*1 expressly permits No Texas statute suit
against exemplary the State for dam-
ages. Although dispositive, the fact Taylor’s construction of the Act subject
would to exemplary State
damage skepti- awards reinforces our Legislature
cism that intended to im- sovereign immunity by
waive mere
plication.
Taylor,
clude the did not intend to governmental immunity
waive to suit for a
claim under 27.01. Like the incor- section
porated definition of “mental health facili-
ty” Taylor, incorporated definition “person” this statute is not the func- equivalent explicit legislative
tional of an immunity.
directive waiving immunity to suit bars
Governmental
Bernard’s claim under section 27.01 of the
Texas Business and Commerce Code. The in denying County’s
trial court erred
plea jurisdiction. We reverse
trial court’s order and dismiss Bernard’s jurisdiction.
claim for want of AND RENDERED.
REVERSED GONZALEZ, Appellant,
Mario Texas, Appellee. STATE
No. 03-04-00005-CR. Texas, Appeals
Court of
Austin. 28, 2004.
Oct. 2, 2004.
Rehearing Overruled Dec. *2 KIDD,
Before Justices B.A. SMITH PEMBERTON.
OPINION *3 SMITH, BEA ANN Justice. After the trial court denied his motion to suppress, pleaded guilty Mario Gonzalez possession the offense of controlled in an amount more than four substance grams grams. but less than two hundred See Tex. Health & Safety Code Ann. (d) (West 2003). 481.115(a), § The trial years’ impris- court sentenced him to four onment. In his in this out-of- issue appeal,1 time Mario Gonzalez contends that by overruling the trial court his mo- erred suppress tion to the fruits of a warrantless the ini- search of his Because apartment tial search of Mario Gonzalez’s was not doc- trine, judgment we reverse the trial court’s pro- of conviction and remand for further ceedings.
BACKGROUND
Mario
and his brother Alexan-
Gonzalez
together
apartment
der Gonzalez lived
114 at 1221
Drive in Austin.
Barton Hills
suppress,
In his motion to
Mario Gonzalez
challenged the warrantless search
apartment
after Austin
officers re-
Kuhn,
Kuhn,
Kuhn,
Doyle
John C.
&
sponded to a 911 call and found Alexander
Austin,
P.C.,
appellant.
for
bleeding
Gonzalez
from a stab wound.
Case, Jr.,
Bryan
Atty.,
present
C.
Asst.
Mario Gonzalez was not
when the
District
Austin,
arrived or at the time of
search.
appellee.
for
original ap
appellant's
1. We dismissed Mario Gonzalez's
time until the
brief is filed.
(Tex.
peal
jurisdiction
Bayless
for want of
because his
timely
appeal
notice of
did not contain the
Crim.App.2002).
pe
Mario Gonzalez filed
that the substance of the
statement
corpus asserting
tition for a writ of habeas
appeal was
written motion and
raised
filing
that the late
of the amended notice of
trial,
notice
ruled on before
and his amended
appeal denied him the effective assistance of
correcting
appeal
the defect was filed late.
appeals
court of criminal
counsel. The
03-02-00064-CR,
State, No.
granted
corpus
habeas
relief and allowed an
Tex.App.
WL
LEXIS
Gonzalez,
appeal. Ex Parte
No.
out-of-time
ref'd).
(Tex.App.-Austin
pet.
The court
74, 832,
(Tex.Crim.App.
Alexander Gonzalez called from Aleman’s hand. grabbed keys early morning hours of leen Aleman He direct- July asking help. for approached the Gonzalez Officer Wines talking on a ed her to his while He and looked the window. him phone, and she discovered mobile obtaining After anyone did not see inside. *4 apart- in a of the bleeding common area unlocked supervisor, from his he approval complex. ment Aleman called 911 for door, pres- announced his help. police Austin officer Tom Owens ence, Inside the and entered. personnel. before EMS He was arrived found blood on one of Officer Wines 911 call by dispatcher told bloody a knife chairs and discovered originated from 114. As he into one of the kitchen sink. He then went approached apart- the closed door of the scale, powder, and observed a bedrooms ment, he heard voices around the corner top of a dresser. He and a straw and found Alexander Gonzalez and Aleman open dresser drawer and looked into standing together courtyard. Both a plastic bag containing a white observed had on their clothes. blood in- Officer Wines powdered substance. suppres- at the Officer Owens testified found, supervisor formed his of what hearing sion that Alexander and apartment and locked the then left the answering Aleman his were evasive a search war- door. The obtained questions happened. about what Once discovery rant based on Officer Wines’s arrived, personnel spoke the officer EMS which formed the and seized the evidence him directly with Aleman who informed Mario charge against basis of the Gonza- that Alexander Gonzalez had been stabbed lez. on the left side of his chest. Soon after arrived, personnel the EMS Austin DISCUSSION
officer Gerald Wines arrived to assist Ow- question ens. Both officers continued to appeal, In his issue on Mario Gon Alexander Gonzalez and Aleman about initial zalez contends that Officer Wines’s did happened. what Alexander Gonzalez search of the questions hap- not answer about what emergency doc not pened, explained and Aleman that she did Therefore, trine. the trial court erred Alex- not know.2 Both officers described overruling suppress his motion to because agitated ander Gonzalez’s behavior as police was the warrant obtained attention. requiring their through Offi on information learned based Nilson v. search. illegal cer hospi- Wines’s transported Before he was State, 869, (Tex.App.-Dal tal, 872 gave Aleman his Alexander Gonzalez (where 2003, pet.) illegal no warrant- her to lock las keys and asked his war for search complied provides when she re- less search basis door. Aleman very been de- suppression hearing pened, Alexander Gonzalez had 2. Aleman testified at the been prior pressed stab wound have the officers to the search and the that she told that, although hap- she did not know what self inflicted. 706
rant,
573, 586,
1371,
pursuant
evidence obtained
to search
445
100
S.Ct.
63
Guo,
suppressed);
warrant
(1980);
Arizona,
State v.
64
Mincey
639
L.Ed.2d
v.
662,
(Tex.App.-Houston
668
390,
[1st
385,
2408,
437 U.S.
98 S.Ct.
57
2001,
pet.).
no
Dist.]
(1978); Coolidge
L.Ed.2d 290
v. New
443, 454-55,
Hampshire, 403 U.S.
reviewing
In
ruling on motion
2022,
(1971);
State,
It
principle
is a cardinal
of
seeking
exception
an
Fourth
the burden of those
Amendment law that the search of
v.
a residence
a
to show the
for it. United States
presump
without warrant is
need
York,
467,
Robinson,
218, 243,
tively
Payton
unreasonable.
v. New
414
94 S.Ct.
States,
deep
3. The
roots of the Fourth Amendment’s
Miller v.
357 U.S.
78
United
(1971);
protection
1190,
of
home were discussed
see
S.Ct.
707
detection, investigation, or
(1973);
vorced from the
427
see Russell v.
L.Ed.2d
the vio
7,
(Tex.Crim.App.
relating to
acquisition
of evidence
717 S.W.2d
Roth,
1986); Janicek,
691;
Laney,
634 S.W.2d
criminal statute.”
lation of a
Dombrowski,
at 299.
917 S.W.2d
(citing Cady v.
at 860
2523,
441,
433,
93 S.Ct.
413 U.S.
initial
dispute that
There is no
(1973));
see also Corbin
L.Ed.2d 706
in this case was conducted without
search
(Tex.Crim.
281 n.
The
contended at the
a warrant.
State
(emer
(Cochran, J., concurring)
App.2002)
hearing that the search of
suppression
moti
primarily
gency search must
be
apartment fell within the emer
and seize evi
by intent
to arrest
vated
gency
exception
general
dence,
that courts be
it is essential
of the Fourth Amendment.
requirements
subterfuge).
possibility
alert
Tyler,
Michigan
436 U.S.
(1978);
must also be
scope of the search
Fourth Amendment do not objective and searches stan prohibit apply warrantless entries We reasonableness, police reasonably per believe that a into account taking dard son within is in need of immediate aid. Id. known to and circumstances all of the facts search, at 691. time of the at the is determining whether search *6 recently court dis The more La emergency under the doctrine. See emergency cussed the doctrine in v. 862; Brimage, 918 117 ney, S.W.3d aspect police’s State as an of the communi scruti independently at 501. We S.W.2d ty caretaking function. 117 See S.W.3d subjec regard the without nize facts 854, (Tex.Crim.App.2003). Under v. police. of the Johnson tive conclusions doctrine, emergency the an officer’s war- 417, (Tex.Crim.App. 722 419 S.W.2d permissible rantless search is if the officer 1986). expectation of greater the Given has reasonable belief residence, a warrant- privacy private in a preserve he must act to or life or emergency the doctrine search under less Arizona, injury. Mincey avoid serious in most unusual will be 2408, 57 437 U.S. 98 S.Ct. State, 7 Wright v. circumstances. (1978); Laney, L.Ed.2d 290 117 148, see (Tex.Crim.App.1999); 152 United police upon 861. When the come the scene 243, Robinson, States homicide, they may prompt make a (1973) (“Excep 38 L.Ed.2d S.Ct. search of the area to see are not requirement tions to the warrant if a killer is still there are other victims or judicial inqui further precluding talismans Mincey, 437 premises. on the ... but they are invoked ry whenever 2408. drawn.”). carefully jealously are and rather Although may seize evi police the trial court’s In order to evaluate plain dence found in view when enter emergen- ruling applicability on the pursuant a residence of the Gonzalez cy to the search doctrine, doctrine Brimage v. see the facts and we must review the mo (Tex.Crim.App.1996), 501 n. 5 the officers at the “totally known to entry di- circumstances tivation for the must be (1) time of the search to determine: (Tex.App.-Hous- whether the officer’s into the Gonza- ton [14th Dist.] apartment lez smell, divorced from identified the location of the “imme- detection, investigation, or acquisition diately recognized the smell of ether and (2) evidence, whether there an im- opinion formed the that there was a meth- mediate, objectively reasonable belief that amphetamine operating lab inside the it was to enter the Gonzalez Green, apartment.” Id. at In order to preserve correctly court held that the search was (3) injury, life or avoid serious wheth- not
er the scope
of the search was
because the
identified the smell
aas
by
circumscribed
the facts of
emergen-
lab,
methamphetamine
dangerous
not a
cy.
Here, Officers Wines and Owens re-
entering the apartment was to enforce the
sponded to a call for emergency assistance
criminal
prohibiting
statute
the manufac-
and were directed
dispatcher
go
methamphetamine,
ture of
not to
the Gonzalez
Once
or protect
(police may
life. See id.
arrived,
they saw Alexander Gonzalez
emergency”).
enter based on “contrived
bleeding from a chest wound and Aleman
ease,
In this
there is no evidence that
with
They
blood on her clothes.
were
suspected
Officer Wines
there were
informed
Aleman that Alexander Gon-
drugs
or that he other-
zalez had been stabbed. Alexander Gonza-
wise entered the
for the pur-
lez
agitated
Although
evasive.
detection,
pose
investigation,
acquisi-
spent
officers
considerable
ques-
time
tion of evidence.
Aleman,
tioning Alexander Gonzalez and
they were unable to obtain even the most
Because we find that the search of
basic account of how Alexander Gonzalez
was conducted as
anyone
had been stabbed or if
else was
good
response
perceived
faith
to a
emer
Despite
involved.
Alexander Gonzalez’s gency, we next determine whether Officer
agitated
apparent
mental state and
inabili-
*7
subjective
Wines’s
of an
apprehension
ty or unwillingness
respond
to
to basic
emergency
objectively
was
reasonable.
questions by
police,
the
he was coherent
Corbin,
277, 280-81;
See
at
S.W.3d
enough to instruct Aleman to lock his
words,
Wright,
We first examine whether
pro
Gonzalez
to
search was
divorced from
goal
preserve
inju
tect or
life or avoid serious
detection,
investigation,
acquisition
ry?
861;
Laney,
Mincey,
at
Laney,
evidence.
S.W.3d at 862. 437
at
Citing
without appeals court of criminal In necessitating war- there was entry held that a warrantless was not rantless into the offi- emergency doctrine when objectively reasonable. that indi- specific facts cers were aware life or a need to regard evidence cated Reviewing the without injury. See police, prevent of the serious subjective conclusions arresting La- deputies were 863. Sheriffs note that the officers did have some we saw two may ney for a disturbance indication that Alexander Gonzalez twelve, out of the aged to come boys, ten have been because go and then back Laney’s darkened trailer informed that the 911 call was traced were It was Laney, 117 at 856. It was inside. back to the Gonzalez informed the midnight suspect to that Alexander after also reasonable not his. that the children were deputies the victim of a violent crime. Gonzalez was children then came out Id. though Even Aleman informed the officers One inside. and the other remained that the wound have been self the trailer stab inflicted, entered the trailer deputies actual- Id. The she stated that she did not discovered boy the second ly happened, and Alexander retrieve know what ap- The court of criminal information. contraband. Id. provided further doctrine to relied on the peals conclude, however, that Alex- We cannot search of justify deputies’ details ander Gonzalez’s reticence deputies house. Id. at 862-63. lock his door request or his Aleman specula- didn’t enter the trailer based being hospital provid- taken to prior inside might tion that there be someone ed evidence that another victim or the young boy they saw a protection: need of perpetrator may lurking have been a sub- felt there would be go inside and best, apartment. At Alexander Gonzalez’s there. of harm he was left stantial risk uncooperative suggested behavior at 863. See id. Infer- did not want the involved. contrast, pro- in this record By nothing cooperation that his lack of with the ring *8 hunch unsupported than an another vides more police indicated that there was or might have been involved alleged the that others perpetrator or the victim found the Gonzalez could be stabbing specu- in the would be Indeed, only explanation Furthermore, apartment. Alexander Gonza- lation. wound proffered for Alexander Gonzalez’s to lock his door was a reason- request lez’s himself. being might that he have stabbed light action in of the fact he was able inviolability the accused’s home is “The hospital. to the The interest taken facts, by by the is a to be determined privacy protection of one’s home rumor, suspicion, guesswork.” or Janicek and a main- fundamental American value Giving at 691 n. 11. system. Payton, 445 stay legal of our Miller, 1371; to the trial court’s determination 357 deference ruling of historical facts in favor of its on apartment and hears voices around the suppress, the motion to we do not find that corner. Instead of immediately attempt- immediate, support objectively facts an ing to enter the he follows the reasonable that another victim or the voices and finds Alexander Gonzalez in a belief perpetrator stabbing would be found common bleeding area from a stab wound apartment. 117 S.W.3d to the chest. With him was Arleen Ale- 861; Mincey, 437 98 S.Ct. man, who had blood on her clothes. Gonza- belief, 2408 . Absent such the search can agitated lez is and evasive. After EMS justified not be doctrine. arrive, spends and another officer con- Id. attempting siderable time question both Aleman, Alexander Gonzalez and but the argued, State has not and we do not pair will not disclose even a most basic applicable exception find other account of how Alexander Gonzalez was presumption that a warrantless search of a injured if any persons or other were in- prohibited by residence is the Fourth begins volved. As EMS to take him away, Amendment. We therefore hold that the uncooperative the evasive and by trial court erred overruling Mario Gon- specifically insists that Aleman lock his zalez’s motion to suppress and sustain apartment. Mario Gonzalez’s appeal. issue on Applying well-established Fourth CONCLUSION jurisprudence Amendment objec and the Because the officers did not have articu- tive standard reasonableness under the lable facts that would an them imme- doctrine, agree I cannot with diate, objectively reasonable belief that majority because I believe the emer needed to enter the locked gency search this preserve or any life or find a An appellate case. court is to an apply perpetrator, it was error to overrule the reasonableness, objective standard of tak motion to suppress. We sustain Mario ing into account all of the facts and circum Gonzalez’s sole on appeal, issue reverse time, stances known to at the conviction, the trial judgment court’s determining a search is under proceedings. and remand for further the emergency doctrine. See (Tex.Crim. Dissenting Opinion by Justice test, App.2003). Under this we must de PEMBERTON. (1) termine: whether the officer’s PEMBERTON, Justice, BOB into divorced dissenting. detection, investigation, acqui from the Owens, (2) officer, evidence; Tom an Austin sition of whether there was responds to a 911 call for assistance. He objectively reasonable belief dispatcher is advised call that it apart to enter the originated within the Gonzalez ment to life or to avoid (3) Upon arriving at apartment complex, injury; scope serious whether the approaches Owens the closed door of the of the search was circumscribed *9 4. we scope Because hold that the officers did not examine whether the search of possess objectively sufficiently reasonable the Gonzalez cir emergency. belief that it was to enter the Gon cumscribed the facts of the State, (Tex. pre Laney zalez in order to See injury, Crim.App.2003). serve life or avoid serious we need not
7H expla- other conceivable of some id. at existence emergency. facts of the See actions Gonzalez’s nation for Alexander 861-62. facts as from the does not detract the first majority I with the agree time he de- officer at the appeared to the entry in this prong officer’s —the He had apartment. cided to enter from a search for case was divorced yet had but been called third id. In relation to the evidence. See Instead, attended to Alexan- to enter. scope I find that the prong, would Gonzalez, apart- who was outside der limited the facts of search was able to determine ment. He was never id. The officer en- emergency. I find that happened. had would what blood apartment and observed tered the to conclude made it reasonable these facts then went into on one of the chairs. He was the victim Alexander Gonzalez a knife the kitchen and saw the sink another victim crime and that a violent into the tip. on its He went with blood located might have been plain and saw in view on the bedroom in this result, I find the search As a would scale, and a straw. powder, dresser a emergency doc- justified under case plastic bag with white There was also trine. making in an drawer. After powder open observations, left these the officer court’s denial of I affirm the trial would door, reported locked the I suppress. motion to Mario Gonzalez’s All is ad supervisor. to his this evidence respectfully dissent. search
missible the officer’s warrantless justified. Brimage v. (Tex.Crim.App.1996) 501 n. 5
(when police pursuant enter residence doctrine, plain evidence in view seized); see also Nilson v. be (Tex.App.-Dallas (where illegal search pet.) JOHNSON, Appellant, Mark D. warrant, provides basis for search evi pursuant
dence obtained to search warrant Guo, suppressed); State v. SERVICES, ASSET STRUCTURED 2001, no (Tex.App.-Houston Dist.] [1st LLC, Appellee. No. 05-03-00075-CV. Thus, issue this case is immediate, objec- there was an whether Texas, Appeals Court that it neces- tively reasonable belief Dallas. protect or sary to enter the Oct. injury. preserve life or to avoid serious requires Id. The actions second-guess officers’
we hindsight or theoretical
through 20-20 Rather, apply we are to the stan-
prisms. way chilling that avoids our law
dard entering prop- officers from
enforcement reasonably it nec-
erty believe life.
essary to