Edward Fancher v. State

Fancher v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-89-092-CR EDWARD FANCHER, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 93,822, HONORABLE BOB JONES, JUDGE PER CURIAM A jury found appellant guilty of possessing 28 or more but less than 400 grams of methamphetamine. 1983 Tex. Gen. Laws, ch. 425, § 9 [former Tex. Rev. Civ. Stat. art. 4476-15, § 4.04, now codified as Tex. Health & Safety Code § 481.115 (Supp. 1991)]. The jury assessed punishment, enhanced by a previous felony conviction, at imprisonment for 99 years and a $10,000 fine. The methamphetamine made the basis of this prosecution was found on February 2, 1988, when officers executed a search warrant on a mobile home at 16202 Fagerquist in Del Valle. In point of error one, appellant contends that the trial court erred in overruling his motion to suppress the evidence seized at 16202 Fagerquist. Appellant argues that an unconstitutional search occurred when Officer Hinkle first opened the back door to the mobile home at that address. U.S. Const. amend. IV; Tex. Const. Ann. art. I § 9 (1984); Tex. Code Cr. P. Ann. art. 1.06 (1977). The evidence at the hearing showed that on February 2, 1988, Officer Hinkle was summoned to a disturbance at 8104 Linden where police had seen a quantity of drugs and paraphernalia in plain view. The address was the residence of Ronda and Virgil Reynolds. From Ronda Reynolds, Hinkle obtained a written consent to search the property, described as a "white wood frame house and all outbuildings, located at 8104 Linden." The officers searched the Reynolds' house, then left and walked down a well-worn path leading to a trailer house about 75 yards away. Except for the footpath, the foliage on the property had grown above head level. When the officers were about 50 feet away from the trailer, Hinkle smelled a strong chemical odor which he identified with the manufacture of methamphetamine. The back door of the trailer flew open and people ran away through the brush. The officers immediately ran up and secured the trailer. Hinkle went to the back door and the other two officers went to the front. Hinkle opened the door to see if anyone else was inside and, just inside the door, saw a stack of chemicals. Hinkle recognized these as chemicals associated with the manufacture of methamphetamine. Hinkle then asked Ronda Reynolds who else lived on the property and learned that the Reynolds leased the trailer to Ray McNairy and appellant. Hinkle left to obtain a search warrant, and, when the warrant was subsequently executed, the officers seized a methamphetamine lab, methamphetamine, and its component chemicals. Hinkle testified at the hearing on the suppression motion that the Reynolds owned 10 acres of land, divided into one lot containing their house and two outbuildings, with the address 8104 Linden, and a second lot containing the trailer in question, with the address 16202 Fagerquist. Appellant argues that because Ronda Reynolds had no authority to consent to the search of the trailer, Hinkle's opening the back door and viewing the chemicals inside constituted an invalid search. In McNairy v. State, 777 S.W.2d 570 (Tex. App. 1989, aff'd No. 1407-89, Tex. Cr. App, June 19, 1991 (not yet reported), this Court upheld the same search against the same claim made by McNairy, appellant's co-defendant at the hearing on the motion to suppress. (1) The law of the case doctrine requires that McNairy control our determination of this issue. Oliver v. State, 551 S.W.2d 346 (Tex. Cr. App. 1977); Warren v. State, 523 S.W.2d 237 (Tex. Cr. App. 1975). Additionally, under the fourth amendment to the federal Constitution, a warrantless search is valid if the police officer reasonably believed that the consenting party had authority over the premises. Illinois v. Rodriguez, 110 S.Ct. 2793 (1990). Here, Officer Hinkle reasonably believed that Ronda Reynolds had authority to consent to the search of all the outbuildings. When ambiguous circumstances arose, Hinkle stopped, asked who else lived on the property, and obtained a search warrant. Hinkle's opening the back door of the trailer and seeing the chemicals while acting under the reasonable belief of valid consent does not constitute an invalid warrantless search or taint the subsequent search under the warrant. Because the second search of 16202 Fagerquist was valid, appellant's subsequent arrest, based on the results of that search, was valid and its fruits properly admitted in evidence. We overrule points of error one and two. In point of error three, appellant argues that the evidence was insufficient to corroborate the testimony of Ronda Reynolds, an accomplice witness. Tex. Code Cr. P. Ann. art. 38.14 (1979). The State called Ronda Reynolds to testify during its case-in-chief. Ronda testified that she and her husband, Virgil Reynolds, rented the trailer at 16202 Fagerquist to appellant from 1985 to around the end of 1987. After appellant moved out, she continued to see him there four days out of seven. Appellant, Virgil, and Ray McNairy were the people involved in the lab at the trailer, and she had witnessed appellant there helping make methamphetamine. To her knowledge, appellant, Virgil, and Ray McNairy split the proceeds from the lab at the trailer. On the morning of February 2, 1988, Ronda went to the trailer to get some methamphetamine for Virgil. Appellant was present and said he would bring it to the house later because it wasn't ready. About 30 or 40 minutes later, he brought Virgil a baggy of methamphetamine. After Virgil ingested the methamphetamine, Ronda called the police because Virgil began trying to set his motorcycle on fire and to shoot her dogs with his bow. Appellant then recalled Ronda during his case and elicited testimony from her without any limitation. On direct examination by appellant, Ronda affirmed that the lab and the drugs in the trailer belonged to Ray McNairy, Virgil Reynolds, and appellant; that these three had an operation to produce drugs; and that even though not all three lived there, all three had a proprietary interest in the enterprise and in the property that was found inside the trailer. Ronda's testimony on recall by appellant was appellant's evidence. The rule requiring corroboration of an accomplice witness does not apply to testimony introduced by appellant. Selman v. State, 807 S.W.2d 310 (Tex. Cr. App. 1991); Brown v. State, 476 S.W.2d 699 (Tex. Cr. App. 1972). The testimony of Ronda which appellant introduced was sufficient to corroborate her testimony for the State. Edwards v. State, 427 S.W.2d 629 (Tex. Cr. App. 1968). We overrule point three. In point of error four, appellant contends the trial court erroneously overruled his objection to the improper impeachment of a defense witness. Neva Skurlock, a friend of appellant's, testified that she had accompanied him to the trailer in November and December 1987 and that while there, she had neither seen a methamphetamine lab nor seen appellant use any methamphetamine. On cross-examination, the prosecutor inquired as to the basis of a warrant that Skurlock testified had been issued for her. When Skurlock stated that it was for prostitution, the prosecutor asked if she had jumped bond on that case. Appellant objected to both questions as irrelevant. Appellant's trial objections to irrelevancy do not comport with his appellate complaints of improper impeachment. Thus, appellant has failed to preserve these complaints for review. Rezac v. State, 782 S.W.2d 869 (Tex. Cr. App. 1990). Additionally, the prosecutor withdrew the second question after appellant's objection, and the trial court on its own motion instructed the jury to disregard it. We find that the court's instruction to disregard cured any error from the prosecutor's question. Coe v. State, 683 S.W.2d 431 (Tex. Cr. App. 1984). Point four is overruled. In point of error five, appellant argues that the trial court erred in denying his counsel's motion to withdraw. Appellant's counsel moved to withdraw because he had been employed by the District Attorney's office when it prosecuted appellant on a previous drug possession charge. That charge resulted in deferred adjudication probation, which then served as the basis for appellant's federal conviction as a felon in possession of a firearm. The State relied on the federal conviction to enhance punishment in the present case. Appellant's counsel argued to the trial court that a conflict of interest existed in this case because he could be called to testify that appellant's initial conviction was infirm, thereby invalidating the federal conviction alleged for enhancement. However, counsel stated to the trial court that he knew of no infirmity in the initial conviction that could invalidate the federal conviction and that nothing indicated that he would testify in the present case. Counsel stated that he was not employed by the District Attorney during any of his representation of appellant in the present case. Because no conflict of interest existed, the trial court correctly denied the motion to withdraw as counsel. See Munguia v. State, 603 S.W.2d 876 (Tex. Cr. App. 1980); Matter of S.C., 790 S.W.2d 766 (Tex. App. 1990, writ denied). Point five is overruled. We affirm the judgment of the trial court. [Before Chief Justice Carroll, Justices Jones and B. A. Smith] Affirmed Filed: July 3, 1991 [Do Not Publish] 1. At the conclusion of the suppression hearing, counsel for McNairy asked leave of court to file a motion for severance and the severance was apparently granted thereafter.