Opinion
No. 06-02-00005-CR.
Submitted March 20, 2003.
Decided April 11, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 115th Judicial District Court, Upshur County, Texas, Trial Court No. 12,654.
Before Morriss, C.J., Ross and Carter, JJ.
OPINION
Keith Antonio Geter was charged with murdering his wife, Brandy Cuevas Geter, by strangulation. A jury found him guilty and assessed punishment at forty years' imprisonment. Geter appeals, asserting: (1) the trial court erred by overruling his motion to suppress, and (2) he received ineffective assistance of counsel. For the reasons stated below, we overrule these contentions and affirm the judgment. On Monday, October 23, 2000, at 9:45 a.m., the city police of Gilmer received an anonymous telephone call informing them a dead body could be found at a home inside the city. The male caller also gave the police a telephone number at which they would find the son of the victim. The officers went to the house at the stated address, which was the residence of Geter and his wife. The doors of the house were locked, but the police gained entry through an unlocked front bedroom window. They found Brandy's body in an adjacent bedroom. After finding the body, the officers continued to search the premises for other victims or the perpetrator. They found no one else in the home. The officers called Emergency Medical Services (EMS) and continued to search for evidence, without seeking a warrant. The officer who led the investigation testified at trial his department did not seek a search warrant because they wanted to process the site "as a normal murder scene." Geter filed a motion to suppress all evidence seized from the home, contending such evidence was the fruit of an illegal search. The trial court overruled Geter's motion as to all evidence seized by the police from the residence on Monday, October 23, 2000, but sustained it as to evidence seized the following Tuesday. Thirteen items seized on Monday were admitted at Geter's trial. In his first point of error, Geter contends the trial court erred by overruling his motion to suppress the evidence seized on Monday. Geter does not contest the officers' original entry into the home under the Emergency Doctrine. Instead, he contends that, once the officers had found the victim and finished their search for other victims or the perpetrator, any further search of the residence required a search warrant, and absent such warrant, all evidence seized should have been suppressed. If a defendant challenges the admissibility of evidence in a hearing outside the jury's presence, but later states "no objection" when the evidence is offered at trial, the defendant waives the admissibility complaint on appeal. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992); Sands v. State, 64 S.W.3d 488, 491 (Tex.App.STexarkana 2001, no pet.). In this case, Geter's trial counsel affirmatively stated he had "no objection" when the State offered into evidence each item from the October 23, 2000, search. Therefore, nothing has been preserved for review. We overrule Geter's first point of error. In his second point, Geter contends he received ineffective assistance of counsel at trial because his counsel: (1) did not contest the admissibility of the evidence found during the search of his car, and (2) waived error committed by the trial court in overruling his motion to suppress evidence seized from his residence by stating "no objection" when that evidence was offered at trial. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To prevail on this claim, an appellant must prove by a preponderance of the evidence that: (1) the representation by appellant's trial counsel fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced appellant's defense. Strickland, 466 U.S. at 695; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999). To meet this burden, an appellant must prove that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Under standard, an appellant must prove counsel's representation so undermined the proper functioning of the adversarial process the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. Geter first contends the affidavit for the warrant to search his personal automobile lacked sufficient information to support a finding of probable cause and therefore his attorney provided ineffective assistance by failing to have suppressed the evidence seized pursuant to the vehicle search. To prove ineffective assistance, Geter must establish that the evidence would have been inadmissible and further demonstrate that, but for counsel's failure, Geter would not have been convicted or received a forty-year sentence. The affidavit supporting the search warrant for Geter's automobile stated the following:
1. My name is Jon Warren, and I am an investigator with the Gilmer Police Department, assigned to the Criminal Investigations Division. I have been a Peace Officer for 4 years.
2. I am personally involved in the investigation of a murder which occurred at 833 First St. in Gilmer, TX.
3. The vehicle is described as a White, 1996 Mitsubishi Gallant, VIN# 4A3AJ56G8TE290950.
4. The vehicle is believed to have been driven by Keith Geter, B/M 02/20/1969, who was arrested as a suspect in this homicide.
5. Affiant has received information that the vehicle was used by both the victim and the suspect.
6. Affiant believes the suspect drove vehicle away from crime scene, and may contain pertinent evidence such as blood, hair, fiber or any other evidence removed from the crime scene.
7. Vehicle was found by Smith County Sheriff's Department prior to locating the suspect.
8. Vehicle was then brought to Upshur County by Davidson's Wrecker Service.Geter contends paragraphs 4, 5, and 6 "are nothing more than conclusionary [sic] allegations without supporting facts that attempt to meet the requirements of 18.01(c) in establishing probable cause that the 'blood, hair, fiber or any other evidence' was located in the vehicle." He contends the assertion, "affiant believes," is insufficient because it contains no facts demonstrating why the affiant's belief is valid. He also points out the affidavit fails to establish a time frame for his use of the car whereby a magistrate could logically connect his recent use of the car to the crime. He also contends there is no evidence to show that the objects of the search were located in the car at the time the warrant was issued. Finally, he argues the affidavit's failure to allege "that Appellant was driving the vehicle prior to its being located by the Smith County Sheriff's Department" renders it insufficient to support a finding of probable cause. The test for determining whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is an examination of the totality of circumstances. Illinois v. Gates, 462 U.S. 213, 228-29 (1983). In determining whether allegations in a probable cause affidavit provide probable cause for a search warrant, a magistrate is permitted to draw reasonable inferences from the facts and circumstances alleged in the affidavit. Ramos v. State, 934 S.W.2d 358, 363 (Tex.Crim. App. 1996). The allegations are sufficient if they would "justify a conclusion that the object of the search is probably on the premises." Id. A reviewing court should accord great deference to the magistrate's determination of probable cause. Id. The affidavit here, however, is fatally deficient. As Geter alleges, the affidavit does not indicate the source for the affiant's knowledge that Geter used the vehicle to flee the scene, or his knowledge that both Geter and the victim used the vehicle. Without this information, a detached magistrate is unable to assess the reliability of the affiant's knowledge. The missing information should have been critical to the issuing magistrate's determination of probable cause which must be determined from the four corners of the affidavit; it may not be gleaned from evidence or knowledge that is extrinsic to the supporting affidavit. See Martin v. State, 67 S.W.3d 340, 344 (Tex.App.STexarkana 2001, pet. ref'd). The affidavit under consideration provides insufficient facts from which a detached, neutral magistrate could determine that the evidence soughtSsuch as blood, glass, DNA, or clothingSmight be located in the vehicle. Although not specifically pointed out by Geter, the affidavit does not state when the alleged murder occurred. Thus, there is no indication of temporal proximity between the murder and the moment when the vehicle would be searched. Under these circumstances, we find the affidavit insufficient to support a magistrate's finding of probable cause. Geter's trial counsel could have successfully moved to suppress those items seized from the vehicle. Geter also contends his trial counsel was ineffective because he affirmatively waived the adverse suppression ruling on the evidence seized from his residence. We will therefore first determine whether the trial court erred by denying the motion to suppress. A trial court's ruling on a motion to suppress evidence is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Freeman v. State, 62 S.W.3d 883, 886 (Tex.App.STexarkana 2001, pet. ref'd). At a suppression hearing, the trial court is the sole trier of fact and judge of witness credibility, as well as the weight to be given the testimony. We view the evidence in the light most favorable to the trial court's ruling, Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000), and we afford almost total deference to the trial court's determination of historical facts the record supports, especially when the fact-findings are based on an evaluation of the witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We review de novo the court's application of the law of search and seizure to those facts. Ross, 32 S.W.3d at 856. If the trial court did not enter written findings of fact or conclusions of law, we assume the trial court made implicit findings of fact supporting its ruling as long as those findings are supported by the record. If the trial court's decision is correct on any theory of law applicable to the case, we must uphold its decision. Id. at 855-56. Geter filed a pretrial motion to suppress, alleging any tangible evidence seized from his residence was obtained without warrant, probable cause, or other lawful authority in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 9, 10, and 19 of the Texas Constitution. The trial court denied Geter's motion with respect to the evidence seized October 23, 2000. Those items admitted into evidence included:
1. a blue plastic jump rope;
2. a push-toy handle;
3. a white blanket;
4. a yellow shirt;
5. a black leather jacket;
6. a toilet tank cover;
7. a steak knife;
8. a shower curtain tieback;
9. a bathroom door;
10. two photographs of Geter;
11. dirt from a footprint in the living room;
12. the top half of a broken gin bottle found on top of the refrigerator; and
13. the bottom half of a broken gin bottle found in the kitchen trash.In very limited situations, an immediate search without a warrant is reasonable, and therefore not prohibited by the Fourth Amendment, if there is a risk of injury or death to someone in the area to be searched, a risk that would likely be magnified if the search was delayed due to the time involved in obtaining a warrant. Brimage v. State, 918 S.W.2d 466, 500-01 (Tex.Crim.App. 1996) (op. on reh'g). This exception, called the Emergency Doctrine, applies if the officers "need to act immediately to protect or preserve life or to prevent serious injury." Bray v. State, 597 S.W.2d 763, 764 (Tex.Crim.App. 1980); see also Brimage, 918 S.W.2d at 501. The Emergency Doctrine will justify a warrantless entry into a residence "only where there is also probable cause to enter the residence." United States v. Johnson, 9 F.3d 506, 509 (6th Cir. 1993). When police come upon a murder scene, they may, without first obtaining a warrant, secure the scene to see if there are other victims or if a killer is still on the premises. Mincey v. Arizona, 437 U.S. 385, 392 (1978); Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App. 1998). While exercising their right of entry under the Emergency Doctrine, officers "may seize any evidence that is in plain view during the course of their legitimate emergency activities." Mincey, 437 U.S. at 393. However, a warrantless search under the Emergency Doctrine must be "strictly circumscribed by the exigencies which justify its initiation." Id. (quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968)). A "murder scene" exception to the Fourth Amendment, an exception that would allow an officer carte blanche to search even the pockets of clothing in a closed bedroom closet, does not exist. Mincey, 473 U.S. at 394-95. The prosecution has the burden of proof to establish that the Emergency Doctrine justifies a warrantless search. See Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App. 1991); Bray, 597 S.W.2d at 765. To justify the search of a residence under the emergency doctrine, the State must show that 1) the officers had probable cause to search the residence, and 2) obtaining a search warrant was impracticable because the officers reasonably believed there was an immediate need to act in order to protect or preserve life or to prevent serious bodily injury. In re J.D., 68 S.W.3d 775, 779 (Tex.App.SSan Antonio 2001, pet. denied) (referencing Crane v. State, 786 S.W.2d 338, 346 (Tex.Crim.App. 1990)). Appellate review requires use of an objective standard in assessing the reasonableness of the officer's belief; the reviewing court must consider "the facts and circumstances known to the police at the time of the search." Colburn, 966 S.W.2d at 519. Geter concedes the officers had authority to enter his home under the Emergency Doctrine. His argument is the police exceeded their authority to search once the circumstances ended that had justified the emergency. "[T]he lawfulness of an emergency search terminates once the emergency ends." Brimage, 918 S.W.2d at 503 (citing Bray, 597 S.W.2d at 764). In Mincey, the United States Supreme Court reversed the drug conviction after finding the police exceeded the scope of an otherwise permissible search under the Emergency Doctrine. Mincey, 437 U.S. at 387-95, 402. On October 28, 1974, several Tucson police officers went to Mincey's home to arrest him for previously selling drugs to an undercover police officer. Id. at 387. During the raid, shots were exchanged between Mincey and an officer; the officer later died from wounds sustained during the melee. Id. Thinking there might be others injured, officers looked about quickly for other victims. Id. at 388. After clearing the home, however, police began a more thorough search that continued over the next four days. Id. at 389. They opened drawers, inspected closets and cupboards, emptied clothing pockets, pulled up sections of carpet, and dug bullet fragments out of the walls. Id. The officers seized between 200 and 300 objects during those four days. Id. The United States Supreme Court held the search, especially opening dresser drawers and ripping up carpets, could "hardly be rationalized in terms of the legitimate concerns that justify an emergency search." Id. at 393. In the case now before this Court, the officers did not immediately find the victim on entry into the home. Officer Jon Warren and Captain T. J. Harris, both of the Gilmer Police Department, entered through a front bedroom window. After entering, they announced themselves as officers. They immediately saw some bedding on the floor that appeared to have bloodstains on some pillows. They then entered the hallway. To their immediate left was a child's bedroom. The officers entered that room, found a pile of bloodstained clothing, inspected the pile, and found the victim lying in the clothing. The officers then "swept" the home, looking for other possible victims or the killer. After they found neither, Warren and Harris asked the officers who had remained outside the home to secure the scene. Warren allowed other officers to enter the home by opening the back door. Harris called EMS who, on arrival, confirmed the victim was deceased. Warren observed "some blood around [the victim's] hair," and that her face was "blue, real dark colored like she had been strangled." The officers found a blue plastic jump rope beside the victim's body; a white bloodstained push-toy handle, also near the body; a white blanket covering the body; a bloodstained yellow shirt beside the body; a black leather jacket over the body; a bloodstained toilet tank cover on the floor in a hallway between the bathroom and the living room; a steak knife on the floor underneath the bedding in the front bedroom; a shower curtain tieback from the bathroom; a bloodstained bathroom door; two photographs of Geter hanging on a bedroom wall; dirt from a footprint in the living room; and the top half of a broken gin bottle on top of the refrigerator. Direct evidence and reasonable inferences drawn from the record lead us to conclude these twelve items were found in plain view of the officers during their initial search of the house for victims or the perpetrator. Any evidence discovered before locating the victim's body may still be properly seized under the Emergency Doctrine. Gipson v. State, 82 S.W.3d 715, 722 (Tex.App.SWaco 2002, no pet. h.) (citing Brimage, 918 S.W.2d at 502). Evidence discovered during a search for the victim, additional victims, or a perpetrator may be lawfully seized under the Emergency Doctrine and the plain view exception to the Fourth Amendment. Id. (citing Brimage, 918 S.W.2d at 502). Accordingly, the seizure of these first twelve items was not made in violation of the Fourth Amendment. The trial court did not abuse its discretion in overruling Geter's motion to suppress these items, and Geter's counsel was not ineffective for failing to object to the admission of this evidence. Whether the thirteenth item, the bottom half of the bottle recovered from the kitchen trash, should have been admitted into evidence is less clear. The State used this piece of evidence at trial, along with other glass fragments found in the trash, to link Geter to the crime scene in two ways: (1) these pieces of glass contained DNA matching both Geter and the victim, and (2) glass fragments of a similar chemical composition and crystalline structure were found in Geter's vehicle. In a suppression hearing, the State has the burden to prove that an exception to the Fourth Amendment allows the fruits of a warrantless search to be admitted. Amores, 816 S.W.2d at 413. The record in this case is silent as to whether the bottom half of the bottle was in plain view inside the trash can. The State offered no other theory under which the bottom half of the bottle would have been admissible. Accordingly, the State failed to meet its burden to prove the plain view exception to the Fourth Amendment with regard to this one item; it therefore should have been suppressed. If Geter's counsel had objected to the admission of the items seized from the automobile and the bottom half of the bottle recovered from the kitchen trash, it would have been error to admit such evidence. However, we cannot say counsel's failure in this regard deprived Geter of the effective assistance of counsel. Our review of counsel's representation is highly deferential. Bone, 77 S.W.3d at 833. We indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim. App. 1979). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex.App.STexarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833. Because the record is rarely adequate to explain counsel's trial strategy, claims of ineffective assistance are often better developed through an application for writ of habeas corpus. Id. at 833 n. 13. For a claim of ineffective assistance of counsel to be sustained on direct appeal, the record must show counsel's representation was so egregious that no reasonable attorney would have conducted himself or herself in a similar manner. See Freeman v. State, No. 06-02-00037-CR, 2002 Tex.App. LEXIS 8813 (Tex.App.STexarkana Dec. 11, 2002, no pet.) (counsel ineffective for telling defendant he was eligible for community supervision when he was not eligible); Stone v. State, 17 S.W.3d 348 (Tex.App.SCorpus Christi 2000, pet. ref'd) (trial counsel ineffective for introducing client's prior murder conviction); Garcia v. State, 979 S.W.2d 809 (Tex.App.SHouston [14th Dist.] 1998, pet. ref'd) (inherent conflict of interest in representing both defendant and codefendant supported claim of ineffective assistance). The record is silent as to the strategy of Geter's trial counsel. No motion for new trial was filed, and therefore we have no record of a hearing that might explain trial counsel's strategy. When faced with a silent record as to defense counsel's strategy, we will not speculate as to defense counsel's tactics or guess what the reasons might be for taking or not taking certain actions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Smith v. State, 84 S.W.3d 36, 42 (Tex.App.STexarkana 2002, no pet.). Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. Smith, 84 S.W.3d at 42. And, when compared with the circumstances of egregious conduct discussed in the cases cited, we cannot say the actions of Geter's counsel were so egregious that no reasonable attorney would have conducted himself or herself in a similar manner. Further, even in the absence of a claim of ineffective assistance, we cannot say Geter was harmed by the erroneous admission of the items seized from his automobile or the bottom half of the bottle seized from the kitchen trash. Although Geter's Fourth Amendment rights were violated by the admission of this evidence, we find, beyond a reasonable doubt, this error did not contribute to his conviction or punishment. We review the erroneous admission of evidence seized in violation of the Fourth Amendment under the stricter standard for constitutional error. Hernandez v. State, 60 S.W.3d 106 (Tex.Crim.App. 2001). If the record in a criminal case reveals constitutional error, the appellate court must reverse the conviction unless it believes, beyond a reasonable doubt, that the evidence did not contribute to the appellant's conviction or punishment. TEX. R. APP. P. 44.2(a). Geter was arrested the day following the discovery of his wife's body by the police. At the time of his arrest, blood was found on his clothing. One spot found on his pants matched Geter's genetic profile, while another spot on his trousers matched the victim's DNA profile. A spot on the shirt Geter wore at the time of his arrest showed a mixture of DNA from two persons, the profiles of whom matched Geter and his wife. Similarly, DNA was found on the top half of the bottle found on top of the refrigerator; testing this portion of the bottle revealed the DNA samples from two people, and the profiles of these two people matched the genetic markers for Geter and the victim. We believe this evidence, along with the testimony regarding Geter's recent argument with his wife and the evidence concerning his flight from the immediate area soon after her death, was sufficient to support Geter's conviction, even without the evidence from the vehicle or the kitchen trash can. Geter's second point of error is overruled. We affirm the judgment.
A diagram of the house shows this is the hallway that also leads to the bedrooms.