Phillips v. State
| Decision Date | 24 April 2003 |
| Docket Number | No. 13-00-651-CR.,13-00-651-CR. |
| Citation | 109 S.W.3d 562 |
| Parties | Carol B. PHILLIPS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
W. Troy Mckinney, Houston, for appellant.
David C. Newell, Asst. Dist. Atty., John F. Healey, Jr., Dist. Atty., Richmond, for appellee.
Before Justices YANEZ, RODRIGUEZ and BAIRD.1
Appellant was charged by information with the misdemeanor offense of sale of an alcoholic beverage to a minor. TEX. ALCO. BEV.CODE ANN. § 106.03(a) (Vernon Supp. 2003). Following a pre-trial suppression hearing, the associate county court at law judge granted appellant's motion to suppress. The State appealed that ruling to the county court at law judge who reversed the decision of the associate judge. Appellant subsequently entered a negotiated plea of guilty, and was assessed a fine of $100.00. In a single point of error, appellant challenges the denial of the motion to suppress. We reverse.
At the hearing conducted by the associate county court at law judge on the motion to suppress evidence, the following testimony was developed. Shannon Burger was a seventeen year old minor child on the date of the alleged offense. Burger was asked by her aunt, a Texas Alcoholic Beverages Commission (TABC) officer, to enter a liquor licensed premise, and purchase an alcoholic beverage. Burger agreed to assist her aunt, and was instructed to enter the Mustang Lounge in Rosenberg, Texas. Prior to her entrance, Burger did not observe any signs prohibiting minors from entering the premises. Burger further testified that she did not see any such sign in the lounge, but acknowledged a sign could have been posted and she simply did not see it.
Appellant, a bartender at the Mustang Lounge on the date of the alleged offense, testified signs which prohibited the entrance of any person under eighteen years of age were posted at the entrance, and inside the lounge. Appellant testified these signs were posted on the night of the alleged offense, and clearly visible.2 Appellant admitted selling an alcoholic beverage to Burger without asking for identification. Appellant testified that if a patron appeared to be underage, she would ask for identification, and if the identification confirmed that the patron was underage, appellant would ask the patron to leave. If the patron refused to leave, appellant would call a "bar back" to escort the patron from the premises.
Daryl Darnell, a TABC enforcement agent, testified he was conducting an undercover operation of the Mustang Lounge on the night of the alleged offense. Darnell testified that Burger's role in the operation was the undercover minor. Darnell escorted Burger into the Mustang Lounge, and saw appellant sell an alcoholic beverage to Burger. Darnell testified he did not see any signs prohibiting persons under eighteen years of age at either the entrance to the lounge, or inside the premises. Darnell acknowledged such signs could have been posted, but he simply did not recall seeing one.
After hearing arguments on the motion, the associate judge took the matter under advisement, and subsequently granted the motion to suppress. The State filed a "Request for Findings of Fact and Conclusions of Law and Notice of Appeal." The associate judge complied with the State's request, and found, inter alia: that Burger was seventeen years of age when she entered the Mustang Lounge, a premise licensed for the sale of alcoholic beverages; Burger was accompanied by a TABC agent for the purpose of having Burger attempt to purchase an alcoholic beverage; no sign prohibiting entry to persons under eighteen years of age was posted at the entrance of the lounge; such a sign was posted within the premises in such a manner as to be reasonably likely to come to the attention of intruders; Burger remained on the premises of the lounge even though a sign was posted on the property prohibiting entry to persons under eighteen years of age; appellant had a greater right of possession to the establishment than did Burger; appellant had the apparent authority to act on behalf of the owner; neither Burger nor the TABC agent accompanying her were a fire fighter or emergency medical service personnel acting in the lawful discharge of an official duty under exigent circumstances; and, no warrant authorized Burger or the TABC agent to enter the lounge.
The associate judge then made conclusions of law which set forth section 30.05 of the Texas Penal Code which defines the offense of criminal trespass. See TEX. PEN. CODE ANN. § 30.05 (Vernon Supp.2003). The conclusions also set forth article 38.23 of the code of criminal procedure, the Texas Exclusionary Rule. See TEX.CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp.2003).
The State then filed a notice of appeal, a request for a de novo hearing, and objections to the findings of the associate judge. Specifically, the State objected to the application of section 30.05 and article 38.23 to the instant case, and the failure of the associate judge to include within his findings and conclusions "any of the State's arguments and law which were presented to the Associate Judge." Both the State and appellant submitted briefs to the county court-at-law judge stating their respective positions. The county court-at-law judge granted the State the right of appeal, and overruled the decision of the associate judge. The county court-at-law judge then denied appellant's motion to suppress without conducting a de novo hearing, and did not enter findings of fact or conclusions of law. Appellant eventually entered into a plea agreement with the State whereby appellant would plead nolo contendre to the offense of sale of an alcoholic beverage to a minor, and the State would recommend punishment at a fine of $100. The county court-at-law judge followed the punishment recommendation. Appellant filed a proper and timely notice of appeal. TEX.R.APP. P. 25.2(b)(3)(C).
A. Was Burger a Trespasser?
Appellant contends Burger's presence on the premises of the Mustang Lounge constituted criminal trespass and, therefore, the evidence obtained by Burger should have been suppressed under article 38.23. TEX.CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp.2003). The threshold issue, therefore, is whether Burger was a trespasser. Section 30.05 provides, in pertinent part:
(a) A person commits an offense if he enters or remains on property, ... of another without effective consent or he enters or remains in a building of another without effective consent and he:
(1) had notice that the entry was forbidden;
(b) For purposes of this section:
(2) "Notice" means:
(C) a sign or signs posted on the property ... reasonably likely to come to the attention of intruders, indicating that entry is forbidden;
(c) It is a defense to prosecution under this section that the actor at the time of the offense was a fire fighter or emergency medical services personnel ... acting in the lawful discharge of an official duty under exigent circumstances.
TEX. PEN.CODE ANN. § 30.05 (Vernon Supp. 2003). In light of the findings of fact and conclusions of law entered by the associate judge, Burger was a trespasser.3
Despite those findings, the State argues that Burger was entitled to enter the Mustang Lounge because the Texas Alcoholic Beverage Code provides for the use of minors to conduct undercover operations. In support of this argument, the State cites sections 101.04 and 106.05 of the Texas Alcoholic Beverage Code.
Section 101.04 (Consent to Inspection) provides:
By accepting a license or permit, the holder consents that the commission, an authorized representative of the commission, or a peace officer may enter the licensed premises at any time to conduct an investigation or inspect the premises for the purpose of performing any duty imposed by this code.
TEX. ALCO. BEV.CODE ANN. § 101.04 (Vernon 1995). Clearly, section 101.04 creates an exception to the warrant requirement for a member of the Alcoholic Beverage Commission, an authorized representative of the commission, or a peace officer to enter premises selling alcohol for the purpose of inspection or investigation. Santikos v. State, 754 S.W.2d 416, 418 (Tex. App.-Corpus Christi 1988), aff'd, 836 S.W.2d 631 (Tex.Crim.App.1992). This type of statutory waiver of Fourth Amendment protections against warrantless searches is well established with respect to certain heavily regulated business enterprises. Donovan v. Dewey, 452 U.S. 594, 598-601, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Colonnade Catering Corp. v. United States, 397 U.S. 72, 75-76, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (). However, this waiver is not unlimited. Colonnade Catering, 397 U.S. at 77, 90 S.Ct. 774; Crosby v. State, 750 S.W.2d 768 (Tex.Crim. App.1987). Section 101.04 does not authorize any individual to enter the premises; rather, it limits warrantless searches to TABC officers, "an authorized representative of the commission," or peace officers. Clearly, Burger was not a TABC officer. Further, there is no evidence that Burger was a "peace officer" as defined by article 2.12 of the Texas Code of Criminal Procedure. TEX.CODE CRIM. PROC. ANN. art. 2.12 (Vernon Supp.2003). Nor could Burger have been "deputized" in accordance with article 2.14 of the Texas Code of Criminal Procedure. TEX.CODE CRIM. PROC. ANN. art. 2.14 (Vernon 1977).
The only remaining issue is whether Burger was an "authorized representative of the commission." Our independent research has not revealed a single case where this term has been defined. Nor have we found any administrative provision entitling TABC agents to employ minors in undercover activities. The State argues section 106.05 of the...
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Phillips v. State
...motion and filed and ruled on before trial, or after getting the trial court's permission to appeal." 3. Phillips v. State, 109 S.W.3d 562 (Tex.App.Corpus Christi 2003, pet. granted). 4. TEX. ALCO. BEV.CODE § 106.03(a) (Vernon 5. The record is unclear as to whether this sign was posted outs......