Jessica Tata v. State , 446 S.W.3d 456 ( 2014 )

Opinion issued August 19, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-01119-CR
———————————
JESSICA TATA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1300862
OPINION
A jury convicted appellant, Jessica Tata, of felony murder and assessed her
punishment at eighty years’ confinement and a $10,000 fine. In five issues,
appellant argues that the trial court erred in allowing the State to amend the
indictment after the close of evidence, in denying her motion to quash the
indictment, and in denying her motion to suppress evidence.
We affirm.
Background
Appellant was the owner and operator of Jackie’s Day Care, which she
operated out of the home she leased from Ronald Velasco. On the afternoon of
February 24, 2011, appellant had seven children ranging in age from one to three
years old under her care at her home. Four of the children died as a result of a fire
that day, and others were severely injured but survived.
Using appellant’s cell phone records, surveillance footage, and the testimony
of witnesses, the State established that appellant entered a Target store near her
home at approximately 1:09 p.m. and spoke to a Target employee, Ray Menzies.
Menzies testified that while appellant was taking a survey seeking customer
feedback she told him that she had left grease on the stove at home and that there
were children at home with only her sister, who was sleeping. Menzies told
appellant that he did not think that was okay, and appellant told him she would
complete the survey at a later date. Surveillance footage shows that appellant
bought a drink from the food court area of the store at 1:21 p.m. and walked out of
the store at 1:22 p.m.
2
Appellant’s neighbors, Geoffrey Deshano and John Chestnut, were outside
their home that afternoon and saw appellant drive up to her house. They testified
that appellant quickly ran back out of the house calling for help because there was
oil burning in the house and there were small children inside. Deshano ran toward
appellant and saw smoke coming out of her open front door. Chestnut called 9-1-1
to report the fire at approximately 1:30 p.m., and he and Deshano tried to help
appellant remove some of the children from the house. Chestnut could see a bright
fire on the stove.
Firefighters arrived on the scene shortly thereafter and entered the house and
found the kitchen area on fire. While firefighters put out the fire in the kitchen, a
search and rescue team located and removed the remaining children. Various
witnesses testified about appellant’s behavior during this time. She told some
people that she was home when the fire broke out, but she had passed out from the
smoke, and, when she woke up, she tried to get some of the children out and call
for help. She told other people, including investigators, that she did not know what
had happened. One of the firefighters noticed that appellant appeared clean and
that the collar of her shirt was still white. Another firefighter observed that
appellant did not demonstrate any symptoms of smoke inhalation or other
characteristics of someone who had been inside a burning structure, such as watery
eyes, coughing, or the presence of soot on her person and clothing.
3
Arson investigators arrived on the scene less than two hours after the fire
was reported, while firefighters were still present. Arson investigator Anita
Delgadillo arrived at approximately 3:30 p.m., took exterior photographs of the
house, then went inside to continue her investigation. She immediately saw a
Target bag that looked out of place because it was the only item that was not
covered in soot. She moved the bag out of the interior walkway and noticed that
the juice in the bag was still cool to the touch. The Target bag also contained a
receipt with a time stamp of 1:18 p.m., and the items listed on the receipt matched
the items found in the bag and outside the house on the lawn.
Four children died in the fire, including the complainant in this case, Elias
Castillo, and the other children suffered injuries including severe burns. Castillo,
who was sixteen months old, died as a result of complications following smoke
inhalation. Appellant was indicted for the death of Elias Castillo under the theory
of felony murder. The State alleged three felonies as alternative bases for
appellant’s felony murder liability: felony murder in the course of abandoning a
child, felony murder in the course of endangering a child, and felony murder in the
course of recklessly causing serious bodily injury to a child.
Before trial, appellant moved to suppress evidence, including the Target bag
seized during the initial investigation into the cause of the fire. Following a
hearing, the trial court denied appellant’s motion. The trial court also denied
4
appellant’s motion to quash the third paragraph of her indictment, which alleged
that she committed felony murder in the course of recklessly causing serious
bodily injury to a child. After trial had started, and just before the charge on guilt
or innocence was read to the jury, the State made an oral motion to abandon certain
language in the paragraph of the indictment that alleged felony murder in the
course of abandoning a child. The trial court granted the State’s oral motion over
appellant’s objection, but no written memorialization of the amended indictment
was included in the record on appeal. The jury found appellant guilty of felony
murder, and it assessed her punishment at eighty years’ confinement and a $10,000
fine. This appeal followed.
Indictment
In her first four issues, appellant raises complaints regarding her indictment.
A. Amendment of the Indictment
In her first three issues on appeal, appellant argues that the trial court erred
in allowing the State to amend the indictment after the close of evidence because:
(1) the deleted language described an essential element of the alleged offense,
(2) the amendment violated Texas Code of Criminal Procedure article 28.10, and
(3) the amendment reduced the State’s burden of proof.
The first paragraph of appellant’s indictment states:
[O]n or about February 24, 2011, [appellant] did then and there
unlawfully, commit and attempt to commit the felony offense of
5
abandoning a child with the intent to return, by having care, custody
and control of Elias Castillo, a child younger than fifteen years of age,
by intentionally abandoning Elias Castillo under circumstances that
exposed Elias Castillo to an unreasonable risk of harm, and under
circumstances that a reasonable person would believe would place
Elias Castillo in imminent danger of bodily injury . . . , and while in
the course of and in furtherance of the commission of said offense,
[appellant] did commit an act clearly dangerous to human life,
namely, by leaving Elias Castillo without adult supervision in a house
with a pan containing oil on top of a heated burner that started a fire
causing the death of Elias Castillo.
(Emphasis added.) After both appellant and the State had rested, prior to the trial
court charging the jury, the State requested an abandonment of the phrase “and
under circumstances that a reasonable person would believe would place Elias
Castillo in imminent danger of bodily injury.” The trial court granted the State’s
oral motion over appellant’s objections. However, the record does not contain a
written, modified indictment.
The Code of Criminal Procedure allows for amendment of an indictment and
supplies the procedure to be followed for successful amendment. TEX. CODE
CRIM. PROC. ANN. art. 28.10 (Vernon 2006) (specifying procedures for seeking
leave to amend indictment); id. art. 28.11 (Vernon 2006) (providing that all
amendments of charging instrument “shall be made with the leave of the court and
under its direction”). Neither the motion to amend nor the trial court’s granting of
that motion is an amendment; “rather, the two comprise the authorization for the
eventual amendment of the charging instrument pursuant to [Code of Criminal
6
Procedure article 28.10].” Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App.
2000) (quoting Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992)); see
also Johnson v. State, 214 S.W.3d 157, 158 (Tex. App.—Amarillo 2007, no pet.)
(“[W]e note that authority holds an oral motion to amend coupled with the trial
court’s decision to grant it falls short of a valid amendment under article 28.10.”);
Valenti v. State, 49 S.W.3d 594, 597–98 (Tex. App.—Fort Worth 2001, no pet.)
(holding same).
A written amendment must be submitted to the trial court and included in the
record to be valid. See Riney, 28 S.W.3d at 565–66 (holding that physical
interlineation of original indictment is acceptable method of amending indictment,
as is amended photocopy of original indictment incorporated into record under
direction of trial court); Head v. State, 299 S.W.3d 414, 437 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d) (“[T]he language of the amended indictment must be
memorialized in a written document and the amendment must be granted by the
trial court.”); Aguilera v. State, 75 S.W.3d 60, 64 (Tex. App.—San Antonio 2002,
pet. ref’d) (holding that amendment to indictment was effective when trial court
granted State’s motion to amend and issued order restating language from original
indictment in its entirety with amendment); see also TEX. CONST. art. V, § 12(b)
(“An indictment is a written instrument presented to a court by a grand jury
charging a person with the commission of an offense.”); Puente v. State, 320
7
S.W.3d 352, 358 (Tex. Crim. App. 2010) (“Regardless of whether there may be
legitimate ways to amend an indictment other than to make changes directly to the
original indictment or to place an amended duplicate into the record, we do not
believe that manual changes to a written judicial confession should suffice under
any circumstances. A judicial confession in a guilty plea, even when it is reduced
to writing, is decidedly not a charging instrument, nor may it serve as a reasonable
facsimile for one.”).
Here, the State made an oral request to abandon certain language in the first
paragraph of appellant’s indictment. The trial court granted the request on the
record, over appellant’s objection. However, no written document amending the
indictment was incorporated into the record. Thus, the indictment was never
amended, and appellant’s complaints regarding the proposed amendment are
groundless.1 See Riney, 28 S.W.3d at 566.
We overrule appellant’s first, second, and third issues.
B. Motion to Quash
In her fourth issue, appellant argues that the trial court erred in denying her
motion to quash the third paragraph of her indictment. That paragraph of
appellant’s indictment alleges that appellant:
1
Appellant does not raise any complaints on appeal relating to submission of the
charge to the jury based on the original indictment.
8
did then and there unlawfully, commit and attempt to commit the
felony offense of injury to a child, by recklessly causing serious bodily
injury to Elias Castillo, a child younger than fifteen years of age, and
while in the course and in furtherance of that felony offense,
[appellant] committed and attempted to commit an act clearly
dangerous to human life, namely, by leaving Elias Castillo without
adult supervision in a house with a pan containing oil on top of a
heated burner that started a fire causing the death of Elias Castillo.
(Emphasis added.)
Appellant filed a motion to quash this paragraph, arguing that the State
failed to give her notice as to the conduct that was alleged to have been committed
recklessly as required by Code of Criminal Procedure article 21.15. The trial court
denied appellant’s motion to quash. 2
1. Standard of Review and Relevant Law
We review a trial court’s decision whether to quash an indictment under a de
novo standard. See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.
2007); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). The right to
notice of pending criminal charges is set forth in both the United States and Texas
constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Moff, 154 S.W.3d
at 601. A charging instrument must be specific enough to convey adequate notice
of the nature of the accusations so that the accused may prepare a defense. Moff,
2
The trial court appears to have denied the motion to quash on the ground that the
motion was not timely presented. Appellant’s attorney made a bill of exception
regarding his presentment of the motion to quash, in which he testified that he did
present the motion to quash in a timely manner. The State does not challenge the
timeliness of the motion to quash on appeal. Accordingly, we consider the merits
of the motion as briefed by both parties.
9
154 S.W.3d at 601; see TEX. CODE CRIM. PROC. ANN. arts. 21.02, .11 (Vernon
2009). Specifically, article 21.15 provides:
Whenever recklessness or criminal negligence enters into or is a part
or element of any offense, or it is charged that the accused acted
recklessly or with criminal negligence in the commission of an
offense, the complaint, information, or indictment in order to be
sufficient in any such case must allege, with reasonable certainty, the
act or acts relied upon to constitute recklessness or criminal
negligence, and in no event shall it be sufficient to allege merely that
the accused, in committing the offense, acted recklessly or with
criminal negligence.
Id. art. 21.15 (Vernon 2009). An alleged inherently reckless act satisfies the
requirements of article 21.15. See Smith v. State, 309 S.W.3d 10, 16 (Tex. Crim.
App. 2010).
A person commits the offense of felony murder if, in the course of
committing a felony other than manslaughter, she commits an act clearly
dangerous to human life that causes the death of an individual. TEX. PENAL CODE
ANN. § 19.02(b)(3) (Vernon 2011). Thus, the commission or attempted
commission of an underlying felony is an essential element of the offense of felony
murder. See id.; see also Contreras v. State, 312 S.W.3d 566, 583–84 (Tex. Crim.
App. 2010) (“Essentially, the State must prove (1) an underlying felony, (2) an act
clearly dangerous to human life, (3) the death of an individual, (4) causation (the
dangerous act causes the death), and (5) a connection between the underlying
felony and the dangerous act (‘in the course of and in furtherance of . . . or in
10
immediate flight from’).”). A person commits the offense of injury to a child if she
“intentionally, knowingly, recklessly, or with criminal negligence, by act or
intentionally, knowingly, or recklessly by omission, causes to a child . . .
(1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.” TEX. PENAL CODE ANN. § 22.04(a) (Vernon 2011).
An indictment for felony murder is not required to allege the constituent
elements of the underlying felony. Tompkins v. State, 774 S.W.2d 195, 206 (Tex.
Crim. App. 1987); Flores v. State, 102 S.W.3d 328, 331 (Tex. App.—Eastland
2003, pet. ref’d). With respect to the elements of felony murder, it is generally
sufficient for the indictment to allege the elements of the offense without
specifying the manner and means used to commit the offense. Bowen v. State, 640
S.W.2d 929, 930–31 (Tex. Crim. App. [Panel Op.] 1982). Thus, it is sufficient if
the indictment alleges the underlying felony committed and the culpable mental
state attending the underlying felony committed. Johnson v. State, 4 S.W.3d 254,
255 (Tex. Crim. App. 1999); Flores, 102 S.W.3d at 331.
Here, the underlying felony offense is injury to a child, which includes
recklessness and criminal negligence as culpable mental states. See TEX. PENAL
CODE ANN. § 22.04 (Vernon Supp. 2013). The acts or circumstances relied upon to
prove the conduct clearly dangerous to human life that caused a death may be the
same acts or circumstances relied upon to prove recklessness in the underlying
11
injury of a child offense. See Contreras, 312 S.W.3d at 583 (indictment for felony
murder based on underlying offense of reckless injury to a child relied on same
conduct: “striking [the complainant] about the body with the hand of the
defendant”).
2. Analysis
The indictment alleged that appellant committed felony murder in the course
of committing the offense of injury to a child by recklessly causing serious bodily
injury to Elias Castillo, and it specifically alleged that she committed this crime
“by leaving Elias Castillo without adult supervision in a house with a pan
containing oil on top of a heated burner that started a fire causing the death of Elias
Castillo.” Leaving a child less than two years old in a house without supervision,
especially when a pan containing oil is left on top of a heated burner, is an
inherently reckless act. Thus, the indictment sufficiently pled the acts relied upon
to show recklessness. See TEX. CODE CRIM. PROC. ANN. art. 21.15; Smith, 309
S.W.3d at 16.
Appellant argues that the indictment was required to allege the specific act
constituting recklessness with the allegations of the underlying felony in addition
to stating that same act in conjunction with the allegation of conduct that was
clearly dangerous to human life, causing a death. Appellant cites Contreras as an
example of proper pleading. In that case, the indictment alleged that the appellant:
12
did then and there commit the felony offense of Injury to a Child by
intentionally, knowingly, recklessly, or by criminal negligence, by act,
cause bodily injury to JAZMINE CONTRERAS, a child younger than
15 years of age, by then and there striking JAZMINE CONTRERAS
about the body with the hand of the defendant, and while in the course
of and in furtherance of the commission of said offense did then and
there commit an act clearly dangerous to human life, to wit: by
striking JAZMINE CONTRERAS about the body with the hand of the
defendant and did thereby cause the death of an individual, namely
JAZMINE CONTRERAS.
Contreras, 312 S.W.3d at 583. However, Contreras did not address the issue of
sufficiency of an indictment for purposes of article 21.15. See id.
Appellant has pointed to no authority to support her contention that article
21.15 requires that the alleged reckless act be stated twice in order to provide
adequate notice of the nature of the accusations against her, nor could we find any.
Rather, the inclusion of the specific act—“by leaving Elias Castillo without adult
supervision in a house with a pan containing oil on top of a heated burner”—
provided appellant with adequate notice of the nature of the accusations against her
by asserting an act that was inherently reckless. 3 See Moff, 154 S.W.3d at 601
(providing that charging instrument must be specific enough to convey adequate
3
The State argues that article 21.15 does not apply to the underlying felony in a
felony murder indictment, and it relies upon Ramos v. State, 407 S.W.3d 265 (Tex.
Crim. App. 2013), to support this contention. However, Ramos merely held that
article 21.15 did not apply under the facts of that case, where Ramos was indicted
for capital murder and felony murder but was found guilty of manslaughter. Id. at
269–70. Specifically, the majority in Ramos held that “[s]ection 21.15 does not
apply in this situation because the indictment did not include manslaughter, which
was a lesser-included offense.” Id. at 270. We decline to extend the reasoning in
Ramos to the present case, and the State presents no other authority to support its
contention that article 21.15 does not apply here.
13
notice of nature of accusations so that accused may prepare defense); see also
Smith, 309 S.W.3d at 16 (alleging inherently reckless act satisfies requirements of
article 21.15).
We overrule appellant’s fourth issue.
Motion to Suppress Evidence
In her fifth issue, appellant argues that the trial court erred in denying her
motion to suppress the Target bag found inside her home following the fire.
A. Facts Relevant to Motion to Suppress
Appellant moved to suppress the the Target bag that fire investigators found
in her house after the fire. At the hearing on the motion to suppress, Thomas
Wood, the arson investigator, testified regarding his investigation of the fire. He
stated that he arrived on the scene at approximately 3:00 p.m. while firefighters
and emergency medical personnel were still present. He was assigned the duty of
conducting the origin and cause examination, which he testified meant that he had
to determine “a physical location where the fire began” and “whatever caused the
fire to happen, what things were present and what things came together to result in
a fire.” He testified that when he arrived at the house, “[t]he scene was still smoky.
The fire had been extinguished, but it was still hot and smoky.”
Wood testified regarding the general process of completing an origin and
cause investigation. He stated, “There are several steps involved, but it included
14
my initial assessment, my exterior examination, my interior examination. Once the
room of origin was established, a more detailed examination of that area and
ultimately establishing the origin of the fire.” Wood established that the fire
originated in the kitchen and focused the majority of his investigation in that room.
He stated that, other than documenting things that were on floor, he and his team
did not go through appellant’s personal effects that were in the house. Specifically,
Wood testified that he and his team collected physical evidence from the kitchen,
including the stove and frying pan that had melted and various swabs for testing.
Wood also testified that his team collected a Target bag that was in plain view in
the front of the house, a tablet just inside the entry door that “appeared to have
names of families who had children staying there at the day care,” and a board with
the day care schedule written out. They also collected clothing and other items,
such as some Gatorade bottles, that had been left out in the front yard and
driveway.
Wood also testified about general standards used by fire investigators
promulgated by the National Fire Protection Association, NFPA 921. Pursuant to
the guidelines in NFPA 921, investigators look at damage left by the fire, fire
patterns, and witness information to learn about the origin of the fire and the
direction it moved. Wood testified that part of his investigation required
examining potential human actions that were relevant to the cause of the fire and
15
that it was “always” relevant to determine who, if anyone, was present when a fire
started. He testified that he and his team were present on the scene from the time
of his arrival until they concluded the on-scene examination shortly after midnight
following the fire.
Several months later, Wood returned to the scene to conduct further
investigation into the cause and origin of the fire. He “conducted an arc mapping
of the structure, trac[ed] the electrical wires and document[ed] any noticeable
damage,” and completed other aspects of his investigation into the cause of the
fire. Wood testified that he entered on to the property at that time pursuant to a
voluntary consent form signed by Ronald Velasco, the owner of the property who
had terminated appellant’s lease after the fire.
Wood was aided in his investigation by Anita Delgadillo and Steven Ross.
Delgadillo testified at the suppression hearing regarding her role in the
investigation. She testified that while she and Wood completed their external
assessment, they found new, unused Gatorade bottles in the driveway. The bottles
seemed out of place to her because she noticed that the majority of the damage was
at the back of the house near the kitchen and “there was nothing else that would
indicate to me that those bottles should be outside.” Upon entering the house to do
her internal assessment, Delgadillo noticed a Target bag approximately seven feet
from the doorway. It also seemed out of place because it looked “new and crisp—
16
it didn’t fit with the other items that were scattered, all of the other debris that was
scattered there.” After she documented the bag’s location, she moved it out of the
entryway and noticed that the juice container in the bag was full, “wet,” and cool to
the touch. In addition to the juice, the bag contained an empty plastic Starbucks
cup and a receipt. Delgadillo testified that it was a common part of a cause and
origin investigation to evaluate things that seemed out of place and to “try to fit
them into the overall scheme of what might have happened.”
Finally, Leo Gonzales, another arson investigator, testified that investigators
sought to determine the origin and cause of the fire and that a determination of who
was present at the time of the fire was relevant to that investigation. Gonzales also
testified that it was standard protocol to begin with a “360-degree examination of
the exterior of the structure” and a preliminary interior examination of the fire
scene to determine fire patterns, followed by more extensive investigation of the
point of origin. He further stated that when investigators completed their initial
investigation on the evening of the fire they determined that the origin of the fire
was in the kitchen on the stove, but they did not then determine the exact cause of
the fire. Gonzales testified that when he arrived on the scene to investigate the fire,
he was aware of some witnesses’ reports that, based on appellant’s statements to
them, they believed oil had been left on the stove. The investigation ultimately
determined that burning oil left on the stove caused the fire.
17
The trial court overruled appellant’s motion to suppress the Target bag and
its contents.
B. Standard of Review
We review a denial of a motion to suppress evidence for an abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) (citing
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When we review a
trial court’s denial of a motion to suppress, “[w]e give almost total deference to a
trial court’s express or implied determinations of historical facts [while]
review[ing] de novo the court’s application of the law of search and seizure to
those facts.” Id. We view the evidence in the light most favorable to the trial
court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial court is the
“sole trier of fact and judge of credibility of the witnesses and the weight to be
given to their testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.
App. 2007). The trial court may choose to believe or disbelieve any part or all of a
witness’s testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996).
We sustain the trial court’s ruling if it is reasonably supported by the record and
correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d
854, 857 (Tex. Crim. App. 2003).
18
C. Evidence Obtained Pursuant to Fire Investigation
A warrantless entry into a residence is presumptively unreasonable.
Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). However, a
burning building creates an exigency that justifies a warrantless entry by fire
officials to fight the blaze. Michigan v. Clifford, 464 U.S. 287, 293, 104 S. Ct.
641, 646 (1984). “[O]nce in a building for this purpose, firefighters may seize
evidence of arson that is in plain view.” Michigan v. Tyler, 436 U.S. 499, 509, 98
S. Ct. 1942, 1950 (1978). Furthermore, “officials need no warrant to remain for a
reasonable time to investigate the cause of a blaze after it has been extinguished.”
Clifford, 464 U.S. at 293, 104 S. Ct. at 646–47.
The Supreme Court has reasoned that this justification for warrantless entry
is based on the public’s interest in determining the origins of a fire:
Fire officials are charged not only with extinguishing fires, but with
finding their causes. Prompt determination of the fire’s origin may be
necessary to prevent its recurrence, as through the detection of
continuing dangers such as faulty wiring or a defective furnace.
Immediate investigation may also be necessary to preserve evidence
from intentional or accidental destruction. And, of course, the sooner
the officials complete their duties, the less will be their subsequent
interference with the privacy and the recovery efforts of the victims.
For these reasons, officials need no warrant to remain in a building for
a reasonable time to investigate the cause of a blaze after it has been
extinguished. And if the warrantless entry to put out the fire and
determine its cause is constitutional, the warrantless seizure of
evidence while inspecting the premises for these purposes also is
constitutional.
19
Tyler, 436 U.S. at 510, 98 S. Ct. at 1950; see also Clifford, 464 U.S. at 293 & n.4,
104 S. Ct. at 647 & n.4. (discussing exigencies that justify warrantless post-fire
investigation, such as immediate threat that blaze might rekindle or necessity of
preserving evidence from intentional or accidental destruction, and concluding that
because determining fire’s cause and origin serves compelling public interest,
warrant requirement does not apply in such cases).
The determination of what constitutes “a reasonable time to investigate”
varies according the circumstances of a particular fire. Tyler, 436 U.S. at 510 n.6,
98 S. Ct. at 1950 n.6. “[A]ppropriate recognition must be given to the exigencies
that confront officials serving under these conditions, as well as to individuals’
reasonable expectations of privacy.” Id. Privacy expectations vary with the type
of property, the amount of damage, prior and continued use of the premises, and, in
some cases, the owner’s efforts to secure it against intruders. Clifford, 464 U.S. at
292, 104 S. Ct. at 646; see also Davis v. State, 840 S.W.2d 480, 487 (Tex. App.—
Tyler 1992, pet. ref’d) (citing Clifford in stating, “Regarding fire-damaged
premises, however, the warrant requirement applies only if some reasonable
privacy interest remains in the fire-damaged property” and concluding that
warrantless entry was justified where evidence demonstrated that structure was so
badly damaged as to preclude any reasonable expectation of privacy).
Thus, the Supreme Court has held:
20
The constitutionality of warrantless and nonconsensual entries onto
fire-damaged premises . . . turns on several factors: (1) whether there
are legitimate privacy interests in the fire-damaged property that are
protected by the Fourth Amendment; (2) whether exigent
circumstances justify the government intrusion regardless of any
reasonable expectations of privacy; and, (3) whether the object of the
search is to determine the cause of the fire or to gather evidence of
criminal activity.
Clifford, 464 U.S. at 292, 104 S. Ct. at 646.
In Tyler, the fire chief and his assistants began their investigation of a fire at
a furniture warehouse during the early morning hours immediately following the
fire, “but visibility was severely hindered by darkness, steam, and smoke,” so the
investigators left and returned a few hours later to continue their investigation once
conditions had improved. 436 U.S. at 511, 98 S. Ct. at 1951. The Supreme Court
concluded, “Under these circumstances, we find that the morning entries were no
more than an actual continuation of the first, and the lack of a warrant thus did not
invalidate the resulting seizure of evidence.” Id. However, the Supreme Court
determined that entries onto the property occurring on subsequent days “were
clearly detached from the initial exigency and warrantless entry.” Id. Thus, the
court concluded,
In summation, we hold that an entry to fight a fire requires no warrant,
and that once in the building, officials may remain there for a
reasonable time to investigate the cause of the blaze. Thereafter,
additional entries to investigate the cause of the fire must be made
pursuant to the warrant procedures governing administrative searches.
Evidence of arson discovered in the course of such investigations is
admissible at trial, but if the investigating officials find probable cause
21
to believe that arson has occurred and require further access to gather
evidence for a possible prosecution, they may obtain a warrant only
upon a traditional showing of probable cause applicable to searches
for evidence of crime.
Id. at 511–12, 98 S. Ct. at 1951 (internal citations omitted).
In Clifford, one fuel can was discovered in plain view by firefighters who
had fought the blaze. 464 U.S. at 290, 104 S. Ct. at 645. After firefighters had
extinguished the blaze and left the scene, the Cliffords took steps to secure the
residence against further intrusion by sending a work crew to board up the house
and pump six inches of water out of the basement. Id. After the blaze was
extinguished, the water pumping was completed, and the home was secured,
investigators conducted two additional, warrantless searches of the Clifford home
that uncovered additional fuel cans and other evidence of arson. Id. at 290–91, 104
S. Ct. at 645. The Supreme Court balanced the Cliffords’ privacy expectations in
boarding up their fire-damaged residence, the State’s failure to articulate the
existence of any exigent circumstances relating the delayed searches of the
premises, and the purpose of the searches. Id. at 295–97, 104 S. Ct. at 647–49. It
determined that the fuel can discovered by firefighters while fighting the fire was
admissible, but the evidence seized in subsequent warrantless searches was not
admissible. Id. at 298–99, 104 S. Ct. at 649–50. 4
4
See also Hummel v. State, No. AP-76596, 2013 WL 6123283, at *14–15 (Tex.
Crim. App. Nov. 20, 2013) (not designated for publication) (holding that
22
D. Analysis
Appellant argues that the seizure and search of the Target bag violated her
Fourth Amendment rights because it was done without a warrant and because the
circumstances of the investigation during which the bag was seized do not
implicate the exception to the warrant requirement that arises for fire investigations
conducted within a reasonable time after the fire. Appellant argues that because
the bag was not found near the area that suffered the worst of the fire damage, the
State should have been required to obtain a warrant before the bag could be seized
and searched. We examine the circumstances of this particular case in light of the
factors discussed in Clifford. See 464 U.S. at 292, 104 S. Ct. at 646.
First, while appellant had a legitimate expectation of privacy in her home,
she also used the home as the basis for operating a state-licensed day care. See
Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 474 (1998) (holding that
expectation of privacy in commercial premises is different from, and indeed less
than, a similar expectation in individual’s home). Furthermore, appellant had not
done anything to secure the property against intruders following the extinguishing
of the fire but before the entry by fire investigators, as had the defendants in
warrantless entries were justified when firefighters entered house to fight blaze,
hazardous conditions persisted when investigators entered to determine cause and
origin of fire, investigator believed immediate investigation was necessary to
preserve evidence from further destruction, and firefighters continued to
extinguish “hot spots” throughout that day and evening).
23
Clifford. See 464 U.S. at 292, 104 S. Ct. at 646 (holding that privacy expectations
vary with type of property, amount of damage, prior and continued use of
premises, and, in some cases, owner’s efforts to secure it against intruders). Thus,
this case is more like Tyler, where the Supreme Court determined that evidence
seized from a commercial building in the investigation immediately following the
fire was admissible. See 436 U.S. at 511, 98 S. Ct. at 1950–51.
Second, the record demonstrates that exigent circumstances justified the fire
investigators’ entry. See Clifford, 464 U.S. at 293, 104 S. Ct. at 646 (stating that
burning building creates exigency that justifies warrantless entry by fire officials to
fight blaze and stay for “a reasonable time to investigate the cause of a blaze after
it has been extinguished”). The fire was reported around 1:30 p.m., and
investigators arrived on the scene while firefighters were still present at around
3:00 p.m. Wood testified that it was still hot and smoky in the house when he
arrived. Wood, Delgadillo, and Gonzales all testified that it is standard protocol to
do a complete external and internal examination of the property after a blaze is
extinguished. Almost immediately upon their first entry into the home, arson
investigator Delgadillo noticed the Target bag in plain view, approximately seven
feet from the front door. Thus, the Target bag and its contents were discovered in
the initial investigation immediately following the fire.
24
Finally, we observe that the object of the search was to determine the cause
of the fire, not to gather evidence of criminal activity. All three investigators
testified that it was important to determine who might have been present at the
time the fire occurred because witness statements were part of their investigation
and because human actions that might have contributed to the fire were highly
relevant to determining the fire’s cause and origin. Delgadillo testified that her job
includes observing any items that appear to be out of place or unusual for any
reason and trying to determine how they might fit in to the entire picture.
Gonzales testified that although investigators were aware from witnesses’
statements and the appearance of the exterior of the home that the fire was
concentrated in the kitchen area, the investigators were not able to establish the
cause of the fire following their first investigation. The record demonstrates that
subsequent re-entries to the property that occurred after the day of the fire were
made pursuant to a warrant or with the permission of the property owner.
Appellant essentially argues that the initial fire investigation should have
been limited only to the kitchen area, because she asserts that the degree of fire
damage made it obvious that the fire originated in that area. However, this limited
interpretation of fire officials’ obligation to conduct an immediate investigation of
a fire does not comport with Supreme Court precedent in this area, nor does it
serve the compelling public interest in determining a fire’s cause and origin,
25
especially where such a fire has occurred in a state-licensed daycare facility. See
Clifford, 464 U.S. at 292, 104 S. Ct. at 646; Tyler, 436 U.S. at 510–11 & n.6, 98 S.
Ct. at 1950 & n.6.
Considering all the circumstances of this particular case and the factors
presented by the Supreme Court in Clifford, we conclude that the trial court did not
abuse its discretion in overruling appellant’s motion to suppress the Target bag and
its contents. Any legitimate privacy interest that appellant had in the property was
overwhelmed by the exigent circumstances arising in the immediate aftermath of
the fire and the need of investigators to determine the cause and origin of the fire.
Clifford, 464 U.S. at 292, 104 S. Ct. at 646.
We overrule appellant’s fifth issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
26