Williams v. State

• Decision Date: 21 November 1996
• Docket Number: Nos. 01-94-00805-CR,s. 01-94-00805-CR
• Citation: 937 S.W.2d 23
• Parties: Reginald Keith WILLIAMS, Appellant, v. The STATE of Texas, Appellee. to 01-94-00807-CR. (1st Dist.)
• Court: Texas Court of Appeals

Page 23

937 S.W.2d 23

Reginald Keith WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

Nos. 01-94-00805-CR to 01-94-00807-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Nov. 21, 1996.

Mark Ellis, Houston, for appellant.

John B. Holmes, Keli J. Roper, Houston, for appellee.

Before the court en banc.

EN BANC OPINION

HUTSON-DUNN, Justice.

Appellant Reginald Keith Williams entered guilty pleas to possession of a controlled substance (two cases) and possession of a controlled substance with intent to deliver, and pleas of true to two enhancement paragraphs in each case. Pursuant to a plea bargain agreement, the trial court assessed punishment at 50-years imprisonment in each case. Appellant challenges the trial court's ruling on his motion to suppress evidence. We address the lawfulness of a forced reentry by police into a residence where moments before an undercover officer had observed cocaine during arrangements for its purchase. Pursuant to TEX.R.APP.P. 79(e), we hear this appeal en banc and affirm.

Facts

On August 2, 1993, Officer Walter Redman of the Houston Police Department learned from a confidential informant that appellant was selling drugs. That evening, Redman and his partner, Officer Donald DeBlanc, met with the confidential informant and Andrea Thompson in a Burger King parking lot to discuss the purchase of a kilogram of cocaine. Thompson examined and counted the purchase money and left to get approval for the sale. She returned and told the officers they could follow her to the place where they could complete the purchase.

The officers followed Thompson to appellant's residence. Appellant owned a fourplex apartment and was standing outside when the officers arrived. Officer DeBlanc stayed in the unmarked car while Officer Redman got out and discussed the initial details of the sale with appellant. Appellant and Redman agreed Redman would go inside appellant's apartment to see the cocaine. If Redman was satisfied, he would go out to his car to get the money and return inside to complete the deal.

Appellant and Officer Redman entered appellant's apartment and went upstairs, and appellant told his common-law wife, Michelle Griffin, to go downstairs and get the cocaine. She returned with a sealed package. Redman cut into the package and saw what appeared to be cocaine. He told appellant he was satisfied with the product and left the apartment to get the money. Griffin accompanied Redman downstairs to the first floor entrance of the fourplex while appellant stayed upstairs. Griffin stood in the doorway, and Redman walked just outside the doorway and gave a secret "bust" signal to Officer DeBlanc to call in the police raid team.

Within seconds, the raid team drove up in marked and unmarked cars. When Griffin saw them, she slammed and locked the front wooden door but was not able to close the outside door made of burglar bars. The raid officers forced entry into the apartment. They heard a gunshot just after they entered the fourplex. Once inside, the raid officers went upstairs, entered appellant's apartment, and arrested him and Griffin. They found in the bathroom toilet the kilogram of cocaine Officer Redman had purportedly attempted to purchase. Appellant then signed a consent to search form, and the officers searched appellant's apartment with appellant accompanying them and found cocaine inside appellant's dresser, cocaine inside a safe, and "black tar type" heroin in the refrigerator.

Lawfulness of Forced Reentry

In two points of error, appellant contends the trial court erred in overruling appellant's motion to suppress: (1) evidence that was seized as part of an illegal arrest; and (2) additional evidence that was seized after appellant was coerced into signing a consent to search form immediately after the illegal arrest. Appellant contends his arrest was illegal under the United States and Texas Constitutions and the Texas Code of Criminal Procedure. U.S. CONST. amend. 4; TEX. CONST. art. 1, § 9; TEX.CODE CRIM.PROC. art. 38.23 (Vernon Supp.1996). ¹ The legality of the arrest hinges upon the lawfulness of the forced reentry into appellant's residence by the police raid team, moments after undercover officer Redman observed cocaine while arranging to purchase it.

A. Standard of Review

At a hearing on a motion to suppress, the trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Bell v. State, 866 S.W.2d 284, 286-87 (Tex.App.--Houston [1st Dist.] 1993, no pet.). The trial court may accept or reject any or all of the witnesses' testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App.1980); Vercher v. State, 861 S.W.2d 68, 70 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd).

On appeal, our only role is to determine whether the trial court improperly applied the law to the facts. Romero, 800 S.W.2d at 543; Bell, 866 S.W.2d at 287. Unless the trial court clearly abused its discretion, we will not disturb its findings. Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.1991); Sandoval v. State, 860 S.W.2d 255, 257 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd). We view the evidence in the light most favorable to the ruling of the trial court. Sandoval, 860 S.W.2d at 257. If the evidence supports the trial court's ruling, we do not disturb that ruling. Banda v. State, 890 S.W.2d 42, 51-52 (Tex.Crim.App.1994); Vercher, 861 S.W.2d at 70.

B. Warrantless Entry to Arrest

The Code of Criminal Procedure provides a peace officer may arrest a defendant without a warrant for any offense committed within the officer's presence or view. TEX.CODE CRIM.PROC. art. 14.01(b) (Vernon 1977). However, an officer may not enter a residence to make a warrantless arrest unless: (1) the person who lives in the residence consents to the entry; or (2) exigent circumstances require the officer making the arrest to enter the residence without a warrant or the consent of a resident. TEX.CODE CRIM.PROC. art. 14.05 (Vernon Supp.1996). ² The Code is consistent with United States Supreme Court decisions, which hold that, absent special situations, i.e., consent or exigent circumstances, the entry into a residence to conduct a search or make an arrest is unreasonable under the fourth amendment unless done pursuant to a warrant. Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981); see also Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374-75, 63 L.Ed.2d 639 (1980) (fourth amendment prohibits police from making a warrantless and non-consensual entry into a suspect's residence for the purpose of making a routine felony arrest); Green v. State, 727 S.W.2d 263, 266 (Tex.Crim.App.1987).

Several Texas cases have upheld convictions based on evidence that was retrieved pursuant to a warrantless arrest executed under facts virtually identical to the facts of this case. In these cases, arrests were upheld under TEX.CODE CRIM.PROC.ANN. art. 14.01 (Vernon 1977) where an undercover officer entered the defendant's house or apartment to negotiate a drug sale, momentarily left after viewing the drugs to give the "bust" signal, and a team of arresting officers immediately entered the defendant's residence without his consent to execute the arrest. See, e.g., Sanchez v. State, 797 S.W.2d 951, 952-53 (Tex.App.--Dallas 1990, no pet.); Caraballo v. State, 706 S.W.2d 773, 773-74 (Tex.App.--Houston [14th Dist.] 1986, pet. ref'd); Gonzales v. State, 638 S.W.2d 41, 43-45 (Tex.App.--Houston [1st Dist.] 1982, pet. ref'd). However, none of these cases discuss the applicability of article 14.05, Steagald, or Payton.

An officer may enter a residence to make a warrantless arrest if the person who lives in the residence consents to the entry. Payton, 445 U.S. at 576, 100 S.Ct. at 1374- 75; TEX.CODE CRIM.PROC. art. 14.05 (Vernon Supp.1996). Appellant consented to Officer Redman's initial entry into appellant's apartment. Although Redman posed as an undercover drug purchaser, this did not invalidate appellant's consent. See Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966); Cunningham v. State, 848 S.W.2d 898, 905 (Tex.App.--Corpus Christi, 1993, pet. ref'd). Further, although Officer Redman left the apartment momentarily to give the signal to the police raid team, officers arrived within 30 seconds to execute the arrest.

In a line of cases with facts similar to the facts of this case, the United States Court of Appeals for the Seventh Circuit has held that, if a defendant consents to entry by an undercover officer or police informant, that person may allow other police officers to enter to make the arrest. See, e.g., United States v. Jachimko, 19 F.3d 296, 298-99 (7th Cir.1994); United States v. Diaz, 814 F.2d 454, 459 (7th Cir.1987). In Diaz, the court stated:

We emphasize that we have applied this doctrine of "consent once removed" only where the agent (or informant) entered at the express invitation of someone with authority to consent, at that point established the existence of probable cause to effectuate an arrest or search, and immediately summoned help from other officers. We do not intend to suggest by our analysis that one consensual entry means that law enforcement agents may thereafter exit and enter a home at will.

814 F.2d at 459.

Based on the doctrine of "consent once removed," we uphold as lawful the warrantless reentry by police of appellant's residence to arrest appellant.

We overrule point of error one.

Consent to Search

In point of error two, appellant contends the trial court committed reversible error by refusing to suppress evidence obtained under the authority of a consent to search given under duress and immediately after an illegal arrest. Because we have already held appellant's arrest was legal, we only consider whether appellant gave his consent to search under duress. The facts relevant to appellant's consent...