                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00553-CR
                           ____________________

                  CHARLES JEROME VERDINE, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                   On Appeal from the 163rd District Court
                          Orange County, Texas
                        Trial Cause No. B-130341-R
________________________________________________________            _____________

                          MEMORANDUM OPINION

      In this appeal, we must decide whether the trial court erred by failing to

instruct the jury that it could disregard the evidence obtained by police during the

defendant’s arrest if it believed or had a reasonable doubt about whether the

officers reasonably believed the defendant was inside the house they entered to

execute the warrant for the defendant’s arrest. We conclude that the evidence

before the jury did not raise an issue of material fact about whether the officers’

reasonably believed they would find the defendant inside the house. Therefore, we

                                         1
hold the trial court did not err by failing to provide the jury with a conditional

instruction to advise them that they could disregard the evidence obtained during

the arrest if they believed the police obtained the evidence illegally. See Tex. Code

Crim. Proc. Ann. art. 38.23(a) (West 2005) (providing that no evidence obtained

by an officer in violation of the Constitution or law of the United States shall be

admitted against the accused in a criminal case).

      The appeal arises following a trial by jury that resulted in Charles Jerome

Verdine’s conviction for possessing a controlled substance, cocaine. See Tex.

Health & Safety Code Ann. § 481.115(c) (West 2010). Verdine raises only one

issue in his appeal, claiming that the trial court should have instructed the jury that

it could disregard the evidence that the police discovered during Verdine’s arrest.

See Tex. Code Crim. Proc. Ann. art. 38.23(a); see also id. art. 38.23(b) (allowing

the evidence to be admitted without instruction if the police were acting in

objective good faith reliance upon a warrant that had been issued by a neutral

magistrate based on probable cause). In this case, it is undisputed that the police

had a warrant that authorized Verdine’s arrest. Upon entering the house, the police

found Verdine in a bedroom, and they discovered cocaine on the bed where he was

sitting immediately after they took Verdine into custody.




                                          2
      There are three requirements that a defendant must meet to show that he is

entitled to have the jury instructed as required by article 38.23(a):

      (1) The evidence heard by the jury must raise an issue of fact;
      (2) The evidence on that fact must be affirmatively contested; and
      (3) That contested factual issue must be material to the lawfulness of the
      challenged conduct in obtaining the evidence.

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). In this case,

Verdine contends that whether he was sitting on the porch when police arrived is a

contested fact that is material to the lawfulness of the decision the police made to

enter the house to execute the warrant that a magistrate had issued for his arrest.

However, given the undisputed facts that show that Verdine could reasonably be

expected to be present in the house, regardless of whether he was on the porch

when police arrived, we conclude that the contested factual issue about whether he

was sitting on the porch is not material with respect to whether the police could

lawfully enter the home.

      We agree that whether Verdine was on the porch or inside the house when

the police arrived was a disputed fact. The two police officers who came to the

home testified that before they entered the house, they saw Verdine on the porch

when they pulled up to the house. However, Verdine’s sister testified that Verdine

was inside the house when the police pulled up, and she stated that Verdine was

not on the porch at that time. According to Verdine, the jury could have believed
                                           3
the testimony of his sister. He contends that the decision that the police made to

enter the home without having first seen him on the porch makes their entry into

the home unlawful. Given that that there is a dispute regarding Verdine’s location

when they first arrived at the home, Verdine argues the trial court had a mandatory

duty to give the jury an article 38.23 instruction that would have authorized the

jury to disregard the evidence that showed the police found drugs on the bed where

Verdine had been sitting when he was arrested.

      Given the evidence of the other circumstances showing that police could

reasonably expect Verdine to be found in the house when they arrived, whether

they saw Verdine on the porch before entering the house is not a material fact that

is needed in this case to decide whether the police were acting lawfully when they

entered the house. In this case, before police arrived at the house, they were given

an arrest warrant that had been issued by a magistrate. Although the police did not

have a warrant to search the house, the evidence shows that Verdine’s relatives

lived there and that he sometimes stayed there. The officers arrived at the house

around 5:40 p.m., a time when the occupants of the house would reasonably be

expected to be present. Verdine’s sister, Sharon Stevens, admitted during the trial

that Verdine used the address for the home as his permanent address. Additionally,

Stevens never testified that Verdine was living at another residence when the arrest

                                         4
occurred, nor did she testify that it was unlikely that he would have been present at

the house on the date or at the time he was arrested.

      In his brief, Verdine argues that his location, either inside the house or on

the porch, was a contested fact issue that is material to the lawfulness of the

decision the police made to enter the house. See generally Madden, 242 S.W.3d at

510. However, police officers are not required to be certain that the individual they

seek to arrest is inside a house they may be required to enter to execute an arrest

warrant. Morgan v. State, 963 S.W.2d 201, 204 (Tex. App.—Houston [14th Dist.]

1998, no pet.). Instead, for the entry to be lawful in circumstances where the police

have a warrant authorizing an individual’s arrest, the circumstances as a whole

must show that the belief that the suspect would be found inside the home was

reasonable. Id.

      Generally, the Fourth Amendment prohibits the police from entering a home

without a search warrant. Payton v. New York, 445 U.S. 573, 589-90 (1980).

However, “an arrest warrant founded on probable cause implicitly carries with it

the limited authority to enter a dwelling in which the suspect lives when there is

reason to believe the suspect is within.” Id. at 603. In Texas, this limited authority

applies to the execution of felony and misdemeanor warrants. Green v. State, 78

S.W.3d 604, 611 (Tex. App.—Fort Worth 2002, no pet.). Moreover, officers are

                                          5
not required to thoroughly investigate whether the person named in an arrest

warrant is actually present in a house before they may enter the house in order to

execute the warrant. See United States v. Terry, 702 F.2d 299, 319 (2nd Cir.), cert.

denied sub nom., Williams v. United States, 461 U.S. 931 (1983). When the

execution of an arrest warrant requires the entry into a residence, the totality of all

of the facts and circumstances must warrant a reasonable belief that the suspect

will be found inside the residence. See United States v. Magluta, 44 F.3d 1530,

1535 (11th Cir.), cert. denied, 516 U.S. 869 (1995).

       In Verdine’s case, the officers arrived at a location that Verdine was using

as his permanent address. They arrived at the house when the occupants of the

house could reasonably be expected to be present. Verdine’s relatives were present

when police arrived, so the house was neither empty, nor did the appearance of the

home indicate that it was unlikely that anyone would be inside the home. When

police arrived, a door to the house was open, and at least one person was sitting on

the porch. These “common sense” indications support a conclusion that regardless

of whether Verdine was seen on the porch before the police entered the house, it

was reasonable to believe that Verdine would be found inside. See id. (“officers

may presume that a person is at home at certain times of the day”). Additionally,




                                          6
the record does not show that the officers had any information that Verdine was

not at home when they found him inside the home. See Terry, 702 F.2d at 319.

      In our opinion, the objective circumstances as shown by the evidence before

the jury demonstrated that the officers had reason to believe that Verdine would be

inside the residence immediately before they entered the house to execute the

warrant. See Morgan, 963 S.W.2d at 204 (officers may enter premises to execute

an arrest warrant for a person the officers reasonably believe to be a co-resident of

the property). Based on the evidence before the jury, we hold that Verdine was not

entitled to the instruction that is required in some cases by article 38.23(a). See

Madden, 242 S.W.3d at 510.

      We overrule Verdine’s sole issue, and we affirm the trial court’s judgment.

      AFFIRMED.


                                             ________________________________
                                                     HOLLIS HORTON
                                                          Justice



Submitted on January 6, 2015
Opinion Delivered October 14, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.


                                         7
