*1 signed capacity promissory in which Caraway acted he parties understood Therefore, summary only agent Realty signed judgment as an when he note. of promissory September 1998. of the trial court note is affirmed. a wholly The creation of the note was transaction from creation of
separate contract, unsigned years sep- with two
arating the events. What their intentions
may have been at that time of the creation contract for the pur- are irrelevant establishing par- of the intent of the
pose at
ties the time of the creation of note.
The note itself is the best indicator of Therefore, conclude that
intent. this JOHNSON, Appellant, Ronald D. unsigned question contract does not raise a summary fact sufficient of to overcome
judgment.
speculate
We cannot
wheth-
Texas, Appellee.
The STATE of
Design
Caraway’s
Land
er
aware
No. 14-99-00006-CR.
note
sign
agent
intention
as an
Caraway
rather
than as an individual.
Texas,
Appeals
Court of
present
must
some affirmative evidence
(14th Dist.).
Houston
disclosed
in-
communicated or
his
sign
Design
tent
Land
the note as an
26, 2001.
April
agent
Realty, and he failed to do this.
Seale,
We conclude that the note identifies
Caraway as a maker of the note. More-
over, because the does not note indicate Caraway only signed represen- in his capacity
tative Caraway pres- and because no
ents other that he evidence disclosed intent sign
his to Land Design note
solely agent Realty, as an we conclude no factual exists question as to Cara-
way’s capacity signed at the time he Therefore, Caraway’s
note. we overrule issue.
second
CONCLUSION
Caraway genuine failed to establish a concerning
issue material fact fraudu-
lent inducement he did not show because
trickery repre- or artifice in addition
sentation that the would not due note be Realty
until closed on its construction loan. similarly has to show
He failed the exis- question concerning
tence of a factual *3 Jacobs, Houston,
George appel- 0. for lants. Cameron, Houston, appel-
Carol M. lees. R.App. 25.2(b)(3). compli P. Substantial of Senior Chief Justice
Panel consists
to confer
with the rule is sufficient
ance
AMIDEI
MURPHY and Justices
State, 9 S.W.3d
jurisdiction. Gomes v.
HUDSON.*
(Tex.App
[14th Dist.]
. —Houston
d).
1999, pet. ref
MAJORITY OPINION
found substantial
In
this court
Gomes
AMIDEI, Justice
MAURICE
filed a
compliance where the defendant
(Assigned).
a handwritten nota
bearing
notice
general
corner that
upper right-hand
tion in the
charged
felony pos-
with
Appellant was
limited to the
indicated
with intent to deliver
controlled
session
*4
appellant’s
that
ruling
trial court’s
denied
cocaine,
substance,
at
namely,
weighing
v.
also Miller
suppress.
motion to
See
grams.
least 400
See
Tex. Health & Safe-
345,
(Tex.App.
ty
(Vernon Supp.
§
481.112
Ann.
Code
d) (find
1999, pet. ref
Dist.]
—Houston[14th
2000).
the trial court
hearing,
After a
general
compliance where
ing substantial
suppress.
motion to
appellant’s
overruled
handwritten nota
appeal
of
contains
notice
and was sen-
Appellant
pleaded guilty
then
Suppress”; docket
stating
tion
“Motion to
in
years
prison with
twenty-five
tenced to
only on
entry stating “Appeal
sheet shows
$1,000
plea agreement.
a
pursuant
a
fine
to
judge stat
and trial
Suppress”;
Motion to
entry
into
Because
determine
allow
on record that he would
ed
cause
premises
was without
on the motion to
decision
appeal [his]
“to
a re-
the evidence discovered as
and that
suppress”);
and Flores
not admissi-
entry
of the unlawful
sult
193,
(Tex.App
[1st
. —Houston
ble, we reverse and remand.
ref'd)
(finding substantial
pet.
Dist.]
entry, which is
compliance where docket
I.
Jurisdiction
judge,
trial
states:
signed by the
“Defen
per order
plead guilty
D[efendant]
dant]
this court
argues
The
State
pre-trial ruling”).
appeal
notice of
on
gave
failed
because
jurisdiction
has no
argues
appeal. The State
perfect
his
general notice
appellant filed a
Here
however,
general notice of
appellant filed a
be-
only.
judgment,
The
appeal
circumstances, a
and in a blank
judge’s signature
under the
appeal and that
neath
stat-
a
notation
right
preprinted
perfect
notice is not sufficient
general
the follow-
Appeal,”
bears
ing, “Notice
an appeal.
“11-16-98
notation:
hand-printed
”
judgment
from a
appeal
If an
is
A docket sheet
‘MTN TO SUPPRESS.’
plea
guilty
defendant’s
rendered on a
stated,
16, 1998,
entry dated November
of Criminal
article 1.15 of the Code
under
appeal
written notice
gave
“Defendant
Procedure,
punishment assessed
and the
suppress only.” [Under-
to motion to
by the
exceed that recommended
does not
judgment
We find the
lining
original.]
by the
agreed
defen
prosecutor
entry constitute
and the docket
notation
dant,
specify that
appeal
notice of
must
to confer
compliance sufficient
substantial
defect;
jurisdictional
appeal
upon
is for a
this court.
jurisdiction
specify that
the substance
II. Facts
and ruled on
motion
was raised
written
trial;
p.m.
the trial court
to 11
March
or state that
At about 10
before
Deputy
Sheriff
approached
an individual
appeal.
granted permission
Tex.
*
sitting by assignment.
tice Amidei
Murphy and Former Jus-
Chief Justice
Senior
there,
Wayne
provided
standing
cover. While
leaving
Bowdoin as he was
patrol
man,
station in his
car. The
Wallisville
later identified as
Bowdoin saw
pursuing
individual said he had
been
open
covering
on a window
appellant,
armadillo between his residence and that
on the north side of the house.
man
neighbor.
hoped
of his
He said he
to catch
Bowdoin. The
said
apparently saw
the armadillo to kill and eat it. He stated
“extremely surprised
the man had an
the armadillo had
into his
walked
away
look.” He said the man then “darted
he,
neighbor’s backyard
pur-
and that
southerly
di-
from the window and
suer,
through
neighbor’s
had looked
his
front of
house.”
rection towards the
and had seen a man in
kitchen
fence
Bowdoin
that he did know wheth-
testified
what
processing
he knew to be crack co-
any weapons
er there were
in the house
caine. Bowdoin testified that he did not
he
fellow
and that
was concerned
his
Bowdoin,
know the individual.
the ra-
on
deputy’s safety. Bowdoin entered the
dio,
Deputy
contacted Sheriffs
Irwin Jo- backyard
approached
the rear of
seph Gordy
checking
to assist him in
out
long
house. He saw a three-foot
machete
report.
the in-
followed
patio.
approached
glass
As
dividual to the 14400 block of Lome in the
*5
door,
patio
deputy
appellant
the
saw
County.
Pine Trails subdivision of Harris
plastic bag,
the door and
a
a
through
saw
Bowdoin testified that
area
the
is a “medi-
fist,
bigger
little
than his
in the sink with a
um to
crime area with
high
heavy narcotics
golden brown cookie-like substance that he
trafficking and
gang
some
violence.” The
recognized
crack cocaine. Bowdoin
as
deputies asked the individual to take them
and,
weapon
drew
while
the
his
outside
activity. They
to where he had seen the
house,
on the
appellant
ordered
to lie down
approached the rear of
at 14421
the house
woman,
kitchen
Then a
later
floor.
nude
Lome. Bowdoin looked between the slats
Washing-
identified
co-defendant
as
Annie
of the
surrounding
six-foot fence
the back
ton,
began
entered the kitchen area and
yard. Through a
he
triple
window saw a
screaming. Bowdoin also ordered the
beam balance scale
baking
and a box of
woman to the floor. The
then or-
Gordy
soda.
was able to look over the
appellant
open
dered
the back door.
In
fence and also
baking
saw
balance and
meantime, Deputy Gordy
had entered
soda. Bowdoin testified that he
that
knew
backyard.
deputies
The
entered
commonly
such a balance scale is
used
house,
appellant Washing-
handcuffed
and
processing
and sale
narcotics and
ton,
of the
baking
commonly
pro-
inspection
soda is
used to
conducted a brief
house,
cess and cut crack cocaine.
a
year
and found
six to seven
old
girl
in one of the
Bow-
asleep
bedrooms.
decided to do a “knock and
appellant Washington
doin told
and
he was
They
Gordy
go
talk.”
decided that
arresting
possession
them for
of cocaine
house, knock,
to the front door of the
appellant
sign
a written con-
asked
speak
occupants,
to the
and ask to enter
Appellant,
sent to
the house.
search
a look
take
around. Bowdoin would
house,
owner of the
at first refused. Bow-
cover the rear of the house for the officer’s
appellant
appellant
doin told
that if
did not
safety
nobody
and to make sure
left.
sign, he would obtain a search warrant or
gate
Bowdoin testified that
attempt
Ap-
to obtain a search warrant.
backyard
open and that
positioned
was
fence, pellant
signed
then
the form.
In the sub-
perimeter
himself outside the
search,
triple-
just
sequent
Bowdoin found the
gate,
gate
outside the
and used the
scale, plastic bags,
cover. A two-foot diameter oak tree also beam balance
two boxes
(1971).
soda,
2042,
kitch-
baking
three
on the
III. Discussion Gates, 230-31, 213, 462 U.S. 103 S.Ct. (1983). error, 2317, 2328, single point In For a com- L.Ed.2d 527 justified, that the trial erred in overrul- search plains court warrantless to be suppression probable his motion because must show existence of State made, probable to search deputies lacked cause at the time cause the search and that the house the arrest discov- of exigent and the existence circumstances ery of contraband the fruits of an were of a impractical procuring that made unlawful search. McNairy v. 835 S.W.2d warrant. The test (Tex.Crim.App.1991). Appellant appears argu couch his cause is existence ments in terms of the Fourth Amend both at that facts and “whether moment the I, ment and article of the Texas section within knowl circumstances the officer’s however, not, Appellant Constitution. does reasonably edge of which he had separately brief his and federal con state trustworthy information were sufficient assume, therefore, claims. stitutional We prudent believing warrant a man in greater protection claims no person the arrested or was had committed pro-- under the state constitution than committing Joseph, offense.” vided federal See Muniz constitution. immediately private property at 634. (Tex. 251-52 adjacent to home is entitled to the same *6 said, Crim.App.1993). That we base our against search protection unreasonable decision on Fourth Amendment and seizure as the home itself. Gonzalez by grounds appellant. asserted (Tex.Crim. State, 355, v. 588 S.W.2d 360 In rul reviewing a trial court’s Ciraolo, see also v. App.1979); California ing suppress, on a motion to we should 1812, 213, 1809, 207, 90 476 U.S. 106 S.Ct. trial ruling on issues defer court’s (1986)(stating L.Ed.2d 210 that suburban facts, involving application partic law to curtilage yard where yards is home ularly if the the ultimate resolution of by fence and surrounded six-foot outer question turns on an of credibil evaluation fence). ten-foot inner v. ity Joseph or demeanor of the witness. 627, argue 3 The State (Tex.App 633 does not . —Hous 1999, Those nor does it pet.). backyard curtilage ton no was not [14th Dist.] cause upon appli argue probable that do that Bowdoin had questions not turn law, in backyard response historical we review he entered the cation of fact to when The State exigent novo. Id. The Fourth Amendment bars circumstances. de rather, appel argue, Ma that after unreasonable searches and seizures. seems Buie, 325, 331, Bow- gate, 110 lant saw Bowdoin ryland v. 494 U.S. back (1990). 1096, doin, 1093, though probable lacked L.Ed.2d 276 even S.Ct. cause, type as a per backyard A warrantless search se unreason entered is sweep. primar government protective unless the can demon The state relies able excep upon authorizing protective cases ily that is falls within one of the strate pat warrant in the absence of sweeps tions to the Fourth Amendment’s or downs 334, Buie, Hamp cause. See 494 U.S. at requirement. Coolidge probable v. New shire, 443, 474-75, 2022, offi- at 1098 that where (holding 403 U.S. 91 S.Ct. 110 S.Ct. being no lawfully justify entry. in home execut- cause to an There cers defendant’s warrant, cause, any an arrest entitled to cir- probable presumed exigent officers protective sweep do of house incident justify a cumstances would not warrantless in safety); Michigan arrest interest of v. entry 1032, 1049,
Long, 463 U.S.
103 S.Ct.
law,
Under state
no evidence
(1983)(holding
time interest (Tex.Crim.App.1987). safety, pat person’s down outer clothes Here, searching weapons). for In after Bowdoin entered the none cited, however, door, cases approved backyard approached patio has court the initial warrantless intrusion into a he saw in the kitchen. Had contraband in home the absence of probable cause. unlawfully not entered the Where Supreme Court has not autho- backyard, he would not have seen the con entry rized an initial into home similar Thus, traband. the crack cocaine seen circumstances the absence of probable from outside the house was not admissible. cause, we are in a position not to do so. Bowdoin testified that after he saw cocaine, weapon he drew his and ordered
We find that when Deputy Bowdoin en- subsequently to the floor. He backyard, tered the he had no Washington arrested justifying entry. cause When the possession of the cocaine seen in the kitch over, fence, looked through, they *7 en. Ann. art. See Tex.Code illegal saw no activity. They only the saw Crim. Proc. (Vernon 1977) (officer soda, 14.01 to ar baking scale and entitled legal both items. person They had the word of an rest without warrant when offense informant of view). reliability unknown discovery crack cocaine was committed in his The being depu- made inside the house. The the being cocaine the result of an unlawful time, at that seeing intrusion, ties aside from the appellant the initial arrests of items, aforementioned had not corroborat- Washington discovery and based on the ed the informant’s information. Even that cocaine also were unlawful. by appellant when Bowdoin was seen then, however, Appellant gave door,
Deputy Gordy approached the front permission deputies to the to search the appellant surprised looked and “darted” deputies during house. The the search away Again, from the window. neither discovered additional cocaine. We deter action in illegal. itself was Given that the mine, however, late, original that the unlawful may hour was the actions not have entry even been and unlawful arrest tainted the con particularly suspicious. After circumstances, reviewing totality the sent to and that the additional con of the search was, therefore, we determine that Bowdoin entered traband discovered not ad when curtilage, yet he did not have probable missible. appellant and any p.m. arrested the admission of permit
To gunpoint. after an nude co-defendant at appellant’s discovered from a search evidence detention, by the State must show of the intrusion illegal the circumstances Given the convincing evidence clear that the questioning, and the we determine attenu illegal taint the detention is too to demonstrate that State has failed also taint the consent to search. ated to attenuated from sufficiently consent was (Tex. Munera v. unlawful arrest to avoid original pet.). no App. Dist.] [14th be- taint. The consent to search original —Houston (1) include The factors we must consider tainted, discovered the contraband received Miranda1 appellant whether not admis- pursuant to the search also was he could warnings or was made aware sible. (2) search, temporal prox decline Deputy Bow- have determined that We illegal detention imity of the consent no cause to enter doin had intervening cir presence of including the The con- backyard appellant’s house. (3) cumstances, whether the consent was officer while he by discovered traband (4) requested, than volunteered rather backyard was not admissible. was in the official flagrancy of the purpose discovery of The arrest based on the initial misconduct. Id. was, therefore, unlawful. the contraband Here, the first in connection with that the has not demonstrated The State factor, ap Bowdoin that he read testified was untainted consent to search Miranda warnings and told pellant his Thus, contraband dis- unlawful arrest. appellant appellant could refuse consent also was pursuant covered search, if refused the court abused its The trial not admissible. search, attempt to ob deputies by failing grant appellant’s discretion second tain a As to the search warrant. the evidence. suppress motion to factor, the exact the record is silent as to entry into the lapse time between the Conclusion IV. consent, but signing house and the appellant’s single point Having upheld cursory that the initial suggests the record error, judgment of the reverse the only two or three minutes and search took pro- for further remand court below and minutes, deputies were that within five opinion. with this ceedings consistent signed Appellant a third joined by officer. officer arrived. the consent after the third HUDSON, Justice, concurring. their had then holstered l case, perfected is In a criminal hand but stil was weapons, *8 appeal. notice of by timely filing a written sitting in a chair. As cuffed and Tex.R.App. If, here, appeal the P. 25.2. as factor, did not volunteer appellant third defen- rendered on the judgment is from a only after but' consented consent or nolo contendere plea guilty dant’s that appellant testified asked. Bowdoin Procedure article under Code Criminal agreed. As initially reluctant but then was not 1.15, assessed did punishment factor, although Bowdoin tes to the fourth by punishment recommended exceed the in interest of offi acting tified he was defen- agreed by to prosecutor the curti- safety, breached cer (1) that the dant, specify must: the notice and entered probable cause lage without (2) defect; jurisdictional is for a appeal 10 and gunpoint at at between the house (1966). Arizona, 694 86 S.Ct. L.Ed.2d 384 U.S. 1. Miranda (Tex.Crim.App.1992). There specify appeal the substance of the filed, here, general a by was raised written motion and ruled on the defendant (3) trial; trial Included in the record appeal. before or state that notice of by granting an order the trial court granted permission appeal. court was Tex. R.App. 25.2(b)(3). from the of his Appellant’s permission appeal P. notice of denial appeal require- suppress. Although satisfied none of these motion to the notice did not refer to the order or appeal ments. reference, incorporate by it the Court of in Relying on this Court’s decision Appeals Criminal held where informa- majority Gomes v. holds there by Appellate the Rules of required tion compliance” was “substantial with Rule can located in some extrinsic Procedure be 25.2(b)(3) both judgment because record, jurisdiction is document within the docket sheet indicate was Thus, majori- I concur established. attempting appeal from an adverse rul- jurisdiction ty’s regarding our conclusion suppress. his motion to appeal. to entertain this (Tex.App. [14th Dist.] —Houston (en refd) banc). pet. The scenario in of the search regard With the merits Gomes, however, issue, distinctly disagree different and seizure I with the ma- than presented jority’s the one here. There the conclusion that the officers lacked notice of a probable bore hand-written nota- cause to believe was in tion: Suppress Only.” possession “Motion to were We controlled substance. aided in our interpretation of this hand- were informed a citizen that officers written expressions notation similar appellant processing had seen what he documents, contained in namely, extrinsic knew crack in- police to be cocaine. The sheet, the judgnent and docket con- vestigated allegation. standing which While fence, firmed our belief that appeal- beyond appellant’s Gomes was in a area public ing from a written motion triple raised and ruled the officers saw a beam scale and a Thus, on before trial. we derived our box of soda baking through appellant’s jurisdiction in Gomes Triple from his notice kitchen window. scales are beam appeal. While no model of clarity, commonly not found in homes because appeal substantially notice of complied their accuracy generally required is not 25.2(b)(3)(B). are, however, with Rule They domestic use. com- monly legitimate used laboratories — Here, appellant only general filed no- Moreover, clandestine. knew officers appeal; tice of it cryptic contains no nota- experience baking from them soda is tion, phrase, or other language might used in the manufacture of “crack” co- reasonably be construed aas substantial I knowledge, coupled caine. believe this 25.2(b)(3). Thus, satisfaction of Rule observations, sufficiently with their corrob- jurisdiction derive our ap- here not from orated allegation the informant’s that he pellant’s appeal, notice of solely but from appellant making recog- had seen what he extrinsic documents. While extrinsic doc- Thus, I nized to be crack cocaine. may uments be used in interpret- as aids possessed find the officers cause. ing sloppy confusing language or in a no- *9 However, tice of I appeal, question may whether we the existence of not, itself, look to extrinsic police documents as the source cause does authorize Nevertheless, jurisdiction. of our to conduct a search or seizure. Probable Appeals just Court of for a Criminal authorized cause constitutes sufficient basis procedure only accompanied by such a v. a war Riley 825 search when McNairy exigent rant or circumstances. (Tex.Crim.
v. Here, police did not have a
App.1991).
warrant, sup but claimed search was circumstance, exigent name
ported Deputy Gordy. According to
ly, danger to Bowdoin, partner he and his had
Deputy Gordy would knock Deputy
decided front door to see what would appellant’s frustrated when
happen. plan was by appellant
Bowdoin was observed before
Gordy reach the front door. Howev could
er, physical danger Gordy nearly if very
have been the same Bowdoin Although drug
had not seen. dealers been armed, Gordy prepared was frequently
are appellant,
to confront whom he believed contraband, manufacturing presently home, of his own without a
at the door
warrant, Po happen. to see what would place physical themselves in
lice cannot
danger by design excep and then claim an requirement.
tion to the warrant observations, I respectfully
With these
concur. JAMES, Appellant,
Robert J. Texas, Appellee. STATE
No. 06-00-00031-CR. Texas, Appeals
Court
Texarkana. April 2001.
Submitted April 2001.
Decided