S.W.3d 627 (Tex.App.-Houston [14th Dist.] 1999)

JIMMY A. JOSEPH, Appellant v THE STATE OF TEXAS, Appellee

NO. 14-98-00356-CR

In The

Fourteenth Court of Appeals

September 23, 1999.

On Appeal from the 228th District Court, Harris County, Texas Trial Court Cause No. 756,973

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[Copyrighted Material Omitted] Panel consists of Justices Yates, Amidei, and Baird.^*

O P I N I O N

Charles F. Baird, Justice (Assigned).

Appellant was charged with the offense of credit card abuse. See TEX. PEN. CODE ANN. 32.31 (Vernon 1994). Appellant pleaded guilty and was assessed a sentence of two years in the state jail facility, probated for two years, and a $500.00 fine. See TEX. CODE CRIM. PROC. ANN. art. 42.12, 15 (Vernon Supp. 1999). The State subsequently moved to revoke appellant's community supervision by filing a Motion to Revoke Probation, and shortly thereafter, an Amended Motion to Revoke Probation. The trial court held a hearing on appellant's plea of "not true" and at the conclusion of the hearing, revoked appellant's community supervision and assessed punishment at confinement for two years in a state jail facility. In his appeal from the revocation of his community supervision, appellant raises fourteen points of error. We affirm the trial court's judgment as to appellant's revocation, but we reverse the trial court's judgment as to appellant's punishment and remand the cause with instructions to reform the judgment to reflect any credit for time served.

I. Factual and Procedural Background

Appellant was represented on his initial charge of credit card abuse by Penny Wymyczack-White. On October 16, 1997, appellant entered a negotiated guilty plea and was sentenced to two years incarceration, probated for two years. On October 27, 1997, the State filed a Motion to Revoke Probation wherein it alleged appellant committed the offense of credit card abuse on or about October 25, 1997. On October 30, 1997, the State filed a First Amended Motion to Revoke Probation alleging appellant violated the terms of his community supervision by committing the aforementioned offense of credit card abuse, and that appellant failed to timely pay restitution to Crime Stoppers. Appellant discharged Wymyczack-White and retained his present counsel, Michael McLane, to represent him in the revocation proceedings.

At the hearing on the State's motion, Pamela Cavazos, a community supervision officer for the Harris County Adult Probation Department testified appellant was placed on probation on October 16, 1997. Appellant's conditions of community supervision included the requirement that appellant pay a $50.00 fee to the City of Houston Crime Stoppers reward fund by October 16, 1997. Appellant did not make the payment on the required date, but did make a $50.00 payment on November 14, 1997.

Debra Rowden, the manager of a Hampton Inn in Houston testified that on October 25, 1997, appellant rented a room, paying cash. Rowden recognized appellant from a previous stay in which he rented a room using a fraudulent credit card. Rowden called the police and met with Houston Police Officers King and Akahoshi, showing them the billing slip for the fraudulent card and room registration signed by appellant. The three went to appellant's room and knocked on the door.¹ After a few moments, appellant opened the door and both Rowden and King smelled the odor of marijuana emanating from the room. King entered the room and observed cigar butts smelling of marijuana in an ashtray on a nearby table. King then arrested appellant for possession of marijuana. King asked appellant for his identification and appellant stated it was in his wallet. King seized appellant's wallet and searched through a number of cards looking for appellant's identification. Within the assortment of cards was a credit card in the name of Lynda Wingate.

Lynda Wingate testified she owned the credit card found in appellant's wallet. She had purchased an item with the card the day before appellant's arrest and believed appellant had been the person who had waited upon her. Wingate did not give appellant permission to possess or use the credit card.

In his case-in-chief, appellant sought to suppress the evidence from the arrest on the ground that the police lacked probable cause to knock on the hotel room door during their investigation. Appellant also moved to "reinstate probation" on the ground that his original trial attorney, Wymyczack-White, had been ineffective in failing to contact all persons upon whom appellant had used a fraudulent credit card, including the Hampton Inn, and make arrangements for reimbursement. Appellant contended trial counsel's failure to resolve appellant's outstanding debts contributed to the investigation at the Hampton Inn, which ultimately led to his arrest and the discovery of Wingate's credit card, which subsequently provided a partial basis for the motion to revoke.

At the conclusion of the hearing, the trial court revoked appellant's community supervision and assessed a sentence of two years confinement.

II. Motion to Suppress Physical Evidence

Appellant alleges in his first point of error the trial court erred by failing to suppress the evidence of Wingate's credit card found in appellant's wallet because the police lacked probable cause to enter appellant's hotel room based solely upon the smell of marijuana. In his second point of error, appellant contends the trial court erred by failing to suppress the evidence of Wingate's credit card because the search of appellant's wallet violated the Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution because it did not fall within the recognized exceptions for a warrantless search.

In reviewing the trial court's ruling on a motion to suppress evidence, an appellate court should defer to the trial court's ruling on issues involving the application of law to facts, particularly if the resolution of the ultimate question turns on an evaluation of the credibility or demeanor of the witness. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Victor v. State, 995 S.W.2d 216, 224 (Tex. App.-Houston [14th Dist.] May 13, 1999, pet filed July 14, 1999). Questions which do not turn upon the application of historical fact to law are reviewed de novo. See Guzman, 955 S.W.2d at 87-88.

To justify a warrantless search, the State must demonstrate probable cause existed at the time the search was made, and that exigent circumstances existed which made the procurement of a warrant impractical. See McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991); Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App.1990); Victor, 995 S.W.2d at 224; TEX. CODE CRIM. PROC. ANN. art. 14.05 (Vernon Supp. 1999). The test for the existence of probable cause is "whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense." Guzman, 955 S.W.2d at 90 (citing Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989)).

In the present case, the police went to the Hampton Inn after the manager, Debra Rowden, called to make a criminal complaint about appellant's prior use of a fraudulent credit card. A citizen's complaint may be sufficient in itself to prompt further investigation of an offense. See, e.g., State v. Salio, 910 S.W.2d 184, 188 (Tex. App.-Fort Worth 1995, pet. ref'd); Tribble v. State, 792 S.W.2d 280, 283 (Tex. App.-Houston [1st Dist] 1991, no pet.). Accordingly, Officers King and Akahoshi had sufficient legal basis to investigate Rowden's complaint. Further, while an individual has a right to privacy in a hotel room, see Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964); Moberg v. State, 810 S.W.2d 190, 194 (Tex. Crim. App. 1991); Taylor v. State, 945 S.W.2d 295, 298 n. 1 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd), a person's expectation of privacy is not violated when a police officer knocks on a door while investigating the possible commission of an offense. See Rodriguez v. State, 653 S.W.2d 305, 307 (Tex. Crim. App. 1983) (holding that "Nothing in our Constitutions prevents a police officer from addressing questions to citizens on the street; it follows that nothing would prevent him from knocking politely on any closed door. Further, nothing in the statutes or governing constitutional provisions requires any citizen to respond to a knock on his door by opening it") (footnote omitted); Nored v. State, 875 S.W.2d 392, 396-397 (Tex. App.- Dallas 1994, pet. ref'd) (holding that police officers' entering onto defendant's property to knock on his door and question him about a stolen bike on his property did not violate Fourth Amendment prohibition against warrantless searches). Thus, while Officers King and Akahoshi would clearly not have been entitled to force open the door to appellant's room, nor compel him to open it and speak with them, there was no Fourth Amendment violation under the present set of facts by Officers King and Akahoshi accompanying Rowden to appellant's room to investigate a complaint of credit card abuse.

Nor was there any violation of the Fourth Amendment, article I, section 9 of the Texas Constitution, or Chapter 14 of the Texas Code of Criminal Procedure when the police arrested appellant in his hotel room for possession of marijuana and subsequently discovered the stolen credit card in the search incident to arrest.² Both Rowden and King testified the smell of marijuana emanated from the room after appellant opened the door. We are not at liberty to disregard the trial court's fact findings on this matter. See Guzman, 955 S.W.2d at 89. An officer may arrest a suspect for an offense committed...