Williams v. State , 1996 Tex. App. LEXIS 5219 ( 1996 )

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 ease. 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 dining 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. Red-man 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; TexCode CrimProc. 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.CrimApp.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. refd). 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 CrimProcAnn. 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. refd). 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 warrant-less 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 to search are as follows.

A. The State’s Witnesses

Officer Redman testified he entered the apartment after the raid team, and he saw Officer DeBlanc speaking to appellant in the hall. Redman saw DeBlanc advise appellant he was under arrest and DeBlanc give appellant his legal warnings. During this conversation, Redman did not observe anything to indicate DeBlanc was threatening or coercing appellant.

Officer DeBlanc testified he went upstairs in appellant’s apartment after the raid team had already gone inside to arrest appellant and Griffin. Both appellant and Griffin were handcuffed. DeBlanc took appellant into the hallway, had the patrol unit take his handcuffs off, and advised appellant of his rights. DeBlanc had his raid jacket on and a gun concealed in his waist, but he did not remove the gun.

Once Officer DeBlanc was sure appellant fully understood his rights, he asked appellant if there were any other drugs in the apartment and appellant responded there were. DeBlanc asked appellant if he would show where the other drugs were located, and appellant said he would. DeBlanc went to his car and got a voluntary consent to search form. DeBlanc returned with the form, explained its contents to appellant, and had appellant read over the form himself. DeBlanc told appellant to initial the form only if he understood it and agreed with it, and appellant said he understood the form. Appellant then filled out the form and signed it. He initialed the sections that said he understood he had a right to refuse to consent to the search, and no promises or coercion had been used to get him to sign the form.

On cross-examination, Officer DeBlanc testified all of the officers on the police raid team were armed and had their guns drawn when they entered the apartment because a shot had been fired. DeBlanc entered the budding about two minutes later, and most of the raid team members had already placed their guns in their holsters because the “all clear” signal had been given. About 15 minutes passed between the time DeBlanc reached the second floor and the time he began to discuss the consent to search form with appellant. DeBlanc also testified one of the raid team officers was a white man with long hair in a pony tail.

B. The Defense Witness

Appellant was the only witness to testify on his behalf, and his recollection of the consent to search was much different than that of Officers Redman and DeBlanc. Appellant testified he heard the raid team break the front door to his apartment within one minute after he and Redman had consummated the drug deal. Appellant panicked, grabbed his cocked and loaded gun when he heard the bang, and accidentally fired a shot.

Griffin screamed appellant’s name and ran upstairs to appellant. Appellant saw a black man kneel down at the head of the stairs and point his gun at appellant. The man made appellant put his hands up and turn around. Appellant could not tell whether the man was a police officer.

While appellant was turned around, the raid team entered the room and handcuffed both appellant and Griffin and placed them on the ground. Appellant testified someone hit him in the back of the head with what felt like a pistol. A white officer with a pony tail approached appellant and told him several times he was going to be charged with attempted capital murder because he tried to shoot them.

Appellant stayed on the ground for about two minutes before Officer DeBlanc picked him up and read him his rights. While appellant was getting up, the officer with the pony tail ran up into his face and screamed “he was going to kick my ass for attempted capital murder.” Five or six police officers were near appellant when he stood up, and they were all armed.

Officer DeBlanc took appellant into appellant’s bedroom with two other officers, who were armed, and discussed whether appellant was willing to consent to a search of the apartment. Appellant testified he agreed to the search, but he was scared and did not feel like he had any choice in the matter. Although DeBlanc told appellant he would not be harmed if he refused to sign the form, appellant testified he did not believe DeBlanc and agreed to the search because he was scared. Appellant read and signed the consent to search form, but he testified he signed the form because it was DeBlanc’s idea and he was afraid of the officer with the ponytail. Appellant testified he was scared throughout the entire incident for the safety of both Griffin and himself.

C. Voluntariness

When the State is relying upon consent to excuse the warrant requirement, the State must prove by clear and convincing evidence the defendant gave his consent freely and voluntarily. Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim.App.1976); Goines v. State, 888 S.W.2d 574, 577 (Tex.App.—Houston [1st Dist.] 1994, pet. ref'd). The State must show the consent was positive and unequivocal and not the result of duress or coercion. Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991); Goines, 888 S.W.2d at 577. The State must show the consent to search was not the result of physical or psychological coercion. Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App.1985).

The question of whether a defendant voluntary consented to the search is for the trier of fact to determine from all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973) (when subject of search is not in custody); Meeks, 692 S.W.2d at 510; Goines, 888 S.W.2d at 577; Martinez v. State, 792 S.W.2d 525, 528-29 (Tex.App.—Houston [1st Dist.] 1990, no pet). A defendant’s consent to a search is invalid if he made it only in submission to a claim of lawful authority. Meeks, 692 S.W.2d at 509; Kolb, 532 S.W.2d at 90; Goines, 888 S.W.2d at 577. The fact that a person is under arrest or in custody does not, without more, render the consent to search involuntary. Juarez v. State, 758 S.W.2d 772, 775 (Tex.Crim.App.1988). It is merely one of the circumstances to be considered. Id.; Peterson v. State, 857 S.W.2d 927, 932 (Tex.App.—Houston [1st Dist.] 1993, no pet.). A court will not invalidate a consent to search just because the officer told the defendant he would get a warrant if the defendant did not consent. Resendez v. State, 523 S.W.2d 700, 703 (Tex.Crim.App.1975); Goines, 888 S.W.2d at 578. It is some evidence of consent if the defendant was warned he did not have to consent to the search and had the right to refuse. Allridge, 850 S.W.2d at 493; Martinez, 792 S.W.2d at 529.

Upon considering all of the evidence in the light most favorable to the trial court’s ruling, we hold the court could have reasonably concluded the State proved by clear and convincing evidence appellant’s consent was freely and voluntarily given. The trial court was not required to believe appellant’s testimony, and it could reasonably conclude from the testimony of Officers Redman and De-Blanc that appellant’s consent was positive and unequivocal. The record shows appellant was told he could refuse to consent, he signed the form freely and voluntarily, and he was not subjected to force or coercion from the officers, nor was he promised anything in exchange for his consent. Further, appellant’s consent was not rendered invalid due to the fact he only gave his consent in response to a request by Officer DeBlanc. An officer’s request for consent does not by itself render a defendant’s consent involuntary. Goines, 888 S.W.2d at 578.

The record shows the police entered appellant’s apartment with their guns drawn and placed him in handcuffs. The display of weapons is a coercive factor that sharply reduces the likelihood of freely given consent. DuBose v. State, 915 S.W.2d 493, 497 n. 6 (Tex.Crim.App.1996); Lowery v. State, 499 S.W.2d 160, 168 (Tex.CrimApp.1973). However, it is only a factor to be considered in the totality of the circumstances and is not alone dispositive. DuBose, 915 S.W.2d at 497 n. 6. In this case, the guns were put away and the handcuffs removed when appellant signed the consent to search. See McFarland v. State, 834 S.W.2d 481, 485 (Tex.App.—Corpus Christi 1992, no pet.) (defendant voluntarily consented to search, even though police apprehended defendant with guns drawn; nothing indicated officers requested consent with guns drawn). Based on the totality of the circumstances, we hold the trial court did not err by concluding the State proved by clear and convincing evidence appellant knowingly and voluntarily consented to the search of his apartment.

We overrule point of error two.

We affirm the judgment of the trial court.

Original panel consisting of HUTSON-DUNN, O’CONNOR and ANDELL, JJ. En banc review requested by TAFT, J. Voting for en banc review were SCHNEIDER C.J., and COHEN, HUTSON-DUNN, MIRABAL, HEDGES and TAFT, JJ. Voting against en banc review were O’CONNOR, WILSON and ANDELL, JJ.

HEDGES J., joins HUTSON-DUNN’s, J., opinion.

TAFT, J., concurs.

MIRABAL, J., concurs.

SCHNEIDER, C.J., joins MIRABAL’s, J., concurrence.

COHEN, J., concurs.

O’CONNOR, J., dissents.

ANDELL, J., joins O’CONNOR’S, J., dissent.

WILSON, J., dissents.

1 . Appellant has not advanced a theory for interpreting the Texas Constitution differently from the United States Constitution, and we therefore will not address his argument that the officers’ warrantless arrest violated the Texas Constitution. See Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App.1991).

2 . The evidence as presented in this case does not establish that the officers acted under the theory of exigent circumstances "to prevent the destruction of evidence or contraband.”