Roth v. State
| Decision Date | 15 November 1995 |
| Docket Number | Nos. 03-94-00201-C,03-94-00202-CR,s. 03-94-00201-C |
| Parties | Kristopher ROTH, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Bruce S. Fox, Austin, for appellant.
Ronald Earle, District Attorney and Allison Wetzel, Assistant District Attorney, Austin, for the State.
Before POWERS, B.A. SMITH and ONION *, JJ.
These appeals are taken from convictions for possession of a controlled substance, to wit: psilocybin (mushrooms) in an amount less than twenty-eight grams and for possession of a controlled substance, to wit: cocaine in an amount of less than twenty-eight grams. After the trial court overruled the pretrial motion to suppress evidence, appellant Kristopher Roth entered a plea of not guilty to each indictment before the court. The evidence was stipulated in the bench trial with appellant continuing to challenge the admission of the evidence as to the contraband involved. The trial court found appellant guilty on both charges and assessed his punishment at five years' imprisonment in each case. The imposition of the sentences was suspended and appellant was placed on probation in each case for five years subject to certain conditions.
Appellant advances two points of error, which are virtually the same in both cases. Appellant contends that the trial court erred in denying the motions to suppress evidence because of an illegal entry into his residence, and a warrantless search without consent and without exigent circumstances in violation of his constitutional rights. In the possession of cocaine case, appellant argues that the written consent to search was tainted by the violation of his rights and the actions of the police officers. In the first point of error in each case, appellant relies upon Article I, Section 9 of the Texas Constitution, and in the second point of error in each case, appellant relies upon the Fourth and Fourteenth Amendments to the United States Constitution. The facts and the law are so blended and interwoven, we shall consider the contentions together.
Patrol Officer Carl Yates of the Austin Police Department testified at the suppression hearing that about 1:15 a.m. on October 23, 1993, he was dispatched to a store at the corner of Burton and Oltorf streets. There, he encountered two "kids" (ages not given), who identified themselves as Thomas Ackley and Seth Keller. They informed Yates that the afternoon before they had gone to appellant's apartment 116 at 2124 Burton Street with Mason Holt, a runaway juvenile, who had stolen his father's handgun. They believed Holt to still be in the apartment with plans to stay there. Yates was informed that Holt had sold the handgun to one of the four adults living in the apartment, that appellant was in possession of mushrooms, and that he had told them that he had a large quantity of cocaine. They did not profess to have seen any cocaine. Ackley and Keller told Officer Yates that they were "afraid for their friend being there."
Officer Yates checked with the police dispatcher and discovered that Holt's father had reported his son as a runaway who had taken the father's handgun. At this time, Senior Sergeants Kornfuehrer and Ortiz, and Officer Vincent were on the scene. The apartment in question was about one hundred yards away. Yates and the two juveniles went to the apartment. Yates stated that it was "[o]ur main intention to find the runaway, Mason Holt, and possibly the weapon that he had." Officer Yates had Ackley and Keller knock on the front door. Appellant answered and opened the door "just enough for him to be just looking outside ... probably not even enough for his body to go through." Yates then stepped in front of the two juveniles and asked appellant if Mason Holt was there. Appellant replied in the negative, but when told that Holt was a runaway, appellant stated: "He's upstairs." Yates stated that it was possible that appellant could have said: "Wait here, I'll get him," but he did not hear appellant make that statement. Yates acknowledged that he did not ask to enter or search the house and that appellant did not invite him into the house.
Yates recalled that when appellant turned and stepped away, the "door opened enough Appellant testified that Mason Holt was spending the night at the apartment. He did not know Holt's age. He acknowledged that he first told Officer Yates that Holt was not there, but when he learned that Holt was a runaway, he told Yates that Holt was upstairs, to wait at the door, and that he would get Holt. Appellant stated that he did not invite Yates into the house nor did Yates ask permission to enter. Appellant stated that he pushed the door to close it but it did not completely close or latch, that he was going up the stairs when he realized that the officer was just behind him, and that he did not know that he could have told the officer to leave. Appellant stated that in the hallway Yates pushed past him and entered the bedroom where Holt was. After Holt was removed from the room, Yates walked over to a closed "Tacos To Go" box, opened it up, shined his flashlight into the box and said: "Ah, Shrooms." Appellant explained that the bedroom had one green light bulb burning and it was very dark. Appellant admitted there was a closed metal box in the room that contained his birth certificate, "driver's certificate," and other personal papers. It was not opened during the search. It did not contain any contraband. The officers told appellant that they had probable cause for a search warrant after finding the mushrooms and that police officers would stay in the apartment until someone woke up a judge and got a search warrant. Thereafter, appellant, who was nervous, signed the consent to search form.
for us 1 to just follow him right in. And he looked as though he wanted us to follow him--or that he didn't mind us following him." Yates did not see appellant pull on the door as he turned, but the door did open. All four officers entered the apartment. Officer Vincent remained downstairs. The other three followed appellant up the stairs. As they walked into one of the bedrooms, appellant stated: "There he is." Holt was seated on a couch and an adult was on a bed. In the middle of the room was an open metal box containing two mushrooms. The boy, scales and some baggies were all in plain view. Officer Yates was able to identify the mushrooms based on his experience and training. Appellant immediately claimed the contraband was his. Sergeant Kornfuehrer then told appellant that the officers now had probable cause to obtain a search warrant but that he could make things "easier" and just give consent to search the apartment. Kornfuehrer filled out a consent to search form and had appellant sign it. Yates stated that no promises or inducements were made to get appellant to give consent. He described appellant as being very cooperative. Thereafter, Yates found a small amount of cocaine in a closet in the same bedroom. Appellant also claimed the cocaine
Kenneth McFadden testified that he had returned to the apartment from a bar shortly before the officers with flashlights entered the apartment and came into the bedroom where he was with Holt. The officers pushed McFadden back on a bed. They then interrogated Holt and removed him from the room. One officer remained in the bedroom and opened a closed Taco Bell box on the floor near a window and shined his flashlight into the box and announced there were mushrooms inside. McFadden knew there was another metal box in the bedroom, where appellant kept his papers, but he could not recall seeing anyone open that box.
In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial court may accept or reject any or all of any witness's testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). The trial court resolves all conflicts in the testimony. Hawkins v. State, 853 S.W.2d 598, 600 (Tex.App.--Amarillo 1993, no pet.) An appellate court must view the evidence in the light most favorable to the trial court's ruling at the suppression hearing. Upton v. State, 853 S.W.2d 548, 553 (Tex.Crim.App.1993); State v. Hamlin, 871 S.W.2d 790, 792 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd); Spillman v. State, 824 S.W.2d 806, 810 (Tex.App.--Austin 1992, pet. ref'd). If the...
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