DELROY BRYAN,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
 
NO. 05-88-00748-CR
 
DELROY BRYAN,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES McCLUNG, STEWART AND BAKER
OPINION BY JUSTICE McCLUNG
JULY 24, 1989
        Delroy Bryan appeals from his conviction for cocaine possession. Punishment was assessed at eighteen years confinement. Bryan complains because his motion to suppress was denied; a juror was improperly released for cause; and inadmissible evidence was introduced at the punishment phase. We affirm the trial court's judgment.
        Bryan first argues that the trial court erred in refusing to suppress both the cocaine and the handgun seized from the apartment where he was arrested. The evidence at the suppression hearing was that at 2:45 a.m., on September 12, 1987, Dallas police officers were dispatched on an aggravated robbery call. Officers Richardson and Monk interviewed the robbery complainant and the officers went to an apartment where complainant had seen the robber enter. The officers approached the apartment door from different angles. Complainant remained behind Officer Richardson. Richardson knocked on the door and announced, "Police." Bryan partially opened the door and complainant, upon seeing him, said, "That's him." Bryan held a Glad sandwich bag box in his right hand and after seeing the officers, he threw the box backwards and it landed directly behind him. Officer Richardson observed the box as it turned upside down and saw "a packet of drugs" fall from it. Also falling from the box were a pair of scissors and numerous small zip lock bags, which Richardson knew from experience were often used to package drugs. The box landed next to a laundry bag in the front room and within close proximity to Bryan.
        Just before Bryan threw the box, Richardson saw Bryan moving his hand as if to signal someone behind him. Bryan was then asked to step outside; he was placed under arrest and searched. Bryan refused to answer when asked if anyone else was in the apartment, whereupon one of the officers went inside. The apartment was entirely empty except for the box which Bryan had thrown, the items which had spilled from it, and the laundry bag which contained clothing. On top of the laundry bag lay a .357 Magnum handgun with its barrel pointed toward the front door. The court denied the motion to suppress and the case proceeded to trial.
        During the trial, Officer Richardson testified that she knew from Bryan's accent that he was Jamaican. She also stated that it was "typical for there to be more than one in a house of that nature" and that she was concerned that other Jamaicans would "come out of the apartment at them."
        We first consider whether Bryan has standing to protest the search. The State did not raise the issue of standing at the motion to suppress hearing, but does controvert this issue on appeal. Wilson v. State, 692 S.W.2d 661, 669 (Tex. Crim. App. 1984). The trial court found that the warrantless search was justified as either a search incident to a lawful arrest or on the basis of exigent circumstances. During the charging conference, Bryan requested a jury instruction on the law of search and seizure and on the requirements of a warrant. The trial court denied this instruction on the ground that there was no showing Bryan had a sufficient interest in the apartment to claim a reasonable expectation of privacy. See Wilson, 692 S.W.2d at 671.
        To seek the suppression of evidence, Bryan must establish that he had a personal privacy interest in the premises searched or in the property seized. See Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988); see also Rakas v. Illinois, 439 U.S. 128, 134 (1978). Bryan's reasonable expectation of privacy goes to the merits of his fourth amendment claim and he has the burden of proving that he had a legitimate expectation of privacy in the premises searched. Calloway, 743 S.W.2d at 650. A fourth amendment violation can be urged only "by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." Alderman v. United States, 394 U.S. 165, 171-72 (1969).
        Bryan offered no evidence at the motion to suppress hearing to establish any personal fourth amendment privacy interest in the apartment. Calloway, 743 S.W.2d at 650. Bryan was found in an empty apartment at 3:00 a.m.; the record does not otherwise reflect whose apartment was searched or whether Bryan was legitimately or wrongfully present. See Clemons v. State, 501 S.W.2d 92, 93 (Tex. Crim. App. 1973); Holcomb v. State, 484 S.W.2d 929, 933 (Tex. Crim. App. 1972). Thus, Bryan may not challenge the admission of evidence obtained in the search. See Calloway, 743 S.W.2d at 650-51; Holcomb, 484 S.W.2d at 933; Garces v. State, 727 S.W.2d 48, 49 (Tex. App.--Houston [14th Dist.] 1987, no pet.). See Wilson, 692 S.W.2d at 671.
        Even if Bryan had standing to protest the search, we hold his contentions are without merit. Officers who are legally upon the premises may seize criminal objects which they discover in plain view. Invoking the plain view exception to the warrant requirement has three conditions: (1) the initial intrusion must be proper; (2) the discovery of the evidence must be inadvertent; and (3) it must be immediately apparent to the police that they have evidence of a crime, contraband, or items which are otherwise subject to seizure. Coolidge v. New Hampshire, 403 U.S. 443, 465-66, (1971).
        Bryan does not dispute the police officers' right to make their initial inquiry. Neither does he dispute the fact that the cocaine was discovered inadvertently. Rather, Bryan argues that it was not "immediately apparent" to Officer Richardson that the box contained drugs. Bryan references the following confusing exchange between Officer Richardson and defense counsel as the basis for his assertion:
        Q.        (By defense counsel) Was it immediately apparent to you that was only a box?
        
            A.         That something had fallen from the box that he
        had tossed behind him.
 
        Q.        Standing out in the doorway, was it immediately apparent to what that something was?
 
        A.         No, sir.
        Officer Richardson was not required to know what was in the box prior to the time it was thrown, neither was she required to know the specific type of drug which she saw fall from the box. See Texas v. Brown, 460 U.S. 730, 743 (1983). "[I]f, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately." Texas, 460 U.S. at 739.
        In commenting on the "immediately apparent" requirement, the Supreme Court has characterized the phrase as "an unhappy choice of words." This is because the phrase can mistakenly imply the necessity of an unduly high degree of certainty as to the incriminatory character of evidence. Texas, 460 U.S. at 743. There is no requirement that an officer know certain items are evidence of a crime. Rather, we focus on facts available to the officer which would warrant a man of reasonable caution to believe certain items may be contraband, stolen property, or useful as evidence of a crime. Texas, 460 U.S. at 742. The process deals with probabilities, not with hard certainties. See United States v. Cortez, 449 U.S. 411, 418 (1981).
        We view the facts with this flexible, common-sense standard in mind. Without question, the officers were initially entitled to question Bryan. The police officers were responding to an aggravated robbery call in which the complainant had seen the fleeing robber enter a certain apartment. When Bryan opened the door to that apartment, the complainant identified Bryan as the man who had just robbed him. Contemporaneous with that, Officer Richardson saw Bryan toss a box he was holding and observed a "packet of drugs" and other drug paraphernalia fall out of the box. We hold this was sufficient for the officer to take Bryan into custody. See Satterwhite v. State, 726 S.W.2d 81, 87 (Tex. 1986). We further hold that Officer Richardson's observations gave her probable cause to believe that the contents of the box contained an illicit substance.         
        With regard to the seizure of the handgun, officers had observed Bryan gesturing as if to signal someone else inside the apartment and he refused to answer when the officer asked if anyone else was present in the apartment. If the totality of the circumstances presents a reasonable basis for believing a situation is dangerous, an officer may take every reasonable precaution to safeguard his life including a protective view of the premises. See Satterwhite, 726 S.W.2d at 87; Lewis v. State, 502 S.W.2d 699, 703 (Tex. Crim. App. 1973); Grundstrom v. State, 733 S.W.2d 920, 923 (Tex. App.--Dallas 1987, pet. dism'd). The gun was described as "sitting on top" of a sack of clothes and was situated next to the spilled box of drugs and drug paraphernalia.
        We conclude that, under the facts of this case, the officers were entitled to determine if accomplices were present in the apartment, and in the interest of their own safety, seizure of the gun was a reasonable precaution. Additionally, the defendant was implicated in an aggravated robbery and was observed attempting to dispose of drugs and drug paraphernalia. These circumstances would warrant an officer of reasonable caution to believe the gun was associated with criminal activity.
        Even if the seizure of the gun and its subsequent admission into evidence was improper, we conclude such error was harmless. There was overwhelming evidence that Bryan possessed the cocaine. A police officer saw Bryan holding and attempting to dispose of the box containing drugs. We hold, beyond a reasonable doubt, that error, if any, made no contribution to the conviction. TEX. R. APP. P. 81 (b)(2), Clemons v. State, 501 S.W.2d at 93-94; Holcomb v. State, 484 S.W.2d at 934. We overrule point of error one.
        Bryan also complains that the trial court should not have sustained the prosecutor's challenge to venireperson Ferguson. The party seeking exclusion of a prospective juror has the burden of demonstrating that exclusion is proper. The credible proof must preponderate in favor of exclusion. Hernandez v. State, 757 S.W.2d 744, 753 (Tex. Crim. App. 1988).
        A prospective juror may be challenged for cause if he has a bias or prejudice in favor of or against the defendant. The State may challenge for cause if the prospective juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely. TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9), (b)(3) (Vernon 1989).
        The decision as to whether a venireman is disqualified necessarily involves both findings of fact and conclusions of law. To the extent that the trial court's determination is a finding of fact, it is entitled to the same deference on appeal as any other finding of fact. See Hernandez, 757 S.W.2d at 753. When bias or prejudice is not established as a matter of law, the trial court has discretion to determine if bias or prejudice exists to such a degree that the prospective juror should be disqualified. Anderson v. State, 633 S.W.2d 851, 953-54 (Tex. Crim. App. 1982). To the extent that factual findings are involved, the trial court's action should be reviewed for an abuse of discretion. Appellate review should also determine whether the evidence was sufficient to support the trial court's implied finding of fact. See Hernandez, 757 S.W.2d at 753.
        When a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states that he can set his bias aside. Bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant. Anderson, 633 S.W.2d at 854.
        During voir dire, Ferguson revealed that her son had been convicted of delivering marijuana and that he was currently on probation. Ferguson testified that she would base her verdict on the facts and the evidence. However, she also stated that an undercover police officer was instrumental in her son's conviction and that what had happened to her son was "not fair." When questioned about similarities between her son's case and the instant case Ferguson replied, "I think I would believe the boy [meaning Bryan] . . . I believe I would believe the boy because I believe my son." She also stated that there was no way she could put her son's conviction out of her mind and that this would affect her decision in the instant case.
        Both the State and the defendant are entitled to fair and impartial jurors. When a juror expresses an inability to be fair and impartial, that juror is expressing a bias for the defendant and is properly excused. Ransom v. State, 630 S.W.2d 904, 908 (Tex. Crim. App. 1982); TEX. CRIM. PROC. CODE ANN. art. 35.16(a)(9) (Vernon Supp. 1989).
        In passing upon the answers of an equivocating venireman, the trial court has the opportunity to observe the demeanor, tone of voice, as well as the precise meaning intended by the prospective juror. See Phillips v. State, 661 S.W.2d 226, 229 (Tex. Crim. App. 1983); Ransom v. State, 630 S.W.2d at 908; Garza v. State, 622 S.W.2d 85, 92 (Tex. Crim. App. 1981); Hughes v. State, 563 S.W.2d 581, 585 (Tex. Crim. App. 1978); McCary v. State, 477 S.W.2d 624, 628 (Tex. Crim. App. 1972). We conclude there was no abuse of discretion in the trial court's decision that Ferguson would not be an impartial juror and in excusing her for cause. We overrule point of error two.
         Bryan lastly argues that the trial court erred in allowing the State to question him concerning an unadjudicated offense. Punishment in this case was assessed by the trial court. During the punishment phase of the trial, Bryan testified to establish his eligibility for probation and stated that he had never been convicted of a felony. His attorney then questioned him about the various terms and conditions the court could impose if probation was granted and Bryan indicated that "he could abide by the conditions of being on probation." He acknowledged that one of those conditions could relate to future involvement with drugs. During cross-examination, the State was allowed, over objection, to show that within one month after Bryan's release on bond for cocaine possession, he was rearrested for a similar offense committed under similar circumstances.
        Either party may introduce evidence at the punishment phase of the trial concerning the reputation, character, and criminal record of the defendant. TEX. CRIM. PROC. CODE ANN. art. 37.07 § 3(a) (Vernon Supp. 1989). Prior criminal record is defined as a "final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged." TEX. CRIM. PROC. CODE ANN. art. 37.07 § 3(a) (Vernon Supp. 1989).
        Generally specific acts of misconduct are inadmissible at the punishment phase of trial to show the character of the accused or as relevant to suitability of the accused for probation. See Murphy v. State, S.W.2d , No. 102-86, slip op. at 26 (Tex. Crim. App. June 21, 1989). However, parties may open the door to admission of specific conduct at the punishment phase. Where, in the first instance, an accused presents evidence that he has never been in trouble before or that he can comply with the law if placed on probation, he has invited rebuttal evidence which may include proof of specific misconduct. See Drew v. State, S.W.2d , No. 1168-86, slip op. at 4 (Tex. Crim. App. June 21, 1989); Murphy v. State, S.W.2d , No. 102-86, slip op. at 28 (Tex. Crim. App. June 21, 1989); King v. State, S.W.2d , No. 863-85, slip op. at 3 (Tex. Crim. App. June 21, 1989).
        Thus, the reference to the extraneous offense was admissible to prevent Bryan from creating a false impression. "It would not be fair to allow a defendant to mislead the jury about the merits of his application for probation." Murphy v. State, 700 S.W.2d 747, 750 (Tex. App.--Dallas 1987), aff'd, S.W.2d , No. 102-86, slip op. at 29 (Tex. Crim. App. June 21, 1989).
        Bryan relies upon Kingsley v. State, 744 S.W.2d 191, 196 (Tex. App.--Dallas 1987, pet. granted) and Murphy v. State, 700 S.W.2d 747, 750 (Tex. App.--Dallas 1985), aff'd, S.W.2d , No. 102-86, slip op. at 29 (Tex. Crim. App. June 21, 1989), for the proposition that the extraneous offense was inadmissible. Those cases, however, are distinguishable. In neither of those cases did the State cross-examine the defendants themselves as to the unadjudicated offenses and, most significantly, neither of those defendants attempted to create a false impression.
        Included among the probation conditions that the trial court could have imposed were that Bryan refrain from violating any laws and that he avoid injurious habits and persons having a harmful character. TEX. CODE CRIM. PROC. ANN. art. 42.12 B § 6(a)(1),(2),(3) (Vernon Supp. 1989); See Holmes v. State, 502 S.W.2d 728, 729 (Tex. Crim. App. 1973). Here, the clear import of Bryan's testimony was an attempt to convince the court that he was a suitable candidate for probation and that he could abide by any terms and conditions imposed by the court. We conclude that his assertions were sufficient to open the door to the State's evidence of specific misconduct. See King v. State, S.W.2d , No. 863-85, slip op. at 3 (Tex. Crim. App. 1989). We hold that under the facts of this case, the similar unadjudicated offense was admissible. We overrule point of error three.                 We affirm the trial court's judgment.
 
 
PAT McCLUNG
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00748.F
 
 
File Date[01-02-89]
File Name[880748F]