Howard Lee Applon v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 26, 2007

Affirmed and Memorandum Opinion filed April 26, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00347-CR

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HOWARD LEE APPLON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1030870

M E M O R A N D U M    O P I N I O N

Appellant, Howard Lee Applon, appeals his felony conviction of possession with intent to deliver a controlled substance, specifically, cocaine weighing more than four grams and less than two hundred grams, including adulterants and dilutants.  The jury found appellant guilty, and punishment was enhanced by two prior felony convictions for possession of a controlled substance.  The trial court sentenced appellant to 35 years= confinement in the Texas Department of Criminal justice, Institutional Division.  In his sole point of error, appellant contends the warrantless search of his residence and his arrest violate the Fourth Amendment to the United States Constitution and Article 1 Section 9 of the Texas Constitution and, therefore, the trial court abused its discretion in denying his motion to suppress the cocaine and the weapon.^[1] We affirm.

Officer Lopez of the Houston Police Department (AHPD@) received complaints of narcotics activity at a house in the Fifth Ward.  Lopez led a group of HPD officers to investigate possible narcotics activity and any city code violations.  A chain link fence surrounded the backyard of the house, but did not block the view.  As he drove up, Lopez observed appellant and a woman sitting at a table in the backyard.  Lopez watched as appellant noticed him sitting in his patrol car.  Lopez saw appellant stand and place something inside the barbeque pit, and then return to his seat.  Lopez sent Officers Barrios and Donato to the front door in an attempt to contact the owner.  For the officers= safety, Lopez told Officers Duron and Turrentine to make contact with appellant and the woman in the back.  Lopez went to the front of the house where Donato and Barrios were talking to Jeanette Brooks, appellant=s aunt, and another woman who came out of the house. Lopez asked Brooks if she was the owner.  After she answered affirmatively, Lopez asked her if there were any people, narcotics, or guns in the house.  She said no. 

According to Lopez and Donato, when Lopez asked Brooks if they could search the premises, she said yes.  Lopez went through the house checking for additional people, and then walked out into the backyard.  Lopez told Duron they had verbal consent to search, and to check the barbeque pit. As Duron approached the pit, appellant stood up and started acting very nervous.  Duron drew his taser, pointed it at appellant, and told him to stand still.  In the pit, Duron discovered a plate holding rocks of crack cocaine, cocaine residue, and a razor blade.  Due to safety concerns, Lopez handcuffed appellant.  When asked if there were any weapons in the house, appellant responded he had a rifle in the closet of his bedroom.  Appellant=s bedroom had a door that opened directly into the backyard.  The officers recovered the rifle from his bedroom, a marijuana cigar from where appellant was sitting, and $405.56 cash from his person.  Turrentine then obtained from Brooks a written consent to search.  Appellant contends because there was no verbal consent to search, all the evidence acquired during the search prior to the signing of the consent form should be suppressed.

In reviewing a trial court=s ruling on a motion to suppress, we use an abuse of discretion standard of review.  Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  There is an abuse of discretion when the ruling is so clearly wrong as to be outside that zone within which reasonable persons might disagree.  Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).  We give almost total deference to the trial court=s determination of historical facts that involve a judge=s evaluation of the credibility and demeanor of the witnesses who testify.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We afford the same amount of deference to the trial court=s ruling on mixed questions of law and fact, if resolving those ultimate questions turns on evaluating credibility and demeanor.  Id.  We review de novo the trial court=s application of law to facts in search and seizure cases.  Id.

In his sole point of error, appellant claims relief under the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution.  An appellant claiming relief under both the federal and state constitutions must Aanalyze, argue, or provide authority to establish that his protection under the Texas Constitution exceeds or differs from that provided to him by the Federal Constitution.@  Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993).  If the appellant does not provide sufficient distinctions between the state and federal grounds, the reviewing court need not address appellant=s state constitutional argument.  Chilman v. State, 22 S.W.3d 50, 54 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Here, appellant does not analyze, argue, or provide authority to establish his protection under the Texas Constitution exceeds or differs from the protection provided to him by the United States Constitution.  Thus, we will not address appellant=s state constitutional argument.

The Fourth Amendment generally prohibits the warrantless entry of a person=s home, whether to make an arrest or to search for specific objects.  Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).  The Fourth Amendment also protects the curtilage of a person=s home from unreasonable searches and seizures.  Oliver v. United States, 466 U.S. 170, 180 (1984).  The curtilage is the land immediately surrounding and associated with the home.  Id.  Appellant argues, and the State accepts, the backyard would fall within the curtilage.^[2] However, the fact that an area is within the curtilage does not bar all police observation.  California v. Ciraolo, 476 U.S. 207, 213 (1986).  The Fourth Amendment has never been extended to require law enforcement officers to shield their eyes when passing by on a public street, nor to preclude an officer=s observations from a public vantage point where he has a right to be.  Id.  Further, the warrantless search prohibition does not apply to situations in which voluntary consent has been obtained.  Rodriguez, 497 U.S. at 181.

Finally, a perfectly reasonable apprehension of danger may arise long before the officer possesses adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime.  Terry v. Ohio, 392 U.S. 1, 26B27 (1968).  Here, Lopez testified that concern for the officers= safety prompted him to send Duron and Turrentine to the back of the house to make contact with appellant and the woman.  Lopez and Donato testified they received verbal consent from Brooks to search the premises.  Duron and Turrentine testified they only discussed the city code violations with appellant until Lopez entered the backyard and announced they had verbal consent to search.  A written consent form signed by Brooks approximately 45 minutes after the officers arrived at her house tends to corroborate the testimony of the officers regarding her consent. 

The trier of fact is the sole judge of the credibility of the witnesses and is free to believe or disbelieve all, part, or none of any witness= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  Thus, in reviewing a trial court=s ruling on a motion to suppress, we give almost total deference to the trial court=s determination of historical facts and application‑of‑law‑to‑fact questions that turn on credibility and demeanor.  Rodriguez v. State, 191 S.W.3d 428, 463 (Tex. App.CCorpus Christi 2006, pet. ref=d).  It was not unreasonable for the trial court to believe the officers received verbal consent to search prior to any discovery of evidence.  Thus, the trial court did not abuse its discretion in denying appellant=s motion to suppress.  Accordingly, we overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 26, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).   

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^[1]  U.S. Const. amend. IV; Tex. Const. art. I, ' 9.

^[2]  The factors to consider in determining whether an area is considered curtilage include (1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the use to which the area is put, and (4) the steps taken to protect the area from observation by a passerby.  United States v. Dunn, 480 U.S. 294, 301 (1987).