State v. Wood

• Decision Date: 13 March 1992
• Docket Number: No. 08-91-00337-CR,08-91-00337-CR
• Citation: 828 S.W.2d 471
• Parties: The STATE of Texas, Appellant, v. David Leonard WOOD, Appellee.
• Court: Texas Court of Appeals

Page 471

828 S.W.2d 471

The STATE of Texas, Appellant, v. David Leonard WOOD, Appellee.

No. 08-91-00337-CR.

Court of Appeals of Texas El Paso.

March 13, 1992.

Steve W. Simmons, Dist. Atty. of El Paso County, El Paso, for appellant.

Dolph Quijano, Jr., Norbert J. Garney, El Paso, for appellee.

Before WOODARD, KOEHLER and BARAJAS, JJ.

OPINION

WOODARD, Justice.

This is an interlocutory appeal by the State pursuant to Tex.Code Crim.Pro.Ann. art. 44.01(a)(5) (Vernon Supp.1992). In two points of error, the State seeks review of the trial court's suppression of evidence seized from a vehicle under the control of David Leonard Wood, Defendant. We affirm the ruling of the 171st Judicial District Court.

In Point of Error No. One, the State argues the trial court abused its discretion in making its findings of fact. In its second point of error, the State asserts the trial court erred, as a matter of law, in applying the law to the instant facts. As addressed by both the State and Defendant, we will discuss the points simultaneously.

I. SUMMARY OF THE EVIDENCE

On July 13, 1990, David Leonard Wood was indicted for the offense of capital murder, for which the State seeks the death penalty. Specifically, the Defendant was indicted for causing the death of six women, between May and August 1987. The indictment alleges that one victim ¹ was stabbed with a sharp instrument, while the remaining five victims met their death "in some manner and by some means, instrument or weapon, unknown to the Grand Jury."

On October 23, 1987, the State sought and obtained two identical search warrants to search a specific beige 1986 Nissan pickup truck which was under the control of the Defendant. Neither the State nor the Defendant contest the fact that the search warrants were evidentiary in nature and issued pursuant to Tex.Code Crim.Pro.Ann. art. 18.02(10) (Vernon 1977). ² The pertinent portions of the evidentiary search warrants read as follows:

3. It is the belief of Affiant that specific criminal offenses have been committed, to-wit:

That David Wood on or about September 19, 1987, in El Paso County, Texas did then and there intentionally abduct G___ G_____, without her consent, with intent to prevent her liberation, by using and threatening to use deadly force on G___ G_____ and with intent to violate or abuse her sexually.

Additionally, that David Wood, on or about August 7, 1987, then and there intentionally and knowingly by threats and force directed toward J___ B_____, have sexual intercourse with J___ B_____, without her consent, and she was then and there a female who was not his wife. ³

4. There is located in the suspected vehicle, items concealed and kept constituting evidence of said offenses and constitutes evidence that the said David Wood committed said offense. Said items being described as the following:

Clothing belonging to J___ B_____, cigarette butts, fingerprints, ligatures, and knife belonging to David Wood.

The evidentiary search warrants were executed and the vehicle in question searched on October 23, 1987. During such search of Defendant's vehicle, the following described property was found and seized:

One (1) pair mens black work boots--with hair evidence

One checkered shirt with hair evidence

One small brush, One blue card

One purple colored doll

Three plastic baggies with vacuumed samples from 1986 NISSAN

One wooden cain [sic]

On August 21, 1991, Defendant filed a Motion to Suppress, seeking to exclude "fiber evidence" which purportedly linked the Defendant to the death of the six women named in the indictment. The Defendant did not attack the validity of the evidentiary search warrant; rather, he attacked the legality and reasonableness of the search by asserting violations of the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution. Specifically, the Defendant alleged that the search exceeded the scope of the evidentiary search warrants in that the fiber evidence was not specifically listed in the warrants.

On September 3, 1991, the 171st District Court of El Paso County, after conducting a hearing, sustained Defendant's Motion to Suppress and ordered that the evidence seized from the Defendant's 1986 beige Nissan pickup truck pursuant to the search warrants be suppressed. The trial court further entered Findings of Fact and Conclusions of Law as to its ruling on the Defendant's Motion to Suppress. ⁴

The State, in its brief, asserts that it did not need to present any evidence other than the warrants, and further, that the burden of proof lies with the Defendant to show that the items seized were outside the scope of the evidentiary search warrant. Moreover, the State, again in its brief, concedes that all the evidence seized pursuant to the execution of the evidentiary search warrant should be excluded, save and except the three plastic baggies with vacuumed samples from the Defendant's vehicle. The State, for the first time on appeal, maintains that the vacuumings were clearly a practical method of seeking cigarette butts and ligatures.

In light of the current state of the record before this court, i.e., the admission of the two evidentiary search warrants in evidence and nothing else, ⁵ the crucial issue in resolution of this case is which party had the burden to prove whether or not the items seized were obtained in violation of the Fourth Amendment, the Texas Constitution and other statutory provisions.

II. STANDARD OF REVIEW

The trial judge is the sole and exclusive trier of facts at a hearing on a motion to suppress. Romero v. State, 800 S.W.2d 539 (Tex.Crim.App.1990); Cannon v. State, 691 S.W.2d 664 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); Hawkins v. State, 628 S.W.2d 71 (Tex.Crim.App.1982); Green v. State, 615 S.W.2d 700 (Tex.Crim.App.), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981).

On appeal, a reviewing court does not engage in its own factual review but decides whether the trial judge's fact findings are supported by the record. If the findings of fact which were entered by the 171st District Court in the instant case are supported by the record, this Court is not at liberty to disturb them, and on review, we address only the question of whether the trial court improperly applied the law to the facts. Romero v. State, 800 S.W.2d at 543; Self v. State, 709 S.W.2d 662 (Tex.Crim.App.1986); Johnson v. State, 698 S.W.2d 154, 159 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). Furthermore, we must consider the totality of the circumstances in determining whether the trial court's findings are supported by the record, and the findings will not be disturbed absent a clear abuse of discretion. Dancy v. State, 728 S.W.2d 772, 777 (Tex.Crim.App.), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987).

If the trial judge's decision is correct on any theory of law applicable to the case however, it will be sustained. Romero v. State, 800 S.W.2d at 543; Spann v. State, 448 S.W.2d 128 (Tex.Crim.App.1969); Moreno v. State, 170 Tex.Crim. 410, 341 S.W.2d 455 (1960); Calloway v. State, 743 S.W.2d 645 (Tex.Crim.App.1988). This principle holds true even though the trial judge gives the wrong reason for his decision, Salas v. State, 629 S.W.2d 796 (Tex.App.--Houston [14th Dist.] 1981, no pet.), and is especially true with regard to the admission of evidence. Romero, 800 S.W.2d at 543; Dugard v. State, 688 S.W.2d 524 (Tex.Crim.App.1985). In the instant case, the trial court did not specify under which theory he found the evidence inadmissible.

III. THE BURDEN OF PROOF APPLICABLE IN MOTIONS TO SUPPRESS PHYSICAL EVIDENCE

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, the Court of Criminal Appeals has placed the burden of proof initially upon the defendant. Russell v. State, 717 S.W.2d 7 (Tex.Crim.App.1986); Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Crim.App.1970). As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. Russell v. State, 717 S.W.2d at 9; Mattei v. State, 455 S.W.2d at 765-66, relying upon United States v. Thompson, 421 F.2d 373, 377 (5th Cir.1970) and Rogers v. United States, 330 F.2d 535 (5th Cir.), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186 (1964). Cf. United States v. Bachner, 706 F.2d 1121, 1125-26 (11th Cir.1983). A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Mattei, 455 S.W.2d at 765-66, quoting Rogers v. United States, 330 F.2d at 542.

In the instant case, the Defendant, and not the State, established the existence of a search and seizure. The Defendant, in its introduction of the two evidentiary search warrants in evidence, established that none of the items seized, in particular the fiber evidence, were sought by the evidentiary search warrants. Consequently, all the items seized were, in effect, seized without a valid warrant. As noted, the State concedes that all the evidence seized should be excluded, save and except the three plastic baggies with vacuumed samples from the Defendant's vehicle. ⁶

Once a defendant has established (1) that a search or seizure occurred and (2) that no warrant was obtained, the burden of proof shifts to the State. Russell v. State, 717 S.W.2d at 9. We find that by the introduction of the two evidentiary search warrants, each of which on its face reveals the seizure of items not specified in the evidentiary search warrants, that the Defendant met its initial burden. The burden of proof then shifted to the State to produce evidence of a warrant to support the seizure of the three plastic baggies. The State failed to produce a warrant to support such a seizure. Had the State produced evidence of a warrant to...