ERNEST M. GUTIERREZ v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-04-186-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 ERNEST M. GUTIERREZ, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 105th District Court

of Nueces County, Texas.

___________________________________________________ _______________

  MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Ernest M. Gutierrez, was charged with the offense of possession of cocaine (400 grams or more) with intent to deliver. See Tex. Health & Safety Code Ann. ' 481.112(a), (f) (Vernon 2003). The trial court denied appellant's motion to suppress evidence obtained as a result of a search of appellant's home. A jury found appellant guilty. Accepting the jury's assessment of punishment, the trial court sentenced appellant to twenty years in the Institutional Division of the Texas Department of Corrections and assessed a $20,000.00 fine. The trial court has certified that this case "is not a plea bargain case, and the Defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2)(A). By two points of error, appellant contends the trial court abused its discretion in denying his motion to suppress and in refusing to admit Detective Felix Gonzalez's report into evidence. We affirm.

I. Denial of Motion to Suppress

By his first point of error, appellant contends that the consent obtained by the police was not voluntary because of coercion and threats by the police. Appellant also asserts that the consent to search form obtained by police officers after entry of the residence was not properly executed and should have been suppressed.

A. Standard of Review

The appropriate standard for reviewing most trial court rulings on a motion to suppress is a bifurcated standard of review, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc); Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). When reviewing a trial court's ruling on a mixed question of law and fact (such as the issue of probable cause), the amount of deference afforded to a trial court's ruling "often is determined by which judicial actor is in a better position to decide the issue." Guzman, 955 S.W.2d at 87. We review de novo the application of the law to facts in this case, but we also afford almost total deference to the trial court's evaluation of the credibility and demeanor of the witnesses who testified at the pre trial hearing. See id. When there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling, and we must assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Carmouche, 10 S.W.3d at 327-28. "The trial court's ruling must be upheld if it is correct under any theory of law applicable to the case." Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005) (citing Romero v. State, 800 S.W.2d 539, 543 44 (Tex. Crim. App. 1990) (en banc)).

B. Analysis

Without determining appellant's arguments regarding the voluntariness of his consent, we conclude the police had ample probable cause and exigent circumstances to enter the home. See McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991) (en banc) (holding probable cause, combined with some sort of exigent circumstances, will support a warrantless search). The court of criminal appeals has set out the following probable cause standard for searches: "Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found." Estrada, 154 S.W.3d at 608-09 (quoting McNairy, 825 S.W.2d at 101). "The Supreme Court has further defined the probable-cause standard as the sum total of layers of information, and not merely individual layers and considerations, that a reasonable and prudent man acts upon." Id. at 609 (citing Brinegar v. United States, 338 U.S. 160, 176 (1948)).

In this case, the record reflects that appellant was in immediate possession of both a stolen computer and marihuana; that the police learned about both possessions while on the porchBthe computer after appellant admitted it was in the home and the marihuana from the odor of marihuana which came out of the door coupled with appellant's physical characteristics such as red, bloodshot eyes, increasing nervousness, a shaky voice and erratic breathing; that appellant initially lied to the police about his possession of the stolen computer; and that he was attempting to hide his possession of the marihuana from the police. The totality of these facts and circumstances would lead a person of reasonable prudence to believe that "the instrumentality of a crime or evidence of a crime will be found." See Estrada, 154 S.W.3d at 609; see also Barocio v. State, 158 S.W.3d 498, 449-500 (Tex. Crim. App. 2005) (holding police "had probable cause to suspect a possible, ongoing burglary and exigent circumstances allowed them to enter the home without a warrant to investigate the situation further" and also citing with approval the court of appeals' dissent that opined it would "defy reason" to leave the scene of a possible crime in progress to seek a warrant, leaving the putative criminals free to complete their crime). The facts are also sufficient in this case to demonstrate that the police had reason not to trust appellant and also to believe that appellant might attempt to destroy evidence. See Estrada, 154 S.W.3d at 609. Where police have evidence of marihuana and stolen property in a home, we cannot conclude they are required to stand by and allow that person to enter the home alone trusting that he will bring the incriminating evidence to them. Moreover, as the State argues, even if appellant had attempted to go back into the house as he claimed and tried to shut the door behind him and keep the police out, such a fact would militate against him as it would be an indicator that he wanted to be alone with the contraband and stolen computer. A reasonable police officer could believe that appellant was attempting to destroy the marihuana or the computer or both, or even flee from the officers or engage in some action that might threaten officer safety. See id.

Therefore, viewing the evidence in the light most favorable to the trial court's ruling and assuming that the trial court made implicit findings of fact supported by the record that support its ruling, see Carmouche, 10 S.W.3d at 327-28, we conclude the trial court's ruling is justified under a finding of probable cause and exigent circumstances. See Estrada, 154 S.W.3d at 607 (setting out that if the trial court's decision is correct under any applicable theory of law, the decision should be sustained). By upholding the trial court's denial of appellant's motion to suppress on this basis, see id., we need not reach appellant's contentions regarding consent. Appellant's first point of error is overruled.

II. Admission of Evidence at Suppression Hearing and Trial

In his second point of error, appellant contends that the trial court erred in not allowing the report of Detective Gonzalez to be entered into evidence at trial.[2] He argues that the report should have been admitted to highlight the alleged inconsistencies between Detective Douglas Rush's courtroom testimony and Detective Gonzalez's contemporaneous report.[3] Appellant claims that the harm in excluding the report was that the jury "did not get to see in writing" a different account of the events and was prevented from accurately determining the facts regarding the consent and search. Appellant asserts that the report was necessary for the jury to use in deciding the credibility of the witnesses and the weight to be given to their testimony.

However, at trial, Detectives Rush and Gonzalez were cross-examined about the report. They answered questions related to Detective Gonzalez's report, read directly from it, and compared it with Detective Rush's report. Detective Gonzalez testified as to what his report said and admitted inconsistencies. We conclude error, if any, in the trial court's exclusion of Detective Gonzalez's report did not affect appellant's substantial rights and was, therefore, harmless. See Tex. R. App. P. 44.2(b); see also Head v. State, 4 S.W.3d 258, 262 (Tex. Crim. App. 1999) (en banc) (providing that the standard of review for the admission and exclusion of evidence is abuse of discretion). Appellant's second point of error is overruled.

III. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 25th day of August, 2005.

[1]All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

[2]Appellant also contends that the trial court erred in refusing to admit the police report at the suppression hearing. However, appellant makes no argument regarding how the exclusion of the report at the hearing before the judge was inappropriate or caused him harm. Therefore, this argument has been waived. See Tex. R. App. P. 38.1(h).

[3]Detectives Rush and Gonzalez went to appellant's house after receiving information that a stolen computer was being used at appellant's address. According to the information provided by a detective in Plano, a program on the computer was providing information on the address and phone number of the person using the computer. Both detectives completed written reports regarding the incident, and both testified at trial.