*1 is never harmful and inference instruction ground
dismiss seven.
Having grounds through overruled one seven, we affirm ground
six and dismissed appeals. the court of judgment
MEYERS, WOMACK, KEASLER,
JJ., dissented. MILLER, Appellant Jean
Christina
The STATE of Texas.
No. PD-0705-11. Appeals
Court of Criminal of Texas. 21,
Nov. 2012.
Rehearing Denied March
2011). appeals’s We reverse the court of judgment.
Appellant raises three issues in her Peti- Discretionary tion for Review. *3 1. The Fourth Appeals Court of erred holding that a warrantless search was justified under the emergency doctrine emergency when the doctrine was not a theory urged by the State at the sup- pression hearing and when there was no at the presented suppression hearing that officers in Appel- remained lant’s home to the pursuant emergency doctrine. justi-
2. Are law enforcement officers remaining person’s fied in in a residence without a warrant under the guise of conducting a “warrant check” after the unequivocally homeowner tells officers to leave the residence? law 3. When enforcement officers re- Kerrville, Maguire, M. Patrick for main in person’s a residence without a Jean Miller.
Christina guise conducting warrant under the of warrant check after the homeowner un- Wadsworth, A. Steven Asst. District equivocally tells officers to leave the res- Kerrville, McMinn, Atty., Lisa State’s C. idence, they committing are the offense Austin, Attorney, for State. Trespass which ren- Criminal der evidence seized after the intru- OPINION sion inadmissible? JOHNSON, J., opinion delivered the MEYERS, PRICE, in which Court Facts KEASLER, COCHRAN, ALCALÁ, 8, 2008, May Just after 12:30 a.m. on two JJ., joined. deputies responded sheriffs distur- deputies party, report-
Sheriffs
arrested
for bance call from a third
who
possession
yelling, screaming,
of a controlled substance. She
ed
sounds
suppress, alleging
objects being
appellant’s apart-
filed a motion to
thrown in
ment. The
heard similar sounds
illegally
deputies
the controlled substance was
ob-
tained as the result of a warrantless search when
arrived at
the scene. The
The trial
that occurred after the officers ar-
apartment.
judge
of her
held
evеnts
relief,
Dep-
were
on the camera in
hearing
and denied
rived
recorded
car
guilty pursuant
plea
uty
Yarborough’s parked police
then
to a
bar-
Jamie
plead
(state’s
3),
challenged
input
On
exhibit
with audio
gain.
appeal, appellant
body microphone, and a second record-
judge’s
sup-
trial
denial of her motion to
his
parked
Mitchell’s
press.
ing
The court of
affirmed the
Michael
State,
car,
body
police
input
with audio
from his
ruling of the trial court. Miller
(state’s
2).
(Tex.App.-San
microphone
want.”
(00:41:42) Deputy Yarborough asserted
(00:38:45) Deputy Yarborough asked if
report
people
had a
throwing
boyfriend
her
was at home.
She said
things at each other
hitting
on each
he was not.
other.4
(00:39:15)Appellant denied that
there
(00:41:46) Appellant again denied it:
had been
domestic violence. She ex-
of that happened.”
“None
plained
upset
that she was
and was throw-
(00:41:50)
ing things
Deputy Yarborough
because she
discovered that
again
women,
boyfriend
seeing
for the
pressed
boyfriend’s name because
beginning
1. All times mark the
of the cited
All
3.
record references are to the record from
Deputy
event and are taken from
Yarbor-
suppression hearing
on November
(State’s
3),
ough's DVD
plus
Exhibit
or minus
2008.
Deputy
three seconds.
DVD
Mitchell's
does
not show the time.
third-party
4. The
call
disturbance
mentioned
heard
noises
the informant. No visu-
2.
appellant’s
This seems to be a reference to
al information
asserted. R.R.
boyfriend.
(00:43:41)
“I
to confirm that with him. That’s
After
fourth
need
in-
leave,
talk to him.”
struction for the officers to
why I need to
struggle
sounds of a
are heard on the
(00:42:18)
after the
About four minutes
audio recording.
corresponds
This
to tes-
entered,
officers first
she told them to
timony at trial
waiting
while
inside
the second time: “I would like it
leave for
appellant’s apartment
for the results of the
3 n please
if
would leave.”
check, Trooper
warrant
Meyer
saw a
(00:42:22)
small,
marijuana
Either
Mitchell or
burned
cigarette and a
said, “Christie,
Trooper Meyer
piece
we’ll leave
of аluminum foil with burned residue
minute,
center,6
just
but we have some obli-
snatched the mari-
gations
go through.” They
juana cigarette
away
Meyer,
we have to
did
Yarborough
leave.
Meyer forcibly
not
retrieved
12-13,
it from her hand. R.R.
33-34.
(00:42:40) Deputy Yarborough called for
(00:44:14) The officers
appel-
arrested
check.
warrant
(Sound
lant.
closing)
handcuffs
(00:43:02)
said,
Appellant
“I didn’t au-
(00:44:24) She admitted to them that
you
my
thorize
to come in
house.”
*5
she had
marijuana
smoked
earlier in the
(00:43:05) Yarborough
responded
that week.
them
she had asked
to “come in and
(00:44:30) (Sounds of
opening
drawers
Miller,
check.”
borough). Deputy Yarborough
waiting
while
for a return on the warrant
awaiting
“We were
return for warrant
check.
and such. She
checks
had asked us to
Q Okay. Why
y’all
didn’t
leave? She
pending
leave and
return from the
y’all
Why
asked
four times to leave.
checks,
planning
go-
warrant
we were
y’all
couldn’t
walk outside and do the
ing
leaving
ahead and
the residence.”
warrant check outside?
R.R. 12. He also testified that he did not
injuries
see
visible
on appellant.
Id.
A Because if she would have come
cross-examinаtion,
On
he conceded
warrant,
back with a
that would
any probable
before
cause
arrest exist-
getting
have necessitated
back into
ed, appellant had asked the officers to
the house to arrest her with a war-
leave four times.8 He also testified that
procedure
rant.
It’s normal
for us
*6
the foil was burnt in the center
that:
to wait until the warrant
come
runs
it,
17;
any drugs
he did not see
on
R.R.
back before we leave.
the warrant check could have been con-
Q Okay.
you
you
Are
aware that
can
ducted outside of
apartment af-
house,
residence,
person’s
enter a
leave;
ter she asked them to
he
did
warrant,
if they have an arrest
with-
going
not think that she was
to leave her
out
type of search warrant?
apartment at that time.
warrant,
A Depending on
yes.
Deputy
why
The state asked
Q Okay.
they did not leave when
He
asked.
re-
A But not necеssarily every warrant.
sponded,
Q
had evidence that “a
“[ W]e
disturbance
So if she would have
arrest
in,
when we
although
there,
came
she was not
you
warrant out
wouldn’t
7. There is no indication as to the exact
which he indicated that he didn’t want to do a
amount,
destroy
field
sample.
test because it would
some information is available
Deputy
recording
from
Mitchell’s
and from
pressed
8. Defense counsel
for details about
hearing. Deputy
from
record
Yarbor-
requests
you nicely
to leave: "She asked
ough
testified that
“located two clear
times;
right? Deputy
three
is that
Yarbor-
plastic baggies containing a small amount of
ough replied:
nicely,
"I wouldn't call it
sir.”
powdery
white
substance. At that time it was
response
R.R.
16. His
is contradicted
enough
really
not
for us to
do a field test on it
car,
patrol
audio
DVD
in his
which
drug
to ascertain what kind of
it was....”
polite requests
refleсts three
for the officers to
by Deputy
This seems
be
corroborated
agreed
leave. Defense counsel and officer
recording
Mitchell's
of a radio conversation
request
that the fourth
used "more assertive”
(cid:127)
person, during
that he had with an unknown
words. Id.
situation,
emergency
warrant
to come in that no
need a search
such as de-
house,
evidence,
you?
wouldn’t
struction
existed at the time of
[sic]
requests
for them to leave.
four
want
break
certainly
A We
wouldn’t
R.R.
He agreed
26.-
there
no
in the door.
warrant,9
attempted
search
then
to qualify
you
Q Okay, but
wouldn’t need
by saying
his answer
didn’t know
warrant,
you?
search
whether there was a search warrant be-
warrant,
necessarily.
A A search
not
cause the warrant check had not come
Q Okay.
back.10
mean,
depends
type
A I
it
on the
warrant, to be honest.
Appeals’s Opinion
The Court of
Q Okay,
you’re
and so when
The issue
suppression
raised
you
house and she asks
to leave four
hearing
ability
was the
of appellant
times,
developed any
had not
/all
revoke her consent for the officers to enter
probable cause to enter that house
her residence. The court of
cor-
time;
right?
at that
is that
rectly
admittedly
noted that the
warrant-
Developed any
A
cause to en-
probable
per
less search was
se unreasonable unless
ter the house?
narrowly
it fell within “a few
defined ex-
Q Right, or to be at that location.
State,
ceptions.” Miller v.
345 S.W.3d
A We had evidence of disturbance
2011).
(Tex.App.-San
Antonio
It also
There was a lot of prop-
house.
correctly noted the standards of review:
mean,
erty
I
it
damage.
wasn’t
give
we
almost total deference to a trial
totally
complaint
without
court’s determination of the historical fаcts
substance.
record,
supported by
particu-
that are
Q Okay.
larly
findings
if the
of fact are
based
A But
far
as
cause to ar-
demeanor;
credibility and
the same level
anything,
rest her or
no.
application
deference is accorded
of law
R.R. 24-25.
facts, especially
findings
to the
when the
credibility; legal rulings
Mitchell also testified that he
are based on
are
*7
novo;
physical injuries
saw no
and viewed de
and we will
a trial
uphold
Q
typically
Okay,
somebody
highly
9. Warrant
war-
checks
reveal arrest
and if
intoxi-
jurisdictions,
cated,
rants from other
but do not con-
getting
you feel
comfortable
tain information about search warrants.
anything?
their consent to search
depend
A It would
on the case.
10. Defense counsel continued his cross-exam-
R.R. 27.
validity
questions
ination with
the
about
exchange
This
seems to be based on Mitch-
appellant’s consent to entеr.
ell’s side of a radio conversation he had with
Q
you
my
highly
And
state that
client was
person named
After her
an unidentified
Matt.
intoxicated;
right?
is that
arrest,
challenged
the
officers
Yes, sir, she was.
A
down,”
apartment "up and
to search her
Q
you
Okay,
actually
called the inves-
drugs.
saying
they
any
wouldn’t find
tigator
y’all
to determine and
were hav-
Matt,
Near the end of his conversation with
ing conversation about whether or not
said,
gonna
"You’re
have consent is-
not;
give
she could
consent to a search or
'cuz
custodial and her level of intoxi-
sues
right?
you
is that
Do
recall that on the
context,
ap-
cation.”
In
the consent
issue
video?
pears
appellant’s post-
to be connected to
talking
IA don’t recall that.
I recall
with
officers,
challenge to the
not to the
arrest
investigator,
the
but I don't remember the
entry
any
plain
in
exact
initial
or
evidence
view.
сonversation.
to
Proc.
theory
pressed pursuant
valid
of law
Tex.Code.Crim.
ruling on
court’s
appeals
Id. at 622.
The court of
over-
to the case.
art. 38.28.11
applicable
that is
issue, finding
opinion
that the
ruled that
doctrine, the court
Citing
emergency
the
in
Supreme
States
Court Geor-
United
con-
that the officers had
appeals
found
103,
Randolph,
v.
126 S.Ct.
gia
U.S.
entered,
and, having
“ob-
sent to enter
(2006)
1515,
disposi-
were violence; long resident from domestic so adequate explanation have an did not good have reason to believe such boyfriend’s Miller аbout her exists, silly sug- a threat it would be Thus, at the moment Mil- whereabouts. gest police that the would commit a tort consent, ler revoked her the officers had by entering, say give complaining suspect reason to that Miller and her opportunity belongs tenant the to collect in an environment. children were unsafe get safely, out or to determine The officers did not know whether (or violence) violence threat of whether present hiding in boyfriend was still (or just or is about to soon has occurred apartment, or whether he had left will) occur, spouse however much a apartment, might return once (And objected. other co-tenant since apartment. the officers left the There- in police lawfully would then be fore, consent, before Miller revoked premises, question there is no gained the officers had information plain could seize view оr allowed them to remain at the residence supported by any further action take emergency exception under the doctrine cause.) consequent probable Thus, to the Fourth Amendment. under Georgia Id. at quoting Randolph. doctrine, emergency lawfully Miller’s residence when Analysis Trooper Meyer drug paraphernalia saw view. plain noted, appeals As the court of we (internal omitted). Id. citations give almost total deference to a trial court’s determination of the historical facts
Appellant’s second issue court of record, supported by particu that are by remaining asserted after leave, larly findings if the of fact are based on requests her four for them to credibility and demeanor. Amador v. officers committed the offense of criminal *8 therefore, State, 666, 221 trespass any (Tex.Crim.App. evidence S.W.3d 673 2007). in samе level request give seized after her was obtained We the of defer violation of law in trial sup- reviewing application state and must be ence a court’s used, exception 11. "Article 38.23. Evidence not to be if the evidence was obtained exists (a) by No evidence an obtained officer or by acting good law-enforcement officers any provisions in violation of of by a warrant a neutral faith reliance on issued Texas, the the Constitution or laws of State of magistrate based on cause. In this or of the Constitution or laws of the United case, parties agree entry the the America, States of shall be admitted in evi- warrant, excep- search were without thus the against any dence the on the accused trial of apply tion does not here. (b) provides criminal Section case.”
263
trial
questions
findings
to the facts or to mixed
of
court’s factual
when
are
of law
fact,
record,
findings
supported by
when the
the
we
especially
law and
conclude that
the record does not
credibility
supported
support
are based on
and are
the trial
finding....”)
court’s
Id.
the trial court
by the record.
When
fact,
of
we consid
explicit findings
makes
‘When there are factual disputes
er,
light
most favorable to the trial
regarding testimony or the contents of a
ruling,
supports
court’s
whether the record
videotape, the trial court’s findings of his
204
findings.
Kelly,
those
State
S.W.3d torical fact are afforded almost total defer
808,
(Tex.Crim.App.2006).
818
We review
conclusive,
ence. But when evidence is
legal rulings de novo unless the trial
such
signed agreed
as written and
stipu
findings
supported by
court’s
that are
lation of
‘indisputable
evidence or
visual
dispositive.
recurring
record are
Id. The
evidence,’
then
in
findings
trial-court
in each оf these
requirement
standards
consistent with that conclusive evidence
review is that deference is due
if the may
disregarded
unsupported
be
as
by the
rulings
supported by
trial court’s
are
record, even when that record is viewed in
record.
light
most favorable to the trial court’s
State,
ruling.” Tucker v.
369 S.W.3d at
ruling
sup
If a trial court’s
J.,
(Alcalá,
187 (Tex.Crim.App.2012)
con
record,
ported by the
we will affirm that
State,
curring); see also Carmouche v.
10
theory
if
ruling
there is
valid
of law
323,
S.W.3d
332 (Tex.Crim.App.2000)
if
supports
ruling,
even
that theo
(“[T]he nature
presented
evidence
ry
presented
was not
trial court.
the videotape
pivot
does not
‘on an evalua
Steelman,
102,
State v.
93 S.W.3d
107
Rather,
credibility
tion of
and demeanor.’
(Tex.Crim.App.2002.).
reviewing
“In
a trial
videotape
presents indisputable visual
ruling
suppress,
court’s
on motion to
contradicting
portions
essential
appellate
great
courts must affоrd
defer
testimony.
In these narrow
[the officer’s]
findings
ence to the trial court’s
of histori
circumstances, we cannot blind ourselves
long
cal facts
as the record supports
videotape
to the
evidence simply because
State,
findings.”
those
Tucker v.
369
itself,
testimony may, by
[the officer’s]-
be
(cit
179,
(Tex.Crim.App.2012)
S.W.3d
184
support
Appeals’
read to
hold
Court
State,
85,
ing Guzman v.
955 S.W.2d
ing.”).
“However, in
(Tex.Crim.App.1997);
order
sup
instances,
to determine whether the evidence
In a number of
the trial
ports
implicit finding,
the trial court’s
findings
court’s seven
of fact and four con
law,
court of
must take all of the evi
wholly
part,
clusions of
or in
are not
video,
dence,
account.”);
including the
into
supported by the record as reflected
Groves,
103,
(Tex.
State v.
837 S.W.2d
recordings
two
of the events and the testi
(“Though
mony
we defer to a
of the
In
Crim.App.1992)
officers.12
its second find-
12. The Tucker Court noted that a "video was
during
May
the events of
2008. At
admitted into evidence but
not viewed
hearing
sup-
end
the motion to
court,
the trial
and was therefore not used as
stated, "Okay,
press, the trial court
so we will
determinations,
any findings,
the basis for
reschedule this for December 18th at 8:30
*9
rulings,” but that deference remains the cor-
cases,
you
and if
a.m.
have
I'll look at the
rect standard of review. The record here is
recordings.” The record before this Court
whether,
making
unclear as to
before
its find-
does not reveal if the trial court ever viewed
law,
ings of fact and conclusions of
the trial
the DVDs that were admitted
into
court viewed the two DVDsthat contained the
part
appellate
and are
of the
record.
recordings
by
Yarborough
Deputies
made
and
contradictorily,
court states that the officers
elusion. But somewhat
he
trial
ing, the
disarray,
in
apartment
appears
to be
also
to have assumed that
“the
found
perpetrator
appellant
an altercation.”13 “Alter-
had left
that
consistent with
and
“a
or angry might
perpetrator
defined as
heated
think that the
had re-
cation” is
controversy.”
noisy argument or
turned.15
dispute;
Encyclopedic Unabridged Dic-
Webster’s
assumptions
His
colored his behavior
English Language 43
tionary of
throughout
appellant.
his interactions with
1989). We note that
(Gramercy Books
Appellant repeatedly said that she was
require participation by a
both definitions
boyfriend
her
upset
cheating
because
was
persons.
two
minimum of
her,
there
in
nothing
but
the record
disputes
apartment
No one
that the
that reveals how or when she
that
found
disarray,”
by
“in
trial court
from him
grape-
but the
and the
out—in
or
vine, e-mail,
have concluded that the
appear
telephone.
officers
She also told
have
from domestic
that
disarray
boyfriend
must
resulted
was not
violence,
if,
even
as the officers testified
there
that
not
she did
know where he
found, appellant
clearly
had
and the trial court
no was. The officers
believed her as
absence,
injuries
any physical
boyfriend’s
visible
and denied
to the
as
made
boyfriend.14
her
attempt
contact with
record
no
to search the
for
Yet,
ap-
anyone
long
reflects
when he first arrived at
him or
else.
after it had
door,
pellant’s
Deputy Yarborough
ap-
become clear that no domestic violence had
as a
proaching
evening, Deputy Yarborough
situation
domestic as-
occurred that
sault,
decided,
already seemingly having
continued to treat
the situation as a do-
assault,
with appellant,
pressing
before
contact
that the mestic
for
whereabouts,
third-party report
yelling, screaming,
boyfriеnd’s name and
even
objects being
in
physical
sounds
thrown
after several denials of
contact or
appellant’s apartment were the
knowledge
boyfriend’s
sounds of
location and
assault, a
physical
domestic
not unreasonable con- with no evidence of
harm.16
heard,
finding
Yarborough
13. This
also states that
ini-
approached ap-
as he
enter,
tially gave
door,
consent
pellant’s
she was
the same sounds that the third
appear
injured,
intoxicated
did
not
to be
party
reported.
Trooper Mey-
He said to
and that there were
er,
knives
scissors
think
"[You]
she thinks it’s him?” The
kitchen
recordings
single,
reflect vocalizations
female voice.
brief,
impliedly
14. In its
the state
concedes
very beginning
that this bias existed from the
insist,
16. He continued to
"I need to confirm
appellant.
officers' encounter with
why
that with him. That’s
I need to talk to
"Deputy Yarborough
Apрellant
then told
him.”
he was there because of a disturbance and
assumption
of domestic violence con-
possibly family violence at the residence....
with,
appeals
among
tinued
the court of
residence,
Upon entering
Yarbor-
things,
finding
its
that the officers "saw
ough
objects
saw that
were thrown around
about, indicating
items scattered
an
alter-
the residence such that some sort of alterca-
Thus,
cation had occurred....
before Miller
place
tion
took
the residence.... Both
consent,
revoked her
the officers had ob-
Deputies Yarborough and Mitchell testified
indicating
served evidence
violent assault....
type
both believed that some
Further, the
... did not
have an ade-
physical altercation occurred in the resi-
quate explanation
boy-
Deputies Yarborough
from Miller about her
dence.... Both
they began
friend’s whereabouts.”
result of a violent (internal citations Miller at 622 required to know where activities.” appellant should be why omitted). boyfriend might such errant be or knowledge an indication that her lack of place.” home is an "unsafe 18. Id. doctrine, emergency an officer 17."Under 19. Id. immediate, may if he has an enter a residence protect he must act to reasonable belief that support not some Again, the record does injury. If preserve avoid serious life or findings of fact and the trial court’s may or all of applies, emergency an officer doctrine law, ger- are not and others plain view conclusions of that is in the seize *11 266 her consent and her of lant’s revocation of and Revocation Consent
Consent continuing their repeated objections to and third second Appellant’s they for the results? presence while waited the officers’ assertions grounds question appel remained in they appropriately that finding The trial court’s fourth requests after four that apartment lant’s correctly that the contraband was states they yet had not re because they depart plain sight, finding but such a found It of the warrant check. results ceived the showing two-pronged does not address the appellant consented to that undisputed is plain-view doc required seizure officers, it entry by the but is initial “(1) that law enforcement officials trine: may that suсh consent be undisputed also vantage plain see an item in view at a “If an officer is invit or revoked. limited be, they right where have the to and point come into a house for a permitted ed or (2) the item immediately apparent it is that (such as to look for a particular purpose is, constitutes evidence—that there seized object), scope or person particular the item cause to associate normally enter includes con the consent to State, activity.” with criminal Martinez v. in which the sent to search those areas 677, (Tex.Crim.App.2000). 17 685 S.W.3d reasonably be person object or Meyer that he immedi Trooper testified But the who consents to found. ately recognized drug parapher the foil as limit or revoke entry may specifically nalia, recognition, but the issue here is not State, 310 his consent.” Valtierra whether, aftеr fourth re (Tex.Crim.App.2010). S.W.3d leave, he was quest for the officers to at conceding may consent be re While that right where vantage point he had to be. voked, the state does not address the issue revocation of her appellant’s repeated findings fact con- trial court’s and enter and its relevance to the consent to pres- clusions of law state that the officers’ issue before this Court. apartment ence in the at the time illegal permissible found the substance was law, the trial
In its third conclusion part investigation of their for domestic officers were court stated that the entitled support violence. But the record does not warrant check of and make a Although undisputed this. it is that to a reasonable amount of time to obtain entry apartment officers’ initial into the finding However correct results. be, part investigation of thеir for domestic it the critical was may does not address violence, undisputed here: the officers “entitled” to it is also issue Were abuse, spite appel- ap- remain in the found no evidence of domestic maybe weapon something.” mane to the issues raised this Court. Yet there is correctly appellant’s prox- first conclusion states trial court’s no evidence in the record of appel- had consent to enter officers imity kitchen or whether that area was apartment, finding per- lant’s but the second appellant's "lunge within area” such that she that, given petuates assumption "noises against could obtain such items and use them activity physical consistent with violent [and] the officers. surroundings activity,” consistent with violent finding The sixth states that ad- activity the violent was domestic violence. smoking marijuana day, mitted earlier in the recordings yet сlearly reveal that she ad- finding The trial court’s second states smoking marijuana only true, mitted earlier that there were as is often knives scissors month, week twice in the and all last apartment, in the kitchen area of the drug place discussion about use took after Trooper Meyer he testified that moved into request the fourth that the leave protection both area for officer because he go get recovery "felt the kitchen and of the burnt foil. she could towards *12 times, and pellant damaged told them to leave four cated woman who had her own home, in only they property, reason that did not leave was her own a fit of temper.22 they waiting Appellant because for a return on told the officers at beginning of their appellant. investigation the warrant check on The offi- that only she was the adult refusing present for to lеave be- explanation cers’ re- was, peatedly told them that there had been they fore received warrant check no night, domestic violence that angry essentially, always “But we do it that outburst provoked by learning of her boy- way.”21 justification This is insufficient perfidy. undisputed friend’s It is that offi- presence, for their continued as is the cers signs injury observed no to appel- argument remaining appel- state’s lant and that they attempt did not to verify apartment appropriate lant’s because by her statements for themselves search- very the entire encounter was short —un- ing apartment for other by adults or der six minutes. checking to see that her children were safe suggests The state’s brief that the war- actions, inaction, asleep. By their or rant check part of the officers’ domes- investiga- indicated that their investigation; they tic violence wаnted to possible tion of domestic violence was com- determine whether protective there was a plete. Because their investigation was evidence, however, order in No ex- place. complete, only legal basis for their plains why a check on appel- warrant presence appellant’s continued home lant provide information about a consent, rested on her which she revoked and, protective testimony, order in their four separate on occasions. checking, the officers never mentioned or dispute Neither did the officers check, wanting protective to for a order. they could have waited for the warrant argument appel- state’s entire that, check outside the grounds lant’s second and third is based on the check revealed an outstanding war- statutory obligations “the of law enforce- rant, legally could have reen- investigate ment officers to domestic vio- tered appellant’s apartment, even without lence and protect Certainly, victims.” law- her consent. The state asserts that investigate enforcement officers should al- instant analogous circumstances are legations protect of domestic violence and stops traffic and should be treated the victims, investigation but if such an reveals way. same “As with detentions of motor- that domestic violence was not involved violations, stopped ists who are for traffic and that there victims protect, are no peace officers should be allowed to detain longer officers no have a sufficient legal dispatch individuals to await on basic re- remaining basis for in a residence over the turns, checks driver’s license and warrаnt objections of the resident. returns.” State’s brief at 12. This analo- that, upon The officers testified the ini- gy ignores the fact unlike a tial, violation, entry stopped consensual into for a traffic apartment, they upset found an and intoxi- was not “detained” for violation of procedure actually angry 21. "It's normal for us to wait until said was that she was with her the warrant runs come back before we leave.” boyfriend cheating on her. Like an for alter- R.R. 24. cation, dispute requires communications in- volving persons. at two There no least state asserts that told the boyfriend evidence that her even knew that dispute boy- had a with her that "she infidelity. she knew about his friend.” brief at State’s 14-15. What she officers, crimi- and, urges art. 38.23. The state that the as conceded
law Nor, her. nal-trespass exception cause to detain statute contains an had no stops, on traffic warrаnt checks during for law-enforcement officers. Tex. Penal 30.05(e)(3). However, remain in the § enter and portion does the officer Code importantly, Even more subject’s vehicle. during of section 30.05 was enacted acknowledge that the analogy fails session, legislative and it therefore *13 vastly in one’s home privacy of expectation cannot be asserted as a defense for events corresponding expectation outweighs the that occurred in 2008. Because of our in one’s vehicle while the vehicle privacy of disposition appellant’s of first and second public place. is in a issue, grounds, we need not address that improvidently grant- and we dismiss it as the factual conclude that trial court’s We ed. police presence the the finding of a rea-
appellant’s apartment part was Conclusion investigation is sonаble domestic-violence respect with to the officers’ initial accurate judgment We reverse the of the court of entry, support legal it does not con- appéals and remand this cause to the trial complet- the officers were still clusion that proceedings court for further consistent investigation of domestic violence ing their with opinion. this they appellant’s remained in at the time waiting for a return on apartment while WOMACK, J., KELLER, concurred. at the time that the the warrant check and P.J., dissenting opinion filed a in which point, substance was found. At that illegal HERVEY, J., joined. them the' had told four times to officers, leave, by their admis- own KELLER, P.J., dissenting filed a sion, planning were to leave the HERVEY, J., opinion joined. in which of the warrant check after the results deputies report The sheriffs received a came because their domestic-violence back yеlling, screaming, and sounds of investigation completed. had been objects being apartment. thrown in an We hold that had re door, they approached When the front enter, voked her consent to noises, music, they crashing heard loud had no cause to arrest her until person yelling. person and a The who iteration of her after the fourth revocation extremely answered the door was dis- consent, that, by remaining and traught highly depm and intoxicated. The apartment, the officers were not at a van person ties informed this of the distur- tage point they right where had the to be. bance in. report, were invited granted appel The trial court should have person upset dating The because a suppress, lant’s motion to and the court of companion seeing people. appeals erred when it affirmed the trial asked, person Whеn said that the dat- court’s denial of that motion. We sustain ing companion was not home and refused ground. second to divulge dating companion’s name. deputies in her were informed that children Appellant asserts third issue by remaining repeatedly sleeping after she were in another room. After asked leave, them deputies to the officers committed the obtained the current adult occu- therefore, identification, trespass, pant’s offense of criminal own were told drug possession deputies upon staying was ob- leave. The insisted tained in long enough violation of Tex.Code Crim. Proc. to conduct warrant check. views the evidence in the The Court who had answered If the man, wrong light. we have ex- The trial court found that had been door leave? Or would physical surroundings the noises and pected deputies deputies to first expected activity with violent and an al- we have consistent abused woman was findings whether an Those were entitled to ascertain tercation. it room and whether in another concludes that present deference.1 Court with the leave the children was safe to erro- deputies both the trial court and the highly agitated individual intoxicated and neously only possible inferred that “the encountered. I deputies domestic violence” and that activity was depu- reasonable for the think it would be plus disarray woman results upset “an investigate further stay ties to disagree. violence.” I domestic aspect One make sense of situation. testimony or in the trial Nothing *14 check for could be to investigation findings compels a belief that the court’s have con- deputies could warrants. thought and the trial court deputies residence, sweep protective ducted only explanation violence was the domestic even less warrants was an checking for deputies the information that the had for investigation aspect intrusive enough them. It was for trial before keep eye person on the enabled them to that the deputies to believe court person’s the door—for that who answered have deputies might faced situation protection of others— protection or for of domestic violence.2 Not been the result attempted to assess deputies while the defen- puts does the Court its own violence situation was whether a domestic on the evidence and gloss dant-favored occurring or imminent. findings, but it miscon- the trial court’s quantum what of information law- strues have been a domestic Appellant might agents possess. need to - enforcement covering for her abuser. violence victim not need to be certain that deputies did abuser cover- could have been the Or she violence had occurred before domestic perpetrators for herself. While most ing check; it was conducting the warrant men, are women of domestic violence was a rea- enough that domestic violence A perpetrators. hus- sometimes are possibility. sonable victim of boyfriend can be the band or chil- girlfriend, wife or abuse his comments, respectfully I dis- these With deputies if the can be victims. Even dren sent. the woman who an- had determined that danger pri- the door was not swered — yelling who was
marily because it was she mean throwing objects does not —that job They must also ascer-
their is done. to someone whether she is a threat
tain have—and they would
else. Just as if have—done
should were a man.
encountered 85, State, (Tex. suspect understood believe that the 89 cer would 1. 955 S.W.2d Guzman inquiry whether a rea- Crim.App.1997). question. The that the police officer would believe sonable State, S.W.3d Hamal v. See lying.”). suspect might be ("Nor even (Tex.Crim.App.2012) is the issue police hypothetical reasonable offi- whether a