                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-365-CR


RICKY DALE WILLIAMS                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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            FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION 1

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      In a single issue, appellant Ricky Dale Williams challenges the trial court’s

denial of his motion to suppress evidence found by police during a “protective

sweep” of appellant’s home. We affirm.




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          … See Tex. R. App. P. 47.4.
                                  Background

      On May 6, 2005, Lieutenant John David Duke from the Wichita County

Sheriff’s Office, along with at least four deputies, went to appellant’s house to

serve an arrest warrant on James Shirey. The sheriff’s office had received

information that Shirey was staying with appellant. Lieutenant Duke testified

that when he and the deputies arrived at appellant’s house, he and Deputy

Kenny Lemons went to the rear of the house while the others went to knock

on the front door. Additionally, Officer Robinson stopped a vehicle that was

backing out of the driveway. At the back of the house, Lieutenant Duke saw

a parked car with a woman and child inside, and he talked to them. Deputy

Lemons then heard people talking in the house and knocked on the window.

A man named Prentice Rogers opened the back door.            The officers asked

Rogers where appellant was and if Shirey was at the house. Rogers said he did

not know where Shirey was but that appellant was home; he opened the door

and told the officers appellant was in the living room.       The officers then

stepped inside.

      According to Lieutenant Duke, they first stepped into the kitchen and

could see appellant in the living room at the front door talking with at least one

of the deputies. They could see Shirey was not in the living room or kitchen;

they asked a female sitting on the couch whether anyone else was in the

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house, and she said she did not know. So Lieutenant Duke went into the

master bedroom, which he later determined belonged to appellant, and Deputy

Lemons went into a second bedroom. The first thing Lieutenant Duke did was

look under the bed. He then opened the closet door to check if someone was

hiding inside. He found a “two foot by three foot by maybe a foot-and-a-half

deep” safe on the closet floor. Its door was open about four or five inches,

and Lieutenant Duke saw the handles of two pistols inside “in what [he] would

consider to be open view.” Lieutenant Duke’s search of the bedroom took

about forty-five seconds.

      After he saw the pistols, Lieutenant Duke left the bedroom and saw that

appellant was “out back” talking with another deputy. He talked to the other

deputies about whether appellant had been previously convicted of a felony;

after determining that appellant had been, Lieutenant Duke retrieved the pistols,

walked back through the house, and asked appellant who they belonged to.

Appellant denied that the pistols were his. Lieutenant Duke said the purpose

of the protective sweep was not to check any warrants but to look for

individuals. Sometime after Lieutenant Duke finished the protective sweep,

another deputy located Shirey outside the house hiding inside a third car.

      Four days later, the sheriff’s office obtained a search warrant for

appellant’s home to look for additional “[f]irearms, parts of guns, ammunition,

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[and] anything firearm-related.” They found additional firearms and chemicals

commonly used in the manufacture of methamphetamine. Three months later,

the sheriff’s office obtained another search warrant based on information that

appellant possessed a live hand grenade; they also had arrest warrants based

on four possession of a firearm by a felon charges arising out of the two prior

searches.   The county SW AT team made a tactical entry to serve those

warrants and found appellant in the master bedroom. In executing the search

warrant, the sheriff’s office found additional items commonly used in

manufacturing methamphetamine, along with a powdery substance that

appeared to be methamphetamine.

      On cross-examination, Lieutenant Duke admitted that he did not rely on

appellant’s consent in entering the home to look for Shirey; however, he

admitted that he did not know what appellant had said to the other deputies at

the front door. He also stated that when Rogers let them in the house, he

“took [them] to the owner of the house [appellant], who did not deny [them]

to look for . . . Shirey.” In other words, Lieutenant Duke testified, appellant did

not say, “He’s not here. [Instead, h]e wasn’t telling” them.

      Sergeant Christopher Taylor of the Wichita Falls Police Department helped

execute the second and final search warrant at appellant’s house. Lieutenant

Duke pointed out several items that were in plain view, including two or three

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propane tanks in the kitchen, valves, corroded brass valve fittings with Teflon

tape on them, plastic bottle caps with tubing, rock salt, and several

methamphetamine pipes. Sergeant Taylor testified, based on his experience

and training, that these items are commonly used in methamphetamine labs.

In the refrigerator, officers found a tank containing anhydrous ammonia, another

ingredient used to manufacture methamphetamine.

      A grand jury subsequently indicted appellant for possession of anhydrous

ammonia with the intent to manufacture methamphetamine. Appellant moved

to suppress the anhydrous ammonia found in his house on the ground that the

initial protective sweep of his house during the Shirey arrest—which yielded the

two pistols that formed the basis of the first search warrant—exceeded the

permitted scope; thus, the first search warrant and the second search warrant

were invalid as fruits of the poisonous tree. After hearing evidence, the trial

court denied the motion to suppress. The motion was relitigated at trial, and

the jury charge contained the following instruction:

            An officer can perform a cursory sweep of a house that he
      has lawfully entered to reasonably secure the house for officer
      safety.

            If you believe by a preponderance of the evidence that on or
      about May 6, 2005, that Lt. David Duke was not lawfully in the
      house or that his sweep of the house was not a cursory sweep
      intended to reasonably secure the premises for officer’s [sic]
      safety, then you will not consider any evidence that resulted from

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      that sweep or any evidence that was subsequently obtained as a
      result of that sweep.

      The jury convicted appellant, and the trial court assessed punishment at

sixty-five years’ confinement.

                                 Issue on Appeal

      Appellant contends that the officers’ sweep of the home, including

Lieutenant Duke’s entry into the bedroom and closet, was not based on an

objective, reasonable belief, based on specific and articulable facts, that a

person in that area posed a danger to an officer or to other people in the area;

therefore, the search exceeded the permissible scope of a protective sweep.

Because the anhydrous ammonia that the State accused appellant of possessing

was eventually found as a result of the protective sweep, appellant thus

contends that the anhydrous ammonia should be suppressed.

                             Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no


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pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).            Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, viewed in the light most favorable to the trial

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court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19. We

then review the trial court’s legal ruling de novo unless its explicit fact findings

that are supported by the record are also dispositive of the legal ruling. Id. at

819.

       When the record is silent on the reasons for the trial court’s ruling, or

when there are no explicit fact findings and neither party timely requested

findings and conclusions from the trial court, we imply the necessary fact

findings that would support the trial court’s ruling if the evidence, viewed in the

light most favorable to the trial court’s ruling, supports those findings. Id.; see

Amador, 221 S.W.3d at 673; Wiede, 214 S.W.3d at 25. We then review the

trial court’s legal ruling de novo unless the implied fact findings supported by

the record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

       We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.

Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

                                 Applicable Law

       “A ‘protective sweep’ is a ‘quick and limited search of premises, incident

to an arrest and conducted to protect the safety of police officers or others.’”

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Reasor v. State, 12 S.W.3d 813, 815 (Tex. 2000) (quoting Maryland v. Buie,

494 U.S. 325, 327, 110 S. Ct. 1093, 1094 (1990)). It must extend no further

than “a cursory inspection of those places where a person may be found.”

Buie, 494 U.S. at 327, 110 S. Ct. at 1094. In addition, it may only last long

enough to “dispel the reasonable suspicion of danger.” Reasor, 12 S.W.3d at

816 (quoting Buie, 494 U.S. at 335, 110 S. Ct. at 1093)).           “The Fourth

Amendment permits a properly limited protective sweep in conjunction with an

in-home arrest when the searching officer possesses a reasonable belief based

on specific and articulable facts that the area to be swept harbors an individual

posing a danger to those on the arrest scene.” Buie, 494 U.S. at 337, 110 S.

Ct. at 1093; Reasor, 12 S.W.3d at 816. The standards for determining validity

of a sweep under the Fourth Amendment and the Texas Constitution are the

same. Reasor, 12 S.W.3d at 816–17.

                                    Analysis

      Here, appellant challenges the scope of the protective sweep on the

ground that Lieutenant Duke had no specific, articulable facts that would have

led a reasonable officer to believe that a person in the area posed a danger to

Lieutenant Duke or to other people in the area. He has not challenged the




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officers’ entry into his home either on appeal or at trial.2 Instead, appellant’s

arguments have been limited only to the assertion that the officers exceeded

the scope of a valid protective sweep in that nothing justified a concern that

dangerous persons might be concealed in the bedroom areas of the house.

      Appellant specifically points to the following testimony elicited from

Lieutenant Duke:

      Q.     Okay. Now, when you’re looking for a felon who has a
      warrant out for him such as Mr. Shirey, and you go into a house
      like this, do you have any fears for your safety?

      A.    Yes, we do.

      Q.    Okay. Can you just kind of generally, tell us why?

      A.   Just officer safety for other felons or people that we don’t
      know who may have reasons to harm police or try to escape, for
      whatever reason they have.

According to appellant, this testimony is too general and does not show

specific, articulable facts supporting the sweep.

      The State, however, points to other facts supporting the officers’ decision

to perform a protective sweep once inside the house. The officers were aware




      2
        … Absent the existence of exigent circumstances or consent, police may
not enter a residence pursuant to an arrest warrant for a nonresident without
first obtaining a search warrant. Steagald v. United States, 451 U.S. 204,
205–06, 101 S. Ct. 1642, 1644 (1981); Hudson v. State, 662 S.W.2d 957,
958 (Tex. Crim. App. 1984).

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that the house was a “narcotics trafficking” location. In addition, they were

seeking to arrest Shirey on a felony warrant.      We also note other facts

supporting the decision: (1) when officers arrived at the home, at least one

person was trying to leave, backing a car out of the driveway; (2) the officers

encountered more people in a car behind the house, then heard voices inside

the house; (3) when police entered the home with Rogers’s consent, they saw

a woman on the couch and appellant at the door, as well as Rogers; (4) when

asked if Shirey was at the house (as they had been led to believe by an

informant’s tip), the woman on the couch said she did not know; (5) appellant

was known to Lieutenant Duke as a convicted felon; and (6) Lieutenant Duke

testified that Rogers, who admitted the officers into appellant’s home,

frequently had warrants out for his arrest. We hold that all of these facts,

testified to by Lieutenant Duke, justify a reasonable belief that a person

potentially posing a danger to the officers could have been found in either of

the two bedrooms or bedroom closets. See United States v. Lawrence, No.

3:07-CR-127, 2008 WL 5120957, at *5–6 (E.D. Tenn. Dec. 3, 2008) (“The

combination of evidence indicating drug trafficking and the potential presence

of additional hidden persons in the apartment warranted a protective sweep of

other places where an individual could be hiding.”); United States v. Salgado,

06 CR 860, 2008 WL 4951216, at *7 (N.D. Ill. Nov. 18, 2008); cf. United

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States v. Smith, 131 F.3d 1392, 1396–97 (10th Cir. 1997) (holding protective

sweep valid when officers fanned out around known drug location to serve

arrest warrant on nonowner resident and officer pulled back flap over window

and saw drug paraphernalia), cert. denied, 522 U.S. 1141, 523 U.S. 1030, 523

U.S. 1086 (1998).. Accordingly, we overrule appellant’s issue.

                                Conclusion

     Having overruled appellant’s sole issue on appeal, we affirm the trial

court’s judgment.




                                              TERRIE LIVINGSTON
                                              JUSTICE

PANEL: LIVINGSTON and DAUPHINOT, JJ.; and DIXON W. HOLMAN, J.
(Senior Justice, Retired, Sitting by Assignment)

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 29, 2009




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