Orosco v. State, 01-11-00558-CR
| Decision Date | 12 July 2012 |
| Docket Number | NO. 01-11-00558-CR,NO. 01-11-00559-CR,01-11-00558-CR,01-11-00559-CR |
| Parties | JAMES DAVID OROSCO, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case Nos. 1283643 & 1283645
After the trial court denied his motion to suppress, appellant, James David Orosco, pleaded guilty to possession of marihuana in an amount of more than fourounces, but less than five pounds,1 and possession of a firearm by a felon.2 In accordance with a plea agreement with the State, the trial court assessed punishment at six months' confinement on the marihuana charge and two years' confinement on the possession-of-a-firearm-by-a-felon charge. In his sole issue on appeal, appellant contends the trial court erred in denying his motion to suppress.
A narcotics officer with the Houston Police Department informed Officer R. Watson that he suspected drug activity at 620 Reid Street in Houston, Texas. Watson is a member of the Differential Response Team, whose "focus is enforcing code violations, building inspections and other regulatory matters." The narcotics officer told Watson that he had seen several municipal code violations at the property and asked Watson to check them out. Watson and his partner, C. Schuster, drove by the property and observed three different municipal code violations. Specifically, the grass was excessively tall, the roof was unsafe, and the automated trash collection container was not stored out of public view. Based on these observed violations, Watson obtained a search warrant for the property. Watson testified that the warrant gave him the authority to enter the curtilage of theproperty to investigate further municipal violations, but did not give him the authority to enter the home on the property. Watson further testified that he decided to get the warrant because "even though we had access to the property, we found that it's better to have the warrant in case people tell you, you know, run along."
On October 30, 2010, Watson, Schuster, and at least five other officers approached the residence at 620 Reid Street at 7 a.m. When they arrived, they noticed that there was a light on inside and appellant's car was in the driveway. Watson and Schuster approached the front door to knock and announce their presence, while the other officers formed a perimeter around the house to prevent anyone inside from "jumping out the back window" and running off and to make sure "that no one walks up on us while we're conducting an investigation."
Watson testified that he "knocked and knocked and knocked and knocked," but no one came to the door. The officers around the perimeter of the house looked in the windows and saw a bong on a coffee table and also noted that there were keys inside the front lock indicating that someone was home. While surrounding the house, the police saw additional municipal violations including stacked tires on the side of the house and exposed electrical wiring. The police also noticed that the house had "the kind of low quality security cameras that [areusually found] at drug dealers' houses." From one partially opened window, the officers detected the odor of marihuana.
The officers continued knocking on the door and windows intermittently for 20 to 30 minutes with no response from anyone inside. Watson testified that everyone within the house was being detained from the moment he and the other officers approached the house, and that no one was free to leave the residence until he had talked with them about the municipal code violations. After about 30 minutes of knocking, one of the officers discharged a shotgun at a threatening dog in the area. Immediately thereafter, appellant came out of the front door. He told one of the officers,
The officers heard the deadbolt lock on the door after appellant stepped outside. Watson, while surrounded by three or four other officers, placed appellant in handcuffs and then asked him whether anyone else was inside the house. Appellant initially denied that there was anyone in the house, but when questioned further by Watson, appellant replied, Watson then told appellant, Appellant talked to his girlfriend through the door and shethen came out on the porch. The officers had her sit in a chair on the porch because she was several months pregnant.
When appellant's girlfriend came out of the house, the officers noticed the smell of fresh marihuana and that appellant had several gang tattoos. Appellant told Watson that "he didn't want people knowing his business and he didn't want to talk around his girlfriend . . . [s]o [they] went inside to his kitchen right immediately inside the front door."
Before going inside with appellant, several of the officers did a "protective sweep" of the house. Watson did not ask permission to do the sweep, and he testified that he felt it was necessary because the officers smelled marihuana, "believed there's a high probability that someone else could be in there," saw appellant's gang tattoos, and appellant had lied once about there being no one in the house. During the protective sweep, the officers found two loaded firearms, smelled fresh marihuana, saw drug paraphernalia, and discovered a "hydroponic" marihuana growth set-up in one of the rooms. Although no marihuana was seen, there were some plant stems in pots and some other drug paraphernalia. After the 45-second sweep, the officers "pulled out waiting for either a search warrant . . . or to see if we could just talk to the defendant and he would give his consent to search." Watson then read appellant his Miranda rights.
Watson told appellant, Appellant responded that "as long as [they] kept his girl out of it, he would give written consent."
Appellant, Watson, and Schuster went inside to the kitchen, got appellant a glass of water, and spent about 20 minutes discussing the consent. Watson told appellant that if a person cooperates with a search request, it "usually works out better in their favor at the end of the investigation." Watson also told appellant, "You want me to keep your girl out of this?" To which appellant responded, Officer Schuster testified that appellant was told that if he signed the consent, his girlfriend would not be prosecuted or arrested. However, on cross-examination Schuster clarified that appellant first brought up the issue of letting his girlfriend go, and that there was no promise of anything in exchange for signing the consent. Watson also testified that he told appellant that in return for signing the consent, he would not charge appellant's girlfriend. Watson then read appellant the consent form, explained it to him, and informed appellant that he had the right to refuse to consent. Appellant signed the form.
The police discovered a large quantity of marihuana during their subsequent search of the house.
Appellant contends the trial court erred in denying his motion to suppress based on his execution of the consent form. Specifically, appellant contends that his consent was involuntary because (1) the warrant giving police the right to enter the curtilage of his property was invalid; (2) he was constructively seized in his home when police surrounded his home and knocked on the door and window for 30 minutes before discharging a weapon, which caused him to involuntarily leave his home; (3) the police conducted an illegal "protective sweep" of his home; and (4) the police illegally induced his consent by promising to "keep his girl" out of it if he cooperated and signed the consent.
In reviewing the trial court's ruling on the motion to suppress evidence, we apply a bifurcated standard of review, giving "almost total deference to [the] trial court's determination of historical facts" and reviewing de novo the court's application of the law of search and seizure to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). If the issue involves the credibility of a witness, such that the demeanor of the witness is important, then greater deference will be given to the trial court's ruling on that issue. Guzman, 955 S.W.2d at 87. In a motion to suppress hearing, the trial court is the sole trier of fact and judge of thecredibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Accordingly, the trial court may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. Id. We will uphold the trial court's ruling on a motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case. Id. at 856.
As here, when the trial court files findings of fact with its ruling on a motion to suppress, an appellate court does not engage in its own factual review, but determines only whether the record supports the trial court's fact findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless the trial court abused its discretion by making a finding not supported by the record, we will defer to the trial court's fact findings and not disturb the findings on...
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