      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00585-CR
                                      NO. 03-11-00586-CR
                                      NO. 03-11-00587-CR



                                  The State of Texas, Appellant

                                                 v.

                               Andrew Phillip Gonzalez, Appellee


            FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
   NOS. 98408, 98409 & 98410, HONORABLE ROBERT UPDEGROVE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The State of Texas appeals from the trial court’s grant of Andrew Phillip Gonzalez’s

motion to suppress evidence obtained pursuant to a warrantless search of his apartment. The State

contends that the search was justified under the emergency doctrine. Under the relevant standard of

review, we find no abuse of discretion and affirm the trial court’s ruling.


                                         BACKGROUND

               San Marcos Police Officer Samuel Myers testified that he responded shortly

after midnight on October 22, 2010 to a report that a pickup had struck three parked vehicles in the

Grove Apartments lot and left the scene. The pickup was reported as a four-door, full-sized pickup

and the driver was reported to be wearing a red soccer jersey. Myers followed a substantial fluid

trail believed to be emanating from the pickup. Other officers found the pickup believed to be the
offending truck a mile and a half away in a Texas State University commuter parking lot behind the

university’s Bobcat Village Apartments. The pickup had substantial damage to the front and front

right side (which was “basically gone”) back to the engine block, the right fender was up against the

right front tire, and the engine seemed to be out of fluid. The pickup was sitting in the middle of the

parking lot, not in a space. No driver was apparent, but Texas State University police matched the

parking permit on the pickup with a resident of one of the Bobcat Village apartments, appellee

Andrew Gonzalez.

               Myers and other officers went to Gonzalez’s apartment and tried to make contact.

They knocked on the door for about ten minutes and got no response. Myers said that, based on the

substantial damage to the pickup and the absence of any sound from inside the apartment, he and the

officers were afraid that Gonzalez might have been injured—possibly by striking his head—and

passed out. He testified that a person hiding usually makes noise moving around and turns lights off.

Myers and the officers contacted the resident assistant for the complex, who brought a key within

about ten minutes. The officers entered the apartment, found Gonzalez in his bedroom, and asked

“if he knew why we were there.” Gonzalez responded that it was about his vehicle.

               Myers did not recall seeing any blood in the vehicle, on the ground, or at the

apartment, but noted that internal injuries—particularly head injuries—do not necessarily produce

external bleeding. He did not see broken or cracked glass, but noted that the driver’s head might

have hit the frame or the steering wheel. He conceded that the driver might not have been the

registered owner of the pickup and that the driver might not have been in his apartment. He also

acknowledged that he did not suspect that contraband was being disposed of.



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               San Marcos Police Officer Candace Brinkkoeter testified that she responded to the

report of hit-and-run at the Grove. She followed the fluid trail Myers described, but it faded off.

Other officers found another trail, though she conceded there was no direct evidence linking the

two trails. Another officer heard a revving engine at Bobcat Village, which caused other officers to

respond to Bobcat Village where they found Gonzalez’s pickup. After looking at the pickup, she

was surprised it drove away. She took photos of the vehicles at the Grove that were damaged.

               Based on this testimony, the trial court concluded that the State did not present

evidence demonstrating that the officers had the right to enter Gonzalez’s apartment without a

warrant. The court granted the motion to suppress evidence.


                                           DISCUSSION

               The State urges that the trial court erred by granting the motion to suppress. We

review the decision of the lower court for an abuse of discretion. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006). We view the record in the light most favorable to the trial court’s

conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement. Id.

We will sustain the lower court’s ruling if it is reasonably supported by the record and is correct

on any theory of law applicable to the case. Id. We give almost total deference to a trial court’s

express or implied determination of historical facts and review de novo the court’s application of the

law of search and seizure to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

               The State contends that the officer’s entry into the apartment and subsequent search

and seizure of evidence were justified by the emergency doctrine. Under the Fourth Amendment to

the United States Constitution, warrantless searches of homes are presumptively unreasonable.


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U.S. Const. amend. IV; Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The constitution,

however, does not bar police from making warrantless entries and searches when they reasonably

believe that a person within is in need of immediate aid to preserve life and prevent serious bodily

injury. Mincey v. Arizona, 437 U.S. 385, 392 (1978). The emergency doctrine is similar to the

community caretaking function. Laney v. State, 117 S.W.3d 854, 858-59 (Tex. Crim. App. 2003).

The State must show that the facts and circumstances surrounding the entry and search were

such that the officers reasonably believed that an emergency existed which made obtaining a

search warrant impracticable. Bray v. State, 597 S.W.2d 763, 764-65 (Tex. Crim. App. 1980).

Although courts previously held that the police officer must be primarily motivated by the

perceived emergency rather than the desire to investigate, see Wiede v. State, 157 S.W.3d 87, 102

(Tex. App.—Austin 2005, pet. ref’d), the United States Supreme Court has made clear that, in the

context of the emergency doctrine, the officer’s subjective motivation is irrelevant in determining

whether the officer’s actions violated the Fourth Amendment. Brigham City, 547 U.S. at 404 (cited

in Pitonyak v. State, 253 S.W.3d 834, 850 (Tex. App.—Austin 2008, pet. ref’d)). An officer’s action

is reasonable under the Fourth Amendment if the circumstances known to the officer justified an

objectively reasonable belief that his conduct in entering the residence was necessary to protect or

preserve life or avoid serious bodily injury. See id. at 404-05; see also Laney v. State, 117 S.W.3d

854, 862 (Tex. Crim. App. 2003).

               After the hearing, the trial court made findings of fact and conclusions of law that

are not directly challenged on appeal. The court found that, when the police officers entered the

apartment, there was no proof that Gonzalez’s pickup was involved in the Grove parking lot

accidents or that Gonzalez was driving or riding in the pickup. The court found that there was

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no obvious sign of injury to anyone, much less Gonzalez, and that there was no evidence that

the officers conducted themselves consistent with the expressed concern for Gonzalez’s well-

being—e.g., they did not call an ambulance before entering the apartment or inquire about his well-

being immediately after they entered the apartment.

               Giving the relevant fact findings almost total deference as we must, see Dixon,

206 S.W.3d at 590, we cannot say that the trial court’s findings are erroneous. Although the officers

at the scene may have feared for Gonzalez’s well-being, the evidence adduced at the hearing

was not so overwhelming that it renders erroneous the trial court’s contrary findings. Based on

those findings, we cannot say that the trial court abused its discretion by granting Gonzalez’s

motion to suppress.


                                         CONCLUSION

               We affirm the order granting the motion to suppress evidence gained consequent to

the police officers’ warrantless entry into Gonzalez’s apartment.




                                              Jeff Rose, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: August 30, 2012

Do Not Publish




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