                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00110-CR
                              NO. 02-12-00111-CR


STEVEN RAY DOTSON                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                   Introduction

      Appellant Steven Ray Dotson appeals his convictions for possession of a

controlled substance with intent to deliver. In three points, he claims the trial

court abused its discretion by denying his pretrial motion to suppress. We affirm.




      1
       See Tex. R. App. P. 47.4.
                                   Background

      In 2010, the City of Hurst formed the Hurst Intervention Team (HIT), a

multi-agency task force composed of police officers, firefighters, code

enforcement officers, building inspectors, mental health workers (MHMR), child

protective services personnel (CPS), animal control officers, and officials from

other agencies as needed. HIT member Debbie Branham, a code enforcement

officer for the city, testified at the hearing on Appellant’s motion to suppress that

Appellant’s house was considered a nuisance in the neighborhood and had for

several years been the subject of numerous complaints about trash, debris, high

grass, and weeds.

      Appellant and his father allowed HIT inside the house during a visit in

September 2010. The team found the conditions inside unsanitary––exposed

food, cobwebs, roaches, feces on the floor and in the bathroom––and

hazardous––trash and dirt piled next to a heater and extension cords running

throughout the rooms. Branham advised Appellant that HIT would allow him

some time to clean the place up. After a couple of months, the team returned to

find that the conditions outside the house had been improved; however, no one

was allowed entry inside the house to assess conditions there on any

subsequent visit.

      In response to persistent complaints from neighbors, Branham secured an

administrative search warrant, which authorized a follow-up investigation of the




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inside of Appellant’s house to determine whether health and safety code

violations continued.

      HIT executed the warrant on March 15, 2011. Police Officer Briane Dibley

and another officer accompanied Branham, along with MHMR personnel and an

animal control officer. The police functioned primarily to secure the house and

ensure its safety for the inspection. Upon entering the house, the team found the

conditions “substandard,” meaning unlivable for a human being under the city’s

property maintenance code.

      Appellant’s mother, Betty Dotson, answered the door when HIT executed

the warrant. Branham asked for Appellant, who was the owner of the house.

Appellant came to the door and sat down. The police officers searched the

house for others and brought all occupants to the living room. Branham was not

present while the officers talked to the occupants; she was checking all the

rooms for code violations and unsanitary conditions.          Nor was she there to

confiscate or seize any property. When officers learned that Appellant had a

warrant out for his arrest, they arrested him and took him to the city jail.

      Hurst Police Officer Jonas Ceja, a member of the Tarrant County Narcotics

Task Force, testified that Officer Dibley called him from the jail about some drugs

that had been seized from a house in Hurst. Officer Ceja met with Officer Dibley

at the police station, where she briefed him that, while assisting the code-

enforcement unit at Appellant’s house, she arrested Appellant on an outstanding

traffic warrant, and that Appellant had requested that his medications accompany


                                          3
him to the jail.   She further advised that she gathered the medications and

transported them to the jail, where during their inventory she noticed that the pills

did not match the prescription labels on the bottles.

      Officer Ceja testified that he took custody of the pills and that he

interviewed Appellant about the drugs.

      Branham testified that she did not hear Appellant ask for his pills because

she had been checking for code violations in another room. Officer Ceja testified

that the arresting officer, Dibley, told him that Appellant had asked her to take his

prescribed medications to the jail. Ashley Dotson, one of the occupants of the

house, testified for Appellant that she did not hear Appellant ask for his pills.

      The trial court denied Appellant’s motion to suppress. A jury found him

guilty, assessed his punishment at twenty-six years’ confinement, and the trial

court sentenced him accordingly.

                                 Issues on Appeal

      Appellant combines his three points into a single argument challenging the

propriety of the trial court’s denying his motion to suppress because the pills

seized from his bedroom and his incriminating statements were inadmissible

fruits of an unlawful search and seizure.

                                 Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.     Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).


                                            4
In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).                   At a

suppression hearing the trial judge is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony. Wiede v.

State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d

853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen,

195 S.W.3d 696 (Tex. Crim. App. 2006).             Therefore, we give almost total

deference to the trial court’s rulings on questions of historical fact, even if the trial

court’s determination of those facts was not based on an evaluation of credibility

and demeanor, and application-of-law-to-fact questions that turn on an evaluation

of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State,

195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d

644, 652–53 (Tex. Crim. App. 2002). When application-of-law-to-fact questions

do not turn on the credibility and demeanor of the witnesses, we review the trial

court’s rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada

v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at

652–53. When reviewing the trial court’s ruling on a motion to suppress, we view

the evidence in the light most favorable to the trial court’s ruling. Wiede, 214

S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).




                                           5
                                    Analysis

      Citing Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416

(1963), Appellant contends that HIT exceeded the scope and authority of the

administrative search warrant by conducting an exploratory search of his house

and thereby unlawfully seized his medications.2 The State responds that the

search for and seizure of Appellant’s medications in his bedroom was

consensual because Appellant asked the officer to go into his bedroom and

retrieve them. We agree.

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093

(2009). A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. After a defendant has

made this showing, the burden of proof shifts to the State, which then must

establish that the search or seizure was authorized by a warrant or was



      2
       Appellant claims in his brief that the evidence used to support the validity
of the administrative search warrant was “stale.” But because Appellant did not
raise this issue in the trial court, it will not be heard now for the first time on
appeal. See Tex. R. App. P. 33.1(a).


                                        6
reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.

App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

      A search conducted without a warrant is per se unreasonable unless it falls

within one of the “specifically defined and well-established” exceptions to the

warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.),

cert. denied, 540 U.S. 1004 (2003); see Best, 118 S.W.3d at 862. One well-

established exception is a search conducted pursuant to consent. Meekins v.

State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973)). Voluntary

consent to a warrantless search violates neither the United States or Texas

constitutions nor the laws of Texas. Brimage v. State, 918 S.W.2d 466, 480

(Tex. Crim. App. 1994) (citing United States v. Matlock, 415 U.S. 164, 94

S.Ct. 988 (1974)), cert. denied, 519 U.S. 838 (1996); Spight v. State, 76 S.W.3d

761, 768 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

      The standard for measuring the scope of a suspect’s consent under the

Fourth Amendment is that of “objective reasonableness—what would the typical

reasonable person have understood by the exchange between the officer and the

suspect?”   Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803–04

(1991). A court reviewing the totality of circumstances of a particular police-

citizen interaction does so without regard for the subjective thoughts of the officer

or the citizen. Maryland v. Macon, 472 U.S. 463, 470–71, 105 S. Ct. 2778, 2783

(1985); Meekins, 340 S.W.3d at 459.          In Texas, the “clear and convincing”


                                         7
burden requires the prosecution to show that the consent given was positive and

unequivocal and that there must not have been duress or coercion, express or

implied. Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985); see Tex.

Const. art. 1, § 9.   If the record supports a finding by clear and convincing

evidence that the consent given was free and voluntary, this court may not

disturb the trial court’s finding. Ramos v. State, 124 S.W.3d 326, 332 (Tex.

App.—Fort Worth, 2003, pet. ref’d); State v. Hunter, 102 S.W.3d 306, 309 (Tex.

App.—Fort Worth 2003, no pet.) (citing Reasor v. State, 12 S.W.3d 813, 818

(Tex. Crim. App. 2000)); Spight, 76 S.W.3d at 768.

      Appellant argues that probable cause for the administrative warrant only

allowed a search based on the unkempt condition of the exterior of the house for

health and safety purposes and that, once the officers were inside the house as

authorized by the warrant, they overreached and went beyond its scope in

seizing Appellant’s medications. But the issue as developed at the hearing on

the motion to suppress and at trial was whether Appellant consented to the

seizure of his medications by requesting Officer Dibley to obtain his medications

for him, not whether the officers seized Appellant’s medications in the course of

an unlawful search.

      The record as it existed at the time of the suppression hearing contains

conflicting testimony with regard to whether Appellant consented. It shows that

Branham did not hear Appellant ask for his medications because she was in

another room inspecting the house for code violations; that Officer Dibley told


                                       8
Officer Ceja that Appellant asked her to obtain his pills from his bedroom and

bring them to the jail before they left the house; and that Ashley Dotson,

Appellant’s niece, who also testified, did not remember whether Appellant asked

for his medications.

      Appellant contends that Officer Dibley’s account of how she obtained the

medications was refuted by two other police officers (Keenan and Ceja) the code

compliance officer (Branham), as well as one of the occupants of the home

(Ashley Dotson). We do not agree with this interpretation of the record of the

suppression hearing. Branham and Officer Ceja testified that they were not in

the room when any request was made. Officer Ceja was never at the house, and

Branham was inspecting other rooms. Ashley Dotson testified that, although she

was in the living room, she did not hear Appellant make a request for his

medications.   Officer Keenan testified that she participated in the protective

sweep while the warrant was executed, served primarily a security function, and

did not hear Appellant ask Officer Dibley to fetch his medications.

      The trial court was entitled to rely upon Officer Ceja’s account of what

Officer Dibley told him, to disbelieve Ashley Dotson, and to believe that Keenan

was occupied with other matters when Appellant asked for his medications. See

Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002) (holding rules of

evidence, with the exception of privileges, do not apply in suppression hearings),

cert. denied, 538 U.S. 927 (2003); Garcia v. State, 15 S.W.3d 533, 535 (Tex.

Crim. App. 2000) (holding judge may believe or disbelieve all or any part of a


                                         9
witness’s testimony). As the State points out in its brief, Ashley Dotson was on

probation and could lose custody of her child if she were found in a house where

drugs were being illegally sold.

       Moreover, Officer Dibley confirmed by her testimony at trial that Appellant

requested her to retrieve his medications from his bedroom when he was

arrested and to bring them to the jail because he needed to take them. 3 The trial

court was entitled to conclude that Appellant’s request that Officer Dibley obtain

his medications from his bedroom and bring them to the jail constituted express

consent for her to enter his bedroom and retrieve the pouch of pills at issue.

Given the absence of evidence that anyone explicitly or implicitly coerced or

threatened Appellant, the trial court was entitled to find that Appellant’s request

for Officer Dibley to get his medications amounted to voluntary consent. See

Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000).

      Because consent is a question of fact in this case that turned on the

credibility and demeanor of the witnesses, we give almost total deference to the

trial court’s judgment in weighing and determining the conflicting evidence.

Amador, 221 S.W.3d at 673. Here, after hearing all of the witnesses’ testimony

      3
       Generally, in determining whether the State demonstrated probable cause
and exigent circumstances, appellate review is limited to the record at the time
of the suppression hearing. O'Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim.
App. 2000). However, appellate review may include evidence adduced at trial
when, as here, “the suppression issue has been consensually re-litigated by the
parties during trial on the merits.” Turrubiate v. State, 399 S.W.3d 147, 150–
51 (Tex. Crim. App. 2013) (quoting Rachal v. State, 917 S.W.2d 799, 809 (Tex.
Crim. App.1996), cert. denied, 519 U.S. 1043 (1996)).


                                        10
and after weighing all of the evidence, the trial court denied Appellant’s motion to

suppress. Viewing the evidence in the light most favorable to the trial court’s

ruling, we hold that the trial court did not abuse its discretion in concluding that

Appellant consented to the search and seizure of his pills. By requesting that

Officer Dibley retrieve his medications from his bedroom, Appellant expressly

gave consent for her to do so. See Rose v. State, 308 S.W.2d 52, 53 (Tex. Crim.

App. 1957) (holding seizure of marihuana from suitcase valid when suitcase was

unknown to officers and defendant informed officers where it could be found and

invited officer to enter house to get it).   By retrieving only Appellant’s pouch

containing the medications from his bedroom, the officer did not exceed the

scope of Appellant’s consent. See Jimeno, 500 U.S. at 251, 111 S. Ct. at 1804;

McAllister v. State, 34 S.W.3d 346, 351 (Tex. Crim. App. 2000).

      Appellant’s contention that his incriminating statements made to Officer

Ceja should have been suppressed is not that he did not receive and waive

proper warnings but that his incriminating statements directly flowed from the

earlier illegality of the search and seizure of the drugs from his bedroom that

exceeded the scope of the administrative warrant, and that his statements were

thus likewise tainted. Appellant urges that there was no showing that the taint

was removed by any later actions of the police and, therefore, that his statements

should not have been admissible against him at trial. He reasons that but for the

earlier actions of the police in taking him into custody and seizing his

medications, he would not have been in a position to be questioned by the police


                                        11
so as to make the incriminating responses used against him at trial. Because we

have held that the trial court did not abuse its discretion in concluding that

Appellant consented to the search and seizure of his pills, it follows that his

statements to Officer Ceja were not tainted by any improper seizure of the

medications. We overrule Appellant’s three points.

                                    Conclusion

      Having overruled all of Appellant’s points, we affirm the trial court’s

judgment.



                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 12, 2014




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