Opinion filed July 28, 2016




                                                In The


            Eleventh Court of Appeals
                                           __________

                                    No. 11-14-00290-CR
                                        __________

                        JONATHAN SANCHEZ, Appellant
                                                  V.
                         THE STATE OF TEXAS, Appellee


                         On Appeal from the 350th District Court
                                     Taylor County, Texas
                               Trial Court Cause No. 11110-D


                          MEMORANDUM OPINION
        The jury found Jonathan Sanchez guilty of the third-degree felony of evading
arrest.1 The trial court assessed punishment at confinement for five years and a fine
of $500, but the trial court suspended the imposition of the sentence and placed


        1
         A person commits the offense of evading arrest if he “intentionally flees from a person he knows
is a peace officer . . . attempting lawfully to arrest or detain him.” TEX. PENAL CODE ANN. § 38.04(a),
(b)(2)(A) (West Supp. 2015).
Appellant on community supervision for five years. In a single issue, Appellant
asserts that the trial court erred when it denied his motion to suppress evidence from
police about what Appellant wore and looked like when he was arrested and what
Appellant told them. We affirm.
                                I. Evidence at Hearing
      Appellant filed a motion to suppress, and the trial court conducted a pretrial
hearing on the motion. The record from the hearing shows that, early in the morning
on the date of the offense, Appellant visited Elizabeth Lujan, his girlfriend. The two
had an argument in Lujan’s front yard, and Appellant got a crowbar from his black
Dodge pickup and broke the windows of Lujan’s vehicle. Both Lujan and Appellant
were intoxicated.    Lujan’s mother called the Abilene Police Department, and
Appellant fled in his pickup. Kurt Thomas, an Abilene police officer, responded to
the call and interviewed Lujan at her home.
      After Appellant fled from Lujan’s front yard and drove away in his pickup,
Daniel White, a trooper with the Texas Department of Public Safety, saw him
disregard a stop sign, drive to the left of a traffic island, and strike the curb of the
traffic island. Trooper White initiated a traffic stop; however, as he approached
Appellant’s pickup, Appellant sped away. When Trooper White initiated the stop
he had a prisoner in his patrol vehicle and was en route to the jail with that prisoner.
The Department of Public Safety does not permit officers to pursue a suspect if they
have a prisoner in the vehicle. Consequently, Trooper White followed Appellant
briefly but ultimately called for an “assist” from Abilene police.
      Jeremiah Torrez, an Abilene police officer, received the call to assist Trooper
White at around 2:56 a.m. Dispatch informed Officer Torrez that Trooper White
was in pursuit of a person evading arrest.        The Department of Public Safety
dispatcher conveyed Appellant’s license plate number. That number had already
been linked to a 9-1-1 call because of Lujan’s complaint of criminal mischief to
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Officer Thomas.           Officer Torrez proceeded to the address associated with
Appellant’s license plate. When he arrived at the address, he observed that “there
was still dirt and debris flying,” and he “could see the [black Dodge pickup] through
an open gate right behind [Appellant’s] residence, still smoking and . . . burning up
because it was hot from a pursuit.”2
        Appellant’s entire backyard was enclosed by a fence. The fence had a gate,
but the gate appeared to have been knocked down recently. 3                           Officer Torrez
hypothesized that it had been knocked down by Appellant as Appellant had entered
the property and “power-slid” into the backyard. Officer Torrez believed that
Appellant had just arrived. Officer Torrez entered the property through the open
gate and cleared the backyard at gunpoint to ensure that “nobody was hanging out.”
He then took a tactical position on the backside of Appellant’s house and notified
other officers that he had located Appellant’s pickup.
        Meanwhile, Lujan told Officer Thomas—who had remained at Lujan’s
residence to ensure that Appellant did not return to harm her or her property—that
she had spoken to Appellant by phone and that Appellant had threatened to “cut his
throat.” Lujan told Officer Thomas that, before Appellant hung up, she heard him
scream and make a gurgling sound and also heard a loud thumping sound like he had
hit the floor. Lujan was “very distraught”; Officer Thomas believed her and used
his radio to report to other officers what she had told him.
        Officer Torrez, while standing next to Appellant’s house, heard Appellant
yell, “You don’t think I’ll do this; I’ll show you.” Officer Torrez then received
Officer Thomas’s message that Appellant had just threatened to kill himself.
Appellant continued to make threats until Officer Torrez heard a “loud gurgling

        2
         Officer Torrez thought Appellant’s vehicle had overheated or “blown” from the strain put on the
vehicle during the pursuit.
        3
         Officer Torrez had seen Appellant’s house previously with the gate standing upright and closed.
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noise and then . . . a loud crash.” Officer Torrez then received another radio message
from Officer Thomas, who reported, “I think he -- she said he cut his throat.”
Officer Torrez and other officers then entered Appellant’s house and arrested him.
After Appellant was in custody, Officer Thomas reported that Appellant once again
contacted Lujan and this time told Lujan that he had not killed himself.
       Officer Torrez testified that he entered the backyard because he was “pursuing
the evading.” Officer Torrez testified that he entered the house as an “exigent
circumstance of the emergency doctrine” because he “believed that [Appellant] had
slit his throat.”
       In his motion to suppress, Appellant sought to suppress “all of the interactions
of [Abilene Police] entering the premises . . . not just the arrest itself, but all the
surrounding events, statements, descriptions of things seen within the residence,
[and] identification of him in the residence.” The trial court denied Appellant’s
motion to suppress.
                                      II. Analysis
       In a single issue, Appellant contends that the trial court erred when it denied
his motion to suppress because officers did not have a warrant or an applicable
warrant exception that permitted them to enter his yard and, later, his home. He
argues that the State is incorrect in its assertion that officers entered his yard under
the doctrine of “hot pursuit” and his house under exigent circumstances.
       In those situations where no findings of fact or conclusions of law in support
of the trial court’s ruling on a motion to suppress are either requested or made, “we
must presume that the trial court implicitly resolved all issues of historical fact and
witness credibility in the light most favorable to its ultimate ruling.” State v. Elias,
339 S.W.3d 667, 674 (Tex. Crim. App. 2011). When we review the trial court’s
ruling, we will accord the court’s implied findings “almost total deference” if its
determinations are supported by the record. See State v. Woodard, 341 S.W.3d 404,
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410 (Tex. Crim. App. 2011). We view the evidence in the light most favorable to
the trial court’s ruling and will afford its ruling “the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn from that evidence.” Id.
(quoting State v. Garcia Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)). The
trial court is the sole judge of the credibility of the witnesses and “may believe or
disbelieve all or any part of a witness’s testimony, even if that testimony is not
controverted.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (citations
omitted). When no findings of fact are made, we assume the trial court made implicit
findings of fact that support its ruling, so long as such implicit findings are supported
by the record. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).
      Even if we assume, without deciding, that Appellant is correct and the police
were not in hot pursuit, the police were, as we explain below, authorized to enter his
home under the doctrine of exigent circumstances for an emergency situation. As a
result, the information about what Appellant wore, what he looked like, and what he
said to police officers in his home was not the “fruit of the poisonous tree” because
the information that led to the entry of his home came from an independent source.
      The Fourth Amendment protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. CONST. amend. IV. For purposes of the Fourth Amendment, a “search” occurs
when the government violates a subjective expectation of privacy that society deems
objectively reasonable. See Kyllo v. United States, 533 U.S. 27, 33 (2001). The
entry into a residence by officers is a search for purposes of the Fourth Amendment.
Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010); see also Spring v.
State, 626 S.W.2d 37, 41 (Tex. Crim. App. [Panel Op.] 1981). Thus, absent an
exception to the warrant requirement, such as exigent circumstances, police may not
enter the residence of a suspect without first obtaining a warrant. U.S. C ONST.


                                            5
amend. IV; Valtierra, 310 S.W.3d at 448; see also Waugh v. State, 51 S.W.3d 714,
718 (Tex. App.—Eastland 2001, no pet.).
      The “fruit of the poisonous tree” doctrine serves to exclude from evidence
both direct and indirect products of Fourth Amendment violations. Wong Sun v.
United States, 371 U.S. 471, 484 (1963); State v. Iduarte, 268 S.W.3d 544, 550 (Tex.
Crim. App. 2008). But there are exceptions to this doctrine. One exception is the
“independent source” doctrine, which provides that evidence obtained with or
without a warrant is not subject to suppression if the prior unlawful action does not
contribute in any way to the discovery of the evidence. Wehrenberg v. State, 416
S.W.3d 458, 469 (Tex. Crim. App. 2013). “Because the independent source doctrine
is applicable only to situations in which there is no causal link between the illegal
conduct and the discovery or seizure of evidence, application of that doctrine is
entirely consistent with the statutory exclusionary rule’s requirement that evidence
‘obtained’ in violation of the law is subject to suppression.” Id. (citing TEX. CODE
CRIM. PROC. ANN. art. 38.23 (West 2005); State v. Daugherty, 931 S.W.2d 268, 270–
71 (Tex. Crim. App. 1996) (examining plain language of Article 38.23)); Johnson v.
State, 871 S.W.2d 744, 750–51 (Tex. Crim. App. 1994) (holding that federal
attenuation doctrine is consistent with Article 38.23 because “evidence sufficiently
attenuated from the violation of the law is not considered to be ‘obtained’
therefrom”); see also Segura v. United States, 468 U.S. 796, 814–15 (1984)
(discussing absence of causal link in situations involving independent source).
      To determine whether “evidence is admissible under the independent source
doctrine, the central question is ‘whether the evidence at issue was obtained by
independent legal means.’”     Wehrenberg, 416 S.W.3d at 465 (quoting United
States v. May, 214 F.3d 900, 906 (7th Cir. 2000)). In short, there must not be any
causal connection between the offending officer’s illegal action and the independent
discovery of evidence. See id. at 470. Even if Officer Torrez had improperly entered
                                          6
Appellant’s yard, Lujan was, nonetheless, an independent source when she told
Officer Thomas that Appellant had called her and immediately threatened to kill
himself.     The information she provided was sufficient to trigger an exigent-
circumstance exception to the warrant requirement.4 She was not acting as an agent
of the state or affected by any improper state action. Further, her statements were
wholly independent of Officer Torrez’s actions and those statements were an
independent source. See Wehrenberg, 416 S.W.3d at 469.
        Emergencies permit officers to make warrantless entries and searches when
they have reason to believe that a person is in need of immediate aid. Winslow v.
State, 742 S.W.2d 801, 804 (Tex. App.—Corpus Christi 1987, pet. ref’d) (citing
Mincey v. Arizona, 437 U.S. 385, 392 (1978)). The burden of proof is on the State
to show that the warrantless entry was justified by an emergency. Winslow, 742
S.W.2d at 804 (citing Janicek v. State, 634 S.W.2d 687, 691 (Tex. Crim. App.
1982)).     The reasonableness of the emergency entry is to be judged by the
circumstances that existed at the time the decision was made to enter. Id. (citing
Janicek, 634 S.W.2d at 691). We use an objective standard of reasonableness when
we assess an officer’s belief that a warrantless entry was justified by an immediate
emergency. Id. at 804–05 (citing Bray v. State, 597 S.W.2d 763, 765 (Tex. Crim.
App. 1980)).
        Lujan told Officer Thomas that Appellant had threatened to kill himself, and
before he hung up, she heard him scream, heard him make a gurgling sound, and
heard a loud thumping sound like he had hit the floor. Officer Thomas reported this


        4
          The State argues on appeal that the entry into Appellant’s residence was permissible under the
community-caretaking exception to the Fourth Amendment. Under this exception, officers may “stop and
assist an individual whom a reasonable person—given the totality of the circumstances—would believe is
in need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999) (emphasis added). The
community-caretaking exception, however, has narrow applicability. Id. at 152. Here, Appellant’s suicidal
threats triggered an emergency situation, which is an exigent circumstance. See Welmaker v. State, 941
S.W.2d 241, 243 (Tex. App.—Corpus Christi 1996, pet. ref’d).
                                                   7
conversation over the radio; Officer Torrez received Officer Thomas’s message as
well as another radio message from Officer Thomas stating, “I think he -- she said
he cut his throat.” This information was independent of what Officer Torrez heard
while in the backyard, and that independent information indicated that an emergency
existed that constituted exigent circumstances and warranted police entry into
Appellant’s house.     See Welmaker, 941 S.W.2d at 243 (emergency justified
warrantless entry of hotel room). We hold that the trial court’s ruling is supported
by the record and that it did not err when it denied Appellant’s motion to suppress.
See Wehrenberg, 416 S.W.3d at 469; Welmaker, 941 S.W.2d at 243. We overrule
Appellant’s sole issue on appeal.
                               III. This Court’s Ruling
      We affirm the judgment of the trial court.




                                               MIKE WILLSON
                                               JUSTICE


July 28, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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