Woods v. State
933 S.W.2d 719
Tex. App.
1996
Check Treatment

*1 719 against but his only against the State discretion self not of a severance is within the sound fur- His defense was State, codefendant as well. court. v. 622 S.W.2d of the trial Garza by fact that he was not ther hindered 85, (Tex.Crim.App.1980); Robertson v. 91 significant impeach- permitted to introduce State, 805, (Tex.App.—Hous 808 632 S.W.2d joint of the trial. ment evidence as a result 1982, of pet.). no No abuse [14th Dist.] ton found the movant discretion will be where demonstrate differ that would Proof satisfy heavy has failed to burden culpability among defendants ing degrees of State, showing prejudice. clear Loveless v. separate trials. See enough to warrant is not 940, (Tex.App.—Texarkana 945 129, State, v. Mahavier 133 State, 1990, 'd); see v. 818 ref Alvarado Instead, 1982, pet.). no (Tex.App.—SanAntonio 100, (Tex.App.—San 102 Antonio S.W.2d “mutual positions must be the eodefendants’ 1991, pet.). no If the motion to sever is not jury in ly in the sense that “the exclusive” evidence, supported by its denial is not an must to believe the core of one defense order State, of discretion. Ransonette v. 550 abuse necessarily the core of the other.” disbelieve 36, 41 (Tex.Crim.App.1976). State, S.W.2d 2 740 455 n. v. S.W.2d Goode (quoting (Tex.Crim.App.1987) United States timely Appellant submitted a motion (5th Cir.1984) Lee, 1124, 1126 v. 744 F.2d grounds that the incon for severance on the (Tex. v. 822 DeGrate S.W.2d alleged defenses him and his code- sistent case, if the Crim.App.1975)). present In the prejudice his case. fendant would create jury Lemos’s contention were to believe motion, hearing appellant’s appel At the triggerman, it would neces appellant was the attorney lant’s advised the court that his sarily appellant’s assertion have to disbelieve theory defensive would revolve around an present took that he was not when the crime arguing ap alibi and that he would be such, joint trial place. we find that the As not at was the scene when the crime prejudice appellant’s de resulted clear Ramos, place. took Jose Luis Lemos’ attor potential Having evidence of such fense. ney, placed under oath and stated to the it, its prejudice before the trial court abused that, antagonistic defense “[t]he will denying appellant’s discretion in motion expect my in that I client Lemos to take the point of error is Appellant’s third severance. testify expect [appel stand and I him to sustained. aggressor in fact lant] was and the one appellant’s Because we have sustained gun with that and was in fact there.” error, necessary for us third it is not defenses, regard to the inconsistent Ramos appellant’s remaining point of er- to address that, say antag went on to is about as “[t]hat judgment trial court is re- ror. The you’re going get you onistic as know for a and the case is remanded new versed prejudicial you’re going get.” that is as as opinion. trial consistent with this rely upon gen An accused cannot allegation in

eral his severance motion that a conflicting codefendant has a or inconsistent defense, apprise must trial court of he exactly will what the inconsistent defenses Calverley be. See S.W.2d WOODS, Waggoner Appellant, Candace (Tex.CrimApp.1974), overruled on other grounds, Moosavi Texas, Appellee. The STATE (Tex.CrimApp.1986); Robertson v. No. 03-95-00491-CR. at 807-08. find that has met this burden. The statements both Texas, Appeals Court attorneys hearing at the were suf severance Austin. prejudice ficient to demonstrate that would Oct. if tried result and Lemos were fact, subsequent proceed together. prediction.

ings proved to mirror Ramos’ is, appellant him- That was forced defend

721 *2 Austin, appellant. for Hampton,

Keith S. Earle, Attorney, Matthew District Ronald Attorney, Aus- Devlin, District B. Assistant tin, appellee. *3 POWERS, and BA. JONES

Before SMITH, JJ.

JONES, Justice. Septem- judgment dated opinion and

Our 18,1996 withdrawn. are ber carrying a fire- indicted for Appellant was Ann. Tex. Penal Code arm in a court. 46.03(a)(3) (West After her Supp.1996). § suppress evidence was pretrial motion to overruled, guilty appellant pleaded to the weap- unlawfully carrying a lesser offense 46.02(a) (West § Code Ann. on. Tex. Penal 1994). adjudged appellant The district and, plea bargain, as- guilty pursuant to a for one at incarceration punishment sessed sentence, and year, suspended imposition of community supervision.1 placed appellant on appeal the preserved right to Appellant suppress. to ruling on the motion court’s 40(b)(1). Tex.R.App. P. will reverse.

Background day question, appellant entered

On County through the Courthouse the Travis entrance, east, main, did so passing as she entering a sign stating, “You are a baggage are persons All screening area. the courthouse subject Inside search.” entrance, appellant feet from the and a few detector and a metal was confronted machines Operating these machine. McCullen, private Kevin County by the Travis Sher- guard employed Richardson, a Billy Department, and iffs supervisor. and McCullen’s deputy sheriff had a “real McCullen testified look, she saw surprised a scared look” when left Appellant “turned to her machines. go to- tried to started to enter —and Five court- which is the JP Room wards apparently room,” entrance to which sign security devices but bore outside judgment not court, does acknowledged The court's Woods Mattox. 1. In the district person change. named in the indictment name that she was the reflect the Waggoner Candace that her name was but stated advising persons get that all must screened A. We told her how to to the fifth entering. floor, said, “No, before Then “she turned around I and at go first,” and started to back out the doors....” go my need to out to back car something and this is that we have stopped appellant MeCullen before she a lot other seen times. That’s when budding if could leave the and asked he could somebody usually know we has some- help trying her. told him that She thing in their get to the fifth floor. MeCullen informed pass she would have to approximately testified that on fif- MeCullen metal occasions, detectors reach the ty expression he had seen a similar Appellant elevators. told MeCullen that she discovering on the face of a before go According first had back her car. to weapon drugs. acknowledged He MeCullen, appellant seemed “real nervous.” cross-examination, however, that he had seen *4 MeCullen, working job who had been at this expression persons the same who did not years, suspicious for over two became and prove weapon to have a or contraband. appellant told that she could not leave the Richardson also testified at the second building running purse without first hearing. appellant He stated was through X-ray Appellant the device. disre- because, stopped wanted to run [the ‘We garded instruction and the MeCullen’s exited purse] through x-ray if the machine and see stopped courthouse. MeCullen followed and weapon there or in was contraband it.” testified, “Basically her outside. MeCullen I going told her that we were still to need to Discussion purse through, run her and at it this undisputed It is was really wasn’t —she didn’t have a choice in the stopped seized when she was and made to time, By matter.” this had MeCullen been the reenter courthouse. See v. California joined by Appellant agreed Richardson. D., 621, 626, 1547, Hodari 499 U.S. S.Ct. officers, reenter the courthouse with the tell- 1550-51, (1991) (person 113 L.Ed.2d 690 is ing going MeCullen that “it was to set off the purpose seized for of Fourth Amendment appellant’s purse metal detector.” When yields when she to officer’s show of authori device, passed through X-ray the the officers ty); v. Johnson image pistol. could see the of a Richardson (Tex.Crim.App.1995) (adopting Hodari D. for opened purse the and seized a .22 loaded 9). I, purposes of article section It is also pistol. caliber undisputed purse passing appellant’s later, hearing At a second one month X-ray a search. device was See appellant’s MeCullen testified that actions Jacobsen, 109, 113, United States 466 U.S. “good led him to believe that there was a (1984) 1652, 1656, 80 L.Ed.2d 85 possibility” she was armed. Asked to de- (“search” expecta occurs when reasonable actions, these scribe MeCullen answered: infringed); privacy tion of is Cullen v. in, got A. It was that she when came (Tex.App. —Austin very surprised expres- and seared ref'd) (same); Wayne see 4 R. La- face, go sion on her and then tried to 10.6(e) (4th Seizure, Fave, § ed. Search and around the like she was en- 1996) (hereafter “LaFave”). cited as In her tering through the JP Five door. complained suppress, appellant motion to Q. what And then did she do? that she was seized and searched violation A. turned Then she around started of the constitutions Texas and the United to leave. we asked her where Const, Const, When IV; States. U.S. amend. Tex. go, she needed she said she needed I, 9;§ Proe. Ann. art. art. Tex.Code Crim. go to the fifth floor. 38.23(a) (West Supp.1996).2 The district the motion and made written overruled exception is broader than that of the Fourth Amendment. 2. With an that is not relevant to our disposition appeal, appellant of this does not 579 n. 1 See Morehead argue guarantee against 1991). unreasonable that the (Tex.Crim.App. I, searches and seizures found in article section 9 screening airport held that findings and The court conclud- It has been conclusions. appellant’s lawfully- persons posses- was search of the and immediate ed pursuant persons boarding aircraft is reason- searched a valid administrative sions and, only if alter- the Fourth Amendment scheme to secure courthouse able under right to natively, lawfully prospective detained boarder retains the each a rea- than submit to the search. and searched because the officers had leave rather Davis, suspicion that sonable was armed. 482 F.2d This is because weapons from findings prevent explosives review of the and conclu- Our court’s need sions, justify legal, being both factual and is limited to carried aboard aircraft cannot determining person not to whether the court abused its search of who elects reasoning 911-12. discretion. DuBose board. Id. at The same screening en- persons to a applies 496-97 search tering public building. The need to ex- 1. Administrative search. justifies weapons administra- clude justify compelled cannot tive search The use metal detectors and of a not to enter search who elects persons to screen immedi machines budding. possessions boarding ate commercial those entering government buildings aircraft screening The district court found that the upheld as a has been form of administrative entering County persons the Travis Court- *5 10.7(a) LaFave, 10.6(c), §§ 4 search. See very strong governmental house serves “a cases). (discussing point In first of er her interest, preserving peace is and which ror, however, appellant contends the district sanctity citizens can of courthouse where by and upholding court erred her detention important come and take care of business Appellant urges, on this search basis. being shot unfettered and unworried about things, among other the actions of by peo- armed or intimidated harassed 3 and the law McCullen Richardson exceeded Preserving sanctity of ple.” peace and scope security screening. of a ful limited appel- justify pursuing cannot the courthouse concedes point. The State this her, building, stopping left the lant after she compelling her to submit to and return and Because administrative searches purse. of her actions an The officers’ probable are conducted without warrant screening process into a transformed the cause, time, they carefully must be limited general search for evidence of crime. place, scope. Burger, and 482 New York v. fact, and Richardson testified McCullen 691, 703, 2636, 2644, 107 96 U.S. S.Ct. looking for as a they drugs as well (1987); L.Ed.2d 601 v. 836 Santikos agree weapon. appellant and the with 633 To S.W.2d actions, that the officers’ however well- State reasonableness, test of meet the an adminis intentioned, constitutionally upheld cannot be screening search limited in trative must be as rubric, search and under administrative its intrusiveness as is with satis consistent district its discre- hold that the court abused justi faction of the need that administrative by doing so. one is tion Point of error Davis, fies it. United States v. 482 F.2d sustained. (9th Cir.1973). check for 910 When a limited weapons general becomes a for evi search rights. 2. of Waiver crime, longer justified it can dence no be satisfy suppression hearing, as an administrative must At the the State ar- search but probable require and Fourth gued the warrant cause her waived rights Fourth a search ments of the Amendment. United Amendment consented to $124,570 Currency, belongings F.2d she en- 873 of her when States U.S. (9th Davis, 1240, 1247 Cir.1989); Although F.2d at the district 482 tered the courthouse. rely theory in did not waiver 911-12. this er, finding, ap- Appellant complains purpose which that the district court's that neither self-evident, security system nor the need for courthouse pears was accurate. assume, by is shown the record. We will howev- 724 suppress, appellant clothing person to

overruling the motion to of the outer discov theory 26-27, 30-31, challenges point weapons. Terry, this in her second er 392 U.S. at reply, again 1882-83, 1884-85; error. the State concedes Spillman 88 at S.Ct. justified on the search cannot be this (Tex.App. 811 —Austin ref'd). basis. 1992, pet. weapons may This frisk appropriate be extended to a under the person’s A consent to a warrantless Worthey circumstances. voluntary to search must be be constitution 435, 439 (Tex.Crim.App.1991). Bustamonte, ally valid. Schneckloth v. 218, 222, 2041, 2045, error, U.S. S.Ct. 36 L.Ed.2d point In her third con (1973); DuBose, Ap tends that McCullen was not authorized to voluntarily pellant did not submit to the investigation detain her for because he was a If is to search her the search be private citizen and not a officer. Gar theory, upheld on a it must held waiver (Tex.App.— ner v. irrevocably impliedly waived her 1989), ref'd, Fort Worth 785 S.W.2d 158 rights Fourth Amendment when she walked argues (Tex.Crim.App.1990). Appellant also past warning sign and entered the court Constitution, an officer under the Texas house. We decline to so hold. only may Terry stop make a when the sus pected danger crime involves imminent upheld security Some courts have searches disposition Because of our violence. implied theory, on an not without consent but four, of error we do not reach these conten LaFave, 10.6(g). § criticism. 4 Under this purposes opinion, tions. For the of this we theory, given for a the consent acting agent assume that McCullen was as search cannot exceed the rationale of the of the State and that his actions were there $124,570 Currency, search. U.S. 873 F.2d at governed by fore the Fourth Amendment impliedly If waived I, Coolidge and article section 9. v. New rights entering Fourth Amendment 443, 487, Hampshire, 403 U.S. courthouse, only she did so to the extent *6 2048-49, (1971); 29 L.Ed.2d 564 State necessary purpose to of the effect the lawful Comeaux, 46, (Tex.Crim.App. 49 818 S.W.2d administrative scheme. We have 1991). appellant’s purse search held Thus, purpose. exceeded that the search error, By ap her fourth alleged scope was not within the of the waiv not contends that McCullen did have rights. er of Point of error two is sustained. constitutionally adequate a for detain basis ing justify investigatory her. To an deten Investigative 3. detention. tion, specific an officer must have articulable The district court’s alternative ba which, light experi of the officer’s facts overruling appellant’s sup for motion to sis knowledge, together personal ence and with press giving was that the incident rise to the facts, reasonably inferences from those other discovery pistol “stop a lawful was warrant the intrusion on the freedom of the Ohio, 1, Terry frisk” under 392 U.S. 88 State, person 658 detained. Johnson (1968). 1868,20 L.Ed.2d 889 An officer S.Ct. 623, (Tex.Crim.App.1983); 626 Gios may investigatory pur person detain a as 831 S.W.2d at 889. When the facts are si (a if, poses “Terry stop”) based on the totali activity consistent with innocent as with circumstances, ty of the the officer has activity, a based on those criminal detention objective particularized and basis for sus Johnson, facts is unlawful. 658 S.W.2d at pecting person detained of criminal activ 626; at 889. 831 S.W.2d Giossi Cortez, 411, ity. United States v. 449 U.S. The cites five factors that it contends State 417-18, 101 690, 694-95, 66 L.Ed.2d 621 S.Ct. gave suspicion to be- McCullen reasonable (1981); Giossi v. 831 S.W.2d appellant unlawfully carrying a lieve that was ref'd). If (Tex.App. —Austin weapon: give reason to be circumstances the officer surprised in a person Appellant detained is aimed and 1. “reacted lieve upon seeing the securi- dangerous, may conduct a limited search fearful manner he addition, to hold and seizures ty appellant able searches machines.” In appellant entitled to detain McCullen was “real nervous” when McCullen seemed merely did purse because she her and search spoke to her. not him to. want “surreptitiously attempted Appellant 2. conclusions, justice court- findings

to enter” the In its written Terry, Worthey, securi- and Hol passing room “without cited district court (Tex.Crim. ty.” laday v. supporting its conclusion App.1991), as “curiously informed MeCul- Appellant 3. Terry, lawfully detained. appellant get the 5th len that she needed to Terry and another watched police officer seemingly ignoring her obli- floor while corner for ten on a street man stand through security.” gation pass alter The two men would minutes. twelve would told McCullen she When along and walk nately the comer leave pass through de- have to route, pausing to into the win stare identical vices, “abruptly expressed They did this particular store. dow of the need to leave the courthouse.” twenty-four After each approximately times. McCullen asked When route, the men conferred completion of this inspect purse, her permission conference, they were At one the corner. “tersely out of the refused and walked Ter joined by quickly man who left. a third courthouse.” followed, joining ry companion soon and his respect to the first of these With away. The Su man a few blocks the third factors, per acknowledged that a McCullen this behavior preme Court concluded unexpectedly son who encountered the secu Terry investi stopping for further warranted rity might surprised. More machines gation. 392 U.S. at over, guilt necessarily it is not indicative of police Worthey, Antonio officers San that a is nervous or looks around at a.m. executing a warrant at 3:00 search surroundings. Montano v. be- stopped at the residence when a vehicle Ner got Worthy companion ing and a searched. by police vousness when confronted officer to the front out of the vehicle and walked guilt. as of innocence as of is indicative porch, they encountered two officers where (Tex. Daniels v. them to themselves and told who identified Crim.App.1986). they Worthy were. keep their hands where There is no evidence that at- car- immediately clutched *7 justice tempted to enter the purse and her rying turned so that the and surreptitiously support courtroom or to away officers. One right hand were from the implied appellant assertion purse State’s from her and took the of the officers being sought the fifth without to reach floor weapons. The Court of Criminal felt it for why explain it screened. The State does not the facts and circum- Appeals held that appellant for to answer McCul- purse. was “curious” this “frisk” of the stances warranted going. her len when he asked where Holladay airport drug search ease. support was an also find no evidence

We police officers with extensive Houston by the in its fourth and Two claim made State Holla- “airport detail” saw and on the appellant experience fifth was “terse” factors man, event, flight from a day deplane, another any ap- with “abrupt” in her manner. In Miami, drug city. The a source every away from from known right to walk had ap- lounge and area unless two men scanned and return to her car McCullen of the officers peared to be nervous. One adequate grounds to detain McCullen had conversation, during 491, 497-98, engaged Holladay in Royer, 460 U.S. her. Florida arriving flight a from 1323-24, 229 which he lied about 75 L.Ed.2d traveling with the other about (1983); 302 Miami and Gurrola pro- he Holladay was nervous when the man. It would annul re- license at the officer’s his driver’s guarantee against unreason- duced constitutional quest. Appeals ruling The of con- A trial court’s on a motion to Court Criminal suppress cluded that while none of these facts alone evidence is an abuse of its discre supported finding suspicion a of reasonable tion when no reasonable view of the record detention, warranting investigatory they support could the court’s conclusion under law and the in the together. did when considered 805 the correct facts viewed so light legal conclusion. at most favorable its DuBose, Applying 915 S.W.2d at 497-98. Worthey, appellant’s Unlike encounter us, this test to the record before the district place with McCullen did not occur in a and court’s conclusion the officers had a inherently under circumstances that were objective particularized and for sus basis suspicious. Appellant was not at the resi- pecting appellant activity of criminal was an suspected drug dence of a dealer in the Point four is abuse its discretion. of error night, entryway in middle but of a sustained. public building during regular business appellant hours. McCullen testified that cause and self-incrimination. Probable ges- no made sudden movements or furtive six, points appellant of error five and suspect Terry, appellant tures. Unlike the in proba- did not contends McCullen have did not loiter inside the courthouse doors or point ble cause to arrest and search her. give signs “easing” building for some seven, privi- that her error she contends purpose. criminal Unlike the officer in Hol- lege against violated self-incrimination was laday, suspect McCullen had no reason pass when she was forced to her appellant based on her whereabouts or asso- of our machine. Because ciates, appellant did not tell McCullen four, disposition do not of error we All lie. McCullen knew was reach these contentions. passing wanted return to her car before through security going about her busi- Conclusion in ness the courthouse. do not hold that it is unconstitutional We entering persons to screen a courthouse for McCullen and Richardson testi weapons. do not hold that it is unconsti- they suspected fied that had a tutional officer to detain or weapon in But contraband person entering frisk a a courthouse when he faith, in the of bad even absence detention suspicion person is has a reasonable that the unparticularized based on a mere hunch or only that armed. We hold the detention Gurrola, suspicion is unconstitutional. search of this cause was not 302; Holladay, S.W.2d at 805 S.W.2d at 469. justified by shown to the need for court- justify finding suspicion To of reasonable suspicion house a reasonable adequate investigative to warrant an deten criminality. tion, suspect’s conduct must be sufficient judgment The of conviction is reversed and ly distinguishable peo from that of innocent the cause is remanded to the district court Montano, ple clearly apart. as to set her *8 for new trial. 582; at Crockett (Tex.Crim.App.1991). Appellant en POWERS, Justice, dissenting. courthouse, appeared surprised tered reviewing ruling a motion to flustered when she encountered the When on evidence, checkpoint, suppress then turned to leave. we must view the evi- When her, security guard help light asked if he could dence in the most favorable to the trial legal nervous and told him that she was court’s conclusion. DuBose seemed going to fifth floor but wanted to return 497-98 may ruling as an to her car before she did so. There was We reverse the court’s only if no view nothing appellant’s in words or conduct as abuse of discretion reasonable my clearly supports opin- it. Id. in this record that set her of the record described ion, majority district apart persons engaged in ac fails to accord the from innocent it tivity. court the deference to which is entitled. hearing appellant’s mo- At the second ap- suppress,

tion to McCullen testified security like go “tried to around the entering through the JP Five door.” reasonably testimony may I believe this attempted mean that understood to security screening devices to evade the hallway pretending to enter the from the justice courtroom. door of the to avoid the Such a deliberate effort and articulable checkpoint was reasonable suspecting that had basis for weapon purse. in I therefore cannot its

hold that the district court abused discre- concluding in the officers le- tion justified detaining appellant gally “frisking” her CRAWFORD, Ed- ESTATE OF Homer G. Thompson, III, Independent P. ward Executor, Appellant, County MOUND, TOWN OF FLOWER Denton, Independent and Lewisville District, Appellees.

School No. 2-95-114-CV. Texas, Appeals Court Fort Worth. Oct. Rehearing Overruled Dec.