William Joe McKinley v. The State of Texas--Appeal from 249th District Court of Johnson County

AFFIRMED

JUNE 28, 1990

NO. 10-89-246-CR

Trial Court

# 26883

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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WILLIAM JOE McKINLEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 249th Judicial District Court

Johnson County, Texas

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O P I N I O N

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A jury convicted Appellant of aggravated delivery of a controlled substance, and assessed his punishment at forty years in prison. See TEX. HEALTH & SAFETY CODE ANN. 481.112(c) (Vernon 1990). He argues that the court erred when it: (1) denied his challenge for cause of a venireman; (2) admitted evidence obtained in an illegal search and seizure; (3) denied his requested instruction; and (4) denied his motion for a mistrial when the State introduced evidence of extraneous offenses. The judgment will be affirmed.

During voir dire examination, Johnny Edwards, a veniremember, admitted that he might not be able to consider probation if Appellant were found guilty. The following exchange then occurred at the bench out of the hearing of the jury panel:

[PROSECUTOR]: Mr. Edwards, let me just ask you, what [Appellant's counsel] talked to you about was giving probation in a drug case. Earlier during my part of the jury selection, I asked whether or not at this point everybody could consider, you know, the range of ten years to 99 years or life and a fine up to $10,000, I believe, and a possibility of probation. And I asked you -- I asked the jury at large, really, if everyone could consider probation, knowing they haven't heard this case, and it may not be appropriate after you hear this case, but -- and my question to you right now is, could you consider probation? Could you consider it? I mean, I'm not asking you to give it; I know you haven't heard anything.

MR. EDWARDS: No. I really misunderstood the probation. It wouldn't have been offered if it had been -- if the guy had been hauled in prior, we'll say --

[PROSECUTOR]: Yeah.

MR. EDWARDS: -- 10 or 15 times in the last three years.

[PROSECUTOR]: Right.

MR. EDWARDS: This is his first offense.

[PROSECUTOR]: Yes, sir.

MR. EDWARDS: Probably, yeah, I could probably be fair.

[PROSECUTOR]: You could consider as a one-time punishment a probation? You know, I'm not asking you right now to give it. It's just one of the things that is still possible.

MR. EDWARDS: Yeah.

[PROSECUTOR]: And I think [Appellant's counsel] explained in his jury selection part about, you know, [Appellant] has filed an application for probation. It says he's never been convicted in this state or anywhere else.

MR. EDWARDS: Yeah.

[PROSECUTOR]: And in your mind, then, otherwise, he's a first-time offender and you could consider probation?

MR. EDWARDS: Yes, I'd consider probation.

Appellant's first point is that the court erred when it overruled his challenge to Edwards for cause.

Article 35.16 of the Code of Criminal Procedure provides that a prospective juror who has "a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefore" may be challenged for cause. TEX. CODE CRIM. PROC. ANN. art. 35.16(c)(2) (Vernon 1989). Although Edwards initially claimed he could not consider probation, he ultimately said he could consider it. Therefore, the record does not support Appellant's contention that Edwards was subject to a challenge for cause under article 35.16. See Von Byrd v. State, 569 S.W.2d 883, 891 (Tex. Crim. App. 1978). Point one is overruled because the State successfully rehabilitated Edwards. See Russell v. State, 727 S.W.2d 92, 93-94 (Tex. App.--Dallas 1987, pet. ref'd).

On September 24, 1988, Sergeant Rogers smelled a strong "ether odor" coming from a mobile home. He associated the smell with the manufacture of amphetamine, and notified Sergeant Arnold. Rogers and Arnold conducted a surveillance of the mobile home while other officers began the process of obtaining a search warrant. However, at approximately 3:15 P.M. a pick-up truck driven by a man arrived at the home, and at 3:30 P.M. a woman driving a car pulled into the driveway. Fifteen minutes later, when school buses were bringing children to the neighborhood, the woman drove away. The officers decided that, to ensure the children's safety and to prohibit the destruction of evidence, they had to "secure" the mobile home.

The officers stopped the car which had just left the scene, and returned the driver to the mobile home. As they drove onto the property, three men began to run away. Appellant, one of the fleeing men, put a yellow case he was carrying under the porch of the home. After "freezing" the scene, the officers obtained the owner's consent to search the premises. Among the items seized in the search was the yellow case which Appellant had deposited under the porch. Appellant complains in point two that the court erred when it admitted into evidence the 794.29 grams of amphetamine found in the yellow case.

No one has standing to complain about the search and seizure of abandoned property. Garcia v. State, 704 S.W.2d 512, 516 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd). Thus, if Appellant abandoned the yellow case, he cannot complain about the admission of its contents into evidence. To abandon something, a defendant must: (1) intend to abandon the property; and (2) freely decide to abandon it, i.e., the decision must not merely be the result of police misconduct. Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1988) (on rehearing). Clearly, when Appellant placed the yellow case under the porch, he intended to abandon it. Therefore, the critical inquiry is whether his decision was merely the result of police misconduct.

Warrantless searches are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). One exception to this rule is the "emergency doctrine" which justifies a warrantless entry to prevent the destruction of evidence or contraband. Warden, Maryland Penitentiary v. Hayden, 399 U.S. 294, 87 S. Ct. 1642, 1645, 18 L. Ed. 2d 782 (1967). Under the emergency doctrine, officers must have probable cause to believe that an emergency existed which made it impracticable to obtain a warrant. Nastu v. State, 589 S.W.2d 434, 439 (Tex. Crim. App. [Panel Op.] 1979). When evaluating the officers' belief, the following objective standard should be applied: "[W]ould the facts available to the officer at the moment of the seizure or the search . . . warrant a man of reasonable caution in the belief that the action taken was appropriate?" Stewart v. State, 681 S.W.2d 774, 778 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd) (quoting Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968).

Rogers detected ether, a substance associated with the virtual completion of the chemical process used to make amphetamine, coming from the mobile home. He called for assistance from Arnold, an experienced narcotics investigator. Arnold also smelled the ether and saw someone pour out a liquid, which strengthened his suspicion that the amphetamine was in the completed, powder form. Although other officers were attempting to secure a search warrant, two vehicles entered the property and one left. This activity aroused the officers' suspicions that perhaps the lab was being dismantled, the chemicals disposed of, and the drugs removed from the scene. Based on these observations and on the interest in protecting school children from the chemicals, drugs, and possibly weapons, the officers decided to enter the property without a warrant.

Subsequent to their entry on the property, the officers obtained the owner's consent to search the premises. However, whether that consent was effective and whether Appellant has standing to complain are irrelevant because the officers' entry on the property was reasonable. Thus, the discovery of the abandoned yellow case and its contents was not merely the result of police misconduct. Point two is overruled.

Appellant's third point is that the court erred when it denied his requested instruction that the jury disregard illegally seized evidence. This point is overruled because, having already determined that the evidence was not illegally seized, the instruction was not proper because there was no fact issue for the jury to resolve. See Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982).

Appellant argues in point four that the court erred when on two separate occasions it allowed the admission of extraneous-offense evidence. First, he complains about this interaction between his attorney and Arnold:

Q And [Appellant], was he very cooperative [when the officers were searching the premises]?

A No, sir.

Q And how was it that he was not cooperative, other than he didn't immediately put his hands up, okay? We can concur that is not cooperation.

A I'm sure, after he found out that -- in the conversation that [the mobile home owners] told us that they'd been cooking dope out there and that wasn't the first time, he was probably upset.

Assuming, without deciding, that his request that the response be stricken from the record was an objection, Appellant has failed to demonstrate any harm caused by the court's refusal to strike the response. See TEX. R. APP. P. 81(b)(2).

Second, during the cross-examination of Laura Brown, Appellant's sister, the prosecutor asked the following question: "Was it the first time your brother had been there to powder out drugs?" Although the court sustained his objection and instructed the jury to disregard the question, Appellant alleges that the court erred when it denied his motion for a mistrial.

Although error may result when a prosecutor asks a question relating to something which is not provable directly, such error does not mandate a reversal unless there is obvious harm to the defendant. Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985). Furthermore, any error resulting from the asking of an improper question may usually be cured or rendered harmless by instructing the jury to disregard the question. Sheppard v. State, 545 S.W.2d 816, 818 (Tex. Crim. App. 1977). Appellant has failed to demonstrate any obvious harm he has suffered from the improper question or any extreme circumstances which would cause the jury to be unable to follow the court's instruction. See id. Therefore, any error which resulted from the prosecutor's question was harmless. Point four is overruled, and the judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice