JOHN ERICK ALONSO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 31, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00240-CR
No. 05-07-00531-CR
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JOHN ERICK ALONSO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-50930-SP & F05-50931-SP
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OPINION
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice Whittington
        John Erick Alonso appeals his convictions for possession of five pounds or less but more than four ounces of marijuana and possession with intent to deliver four grams or more but less than 200 grams of cocaine. After the jury found appellant guilty of both offenses, the trial judge assessed punishment, enhanced by two prior convictions, at twenty years' confinement and thirty-five years' confinement respectively. In a single issue, appellant claims the trial judge erred in denying his motions to suppress. We affirm the trial court's judgments.
        On March 21, 2005, in response to a complaint from neighborhood homeowners about drug activity, Dallas police officers Chris Wagner and Gerald Smalley went to 809 Elsbeth and arrested Tony Gray. At the time of his arrest, Gray had marijuana, cocaine, and two shotguns in his possession. One week later, after a second complaint, the officers and Officer Mark Villareal returned to the apartment to do a “knock-and-talk.” According to Officer Wagner, a knock-and-talk is what the officers use to investigate the activities at a particular location and is frequently used when neighbors complain of drug activity. When Officers Wagner and Villareal knocked on the back door, appellant answered, cursed, and slammed the door. Officer Wagner could hear appellant running through the apartment. Sergeant Smalley was standing by the front door when appellant threw open the front door and started to run out. Sergeant Smalley yelled to the other officers that appellant was exiting the front door and that he needed assistance. He also yelled at appellant to get down. Officer Wagner testified he opened the back door and ran through the apartment to the front door to assist the sergeant because they had previously found weapons at that location. While running through the apartment, Officer Wagner looked to ensure there were no other people in the apartment. He saw marijuana on a table. After placing handcuffs on appellant, the officers entered the apartment and discovered cocaine and marijuana. Appellant was then arrested for possession of the drugs. Before trial, appellant filed a motion to suppress the drug evidence which the trial judge ultimately overruled during trial. Appellant was subsequently convicted of possession of five pounds or less but more than four ounces of marijuana and possession with intent to deliver four grams or more but less than 200 grams of cocaine. These appeals followed.
        In his sole issue on appeal, appellant contends the trial judge erred in denying his motions to suppress the drug evidence because the police lacked probable cause or exigent circumstances to enter appellant's apartment. Initially, we note appellant's motions to suppress sought to suppress “any and all tangible evidence seized by law enforcement officers or others in connection with the detention and arrest of [appellant] in this case . . .” He generally argued the “actions of the Dallas Police Department” violated appellant's rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United State Constitution, article I, section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. However, these general statements are not sufficiently specific to preserve the arguments he now makes on appeal. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (concluding error not preserved when similar arguments, global in nature and containing little more than citations to constitutional and statutory provisions, were advanced), cert. denied, 127 S. Ct. 145 (2006). In light of the holding in Swain, we question whether appellant preserved his right to appeal this issue.
        Nevertheless, we reject appellant's complaint. After the State finished its case-in-chief, the trial judge held a hearing on the motions to suppress. Appellant did not present evidence but advanced the argument that the police officers entered the apartment without appellant's permission. In response, the State argued appellant failed to establish he had standing to complain and that even assuming he did, the officers entered for officer safety and the drugs were in plain view. Stating he was not sure appellant had standing, the trial judge nevertheless assumed he did and denied the motions to suppress. We similarly assume appellant had standing and address the merits of his complaints.
        When reviewing a trial judge's ruling on a motion to suppress, we apply a mixed standard of review-both deferential and de novo. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give almost total deference to a trial judge's determination of historical facts that the record supports, especially when the trial judge's fact findings are based on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We also afford the same level of deference to a trial judge's ruling on “application of law to fact questions,” or “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673 (citing Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006)). We review de novo “mixed questions of law and fact” that do not depend upon credibility and demeanor. Amador, 221 S.W.3d at 673 (citing Montanez, 195 S.W.3d at 107).
        The Fourth Amendment protections do not prohibit warrantless entries and searches when police reasonably believe that a person within is in need of immediate aid. Janicek v. State, 634 S.W.2d 687, 691 (Tex. Crim. App. 1982). Under the emergency doctrine, the need to protect or preserve life or avoid serious injury is justification for an officer's warrantless entry and search of a private residence. Laney v. State, 117 S.W.3d 854, 860 (Tex. Crim. App. 2003) (citing Mincey v. Ariz., 437 U.S. 385, 392 (1978)). We use an objective standard of reasonableness in determining whether a warrantless search is justified under the emergency doctrine. Laney, 117 S.W.3d at 860 (citing Brimage v. State, 918 S.W.2d 466, 501 (Tex. Crim. App. 1996) (op. on reh'g)). This standard looks at the police officer's conduct and “takes into account the facts and circumstances known to the police at the time” of the warrantless entry. Laney, 117 S.W.3d at 862. If the emergency doctrine applies, the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Laney, 117 S.W.3d at 862. The scope of the search must be strictly circumscribed by the emergency that justified its initiation. Laney, 117 S.W.3d at 862; Gonzalez v. State, 148 S.W.3d 702, 707 (Tex. App.-Austin 2004, pet. ref'd).
        The evidence at trial established the police received a complaint from neighborhood homeowners about drug activity at an apartment. In response to the call, officers Wagner and Smalley visited the complained-of apartment on March 21, 2005. They spoke with Gray who told the officers he lived in the apartment. Gray gave officers permission to search. The officers discovered marijuana, two shotguns, and a small amount of cocaine.         The following week, after police received a second complaint from homeowners about drug activity at the same apartment, Officers Wagner, Villareal, and Smalley revisited the apartment. Officers Wagner and Villareal approached the back door and knocked. When appellant opened the back door and saw the officers in full uniform, he swore, slammed the door shut, and ran through the apartment. Appellant threw open the front door and started to run out. He was met by Sergeant Smalley waiting outside the front door. Officer Wagner testified it “happened very quickly;” he heard his sergeant yelling that appellant was coming out the front door. He further testified, “Knowing that we had found weapons [at the same location] before and I, needing to help out my sergeant, I opened the back door and went right through the apartment and helped wrestle him down to the ground . . . .” As he was running through the apartment, Officer Wagner checked to make sure no one else was in the apartment. As he looked around, he saw marijuana on a table. He ran out the front door and assisted Sergeant Smalley.
        Officer Villareal testified he and Officer Wagner went to the back door of the apartment and knocked. He heard the door bolt unlock and appellant opened the door. Appellant saw there were uniformed police officers at the door and said, “Oh, f-.” He then slammed the door and ran to the front of the apartment. Officers Wagner and Villareal did not follow or pursue appellant. Rather, they stayed at the back door until they heard their sergeant “scream for cover out front.” Officer Villareal testified he believed Officer Wagner then kicked the door in. As he ran through the apartment, Officer Villareal observed a “shoebox which contained several baggies” of what he believed “to be marijuana, and a package of white substance which later was found to be powder cocaine.” Officer Villareal testified that the reason they ran through the back door was because their sergeant was calling for cover and it was an “officer safety issue.”
        Thus, the evidence showed Officers Wagner and Villareal ran through the apartment to assist their sergeant after he screamed for cover. While running through the apartment, both officers looked around to ensure no one else was there and in doing so, observed marijuana and cocaine in plain view. Looking at the police officers' conduct and taking into account the facts and circumstances known to the officers at the time of the warrantless entry, we cannot conclude the trial judge abused his discretion in denying appellant's motions to suppress. See Laney, 117 S.W.3d at 862. We overrule appellant's sole issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070240F.U05