462 S.W.3d 617
Tex. App.2015Background
- Collins was convicted by a jury of five counts of aggravated robbery with a deadly weapon and sentenced to life on each count; he appealed raising suppression and jury-charge issues.
- Fort Worth police executed arrest warrants for Collins and co-defendant Lisa Rasberry at the home of Rasberry’s mother, Betty, and found Collins and Lisa in a locked bedroom; officers forced entry to effect arrests.
- Upon entry officers observed a handgun, magazine, and clothing near the mattress; photos of the scene were admitted at trial and the State later obtained consent from Betty to search and seize items.
- Forensic testing linked the handgun to the game-room robbery and DNA on the gun included a profile consistent with Collins.
- Collins moved to suppress the seized items as warrantless-search evidence and requested article 38.23 jury instructions (plain view and Betty’s actual/apparent authority); the trial court denied suppression and refused the requested 38.23 instructions.
- The court of appeals affirmed: it held the seizure was lawful under plain view or third-party consent (or lawful entry to execute arrest warrants), and any charge error in refusing the 38.23 plain-view instruction was harmless.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Collins) | Held |
|---|---|---|---|
| 1. Legality of bedroom search/seizure | Officers lawfully entered to execute arrest warrants and/or had Betty’s consent; items were in plain view | Entry and subsequent search/seizure were warrantless and unsupported by exigent circumstances or lawful consent | Seizure upheld: officers lawfully in bedroom (arrest-warrant entry or valid consent); plain-view seizure permitted |
| 2. Betty’s authority to consent | Betty, as homeowner, had authority to permit entry and search; if Collins/Lisa lived there arrest-warrant entry also authorized | Betty lacked actual/apparent authority because Collins/Lisa sometimes lived there and locked the door; Collins had expectation of privacy | Consent valid or irrelevant because arrest-warrant entry lawful; no reversible error on authority challenge |
| 3. Requested article 38.23 plain-view jury instruction | Admission of photographic and testimonial evidence showed no disputed material fact requiring an instruction | Photographs produced ambiguity about whether the gun was actually in plain view; requested instruction was warranted | Trial court erred in refusing instruction, but error was harmless beyond a reasonable doubt given overwhelming evidence; no reversal |
| 4. Requested 38.23 instruction on Betty’s apparent authority | Betty’s authority was not materially disputed in a way that would make her consent outcome-determinative | Appellant raised genuine dispute about Betty’s authority and thus was entitled to an instruction | No entitlement to instruction because, even if authority were lacking, arrest-warrant entry would still justify the seizure; no reversible error |
Key Cases Cited
- Payton v. New York, 445 U.S. 573 (arrest-warrant entry into a suspect’s residence when suspect is believed present)
- Matlock v. United States, 415 U.S. 164 (third-party consent to search)
- Oursbourn v. State, 259 S.W.3d 159 (requirements for article 38.23 jury instruction)
- Almanza v. State, 686 S.W.2d 157 (standard for reversible jury-charge error/harm analysis)