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 2001-11

Dennis Ray Savard v. State of Texas ( 2001 )


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  •                                                              11th Court of Appeals

                                                                      Eastland, Texas

                                                                            Opinion

     

    Dennis Ray Savard

    Appellant

    Vs.                   No. 11-01-00089-CR B Appeal from Erath County

    State of Texas

    Appellee

     

    Appellant was convicted of the felony offense of attempting to manufacture methamphetamine of 4 grams or more but less than 200 grams.  The trial court assessed his punishment at confinement for 20 years and assessed a $5,000 fine.  Appellant argues in two points of error that:  (1) the trial court erred in denying his motion to suppress because there was an illegal search; and (2) the evidence was insufficient to support a criminal attempt conviction.  We affirm.

                                                                    Background Facts

    On January 1, 2000, at about 2:30 p.m., Deputy Sheriff Bob Gonzales of the Erath County Shertiff=s Department responded to a domestic violence call at the rural residence of B. J. Russell. Upon arrival, Deputy Gonzales was met at the main house by B. J. Russell and his son Joe Russell.  B. J. Russell informed Deputy Gonzales that another son, Timothy Russell, was Adoped up@ and trespassing, that Timothy had assaulted Joe, and that Timothy and appellant had retreated to a small residence behind the main house.  Both houses were located on 77 acres owned by B. J. Russell.   B. J. Russell also told Deputy Gonzales that Timothy and appellant had stolen his electric generator.       Deputy Gonzales noticed two rifles leaning up against a fence nearby, but B. J. Russell said that he did not know where they came from.  Deputy Gonzales then called for backup before approaching the smaller residence where Timothy and appellant had fled.  Deputies Jimmy Jackson, Jack Carr, Larry Wand, and Jason Upshaw came to assist Deputy Gonzales.  After the officers surrounded the smaller residence, Deputy Carr saw a man walk out of the house toward a fence in a brushy area and then return to the dwelling. Timothy and appellant were then ordered out of the house. 


    Deputies Carr, Wand, and Upshaw made a protective sweep of the house.  During the sweep, Deputy Upshaw noticed rock salt throughout the house along with an unattached propane bottle.  He later testified that these items were associated with the manufacture of methamphetamine.  At the time of the sweep, no items of evidence were seized by the deputies.  Deputies Wand and Carr then obtained a written consent to search form signed by B. J. Russell.  Timothy and appellant were arrested  for criminal assault and theft and transported to the Erath County Jail.

    The deputies searched the premises and found a bag near the brushy area where Deputy Carr had seen the man walk.  The bag contained methamphetamine and marihuana. Deputy Carr also located a glass jar with a hose that is commonly used in the manufacture of methamphetamine. A little later, Deputy Tom Green arrived with a drug dog that alerted on Timothy=s truck. Methamphetamine was found in the truck.

    Mark Goetz of the S.T.O.P. Narcotics Task Force arrived at about 5:30 p.m.; and he made a brief preliminary search of the outside area, finding evidence at a burn pit of numerous starting fluid cans with holes punched in the bottom.  At that point, Officer Goetz stopped the consent search to obtain a search warrant. At 10:29 p.m. on January 1, 2000, a search warrant was issued.  Upon return to the scene, Officer Goetz secured the premises to wait until daylight to execute the warrant because there was no electricity for lighting at the residence.  Officers executed the search warrant early the next morning.  Numerous items associated with the manufacturing of methamphetamine were located.

                                                                   Standard of Review

    In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997).  We must afford the same amount of deference to the trial court=s rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.  Guzman v. State, supra at 89.  Appellate courts, however, review de novo Amixed questions of law and fact@ not falling within the previous category.   Guzman v. State, supra.  When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling "turns" on an evaluation of credibility and demeanor.  Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App. 1998).  A question "turns" on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is enough to add up to what is needed to decide the substantive issue. Loserth v. State, supra.  We must view the record in the light most favorable to the trial court=s ruling and sustain the trial court=s ruling if it is reasonably correct on any theory of law applicable to the case. Guzman v. State, supra.

                                                                            Consent

    In his first point of error, appellant claims that B. J. Russell lacked authority to consent to the search of the premises. Even where the person has authority to consent, the State must prove by clear and convincing evidence that the consent was given freely and voluntarily.  Bumper v. North Carolina, 391 U.S. 543 (1968); Paulus v. State, 633 S.W.2d 827, 850 (Tex.Cr.App.1982).  Whether consent to search was voluntary is a question of fact to be determined from the totality of the circumstances.  Brem v. State, 571 S.W.2d. 314, 319 (Tex.Cr.App.1978).  A valid consent to search may be given not only by the defendant but also by anyone who possesses common authority over, or other sufficient relationship to, the premises or effects to be searched.  United States v. Matlock, 415 U.S. 164, 171 (1974). It is well established in Texas that third parties have authority to consent to a search when they have equal control over and equal use of the premises being searched.  Fancher v. State, 659 S.W.2d 836, 838 (Tex.Cr.App. 1983).

    The totality of the circumstances reflects that B. J. Russell=s consent was given freely and voluntarily.  When hearing a motion to suppress, the trial court may believe or disbelieve any or all testimony and evidence, and an appellate court will not disturb any finding that is supported by the record.  Paulus v. State, supra at 851; Green v. State, 615 S.W.2d 700, 707 (Tex.Cr.App.1980), cert. den=d, 454 U.S. 952 (1981).  B. J. Russell testified that he understood that, by signing the consent form, he authorized the officers to search the smaller residence.  The officers testified that B. J. Russell had advised them that both Timothy and appellant were trespassing and that they had stolen his generator.  The trial court could have disbelieved B. J.=s testimony that he did not fully understand that form.


    B. J. Russell did have equal control over and equal use of the residence.  B. J. Russell testified that Timothy=s right to live in the residence was conditioned on employment with B. J. Russell=s Acowhorn business@ and that Timothy=s employment had ended in November 1999 after a dispute.  B. J. Russell testified that he paid Timothy $20,000 and gave him a 1998 pickup for his part of the business so Timothy could move back to Fort Worth with his wife.  B. J. Russell testified that he believed that Timothy had moved out and that he had had the electricity and water cut off because the residence was vacant.

    Finally, the record reflects that the officers had a reasonable belief that B. J. Russell possessed authority to consent to the search of the residence.  In Riordan v. State, 905 S.W.2d 765, 771 (Tex.App. B Austin 1995, no pet=n), the court held that, when the facts do not support a finding of actual authority to consent to search, a search is reasonable when the consent-giver apparently has actual authority.  A warrantless entry does not violate the Fourth Amendment when such entry is based upon the consent of a third party whom the officers, at the time of the entry, reasonably believe possesses common authority over the premises, but who in fact does not possess such authority.  Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990).  There is sufficient evidence to support a finding that B. J. Russell owned the property, that Timothy and appellant were trespassing at the time, and that B. J. Russell gave a valid consent.

                                                                      Search Warrant

    Appellant argued that the affidavit for the issuance of the search warrant was insufficient to show probable cause. The affidavit must contain factual allegations; conclusory statements cannot be considered in the probable cause determination.  Illinois v. Gates, 462 U.S. 213, 239 (1983).  If the warrant is issued pursuant to TEX. CODE CRIM. PRO. ANN. art. 18.02(10) (Vernon Supp. 2001), the affidavit must set forth sufficient facts to establish the following:  (1) a specific offense has been committed; (2) the property to be searched or items to be seized constitute evidence of the offense or evidence that a particular person committed the offense; and (3) the property or items are located at or on the person, place, or thing to be searched.  TEX. CODE CRIM. PRO. ANN. art. 18.01(c) (Vernon Supp. 2001). However, if the officer has sufficient personal knowledge to swear to sufficient facts to establish probable cause, the affidavit is supportable based upon the officer=s direct observations.  Rangel v. State, 435 S.W.2d 143, 144 (Tex.Cr.App.1969); Liebman v. State, 652 S.W.2d 942, 949 (Tex.Cr.App.1983).

    We find that the affidavit established probable cause based on the direct observations of Officer Goetz.  The affidavit indicates that Officer Goetz searched the property and found Prestone starting fluid cans that had puncture marks on the bottom which was common in the manufacture of methamphetamine. Therefore, we hold the affidavit to be sufficient and overrule appellant=s first point of error.

                                                Legal and Factual Sufficiency of the Evidence

    In his second and final point of error, appellant argued that there was factually insufficient evidence to Alink@ him to the attempt to manufacture methamphetamine.[1]  Evidence is legally sufficient when, viewed in the light most favorable to the prosecution, it is sufficient to permit a rational trier of fact to find all the essential elements of the charged crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is factually sufficient, we must review all the evidence and determine whether the verdict is so against the great weight of the evidence as to be clearly wrong and unjust.  Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

    The record shows that the house where appellant was staying was a virtual drug lab.  Appellant even admitted that such was probably the case.  Appellant had lived in the house continuously from June 1998 until July 1999 when he was incarcerated.  Even though Timothy was not there, appellant returned to the residence on December 24, 1999; and appellant stayed there for at least 5 days prior to the search on January 1, 2000.  Deputy Upshaw testified that all the constituent elements of a ANazi@[2] methamphetamine lab were present and that the manufacturing process was either being started or had just been completed.  Further, Officer Goetz testified that the elements linking appellant to the attempt to manufacture methamphetamine were:  (1) that the activities of the home were consistent with a methamphetamine manufacturing lab; (2) that he was present on the day the evidence, including methamphetamine, was discovered; and (3) that appellant=s property at the residence indicated that he had a history of residing at, or being involved with, the residence. 


    We hold that the evidence is both legally and factually sufficient to show that appellant attempted to manufacture methamphetamine.  The jury=s verdict is not against the great weight of the evidence.  We overrule appellant=s second point of error.

                                                                    This Court=s Ruling

    The judgment of the trial court is affirmed.

     

    TERRY McCALL

    JUSTICE        

     

    November 8, 2001

    Do not publish.  See TEX.R.APP.P. 47.3(b).

    Panel consists of: Arnot, C.J., and

    Wright, J., and McCall, J.


    [1]Although appellant does not state whether he is challenging the legal sufficiency or the factual sufficiency, it appears that appellant is challenging the factual sufficiency.

    [2]The word ANazi@ refers to the process by which pseudoephedrine is extracted from over-the-counter cold medications and then converted into methamphetamine.