City of Amarillo v. Premium Standard Farms, Inc.

NO. 07-06-0467-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JULY 24, 2007 ______________________________ THE CITY OF AMARILLO, Appellant v. PREMIUM STANDARD FARMS, INC., Appellee _________________________________ FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY; NO. 4376H; HON. RON ENNS, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. The issue before us concerns the trial court's denial of a temporary injunction. The latter was sought by the City of Amarillo to enjoin Premium Standard Farms, Inc. from allegedly producing excessive amounts of water from realty adjoining that in which the City had an interest. The trial court denied the preliminary injunction. On appeal, Amarillo would have us hold that denying the injunction evinced an instance of abused discretion. This is purportedly so because the statute at issue did create a private right of action. We have no choice but to affirm the order given the record before us. Whether to grant a temporary injunction lies within the trial court's discretion. Alert Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d 246, 253 (Tex. App.-Tyler 2004, no pet.). But, before we can say that such an abuse occurred, the applicant must first plead a viable cause of action and illustrate to the trial court that he has a probable right of recovery and faces probable imminent and irreparable injury if interim relief is not granted. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 598 (Tex. App.-Amarillo 1995, no writ). In other words, the applicant must do more than simply contend that he has a cause of action against his opponent. Establishing a probable right of recovery implicitly mandates the presentation of some evidence satisfying the elements of the cause of action. For instance, because our common law recognizes a cause of action for breached contract, that does not ipso facto mean that anyone who merely asserts that his opponent breached the agreement is entitled to relief, preliminary or otherwise. Some evidence of a contract and its breach resulting in injury must be given the trial court before it can legitimately say that there indeed exists any probability that the complainant may recover upon the allegation. And, therein lies the problem here. Irrespective of whether §36.119 of the Water Code created a private cause of action, no evidence was presented to the trial court to satisfy the elements of what the City believed to be its cause of action. This may be because no evidentiary hearing was conducted. Nevertheless, without that evidence, we have no basis to assess whether a probable right of recovery existed or whether the City faced probable injury if relief was not granted. In other words, the void precludes us from assessing the accuracy of the trial court's ultimate decision to deny the request for a temporary injunction. Again, even if we were to say that §36.119(a) created a private cause of action, we could not say that the circumstances contemplated by the parties warranted a preliminary injunction since neither we nor the trial court have or had evidence of what those circumstances were. See Alert Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d at 253 (stating that it is an abuse of discretion to issue a temporary injunction where no evidence that would support it was presented to the trial court). Being unable to determine that the trial court abused its discretion in denying the City's request for a preliminary injunction, we affirm the order doing so. Brian Quinn Chief Justice ether consent to search was voluntarily given an officer. Id. Issue Three - Search of Room A search based on consent is an exception to the warrant and probable cause requirements of our federal and state constitutions. Balentine v. State, 71 S.W.3d 763, 772 (Tex. Crim. App. 2002). However, the State must prove, by clear and convincing evidence, that the consent was voluntary. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). And, in determining whether it met that burden, we consider the totality of the circumstances. Id. Here, appellant argues that the "central issue of this appeal is . . . whether the officer had articulable reasonable suspicion that crime was occurring . . . before he attempted his knock and talk maneuver." Irrespective of how appellant labels his contentions on appeal, he simply characterized them below as a dispute involving whether the dialogue between the officer and appellant was an investigation or consensual encounter. He said little if anything about the voluntariness of the consent given to search the room. Thus, it could be said that the issue before us was not preserved for review. Nonetheless, we note that under both federal and state law, an officer may approach a citizen in a public place or knock on a door to ask questions or seek consent to search. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002); James v. State, 102 S.W.3d 162, 173 (Tex. App.--Fort Worth 2003, pet. ref'd). He need not have reasonable suspicion or probable cause to do so as long as the officer does not indicate that compliance is required. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997); Middleton v. State, 9 S.W.3d 428, 431 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Therefore, the officer at bar was entitled to 1) knock on the motel room door, 2) ask questions of those who responded to his knock, and 3) request consent to search the room as long as he did not lead appellant to believe he had no right to refuse. Next, appellant argues his consent was involuntary because 1) DeeDee felt compelled to open the door after she was told that there was a police officer outside the door, 2) the couple was sharing an intimate evening and would not have opened the door unless they felt they had to, 3) the officer was in uniform and armed, 4) the officer called for back-up prior to searching the room, and 5) the officer failed to tell appellant that he could refuse the request. The fact that a person is in custody, handcuffed, or simply not free to go does not necessarily mean consent to a warrantless search is involuntary. See Johnson v. State, 68 S.W.3d 644, 653-54 (Tex. Crim. App. 2002); Reasor v. State, 12 S.W.3d at 818-19; Strauss v. State, 121 S.W.3d 486, 493 (Tex. App.--Amarillo 2003, pet. ref'd); Goldberg v. State, 95 S.W.3d 345, 361 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd), cert. denied, 540 U.S. 1190, 124 S.Ct. 1436, 158 L.Ed.2d 99 (2004). Given this, we are hard-pressed to say that the presence of a police officer in uniform and armed ipso facto renders consent involuntary, as appellant suggests. Nor does it when coupled with evidence that the officer called for backup after receiving the consent. This is especially so in view of the testimony that 1) weapons were not drawn at anytime, 2) the occupants of the room had the option not to speak with the officer, 3) the occupants were not under detention, and 4) the officer remained outside until receiving consent to search. Moreover, whatever DeeDee may have felt when told that an officer was present is mere speculation; she did not testify at the hearing. Nor does it logically follow that one's answering a knock on the door must be deemed involuntary when told of an officer's desire to speak with the person and the person is party to an intimate evening in a motel room. Additionally, that the officer failed to inform appellant of his right to refuse consent or remain silent does not outweigh all other circumstances of record illustrating that appellant voluntarily consented to the search of his motel room. See Johnson v. State, 68 S.W.3d at 652-53 (stating that although an officer's failure to inform the accused that he can refuse consent is a factor to consider, the absence of such information does not automatically render the consent involuntary). At the very least, we find sufficient evidence of record upon which the trial court could have concluded that appellant's consent was indeed voluntary. Thus, we overrule issue three, involving the initial authority to search the room in general. Issues One, Two and Four - Search of Ice Bucket and Eyeglass Case The remaining three issues deal with the officer's search of the up-turned ice bucket and an eyeglass case once he gained entry into the room via appellant's consent. Appellant argues that searching the bucket and case exceeded the scope of consent granted the officer. We overrule the issues. During the suppression hearing, appellant did not dissect the officer's action into three different searches, i.e. the initial entry into the room, perusal of the ice bucket, and perusal of the eyeglass case, as he does on appeal. Nor did he specifically complain about the officer's action viz the bucket and case. Instead, he told the trial court that the issue before it involved whether "this was an investigative detention or a consensual encounter." Nothing was said about the topic of exceeding the scope of consent he gave the officers. Consequently, the matter encompassed within issues one, two, and four were not preserved for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (the complaints asserted on appeal must comport with those raised below, otherwise they are waived). Accordingly, the judgment of the trial court is affirmed. Brian Quinn Justice Do not publish. 1. The Fourth Amendment to the federal constitution and article I, §9 of the Texas Constitution are the same in material aspects but are to be construed independently. Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993); Uresti v. State, 98 S.W.3d 321, 329 (Tex. App.--Houston [1st Dist. 2003, no pet.). When a defendant does not separately brief his claims under the federal and state constitutions, however, we assume he claims no greater protection under the state constitution. Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Appellant does argue here that the Texas constitution provides greater protection with respect to the search of closed containers than the federal constitution and relies on Autran v. State, 887 S.W.2d 31 (Tex. Crim. App. 1994) to support the proposition. Yet, Autran was a plurality decision and, as such, does not bind us.