Jessica Tata v. State

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

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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

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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).

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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

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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).

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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.

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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).

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