Mike (Michael) Benitez v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-03-00146-CR & 04-03-00147-CR
Michael BENITEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2001-CR-6896A & 2002-CR-0893
Honorable Sid L. Harle, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 30, 2004

AFFIRMED AS REFORMED

In cause number 2001-CR-6869A, Michael Benitez was charged with two counts: possession of cocaine and possession of cocaine with intent to deliver. In cause number 2002-CR-0893, Benitez was also charged with two counts: attempted capital murder of a peace officer and aggravated assault upon a public servant. Following a jury trial, Benitez was found guilty of both counts in cause number 2001-CR-6869A, possession of cocaine and possession of cocaine with intent to deliver. However, in cause number 2001-CR-0893, the jury found Benitez not guilty of the first count, attempted capital murder of a peace officer. With respect to the second count, aggravated assault upon a public servant, the jury found Benitez guilty. With respect to the charge of possession of cocaine with intent to deliver, Benitez was sentenced to ten years imprisonment. With respect to the charge of possession of cocaine, he was sentenced to five years imprisonment. And, with respect to the charge of aggravated assault upon a public servant, he was sentenced to twenty-nine years imprisonment.

On appeal, Benitez argues that he was punished twice for the same offense in violation of the Fifth Amendment to the Constitution and that the search of his home was performed illegally in violation of the Fourth Amendment to the Constitution. Because Benitez's first issue has merit, we reform the judgment in cause number 2001-CR-6869A to vacate the possession of cocaine conviction but leave intact the conviction on possession of cocaine with intent to deliver. We affirm the judgment as reformed. In cause number 2002-CR-0893, we affirm the judgment of the trial court.

Background

On September 14, 2001, Bexar County Deputy Sheriffs executed a search warrant on Benitez's house based on information from a confidential informant that there were drugs in the house. Benitez and his girlfriend, Nancy Coultress, were the only people in the house at the time. According to the officers, they knocked and announced their presence before ramming and breaching the door. Once the first officer, Deputy Houston, entered the home, Benitez shot and injured him. Houston and the other officers returned fire, shooting and injuring Benitez. Upon searching the home, the officers found cocaine and marijuana.

Double Jeopardy

In his first issue on appeal, Benitez contends that he was punished twice for the same offense when he was convicted of possession of cocaine with intent to deliver in Count I and sentenced to ten years imprisonment and convicted of possession of cocaine in Count II and sentenced to serve five years imprisonment. The State agrees that because possession of cocaine is a lesser included offense of possession of cocaine with intent to deliver, double jeopardy prohibits prosecution and punishment for both offenses. See Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim. App. 2003).Benitez and the State agree that the proper remedy in this circumstance is to retain the conviction with the "most serious punishment." Landers v. State, 957 S.W.2d 558, 559-61 (Tex. Crim. App. 1997). Thus, the appropriate remedy here is to retain the possession of cocaine (4 grams but less than 200 grams) with intent to deliver conviction and to vacate the possession of cocaine (4 grams but less than 200 grams) conviction. We, therefore, reform the judgment in Cause No. 2001-CR06869A to so reflect.

Knock and Announce

In his second issue on appeal, Benitez contends that the search of his home was illegal because the sheriff's deputies failed to knock and announce their presence in violation of the Fourth Amendment. We review the trial court's ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Under this standard, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to a trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. We, however, may review de novo "mixed questions of law and fact" not falling within this category. Id.

At trial, Benitez moved to suppress the evidence obtained during the search. Although the trial court heard testimony outside the presence of the jury, the issue of the illegal search was also raised and evidence presented in the jury's presence. Thus, in determining whether the trial court abused its discretion in refusing to suppress the evidence, we consider both the evidence that was heard only by the trial court as well as the evidence that was placed before the jury. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).

Officers must knock and announce their presence and purpose before entering a residence to conduct a search. See Richards v. Wisconsin, 520 U.S. 385, 394 (1997). This common law rule forms a part of the reasonableness inquiry of a search and seizure under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 930 (1995). There are exceptions to this rule, however. Officers are not required to knock and announce where they have a reasonable suspicion that knocking and announcing, under the particular circumstances of the case, would be dangerous or futile, or would inhibit investigation of the crime, such as allowing the destruction of evidence. Richards, 520 U.S. at 394. In determining reasonableness in a knock-and-announce situation, each situation should be decided on a case by case basis by examining the totality of the circumstances. United States v. Banks, 124 S. Ct. 521, 525 (2003). The Supreme Court has avoided categories and protocols for reasonable searches. Id. Instead, the Court has "treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones." Id. Thus, we must examine reasonableness by looking at the totality of circumstances presented here.

The warrant in this case was executed during the daylight hours. Deputy Glenn Sanders was the officer who breached the door of Benitez's residence by using a battering ram. Sanders testified that after Officer Houston opened the screen door, he hit the door with his fist. According to Sanders, as he hit the door with his fist, he yelled "sheriff's office." Other officers also made a similar loud announcement. Sanders then tried the door, but it was locked. When no one answered the door, he rammed it, again yelling "sheriff's office." Sanders then rammed it a second time, once again yelling "sheriff's office." The door then gave way. According to Deputy Sanders, the amount of time that elapsed between the time he knocked and announced until he actually breached the door was between five and ten seconds. According to Benitez and his girlfriend, Nancy, although they heard voices outside, they never heard the deputies knock and announce their presence before the door was breached. They also testified that the house is very small, and that if there had been knocking on the front door, they would have been able to hear it from their bedroom.

The officers testified that they made a quick entry because often when there are drugs in a house there are also weapons. And, according to the officers, there is always a possibility that the people inside will flush the drugs. The officers did not know, however, whether there were weapons in Benitez's house or whether people inside his house would flush the drugs.

Benitez argues that the sheriff's deputies violated the "knock and announce" requirement by waiting ten seconds or less after announcing their presence before entering Benitez's house. Benitez relies on United States v. Valdez, 302 F.3d 320 (5th Cir. 2002). In Valdez, however, unlike here, the officers did not wait between knocking and entering, but knocked and entered simultaneously. The Fifth Circuit held that the officers violated the knock-and-announce rule. Id. at 321-22. Benitez also relies on Ballard v. State, 104 S.W.3d 372 (Tex. App.--Beaumont 2003, pet. ref'd). Like the Valdez case and unlike the facts here, in Ballard it was undisputed that the officers failed to knock and announce their presence before entering the house. Id. at 376.

In United States v. Jones, 133 F.3d 358, 360 (5th Cir. 1998), the officers waited fifteen to twenty seconds between knocking and entering the apartment. The Fifth Court discussed a number of federal cases which were decided under the federal "knock-and-announce" statute. (1) Id. at 361. Looking at these cases, the Fifth Circuit noted that as a general rule, a delay of five seconds or less is a violation of the statute whereas waiting more than five seconds is not a violation. Id. The court then stated that the timing question is relevant in the federal statute only to the extent necessary to imply refusal of admittance by the occupant; however, the Fourth Amendment reasonableness standard involves different purposes because of possible exigent circumstances. Id. at 361. Thus, "[i]t is possible that a delay in a particular case might be too short to imply refusal of admittance under [the federal statute], but would be reasonable for Fourth Amendment purposes because of exigent circumstances such as the potential for destruction of evidence or danger to law enforcement officers or innocent occupants." Id. The Fifth Circuit refused to create a bright-line standard, but found that the officers had waited long enough.

The trial court in this case could have believed that the time between the knock-and-announce and entry into Benitez's house was somewhere between five and ten seconds. Based upon the above-cited authorities, we cannot say that this was an unreasonable amount of time for Fourth Amendment purposes. This is particularly true given that the house was small and that both Benitez and his girlfriend could hear voices outside while in their bedroom. Thus, the officers could have reasonably expected that drugs could have been flushed fairly quickly. Also, the warrant was executed during the day; as such, the officers could have reasonably expected people in the house to be up and awake. See Banks, 124 S. Ct. at 528 (holding that fifteen to twenty seconds is a reasonable amount of time where search warrant was executed in the daytime).

Benitez also argues that the deputy sheriff's opening of the screen door before knocking and announcing their presence was a Fourth Amendment violation. He has, however, cited no authority for the argument that before law enforcement officers can open a screen door, they must first knock and announce their presence. See Tex. R. App. P. 38.1(h). Moreover, we can see no Fourth Amendment violation where, as here, the door inside the screen door was closed and locked, thereby making entry impossible by merely opening the screen door. We overrule Benitez's second issue on appeal.

Conclusion

For the above reasons, we affirm the trial court's judgment in cause number 2002-CR-0893. And, because Benitez's double jeopardy rights were violated, we reform the judgment in cause number 2001-CR-6869A to vacate his conviction for possession of cocaine. As reformed, we affirm the trial court's judgment.

Karen Angelini, Justice

Do not publish

1. The federal knock-and-announce statute, 18 U.S.C. 3109, applies to federal law enforcement officials. The common law knock-and-announce principle applies to state and federal law enforcement officers. See Jones, 133 F.3d at 361 ("[T]he common-law knock-and-announce principle forms a part of the Fourth Amendment reasonableness inquiry, which applies with equal force to state and federal law enforcement officers alike.").