Linda Fonville v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-173-CR

LINDA FONVILLE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 21,437-272

O P I N I O N

Fonville pleaded guilty to the offense of possession of a controlled substance, and the court sentenced her to ten years imprisonment, probated for ten years. See Tex. Health & Safety Code Ann. 481.112 (Vernon 1992). In her first two points of error, she appeals from the denial of a written pretrial motion to suppress evidence seized without a warrant. Her third point complains of the overruling of her hearsay objections during a pretrial hearing on the motion to suppress. We affirm.

This appeal turns on a credibility contest between Fonville and the investigating police officers. Two police officers and Fonville testified at the hearing on her motion to suppress. Because the testimony is conflicting, we will set out each side's rendition of the facts.

The State called Officer Goehring of the Bryan Police Department. He testified that he and Officer Casey went to Fonville's apartment at approximately 3:00 a.m. on June 12, 1992, in response to an anonymous phone call to the police concerning the welfare of Fonville's three children. This call "mentioned that the parents were using drugs, and that was part of the concern for the kids." Goehring stated that, because lights were on in the apartment, he knocked on Fonville's door with his hand. When Fonville answered the door, Goehring generally told her about the phone call and, "[a]fter she tried to close the door, [he] stated to her that it was necessary to see the children as quick as possible." Fonville replied, "just a minute," and closed and locked the door. After waiting twenty seconds, Goehring again knocked on the door. According to Goehring, when Fonville opened the door the second time, "she motioned for [the officers] to come in and opened the door all the way."

Following a brief delay, during which Fonville retreated into the master bedroom, locking the door behind her and ultimately reemerging from the room after thirty seconds to a minute, Goehring checked on the three children. After satisfying himself that they did not appear to be injured or neglected, he returned to the living room. Fonville's attorney at the hearing spent a good deal of time reviewing Goehring's path through the apartment, aided by a diagram of the apartment's floor plan. Unfortunately, the exhibit is not included in the record, and we are unable to determine from Goehring's testimony alone exactly what path he took in returning to the living room.

In the living room, Goehring again explained to Fonville and her husband why the officers had developed a concern for their children. Goehring thanked them for allowing him to see the children and prepared to leave. However, while standing in the living room, Goehring "looked down at [his] feet, and there was a plastic bag, like a sandwich bag with a green leafy substance in it." According to Goehring, the bag was not underneath anything, but was clearly visible because it was "just laying on the ground." He picked the bag up, opened it, and determined that it contained marihuana. Fonville and her husband were arrested after Goehring's patrol supervisor arrived on the scene. When Fonville was handcuffed, the officers discovered that she had a small plastic baggie containing cocaine in her hand.

Fonville's version of the facts differs significantly from Goehring's testimony. She agreed that she was awake when Goehring and Casey knocked on her door early in the morning. She stated that she partially opened the door and, upon learning of the purpose of the visit, told the officers to wait a minute. According to Fonville, when she attempted to close the door, Goehring put his foot in the way and told her that they needed to see the children immediately. Fonville told the officers, "the hell you do," and closed the door after Goehring withdrew his foot. When she responded to the officers' second knock by beginning to open the door, Fonville claimed that the officers entered the apartment without her permission.

Fonville admitted that she went into the bedroom, locking the door, for the purpose of "putting up drug paraphernalia." After she came out, she accompanied Casey into the master bedroom to check on her youngest child and then went into the other bedroom with Goehring to check on the other two children. On returning to the living room, Fonville claimed, Goehring begun to look behind the furniture aided by a flash light. She testified that Goehring discovered the plastic bag behind a recliner and that the bag only contained marihuana seeds and stems, not leaf as testified to by Goehring.

Officer Casey testified upon being called to the stand by Fonville. Casey stated that Fonville "open[ed] the door and allow[ed] us to come in" in response to Goehring's second knock on the door. Casey could not recall if Goehring used his flashlight inside the apartment or where Goehring found the bag of marihuana. The final testimony at the hearing related to the plastic bag found in the apartment. Officer Goehring produced the bag when he was recalled to the stand. He testified that the bag contained marihuana that had been seized from another location in the house as well as the marihuana that was originally in the bag; thus, the contents of the bag were different than when it was seized. The chain-of-custody label on the bag had a space for listing "Place [where] evidence was found." The handwritten answer stated, "Under coffee table/living room and under couch in living room." Goehring specifically contradicted the statement on the label when it was shown to him at the hearing. Finally, although the chain-of-custody label was purportedly signed by Goehring, he stated that none of the label was in his handwriting.

In her first point, Fonville argues that the search was illegal as a matter of federal constitutional law. She first seeks to establish that the search was undertaken without a warrant, was not supported by probable cause, and thus was per se constitutionally unreasonable. Next, she argues that the search cannot be supported by her consent because the State has failed to show that she knowingly and voluntarily consented to the officers' entry into her home. Fonville then argues that, even if consent is found, the officers exceeded the scope of her consent by searching in the living room after the children were viewed and accounted for in their bedrooms. Finally, she argues that, even if there was consent and the officers did not exceed the scope of that consent by searching in living room, the State cannot justify the seizure of the baggie because the "immediately apparent" requirement of the "plain view" doctrine was not satisfied.

The first issue that confronts us is whether the complaint is preserved for appellate review. To preserve a complaint that the court erred by denying her motion to suppress, Fonville must show that the court, in fact, denied the motion. See Tex. R. App. P. 52(a). The order attached to the motion is not signed and we cannot find in the statement of facts where the court ruled on the motion adversely to Fonville. However, Fonville asserts in her brief that the motion was denied, and the State concedes this fact in its brief. Thus, we will assume that the complaint is properly preserved. See Tex. R. App. P. 74(f).

Turning to the merits, then, the State concedes that the search was conducted without a warrant. However, not all warrantless searches are constitutionally defective. See Texas v. Brown, 460 U.S. 730, 735-36, 103 S. Ct. 1535, 1540, 75 L. Ed. 2d 502 (1983) (reciting exceptions to the warrant requirement). The state does not need probable cause or a warrant to search when consent to the search is properly obtained. Boyle v. State, 820 S.W.2d 122, 142 (Tex. Crim. App. 1991) (on rehearing), cert. denied, ___ U.S. ___, 112 S. Ct. 1297, 117 L. Ed. 2d 520 (1992). Thus, the legality of the officers' entry into the apartment turns on whether the court could find from the evidence that Fonville consented to the entry.

The question of consent is a question of fact, determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854 (1973); Johnson v. State, 803 S.W.2d 272, 286 (Tex. Crim. App. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2914, 115 L. Ed. 2d 1078 (1991), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991). The burden is upon the state to demonstrate by clear and convincing evidence that the consent was "freely and voluntarily" given. Johnson, 803 S.W.2d at 286-87. Consent obtained by coercion or by submission to a claim of lawful authority is ineffective. Id. at 287. Thus, " [c]onsent that is the product of official intimidation or harassment is not consent at all." Florida v. Bostick, ___ U.S. ___, 111 S. Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991).

Fonville does not claim that the trial court applied an erroneous rule of law in determining the merits of her motion to suppress; thus, her claim is a challenge to the sufficiency of the evidence to support the trial court's implied finding of consent to the entry. See Brown v. State, 856 S.W.2d 177, 183 (Tex. Crim. App. 1993) (Meyers, J., concurring). As the sole trier of fact on a motion to suppress evidence, the trial court could believe or disbelieve any or all of any witness' testimony. See Johnson, 803 S.W.2d at 287. When the record supports the court's finding of consent, we cannot freely disregard this finding. See id.

The court was required to chose between two competing versions of events. In the State's version, the police officers knocked on the door, merely requested that they be allowed to see the children, and, upon a second knock on the door, Fonville opened the door all the way, motioning them inside. In Fonville's version, the officers forced their way into the apartment while she was opening the door the second time. There is nothing in the record to demonstrate that the officers were "brandishing weapons," that they were "knocking incessantly" or "continued to bang on" the door after Fonville closed it. Only two officers were involved, and nothing in the record indicates they claimed or implied to Fonville that they had the authority to force their way into the apartment. Fonville recognizes in her brief that Goehring never requested, much less demanded, that she allow him into the apartment; he merely requested that he be allowed to see her children, leaving the method of seeing them to her. We cannot say that the court's implied finding of free and voluntary consent to the entry is not supported by the record. Thus, the court did not err in concluding that Fonville freely and voluntarily consented to the entry into her apartment by the officers. See id.

Fonville next argues that, even if the record will support a finding of consent, the officers exceeded the scope of the consent when they paused in the living room of the apartment to discuss their visit with her and her husband. Again, the trial court was required to chose between the competing versions of events. In Goehring's version, he paused for a minute to a minute and a half to explain why the officers developed a concern for Fonville's children and to thank the Fonvilles for their cooperation. Fonville's version was that Goehring began a general exploratory search of the living room equipped with a flashlight, which he used to peer behind the furniture. To deny the motion, the court must have credited Goehring's version and discredited Fonville's claims. The facts, as related by Goehring, support an implied finding that the officers did not exceed the scope of Fonville's consent to their entry into the apartment. See Florida v. Jimeno, ___ U.S. ___, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297 (1991).

Finally, Fonville argues that the State cannot justify Goehring's seizure of the marihuana under the "plain view" doctrine. See Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112 (1990); State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App. 1991). The "plain view" doctrine allows police to seize evidence observed by officers if (1) the officers have a right to be where they are when they discover the evidence in plain view, and (2) the fact that the item is evidence or contraband is "immediately apparent" to the police. Id. The "immediately apparent" element requires the officer to have probable cause to believe that the property is associated with criminal activity. Haley, 811 S.W.2d at 599.

Goehring testified that he found the bag of marihuana lying in the open on the floor when he stopped to talk with the Fonvilles in the living room, contrary to Fonville's flashlight-fishing-expedition version. Again, we must presume that the court believed Goehring over Fonville, thus impliedly finding that the marihuana was in plain view.

We have upheld the court's conclusions that Fonville consented to the officers' entry into her apartment and that the officers did not exceed the scope of that consent when they paused in the living room to talk with her and her husband. Thus, the officers' presence in Fonville's living room was proper and the first element of the plain view doctrine is satisfied. See id.

Although Goehring did not know the bag definitely contained marihuana when he first saw it, he testified that he believed the substance was contraband based on his training and experience in dealing with drugs. "[Probable cause] merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief . . . that certain items may be contraband . . . ; it does not demand any showing that such a belief be correct or more likely true than false." Brown, 460 U.S. at 742, 103 S. Ct. at 1543. Goehring's observation of the physical characteristics of the bag, its contents and condition, combined with his knowledge and personal experience, were sufficient to establish that he had probable cause to believe he was observing contraband. Thus, the record supports an implied finding that the second prong is also satisfied, and Goehring's actions in seizing and searching the plastic bag were justified by the "plain view" exception to the warrant clause.

Summarizing, based on the evidence the trial court, as the finder of fact, was entitled to conclude that: (1) Fonville consented to the officers' entry into the apartment; (2) once inside, the officers did not exceed the scope of this consent by pausing in the living room to explain the reason for their actions and to thank the Fonvilles for their cooperation; (3) while in the living room, Goehring was justified in seizing and searching the plastic bag under the plain view exception to the warrant requirement; (4) having discovered marihuana in her living room, the police were authorized to arrest her (see Tex. Health & Safety Code Ann. 481.121; Tex. Code. Crim. Proc. Ann. art. 14.01(b) (Vernon 1977)); (5) upon her arrest, any contraband that she had in her possession or in the immediate vicinity became susceptible to seizure as the result of a search incident to her lawful arrest (see Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)).

Because the police discovered the cocaine during a search incident to the lawful arrest of Fonville for possession of marihuana discovered in plain view during the officers consensual presence in her apartment, the trial court did not err by denying her motion to suppress. Point one is overruled.

In her second point, Fonville argues that the court erred in denying the motion to suppress as a matter of Texas constitutional law. However she fails to provide any substantive analysis or argument to distinguish between the level of protection provided by the state and federal constitutions. See Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1991). Because Fonville does not present any argument or authority that the propriety of the search should be resolved differently under the Texas Constitution, we need not determine whether the state constitutional protections are more expansive than that afforded by the federal constitution. See id. Point two is overruled.

In point three, Fonville complains that the trial court overruled her hearsay objections to Goehring's testimony concerning the anonymous phone call which prompted his visit to her apartment. See Tex. R. Crim. Evid. 801(d). Goehring testified that the Bryan Police Department dispatcher told him that a person had called and stated that there might be a problem with Fonville's children. Fonville's attorney recited the definition of hearsay as his argument in support of the objection. The State countered with the argument that the statement was not being offered for the truth of the matter asserted.

Fonville relies on McVickers v. State, No. 1453-92 (Tex. Crim. App. December 1, 1993), to establish that hearsay is inadmissible at a hearing on a motion to suppress. However, the testimony in this case does not involve hearsay. The statements were not offered to show that one of Fonville's children had fallen from the bed or that her children were neglected. They were offered instead to explain why Goehring went to the apartment. The truth of these statements have no bearing on the officers' entry into the apartment, their presence in the living room when they discovered the marihuana, their right to seize and search the plastic baggie, their right to arrest Fonville for possession of marihuana, or the discovery of more drugs in her hand when she was handcuffed. Point three is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 6, 1994

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