Teresa Maria Holmes v. The State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-97-200-CR

&

No. 10-97-196-CR

FREDERICK C. HOLMES AND

TERESA MARIA HOLMES, Appellants

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court Nos. 96-11-11959-BCCR & 96-11-11960 BCCR

O P I N I O N

No. 10-97-200-CR is an appeal by Appellant Frederick Holmes from his conviction for possession of marihuana (5 pounds or less but more than 4 ounces), for which he was sentenced to 2 years in a state jail, probated, and a $1,000 fine.

No. 10-97-196-CR is an appeal by Appellant Teresa Holmes from the court s finding of sufficient evidence to support a finding of guilty for possession of marihuana (5 pounds or less but more than 4 ounces), after which the court deferred adjudication and placed her on 2 years deferred adjudication probation and a $500 fine.

The two cases were tried together. The appellants are husband and wife. There is one statement of facts and the briefs in the two cases are identical.

On September 4, 1996, Children s Protective Services received a report of child abuse of the Holmes children, ages 13, 10, 4, and 5 months. Ms. Meeks of CPS went to the Holmes property on FM 2140 near Iredell on September 6, 1996, accompanied by a game warden. The gate to the Holmes property was secured with a chain and padlock. Ms. Meeks and the game warden then left. Ms. Meeks requested an order from District Judge James Morgan allowing her entry onto Appellants property.

On September 9, Judge Morgan issued a written order stating that the Texas Department of Human Services had requested entrance to the home of Appellants to complete investigation of a report of child abuse of the [named] Holmes children; and ordered: That [appellants] allow an authorized representative of the Texas Department of Human Services to enter the home located at FM 2140, Iredell, Texas, to interview and physically examine the children, and to cooperate with the Texas Department of Human Services in the investigation. It is further ordered that the Sheriff of Bosque County, or one of his officers, serve the order on [appellants] and be available in the execution of this order.

On September 9, Ms. Meeks and Deputy Sheriff Ferguson, with the order, went to Appellants property. Deputy Ferguson used bolt cutters to cut the chain on the gate, and they entered the property. Appellants were present in a small trailer house. While Ms. Meeks was interviewing the children, Deputy Ferguson was talking to Mr. Holmes at the trailer when he observed a 4 -foot marihuana plant growing about 30 yards from the trailer. Deputy Ferguson then observed a second marihuana plant nearby. Deputy Ferguson gave Mr. Holmes a Miranda warning and asked him for permission to look over the rest of his place. Mr. Holmes refused. Deputy Ferguson placed him under arrest and by radio called the Sheriff s Department to come to the location to transport the four children and two adults. Deputy Ferguson also sought and obtained a warrant to search Appellants property. The search revealed 7 growing marihuana plants, a baggie with pound of dried marihuana and a number of plants which had been pulled and were drying. Both Appellants were indicted for possession of marihuana (5 pounds or less but more than 4 ounces).

Appellants made a motion to suppress the evidence seized which, after a hearing, the trial court denied.

Thereafter both Appellants waived a jury and pled guilty before the court. The court gave Appellants permission to appeal the court s ruling on the pretrial motion to suppress.

Appellants pleas of guilty were open pleas. There was no plea bargain. The court advised Appellants of the range of punishment, determined that Appellants had not been promised anything to plead guilty, and were not pleading because of fear or coercion. Appellants then signed and swore to a stipulation of evidence, waived the right to cross examine witnesses against them, and confessed that they had possessed 5 pounds or less but more than 4 ounces of marihuana. The State introduced Deputy Ferguson s testimony by agreement as well as the testimony of Chemist Mott that the evidence seized was marihuana.

The trial judge then found the evidence sufficient to find both Appellants guilty and ordered a presentence investigation.

Two weeks later at the sentencing hearing, the judge found Appellant Frederick Holmes guilty and sentenced him to 2 years in state jail, probated, and a $1,000 fine. Teresa Holmes was sentenced to 2 years deferred adjudication probation and a $500 fine. Both Appellants appeal on three identical points of error.

Point 1: The trial court erred in refusing to grant Appellants motion to suppress evidence seized pursuant to the court s order for investigation of report of child abuse because the Children s Protective Services worker, and the deputy sheriff who accompanied her to Appellants property, entered upon Appellants property without proper authority from the court.

Point 2: The trial court erred in refusing to grant Appellants motion to suppress evidence seized pursuant to the court s order for investigation of report of child abuse because the evidence was obtained in violation of the Fourth Amendment to the U.S. Constitution and to Article 1, Section 9 of the Texas Constitution.

Point 3: The trial court erred in refusing to grant Appellants motion to suppress evidence seized pursuant to the court s order for investigation of report of child abuse because the Children s Protective Services worker and the deputy sheriff who accompanied her to Appellants property trespassed upon Appellants property and the evidence was obtained in violation of Article 38.23 of the Texas Code of Criminal Procedure.

A trial court s ruling on a motion to suppress evidence will not be disturbed absent a showing it abused its discretion. Maddux v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). In reviewing the trial court s decision, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court s ruling and whether the trial court improperly applied the law to the facts. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). On appeal the evidence adduced at the suppression hearing is viewed in the light most favorable to the trial court s ruling, keeping in mind the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App. 1986).

Appellants point one asserts that the CPS worker and the deputy sheriff entered upon Appellants property without proper authority from the court and specifically complains of the deputy cutting the chain on the gate to gain entrance.

The court s order required the Holmes to allow the CPS worker to enter the home on FM 2140 to interview and physically examine the children and further ordered the deputy to serve the order and be available in the execution of the order.

Ms. Meeks testified that she perceived that the court s order authorized the cutting of the chain to execute the order. Deputy Ferguson testified that he perceived that the court s order authorized him to cut the chain to get onto the Holmes property; and that he perceived the order authorized him to gain access to the actual location of where the children were for the purpose of the investigation.

Section 9.21 of the Texas Penal Code entitled Public Duty provides that conduct [of an official] is justified if the actor reasonably believes the conduct is required or authorized by law . . . or in the execution of the legal process.

Deputy Ferguson, under the record, did have proper authority from the court to cut the chain and enter upon Appellants property. Rosalez v. State, 875 S.W.2d 705, 717 (Tex. App. Dallas, pet. ref d).

Point two asserts the evidence was obtained in violation of the Fourth Amendment to the U.S. Constitution and Section 9, Article 1, of the Texas Constitution.

The U.S. Constitution and Texas Constitutions provide that the people shall be secure in their persons and homes from all unreasonable seizures or searches and no warrant to search any place or seize any things shall issue without proper cause.

Deputy Ferguson was lawfully on Appellants property. He discovered the marihuana in plain view and not as the result of a search. Items in plan view may be seized by law enforcement officers if the officers had a right to be where they were when the discovery was made, and when it is immediately apparent to the officers that they have evidence before them of criminal activity. State v.. Haley,, 811 S.W.2d 5997, 599 (Tex. Crim. App. 1991). Moreover, Deputy Ferguson, after he viewed the marihuana, by radio called for a search warrant. After he received the search warrant he found the growing marihuana plants, the pound baggie of dried marihuana, and the pulled plants which were drying.

Point 3 asserts the CPS worker and the deputy sheriff were trespassers on Appellants property for which reason the evidence was obtained in violation of Article 38.23 of the Texas Code of Criminal Procedure.

Article 38.23 provides that no evidence obtained by an Officer in violation of any provision of the constitution or laws of Texas shall be admitted in evidence against the accused in a criminal case.

As previously noted, Deputy Ferguson was not a trespasser; he was on Appellants property pursuant to an order of Judge Morgan and in the execution of legal process pursuant to Section 9.21 of the Penal Code. Moreover, some of marihuana was in plain view of Deputy Ferguson and he did obtain a search warrant in the execution of which the balance of the contraband was found.

The trial judge did not abuse his discretion in overruling Appellants motion to suppress.

Moreover, this was an open plea of guilty. There was no plea bargain. The record reflects that Appellants pleas were knowingly, intelligently and voluntarily made.

Where a plea of guilty is voluntarily and understandingly entered into without the benefit of a plea bargain, all non-jurisdictional defects occurring before the entry of a guilty plea are waived. Jack v. State, 871 S.W.2d 741, 744 (Tex. Crim. App. 1994); Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972). A trial court s ruling on a pretrial motion to suppress evidence involves a non-jurisdictional defect occurring prior to trial. Shallhorn v. State, 732 S.W.2d 636, 637 (Tex. Crim. App. 1987); Courtney v. State, 904 S.W.2d 907, 912 (Tex. App. Houston [1st Dist.] 1995, pet. ref d); Rodriguez v. State, 844 S.W.2d 905, 907 (Tex. App. San Antonio 1992, pet. ref d); Lewis v. State, 911 S.W.2d 1, 4-5 (Tex. Crim. App.1995).

All points of both Appellants are overruled. The judgments are affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed December 3, 1997

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