Kevin Watson v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-94-235-CR

KEVIN WATSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 22,718-361

O P I N I O N

Kevin Watson pleaded guilty to possession of a controlled substance with the intent to deliver, and the court assessed punishment of ten years' imprisonment, probated for eight years, and a fine of $500. See Tex. Health & Safety Code Ann. 481.102(3)(D), 481.112(a) (Vernon 1992 & Supp. 1995). Watson raises one point of error, asserting that the court erred in denying his motion to suppress. We will affirm.

Watson, a Texas A&M University student, shared an apartment in Bryan with two other Texas A&M students, Edward Ortiz and Van Anderson. On the last day of the Fall 1993 semester, Watson hosted a small party at the apartment. Evidently, they played the music too loudly and two Bryan police officers, Jonathan Mann and an Officer Stautzenberger, "crashed" the party. When the officers knocked on the apartment door, they heard someone say "hide the dope" and people running in the apartment. After Anderson opened the door, the officers smelled burned marihuana. Anderson admitted the police into the apartment, and Mann asked him where the marihuana was located. Anderson told them that Watson had it upstairs. Mann went upstairs to search for Watson and others in the apartment, eventually finding Watson hiding in a box of dirty clothes in a closet in Ortiz and Anderson's room. Mann told Watson that Anderson claimed that Watson had the marihuana. Watson replied that there was only one "joint" that had already been thrown away. After Mann asked Watson where the marihuana was, Watson led Mann downstairs and outside onto a patio, where he produced a stub of a marihuana cigarette from a paper bag. After Watson surrender this marihuana, Mann returned upstairs and searched a closed chest of drawers, finding more marihuana.

Leaving Stautzenberger to secure the apartment, Mann left to obtain a search warrant. He based his application for the warrant on the "running sounds" when he knocked on the door, the smell of burned marihuana, Anderson's statements, and Watson's retrieval of the marihuana. Mann intentionally did not include the marihuana he found in the chest of drawers because he believed that he had seized it illegally. Based on an affidavit containing these assertions, a Justice of the Peace issued a search warrant for Watson's apartment. While executing the warrant, the officers found undisclosed amounts of cocaine and marihuana in Watson's bedroom.

Watson moved to suppress all of the evidence seized during the search of his apartment on the theory that the search warrant was issued on the strength of illegally seized evidence. Thus, he argued, the cocaine and marihuana were the "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Crosby v. State, 750 S.W.2d 768, 780-81 (Tex. Crim. App. 1987), cert. denied, 486 U.S. 1055, 108 S. Ct. 2821, 100 L. Ed. 2d 922 (1988). The State responded by arguing that the officers had probable cause to believe that there was contraband in the apartment and exigent circumstances justified their warrantless entry, so that the information on which the warrant was based was lawfully obtained. See McNairy v. State, 835 S.W.2d 101, 106-07 (Tex. Crim. App. 1991). After the court denied Watson's motion, the State abandoned the charges relating to the marihuana, and Watson pleaded guilty to the charges relating to the cocaine. Watson now argues that Mann's actions leading directly to the seizure of the marihuana cigarette constituted an illegal search.

When reviewing a ruling on a motion to suppress, we do not engage in a factual determination ourselves; rather, we determine if the court's implied findings are supported by the record. See Banda v. State, 890 S.W.2d 42, 51-52 (Tex. Crim. App. 1994); Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2914, 115 L. Ed. 2d 1078 (1991). If those findings are supported by the record, we consider only if the court abused its discretion applying the law. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

The police seized the challenged evidence pursuant to a search warrant. Thus, Watson had the burden to demonstrate to the trial court that the warrant was invalid. See Rumsey v. State, 675 S.W.2d 517, 520-21 (Tex. Crim. App. 1984). To prevail on appeal, he must show that the court abused its discretion in impliedly finding that the warrant was valid. See Banda, 890 S.W.2d at 51-52. "[T]he inclusion of tainted allegations in an affidavit does not necessarily render a resulting search warrant invalid. Rather, the relevant inquiry on a motion to suppress evidence seized pursuant to such a warrant is whether, putting aside all tainted allegations, the independently acquired and lawful information stated in the affidavit nevertheless clearly established probable cause." Castillo v. State, 818 S.W.2d 803, 805 (Tex. Crim. App. 1991); see also Brown v. State, 605 S.W.2d 572, 577 (Tex. Crim. App. [Panel Op.] 1980).

The evidence supports a conclusion by the court that Mann's observations prior to entering the apartment were not the product of an illegal search. See Cornealius v. State, No. 238-94, slip op. at 3-4, 1995 WL 312569, at *2 (Tex. Crim. App. May 24, 1995). Additionally, Watson did not challenge the use of Anderson's statements in the affidavit in support of Mann's application for a search warrant. Thus, the court was required to determine if probable cause was "clearly" shown by an affidavit asserting that (1) the officers heard people running within the apartment after they knocked on the front door, (2) the officers smelled burning marihuana when the door was opened, and (3) one of the residents of the apartment told the police that there was marihuana at the apartment and that it belonged to Watson, who was upstairs. We conclude that the court could determine that this information "clearly" established probable cause to believe that contraband could be found in the apartment. See Castillo, 818 S.W.2d at 805; Johnson, 803 S.W.2d at 288-89; Cassias v. State, 719 S.W.2d 585, 587-88 (Tex. Crim. App. 1986). Thus, the court could conclude that the warrant was valid, even if the police illegally seized the marihuana cigarette. See id. Therefore, the court did not abuse its discretion by refusing to suppress the evidence seized during the execution of the search warrant.

Alternatively, under the "fruit of the poisonous tree" doctrine, evidence that is derived from an illegal act cannot be used at trial. See Wong Sun, 371 U.S. at 487-88, 83 S. Ct. 417; Reed v. State, 809 S.W.2d 940, 944 (Tex. App. Dallas 1991, no pet.). The "question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417; see also Crosby, 750 S.W.2d at 780. However, if there is no "poisonous tree," i.e., no primary illegality tainting the evidence, there can be no "poisonous fruit." See Goodwin v. State, 799 S.W.2d 719, 729 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2913, 115 L. Ed. 2d 1076 (1991). Thus, the initial question is whether Mann legally obtained the marijuana cigarette.

Based on the smell of marihuana, Anderson's statements, and the presence of others in the apartment, the court was justified in finding that Mann was lawfully in Anderson's bedroom. See McNairy, 835 S.W.2d at 106-07. When he found Watson, Mann "advised [Watson] that his roommate told [him] that [Watson] had the marijuana on him, and [Watson's] response was that he only had one joint and that it was thrown outside." Mann told Watson what Anderson had said in the form of a statement, not a question. Only after Watson told him that the marihuana had been thrown out did Mann ask Watson to show him the "joint." Mann indicated that he did not ask Watson a question initially and that "[w]hether [Watson] was going to make a response or not was, you know, not neither here nor there," i.e., irrelevant to Mann's purpose in making the statement to Watson.

Viewing this evidence in the light most favorable to the court's ruling, Mann's testimony is sufficient to allow the court to find that Watson voluntarily surrendered the marihuana to Mann. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854 (1973); Johnson, 803 S.W.2d at 286-87. Mann did not ask Watson a question, but stated the reason for his presence on the second floor of Watson's apartment. The court could reasonably conclude that this statement by Mann was not likely to elicit an incriminating response from Watson and, so, was not interrogation. See Rhode Island v. Innis, 466 U.S. 291, 300-02, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980); Davis v. State, 780 S.W.2d 945, 947 (Tex. App. Fort Worth 1989, pet. ref'd). Because the State does not need probable cause or a warrant to search when consent to the search is properly obtained, the court could rule that Mann lawfully seized the marihuana cigarette after Watson voluntarily surrendered it to him. See 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).

Because the evidence before the court supports a finding that there was no "poisonous tree" and, thus, no "poisonous fruit," the court's ruling denying Watson's motion to suppress is not an abuse of discretion on this alternative ground. See Romero, 800 S.W.2d at 543; Goodwin, 799 S.W.2d at 729.

Watson's sole point is overruled. The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 26, 1995

Do not publish