                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-13-00001-CR


                        THE STATE OF TEXAS, APPELLANT

                                           V.

                       STARLA CARROLL STONE, APPELLEE

                       On Appeal from the County Court at Law No. 1
                                   Potter County, Texas
           Trial Court No. 133786-1, Honorable W. F. (Corky) Roberts, Presiding

                                     May 21, 2013

                           MEMORANDUM OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      The State of Texas appeals the trial court’s order granting appellee’s, Starla

Carroll Stone, motion to suppress evidence.      See TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(5) (West Supp. 2012). We will affirm.


                                      Background


      On or about March 31, 2012, the Potter County Sheriff’s Office dispatch received

a call that there was an “underage party” being held on the 2300 block of Robinson in
Bushland, Texas. Officer Kevin Coffman was dispatched to investigate the call. He

arrived at the location around midnight or 1:00 a.m. Observing an unusual amount of

parked cars in the area of 2305 Robinson, Coffman approached the residence and rang

the doorbell.   Looking through a nearby window, Coffman said that he saw nine

juveniles in a bedroom and that they appeared to be hiding. Coffman also said that he

could see fifteen “Solo” brand plastic cups in the kitchen, which, based on his training

and experience, “usually” contain alcohol. Not receiving a response, Coffman rang the

doorbell a second time. After approximately four minutes passed, appellee answered

the door. Coffman informed appellee that he was investigating a possible crime, and

asked her to step outside of the residence. According to Coffman, appellee complied

with his request, and gave him nonverbal consent to enter the residence.


      Coffman entered the residence and, in the attached garage, found a keg of beer,

two 30-packs of beer, and two bottles of liquor. Breathalyzer tests were performed on

the underage attendees resulting in the issuance of several consumption of alcohol by a

minor citations.   See TEX. ALCO. BEV. CODE ANN. § 106.04(a) (West Supp. 2012).

During the investigation, appellee’s son took responsibility for providing the alcohol to

the underage attendees and he was arrested.


      Appellee was charged by eight criminal informations with furnishing alcohol to a

minor. See TEX. ALCO. BEV. CODE ANN. § 106.06(a) (West Supp. 2012). The trial court

granted the State’s motion to consolidate each of the eight charges into one cause.

Appellee then filed a motion to suppress all evidence obtained from Coffman’s search of

the residence on the basis that the search was conducted without a warrant, consent, or

probable cause and exigent circumstances. The trial court held a hearing on the motion

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on November 21, 2012.       Only Coffman and appellee testified at this hearing.        On

November 28, 2012, the trial court signed an order granting appellee’s motion to

suppress.


       The State appealed the trial court’s order granting appellee’s motion to suppress.

See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5). By its sole issue, the State contends

that probable cause and exigent circumstances obviated the need for a search warrant

of appellee’s home.


                                   Standard of Review


       We review the trial court's ruling on a motion to suppress for abuse of discretion.

See State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006); Long v. State, 823

S.W.2d 259, 277 (Tex.Crim.App. 1991). At a suppression hearing, the trial court is the

sole trier of fact and judge of the credibility of witnesses and the weight to be given to

their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Wood v.

State, 18 S.W.3d 642, 646 (Tex.Crim.App. 2000). "Accordingly, the judge may believe

or disbelieve all or any part of a witness's testimony, even if that testimony is not

controverted." Ross, 32 S.W.3d at 855 (footnotes omitted). We afford almost total

deference to the trial court's determination of the historical facts that depend on an

evaluation of credibility and demeanor, but we review de novo the trial court's

application of the law to the facts if resolution of those ultimate questions do not turn on

evaluation of credibility and demeanor.     See Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997).




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      A search conducted without a warrant is per se unreasonable under the United

States and Texas Constitutions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507, 19 L.Ed.2d 576 (1967); Hulit v. State, 982 S.W.2d 431, 434 (Tex.Crim.App. 1998).

Once it is established that a search was conducted without a warrant, the burden is on

the State to prove the reasonableness of the search. Gonzalez v. State, 588 S.W.2d

355, 360 (Tex.Crim.App. 1979). One way to meet that burden is for the State to show

that probable cause and exigent circumstances justified the search. See Gutierrez v.

State, 221 S.W.3d 680, 685-86 (Tex.Crim.App. 2007).


      “Probable cause to search exists when reasonably trustworthy facts and

circumstances within the knowledge of the officer on the scene would lead a man of

reasonable prudence to believe that the instrumentality of a crime or evidence of a

crime will be found.” Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App. 2005)

(quoting McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991)). When the

search is of a residence, probable cause must be such that it “points like a beacon

toward the location.” Parker v. State, 206 S.W.3d 593, 597 (Tex.Crim.App. 2006). If

probable cause is present, the inquiry becomes whether exigent circumstances existed

to obviate the need for a search warrant and justify the initial warrantless entry.

McNairy, 835 S.W.2d at 107. Exigent circumstances include preventing the removal or

destruction of evidence or contraband. See id. If either probable cause or exigent

circumstances are not established, a warrantless entry will not withstand judicial

scrutiny. See Gutierrez, 221 S.W.3d at 685-86.




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                                          Analysis


       In the present case, neither party disputes that Coffman entered appellee’s

house without a warrant. Therefore, the burden is upon the State to prove the legality of

the warrantless search. See id.; Gonzalez, 588 S.W.2d at 360. The State contends

that the search of appellee’s residence was justified by the existence of probable cause

and exigent circumstances.1


       According to the State, the facts and circumstances known to Coffman indicating

that the instrumentality or evidence of a crime would be found in appellee’s home are

(1) the nature of the dispatch was specific to an underage party; 2 (2) there were more

vehicles in the area than would be usual for that time; (3) when Coffman arrived in a

marked patrol car, three vehicles left the scene; (4) when Coffman arrived, several

young people went into the residence; (5) Coffman observed nine juveniles in the

residence that appeared to him to be hiding; (6) Coffman also observed fifteen “Solo”

brand plastic cups in the kitchen, which, based on his training and experience, “usually”

contain alcohol; (7) after ringing the doorbell, Coffman had to wait approximately four

minutes before the door was answered even though he had seen people in the

       1
        We note that, at the suppression hearing, the State argued that appellee gave
Coffman nonverbal consent to enter the residence. See Meekins v. State, 340 S.W.3d
454, 458 ( 2011) (consent is an exception to the warrant requirement). However, on
appeal, the State indicated that it “will not focus on the consent exception.” Consistent
with that statement, the State presents no argument that appellee consented to a
search of her residence.
       2
          In Coffman’s written report, he indicated that he was dispatched to investigate
“an underage party.” However, at the hearing on appellee’s motion to suppress, he
testified that dispatch advised him that there was alcohol involved. We must afford
almost total deference to the trial court's determination of the historical facts that depend
on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89.


                                             5
residence before ringing the bell; and (8) when appellee answered the door, her lack of

focus and statement that she was about to go to bed seemed to Coffman to show a

reluctance to talk to law enforcement. The State contends that these facts are sufficient

to establish that Coffman had probable cause to enter the residence. We disagree.


      The first four facts highlighted by the State do no more than establish that there

was a party being held at appellee’s residence and that minors were in attendance.

Coffman’s opinion that nine minors appeared to be attempting to hide could be

disbelieved by the trial court but, even if believed, it does not evidence the commission

of a crime. Certainly, the trial court could have discounted Coffman’s observation that

there were “Solo” brand cups in the kitchen and his opinion that these cups “usually”

contain alcohol. Common knowledge leads us to conclude that there is nothing inherent

about “Solo” brand cups that make them more likely to contain alcohol than other kinds

of beverages. However, even if we were to conclude that these cups do “usually”

contain alcohol, there was evidence presented at the hearing that Coffman would not

have been able to see into the kitchen from appellee’s front door. The delay in appellee

answering the door and appellee’s behavior upon answering the door are easily

explained by the distractions of hosting a party and the noise typically associated with

such parties. After viewing all of the reasonably trustworthy facts and circumstances

known to Coffman, we cannot conclude that a man of reasonable prudence would

believe that the instrumentality of a crime or evidence of a crime would be found in

appellee’s residence. See Estrada, 154 S.W.3d at 609.




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      Because the absence of probable cause makes the warrantless entry into a

residence unjustified, see Gutierrez, 221 S.W.3d at 685-86, we conclude that the trial

court did not abuse its discretion in granting appellee’s motion to suppress.


                                       Conclusion


      Having determined that Coffman’s entry into appellee’s residence was not

supported by probable cause, we affirm the trial court’s order granting appellee’s motion

to suppress.




                                                Mackey K. Hancock
                                                    Justice


Do not publish.




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