Angela Goonan v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00260-CR
ANGELA GOONAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
By information, the State charged Appellant Angela Goonan with
possession of a dangerous drug. After a hearing on Goonan’s motion to
suppress evidence found in her car, Goonan entered a plea agreement whereby
she was placed on deferred adjudication community supervision for one year. In
three issues, Goonan complains that the trial court erred by denying her motion
to suppress. We will affirm.
II. BACKGROUND
In the late evening of August 31, 2008, Corporal Craig Berry of the Keller
Police Department stopped Goonan for speeding. As Berry approached
Goonan’s car, he saw on the back floorboard a previously opened bottle of wine
with its lid on. Berry asked Goonan for her license and insurance papers.
Goonan provided her license but was unable to show proof of insurance. As
Berry talked to Goonan, he further observed that the wine bottle was roughly five-
eighths full. According to Berry, he took Goonan’s license with him to his patrol
car to run a computer check, which came back ―clear.‖ At some point during the
encounter, Berry said that he observed Goonan ―making some furtive
movements . . . reaching over to her right side.‖ After running the computer
check, Berry returned to the passenger side of Goonan’s car and talked with her.
He discussed with Goonan that it was illegal to have an unsealed wine bottle in
the passenger compartment of the vehicle and asked her ―if there were any
additional open containers in the vehicle.‖ Berry said that Goonan denied there
were any other open containers. He further said that she had a worried look on
her face and told him that he ―could look in the vehicle and that she had already
unlocked it for [him].‖ Berry searched Goonan’s vehicle.
By Berry’s account, while searching the vehicle, he opened the center
console and observed a pill bottle that contained the name of someone other
than Goonan on the prescription label. He also said that the bottle label seemed
odd because the prescription date was several years old—the fill date was April
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2000—and the bottle label indicated that there were no authorized refills
remaining on the prescription. Berry opened the pill bottle and observed that
there were forty-eight pills within it—the prescription was written for sixty. Berry
testified he believed that he was legally in Goonan’s car because he had her
consent and that he was legally allowed to seize the pill bottle because he had
observed it while conducting the search.
Goonan testified that Berry had stopped her for speeding and that she did
not provide proof of insurance. She explained that her movements toward the
console were her efforts to look for her insurance papers while Berry was in his
patrol car. She said that as she was digging through papers in her console, she
saw the pill bottle for the first time. According to Goonan, the pill bottle was at
the bottom of the console, under numerous papers, and she ―didn’t think anything
of it.‖ Goonan said that Berry accused her of attempting to hide the pill bottle
under the other things in the console because the pill bottle was ―buried at the
bottom.‖ The trial court denied Goonan’s motion to suppress. This appeal
followed.
III. DISCUSSION
In three issues, Goonan complains that the trial court erred by denying her
motion to suppress in violation of her federal and state constitutional rights and in
violation of article 38.23 of the Texas Code of Criminal Procedure. U.S. Const.
amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon
2005). Goonan does not contest whether Berry had her consent to search her
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vehicle, nor does she complain that Berry seized the pill bottle. Goonan’s
complaint is that Berry was not justified in opening the pill bottle because it
contained ―innocuous materials.‖ We disagree.
1. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
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questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 818.
When the record is silent on the reasons for the trial court’s ruling, or when
there are no explicit fact findings and neither party timely requested findings and
conclusions from the trial court, we imply the necessary fact findings that would
support the trial court’s ruling if the evidence, viewed in the light most favorable
to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then
review the trial court’s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling. Kelly, 204
S.W.3d at 819.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court gave
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the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.
Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003), cert. denied, 541 U.S. 974 (2004).
2. Plain-View Doctrine
The plain-view doctrine involves no invasion of privacy. See Texas v.
Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 1541 (1983); Walter v. State, 28
S.W.3d 538, 541 (Tex. Crim. App. 2000). Thus, if an item is in plain view, neither
its observation nor its seizure involves any invasion of privacy. Walter, 28
S.W.3d at 541. The rationale of the plain-view doctrine is that if contraband is left
in open view and is observed by a police officer from a lawful vantage point,
there has been no invasion of a legitimate expectation of privacy and thus no
―search‖ within the meaning of the Fourth Amendment. See Illinois v. Andreas,
463 U.S. 765, 771, 103 S. Ct. 3319, 3324 (1983). An object is seized in plain
view if three requirements are met. Keehn v. State, 279 S.W.3d 330, 334 (Tex.
Crim. App. 2009). First, law enforcement officials must lawfully be where the
object can be ―plainly viewed.‖ Id. (citing Horton v. California, 496 U.S. 128, 136,
110 S. Ct. 2301, 2308 (1990)). Second, the ―incriminating character‖ of the
object in plain view must be ―immediately apparent‖ to the officials. Keehn, 279
S.W.3d at 334. Third, the officials must have the right to access the object. Id.
The second prong, the immediacy requirement, requires only a showing of
probable cause that the item discovered is incriminating evidence; actual
knowledge of the incriminating evidence is not required. Joseph v. State, 807
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S.W.2d 303, 308 (Tex. Crim. App. 1991) (citing Horton, 496 U.S. at 136, 110
S. Ct. at 2308). ―Probable cause merely requires that the facts available to the
officer would warrant a man of reasonable caution in the belief . . . that certain
items may be contraband.‖ Miller v. State, 686 S.W.2d 725, 728 (Tex. App.—
San Antonio 1985, no pet.). An officer may rely on training and experience to
draw inferences and make deductions as to the nature of the item seen. Nichols
v. State, 886 S.W.2d 324, 325–26 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d).
In this case, Berry testified that he lawfully searched inside Goonan’s
console because she had consented to his search of her vehicle. Goonan does
not contest this fact. Thus the first and third prongs of the plain-view doctrine are
easily satisfied. Berry also said that the incriminating nature of the contents of
the pill bottle was obvious to him because the label was made out to someone
other than Goonan, the prescription was rather old and did not allow for refills,
and he found the pill bottle in the car’s console where Goonan had made furtive
movements earlier. We conclude that the facts available to Berry would warrant
a man of reasonable caution to believe that the pill bottle contained contraband
and that his search of it was justified.
Goonan argues that the ―general rule‖ is that ―[i]ndividuals can manifest
legitimate expectations of privacy by placing items in closed, opaque containers
that conceal their contents from plain view.‖ United States v. Villarreal, 963 F.2d
770, 773 (5th Cir. 1992). We agree that this is a well-founded general rule, but
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the Villarreal court acknowledged that its reasoning did not apply in the context of
an automobile when, as here, the officer possesses probable cause that such a
container contains contraband. See id. at 774. Furthermore, the Villarreal court
held that the container at issue in that case was not incriminating in nature;
therefore, the plain-view doctrine did not apply. Id. at 776. But we hold that the
container’s incriminating nature in this case was readily apparent to Berry.
Therefore, the trial court did not err by denying Goonan’s motion to suppress.
We overrule Goonan’s three issues.
IV. CONCLUSION
Having overruled all three of Goonan’s issues, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DAUPHINOT, J. filed a concurring opinion.
PUBLISH
DELIVERED: January 20, 2011
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00260-CR
ANGELA GOONAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
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CONCURRING OPINION
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I write separately because I cannot tell from the well-written majority
opinion what offense Appellant was found to have committed and what drug,
dangerous drug, controlled substance, alcohol, or stolen property Appellant was
found to have possessed. Or was she found to have violated the law by
possessing a pill bottle with someone else’s name on its label? If so, I cannot
find that offense in our penal code. The record informs us that she was placed
on deferred adjudication community supervision for possession of a ―dangerous
drug.‖1 I join the majority because Appellant consented to the search and
because she does not challenge the constitutionality of the statutes defining
―dangerous drug‖ and making its possession illegal, statutes that make so little
sense that it is difficult to understand how they provide any guidance to law
enforcement, the bench, the bar, the pharmacist, or any person of normal
perception.
From reading the record and the briefs, I deduce that the prohibited
substance, the ―dangerous drug,‖ was naproxen. Naproxen? Really? The
original prescription was filled in April 2000 and was for sixty pills. When the
officer stopped Appellant in August 2008, forty-eight pills remained. At that rate
of consumption (assuming these pills were being consumed and assuming they
were part of the original sixty), it would take another nineteen-plus years for the
original prescription to be exhausted.
It should be noted that this ―dangerous drug‖ can be purchased over the
counter at local drugstores. Naproxen is sold over the counter as Aleve and
Midol Extended Relief. Wikipedia informs us that ―[t]he U.S. Food and Drug
Administration (FDA) approved [the use of naproxen sodium] as an over-the-
counter (OTC) drug in 1994, where OTC preparations are mainly marketed by
1
Tex. Health & Safety Code Ann. §§ 483.001(2), .041 (Vernon 2010).
2
Bayer HealthCare under the trade name Aleve and generic store brand
formulations.‖2
The record and the briefs inform us that this formulation that can readily be
purchased over the counter is a dangerous drug. Why? Nothing in the record
suggests that the contents of the bottle were tested and proved to be something
other than naproxen. Nothing in the record suggests that the naproxen had been
combined with another drug. It appears to be plain old naproxen. So why is it a
crime for Appellant to possess it?
Section 483.001 of the health & safety code defines a dangerous drug:
―Dangerous drug‖ means a device or a drug that is unsafe for self-
medication and that is not included in Schedules I through V or
Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled
Substances Act). The term includes a device or a drug that bears or
is required to bear the legend:
(A) ―Caution: federal law prohibits dispensing without
prescription‖ or ―Rx only‖ or another legend that complies with
federal law; or
(B) ―Caution: federal law restricts this drug to use by or on
the order of a licensed veterinarian.‖3
This is the law, but what does it mean? Federal law requires a legend on
cigarettes.4 Does this mean that because cigarettes require ―another legend that
complies with federal law,‖ a cigarette is a dangerous drug? A dangerous drug
2
Wikipedia, The Free Encyclopedia, Naproxen, http://en.wikipedia.org/wiki/
Naproxen (last visited Jan. 14, 2011).
3
Tex. Health & Safety Code Ann. § 483.001(2).
4
See 15 U.S.C. § 13.33 (2010).
3
must be a substance that is ―unsafe for self-medication‖ but that is not otherwise
against the law to possess.5 Naproxen is sold over the counter. Is it unsafe for
self-medication? Who must testify that it is unsafe for self-medication? Must a
pharmacist or some other expert testify to this fact? Apparently the naproxen
found in Appellant’s car was a dangerous drug because it was in a prescription
bottle. Would it still be a dangerous drug if it had been removed from the bottle?
I note that there is no exception in the possession statute (or, for that
matter, the delivery statute6) for family members.7 That is, there is no exception
that would allow a parent to pick up a prescription for a small child, or even an
adult child, from the pharmacy. There is no exception that would allow an adult
child to pick up a prescription for an elderly parent. Nor can wives or husbands
pick up prescriptions for their spouses. And apparently parents must leave the
dangerous drug in possession of the child because the parent violates the law if
the parent exercises care, custody, or control over the dangerous naproxen by
putting it on a shelf only the parent can reach. And what about Fido and Fluffy?
If the statute is to be complied with, they had better figure out how to pick up their
own prescription from the vet and how to dose themselves because their owner
cannot possess pet medication.
5
Tex. Health & Safety Code Ann. § 483.001(2).
6
See id. § 483.042.
7
See id. § 483.041.
4
If we were not required to give words contained in statutes their plain
meaning,8 we could read some of these exceptions into the statute. But we are
not allowed to create exceptions the legislature has not created.9
I write separately because the majority does not make plain the offense
and circumstances of the offense that Appellant was accused of committing. The
statutes defining ―dangerous drug‖ and criminalizing the possession thereof do
not make sense and raise too many questions about what kind of testimony,
expert or otherwise, is required to prove a violation of the law. I also write to urge
the legislature to reconsider these statutes that are so poorly written, to rethink
the rationale behind making an OTC drug a dangerous drug with no more
guidance than the statutes provide, and to place acquisition and storage of
prescriptions in a real-world context.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: January 20, 2011
8
See Martinez v. State, 323 S.W.3d 493, 503 & n.58 (Tex. Crim. App.
2010).
9
See Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (quoting
Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S. Ct. 1023, 1034 (2004)).
5