
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-04-00005-CR


Mario Gonzalez, Appellant

v.

The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. 007834, HONORABLE JULIE KOCUREK, JUDGE PRESIDING


D I S S E N T I N G   O P I N I O N


	Tom Owens, an Austin police officer, responds to a 911 call for assistance.  He is
advised by the dispatcher that the call originated within the Gonzalez apartment.  Upon arriving at
the apartment complex, Owens approaches the closed door of the apartment and hears voices around
the corner.  Instead of immediately attempting to enter the apartment, he follows the voices and finds
Alexander Gonzalez in a common area bleeding from a stab wound to the chest.  With him was
Arleen Aleman, who had blood on her clothes.  Gonzalez is agitated and evasive.  After EMS and
another officer arrive, he spends considerable time attempting to question both Alexander Gonzalez
and Aleman, but the pair will not disclose even a most basic account of how Alexander Gonzalez
was injured or if any other persons were involved.  As EMS begins to take him away, the evasive
and uncooperative Gonzalez specifically insists that Aleman lock his apartment. 
	Applying well-established Fourth Amendment jurisprudence and the objective
standard of reasonableness under the emergency doctrine, I cannot agree with the majority because
I believe the emergency doctrine justified the search in this case.  An appellate court is to apply an
objective standard of reasonableness, taking into account all of the facts and circumstances known
to police at the time, when determining if a search is justified under the emergency doctrine.  See
Laney v. State, 117 S.W.3d 854, 858-59 (Tex. Crim. App. 2003).  Under this test, we must
determine: (1) whether the officer's entry into the apartment was totally divorced from the detection,
investigation, or acquisition of evidence; (2) whether there was an immediate, objectively reasonable
belief that it was necessary to enter the apartment to protect or preserve life or to avoid serious
injury; and (3) whether the scope of the search was strictly circumscribed by the facts of the
emergency.  See id. at 861-62.
	I agree with the majority on the first Laney prong--the officer's entry in this case was
totally divorced from a search for evidence.  See id.  In relation to the third prong, I would find that
the scope of the search was strictly limited by the facts of the emergency.  See id.  The officer entered
the apartment and observed blood on one of the chairs.  He then went into the kitchen and saw in the
sink a knife with blood on its tip.  He went into the bedroom and saw in plain view on the dresser
a scale, powder, and a straw.  There was also a plastic bag with white powder in an open drawer. 
After making these observations, the officer left the apartment, locked the door, and reported to his
supervisor.  All this evidence is admissible if the officer's warrantless search was justified.  See
Brimage v. State, 918 S.W.2d 466, 501 n.5 (Tex. Crim. App. 1996) (when police enter residence
pursuant to emergency doctrine, evidence in plain view may be seized); see also Nilson v. State, 106
S.W.3d 869, 872 (Tex. App.--Dallas 2003, no pet.) (where illegal warrantless search provides basis
for search warrant, evidence obtained pursuant to search warrant suppressed); State v. Guo, 64
S.W.3d 662, 668 (Tex. App.--Houston [1st Dist.] 2001, no pet.).
	Thus, the only issue in this case is whether there was an immediate, objectively
reasonable belief that it was necessary to enter the apartment to protect or preserve life or to avoid
serious injury.  Id.  The emergency doctrine requires that we not second-guess officers' actions
through 20-20 hindsight or theoretical prisms.  Rather, we are to apply the standard in a way that
avoids chilling our law enforcement officers from entering property when they reasonably believe
it necessary to protect or preserve life.  The existence of some other conceivable explanation for
Alexander Gonzalez's actions does not detract from the facts as they appeared to the officer at the
time he decided to enter the apartment.  He had been called to apartment 114 but had yet to enter. 
Instead, he attended to Alexander Gonzalez, who was outside the apartment.  He was never able to
determine what had happened.  I would find that these facts made it reasonable to conclude that
Alexander Gonzalez was the victim of a violent crime and that another victim might have been
located in the apartment.  As a result, I would find the search in this case justified under the
emergency doctrine.
	I would affirm the trial court's denial of Mario Gonzalez's motion to suppress.  I
respectfully dissent.


					__________________________________________
					Bob Pemberton, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Filed:   October 28, 2004
