AFFIRM; and Opinion Filed November 13, 2013.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-00931-CR

                               DAPHNE HICKS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the 195th Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. F11-34378-N

                            MEMORANDUM OPINION
                        Before Justices O’Neill, Lang-Miers, and Evans
                                  Opinion by Justice O’Neill
       The State charged appellant Daphne Hicks with possession of five pounds or less but

more than four ounces of marijuana. Appellant filed a motion to suppress, which the trial court

denied. He then pleaded not guilty and proceeded to trial. The jury returned a guilty verdict.

The trial court assessed two years’ confinement in state jail, probated for five years, with the

condition of serving 180 days in jail. In a single issue, appellant challenges the trial court’s

denial of his motion to suppress. The State responds officers acted appropriately under the

emergency doctrine exception to a warrantless entry into a home. We affirm the trial court’s

judgment.

                                         Background

       On May 5, 2011, Officers Jonathan Rowan and Ryan Turner responded to a suspected

domestic violence call at an apartment complex in Irving. The police dispatch told officers an
anonymous neighbor reported screaming and arguing from inside the apartment. Officers were

familiar with the apartment because they had responded to another domestic call a few months

earlier.

           Upon arrival, officers heard a male voice “yelling and cussing very loudly” at someone.

Although dispatch reported the presence of a male and female, Officer Rowan did not hear a

woman’s voice. He only heard the male yelling. Officer Rowan testified he was concerned for

the person being yelled at, and he believed the person could have been hurt. They also smelled

the strong scent of burnt marijuana coming from the apartment.

            After about a minute, officers knocked on the door. Officer Rowan testified it

immediately got quiet; however, he could hear someone moving and shuffling things inside.

Officer Rowan then tried to look through the peep hole but could not see anything. Given the

nature of the situation, he decided to unscrew the peephole, push it inside the door, and then look

inside the apartment. He testified the apartment was in complete disarray. Officers knocked

again, announced themselves as police, and said someone needed to answer the door or they

would force it open. Officer Rowan knocked four or five more times before appellant opened

the door about a foot. The marijuana smell was even stronger after appellant opened the door.

           When asked about the situation, appellant said nothing was going on. Officers asked for

consent to enter the apartment, but appellant refused. Officer Rowan then told appellant to step

back because he did not have a choice. Officers than entered the apartment.

           Several other investigating officers testified it was obvious that an argument had taken

place inside the apartment. Broken glass covered the floor. Chairs were flipped upside down,

and the bed had been pulled out into the hallway. They also saw a female passed out on the

couch.




                                                 –2–
        Within plain view, officers also observed marijuana cigarettes on the kitchen island, a

grinder, a digital scale manual, and tin foil cut into squares.           Appellant was arrested for

possession of drug paraphernalia and taken to jail. Officers then requested a search warrant.

Upon execution of the warrant, officers found money, pill bottles, and marijuana in the bedroom

closet. Appellant was later charged with possession of five pounds or less but more than four

ounces of marijuana.

        During the suppression hearing, appellant argued Officer Rowan violated his rights

against unreasonable searches and seizures when he unscrewed the peep hole and looked inside

without a warrant or any justifiable exception to a warrantless entry. The State argued given the

nature of the call–responding to domestic violence–officers acted accordingly under the

emergency doctrine.

        The trial court agreed with the State and denied appellant’s motion. Although the court

did not enter findings of fact and conclusions of law, it stated the following on the record in

support of its denial:

        The Court is of the opinion that under the Texas law the rights of the State to
        protect its citizens under the police power of the State has to be balanced upon the
        citizen’s constitutional rights in the home in this case. The Court is of the opinion
        that the actions of the police department are justified as being that required by an
        emergency situation, and the public policy of the State to protect women in family
        violence situations.

This appeal followed.

             Standard of Review and Applicable Search and Seizure Law

        We apply a bifurcated standard of review to the trial court’s ruling on a motion to

suppress evidence. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford

almost total deference to the trial court’s determination of historical facts and apply a de novo

review to the trial court’s application of the law to the facts. Id. The trial court is the sole trier of

fact, the judge of witness credibility, and the weight to be given to witness testimony. Id. When,

                                                  –3–
as here, the trial court does not make explicit findings of fact, the appellate court must view the

evidence in the light most favorable to the trial court’s ruling and assume the trial court resolved

any issues of historical fact or credibility consistently with its ultimate ruling. Id. The trial

court’s ruling “will be upheld on appeal if it is correct under any theory of law that finds support

in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).

       Both parties agree this case turns on whether the “emergency-aid” doctrine applies. This

doctrine holds that the “Fourth Amendment does not bar police officers from making warrantless

entries and searches when they reasonably believe that a person within is in need of immediate

aid.” Laney v. State, 117 S.W.3d 854, 860 (Tex. Crim. App. 2003).              Unlike the exigent

circumstances doctrine, the emergency doctrine applies when the police act in their community

caretaking role, and the doctrine is limited to the caretaking functions of protecting or preserving

life or avoiding serious injury. Shepherd v. State, 230 S.W.3d 738, 742 (Tex. App.—Houston

[14th Dist.] 2007), aff’d, 273 S.W.3d 681 (Tex. Crim. App. 2008).

       To determine whether a warrantless search was justified under the emergency doctrine,

we apply an objective standard based on the police officer’s conduct and the facts and

circumstances known to the officer at the time of the search. Id. The officer must have a

reasonable belief that he must act to preserve life or avoid serious injury. Laney, 117 S.W.3d at

861. The search must be strictly circumscribed by the exigencies which justify its initiation, and,

if the doctrine applies, the police may seize evidence in plain view. Shepherd, 230 S.W.3d at

742.

                                            Discussion

       In his sole issue, appellant argues the trial court erred by denying his motion to suppress

because Officer Rowan violated his Fourth Amendment right against an unlawful search and

seizure when he unscrewed the peephole on the front door and looked inside without a warrant.


                                                –4–
He argues the emergency aid exception “requires probable cause to suspect an offense and facts

known to the officers that are not as consistent as innocent activity as criminal activity.”

(emphasis in original). He asserts screaming and yelling alone is as consistent with non-criminal

communication as with criminal activity and cannot justify a warrantless entry into a home.

Further, he states the smell of marijuana emanating from the apartment cannot support probable

cause to justify a warrantless entrance into his home.

       We begin by noting appellant is asserting an inaccurate standard of review and an

overruled, inapplicable doctrine of law. The application of the emergency aid doctrine does not

require an officer to have probable cause that an offense is in progress. Rather, the officer must

have a reasonable belief, given the known circumstances, that he must act to preserve life or

avoid serious injury. Laney, 117 S.W.3d at 861. This does not rise to the level of probable

cause. See, e.g., State v. Simmang, 945 S.W.2d 219, 223 (Tex. App.—San Antonio 1997, no

pet.) (“Reasonable suspicion is a less demanding standard than probable cause because it can be

established with information that is different in quantity or content and even less reliable than

that required to show probable cause.”). Further, the Texas Court of Criminal Appeals has

determined the “as consistent with innocent activity as with criminal activity” construct is no

longer a viable test for determining reasonable suspicion. See Woods v. State, 956 S.W.2d 33,

38–39 (Tex. Crim. App. 1997). Rather, one must consider the totality of the circumstances. Id.

at 38. However, even if the doctrine remained viable, it developed in the realm of temporary

detentions, which does not apply to the present facts. Accordingly, we shall review the totality

of the circumstances, as known to the officers at the time, and determine whether Officers

Rowan and Turner had a reasonable belief they needed to remove the peep hole because of an

emergency situation.




                                               –5–
       When Officers Rowan and Turner arrived at appellant’s apartment, they had received

information from a 9-1-1 dispatcher that an anonymous caller reported hearing his female

neighbor “screaming” and a male was “probably hitting” the female. A short time passed

between the 9-1-1 call and the officers’ arrival.

       Upon their arrival, they only heard a male voice inside yelling. They knocked on the

door multiple times and announced, “Police.” The yelling then abruptly stopped, and they heard

things shuffling around the apartment. Officer Rowan testified due to the nature of the call, “it

was my thought, standing outside there, there could be someone inside hurt.” He believed he

was dealing with a situation in which there was a possibility of serious bodily injury or death

occurring. He specifically testified that because he could only hear the male voice screaming, he

was concerned the female might be unconscious and could not yell for help. Officer Turner also

testified he was concerned when they only heard one voice that the other person inside was

“either unconscious or injured or worse.” Thus, officers unscrewed the peep hole to see if

anyone inside was injured. Officer Rowan further admitted he removed the peep hole rather than

kicking in the door because he was trying to minimize damage and expense for the apartment

complex.

       Officer Rowan continued to emphasize throughout his testimony his main concern was

“to make sure there was no one inside that needed assistance,” and the smell of marijuana or the

investigation of any drug activity was not the reason for their presence at the apartment. They

were investigating a possible domestic dispute. Officer Turner testified that given his past

experiences, he had forced entries on domestic calls when the situation was of a safety concern.

       Reviewing the totality of the circumstances in the light most favorable to support the trial

court’s judgment, we conclude the trial court did not abuse its discretion in determining the

emergency aid doctrine applied to these facts. Accordingly, appellant’s sole issue is overruled.

                                                –6–
                                          Conclusion

       We affirm the trial court’s judgment.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O’NEILL
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47

120931F.U05




                                               –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DAPHNE HICKS, Appellant                             On Appeal from the 195th Judicial District
                                                    Court, Dallas County, Texas
No. 05-12-00931-CR        V.                        Trial Court Cause No. F11-34378-N.
                                                    Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                        Justices Lang-Miers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 13th day of November, 2013.




                                                   /Michael J. O'Neill/
                                                   MICHAEL J. O'NEILL
                                                   JUSTICE




                                             –8–
