*1 question “why compa- with would a
ny they offer to settle claim obligated?”
are not un- questioning This
derlies the why reasons settlement offers for, prove
are not liability admissible or of,
invalidity the claim or its amount. (Vernon 2002).
Tex.R. Evid. Offers to encourage
settle are excluded to settle-
ment and because “such evidence does
represent party’s position, actual but give
an amount willing he is or take to expense annoyance litiga-
avoid the
tion.” State Farm Mut. Automobile Ins.
Co., at 261. Relators must be prejudice
free from the of a that evidence inevitably
settlement plants jurors’ Supreme
minds. The Texas specifi- Court
cally stated that severance be neces- Akin,
sary some bad faith cases. “A at 630. trial court will undoubt-
edly confront instances in which evidence only
admissible on the bad faith claim prejudice
would insurer to such
extent that a fair trial on the contract Id. I be- unlikely.”
claim would become
lieve that to case here. reasons,
For these I respectfully dissent.
Tracy GALLUPS, Appellant, Glenn Texas, Appellee. STATE
No. 05-01-00114-CR. Appeals Texas,
Court of
Dallas.
May
Before Chief Justice THOMAS and MILLER.1 Justices BRIDGES *3 OPINION Opinion MILLER. by Justice was Appellant Tracy Gallups Glenn of- charged by felony indictment with the Gallups fense of intoxicated. driving while suppress, pretrial filed a motion the trial At the the judge heard. end of motion, evidentiary on the the trial hearing court motion. Subsequently, denied the Gallups right jury, to trial by waived his offense, pleaded guilty pleaded to the true to two The paragraphs. enhancement trial court accepted pleas, found him guilty, para- found the enhancement true, twenty- graphs him to and sentenced issue, years prison. single five Gallups the trial court asserts erred We overruling suppress. his motion to affirm. at testimony by
The elicited suppress hearing the motion to revealed that on December one-vehicle in McKinney, accident occurred Texas. arrived, When the vehicle’s driver gone. gave A witness the accident description driver A to an officer. gave check of the vehicle officer name, and an Tracy Gallups, address. The near, address was so another officer went residence, entering there. After Gallups. officer arrested Subar, Lorin M. Law Office of Lorin M. appeal, Gallups On maintains the offi- Subar, Dallas, Roger Dickey, V. McKin- and, cer’s into his home was unlawful ney, appellant. therefore, as any “[t]he arrest well as evi- Roach, Attorney, District dence John Criminal obtained warrantless seizure Gonzales, McKinney, suppressed.”2 Manuel for the are tainted and should be State. Miller, Judge, specify Honorable 2. 1. The Chuck Texas does not in his brief Retired, referring. he is evidence to which Presum- Appeals, sitting by Court Criminal ap- ably, referring he is that he assignment. peared when arrested intoxicated arresting certainly gave home. The that, ruling trial court’s argues under the favorable Specifically, Gallups evidence, requirement home means which we meet the officer entered his appellate give courts almost total def- permission The State without or consent.3 evidence, that, erence to trial court’s determination of the offi- counters under Guzman, therefore, and, historical facts. had consent to enter cer done, at That de then review novo correctly trial Gal- court overruled application of the law the trial court’s lups’s suppress. motion search and seizure to those facts. See id. applicable appel standard of brief, Gallups asking In his seems to be late of a trial court’s decision review credibility us to make determinations in suppress been overrule a motion to has *4 our of the trial court’s decision to review of clearly set out the court criminal suppress. his to The overrule motion rec- State, 10 appeals. See Carmouche ord reflects that three witnesses testified 323, 327 (Tex.Crim.App.2000); S.W.3d hearing at the on the issue of consent. 88-89 Guzman v. S.W.2d McKinney The State’s witness was Guzman, (Tex.Crim.App.1997). In Gallups Bill Perkins. called himself evidentiary distinguished court between and his mother the stand. two rulings, which are reviewed under testimony gave notably sides different on standard, suppres of and abuse discretion the issue of consent. This evidence must that of law rulings application sion involve fight in the most will reviewed Guzman, factual See situations. ruling. to the trial court’s favorable See category latter of trial S.W.2d at 89. The id. will not redetermine the credibili- We reviewing for the court rulings court calls ty of the witnesses. See id. light in to view the evidence most following if the The record reveals the details: ruling favorable to trial court’s of told trial that on Decem- findings court has not made Perkins court trial itself Carmouche, responded to a radio call See S.W.3d at 327- ber he fact. words, court from fellow officer Robbie Butler. Butler reviewing 28. other implicit investigating trial find was a recent one-vehicle acci- assumes the court made p.m. The supported by dent that occurred around 2:30 ings fact the record gone driver was when Butler ar- deny buttress the motion vehicle’s the decision shortly accident occurred. id. rived after the suppress. See We view evidence in a A thusly to the axiom that witness described the vehicle’s driver deference Butler, court is the indicated the driver was intoxicat- suppression hearing, Mai ed, judge trier fact of the credibili and stated that the driver had aban- sole weight to be doned the wrecked truck. Butler found an ty of witnesses Ross, card in the truck from given testimony. their See State v. insurance disabled Gallups’s he learned name and ad- (Tex.Crim.App.2000). S.W.3d three most The address was about fight the evidence in the dress.4 Considering However, rely hearing. pursuit.” testimony suppression the State does at the such with Court exception requirement. The State does not take issue on warrant contentions, reaching the merits of generally LaHaye S.W.3d and, spirit will Young ref'd). pet. (Tex.App.-Texarkana Young v. merits. See reach those (Tex.Crim.App.2000). 666-67 the card matched the ad- 4. The address on registration. the truck’s dress on Gallups argues also that the officer's "hot justified was not under the doctrine of blocks away from the your scene the accident being extended out and and was the direction the driver had coming you. back toward radio, fled. Over the Butler asked for Perkins: Yes. another go officer to to the address on the After a short Gallups conversation with
insurance card investigate to see who mother, present, who was also missing driver was. Gallups driving while intoxicated.
Perkins answered Butler’s call and went there, to the address. Once Perkins saw cross-examination, On Perkins reiterat- Gallups standing on the other side of a ed that was invited in Gallups’s hand full-length glass storm door. The storm gesture. His testimony on cross was con- door inwas the main entranceway in front direct, sistent with his except door, of the solid front which was wide report that his indicated that he had open. Perkins could Gallups see almost knocked on the door and Perkins did not from head to toe. Gallups matched the remember doing that. description gleaned from the accident wit- rested, After the called his
ness. *5 mother to the stand. She verified there testimony glass about was a happened what storm door on the front of her next conflicts and forms the basis for house and that the solid wooden front door dispute over open. the issue of was consent. She told the court When that Perkins prosecutor opened asked what happened after the storm door and entered the Gallups, Perkins saw house without following knocking. tran- Her son was out spired: of sight of the front door and therefore not position in a to motion the officer in. Ac- door,
Perkins: As I approached the I cording to Ms. Gallups, gave no one Per- asked him if step he’d outside the any kins permission, kind of verbal or door. And instead he motioned for physical, to enter the house. then forward, me to come pushed and I took the stand and testified consistently open. door with testimony. his mother’s Prosecutor: How did he do it? you Can Considering the evidence in light describe for the court how he did it? most favorable to the trial implied court’s Perkins: To my recollection, the best of decision that Perkins’s entrance into Gal- I standing to the left side of the lups’s consensual, home was we conclude doorway, I and asked just him. And I implicitly the trial court accepted Perkins’s door, reached out opened testimony on the issue disregarded I step had to around and walk both his mother’s through opened the door as it up. Thus, contrary. to the given we are a Prosecutor: Did you you he ever tell scenario police ap- wherein a couldn’t come in? proached glass front door of a resi- Perkins: No. dence, requested that an occupant of the outside, Prosecutor: How did residence come observed the occu- you he motion for pant gesture, to come in? make a hand and then en- tered the residence. (dem- just Perkins: He kind of indicated onstrating). police a When enter Prosecutor: That open residents, meant the door? without consent of its entry purposes record,
For of the you have McNairy constitutes search. See v. 366 Frierson, 101, we
State,
(Tex.Crim.App.
point.
written on
106
1991)
States,
police
389
into
(citing
entry
Katz v.
reviewed the
a resi
United
347,
507,
576
88
19 L.Ed.2d
U.S.
S.Ct.
dence at the invitation
defendant
(1967)).
Generally speaking, searches
Frierson
resident’s son.
v.
pursuant
seizures must occur
a warrant
1992,
841,
(Tex.App.-Dallas
S.W.2d
probable cause. See Schneckloth
based on
'd.).
ref
factors
pet.
Initially,
reiterated
Bustamante,
v.
412 U.S.
93 S.Ct.
relevant to the issue of
are sometimes
(1973).5 Indeed,
2041, 36
L.Ed.2d
consent, including:
the home
physical
extent,
(1) whether, and to what
officers
against
chief evil
government agents is the
force,
including
exhibited
show of
wording
of the Fourth Amend
weapons;
display of
ment
is directed. See United States
(2)
actions of the officers
whether the
Court,
Dist.
407 U.S.
United States
as flagrant
could
classified
miscon-
(1972);
368 Reyes-Perez, context,
Unlike there is Taken in conclude the hand in gesture by Gallups no evidence this of a cultural or case Perkins and Per- language disparity Gallups and between kins’s constituted sufficient evi- Frierson, Perkins. Unlike Roth and prove there dence from the State to consent enter, an by convincing was affirmative communication enter clear evidence.8 home, case, person appears public place there is no in the in a while intoxi- issue of consent eliminating requirement that degree person may thus en- cated to the knowing show consent was danger person or another.” See Tex. Pen. State, 219, intelligent. Thus, See Bell 676 S.W.2d v. 49.02(a) (Vernon § Code Ann. 1984, ref’d). (Tex.App.-Corpus pet 220 Christi Gallups's autho- arrest home was inside his (1) pursuant to rized if Perkins had consent argues 8. The dissent that Perkins’s arrest of 14.05, (2) article if the circumstances Gallups illegal into the because Gal- reasonably probable cause that showed and, home was not consensual if lups guilty public been intoxication had was, Gallups’ subsequent it violated arrest 49.02. pursuant to article and section 14.03 proce article 14.05 of the code criminal actually It is immaterial that dure because the occurred inside his arrest driving while intoxicated. home. See Tex.Code Crim. Proc. Ann. art. 14.05 100, 109-10 Peddicord (Vernon Supp.2003). has The consent issue (Tex.App.-Amarillo pet.). no body majority been discussed in the Probable cause exists where the facts thus, opinion; remaining issue knowledge circumstances within the officer’s Texas, 14.05 issue. In arrests are trustworthy and of which he has information (1) only probable if authorized there is cause per- are sufficient themselves to warrant individual, (2) to arrest the arrest falls believe an of- son of reasonable caution to exceptions within one of the for warrantless Ohio, has been See Beck v. fense committed. chapter arrest set forth in of the code fourteen U.S. 85 L.Ed.2d 142 S.Ct. procedure. of criminal See Stull v. (1964); Hughes v. 449, 451 Thus, (Tex.Crim.App.1989). S.W.2d Further, (Tex.Crim.App.1992) (op. reh’g). probable even if Perkins had arrest cause to determining probable cause exist- whether Gallups, required the State to show a was still arrest, we ed for an the cumulative examine chapter exception justify fourteen a war- known who information to all the officers offense, At rantless arrest. the time of this cooperated in the See United States arrest. provided part: 14.05 article in relevant Hensley, 469 U.S. S.Ct. In each case articles 14.01- [in enumerated (1985); L.Ed.2d Muniz may lawfully 04] where arrests made (Tex.Crim.App.1993). warrant, person without the officer or mak- arrest, case, at the time of ing justified adopting the arrest is all the knowledge possessed the cumulative adopt might measures which he in cases of Perkins, police, namely was that Butler and warrant, except arrest under that an officer matching Gallups’s man de- an intoxicated making an arrest a warrant without scription had and wrecked a motor driven not enter residence to make the arrest *8 public place, in a on vehicle the man had fled unless: foot, to evidence in the the man vehicle linked (1) person a who resides in the residence address, Gallups's nearby all and that of these entry.... to the consents events were recent We believe these in time. (Ver- See Tex.Code Crim. art. 14.05 Proc. Ann. person of were sufficient a facts to warrant Supp.2003). non caution, facts, to relying those reasonable on 14.03, here, pertinent Article an authorizes offense of believe had committed the "persons without found in arrest warrant of Therefore, public we do not intoxication. places suspicious and under circumstances agree with the that Gal- dissent's conclusion reasonably persons have show that the lups’s chapter arrest violated of the code of guilty of some under Section been ... offense 49.02, procedure. Gallups better de- criminal Had Penal Code....” See TexCode Crim. brief, (Vernon 14.03(a)(1) veloped 14.05 Supp. the claim in his we would Proc. Ann. art. penal thoroughly code states have more the issue of Section 49.02 of the addressed person opinion. body majority an offense if the his arrest in the "[a] commits of the appellant’s resolve At to against hearing We lone issue the motion suppress, McKinney him. officer Robbie Butler at a one-vehicle testified he arrived affirm the judgment. We trial court’s A accident on December scene Dodge Charger Ram had run into BRIDGES, J., dissenting. telephone pole, the but driver was Opinion Dissenting by Justice witness, present. Ramos, Ray A he said BRIDGES. had seen the accident and described the driver male with as a white short brown respectfully I dissent. Because I con- hair wearing gray and blue sweatshirt the State present clude did not clear and jeans. Ramos, According and blue the convincing evidence properly that Perkins spot driver had a white the front of his appellant arrested a warrant in without hair, mouth, from the bleeding appellant home or that consented to Per- smelled of alcohol. Ramos said the driver residence, into appellant’s kins’ I had run an north and turned east through would reverse and remand this cause for alleyway. further proceedings. majority, discussed I compartment, As must In the glove truck’s But- give almost total deference to the trial ler bearing found insurance card appel- court’s determination of historical Appellant’s facts lant’s name and address. ad- consider the light evidence dress most indicated a location three blocks favorable to the ruling. away trial court’s the same direction as Ramos said (Tex. Guzman the driver Butler gone. had ran a search Crim.App.1997). However, I would belonged, review determine to whom the truck application de novo the trial court’s again appeared once it the truck be- law of search and seizure and the longed appellant. law Butler contacted Per- authorizing kins, arrest appellant’s without warrant who went residence. Further, those facts. See appellant id. approached glass Perkins front door challenges constitutionality residence, of his ar requested appellant both outside, rest under the Texas Constitution come observed make through residence, and articles 14.01 14.05 gesture, entered that, procedure. code criminal appellant. See Tex. Perkins testified I, 9; § door, appellant’s “[Ap- as he stood outside art. Const. Tex.Code Crim. Proc. (Vernon Ann. arts. 14.01-14.05 pellant] 1977 & motioned for [Perkins] to come Supp.2003). forward, Under state pushed consti [Perkins] door argument, proper open.” tutional inquiry response prosecutor’s to the “the reasonableness of the search or questioning, appel- sei Perkins answered that under totality zure the circum lant did not tell Perkins could not come Hulit v. Also, prosecutor stances.” inside. when asked (Tex.Crim.App.1998). appel As to how appellant motioned for Perkins statutory in, argument, proper responded lant’s in come just “He kind *9 (1) is quiry probable whether there was of prosecutor indicated.” The then asked respect Perkins, with open cause to that individual and “That meant the door? For (2) record, within purposes you whether arrest fell one of of the your have State, statutory exceptions. Beverly being out and coming extended back 103, 792 S.W.2d (Tex.Crim.App. you.” 104-05 toward Perkins answered affirma- tively. appellant, After Perkins 370 him of the car for brought drugs); back to scene Juarez v. 758 S.W.2d (search
accident, departed. 772, but Ramos had 774 (Tex.Crim.App.1988) of drugs); car for Meeks v. 692 S.W.2d majority The of addresses the issue (search 504, (Tex.Crim.App.1985) 506-07 of appellant whether consented to Perkins’ for drugs); car 868 Dawson However, entry appellant’s of residence. 363, 1993, (Tex.App.-Dallas 366 appellant’s case ar because this involves ref'd) (search pet. drugs); of locker for rest without a warrant resi inside his 250, Fontenot v. dence, proper inquiry I believe the (search 1990, pet.) no of (Tex.App.-Dallas appellant’s whether consent authorized possible motel bathroom for armed individ Perkins arrest him without a warrant view). in ual In drugs plain revealed con pursuant of of article 14.05 the code trast, only appellant Perkins discovered procedure. criminal See Tex.Code Crim. appel himself inside the residence. While (Vernon Supp.2003). Proc. Ann. art. 14.05 intoxicated, may appeared lant it is have that, provides Article in 14.05 each “case not an to become intoxicated inside offense may lawfully enumerated where arrests one’s own residence. warrant,” police a made without making an arrest without a warrant 742, Wisconsin, Welsh v. 466 U.S. not enter a residence to make arrest (1984), 104 S.Ct. L.Ed.2d person unless a who resides in the resi very involved a situation similar to the entry exigent dence consents to the or Welsh, wit- single facts this case. require circumstances the officer to enter saw driving erratically, ness swerv- Welsh the residence without a warrant and with road, open in ing stopping off the out Id. is not a “case consent. DWI field. left Welsh the scene before in through enumerated” articles 14.01 arrived, gave police but the witness 14.04 of code procedure. of criminal description told them Welsh’s Welsh Thus, See id. arts. 14.01~.04. or whether appeared very very either inebriated or appellant entry, not consented to Perkins’ registra- sick. Police checked the vehicle’s such did authorize consent not identity tion determined Welsh’s appellant arrest without a warrant inside warrant, po- securing address. Without for the offense DWI. lice went gained to Welsh’s residence and id. art. 14.05. entry step- the house into when Welsh’s daughter answered door.1 The search,
Even if
consented
ato
found
for
Welsh
bed and arrested him
however,
I would not conclude
facts,
DWI.
these
Under
court
consent
home
to Perkins’
into his
prohib-
Welsh reasoned Welsh’s arrest was
authorized Perkins to arrest him there.
special protection provided an
ited
majority
The cases cited
relevant
therefore,
was,
individual in his home and
pursuant
searches conducted
to consent
invalid.
Id. at
rant, appellant driving while rant not have been secured. Fur could intoxicated, a misdemeanor offense not ther, exception to no other the warrant committed within the view. officer’s See applied in requirement this case. Perkins (Vernon 49.04(b) § Tex. Pen.Code Ann. pursuit” “hot be appellant was not in 2003) (DWI first B offense is Class misde- was cause there no immediate or continu meanor). Welsh, As in I would conclude pursuit appellant ous from the scene appellant’s arrest under these circum- Welsh, 753, 104 the crime. at See U.S. prohibited, was stances and the trial court appellant Because S.Ct. 2091. had arrived in denying appellant’s sup- erred motion to home abandoned and had his vehicle at Welsh, press. See 466 U.S. at accident, scene of there re was little S.Ct. public maining safety. threat id. See Appellant not intoxicated in public. Further, even all assuming that 49.02(a) (Vernon § See Tex. Pen.Code Ann. needed to appellant arrest a war without 2003); Tex.Code art. Crim. PRoc. Ann. rant was consent to enter his 14.03(d) (Vernon Supp.2003) (among other residence, I disagree that State has things, peace jurisdic officer outside his appellant gave shown such consent. The person tion arrest without warrant majority correctly states that the State publicly pres intoxicated within officer’s prove by must clear convincing evi view). Though ence or Perkins could dence that consent to enter appellant, appellant smell alcohol com freely given in excep order to establish an mitted no within offense Perkins’ view. requirement tion obtain a 14.01(a) Prog. See Ann. art. Crim. Tex.Code warrant before conducting a search. See 1977) (Vernon ar (authorizing warrantless Carmouche S.W.3d committing rest of offender offense within (Tex.Crim.App.2000). I agree do not view). peace presence or officer’s met its burden through Perkins’ tes short, I would conclude that the trial court timony that appellant for [Per “motioned overruling appellant’s erred in motion forward,” to come “just kins] kind of indi suppress no because circumstances were cated,” and unspecified made some present that would have Per authorized gesture. See Roth v. appellant kins to arrest without a warrant (Tex.App.-Austin pet.) no in his home. (no clear and convincing evidence con error, appellant though” sent where as I Finding “looked would conduct a harm he wanted officers to into his resi analysis follow to determine whether the error did); they dence or did not judgment. “mind” if calls for reversal (Tex. Tex.R.App. Green 44.2. P. Because the error is constitutional, App.-Houston pet.) [14th no I I Dist.] would reverse unless (no immunity beyond waiver of in constitutional determined reasonable doubt from singular open ferred act of did not appel that the error contribute to door). her front ing give punishment. defer We still lant’s conviction Tex. 44.2(a). R.App. ence the idea that “a house is his Butler man’s P. and Perkins were *11 only hearing at the State’s witnesses appellant’s suppress. on motion to At the house, appellant’s
time Perkins entered all appellant’s
Perkins knew was that truck wrecked, and appellant matched the
description Only of the driver. after Per appellant’s
kins residence entered did ap
smell alcohol and notice
pellant’s speech was slurred before arrest record,
ing him I for DWI. Based on beyond a
could not conclude reasonable
doubt that the evidence obtained Per appellant’s
kins entered after he
did not contribute conviction. Tex.R.App. 44.2(a). P. I
Accordingly, would reverse and re- proceedings.
mand this cause for further Harvey BALLARD,
Walter
Jr., Appellant, Texas, Appellee. STATE
No. 09-01-397 CR. Texas, Appeals
Court of
Beaumont.
Submitted on March 2003. May
Decided