
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-06-00658-CR


Worthington Faulkner, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 00-1984, HONORABLE BOB PERKINS, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Appellant Worthington Faulkner appeals his conviction for possession of a controlled
substance, cocaine, in an amount of less than one gram, enhanced by four prior felony convictions. 
The jury found appellant guilty of the primary offense and found as "true" the allegations about
the prior convictions, in accordance with appellant's plea of "true."  The jury assessed appellant's
punishment at fifteen years' imprisonment and a fine of $500.

OUT-OF-TIME APPEAL
 Appellant's trial concluded on July 12, 2000.  The next day, appellate counsel
was appointed for appellant.  No appeal was ever taken.  On July 21, 2005, appellant filed a post-conviction writ of habeas corpus alleging, inter alia, the ineffective assistance of counsel on appeal. 
Appointed counsel filed an affidavit averring that he filed a motion for new trial which was overruled
by operation of law, but he gave no notice of appeal and took no action to prosecute the appeal.  On
July 21, 2006, the trial court entered findings of fact and recommended to the Texas Court
of Criminal Appeals that relief be granted on the basis of ineffective assistance of counsel.  In an
unpublished opinion, the court of criminal appeals granted appellant an out-of-time appeal.  Ex parte
Worthington Faulkner, No. AP-75,497 (Tex. Crim. App. Sept. 13, 2006), available at
http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=14381 (not designated
for publication).  Mandate issued on October 12, 2006.  New counsel was appointed, the new motion
for new trial was overruled by operation of law, and notice of appeal was given.  The trial court
certified the right of appeal.

STATEMENT OF FACTS
 At appellant's trial in 2000, the State called four witnesses to testify:  the two
arresting officers, a forensic chemist, and a detective in the chain of custody of the cocaine found. 
Appellant did not testify, call any witnesses, or present evidence.
		On February 2, 2000, around 10:30 p.m., Austin Police Officers Jose Reyes
and Abdul Khaliq were on patrol individually.  They were alerted by the police dispatcher to a loud-music complaint about apartment 111B in the Eddington Apartment Complex, located at
2510 Elmont in southeast Austin.  Officer Reyes lived at the apartment complex with his wife, who
was the manager of the apartments.  He described the units as "efficiencies," much like a studio
with room dividers.
		Officers Reyes and Khaliq arrived in separate police vehicles.  They went to
apartment 111B together and spoke to the resident.  Officer Khaliq noted that the music was
not unreasonably loud.  Nevertheless, the resident agreed to turn his music down.  From where they
were standing, the officers could hear extremely loud music, obviously violating the city noise
ordinance, coming from apartment 112B (1) adjacent to apartment 111B.  The officers knocked on the
door, and appellant opened the door.  He was not known to either officer.  Appellant was wearing
a pair of blue jeans, partially unbuttoned, and his belt was unbuckled.  Appellant was not wearing
a shirt, socks, or shoes.  Officer Reyes said that in these situations, that he had a habit of taking a
quick look for "safety" reasons.  When the door opened and Officer Reyes was standing outside of
the apartment, he saw something on an inside counter, three or four feet from the doorway.  He had
a clear and unobstructed view of a mirror, razor blade, and white powder which appeared to be
cocaine on the counter.
		Officer Khaliq began to converse with appellant, telling him that his music was
too loud.  Officer Khaliq asked, "Do you mind if we come in?"  Appellant replied, "Come on in. 
Let me get a shirt on."  Officer Reyes elbowed Officer Khaliq and said, "Look.  Hey, do you see
that?"  Officer Khaliq immediately saw the contraband, the razor blade, and the mirror "right in
the doorway."
		When appellant returned to the doorway, Officer Reyes entered the efficiency
apartment, informed appellant of his arrest for possession of cocaine, and secured the cocaine
for evidence.  Appellant was alone in the apartment, which he acknowledged was his.  He gave
the officers his driver's license for identification and gave them the keys to lock the apartment when
they left.  Officer Khaliq received a positive result when he performed a field test on the substance
found in the apartment.  The substance was placed in a evidence bag and a chain-of-custody form
was completed at the jail.
		Marynelle Villarreal, a forensic chemist with the Austin Police Department, testified
that her chemical analysis of the substance showed that it was cocaine of less than one gram. 
Detective Joseph Lukas gave testimony that completed the chain of custody of the cocaine. 
Appellant offered no evidence.
		The case was submitted to the jury, including instructions under article 38.23(a). 
Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). (2)

POINT OF ERROR
		In his sole point of error, appellant complains that the "trial court erred in finding the
appellant guilty of possession of a controlled substance because the evidence presented in the trial
of appellant should have been suppressed."
		In stating his point of error, appellant overlooks the fact that the jury, not the trial
court, convicted appellant.  He briefly states the facts, cites the Fourth Amendment to the United
States Constitution, and contends that the burden of proof is on the State to show consent to search
as an exception to the requirements of the Fourth Amendment.  Appellant asserts, without recitation
of proven facts, that he never invited the officers into his apartment, never gave consent to search,
and did not give the officers reason to fear for their safety.  As noted, appellant did not offer
any evidence and he does not point to any affirmatively contested issue of fact that is material
to the lawfulness of any challenged conduct in obtaining the evidence.  See Madden v. State,
242 S.W.3d 504, 510 (Tex. Crim. App. 2007).  He only calls attention to Officer Reyes's testimony
that he did not remember what appellant said regarding permission to enter the apartment because
the conversation was with the other officer.  Officer Reyes had testified that he was outside the
apartment, where he had a right to be, (3) when appellant opened the door.  It was then that Officer
Reyes observed in plain view, the contraband on the counter inside the apartment.  Appellant does
not brief or mention the plain-view observation or plain-view seizures.
		In arguing that the trial court erred in failing to suppress evidence of the seizure of
cocaine in his apartment, appellant does not explain or even mention how his claimed error was
preserved.  A defendant may challenge the legality of a search or seizure and preserve error in
the process in one of three ways:  (1) by filing a pretrial motion to suppress evidence, obtaining a
hearing, and securing an adverse ruling; (2) by waiting until trial on the merits, objecting when the
alleged unlawfully obtained evidence is offered, and securing a ruling; or (3) by raising a factual
dispute concerning the circumstances of the search or seizure and requesting an article 38.23(a) jury
instruction and a ruling thereon.
		In the instant case, there is no record of any trial objection to evidence of the officers
obtaining the cocaine in appellant's apartment.  Appellant did not preserve error in this manner.  A
pretrial motion to suppress evidence was filed.  The proposed orders attached to the motion, which
set the motion for hearing and sought a ruling on the motion, are undated, unsigned, and the blanks
therein are not filled out.  There is no court reporter's record of a suppression hearing or a docket
sheet entry indicating such a hearing or ruling by the trial court.  There is a passing reference during
Officer Khaliq's trial testimony to a hearing on May 2, 2000, but the hearing was not identified. 
Appellant makes no claim that there was a pretrial suppression hearing.
		When a pretrial motion to suppress evidence is heard and overruled, the defendant
need not subsequently object at trial to the same evidence in order to preserve error on appeal. 
Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Lemons v. State, 135 S.W.3d 878,
882 (Tex. App.--Houston [1st Dist.] 2004, no pet.).  This might account for appellant's failure to
object at trial if there had been a suppression hearing and an adverse ruling, but we have no positive
evidence of such hearing in this record.  The State urges that, even when there is an adverse pretrial
suppression ruling, a defendant waives his claim to the inadmissibility of the challenged evidence
when he has "no objection" to the offer of the complained-of evidence at trial.  See Moody v. State,
827 S.W.2d 875, 889 (Tex. Crim. App. 1992).  The State does not rely upon appellant's expressed
"no objection" at trial, but calls attention to a pretrial hearing on appellant's motion in limine, heard
just before trial.  Item 8 of appellant's motion in limine stated:

	8.	That certain articles seized as a result of search warrants may be offered into
evidence.  Defendant requests that the Court determine prior to their offer,
outside the presence of the jury the legality of such search an[d] seizure. (4)


		At the hearing the prosecutor voiced her objections to the trial court about several
items in appellant's motion in limine.  The colloquy in the record reflects:


	Ms. McCracken 
	[prosecutor]:		No. 8, certain articles seized as a result of search warrants
may be offered into evidence.  I would just say we're clear on
this.  I'm assuming we can go ahead with the cocaine in his
apartment.

	Mr. Garza 
	[defense counsel]:	No problem.


		As the parties appeared to agree, the trial court made no ruling on item 8.  The State
urges that defense counsel's "no problem" is equivalent to "no objection" to the offer of the
challenged evidence at trial.
		Even though appellant did not secure an adverse pretrial suppression ruling, or object
at trial, and/or waived any preservation of error earlier obtained, he did not waive his right to a jury
instruction under article 38.23(a).  Holmes v. State, 248 S.W.3d 194, 202 (Tex. Crim. App. 2008). 
Article 38.23(a) is the Texas exclusionary rule. (5)  There is a definite distinction between the
admissibility of evidence under the first sentence of article 38.23(a), which is decided solely by the
trial court, and the second sentence concerning the jury's role under article 38.23(a) in considering
evidence that has already been admitted before the jury. (6)  This distinction is well explained in Pierce
v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000).  The second sentence of article 38.23(a) can
operate only if the trial court has admitted evidence and only if there is a contested issue of fact about
the obtaining of evidence.  Id.  There is nothing to instruct the jury about if the suppression question
is one of law only, and there is nothing to instruct the jury about unless there is affirmative evidence
that raises a contested fact issue, a conflict concerning a specific historical fact that is material to the
legality of obtaining the evidence.  Holmes, 248 S.W.3d at 199-200.
		There are three requirements that a defendant must meet before he is entitled to 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.  Madden,
242 S.W.3d at 510.  There must be a genuine dispute about a material fact.  Id.; Garza v. State,
126 S.W.3d 79, 85 (Tex. Crim. App. 2004).
		Was there a genuine dispute about a material fact in the instant case about the legality
of the officers obtaining the cocaine?  Officer Reyes testified that he took a quick look for
safety reasons when appellant opened his apartment door.  While standing outside the apartment,
Officer Reyes made a "plain view observation" of a mirror, a razor blade, and a white powder that
he recognized as cocaine on a counter just inside the apartment.
		"What a person knowingly exposes to the public, even in his own home or office,
is not subject to Fourth Amendment protection. . . .  It is simply not a search to observe that which
is open to view."  Long v. State, 532 S.W.2d 591, 594 (Tex. Crim. App. 1975) (citations omitted). 
"An officer who is able, without intruding upon a suspect's reasonable expectation of privacy,
to observe matters does not, in taking advantage of that opportunity by making the observation,
engage in a 'search.'"  40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice
and Procedure § 5.24 (2d ed. 2001).  The rise of the term "plain view" or "plain view observation"
must be distinguished from the phrase "plain view seizure."  Id.  (citing Horton v. California,
496 U.S. 128, 133 n.5 (1990)).
		Here, there was no dispute about Officer Reyes's testimony.  There were no facts
affirmatively contesting his version of the events.  Officer Khaliq testified that Officer Reyes nudged
him before either of them entered the apartment and Officer Reyes told him to "look" and pointed
to the counter where Officer Khaliq observed, in plain view, the white-powder contraband.  Officer
Khaliq did not change his trial testimony.  His answers on cross-examination acknowledged that in
his written report and in some earlier hearing, he indicated that he entered the apartment before he
observed the cocaine in plain view.  He stated that this was incorrect.  He and Officer Reyes did not
enter the apartment until after appellant returned with his shirt on.
		Officer Khaliq testified that when the shirtless appellant answered the knock on
the door, appellant was told that his music was too loud and asked if the officers could enter
the apartment.  Officer Khaliq said that appellant responded, "Come on in, let me get a shirt on." 
Such testimony as to voluntary consent to enter the apartment went unchallenged.  Once legally
inside the apartment with appellant's consent, the officers were in a position where they had a right
to be and to seize any contraband within plain view or plain-view observation.  A review of the
record shows that there was no genuine issue about the legality of the officers obtaining the cocaine. 
Appellant was not entitled to an article 38.23(a) jury instruction.  Appellant therefore received more
from the trial court than he deserved when such a charge was given.
		Not having preserved error as to the trial court's admission of the complained-of
evidence and having received a gratuitous article 38.23(a) jury charge, we find no merit in
appellant's sole point of error.
		The judgment of conviction is affirmed.


 
						John F. Onion, Jr., Justice
Before Justices Pemberton, Waldrop and Onion*
Affirmed
Filed:   July 10, 2008
Do Not Publish








*  Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting by
assignment.  See Tex. Gov't Code Ann. § 74.003(b) (West 2005).
1.   The apartment is sometimes referred to in the record and the briefs as "Apartment 112C." 
It appears to be the same apartment whatever the designation.
2.   A defendant is normally entitled to a jury instruction under article 38.23 only when the
evidence heard by the jury raises an affirmatively contested issue of fact that is material to the
lawfulness of the challenged conduct in obtaining the evidence.  Madden v. State, 242 S.W.3d 504,
508-11 (Tex. Crim. App. 2007).
3.   Because this was an encounter between a citizen and the police officers, the officers did
not need reasonable suspicion to knock on appellant's door.  State v. Garcia-Cantu, PD-0936-07 &
PD-0937-07, 2008 Tex. Crim. App. LEXIS 581 at *15-16 (Tex. Crim. App. May 7, 2008); State
v. Perez, 85 S.W.3d 817, 818 (Tex. Crim. App. 2002); State v. Carranza, 162 S.W.3d 407, 409
(Tex. App.--Beaumont 2005, pet. ref'd).  Absent express orders against trespass, a police officer,
like a common citizen, has a right to approach the front door of a residence and knock.  Cornealius
v. State, 900 S.W.2d 731, 734 (Tex. Crim. App. 1995).
4.   There is, of course, no search warrant in the case.  The seizure of the cocaine was without
a warrant and appellant's arrest was warrantless.
5.   Article 38.23(a) provides:

	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 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.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005).
6.   In Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008), the Court stated:

We reiterated this view most recently in our unpublished Hromadka decision
[Hromadka v. State, No. PD-1329-00 (Tex. Crim. App. Apr. 9, 2003), available at
http://www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=114,629
(not designated for publication)]:
 
	[T]he issue presented to the trial judge--the admissibility of
evidence--is independent of the issue given to the jury in the
charge--whether the evidence may be considered in reaching a
verdict.  A defendant's decision whether to seek the judge's ruling on
admissibility does not affect his right to have the jury instructed on a
particular issue.
