Sanchez v. State

• Decision Date: 18 September 2012
• Docket Number: NO. 14-11-00690-CR,14-11-00690-CR
• Parties: RICARDO SANCHEZ, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

RICARDO SANCHEZ, Appellant

v.THE STATE OF TEXAS, Appellee

NO. 14-11-00690-CR

Fourteenth Court of Appeals

Dated: September 18, 2012

Affirmed and Memorandum Opinion filed September 18, 2012.

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1270992

MEMORANDUM OPINION

After the trial court denied appellant's motions to suppress, he pled guilty to possession with intent to deliver cocaine weighing more than 200 grams and less than 400 grams. The court sentenced appellant to 25 years' imprisonment pursuant to a plea agreement, which allowed appellant to appeal the trial court's rulings on the motions to suppress. In four issues, appellant contends the trial court erred by denying his motions to suppress. We affirm.

BACKGROUND

In late 2008 or early 2009, Agent Ralph Ohland of the Texas Department of Public Safety (TDPS) began investigating appellant after a cooperating individual indicated to Ohland that appellant was trafficking drugs and weapons. Ohland was a member of the Multiagency Gang Task Force, which included officers from the TDPS, Federal Bureau of Investigation (FBI), Houston Police Department (HPD), and Harris County Sheriff's Office. Ohland led the team investigating appellant on July 17, 2010, including FBI Agent Keith Koncir, HPD Officer Abe Vanderberry, and TDPS Agent Cliff Manning.

The officers arrived at appellant's house at about 4:30 p.m. or 5:00 p.m. to conduct surveillance. After about 20 minutes, appellant's wife, Jaquelin Gomez, drove away from the house with her infant child. Ohland and Manning followed Gomez. Appellant left the house in another vehicle; Koncir and Vanderberry followed appellant. Vanderberry radioed for a marked HPD unit to initiate a stop after appellant committed traffic violations. Ohland also went to the scene of the traffic stop, and appellant was arrested after he gave officers a false name and date of birth. See Tex. Penal Code Ann. § 38.02 (Vernon 2011). The officers returned to appellant's house; Gomez had not yet returned. Koncir explained, "I think the intent was to come back and try to search the residence, either on consent or — I know they brought out a dog, a drug dog."

Appellant's house had an attached carport that was completely enclosed by a wrought iron gate extending from the ground to the top of the carport. The gate had a door that was not locked and a "beware of dog" sign was attached to the gate. To approach the front door of the house, someone would need to enter the gated carport area.¹ Inside the carport area was a "pit bull type" dog and a kennel. Koncir testified that he locked the dog in the kennel without walking inside the carport area; according to Koncir, he "talked the dog into the [kennel]. And when the dog got in, I reached through the gate and I closed the kennel."² Ohland and Vanderberry testified that the purpose ofputting the dog in the kennel was for the officers' safety and to enable a drug dog to sniff the exterior of the house.

A K-9 unit was called to the house, but the drug dog did not alert after sniffing the exterior front of the house. Ohland admitted to entering the carport area around that time, and Vanderberry testified that he saw the K-9 officer enter the carport area.³ Ohland testified that the officers did not have probable cause or consent to enter the house at that point.

Shortly after 8:00 p.m., an SUV parked about five houses down the street. Vanderberry testified that two women exited the vehicle and approached him and Koncir.⁴ The women spoke with the officers for about 30 minutes. Ohland testified that they were "trying to get information from us." Vanderberry asked them for some identification, and they all walked over to the SUV. It was dark outside by this time, but Vanderberry could see that the inside of the vehicle was "fogged up." He "illuminated the vehicle and Jaquelin Gomez was hiding in the back seat." He testified that she was "laying down almost on the floor trying to hide or conceal herself from us." The two women identified Gomez. Vanderberry testified that Gomez "got out freely" from the vehicle.

Ohland approached the vehicle. He testified that Gomez appeared nervous. He told Gomez that appellant had been arrested, and then it "started to rain very heavily." Koncir testified that Gomez's baby started crying, and he asked her if she wanted to go back to the house to get the baby some food or put the baby down; "she agreed, said that was fine." Ohland testified:

Koncir asked her if she would like to go into the home to get out of the rain . . . She said, Yes, I would. We asked if she had any documentation thatwould identify the defendant. She said she wasn't sure. She didn't know if she did or not. We asked if we could come in the residence with her and search for any kind of documentation or any kind of illegal contraband. She said she had no problem with that. . . . I asked if we could come in and search for anything illegal. . . . She said that was fine, she had no problem.

Koncir similarly testified that Gomez invited them "to go into the residence." Gomez said she did not have her keys to the house, but Ohland gave her the keys he recovered from appellant after the arrest. The conversation began near the SUV and continued while they walked toward the house. Ohland was wearing his badge, but most of the officers were in plain clothes. One marked patrol car was parked at the residence, as well as at least four unmarked vehicles.

Gomez went inside the house, and the officers waited in the carport area. Ohland retrieved an audio recorder to document Gomez's consent. Ohland asked Gomez to speak with him again. He testified that Gomez was "less accommodating" during the audio-recorded conversation. He asked Gomez some background questions about her and appellant, and then the following can be heard:⁵

OFFICER: Well, like we explained to you, we're — we're just conducting an ongoing investigation and we'd like your consent to come in and make sure there's nothing illegal in your residence. Do we —

GOMEZ: Okay —

OFFICER: Can we have your consent to do that?

GOMEZ: Well, I mean, what is it for, though? I mean — you know? I don't understand why.

OFFICER: You're not in any trouble, ma'am. Uh, it's to us to, to go through your house.

OFFICER: We just want to get in here and, and [inaudible].

GOMEZ: Well, I thought y'all needing um, um, documents for my husband.

OFFICER: We do.

OFFICER: We do. And that's what we're — we're asking for, to get those documents and to see —

GOMEZ: I don't have any documents.

OFFICER: — if there's anything else in this house.

GOMEZ: He has noth — no documents.

OFFICER: Let's go.

GOMEZ: We don't have any papers, nothing — The only thing, I mean, I have [inaudible].

OFFICER: Yeah, we'll come in with you. Can I come in there with you?

GOMEZ: Uh, yeah, I'm okay with it. I'm [inaudible] my paperwork. I don't have anything. I mean, like I said, this is all my paperwork. I'll show you all my paperwork.

Ohland testified that Gomez made a gesture with her head and hands to invite the officers inside, and, "I believe I acknowledged her and said, Yes, we'll go with you. And then I stopped again before I went in the home and I asked her, Can I come in with you? And she told me, Yes." The officers entered the home. Vanderberry testified, "As we stepped in I saw the living room. I looked to my right and the door was open and it's another bedroom and at that time I saw what was a kilogram press along with what appeared to be drug paraphernalia on the table." The recording continues:

OFFICER: Okay.

GOMEZ: I don't have anything.

OFFICER: Well, do, do you all have anything illegal in the house?

GOMEZ: No, sir.

OFFICER: Any kind of weapons?

GOMEZ: No, sir.

OFFICER: Any kind of drugs?

GOMEZ: No, sir.

OFFICER: Uh, any large amounts of currency —

GOMEZ: No.

OFFICER: — that we would need to, okay, that's what we're concernedwith.

GOMEZ: Okay.

OFFICER: Uh, if we can get your consent to make sure that you don't have any of that in here, as long as there's nothing like that in here —

GOMEZ: Okay.

OFFICER: — we'll be on our way.

GOMEZ: Uh, I mean, it's fine with me, but I don't understand why this is all necessary, you know? If, if my husband — I told you who my husband is.

OFFICER: Right.

GOMEZ: I don't have any documents, anything.

OFFICER: About, about him?

GOMEZ: I'm telling you, his name is, what I told you.

OFFICER: Okay.

GOMEZ: That's his name. Um —

OFFICER: Well, maybe you could go room to room with us, while we're checking if you're worried about —

OFFICER: Yeah, yeah, we'll go with you —

OFFICER: — if we tear up the house or something —

GOMEZ: No, no, it's not that. It's just, I'm, I mean, if all y'all came is for documents, I mean, I'll tell y'all, I don't have any documents for him.

OFFICER: Okay, well, just like I explained to you, we —

GOMEZ: Because I've been with him for a year.

OFFICER: We also have to follow certain steps. We just need to make sure there's nothing illegal in the house.

GOMEZ: Okay. I mean.

OFFICER: Okay. Well, we appreciate that. And I, you're, you're being cooperative with us is going to go a long way, okay? Thank you.

GOMEZ: [inaudible]

OFFICER: You want to come here and sit in the living room?

OFFICER: Is there anything, anything in the house that we need to knowabout?

OFFICER: She said they don't have anything.

GOMEZ: No, I don't —

OFFICER: So we should be pretty quick. Uh, we'll secure it.

GOMEZ: I mean, I don't understand.

OFFICER: Make sure it's, make sure there's no people.

GOMEZ: I don't, why, I mean.

OFFICER: And then we'll get out of the way.

GOMEZ: My husband is, you know, Richard [inaudible].

OFFICER: The time is now 9:15. We're going to clear the house, make sure that it's safe.

Vanderberry testified that the officers then performed a "security sweep" because when he was looking at the table, he "saw what appeared to be a handgun."⁶ During the security sweep, Vanderberry saw two assault rifles in a bedroom closet. He prepared a search warrant that a magistrate signed the same night...