Christopher Riggins v. The State of Texas--Appeal from 35th District Court of Brown County

11th Court of Appeals

Eastland, Texas

Opinion

Christopher Riggins

Appellant

Vs. No. 11-01-00360-CR -- Appeal from Brown County

State of Texas

Appellee

The jury convicted Christopher Riggins of the second-degree felony offense of delivery of a controlled substance: one or more grams but less than four grams of cocaine. The jury assessed appellant=s punishment at confinement for 20 years and a fine of $10,000. We affirm.

Appellant has briefed three points of error related to his motion to suppress. In the first point, he argues that the trial court erred in denying his pretrial motion to suppress because the informant making the controlled buy from appellant was trespassing[1] when she entered appellant=s residence without consent. In the second point, he argues that the trial court erred in denying the motion when it was re-urged at trial. In his final point, appellant contends that, if trial counsel failed to preserve any error regarding the suppression issue, then appellant was denied the effective assistance of counsel at trial.

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).

The record shows that Sch-maine Shantae Samuels, the informant who made the controlled buy, testified at the hearing on the motion to suppress and at trial. While working undercover as a confidential source for the United States Drug Enforcement Administration, Samuels purchased crack cocaine from appellant. Samuels testified that she had been to appellant=s house earlier on the day of the transaction and that appellant had agreed to sell her cocaine. Samuels told appellant that she would return after cashing a check. Samuels then met with DEA agents, who instructed Samuels about making the purchase, searched Samuels and her car, gave Samuels $100, and equipped her with video and audio recording devices that were concealed in a purse. Samuels returned to the residence where appellant resided with his grandmother. She entered the porch and knocked on the door. She waited until she heard someone say, ACome in.@ Then, she opened the door, went inside, called appellant=s name, and walked to the bedroom where appellant was lying on the bed talking on the telephone. Using the money from the DEA agents, Samuels purchased a rock of crack cocaine from appellant.

Appellant sought to suppress the cocaine, the videotape, and the audiotape. Appellant=s arguments relate to Samuels opening the porch door without knocking and to Samuels entering the residence without consent. Although the videotape and audiotape corroborate much of Samuels=s testimony, they are of poor quality. It is difficult to hear and understand what is being said on the tapes. On neither tape can the words, ACome in,@ be heard. Because of the quality of the tapes, however, we cannot say that those words were not actually uttered or that Samuels entered appellant=s residence without consent. Samuels testified unequivocally that she heard someone say, ACome in.@ Furthermore, appellant did not seem the least bit surprised to see Samuels, an alleged trespasser, when she came into his bedroom.

Also, Samuels=s entry into the porch, which was enclosed by glass, did not constitute a trespass. Samuels had been to appellant=s residence before and was familiar with the customary manner of entry into the house. The small porch was situated directly in front of the Amain door@ that led into the residence. In order to knock on the door leading into the residence, a visitor would have to open the glass/screen door and enter the porch. Under these circumstances, we cannot hold that Samuels was trespassing when she entered the porch.

We hold that the trial court did not abuse its discretion in overruling appellant=s motion to suppress. Consequently, the first and second points of error are overruled. Because we have addressed all of the issues with respect to the motion to suppress and have not held that appellant failed to preserve an issue, we also overrule the third point of error in which appellant contends that trial counsel was ineffective only for failing to preserve an issue related to the suppression of evidence.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

February 20, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

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

Wright, J., and McCall, J.

[1]Criminal trespass is committed when a person enters or remains on another=s property without effective consent and the person had notice that the entry was forbidden or received notice to depart but failed to do so. TEX. PENAL CODE ANN. ' 30.05 (Vernon Supp. 2003).