*1 rehearing request hearing At their motion for and their on the first motion for sanctions, attorneys explained original opinion published. that our After Annie Lou’s Harry “attacking were for an considering that William and the motion en banc hear- underlying relationship” ing, hearing between Coral and we find that such is not neces- return, daughter extraordinary In sary her Annie Lou. Annie because sought uniformity Lou information about rela- Coral’s or to maintain our decisions. tionship However, grant Annie her sons. Lou’s attor- to we have decided neys they inadvertently stated had publish. discover- lants’ motion to money given that certain ed sums of were to Accordingly, appellants’ motion for rehear- Harry and the time William “about the will overruled, ing publica- motion but their changed,” they but were unable to deter- original opinion tion of as well as this moneys Riggins spent, mine “what Mrs. opinion, granted. through her bank nor what mon- statements boys through ey the took in their bank state- properly

ments” because of the failure to

respond discovery. response, the trial stated, you’re

judge going “It’s not obvious you analyze

have the stuff in time to need (the date).” judge the 13th trial The trial

then stated: they they [I]f took the tax returns when Reginald WILLIAMS, Appellant, Keith constructively

were least aware that they needed, evidence, that’s some pretty strong say but the cases are that Texas, Appellee. The STATE of parties significant unless the part are disregard, bad faith or the conscious Nos. 01-94-00805-CR 01-94-00807-CR. disregard requests, for orders or then it’s Texas, Appeals Court of an abuse of everything, discretion to strike Dist.). (1st Houston primarily counsel, if it’s the fault of he’s taken his share of fault. 21, 1996. Nov. strike, completely So I’m reluctant just because of the ease law and because doing thing

there is no sense this twice costing money up both sides more on

appeal they up turning thing end

around. hearing,

Later on asking pro- after

ponents’ attorney Bransgrove Alan what wit- trial, actually

nesses he would call at commented, seems to me some- “[i]t unfair, Bransgrove, you Mr.

what allow your fully yet you

present case to have produced Again, the items —.” in re- Bransgrove

sponse, replied people that “totally

who were critical” his case were

William, Harry and Vanessa Buzzard.

We remain convinced the trial court imposition of lesser

considered sanctions striking parties, all but the

before witnesses imposed that the sanction this case

“fit the crime.” also We have considered request hearing en

appellants’ for an banc *2 Ellis, Houston, appellant. for

Mark Holmes, Houston, Roper, Appellant ap- John B. Keli J. and Officer Redman entered appellee. pellant’s upstairs, and went wife,

appellant told his common-law Michelle Griffin, get go downstairs and the cocaine. *3 package. She returned with a sealed Red- EN BANC OPINION man cut and package into the saw what appeared appellant to cocaine. He told he HUTSON-DUNN, Justice. product was and the satisfied with the left Appellant Reginald Keith Williams entered apartment money. get to accom- the Griffin pleas guilty possession to of a controlled panied Redman downstairs first floor (two cases) possession substance and of a fourplex appellant entrance of the while deliver, controlled substance with intent to stayed upstairs. in stood the door- Griffin pleas para- and true to two enhancement way, just and Redman walked outside the graphs plea in each case. Pursuant to a doorway gave signal and a secret “bust” to bargain agreement, the trial court assessed Officer in DeBlanc to call the raid punishment 50-years imprisonment in team. Appellant challenges each ease. seconds, up raid Within the team drove ruling suppress court’s on his motion to evi- marked and cars. unmarked When Griffin We dence. address the lawfulness of a them, saw and she slammed locked the front reentry by police forced into a residence wooden door but was able to close the where moments before an undercover officer burglar outside door bars. made of The raid dining observed arrangements had cocaine apartment. officers into the forced Tex.R.App.P. purchase. for its Pursuant to They just gunshot they heard a after entered 79(e), appeal we hear this en banc and affirm. inside, fourplex. the the Once raid officers upstairs, appellant’s apartment, went entered Facts They and arrested him Griffin. found August 2,1993, On Officer Walter Redman kilogram the bathroom toilet the of cocaine Department of the Houston Police learned purportedly Officer attempted Redman had a from confidential informant that purchase. Appellant signed to then a con- selling drugs. evening, That Redman form, sent to search and the officers partner, DeBlanc, Donald Officer met appellant’s apartment searched appel- with with confidential informant and Andrea accompanying lant them and found cocaine Thompson King in Burger parking a lot to dresser, appellant’s inside cocaine inside a purchase kilogram discuss the of a of cocaine. safe, type” and “black tar heroin in the re- Thompson pur- examined and counted the frigerator. money approval get chase and left to for the sale. She they returned and told officers Reentry Lawfulness Forced place they could follow her to the where complete purchase. could error, points two contends Thompson The officers overruling appellant’s followed the trial court erred (1) Appellant lant’s residence. fourplex suppress: owned a motion to evidence that was arrest; apartment standing part illegal and was as outside when seized of an stayed officers DeBlanc ap- arrived. Officer additional evidence that was seized after signing unmarked car pellant while Officer Redman was coerced into a consent to got immediately out illegal and discussed the initial details of search form after the ar- appellant. Appellant Appellant rest. sale and Redman contends his arrest was ille- agreed gal Redman go would inside under the United States and Texas Con- If see the cocaine. Redman stitutions and the Code of Texas Criminal Const, satisfied, 4; go he out to his car to Procedure. U.S. amend. Tex. Const, money 9; get complete § and return inside to art. art. TexCode CrimProc. (Vernon legality deal. 38.23 The Supp.1996).1 Appellant preting differently has not advanced for inter- the Texas Constitution from hinges upon the lawfulness of the the residence without a warrant or enter reentry into residence the consent of a resident. Tex.Code Crim.

forced team, (Vernon moments after Supp.1996).2 raid under- Proc. art. 14.05 cover officer Redman observed cocaine while Code consistent with United States Su arranging purchase decisions, that, it. preme Court which hold ab i.e., situations, special

sent consent A. circumstances, Standard of Review into residence conduct a or make an arrest is unrea search hearing suppress, At a on motion sonable under fourth amendment unless judge the trial court is the sole wit pursuant Steagald done a warrant. weight credibility given to be nesses’ States, United U.S. S.Ct. testimony. their Romero v. *4 (1981); 1642, 1647, 38 also 68 L.Ed.2d see 539, (Tex.Crim.App.1990); v. S.W.2d 543 Bell York, 573, 576, Payton v. New 445 100 U.S. State, 284, (Tex.App. 866 S.W.2d 286-87 (1980) 1371, 1374-75, 63 L.Ed.2d 639 S.Ct. 1993, pet.). no The trial [1st Dist.] —Houston (fourth prohibits police from amendment any may accept reject or or all of the making a and non-consensual en warrantless State, testimony. Taylor witnesses’ v. 604 purpose a the try suspect’s into residence for 175, 177 (Tex.CrimApp.1980); S.W.2d Verch arrest); felony making Green v. a routine State, 68, (Tex.App. er v. 861 S.W.2d 70 State, 263, (Tex.Crim.App. 727 266 S.W.2d ref'd). 1993,pet. [1st Dist.] —Houston 1987). only appeal, On our role is to deter upheld have convic Several Texas cases improperly ap mine whether the trial court Romero, plied tions based on evidence that retrieved the to the facts. 800 law Bell, pursuant 543; to a warrantless arrest executed S.W.2d at 866 S.W.2d at 287. Un virtually the clearly under facts identical to facts less the trial court abused its discre tion, cases, findings. up case. In these arrests were we will not disturb its Rivera State, 80, under art. (Tex.Crim.App v. 808 96 held S.W.2d Tex.Code CrimProcAnn. (Vernon 1977) State, 255, .1991); Sandoval v. 860 where an undercover S.W.2d 14.01 1993, (Tex.App pet. 257 house or [1st Dist.] officer entered the defendant’s . —Houston refd). sale, light negotiate drug We view the evidence the a apartment to momen ruling the trial tarily viewing drugs give most favorable to court. to the left after Sandoval, 860 257. If the signal, arresting S.W.2d at evi and team of officers “bust” ruling, supports the trial court’s do dence we immediately resi entered defendant’s State, ruling. not Banda v. disturb that 890 his dence without consent to execute 42, (Tex.Crim.App.1994); 51-52 See, State, S.W.2d e.g., v. 797 arrest. Sanchez Vercher, 861 at 70. 1990, 951, (Tex.App 952-53 . —Dallas 773, pet.); Caraballo v. Entry B. to Warrantless Arrest (Tex.App [14th Dist.] 773-74 . —Houston ref'd); pet. Gonzales pro The Code of Criminal Procedure (Tex.App [1st Dist.] . —Houston peace may arrest a defendant vides a officer refd). However, pet. none cases of these any without a warrant offense committed 14.05, applicability of article discuss the presence within the officer’s or view. Tex. Steagald, Payton. or 14.01(b) (Vernon 1977). art. Code CRIM.PROC. However, may an officer not enter resi to may An enter a residence officer a warrantless arrest unless:

dence make (1) person arrest who make warrantless person who lives the residence entry. entry; consents to exigent circum lives the residence consents or at 1374- require making Payton, 445 U.S. at 100 S.Ct. stances the officer Constitution, presented case we evidence as in this does the United States and that the therefore argument will not address his officers’ establish that the officers acted under arrest violated the Texas Constitution. warrantless See Heitman v. prevent "to the destruc- 690- or contraband.” tion (Tex.Crim.App.1991). 23n. (Vernon 75; already legal, art. 14.05 arrest was held we Tex.Code Crim.Proc. only Supp.1996). appellant gave Appellant consented to consider whether his con- Officer sent to search under duress. The facts rele- appellant’s apart Redman’s initial into vant consent search are as Although posed ment. Redman as an under follows. drug purchaser, cover this did not invalidate appellant’s consent. See Lewis v. United A. The State’s Witnesses

States, 206, 211, 424, 427, 385 U.S. 87 S.Ct. (1966); Cunningham L.Ed.2d 312 Officer Redman testified he entered the (Tex.App team, apartment after raid and he saw . —Cor ref'd). Christi, pus Further, pet. al speaking Officer DeBlanc though Officer Redman left the hall. Redman saw DeBlanc advise momentarily give signal give appel- he was under arrest DeBlanc team, raid lant legal warnings. During officers arrived within this conver- 30 seconds sation, anything to execute Redman observe the arrest. did not threatening coercing indicate DeBlanc In a line of cases with facts similar to the appellant. case, facts of this States United Court of Officer upstairs DeBlanc testified he went Appeals for the Seventh Circuit has held *5 appellant’s apartment after the raid team that, if a defendant consents to an already gone appellant had to arrest inside informant, undercover police officer or that and appellant Griffin. Both and Griffin were person may allow other officers to appellant handcuffed. DeBlanc took into the See, enter to e.g., make the arrest. United hallway, patrol unit had the take his hand- Jachimko, (7th States v. 19 F.3d off, appellant rights. cuffs and of his advised Cir.1994); Diaz, United States 814 F.2d jacket gun DeBlanc had his raid and a (7th Cir.1987). Diaz, In the court waist, concealed in his he did not but remove stated: gun. emphasize We we applied that have appellant Once Officer was sure DeBlanc doctrine of only “consent once removed” fully informant) rights, understood his he asked (or agent where the entered at any drugs lant if there were other express invitation someone with au- apartment appellant responded and there thority consent, point at that established appellant were. DeBlanc if he asked would probable the existence of cause to effectu- drugs located, show where the search, other ate an arrest or immediately and appellant and said DeBlanc he would. went help summoned other from officers. We got voluntary to his car and consent to do not suggest by analysis intend to our search form. returned DeBlanc with the that one consensual means that law form, explained appellant, its contents to and agents may enforcement thereafter exit appellant had the form read over himself. and enter home at will. appellant DeBlanc told to initial the form 814 F.2d at 459. it, only agreed if he understood it and with Based on the doctrine of “consent once appellant and said he understood the form. removed,” uphold we as lawful the warrant- Appellant signed the form then filled out and reentry by police less residence it. He initialed the sections said he appellant. to arrest right understood he had to refuse to con- point We overrule of error one. search, promises sent to the and no or coer- get sign cion had him to been used to Consent to Search form. two, cross-examination, of error con On Officer DeBlanc tes-

tends the trial committed tified all of on the reversible the officers raid by refusing suppress guns error evidence ob team were armed and had their drawn authority they apartment tained under of a consent to when entered the because a given immediately search under and shot had DeBlanc entered the duress been fired. later, illegal budding after an arrest. Because we have about two minutes and most of agreed already placed apartment. Appellant testified he team members had raid search, “all but was scared and did not guns their because the he their holsters any he had in the matter. given. min- feel like choice signal clear” had been About 15 Although he DeBlanc told time DeBlanc passed utes between the form, sign not be refused to he harmed he the second floor and the time reached did appellant testified he not believe DeBlanc began form to discuss the consent search agreed and to the search because he was one of appellant. DeBlanc also testified Appellant signed con- scared. read and the raid team officers was a white man with form, but he he long pony sent search testified hair in a tail. signed the form because it was DeBlanc’s idea and he was afraid of the officer with the B. The Defense Witness ponytail. Appellant he was testified scared testify only Appellant was the witness to safety throughout the entire for the incident behalf, his of the on his and recollection of both and himself. Griffin than consent to search was much different Ap- that of Officers Redman and DeBlanc. C. Voluntariness pellant testified he heard the raid team break relying upon When the State is door one front within requirement, consent to excuse the warrant had consum- minute after he and Redman convincing prove by and the State must clear drug Appellant panicked, mated the deal. gave the defendant his consent free gun grabbed his he cocked loaded when voluntarily. ly Kolb bang, accidentally fired a shot. heard the (Tex.Crim.App.1976); Goines v. ran Griffin screamed name and (Tex.App [1st . —Houston upstairs appellant. Appellant a black saw 'd). pet. Dist.] ref must show man down at the kneel head stairs *6 positive unequivocal and the consent was and gun appellant. The man made his at All not the result of duress or coercion. appellant put up hands and turn around. his State, (Tex. 471, ridge v. 850 S.W.2d 493 Appellant could tell the man was not whether Goines, at 577. Crim.App.1991); 888 S.W.2d a officer. must the consent search The State show around, appellant was turned While physical psychologi not was the result raid and handcuffed team entered room 504, State, coercion. Meeks v. 692 S.W.2d cal placed appellant both Griffin and them and (Tex.Crim.App.1985). 509 ground. Appellant on the testified someone question of a defen whether hit him in the back of the head with what felt for voluntary the search is dant consented pony like a a tail pistol. A white officer with from all the the trier of fact to determine approached appellant and told him several Bustamonte, v. circumstances. Schneckloth charged going times with at- he was be 2058-59, 218, 248-49, 412 93 U.S. S.Ct. tempted capital murder tried to because he (when subject of 36 L.Ed.2d 854 shoot them. Meeks, custody); 692 search is not Appellant stayed ground for about 510; Goines, 577; at Martinez at 888 S.W.2d picked two minutes DeBlanc before Officer (Tex.App. 792 S.W.2d ap- rights. him him up and read his While pet). A defen [1st Dist.] —Houston no pellant getting up, was the officer with he to a if dant’s consent search invalid pony up ran into his face and screamed tail only in to a claim of made it submission attempted going my kick for “he was ass Meeks, 509; authority. lawful 692 S.W.2d at capital murder.” Five or six officers Goines, Kolb, 90; 888 532 S.W.2d at appellant up, and were near when he stood person a is under at 577. The fact that they all armed. were more, not, custody or in does without involuntary. appel- render the consent search DeBlanc took into Officer (Tex. officers, 775 two who Juarez v. 758 S.W.2d lant’s bedroom with other armed, merely one of the Crim.App.1988). It discussed whether and Id.; Peter- considered. willing to of the was consent to search drawn; (Tex.App.— guns son v. nothing indicated officers re- drawn). pet.). quested Houston court guns [1st Dist.] A consent with Based just circumstances, will not totality invalidate consent to search on the we hold because the officer told the he by concluding defendant did not the trial court err get did warrant the defendant proved convincing clear and evi- consent. Resendez appellant knowingly voluntarily and dence (Tex.Crim.App.1975); Goines, apartment. consented search of S.W.2d at 578. It is some of con evidence point of We overrule error two. sent if the did not defendant warned he judgment affirm the We court. have to consent to search and had the right Allridge, 493; to refuse. at

Martinez, panel Original consisting of HUTSON- DUNN, ANDELL, and JJ. O’CONNOR

Upon considering all of evidence light most favorable the trial court’s rul- TAFT, requested by En review banc J. ing, reasonably we hold the court could have Voting en banc review were proved by concluded the State clear and C.J., COHEN, SCHNEIDER and convincing appellant’s consent HUTSON-DUNN, MIRABAL, HEDGES freely voluntarily given. and The trial TAFT, Voting against JJ. en banc required was not to believe testi- O’CONNOR, review were WILSON mony, reasonably and it could from conclude ANDELL, JJ. the testimony of Officers Redman and De- Blanc that positive consent was J., joins HUTSON-DUNN’s, J., HEDGES and unequivocal. The record shows opinion. consent, lant was told could he refuse to he J., TAFT, concurs. signed freely voluntarily, the form subjected he was not to force or coercion MIRABAL, J., concurs. officers, from the promised any- nor was he thing Further, in exchange for his consent. SCHNEIDER, C.J., MIRABAL’s, J., joins appellant’s consent was not rendered invalid concurrence. only due to gave the fact he his consent COHEN, J., concurs. *7 response by request to a Officer DeBlanc.

An request by officer’s for consent does J., O’CONNOR, dissents. itself render a defendant’s consent involun- Goines, tary. 888 at 578. S.W.2d ANDELL, J., O’CONNOR’S,J., joins dissent.

The police record shows the entered appellant’s apartment guns with their drawn WILSON, J., dissents. placed and him in handcuffs. display The weapons sharply is a coercive factor that MIRABAL, Justice, concurring. freely given

reduces the likelihood of con I opin- concur with Justice Hutson-Dunn’s State, 493, sent. DuBose v. 497 because, separately my opin- in ion. I write State, (Tex.Crim.App.1996); n. 6 Lowery v. ion, is no need a there to “consider new 499 168 (Tex.CrimApp.1973). S.W.2d appeal” theory theory on in this The case. However, only it is a factor to be considered by court advanced the State in the trial was a totality is not circumstances and perfectly valid one. DuBose, dispositive. alone at case, court, 497 guns put argued n. 6. In this the were The in trial and the away appel presented showing, probable and the handcuffs removed when that lant signed exigent consent the search. See cause and circumstances existed war State, appellant’s McFarland 834 ranting v. S.W.2d 485 the forcible into (de (Tex.App —Corpus Christi pet.) without a warrant. This case is . search, voluntarily fendant McNairy consented to even 835 controlled v. S.W.2d though police apprehended (Tex.Crim.App.1991), defendant 107 and Covarru-

30 reasons,” “totally pros- for (Tex.App.— 902 554 unrelated

bia 'd). “totally pet.ref ecutor at trial relied on different Dist.] Houston [1st reasons,” upheld judge the trial the ar- and Covarrubia, McNairy As in “totally for different reasons.” rest present court in the case could have reason- have that S.W.2d at 319. To affirmed case ably concluded from evidence that littering on have denied the based would reasonably police officers that believed process imposing defendant due law dispose lant and his were able to wife judgment him on upon “based secret rea- cocaine. Officer Redman testified cocaine [the defendant] sons not revealed until after of, easily disposed was water soluble right has lost the to be heard.” Id. at 321. he was concerned about cautious To Fortunately, courts do not do that. its Appellant he had attitude. boasted that credit, Appeals Court of Criminal did selling drugs in been the business for nothing Calloway in of the sort being long caught. This time without indi- any in (Tex.Crim.App.1988), destroy try to cated that Sedani, Calloway. in case cited See Appellant knew cocaine. wife Sometimes, however, S.W.2d at 319-20. outside, actually and the cocaine were overly suggesting language courts use broad destroyed could have been or removed in a That, thing may I that such a be done. matter The of minutes. heard shot believe, happened Calloway, in where what appellant’s apartment. fired from Accord- case, standing issue was not new to the ingly, trial did not its discre- abuse but, contrary, on had been raised and motion tion when overruled Calloway, litigated in the trial court. possible suppress because the destruction of Thus, I that Seda- 646-49. believe provided adequate exigent the evidence an is still right ni was when it decided and warranting circumstance the forcible good today. law appellant’s apartment into without a warrant. this judgment I would affirm the rea- pre- The Sedani harder issue whether son. being particular judgment from vents this theory now this court on reviewed SCHNEIDER, C.J., joins concurring issue, I “consent once removed.” On this opinion. agree -with Taft. This is not a Justice “totally trial court or “unheard of’ COHEN, Justice, concurring. litigated the facts Rath- unrelated” to there. agree judg with Justice Mirabal that er, closely it is related. facts based on ment should affirmed developed, and the law is so similar that am separately circumstances. I write to discuss has am- been not worried application holding of our this case fact, posture resem- bushed. this case’s rehearing Sedani v. Calloway, that in where the difference bles *8 1993, (Tex.App.-Houston Dist.] [1st 318-21 Calloway, judge In was minor. 'd). pet. ref the had incorrectly ruled that defendant no judgment Sedani held that a should not be standing the to -contest search because he theory appeal on a “un- affirmed on based possessed nor the house. The neither owned theory totally heard of at trial” and “on correctly argued appeal on that defendant in State] different from what claimed [the standing by should not have been determined trial court.” at 319. I am confi- by by ownership possession, but whether isn’t, If dent that is law. it it should be. expectation of in privacy had a he reasonable Sedani, justify place of Criminal sought searched. Court In to State judge used Appeals although that by contending appeal, on for first held arrest standing time, legal to decide the wrong the crime test that the defendant committed issue, because Calloway was not harmed littering arresting presence. in officer’s Mr. of standing he had appeal evidence showed that urged argument on for no The State test, i.e., had time, that he though arresting under the correct even first Calloway, of expectation privacy. at trial that the arrest reasonable officer had testified

31 arrest, entry justifies minor in 743 S.W.2d at 651. This difference the warrantless making perform an unnecessary it to atten- legal theory have so Mr. could not misled analysis any resulting uation of taint Calloway him deprive as to of a chance to dissenting opinion consent to search. The develop in the relevant facts the trial court apply to a new Justice O’Connor refuses hearing. The here. same is true theory justify entry and to the warrantless Consequently, I to affirm. vote arrest, theory a new and does not consider performing analysis. even an attenuation TAFT, Justice, concurring. attempts explain concurring opinion This to IWhile conclude the State did not ade- why opinions both to appropriate it is circumstances, quately prove exigent agree I admissibility consider not raised theories that the officers’ forced to make an at trial. arrest was lawful the doctrine of con- under Therefore, join sent once removed. Justice Suppress Nature of a Motion opinion, separately Hutson-Dunn’s but write necessary It is first understand the my regarding exigent to state cir- rationales suppress nature of a motion evidence. A application theory cumstances and of a new nothing suppress motion to is more evidence appeal. on specialized objection than a to the admissibil ity of that evidence. Galitz 617 Exigent Circumstances (Tex.Crim.App.1981); n. 10 I agree opinion with Justice O’Connor’s Montalvo v. 137-38 only exigent circum- (Tex.App pet.). 'It is well . —Austin (1) stances was: Redman ruling Officer knew that settled that a trial court’s on the ad and, thus, cocaine is disposed water soluble missibility of evidence not be reversed if will (2) easily; Redman reason, Officer knew there any correct for even one not were numerous sinks resi- articulated at trial.1 See McFarland (3) dence; appel- State, (Tex.Crim. Redman heard Officer n. 15 say lant experienced that he anwas dealer App.1992) (appellate upheld admissibili caught who had never been and refused to ty though legal upon unaware of basis which caught. lacking trial); testimony by What testimony admitted at Jones v. disposal

Officer Redman that of cocaine is (Tex.Crim.App by persons, .1992)(trial ap- characteristic behavior like court found warrant affida pellant, engaged drug dealing sufficient; under simi- appellate vit court found affidavit lar insufficient, circumstances. While believe there ac- but switched attenuation of tually circumstances, I don’t analysis justify taint admission written sufficiently developed believe the confessions); them Sewell v.

through 1982) (trial testimony. Op.] officers’ (Tex.Crim.App. [Panel court admitted threats defen extraneous Theory Appeal

New on mind, dant to show witness’s state of but upheld Appeals Court of Criminal admission opportunities This case offers to con- two defendant). show intent of (1) appeal: sider a new in deter- mining appellate rulings the lawfulness the warrantless review of on motions one; suppress, Appeals of error in de- the Court of Criminal termining flagrancy expressly mis- has relieved the State of the bur *9 purposes analysis listing verbalizing conduct for of in trial of attenuation den or court every in possible holding of Justice a search error two. Hutson- basis for theory legal appeal. opinion Dunn’s a new that to avoid waiver on Lewis v. considers ble, wrong given give merely 1. While none of the cited a because the reason was cases rationale rule, Moreover, suggest for this I it from admitting that arose some for it. evidence is admis- judicial economy combination of harmless given sible for trial, from that at a reason different analysis. simply error It not economical to is wrong its admission for the reason harm- case, retried, requiring it reverse a to be for the less error. is, fact, admission of in evidence which admissi- ref'd)( emp State, (Tex.App. pet. (Tex.Crim.App. Antonio 664 S.W.2d — San added). 1984) suppress (disposing of motion to hasis ground on basis of lack of stand ing despite standing failure of State to raise Legitimate Concern Ambush State, appeal); trial on at Sullivan v. (Tex.Crim.App.1977) (op. agree on I more with Shannon While reh’g) (overruling interpretation Calloway, recog v. of Maldonado 528 court’s (Tex.Crim.App.1975), legitimate expressed which had a in nize concern Seda- standing at being held State must raise issue regarding ni not allowed to State appeal, by Sedani, it argue unsupported trial to on as ambush defendants. See 848 S.W.2d wrong). any precedent clearly remanding suggested 320-21. for Sedani opportunity to have an to

such defendant Sedani produce additional facts to meet the new theory as the am an alternative to alleviate may This Court has held that agree bush concern. See id. that some theory justify on appeal raise new to by application cases a defendant is ambushed ruling suppress on a motion trial court’s to theory appeal, remanding that of a new on so State, 848 evidence. See Sedani v. may appropriate ease be more than af (Tex.App. [1st Dist.] 318-21 — Houston cf., firming the conviction. See and Janecka 'd). Sedani, pet. ref In the State relied (Tex.Crim.App.1987) v. 841-42 (Tex. Calloway on 743 S.W.2d 645 reh’g) (remanding give op on . Analyzing Calloway Crim.App.1988). opportunity to defendant show harm under relied, which it six cases on this Court con court, by theory applied, appellate from new Calloway, language cluded the deci case). law after trial in this case decided upheld court on sion the trial will theory appeal any if correct under of law case, “con- giving In this the facts rise to case, theory applicable any meant developed once sent removed” were having been raised in the trial court. Id. at hearing. suppression Such course “buy-bust” are to most facts those common may correctly held that scenarios: undercover officer enters resi- While Sedani have drugs; Calloway arrange purchase nor for un- “neither the cases cited there dence suspect posses- on allow this case to be affirmed based dercover officer observes leaves, theory,” drugs; officer but appear new there do to be sion undercover State’s Appeals immediately signals cases of Criminal raid team reenter res- from Court suspect commit- upheld rulings sup on idence and arrest for offense that have motions presence theory developed for of undercover officer. Even press based a new ted See, that the raid team entered appeal. e.g., the first time on Williams testified (Tex.Crim. undercover offi- within one minute after the (where disagreement dissenting There about App.1986) opinion criti cer left. having observed an majority addressing argu for an the undercover officer’s cizes the trial). by the offense within his view while inside ment not raised State at circumstances, Williams, Appeals re lant’s residence. Under these the Court Criminal a remand would is difficult to conceive how fused be bound the reasons articulated prose appellant develop to deal with the argued by help facts officer objective This for of consent once removed. case cutor when reasons existed ar theoiy resting application an of that as id. at 101. An boils down to the defendant. See Calloway nearly a matter of law to uncontroverted appeals other court of has cited Therefore, giving the Justice proposition, “If a facts rise to it. decision of any theory opinion appropriately affirms of law which Hutson-Dunn’s court correct on evidence, conviction, remanding than rather support in the then mere finds develop may given wrong give appellant opportunity an have fact that the *10 applied for the theory require will not rever facts meet new reason for its decision appeal. time on Shannon v. 800 S.W.2d 899 first sal.” Analysis entry, there were the officers’ consent to Attenuation The State dis- exigent circumstances. appropriate if it were not to consider Even exigent the officers had agrees; it claims determining theory appeal on a new forcibly enter the circumstances to entry and ar- lawfulness of the warrantless ar- a warrant and lant’s without rest, employing “con- impediment I see no appellant.1 rest the analy- sent once removed” in an attenuation certainly flagraney to the sis. It is relevant justify Exigent will a war- prong. police (1) If conduct police of misconduct to: render rantless into residence lawful, objectively not be deter- is should persons the offi aid or assistance to whom merely mined to be unlawful because the of aid or reasonably believe are need cers officers, prosecutors, or trial court (2) assistance; per protect the officers from If attempted justify wrong it on the basis. reasonably they believe to be sons whom (3) dissenting opinion to find the offi- dangerous; armed and present and lawful, objectively no taint cers’ conduct or con prevent the destruction evidence should flow from it. McNairy traband. 835 S.W.2d (Tex.Crim.App.1991); Covarrubia Conclusion (Tex.App . —Hous 'd). 1995, pet. ref The record ton [1st Dist.] reasons, agree I use of a For these concedes, shows, only exi the State (consent removed) theory appeal new on once potentially applicable gent circumstance here opinion. For the Justice Hutson-Dunn’s (3), prevent destruction of the number reasons, disagree I same with Justice O’Con- a chance to cocaine before the officers had dissenting opinion nor’s both for its refusal to seize it. employ theory re- new of consent once moved in its consideration of the lawfulness possible proving the destruction When entry, failure to warrantless and for its circumstance, as an theory in its attenuation consider the new must show the could have rea analysis. de sonably believed the evidence would be stroyed they could ob or removed before

O’CONNOR, Justice, dissenting. McNairy, 835 tain a search warrant. Covarrubia, 107; at at may This Court has held that it not affirm affecting the reasonableness 554. Factors appellant’s sup the denial of an motion to (1) include: the de of the officer’s actions press theory based on a that was not raised gree urgency involved and the amount in the trial court. Sedani v. (2) warrant; necessary time to obtain (Tex.App. [1st — Houston is about to be reasonable belief contraband 'd) 1993, pet. (op. reh’g). ref Justice Dist.] (3) removed; possibility danger Hutson-Dunn affirms the convic guarding the site of the con police officers theory presented tion on a not to the trial (4) sought; in traband while a warrant i.e., court, consent once removed. I would indicating possessors of the formation presented confine our review the issues as aware the are on contraband are court, to the trial as did the brief on State’s trail; destructibility ready their appeal. Upon considering only issues knowledge of the contraband and court, presented trial believe escape and to dispose efforts to of narcotics case should be reversed and remanded. persons behavior of en are characteristic dissent. McNairy, trafficking. gaged in narcotics Covarrubia, 107; Legality of Arrest at 554. one, of error con- cross-examination, re- Officer Redman the officers’ into the On tends believing the cocaine his reasons for apartment to make a warrantless arrest lated First, destroyed. Redman justified not to be because the did was about argue before the trial court. The State did not the "consent once removed" *11 caine, pistols. Id. The Fifth Circuit soluble and and two testified he knew cocaine is water Second, they agents knew once made their disposed easily. Redman held the could be patio by knocking in the on the presence testified there were numerous sinks known Third, door, they required Redman testified as to the to conduct a residence. primary security he the of the house and restrain the reason believed search destroy the cocaine: inhabitants. The court said: about foregone my entry thus a guess primary I the factor would be Warrantless dealing appellant]. agents instant the revealed contact conclusion the [the statements, patio direct at the His attitude that the themselves to Munoz-Guerra regarding to me statements that he made door. length doing busi-

the of time he had been ness, caught, to be never been refused consistently past opinions have em- Our show, ability run et caught, his the phasized that without reason to believe cetera, primary the attitude. would be —his suspect a criminal was aware of that understanding ... Also the manner surveillance, presence the mere of firearms destroyed, avail- which cocaine can be the destructible, incriminating evidence or ability of water as far as the different sinks exigent circumstances. does not create residence, understanding the com- agents the had Id. at 298. The held cocaine, hy- pound make-up or of that the circumstances, exigent reversed created the drochloride, all lead to the decision. suppress, and ruling on the motion to I itself does not would hold this evidence to re- ease for the defendant remanded the exigent acted under establish the officers Thompson, plead. Id. at 298-99. on cross- circumstances. Redman conceded sup- the motion to Fifth Circuit remanded did not see the or examination he findings specific press to the trial court for cocaine, trying destroy nor did Griffin deliberately agents created on whether the they specifically any state intention to de- Thompson, 700 exigent circumstances. stroy the cocaine. Neither would find Grif- F.2d at 952-53. disposi- fin’s slam of the door to avoid arrest also contends the The State as the officers were tive because occurred toilet, down the attempt to flush the cocaine approaching the execute shot, exigent gun constituted along with the arrest. justified a en- circumstances that warrantless justify cannot a warrantless Police officers try appellant’s apartment. dis- into the exigent they based on search after agree. Both of these events occurred deliberately v. Mu- create. United States appellant’s apartment. police entered the (5th noz-Guerra, Cir.1986); F.2d Therefore, knowledge police did not have Thompson, F.2d States v. United deciding to arrest of these facts when Cir.1983). (5th example, in For Munoz- a warrant and force their appellant without Guerra, agents DEA knocked the back way into his residence. patio door of the of a condominium defendant, circum- selling I would hold there were person suspected a justify the forced into the stances to drugs. 788 F.2d at 297. When the defen- door, a warrant agents appellant’s apartment without came to the ordered dant By giving “bust” appellant. him a put glass panes his hands on the arrest, Red- door, signal for a warrantless Officer open down and the door. then reach exigent circumstances defen- man created Id. The door was locked. Id. The apart- into the get key from made the warrantless dant indicated he would Munoz- foregone conclusion. See agents ment a room. Id. Because the another Guerra, giving than at 298. Rather get gun a 788 F.2d thought the defendant would arrest, Red- evidence, signal agents for warrantless attempt destroy “bust” completed the sale could have the condomin- man kicked the door in and entered magistrate gone to a inside, capacity and agents conducted undercover ium. Id. Once offi- while other marijuana, an arrest warrant co- to obtain security and found cheek

35 analysis, conducting an attenuation the apart- the In eers maintained surveillance of adopted its Appeals ment. I would hold the trial court abused has the Court of Criminal kil- by admitting Illinois, into the discretion evidence in Brown v. general factors set forth ogram toilet that 2254, 2261-62, of cocaine the bathroom 590, 603-04, 422 95 S.Ct. U.S. incident ille- officers seized (1975). factors are: L.Ed.2d 416 These 45 gal arrest. (1) warnings; giving the of Miranda2 point sustain of error one. (2) temporal proximity of the the search; and Consent Search (3) intervening circum- presence of two, of error con- stances; and trial court committed reversible tends the (4) flagrancy of offi- purpose and by refusing suppress error evidence ob- cers’ conduct. authority tained under the of a consent to (Tex. State, 414, immediately given Reyes search under duress and 741 S.W.2d 431 Brick, illegal agree after an arrest. with the at 678- Crim.App.1987); 738 S.W.2d by majority 79; Martinez, that the trial court not err did 792 at 529. The S.W.2d concluding proved by clear and specific forth a more set of has also set convincing appellant knowingly evidence the partially overlap with the Brown factors voluntarily of his consented the search factors. These factors are: apartment. (1) arrest; proximity of the consent to the (2) po- brought about whether the seizure Attenuation object particular lice observation though Even consent was search; they sought consent to illegal, voluntary, because the arrest was (3) illegal flagrant whether the seizure was court must determine the consent whether misconduct; sufficiently was attenuated from the arrest to (4) the consent volunteered whether was permit pur admission of the seized requested by detaining rather than suant to the consent to Arcila v. search. See officers; State, 357, (Tex.Crim.App. 834 S.W.2d 359 1992). illegal stop automatically An does not (5) fully whether the arrestee made search; voluntary

invalidate a consent of the fact he could decline to con- aware conversely, voluntary consent to search prevent sent and thus an immediate search automatically does not validate a search that residence; of the car or Juarez, illegal stop. follows an 758 S.W.2d (6) underlying police purpose whether question at 779. The relevant is whether the illegality to obtain consent. exploi by consent to search was obtained Brick, 131-32; Boyle, 738 820 S.W.2d illegal tation of an arrest or detention or S.W.2d at 680-81. sufficiently distinguishable means purged primary taint. Id. at 778. Giving Warnings of Miranda voluntary pursuant Evidence obtained to a factors, prominent the four the Mi Of consent to search is inadmissible the con warnings important when randa are the least illegal sent followed an arrest and there is challenge. dealing a fourth amendment dissipate taint insufficient attenuation to DeVoyle v. 471 80 See of the arrest. See Brick v. 738 S.W.2d (Miranda warnings, al (Tex.Crim.App.1971) (Tex.Crim.App.1987); 681 Martinez v. necessary in to search though not consent (Tex.App 792 S.W.2d . —Hous Martinez, case, good police practice); are pet.). ton The burden is [1st DistJ Mi at 529. This is because the prove attenuation clear the State warnings randa do not cover a defendant’s convincing Boyle evidence. Brick, to search. Mar rights to refuse to consent (Tex.Crim.App.1989); Nevertheless, tinez, at 529. at 681. (1966). Arizona, 86 S.Ct. 16 L.Ed.2d 694 2. Miranda v. 384 U.S. (3) case); permitting the defendant to ap sion DeBlanc read the

record shows Officer ap after the ar warnings privately before the consult with someone pellant his Miranda rest, attorney, companion Fur Jua signed the consent to search. such as pellant (consent rez, ther, appellant he had the at 782 to search DeBlanc told the case); right releasing to consent to the search. the defendant after to refuse *13 law, it is evi required informing this is not him he is free to While the arrest or State, 151, gave leave, consent. All dence the accused a valid 753 156 Maixner v. S.W.2d (Tex. State, (confession case); ridge 850 493 (Tex.Crim.App.1988) v. S.W.2d see Martinez, 792 at Crim.App.1991); Jones, S.W.2d (laundry list of 746 S.W.2d at 286 also weighs in favor. This factor the State’s might 529. intervening circumstances that be suf arrest). illegal I find purge taint of ficient Temporal Proximity intervening in the record of Only passed when the 15 minutes between Therefore, weighs factor in this case. this when he consent- appellant was arrested and appellant’s favor. However, ed to the search of his residence. Police Misconduct intervening period of time does not a short suppressed be require itself the evidence im is one of the most Police misconduct Juarez, lack of sufficient attenuation. for attenuation portant factors to consider an proximity is Temporal at 781. 758 S.W.2d Bell, Maixner, 157; analysis. 753 at S.W.2d strong determining factor of attenua- not a State, 789; 709 724 at S.W.2d S.W.2d Self v. tion, it eases have characterized as and some my opin (Tex.Crim.App.1986). 668 factor involved. the least determinative many specific ion, of the this factor includes 132; Juarez, Boyle, at 758 820 S.W.2d Brick, Boyle such as items listed in 781; 724 at Bell v. S.W.2d S.W.2d police brought about ob whether the seizure lapse A (Tex.Crim.App.1986). shorter 788 object they sought particular servation circum- be tolerated when the time will police whether the consent to search and of the detention are less severe. See stances illegality was to ob purpose underlying the 107-08, Kentucky, Rawlings v. 448 U.S. I must determine whether tain consent. (1980); 2556, 2563, L.Ed.2d 633 100 65 S.Ct. purposefulness illegal quality had a arrest Juarez, at 758 S.W.2d expedition it an evi and whether something Although temporal proximity hope factor in the dence undertaken favor, Brown, it weighs is difficult 422 at 95 might up. turn U.S. 133; con weight by 2262; much itself without give Boyle, 820 at at S.W.2d S.Ct. Juarez, 758 sidering remaining Juarez, factors. 758 S.W.2d at 783. Specifically, impor the more at 782. S.W.2d violations are unrea- All fourth amendment significant consideration is whether a

tant sonable, practical are differences but there during intervening circumstance occurred out- dictate different between violations that passage time that would allow Bell, at 789. The comes. 724 S.W.2d illegal arrest to infer the taint of the can said to have dissi- at which the taint 132; Boyle, at purged. See related, of other pated in the absence is (Tex. 746 285 Jones v. S.W.2d circumstances, the nature of controlling ref'd). 1988, pet. App. [1st Dist.] — Houston Brown, 610, 95 at S.Ct. the taint. U.S. Intervening Circumstances Bell, (Powell, J., part); concurring in at 2264 indications The clearest at 789. Intervening circumstances between an ille required when should be procurement attenuation gal arrest and the seizure (1) flagrantly abusive. is most taking include: misconduct challenged evidence Bell, Flagrant miscon- at 789. magistrate before the defendant before pre- as a an effectuated obtained, 833 duct includes arrest Jones (confes objectives or an arrest 118, 125 for collateral (Tex.Crim.App.1992) text personal priva- unnecessarily case); intrusive arresting the defendant on a sion Brown, 611-12, 95 S.Ct. at illegal cy. U.S. charge shortly after the claimed valid Bell, (Powell, J., part); concurring in detention, 758 2265 Little (confes- at 789. (Tex.Crim.App.1988) into evidence should not have been admitted The record this case shows the did not volunteer the consent to search at trial. rather,

residence; appellant gave his con- response sent to Officer Redman’s re- Analysis Harmless Error Further, quest. the arrest in this case was Upon reaching opinion, would then appellant’s personal privacy intrusive of the the trial court’s erroneous consider whether police forcibly his resi- because the entered Rule of the evidence was harmful. admission However, dence. the record not show does 81(b)(2) Appellate of the Rules of Procedure pretext arrested the as a provides appellate an court must reverse get his consent to search. Officer Redman an occurs in the trial court unless when error kilogram saw of cocaine beyond a reasonable doubt the it determine during buy, residence the undercover and he *14 error and its effects made no contribution called the raid team to arrest punishment. Gipson the conviction kilogram and seize the because he feared the (Tex.Crim.App. kilogram destroyed. Although I would be Tex.R.App.P. 81(b)(2). 1992); When conduct have concluded Officer Redman did not have analysis, ing a harmless error the court’s role sufficient basis to believe circum- a rational trier of is to determine whether justified into stances warrantless if fact could have reached a different result residence, appellant’s I no find the error and its effects had not occurred. gave in the record Officer Redman the “bust” (Tex. Harris v. signal pretext obtaining consent to as a CrimA.pp.1989). appellate An court normal Rather, appellant. search from the Red- ly determines whether an error was harmful request man’s for consent to search was by considering fac response appellant’s made in to the defendant several to the state- Harris, drugs including ment the source after arrest that there were tors set forth kilogram error, error, in the other than the the nature whether police cocaine the by discovered the toilet. emphasized or to what it was extent factor, summary, concerning the fourth implications, probable its collateral here, police although improper conduct based declaring error harmless would whether us, on the record before does not shock the encourage repeat impuni it with the State to conscience. The himself concedes However, ty. Id. at 587. if the record shows probably weighs this factor in the State’s complained on its face the error of contribut favor. conviction, in-depth to the an ed defendant’s Summary analysis unnecessary. Gipson, 844 of Attenuation See Factors S.W.2d at 741. case, warning In this the Miranda weigh misconduct factors in the State’s The inadmissible evidence of which the favor, temporal proximity and the and inter- of his con- appellant complains was the basis

vening weigh circumstances factors Therefore, obviously cannot de- viction. one appellant’s Although favor. this is a close ad- beyond termine a reasonable doubt the case, I would conclude the State did not made no contribution mission this evidence proving sustain its burden of attenuation to the conviction. convincing clear and evidence. Otherwise judgments of the trial I would reverse the not inadmissible evidence should be made the causes for further court and remand simply admissible because the miscon- proceedings opinion. consistent with this Bell, reprehensible. duct was not too (confession case); at 790 see also ANDELL, J., joins opinion. dissenting this ease). Jones, (confession 746 S.W.2d at 286 subject protection To do would so WILSON, Justice, dissenting. rights constitutional to the collective con- Bell, plurality respectfully I dissent from of this at science Court. I opinion as it is now written. do Accordingly, drugs I en banc

790-91. would hold the join dissenting colleagues my pursuant seized consent to result, substantial illegal point, except search were the fruit of an arrest and because compel court to reverse on the unnecessary given ingly portions of the dissent are yet argued, the defen- plurality. grounds briefed and present status of the theory on a advanced dant stands convicted premise Mira- agree with the of Justice sponte. this court sua concurring opinion that “there is bal’s appeal” need to consider a new with sufficient Because cannot determine (the theory of exigent circumstances State’s certainty upon agreed basis the six what case) justify the warrantless en- exist to conviction, I re- exist to affirm this votes However, justices ex- try. only three spectfully dissent. prior to plicitly find that facts existed legally justify the war- residence to into the

rantless intrusion. adopts a rationale to plurality opinion which I understand

affirm the conviction jurisprudence, at precedent

have no Texas of “consent once re under the label

least Further, plurality adopts this

moved.” any analysis based on Se reasoning without M.D., JACKSON, Appellant, L. Clemis (Tex. dani *15 ref'd) 1993, pet. App. Dist.] [1st — Houston concurring opinions reh’g). Although (op. on BIOTECTRONICS, Bio- INC. d/b/a Sedani, suggest importance note the Associates, Therapy Electric plurality might distinguished, the how it Appellee. agreed no basis which opinion contains accomplished. this is No. 14-94-01220-CV. on a theo defendant stands convicted This advanced, mentioned ry not or even Texas, Appeals of Court of trial, appeal. importantly, on (14th Dist.). State at or more Houston brings the State This is not a case where Dec. argument for the appeal a new forth on defendant and admission of evidence. The re attorney of this “consent-once learn first time in this

moved” standard for the the defen plurality opinion.

court’s Neither any opportunity has had

dant nor the State presented. argue question brief Tex.R.App.P. 74(f). face of

This flies preserves comply with this rule

Failure Jamail, parte

nothing for review. See Ex (Tex.Crim.App.1996); (Tex. Gonzalez, 692, 697

State v.

Crim.App.1993). argued theory of the case before

On the court, justices appeal, six say exigent no circum-

explicitly there are permit lawful evidence that

stances threshold of the officers across the (Schneider, justices Cohen

the house. Three Mirabal) directly exigent cir- state that

& thereby providing present,

cumstances are entry by offi- justification for the

legal determining there six votes cast

cers. The would seem-