John Earl Johnson v. The State of Texas--Appeal from Criminal District Court No. 2 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

John Earl Johnson

Appellant

Vs. Nos. 11-01-00371-CR & 11-01-00372-CR -- Appeals from Dallas County

State of Texas

Appellee

In Cause No. 11-01-00371-CR, the trial court convicted appellant, upon his open plea of guilty, of the offense of possession with the intent to deliver more than 4 grams but less than 200 grams of cocaine. Appellant pleaded true to the enhancement allegations, and the trial court assessed his punishment at confinement for 25 years. In Cause No. 11-01-00372-CR, the trial court convicted appellant, upon his open plea of guilty, of the unlawful possession of a firearm by a felon. Appellant pleaded true to the enhancement allegation, and the trial court assessed his punishment at confinement for 20 years. We affirm.

In his sole point of error in each case, appellant challenges the denial of his pretrial motion to suppress. Appellant urges that the cocaine and the firearm were illegally seized without a search warrant in violation of his rights under the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure. 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, 87 (Tex.Cr.App.1997). Because the trial court is the exclusive fact finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323 (Tex.Cr.App.2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844 (Tex.App. - Eastland 1999, no pet=n).

Two witnesses testified at the hearing on the motion to suppress: Officers Marshal McLemore and Scott Robert Sayers. Officer McLemore testified that he conducted surveillance of appellant=s apartment complex at the request of two other officers who had received complaints about drug activity in that complex. Within 15 minutes, Officer McLemore noticed four separate individuals go to appellant=s door, knock, engage in a short conversation with appellant at the door, enter the apartment, stay inside for a minute or less, and then leave. Officer McLemore then saw three more people enter the apartment. Based on his experience, Officer McLemore believed that drugs were being sold at the apartment. He notified the other officers, and they decided to investigate further. The three officers walked to appellant=s door. As Officer Sayers approached the door and was about to knock on it, the door opened. When the door opened, the officers saw a man, Kevin Miller, about to leave the apartment. However, when Miller saw the officers, he dropped a baggie and retreated back into the apartment. The officers, believing that crack cocaine was in the baggie, entered the apartment through the open door in pursuit of Miller and the baggie. While apprehending Miller, Officer Sayers saw appellant throw two baggies down. Appellant then attempted to retreat into the back bedroom. Officer Sayers followed appellant and Agot him down@ as he entered the bedroom. In the bedroom in an open closet, Officer Sayers noticed a pistol in plain view. Next to the pistol and also in plain view was a tray that contained several more rocks of crack cocaine, some packaged and some not.

A peace officer may arrest an offender without a warrant for any offense committed in the officer=s presence or within his view. TEX. CODE CRIM. PRO. ANN. art. 14.01(b) (Vernon 1977). However, an officer may not enter a residence to make the warrantless arrest absent consent or exigent circumstances. TEX. CODE CRIM. PRO. ANN. art. 14.05 (Vernon Supp. 2002). As we stated in Waugh v. State, 51 S.W.3d 714, 718 (Tex.App. - Eastland 2001, no pet=n), exigent circumstances include pursuing a fleeing suspect and preventing the destruction of evidence:

A police officer may enter a house without a warrant under exigent circumstances, such as during the hot pursuit of a fleeing suspect. Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984); United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976). The possible destruction of evidence also allows the police to make a warrantless entry into a house. See Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970).

The officers in this case had a right to approach appellant=s front door in order to knock on the door. Rodriguez v. State, 653 S.W.2d 305 (Tex.Cr.App.1983); Van Baker v. State, 56 S.W.3d 803 (Tex.App. - Eastland 2001, no pet=n). When the occupants of appellant=s apartment opened the door, they relinquished any subjective expectation of privacy in any illegal activity that could be readily detected by someone standing at the doorway. Rodriguez v. State, supra at 307. From the doorway, the officers saw Miller drop a baggie that they reasonably believed contained cocaine. Miller=s attempt to flee into the apartment after abandoning the cocaine created exigent circumstances allowing the officers to enter the apartment in hot pursuit of Miller in order to detain and arrest him. Furthermore, the officers could have reasonably concluded that the contraband would be destroyed or removed before they could obtain a search warrant. See McNairy v. State, 835 S.W.2d 101, 107 (Tex.Cr.App.1991). After a lawful entry based upon exigent circumstances, the officers saw appellant commit an offense within their view. Then, upon pursuing appellant, the officers saw the firearm and more cocaine in plain view. Evidence located in plain view from a legal vantage point may be seized without a warrant. Horton v. California, 496 U.S. 128, 135 (1990). Under the circumstances in this case, we hold that the trial court did not abuse its discretion in denying appellant=s motion to suppress. Appellant=s sole point of error is overruled.

The judgments of the trial court are affirmed.

PER CURIAM

July 25, 2002

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

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

Wright, J., and McCall, J.