                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00056-CR

GABRIEL ANTHONY JIMENEZ,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 06-00382-CRF-361


                          MEMORANDUM OPINION


      After the trial court denied his motion to suppress, Gabriel Jimenez pled guilty to

two counts of possession of a controlled substance. He was sentenced in each count to

one year in jail and a fine of $3,000. His sentence was suspended and he was placed on

community supervision for two years. Jimenez appeals the denial of his motion to

suppress. Because the trial court did not abuse its discretion in denying the motion to

suppress, we affirm the trial court’s judgment.

                                     BACKGROUND

      Officer Holt of the Bryan Police Department was dispatched on a loud noise call
to Jimenez’s house a little after 2 a.m. on October 2, 2005. Holt observed a party going

on at the house where minors were drinking beer obtained from a keg in the back yard.

Through the open front door, he also observed a marijuana bong in the living room of

the house. Holt asked Jimenez’s roommate, Chad Lovell, if he could enter the house.

Lovell agreed.1 Jimenez also agreed to Holt’s entry but was rude and patronizing to the

officer.2 Once inside, and due to Jimenez’s behavior toward the officer, Holt patted

down Jimenez to check for weapons. Holt felt a bulge in the back waistline of Jimenez’s

pants that felt like a prescription pill bottle. He asked Jimenez about the bulge and

Jimenez denied having anything on him. While talking with Holt, Jimenez shook the

pill bottle down the leg of his pants. It fell out of his pants onto the floor. Holt picked it

up and saw two different prescription pills inside a pill bottle with no prescription

label.

                                           WARRANTLESS ENTRY

           In his sole issue, Jimenez contends that the trial court abused its discretion in

denying the motion to suppress evidence obtained during a warrantless entry into his

house. Specifically, he argues that there were no exigent circumstances which would

allow an exception to the warrant requirement. Jimenez however, ignores the trial

court’s written findings of fact. The court found, not only that exigent circumstances

existed for the entry, but also that Holt had consent from Lovell and Jimenez to enter

the house. The court also found that Holt’s testimony was credible and that Lovell’s


1   Lovell testified at the motion to suppress hearing that Holt did not ask for permission to enter the house.

2   Jimenez did not testify at the motion to suppress hearing.

Jimenez v. State                                                                                        Page 2
testimony that Holt did not ask for permission to enter the house was not credible.

        A finding of exigent circumstances is not the only exception to the warrant

requirement for entry into a person’s home. Consensual entry is another exception.

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973);

Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). Jimenez does not challenge

the trial court’s findings regarding consent to entry. See State v. Aviles, No. 10-07-00371-

CR, 2008 Tex. App. LEXIS 2577, *3 (Tex. App.—Waco Apr. 9, 2008, no pet.) (mem. op.)

(“[B]efore we can hold that a trial court erred vi[s-a-vis] an evidentiary ruling, it is

incumbent upon the party having the burden to prove error on appeal (i.e., the

appellant) to negate each potential basis supporting the ruling." quoting In re T.M., 33

S.W.3d 341, 348 (Tex. App.—Amarillo 2000, no pet.)). Further, the evidence in the

record supports the trial court’s finding. Johnson v. State, 226 S.W.3d 439, 443 (Tex.

Crim. App. 2007). Accordingly, the trial court did not abuse its discretion in denying

Jimenez’s motion to suppress.

        The trial court’s judgment is affirmed.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
Affirmed
Opinion delivered and filed October 8, 2008
Do not publish
[CR25]


Jimenez v. State                                                                      Page 3
