Cecil Walter Max-George v. State

Opinion issued July 28, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00497-CR

———————————

Cecil Walter Max-George , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Case No. 1246004

MEMORANDUM OPINION

A

jury found appellant, Cecil Walter Max-George, guilty of possession of

marijuana in an amount of more than four ounces and less than five pounds. [1] After finding the enhancement paragraphs

true, the jury assessed appellant’s punishment at twenty years’ confinement and

a $5,000 fine. In three issues,

appellant argues that (1) the trial court erred in refusing to include his

requested instruction under Texas Code of Criminal Procedure article 38.23; (2)

the trial court abused its discretion in admitting evidence of firearms and

ammunition seized from appellant’s residence because it affected the jury’s

finding on punishment; and (3) the trial court abused its discretion in denying

appellant’s motion for a continuance.

We affirm.

Background

On December 26, 2009, at around

2:30 a.m., Deputy S. Brown, of the Harris County Sheriff’s Office, was sitting

in a parking lot in his patrol car writing reports when he observed a man

looking into a vehicle with a flashlight.

The vehicle was parked in front of a closed business that was part of a

strip mall. As Deputy Brown approached

to investigate, he was met by appellant, who had come from inside the

building. Deputy Brown identified

himself and asked appellant what he was doing, and appellant told Deputy Brown

that he was looking inside his friend’s car.

Deputy Brown also smelled burnt marijuana coming from appellant’s

person. Deputy Brown asked appellant for

his identification, but appellant told him that it was inside the business and

that he would go get it. Appellant

entered the building and Deputy Brown followed.

Appellant gave Deputy Brown his identification, and Brown noticed a

“very strong odor of unburnt marijuana” inside the building. Deputy Brown also observed a small amount of

marijuana in plain view on a bookshelf to the left of the door.

At that time, Deputy Brown asked

appellant and another man who was present in the front room of the building to

step outside while he checked for outstanding warrants. As the men complied, other officers began to

arrive. The officers asked appellant if

any other people remained inside the building.

Appellant told them that there were others inside the building, so Deputy

Brown and Deputy B. Frazur once again entered the building to find its other

occupants. Deputy Brown testified that

they did so because “if there is anything illegal in there or we also need to

check to make sure, I mean, there’s nobody else in there. It’s an officer safety issue to see what’s

inside.” He testified that they did not

search for any illegal items or materials at that time — they performed a “protective sweep” in which

they looked only for people. Deputies

Brown and Frazur found two other people hiding in a restroom, checked them for

concealed weapons, and escorted them outside the business. In the course of checking the premises for

other people, Deputy Brown notice several potted marijuana plants, but he

testified that he did not count them at that time because he was focused on

looking for people.

Deputies Brown and Frazur left the

building after they completed their protective sweep and contacted officers

with the narcotics division of the Sheriff’s Office. Once the narcotics officers arrived, they

sought a search warrant based on Deputy Brown’s observation in the course of

his encounter with appellant and the three other men. Once they had the search warrant, the

officers returned to the building and searched the premises for illegal

narcotics and weapons. The officers

discovered fifty-nine marijuana plants, heat lamps and other marijuana growing

paraphernalia, two semiautomatic handguns, and a shotgun.

Article 38.23 Charge Instruction

In

his first issue, appellant argues that the trial court erred in denying his

request for an instruction pursuant to Code of Criminal Procedure article

38.23.

A. Facts

Relevant to Appellant’s Claim of Charge Error

Appellant

argues that the evidence at trial raised a disputed fact issue regarding

whether he gave Deputy Brown consent to enter the building, and he was,

therefore, entitled to an instruction under article 38.23.

Prior to trial, appellant, who

represented himself before the trial court, moved to suppress the evidence

obtained by the officers pursuant to the search warrant, arguing that Deputy

Brown’s initial entry into the building was unlawful. At the suppression hearing, Deputy Brown

testified that, after he asked appellant for his identification, appellant went

into the building to get it and Brown followed directly behind him. He testified that appellant did not express

in any way that Brown was not to come into the building, appellant did not shut

the door behind him, and appellant never told him to get out of the office building

once he had entered.

On cross-examination, Deputy Brown

stated that he followed appellant because it was the middle of the night and

appellant was using a flashlight to look around, which Brown considered

suspicious, and because he had a suspicion that the business might not actually

belong to appellant or that appellant could have been breaking into the vehicle

or the business. When appellant asked

him, “What gave you the right to go into the office?”, Deputy Brown testified,

“It’s an officer safety issue. I don’t

know what’s inside.”

Appellant also testified at the

suppression hearing. He stated that one

of the other men present in his building had gone out to the car to find his

cigarettes and that he did not have a flashlight. After the other man returned to the building,

appellant noticed Deputy Brown arrive outside and went outside to meet

him. After the deputy asked him for identification,

appellant stated, “[I]t’s in my office, let me get it. Wait right here.” Appellant testified that the door closed on

its own behind him after he entered the building and that Deputy Brown “barged

in” and told the other man “to get out.”

Appellant stated that he then told the deputy, “Hey, listen, you need to

get out. This is my business. This is where I live at.” After appellant handed the deputy his

business card, he again told the deputy to get out of the building. He concluded by telling the trial court that the

officers never offered him a consent to search form and that he never gave the

officers consent to enter his office, not even impliedly. The trial court denied appellant’s motion to

suppress.

At trial, Deputy Brown testified

that, after he asked appellant for identification, appellant went inside the

building to get it, and Brown followed him in.

When Deputy Brown entered the building, he saw a bed where appellant’s

three-year-old son was sleeping.

On cross-examination, in response

to appellant’s question whether Deputy Brown felt that it was an emergency

situation, Brown testified he did not feel that he needed to have his gun drawn

as he approached appellant. [2] Deputy Brown also testified that appellant

never gave him verbal consent to enter the building and when appellant asked,

“And you didn’t have my consent to come inside my building, am I correct?”,

Deputy Brown answered, “Correct.” Brown

also testified that appellant did not affirmatively “do anything to tell [him]

not to be there.” Brown testified that

appellant did not tell him to wait outside or otherwise indicate that he should

not follow and that appellant did not try to close the door behind him or try

to stop Brown from entering in any way.

After appellant rested his case in

chief, appellant asked the trial court to address his requested instruction,

which provided in relevant part:

A

peace officer making an arrest without a warrant may not enter a residence to

make the arrest unless a person who resides in the residence consents to the

entry or exigent circumstances require that the officer making the arrest enter

the residence without the consent of a resident or without a warrant.

Exigent

circumstances is defined as an emergency situation.

Our

law provides that in any case where the jury believes the evidence [was]

obtained by an officer or other person in violation of any provisions of the

constitution or laws of the State of Texas, or of the constitution or laws of

the United States of America, or has a reasonable doubt that the evidence was

obtained in violation of the provisions stated above, the jury shall disregard

any such evidence so obtain[ed].

After making some arguments

regarding the sufficiency of the affidavit supporting the search warrant, the

trial court concluded, “And we’ve heard all of the evidence that anybody had to

offer [about the affidavit for the search warrant].” Appellant then stated, “Okay. But he explicitly stated he did not get my consent

to search.” The State pointed out that

appellant had failed to present any affirmative evidence controverting Deputy

Brown’s version of events leading up to his initial entry into the building,

but had only cross-examined the witnesses.

Appellant then cited the Fourth Amendment and article 38.23, stating, “[I]f

this evidence was obtained in violation of the law — .” The

trial court stated: “And there is no evidence that there’s been anything obtained

in violation of the law.”

At

this time, appellant pointed out that he had not given his testimony on the

issue before the jury and that he had not been aware that he was allowed to

testify. The State asked that appellant

be allowed to re-open the case. The

trial court granted the request.

Appellant testified that after

Deputy Brown asked for his identification, appellant told Brown to “wait right

here” and “let me go get it.” Appellant

testified that the door closed completely behind him and that he was getting

his business card off the desk when Deputy Brown “barged in stating to [the

other man in the room] to ‘Get outside now.’”

Appellant turned to Deputy Brown and said, “Hey, what are you doing? I

told you I own the business. You need to

get out. I live here.” After Deputy Brown asked him to step outside,

appellant replied, “I’m not going anywhere.

Don’t you see my son is sleeping right here?” Appellant testified that after he again

refused to step outside at Deputy Brown’s request Deputy Frazur arrived, became

“enraged” when appellant refused to leave, “charged at [appellant], stepping on

the bed, waking up [appellant’s] son,” and forcibly removed appellant from the

room. Appellant further testified that no

officer asked him to give consent to search until approximately 7:30 a.m. and

that he refused his consent at that time.

After

he testified, the trial court again asked if there were any objections to the

charge. Appellant again stated that he

wanted an article 38.23 instruction included “based on the issue that there is

a dispute concerning whether the evidence was obtained within the legal means

of the law.” The State responded that

there was “no contradictory statement by the Defense stating anything to the

opposite of what the officers have stated” and that the determination of

whether the evidence was legally obtained is an issue of law that had already

been ruled on.

The

following colloquy occurred:

[appellant]: [T]he officer stated that he never

got my consent to come in. And I believe —

[trial

court]: I believe the search was

done pursuant to warrant, was it not?

[appellant]: [T]he illegal entry wasn’t done

pursuant to a warrant. It was done

pursuant to — basically there was no consent, no authority, there was nothing. In fact . . . it was derived from the

exploitation of an illegal entry. . . .

[trial

court]: Is there any dispute that

he asked for identification, someone came in and he followed that person in?

. . . .

[appellant]: Yes, exactly, Your Honor. But at no time did I state that he had my

consent to follow me.

[trial court]: Did he follow some other

person in?

[appellant]: No, he followed me in, Your

Honor. And at that time I informed him .

. . that I was the business owner outside.

And I also stated that when he came in and barged in, that you need to

get out. He did not.

[prosecutor]: The State stands by its previous

argument, Your Honor, that there is no material issue here and that the

Defendant has not presented evidence which entitles him to the charge.

The trial court then denied appellant’s requested

charge.

On

appeal, appellant argues that he was entitled to the article 38.23(a)

instruction because “there was a factual dispute regarding the legality of

. . . Officer Brown’s initial entry into appellant’s

home/business, which is how Brown developed probable cause to obtain a search

warrant for the premises.”

B. Standard

of Review

We

review jury charge error in a two-step process.

Ngo v. State , 175 S.W.3d 738,

744 (Tex. Crim. App. 2005). First we

determine whether error exists in the charge.

Id. If there is error, we then review the record

to determine whether sufficient harm was caused by the error to require

reversal of the conviction. Id.

When the accused has properly objected to the error in the jury charge,

reversal is required unless the error was harmless. Id. at

743 ; see also Almanza v. State , 686

S.W.2d 157, 171 (Tex. Crim. App. 1984) (discussing harm analysis on issues of

charge error). However, if no objection

was made at trial, reversal is proper only if the error is so egregious and

created such harm that it might be fairly said that the defendant did not have

a fair and impartial trial. Almanza , 686 S.W.2d at 171 .

C. Right to

Instruction under Article 38.23

Article

38.23 provides:

No evidence obtained by an

officer or other person in violation of any provisions of the Constitution or

laws of the State of Texas, or of the Constitution or laws of the United States

of America, shall be admitted in evidence against the accused on the trial of

any criminal case.

In any case where the legal

evidence raises an issue hereunder, the jury shall be instructed that if it

believes, or has a reasonable doubt, that the evidence was obtained in

violation of the provisions of this Article, then and in such event, the jury

shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann . art.

38.23(a) (Vernon 2005). A defendant’s

right to the submission of an instruction under article 38.23(a) “is limited to

disputed issues of fact that are material to his claim of a constitutional or

statutory violation that would render evidence inadmissible.” Jones

v. State , 338 S.W.3d 725, 740 (Tex. App.—Houston [1st Dist.] 2011, pet.

filed) (quoting Madden v. State , 242

S.W.3d 504 , 509–10 (Tex. Crim. App. 2007)).

To be entitled to the submission of

a jury instruction under article 38.23, the appellant must meet three

requirements: (1) the evidence heard by the jury must raise a fact issue; (2)

the evidence on that fact must be affirmatively contested; and (3) that

contested factual issue must be material to the lawfulness of the challenged

conduct in obtaining the evidence. Id. (citing Madden , 242 S.W.3d at 510 ).

“[I]f other facts, not in dispute, are sufficient to support the

lawfulness of the challenged conduct, then the disputed fact issue is not

submitted to the jury because it is not material to the ultimate admissibility

of the evidence.” Madden , 242 S.W.3d at 510 .

Thus, the disputed fact must be essential to determining the lawfulness

of the challenged conduct. Id. at 511 .

The

Fourth Amendment will tolerate a warrantless search if the police (1) have

probable cause coupled with exigent circumstances; (2) have obtained voluntary

consent; or (3) conduct a search incident to a lawful arrest. Gutierrez

v. State , 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Here, it is undisputed that Deputy Brown did

not make his initial entry into the building incident to an arrest, but

appellant’s consent would be immaterial if Brown had probable cause coupled

with exigent circumstances.

In this context, probable cause

exists “when reasonably trustworthy facts and circumstances within the

knowledge of the officer on the scene would lead a man of reasonable prudence

to believe that the instrumentality . . . or evidence of a crime will be found.” Id. ;

Estrada v. State , 154 S.W.3d 604, 609

(Tex. Crim. App. 2005) (quoting McNairy

v. State , 835 S.W.2d 101, 107 (Tex. Crim. App. 1991)). Situations creating exigent

circumstances usually include factors pointing to some danger to the officer or

victim, an increased likelihood of apprehending a suspect, or the possible

destruction or removal of evidence. McNairy , 835 S.W.2d at 106 .

Deputy Brown testified that he

observed a man using a flashlight to look into a car parked in front of a

closed business at 2:30 in the morning the day after Christmas, and that this

was suspicious behavior. He also

testified that, as appellant approached him, he noticed that appellant smelled

strongly of burnt marijuana. This

testimony was sufficient to establish probable cause. See

Estrada , 154 S.W.3d at 609 (holding that evidence of smell of marijuana

along with other observations of suspicious activities established probable

cause).

At the suppression hearing, Deputy

Brown also testified that he followed appellant into the building’s office

because he had a suspicion that the business might not actually belong to

appellant or that appellant could have been breaking into the vehicle or the

business, and because it was the middle of the night and appellant was using a

flashlight to look around, which was also suspicious. When appellant asked him, “What gave you the

right to go into the office?”, Deputy Brown testified, “It’s an officer safety

issue. I don’t know what’s inside.” At trial, Deputy Brown testified that when he

saw someone outside the closed business, he was not sure what to think because

“there’s graffiti in the area. Possibly

could be breaking into a building, could be breaking into the vehicle.” Deputy Frazur, who arrived while Deputy Brown

was inside the office with appellant, testified that for reasons of officer

safety, he wanted to be able to clearly see appellant and the other officers at

all times.

Based on this testimony, the trial

court reasonably could have found that Deputy Brown’s warrantless entry was

justified by the need to protect himself from a suspicious person who might

have been going inside the building to retrieve a weapon, to prevent appellant

from escaping following a theft of a vehicle or business, or to prevent appellant

from destroying evidence of a potential theft or drug related crime. See

Estrada , 154 S.W.3d at 609 ; cf. Miles

v. State , 241 S.W.3d 28, 42 (Tex. Crim. App. 2007) (observing that exigent

circumstances requiring immediate arrest include theft offenses in which

perpetrator may disappear along with stolen property) (citing Tex. Code Crim. Proc. Ann. art. 18.16

(Vernon 2005)); see also United States v.

Blount , 123 F.3d 831, 838 (5th Cir. 1997) (“The exigent circumstances

analysis focuses upon the reasonableness of the officers’ investigative tactics

leading up to the warrantless entry.”).

We observe

that appellant did not argue that there was no probable cause or exigent

circumstances before the trial court or on appeal. We hold that, based on Deputy Brown’s

uncontroverted testimony on these issues, the trial court could have properly concluded

that the initial entry into the building was permissible because the State

established both probable cause and exigent circumstances. Therefore, the trial court did not err in

concluding that the question of appellant’s consent was immaterial in

determining whether the initial entry was lawful. [3] See

Madden , 242 S.W.3d at 510 (holding that when facts not in dispute support admissibility

of evidence, disputed fact issue is not submitted to jury because it is not

material to ultimate admissibility of evidence); Gutierrez , 221 S.W.3d at 685 (providing that consent to search and

existence of probable cause coupled with exigent circumstances are both

exceptions to Fourth Amendment’s prohibition against warrantless searches).

We

overrule appellant’s first issue.

Admission of Firearms and Ammunition

In his second issue, appellant

argues that the trial court erred in admitting the two handguns and related ammunition

into evidence.

A. Facts

Relevant to Admission of Firearms and Ammunition

Deputy Brown testified that

officers discovered “two pistols, semiautomatic pistols and a shotgun” during

their search of the building, and he testified to the general location where

the shotgun was found. Appellant did not

object to this testimony. The shotgun

itself was admitted into evidence, and appellant affirmatively stated that he

had no objection to its admittance into evidence.

The State also sought to admit the

two handguns and the associated ammunition and magazines. At that point, appellant objected on the

basis that the exhibits were highly inflammatory and had “nothing to do with

the current case.” The State responded that the weapons “were out of the same

transaction” as the marijuana charge and that “the fact that he has pistols and

weapons in his possession at the same time as the marijuana goes to the basis

of the case that this is one large act by [appellant] to create marijuana, to

grow marijuana, to have the protection needed to continue an operation like

this.” The trial court overruled

appellant’s objection.

B. Standard

of Review

We review a trial court’s decision

to admit evidence for an abuse of discretion.

Shuffield v. State , 189 S.W.3d

782, 793 (Tex. Crim. App. 2006). A trial

court abuses its discretion only if its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor

v. State , 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). If the trial court’s decision is correct on

any theory of law applicable to the case, we will uphold the decision. De La

Paz v. State , 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Furthermore, improper admission of evidence

is harmless if the same or similar evidence is admitted without objection at

another point in the trial. Smith v. State , 236 S.W.3d 282, 300

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Leday v. State , 983 S.W. 713 , 717 (Tex. Crim. App. 1998)).

C. Analysis

Appellant

objected to the introduction of the handguns and ammunition themselves into

evidence on the basis that these exhibits were highly inflammatory and had

“nothing to do with the current case.” However,

appellant did not object to Deputy Brown’s testimony that the police found

weapons and ammunition when they searched the premises. Appellant also affirmatively stated that he

had no objection to the admittance of the shotgun into evidence. Thus, the jury heard unobjected-to evidence

that weapons and ammunition were found in appellant’s building. We conclude that any potential error made by

the trial court in admitting the handguns and ammunition was harmless because

similar evidence was admitted without objection. See id.

We

overrule appellant’s second issue.

Motion for Continuance

In

his third issue, appellant argues that the trial court erred in denying his

motion for continuance.

A. Facts

Relevant to Motion for Continuance

Appellant

filed a motion for continuance on May 24, 2010, nine days before the trial

began on June 1, 2010. He claimed that he

had subpoenaed “Sean Everett Lowery” and “Jarel Holmes,” two of the other individuals

who were present at his business when Deputy Brown arrived and who were also removed

from the building.

In his motion, appellant argued

that the two individuals were material defense witnesses, and he stated that

“through due diligence [appellant] requested that [the witnesses] be procured

to give testimony in any hearing held on [appellant’s] behalf.” The motion also listed the matters on which

appellant wanted the witnesses to testify — i.e. “about what time did the witnesses arrive at [appellant’s] warehouse,”

“who did the witnesses arrive with,” “in what manner did the deputy come into

[appellant’s] office,” and other similar questions. The

motion stated that the witnesses were not absent by the procurement or consent

of appellant, requested the State to provide the addresses of the witnesses,

and stated that the motion was not made for purposes of delay. Appellant sought a thirty-day continuance,

signed the motion, and included his unsworn declaration that “the foregoing is

true and correct” under penalty of perjury.

Appellant also made arguments in

support of his motion for continuance on the record. Appellant again repeated the list of topics

on which he would ask Lowery and Holmes to testify, but he did not make any

statement or provide any evidence regarding what their actual testimony on

those topics would be. During

appellant’s argument in support of his motion, he also stated that the subpoena

he issued for both Lowery and Holmes was for them to appear for pretrial

proceedings. There was no evidence that

he had attempted to subpoena them for trial.

B. Standard

of Review

We

review the trial court’s ruling on the motion for continuance for an abuse of

discretion. Janecka v. State , 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); see Harrison v. State , 187 S.W.3d 429 ,

433–34 (Tex. Crim. App. 2005). To

establish an abuse of discretion, an appellant must show that he was actually

prejudiced by the trial court’s ruling. See Janecka , 937 S.W.2d at 468 . A criminal action may be continued on the

written motion of a party for sufficient cause shown. Harrison ,

187 S.W.3d at 434 (citing Tex. Code. Crim. Proc. Ann . art. 29.03

(Vernon 2006)). The motion must be sworn

to by someone who has personal knowledge of the facts relied on for the

continuance. Id. (citing Tex. Code. Crim. Proc. Ann . art. 29.08

(Vernon 2006)).

When

the defendant’s motion for continuance is based on an absent witness, it is

necessary to show (1) that the defendant has exercised diligence to procure the

witness’s attendance; (2) that the witness is not absent by the procurement or

consent of the defense; (3) that the motion is not made for delay; and (4) the

facts expected to be proved by the witness.

Id. It must appear to the trial court that

the facts expected to be proved are material.

Id. ; see Tex. Code Crim. Proc.

Ann . art. 29.06 (Vernon 2006). “Mere conclusions and general averments

are not sufficient for the court to determine their materiality, and the motion

for continuance must show on its face the materiality of the absent

testimony.” Harrison , 187 S.W.3d at 434 .

Appellant’s

motion for continuance made only general averments regarding the questions that

appellant would ask Lowery and Holmes.

Appellant did not provide any statement at all of the facts he expected

Lowery and Holmes to prove, either with his motion or in his argument before

the trial court. Thus, the trial court

had no basis on which to determine whether any facts Lowery and Holmes would

admit into evidence would be material.

Furthermore, appellant stated in

his argument before the trial court that the subpoenas referenced in his motion

were for a pretrial appearance, and there is no evidence in record that

appellant attempted to subpoena Lowery and Holmes to appear at trial. Thus, appellant failed to demonstrate that he

exercised diligence to procure Lowery and Holmes’ attendance. We conclude that the trial court did not err

in denying the motion for continuance. See id.

We overrule appellant’s third

issue.

Conclusion

We

affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Matthews. [4]

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Health & Safety Code Ann .

§ 481.121(b)(3) (Vernon 2009).

[2] Appellant represented himself at

trial.

[3]

We note that, on appeal,

appellant does not challenge the sufficiency of the warrant, nor does he

challenge the trial court’s ruling on the motion to suppress.

[4]

The Honorable Sylvia Matthews,

Judge of the 281st District Court of Harris County, sitting by assignment.