                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00047-CR
                             NO. 02-14-00048-CR
                             NO. 02-14-00049-CR
                             NO. 02-14-00050-CR
                             NO. 02-14-00051-CR


GILBERT JUNIOR COLLINS A/K/A                                      APPELLANT
GILBERT JOUINOR COLLINS

                                      V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
 TRIAL COURT NOS. 1324826D, 1324831D, 1324834D, 1324837D, 1324842D

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                                  OPINION

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      A jury convicted Appellant Gilbert Junior Collins, also known as Gilbert

Jouinor Collins, of five instances of aggravated robbery with a deadly weapon,

charged in five separate indictments, and assessed his punishment at life

imprisonment in each case. The trial court sentenced him accordingly. Appellant
brings four issues on appeal, challenging the trial court’s ruling on his motion to

suppress and complaining of charge error. Because the trial court committed no

reversible error, we affirm the trial court’s judgments.

Brief Summary of Facts

          Fort Worth police suspected Appellant and Lisa Rasberry of aggravated

robbery with a handgun of people at a Fort Worth game room and of another

robbery two days later involving their attempt to steal a car in which they were

riding.     Monica Soto, another passenger, was shot and killed, and two other

passengers were injured.

          Police obtained warrants for the arrests of Lisa and Appellant for the game

room robbery and executed the warrants at the home of Lisa’s mother, Betty.

The home was located at 3051 Hutchison in Fort Worth, Texas. Betty told the

police that Appellant and Lisa were at the house, and she let the police in upon

their arrival. After they entered the home, the police discovered that Lisa and

Appellant were in a bedroom with the door closed and locked from the inside.

Officer Michael Johnson kicked open the door to execute the arrest warrants.

          When the officers entered the bedroom, they saw on the floor near the

mattress a gun matching the description of the one used in the robbery. After

Lisa and Appellant were taken into custody and removed from the room,

Detective Edward Brian Raynsford arrived at the home.              He read Betty a

consent-to-search form and asked for permission to search the room. After Betty




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consented to the search, Raynsford seized the handgun and articles of clothing

that he believed were used in the game room robbery.

       Appellant was charged with five counts of aggravated robbery for the

events at the game room. He filed a motion to suppress the evidence seized in

the warrantless search.     The State stipulated that “this [was] a warrantless

search.” Subsequently, the State clarified its position by agreeing that there was

no search warrant but pointing out that the officers seized the evidence in

question after they had entered under an arrest warrant and had seen the

evidence in plain view.    After a hearing, the trial court denied the motion to

suppress.

       A senior forensic scientist with the Fort Worth Police Department Crime

Lab testified that a casing found at the scene of the game room robbery matched

the handgun found in the bedroom. A forensic DNA analyst from the UNT Center

for Human Identification testified about her analysis of two swabs taken from the

gun. She stated that there was a mix of DNA from more than one person on the

gun. From her analysis, Appellant could not be excluded as a contributor to DNA

collected in the swabs.    His DNA fit the profile found on the grip, and she

expected that one out of every 7,479 people would fit that profile. His profile also

fit the DNA sample taken from the trigger of the gun, and she testified that the

probability of randomly selecting someone with that same profile was 1 in 4.9

million.




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      Appellant requested a jury instruction under code of criminal procedure

article 38.23. 1 His requested instruction would have told the jury to disregard all

evidence obtained from the search of the bedroom if a reasonable person would

believe that Appellant had a reasonable expectation of privacy in the searched

area and did not provide consent to the search, that Betty did not have actual or

apparent authority to consent to the search, and that the weapon was not in plain

view. He also requested that the trial court define “apparent consent” and “actual

consent.” The trial court denied the requests.

Motion to Suppress

      In his first issue, Appellant argues that because the police had no search

warrant, and fell within no exception to the warrant requirement, the search of the

bedroom and seizure of evidence violated the Fourth Amendment. He argues

that the police lacked the probable cause coupled with exigent circumstances

required to support the search of the bedroom in which they found the handgun

and clothing used in the robbery. In his second issue, he argues that Betty

lacked the authority and apparent authority to authorize the search of the

bedroom. Although both Appellant and the State agree that there were arrest

warrants for Lisa and Appellant, the arrest warrants are not part of the record.

We therefore cannot say whether the arrest warrants name a location to enter in

order to execute the warrants or whether the warrants contain instructions to

      1
       See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).



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search.   Because no one argues that the warrants were arrest-and-search

warrants, and because there is no evidence that the warrants contained

instructions to conduct a search, we treat the warrants solely as arrest warrants

that authorize no entry into a specific address to locate Appellant or Lisa.

      The officers entered the bedroom in Betty’s house where Appellant and

Lisa were sleeping on a mattress on the floor in order to execute arrest warrants

for Lisa and Appellant. The officers saw a black handgun and magazine lying on

the floor near Lisa. They also saw hats on the wall and other items of clothing

around the bedroom. The officers testified that the gun and clothing were in plain

view when they entered the bedroom. State’s Exhibit 43 shows the gun lying on

the floor near the mattress.

      While searches conducted without a warrant are per se unreasonable,

seizing contraband in plain view does not run afoul of the Fourth Amendment. 2

“The ‘plain view’ doctrine permits an officer to seize contraband which he sees in

plain sight or open view if he is lawfully where he is.” 3           That is, three

requirements must be met to justify the seizure of an object in plain view:

            First, law enforcement officials must lawfully be where the
      object can be “plainly viewed.” Second, the “incriminating character”
      of the object in plain view must be “immediately apparent” to the



      2
       Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
      3
       DeLao v. State, 550 S.W.2d 289, 291 (Tex. Crim. App. 1977).



                                         5
         officials. And third, the officials must have the right to access the
         object. 4

         We conclude that the seizure of the firearm, magazine, and clothing

satisfies these requirements.

         A well-recognized exception to the search warrant requirement is a search

pursuant to consent. 5 Betty not only gave the police permission to enter the

house and the bedroom, she called the police to tell them that her daughter and

Appellant had returned to the house so the officers could execute the arrest

warrants. Although Betty and her parents rented the house, it was Betty’s home

and she, therefore, had the authority to grant the police permission to enter the

house. 6

         But Appellant relied on Betty’s testimony that Lisa and Appellant stayed in

the searched bedroom about half the time and that they locked the door when

they were there to argue that Betty lacked authority to grant permission to search

the bedroom. 7 In the motion to suppress, Appellant referred to the home as his

residence.

         4
       Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009) (citations
and internal quotation marks omitted).
         5
         Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011).
         6
       See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993
(1974).
         7
         See Riordan v. State, 905 S.W.2d 765, 772 (Tex. App.—Austin 1995, no
pet.).



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      To comply with Payton v. New York, officers who execute an arrest

warrant must have a “reasonable belief that the suspect resides at the place to

be entered . . . and have reason to believe that the suspect is present” 8 at the

time the warrant is executed. 9 This rule of law presents something of a Catch-22

for Appellant. If the trial judge believed Appellant’s version of the facts, Appellant

was a resident of the home, and the police were lawfully in the home and

bedroom under the arrest warrant for him. 10 An arrest warrant authorizes entry

into a defendant’s own residence when there is reason to believe that the

defendant is within. 11 And, if Lisa was a resident of the house where the officers

executed the arrest warrants for Appellant and Lisa, as her driver’s license

indicates in State’s Exhibit 42, the arrest warrant for Lisa authorized entry into

her residence (and therefore the bedroom) to execute her arrest warrant. 12

Because the police were lawfully inside the bedroom, there was no impediment


      8
       Morgan v. State, 963 S.W.2d 201, 204 (Tex. App.—Houston [14th Dist.]
1998, no pet.) (citations and quotation marks omitted).
      9
        445 U.S. 573, 601–05, 100 S. Ct. 1371, 1388–89 (1980) (explaining that if
there “is sufficient evidence of a citizen’s participation in a felony to persuade a
judicial officer that his arrest is justified,” the police may “require him to open his
doors”).
      10
          See id.
      11
         Id.; Reno v. State, 882 S.W.2d 106, 108 (Tex. App.—Fort Worth 1994,
pet. ref’d); see also Morgan, 963 S.W.2d at 204.
      12
       See Payton, 445 U.S. at 601–05, 100 S. Ct. at 1388–89; Reno, 882
S.W.2d at 108; Morgan, 963 S.W.2d at 204.



                                          7
to executing Appellant’s arrest warrant or seizing the evidence. 13        If neither

Appellant nor Lisa was a resident of that house, Betty’s consent validly

authorized the officers’ entry into the home and bedroom. 14

      That is, whether because of consent or because they were executing

arrest warrants where Appellant or Lisa lived, the officers were lawfully in the

bedroom to execute the arrest warrants and required no additional search

warrant to discover the firearm, magazine, and items of clothing. The officers

were therefore authorized to seize weapons and evidence plainly visible while

they were executing the arrest warrants.        We overrule Appellant’s first and

second issues.

Jury Charge

      Appellant contends in his third and fourth issues that the trial court

reversibly erred by denying his requested article 38.23 jury instruction on plain

view and Betty’s apparent authority to consent. The State argues that Appellant

is estopped from complaining about the failure to submit instructions under article

38.23(a) because when testimony about the seized evidence was first elicited, he

informed the trial court that he was “not consenting to the relitigation . . . of the

motion to suppress.” Additionally, the State contends that Appellant was not


      13
       See Payton, 445 U.S. at 601–05, 100 S. Ct. at 1388–89; Reno, 882
S.W.2d at 108; Morgan, 963 S.W.2d at 204.
      14
        See Matlock, 415 U.S. at 171, 94 S. Ct. at 993.



                                         8
entitled to the instructions because there were no disputed issues of material fact

regarding the search of the bedroom after Appellant’s arrest there.

      Article 38.23(a) of the Texas Code of Criminal Procedure provides,

             (a) No evidence obtained by an officer or other person in
      violation of any provisions of the Constitution or laws of the State of
      Texas, or of the Constitution or laws of the United States of America,
      shall be admitted in evidence against the accused on the trial of any
      criminal case.

             In any case where the legal evidence raises an issue
      hereunder, the jury shall be instructed that if it believes, or has a
      reasonable doubt, that the evidence was obtained in violation of the
      provisions of this Article, then and in such event, the jury shall
      disregard any such evidence so obtained. 15

Appellant did not litigate the motion to suppress before the jury.           He did,

however, challenge the officers’ claim that the objects seized were in plain view.

The Texas Court of Criminal Appeals instructs us that the article 38.23 instruction

is proper only when the motion to suppress is litigated before the jury:

             A defendant’s right to the submission of jury instructions under
      Article 38.23(a) is limited to disputed issues of fact that are material
      to his claim of a constitutional or statutory violation that would render
      evidence inadmissible. We have previously explained:

                   The terms of the statute are mandatory, and
            when an issue of fact is raised, a defendant has a
            statutory right to have the jury charged accordingly.
            The only question is whether under the facts of a
            particular case an issue has been raised by the
            evidence so as to require a jury instruction. Where no
            issue is raised by the evidence, the trial court acts
            properly in refusing a request to charge the jury.


      15
        Tex. Code Crim. Proc. Ann. art. 38.23.



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              There are three requirements that a defendant must meet
       before he is entitled to the submission of a jury instruction under
       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.

              There must be a genuine dispute about a material fact. If
       there is no disputed factual issue, the legality of the conduct is
       determined by the trial judge alone, as a question of law. And if
       other facts, not in dispute, are sufficient to support the lawfulness of
       the challenged conduct, then the disputed fact issue is not submitted
       to the jury because it is not material to the ultimate admissibility of
       the evidence. The disputed fact must be an essential one in
       deciding the lawfulness of the challenged conduct. 16

       Appellant essentially objected to litigating the motion to suppress before

the jury while challenging the justification for seizing the evidence he complains

of. He argued that the gun was not in plain view and supported his argument

with the fact that the gun is not visible in State’s Exhibits 35 and 36. Appellant in

this case established all three elements required for the instruction. Thus, given

the posture of this case at the point the trial court instructed the jury on guilt, we

hold that the trial court erred by refusing Appellant’s requested jury instruction on

plain view. 17



       16
         Madden v. State, 242 S.W.3d 504, 509–11 (Tex. Crim. App. 2007)
(citations omitted).
       17
        See Oursbourn v. State, 259 S.W.3d 159, 165 (Tex. Crim. App. 2008).


                                            10
      We review jury charge error under the Almanza standard. 18 Error in the

charge, if timely objected to in the trial court, requires reversal if the error was

“calculated to injure the rights of [the] defendant,” which means no more than that

there must be some harm to the accused from the error. 19 In other words, a

properly preserved error will require reversal as long as the error is not

harmless. 20   This analysis requires a reviewing court to consider (1) the jury

charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence,

and (4) other relevant factors present in the record. 21

      The police entered the bedroom pursuant to an arrest warrant. They also

had consent to enter both the house and the bedroom. The factual issue of

whether the weapon, clothing, and glasses were in plain view was resolved by

photographic evidence. There was no evidence that State’s Exhibit 43 did not




      18
          Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g).
      19
       Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Abdnor v. State, 871
S.W.2d 726, 732 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171; see also
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
      20
          Almanza, 686 S.W.2d at 171.
      21
        Reeves, 420 S.W.3d at 816; see also Almanza, 686 S.W.2d at 171
(“[T]he actual degree of harm must be assayed in light of the entire jury charge,
the state of the evidence, including the contested issues and weight of probative
evidence, the argument of counsel and any other relevant information revealed
by the record of the trial as a whole.”).



                                         11
accurately depict the location of the gun and no challenge to the clothing’s being

in plain view other than the challenge to the lawfulness of the search.

         The police were lawfully in the bedroom when they saw the items depicted

in the photographs. The evidence of Appellant’s guilt was overwhelming. We

therefore hold that the trial court’s error in refusing the requested jury instruction

was harmless beyond a reasonable doubt, and we overrule Appellant’s third

issue.

         As for Appellant fourth issue, in which he argues he was entitled to a 38.23

instruction on Betty’s apparent authority to consent, the Texas Court of Criminal

Appeals has explained that a trial judge has a sua sponte duty to prepare a jury

charge that accurately sets out the law applicable to the specific offense

charged. 22 Article 38.23(a) requires a jury instruction only if there is a genuine

dispute about a material fact, and that fact must be essential to deciding the

lawfulness of the challenged conduct in obtaining the evidence. 23

         The circumstances of this case are unique. If either Appellant or Lisa lived

at the Hutchison address, as Appellant argues, and if, as a result, Betty had

neither actual nor apparent authority to consent to the police entry into the

bedroom, the police were nonetheless authorized to enter the bedroom to

execute the arrest warrants, as we explained in our disposition of Appellant’s first

         22
          Oursbourn, 259 S.W.3d at 179.
         23
          See Madden, 242 S.W.3d at 510.



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two issues. Betty’s authority to consent to the search under those circumstances

would be irrelevant. If neither Lisa nor Appellant lived at the Hutchison address,

contrary to Appellant’s position, there is no question of Betty’s authority to

consent. Appellant, therefore, was not entitled to a 38.23 instruction regarding

Betty’s authority or apparent authority. We overrule his fourth issue.

Conclusion

      Having overruled Appellant’s four issues, we affirm the trial court’s

judgments.



                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

LIVINGSTON, C.J., filed a concurring opinion in which GABRIEL, J., joins.

PUBLISH

DELIVERED: April 23, 2015




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