                                   NO. 07-07-0353-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                FEBRUARY 23, 2009
                          ______________________________

                          KENDRICK L. FAULK, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2006-413,797; HON. CECIL G. PURYEAR, PRESIDING
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       A jury found appellant Kendrick L. Faulk guilty of possession of cocaine (more than

four grams but less than two hundred grams) with intent to deliver. Appellant plead true

to one enhancement paragraph and the jury sentenced him to 75 years in prison. On

appeal, appellant presents four issues: (1) the trial court erred by not suppressing

contraband seized by a warrantless search of his apartment; (2) the trial court erred by

admitting an oral statement allegedly made by appellant before receiving the statutory

warnings; (3) in the sentencing phase, the trial court erred by failing to suppress evidence
seized in a warrantless search of appellant’s residence in a prior unadjudicated offense;

and (4) in the sentencing phase, the trial court erred by allowing a police officer

investigating a prior unadjudicated offense to opine that a field test yielded a positive

reading for cocaine. We affirm.


                                        Background


      The State’s evidence showed that Lubbock police went to appellant’s apartment to

investigate after receiving an anonymous 9-1-1 call that someone was “cooking” narcotics

there. Eventually, four officers were present. Three stationed themselves near the front

while the fourth covered the rear of the dwelling. The three officers watching the front

observed five to ten people come and go from the apartment. The officers looked through

portions of windows not covered by blinds and saw five males in the apartment living area

and one in the bedroom. Two occupants of the living room counted money at a table. The

officers’ position made them visible to those approaching the apartment. The lead officer

decided to knock on the apartment door. The three officers approached the door,

arranging themselves in single file.1 Appellant opened the door and the officer smelled a

“strong odor of marijuana.” Through the open doorway he saw one occupant near the

kitchen toss a baggy containing a white substance. Another occupant, seated on a couch,

ran from sight down a hallway. The officer drew his gun and demanded all occupants

show their hands. The person who disappeared from view was slow to return and reveal

his hands. Once six people exited the apartment officers entered the apartment to



      1
          One officer referred to their arrangement as a “stack formation.”

                                             2
determine if anyone was hiding and if so to prevent destruction of evidence. In the kitchen,

the lead officer found a bag which he testified contained “cocaine” as well as a scale and

razorblade each bearing white powder residue. Another reported he saw cocaine in the

bathroom toilet. The lead officer then exited the apartment to assist identification of the

occupants.    Appellant asked him if officers located an unnamed Hispanic male in the

apartment. Having found no such person, officers reentered the apartment and searched

for another occupant. They found no one but discovered marijuana under a bed.


       Appellant was charged with possession of a controlled substance and possession

of marijuana and transported to jail. During the booking process he made an oral

inculpatory statement to the lead officer. At the time, appellant had not received the

constitutional and statutory warnings.2


       Appellant plead not guilty to the indicted offense of possession of cocaine, with

intent to deliver, in an amount more than four grams but less than two hundred grams. The

case was tried by jury which found appellant guilty of the indicted offense and under an

enhancement paragraph, concerning a prior conviction of possession with intent to deliver

cocaine, assessed punishment at 75 years in prison.




                                          Discussion




       2
        Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Tex.
Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).

                                              3
       In his first issue appellant contends the trial court erred by denying his motion to

suppress evidence seized during the warrantless search of his apartment.


       We review a trial court's ruling on a motion to suppress evidence for an abuse of

discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We give almost

total deference to the trial court's determination of historical facts and then review de novo

the trial court's application of the law to those facts. Wyatt v. State, 23 S.W.3d 18, 23

(Tex.Crim.App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000).

If, as here, the trial court did not make explicit findings of fact, we review the evidence in

a light most favorable to the trial court’s ruling and assume it made implicit findings of fact

supporting its ruling. Carmouche, 10 S.W.3d at 327-28.3


       A warrantless search is justified when the State shows that (1) probable cause

existed at the time the search was made and (2) exigent circumstances existed which

made obtaining a warrant impracticable.           Estrada v. State, 154 S.W.3d 604, 610

(Tex.Crim.App. 2005); McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991).

Probable cause to search a residence exists when reasonably trustworthy facts and

circumstances within the knowledge of the officer on the scene would lead a person of

reasonable prudence to believe that the instrumentality of a crime or evidence of a crime

will be found. Parker v. State, 206 S.W.3d 593, 597 (Tex.Crim.App. 2006); McNairy, 835

S.W.2d at 106. Exigent circumstances allowing a warrantless entry into a house include

(1) rendering aid or assistance to persons whom the officers reasonably believe are in

       3
         Our review of appellant’s remaining three issues is likewise governed by the abuse
of discretion standard. We will not reiterate the standard in our discussion of those issues.

                                              4
need of assistance; (2) preventing the destruction of evidence or contraband; and (3)

protecting the officers from persons whom they reasonably believe to be present and

armed and dangerous. McNairy, 835 S.W.2d at 107. Several factors are used in

analyzing whether officers could reasonably conclude that evidence would be destroyed

or removed before they could obtain a search warrant: (1) the degree of urgency involved

and the amount of time necessary to obtain a warrant; (2) a reasonable belief that the

contraband is about to be removed; (3) the possibility of danger to the officers guarding the

site of the contraband while a search warrant is sought; (4) information indicating that the

possessors of the contraband are aware that the police are on their trail; and (5) the ready

destructibility of the contraband and knowledge that efforts to dispose of narcotics and to

escape are characteristic behaviors of persons engaged in the narcotics traffic. Id.


       Appellant contends the officers manufactured exigent circumstances to justify their

warrantless admission to his apartment. Exigent circumstances do not meet Fourth

Amendment standards “if the government deliberately creates them.” United States v.

Coles, 437 F.3d 361, 366 (3rd Cir. 2006); see United States v. Vega, 221 F.3d 789, 800

(5th Cir. 2000) (finding asserted exigent circumstances were of the government’s “own

making”); see Parker, 206 S.W.3d at 598 n.21 (citing and discussing Coles). Determining

whether officers impermissibly manufactured exigencies depends on “‘the reasonableness

and propriety of the investigative tactics that generated the exigency.’” United States v.

Rico, 51 F.3d 495, 502 (5th Cir. 1995) (quoting United States v. Duchi, 906 F.2d 1278,

1284 (8th Cir. 1990)).




                                             5
       Here, appellant’s argument in effect challenges the legitimacy of the officers’ “knock

and talk” intention. He relies primarily on the Fifth Circuit’s opinion in United States v.

Munoz-Guerra, 788 F.2d 295 (5th Cir. 1986). There, during a drug investigation DEA

agents saw a marijuana cigarette and a bag of white powder through the windows of a

condominium. They also had other information corroborating an anonymous tip that the

condominium contained drugs. When they climbed over a patio fence and knocked on the

glass panes of a door, the defendant answered. The door was locked and the defendant

indicated he would go into another room to get a key. The agents did not wait for his return

but kicked the door in. Id. at 297. As the circuit court analyzed the issue whether exigent

circumstances justified their doing so, it found the agents’ warrantless entry was a

“foregone conclusion” once they approached the patio door and made their presence

known. Id. at 298. The court went on to conclude the record provided no justification for

the agents’ decision to approach the door rather than await a warrant.


       Appellant relies also on two other federal cases4 in which government exigent

circumstances arguments were rejected. In United States v. Richard, 994 F.2d 244 (5th

Cir. 1993), agents kicked in a motel room door. Id. at 247. A supervisor stated the agents

“intended to enter the room one way or another to further [their] investigation.” Id. at 248.

Similarly, in United States v. Berry, 468 F.Supp.2d 870, 880 (N.D. Tex. 2006), the district



       4
         Appellant also cites Vega, 221 F.3d at 800, which follows and applies Munoz-
Guerra. In Vega, an officer entered a residence through the back door after other officers
conducting surveillance knocked on the front door and announced their presence. 221
S.W.3d at 794. The Fifth Circuit found the officers’ decision to abandon their secure
surveillance positions and approach the door was not justified by any “reasonable
predicate.” Id. at 800.

                                             6
court found officers’ testimony that their entry onto the defendant’s property was merely

for the purpose of a “knock and talk” not to be credible. Id. at 880. The trial court was not

required to view the officers’ testimony here in the same light. We defer to its implicit

acceptance of the officers’ explanation that the decision to knock on appellant’s door was

a reasonable law enforcement tactic5, and that the exigent circumstance arose from the

conduct of the apartment occupants.6 We overrule appellant’s first issue.


       In his second issue, appellant argues the trial court erred by admitting an inculpatory

oral statement made by him at booking because he did not first receive the warnings of

section 38.22 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art.

38.22 § 3(a) (Vernon 2005).


       Article 38.22 codifies the Miranda warnings. Lemmons v. State, 75 S.W.3d 513,

519 (Tex.App.–San Antonio 2002, pet. refused). The Miranda protections against self-

incrimination come into issue only when the defendant is subjected to custodial

interrogation. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694

(1966). During the booking process, or at any other time while a person is in custody,

words, actions or questioning by police that the police should know are reasonably likely


       5
         The “knock and talk” strategy has been recognized by federal courts as a
reasonable investigative tool when officers seek an occupant’s consent to search or when
they reasonably suspect criminal activity. United States v. Jones, 239 F.3d 716, 720 (5th
Cir. 2001).
       6
        Appellant also argues the officers had probable cause before undertaking their
“knock and talk” for a reasonable belief the instrumentality or evidence of a crime would
be found in the apartment, and so could have obtained a search warrant. The State
argues the trial court could have found the officers lacked probable cause at that point.
We need not address the question.

                                              7
to elicit an incriminating response from the accused constitute custodial interrogation. See

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980);

Roquemore v. State, 60 S.W.3d 862, 868 (Tex.Crim.App. 2001). Courts have recognized,

however, that questions normally attendant to administrative booking procedure do not

constitute interrogation for purposes of Miranda because such questions normally do not

elicit incriminating responses. See Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 L.Ed.2d

528, 110 S.Ct. 2638 (1990) (plurality op.); Cross v. State, 144 S.W.3d 521, 525 n.5

(Tex.Crim.App. 2004). In deciding whether words or actions constitute interrogation the

relevant inquiry “focuses primarily upon the perceptions of the suspect, rather than the

intent of the police.” Innis, 446 U.S. at 301, 100 S.Ct. at 1690.


       After finding suspected contraband police arrested appellant and the other

occupants of his apartment and transported them to jail. No one in the group admitted

ownership of the contraband. It is undisputed that at the time of booking appellant was

under arrest and had not received the constitutional and statutory warnings. According to

the lead officer, during the booking process arrestees are asked background questions

concerning identification, contact information, and medical needs. As appellant was

booked he asked the officer to release another arrestee, supposedly a relative of appellant,

because, according to appellant, “It’s mine.” The officer could not remember which

background question preceded this statement but he could recall it was a booking question

that did not concern the offense or evidence. Based on this testimony, the trial court could

have concluded the questions appellant was being asked would not have been perceived

by appellant as seeking an incriminating response and so were not interrogation for


                                             8
Miranda purposes. The trial court did not abuse its discretion by admitting evidence of

appellant’s oral statement. We overrule his second issue.


       In his third issue, appellant argues the trial court erred by failing to suppress

evidence seized in a warrantless search of his residence in a prior unadjudicated offense.


       The State began its presentation at the sentencing phase of trial by playing a

recorded 9-1-1 call from Tanisha Shivers, a former girlfriend of appellant. According to the

call, appellant took Shivers from a residence, pushed her into a pickup, and drove from the

scene. An officer responded to a report of Shivers’ kidnapping and received additional

information directing him to appellant’s apartment. Two other officers were also present.

At the location, the officers found a pickup fitting the description from the 9-1-1 call. An

officer noticed what appeared to be blood on the passenger side of the vehicle’s interior.

Repeated knocks and announcements at the door of the residence produced no response

but through a window an officer saw a male fitting the description of Shivers’ abductor

walking down a hallway toward a bedroom. An officer then reached through an opening

in the window and opened the door. The officers entered the apartment and encountered

Shivers clad only in a towel. They observed dried blood on her face and swelling around

her nose. She appeared upset at the presence of police and told them she was alone in

the apartment. Officers then searched for the male they observed through the window.

In the kitchen, they noticed a scale with white residue which an officer agreed in testimony

was consistent with narcotics activity. In the bedroom, officers located appellant. When

told of the discovery in the kitchen and the intention of the officers to seek a search warrant



                                              9
appellant responded, “‘Anything in the house is mine and I will give you consent.’” The

resulting search produced items of drug paraphernalia that were admitted into evidence.


       Appellant argues that when officers discovered Shivers, the reasonable basis of the

search ended. Accordingly, contends appellant, the trial court abused its discretion by not

suppressing evidence the officers observed in plain view after locating Shivers, as well as

evidence obtained by warrantless search on the consent of appellant.


       Under the “emergency doctrine,” a warrantless search that would otherwise be

illegal may be authorized if a police officer has reasonable cause to believe that, absent

an immediate search, serious bodily injury or death may result. Brimage v. State, 918

S.W.2d 466, 500-01 (Tex.Crim.App. 1994) (opinion on reh’g). The theory’s objective

standard of reasonableness requires the court examine the officer’s conduct while “tak[ing]

into account the facts and circumstances known to the police at the time of the search.”

Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App. 1998) (citing Brimage, 918 S.W.2d

at 501). Officers operating legitimately under the emergency doctrine may seize any

evidence in plain view. Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d

290 (1978). The lawfulness of a search under the emergency doctrine terminates once the

emergency ends. Bray v. State, 597 S.W.2d 763, 764 (Tex.Crim.App. 1980).


       A search conducted after receiving voluntary consent is not constitutionally

unreasonable. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000). Voluntary

consent to search must be positive, unequivocal, and not the result of express or implied

coercion or duress. Carmouche v. State, 10 S.W.3d at 331. When challenged, the State


                                            10
must prove voluntary consent by clear and convincing evidence. State v. Ibarra, 953

S.W.2d 242, 245 (Tex.Crim.App. 1997). The trial court “must look at the totality of the

circumstances surrounding the statement of consent in order to determine whether that

consent was given voluntarily.” Reasor, 12 S.W.3d at 818. Appellant’s contention that

the emergency ended when officers located Shivers is untenable. The person fitting the

description of the suspected perpetrator of assault and kidnapping, whom officers saw in

the apartment, remained at large but Shivers represented she was alone. Under the facts

at bar, we find the officers’ continued search of the apartment until appellant was located,

reasonable. Cf. Mincey, 437 U.S. 385 at 392, 98 S.Ct. 2408 at 2413 (on discovery of a

potential homicide scene officers may conduct a prompt warrantless search of the

premises for the killer or other victims). We find the trial court did not err in admitting the

scales and residue observed by officers in plain view as they searched for appellant.


       As one of the investigating officers left to obtain a search warrant appellant verbally

authorized a warrantless search of the apartment. The record contains no evidence of

appellant’s reluctance or qualification of consent. Nor does it reveal duress or coercion.

Given the totality of circumstances surrounding appellant’s statement of consent, we

conclude the trial court did not err in overruling appellant’s motion to suppress. We,

therefore, overrule appellant’s third issue.


       In his fourth issue, appellant contends the trial court erred by allowing a police

officer investigating the Shivers incident to opine that a field test of a substance yielded a

positive reading for cocaine.



                                               11
         At the sentencing phase, the State identified through the investigating officer various

items seized by police in appellant’s apartment following the Shivers incident. Among

these exhibits was the contents of a return envelope from the Texas Department of Public

Safety (DPS) marked as State’s exhibit 67. This envelope contained two envelopes

marked as State’s exhibits 67A and 67B. Each of these envelopes, in turn, held a baggy

and each baggy contained a “white rock-like substance.”


         The substance in the baggies was tested by the DPS laboratory and by police in the

field.   Over objection, the investigating officer testified that a field test showed the

substance was cocaine. During appellant’s cross-examination of the investigating officer,

counsel asked by leading question if a laboratory test of State’s exhibit 67 produced a

positive finding for cocaine. The officer responded, “I believe so.”


         A police detective conducted a crime scene investigation at appellant’s apartment

following the Shivers incident. Without objection, the detective testified that a photograph

admitted in evidence depicted a white powdery substance found on the floor of appellant’s

apartment, which an officer at the scene believed was cocaine.


         Assuming, but without deciding, admission of the investigating officer’s testimony

of the field test result was error, we find the error harmless as it did not effect a substantial

right of appellant. See Tex. R. App. P. 44.2(b). Error effects a substantial right if it had a

substantial and injurious effect or influence in determining the jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Because evidence of cocaine in appellant’s

apartment following the Shivers incident was admitted elsewhere in the sentencing phase


                                               12
without objection, any error in allowing the testimony of the investigating officer as to the

field test results was harmless. See East v. State, 702 S.W.2d 606, 611 (Tex.Crim.App.

1985) (admission of inadmissible evidence over a valid objection cannot amount to

reversible error when the same facts are admitted elsewhere without objection).


       Additionally, during the sentencing phase of trial the State’s evidence of cocaine in

appellant’s apartment following the Shivers incident was but a portion of its case for a

longer sentence.    Through the State’s other evidence, the jury learned of several

adjudicated offenses and unadjudicated wrongful acts of appellant including two assaults,

burglary, kidnapping, unlawful discharge of a firearm, marijuana possession, theft of

copywritten music, failure to pay taxes, possession with intent to deliver cocaine, and bail

jumping. Because the error, if any, in admitting the opinion of the investigating officer was

harmless, we overrule appellant’s fourth issue.


                                        Conclusion


       Having overruled appellant’s four issues we affirm the judgment of the trial court.




                                    James T. Campbell
                                         Justice

Do not publish.




                                             13
