I’m just feelin’ my vibe right now. . . . I got your
back, and I will take care of you.”
Appellant became concerned that
Davis might be an undercover officer and told her to walk away slowly from the
street corner. Appellant also told her to leave the children and go back to
her car. She refused to do so, however, because Davis was not in uniform and
did not have a weapon.
Appellant then saw a green van drive by. He got in Davis’s car and asked
her, “Did you see that?” Appellant said that the van had an emblem on the back
that looked like something between a frog and a butterfly. According to
appellant, the van had been parked near his house earlier.
Davis told appellant that if he
went to the van, he would never see the children again. Appellant also said,
“I got his picture, his name, and everything.” He insisted that he did not
want to go back to his house because “I don’t wanna run into anything. . . . I
don’t even know what I’m walking into. . . . I just don’t
know what’s going on right now.” Appellant then said, “I’m sorry, I got the
wrong people. . . . I’m sorry I got this—how many of ‘em
are you? . . . It’s one of my ex-wife’s girls[.]” When Davis said
that she could not see inside the van and that there was no such person as
“the girls,” appellant said, “Just wait. Just wait. Wait. . . . I
gotta go do something.” Davis, fearing that appellant was going to run to the
van, started her car and began to back away from the curb. She then noticed that
the van had moved out of view from the house.
Davis testified that she saw two
people inside the van and that one of them had a gun in his lap. She said that
she never saw appellant with a gun. Davis testified that the van went toward
the intersection of Pecan and Belair and turned right and out of sight. After
watching the van for a few minutes, Davis became nervous and decided to call
911.
Police officers found appellant at a
nearby convenience store at around 4:10 p.m. that day. The store’s surveillance
camera showed appellant walking into the store around 4:10 p.m. An officer
then testified that he encountered appellant inside the store and was told that
there was a man outside shooting at a van. The officer saw appellant inside the
store talking on a telephone. The officer and his partner walked around the
store, looking for appellant, and eventually saw him go through a set of double
doors that lead to an exit. The officers followed appellant out of the store
and said that they found a handgun in his waistband.
The officers arrested appellant, and a
police officer took him to the police station. While at the police station,
appellant volunteered that he had come to the store to meet a woman named Candy
Davis. According to the officers, appellant had no cuts, scratches, or any
other marks on his arms, legs, or hands. At the police station, appellant
talked about “the girl.” Appellant said, “I know her. I shot at her a few
days ago. She’s not scared of me.” Appellant stated that he had been in a
relationship with her “just like a boyfriend would be.” He stated that he
talked to her by phone “because he was mad at her” and that he wanted to meet
her that day because they had “broken up.” He admitted to police that he had a
gun and said that he was concerned that the van would circle back around the
block. Appellant stated that he was trying to scare the girl off. He told
police that he fired the shots as the van passed by. Appellant said that he had
been sitting on the porch when the girl drove by. He then went to the van,
which he believed was hers, and started shooting because the van went by twice
and he did not want it to circle around the block again.
Appellant also told the police that he did not
want to hurt Davis, that he did not want to leave her with children, and that
he had just wanted to “scare her.” When asked how he planned on doing that,
appellant stated, “When I was a little boy, we had—you know, my dad had a
shotgun. I used to go around the house and shoot it at trees, the backyard. I
wanna tell her I’m gonna shoot her and I’m gonna make sure she’s gone. She’s
not gonna be around here.”
Other evidence was also presented
about the events at the convenience store before appellant’s arrest. A store
clerk testified that she overheard a conversation between appellant and a
customer between 4:00 and 4:30 p.m. She said that she thought the conversation
was “heated” and that it was “unusual” for appellant to be there so late. She
also stated that she believed that appellant might have been stalking the
woman. The clerk stated that the woman and her friends were laughing and
teasing appellant, and that it seemed like the argument escalated because “both
of them were really upset and mad about something.” The clerk also said that she
did not hear the woman threaten appellant, but that it seemed like there was an
issue because appellant kept trying to get the woman’s attention.
Police officer Jody Thompson testified
that she was dispatched to the convenience store in connection with the incident
between appellant and Davis. She said that appellant was at the store when she
arrived and that she talked to him, that appellant was “somewhat belligerent,”
and that appellant tried to “run off” when asked whether he had fired his gun.
Analysis
In a single issue, appellant argues
that the trial court erred by denying his motion to suppress his confession. He
argues that the officers made a warrantless, nonconsensual entry into his home
in violation of the Fourth Amendment. In a criminal case, an appellate court
should conduct a de novo review of a trial court’s application of law to facts
that do not turn upon an evaluation of credibility and demeanor. State v.
Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). The appellate court should apply a
bifurcated standard of review to a trial court’s ruling on a motion to
suppress, giving almost total deference to a trial court’s determination of
historical facts and reviewing de novo the court’s application of the law. See
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman,
955 S.W.2d at 89.
Under the Fourth Amendment, a warrantless
search is presumed unreasonable and therefore violates the Constitution, subject
to a few specifically defined exceptions. See Reasor v. State, 12
S.W.3d 813, 817 (Tex. Crim. App. 2000); Nicholas v. State, 502 S.W.2d 169,
172 (Tex. Crim. App. 1973). However, one of these exceptions to the Fourth
Amendment’s warrant requirement is consent to search. Reasor, 12 S.W.3d
at 817; Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
Consent is not subject to the Fourth Amendment’s warrant requirement and may be
given freely by those who have a right to effective consent, and any
exigent circumstances may be disregarded. State v. Guzman, 959 S.W.2d
631, 634 (Tex. Crim. App. 1998). The State bears the burden of proving by
clear and convincing evidence that consent to search was freely and voluntarily
given. Carmouche, 10 S.W
