Montgomery v. State

GERALD MONTGOMERY, Appellant v. THE STATE OF TEXAS

No. 02-18-00438-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

August 29, 2019

On Appeal from the 297th District Court Tarrant County, Texas

Trial Court No. 1492285D

Before Sudderth, C.J.; Bassel and Womack, JJ.

Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

In three issues, appellant Gerald Montgomery challenges the sufficiency of the evidence to support his conviction for the offense of sexual assault, the denial of his motion to suppress evidence, and the inclusion of a charge instruction on the lesser offense of sexual assault. We will affirm the trial court's judgment.

II. BACKGROUND

A. Factual Background

The complainant in this case, E.F., testified at trial. On March 16, 2017, E.F. was living in a group home in Fort Worth and would walk twice daily for exercise. During her morning walk on March 16, 2017, Montgomery, a person unknown to E.F., called to her and said that he wanted to speak to her. E.F. and Montgomery discussed drugs, and E.F. agreed to return later if possible.

E.F. met with Montgomery that same morning, and they eventually smoked methamphetamine. Montgomery expressed his interest in E.F., and she told him that she did not want to have sex with him. Montgomery went in and out of the bathroom several times, and when he last exited the bathroom, he placed E.F. in a headlock, and put a chemical- or gasoline-laden rag in her mouth and over her face. E.F. struggled and attempted to pull away while Montgomery said, "Breathe it in." E.F. was attempting to not breathe due to her concerns that "this was a do or die kind of situation" and that Montgomery was wanting her to breathe in so that she wouldeither die or pass out. E.F.'s body went numb. Montgomery laid E.F. down, put a condom on his penis, pulled down E.F.'s pants, and placed his penis into E.F.'s vagina. Before he "finished," Montgomery commented, "This is not working for me," and he returned to the bathroom. During this interlude, E.F. began to regain the feeling in her legs and realized that Montgomery was mixing chemicals again or "doing something." E.F. testified that she was worried and realized that he was "going to come back and finish me off . . . . So either I was supposed to be passed out and [let] him finish that way[,] or I was supposed to be dead and let him finish that way." While Montgomery was distracted in the bathroom, E.F. was able to get up and escape.

E.F. approached a neighbor at the corner, told her that she had been sexually assaulted, and used her phone to call 911. After police arrived, E.F. rode in the police car and directed police to the house where she had been sexually assaulted. Police found Montgomery hiding in a bedroom closet inside the house. E.F. testified that she did not consent to sex with Montgomery and identified Montgomery as the person who sexually assaulted her.

A penile swab obtained from Montgomery on March 16, 2017, was tested and showed a mixture originating from and including the DNA profiles of E.F. and Montgomery. Gasoline was identified on a blanket that had been submitted for testing.

B. Procedural Background

By indictment, the State charged Montgomery with committing the offense of aggravated sexual assault against E.F. and alleged that during the commission of the offense, he used or exhibited a deadly weapon, in this case a cloth containing gasoline or fuel, that in the manner of its use or intended use was capable of causing death or serious bodily injury. Tex. Penal Code. Ann. § 22.021. During the charge conference, and over Montgomery's objection, the trial court granted the State's request to include an instruction in its charge on the lesser offense of sexual assault.¹ Id. § 22.011; McGahey v. State, 744 S.W.2d 695, 696 (Tex. App.—Fort Worth 1988, pet. ref'd). The jury found Montgomery guilty of sexual assault and assessed his punishment at forty years' confinement.

III. DISCUSSION

A. Motion to Suppress Evidence

For ease of discussion, we first address Montgomery's second issue in which he complains that the trial court erred in denying his motion to suppress the penile swab collected from him. Montgomery specifically contends that his rights under the U.S. and Texas constitutions and article 18.01 of the Texas Code of Criminal Procedurewere violated because the affidavit supporting the request for a search warrant did not request authority to obtain a penile swab and only requested buccal swabs. See Tex. Code Crim. Proc. Ann. art. 18.01 (search warrant). The search warrant directed that buccal and penile swabs of Montgomery's DNA be obtained and submitted for scientific analysis.

1. Standard of Review

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). A defendant seeking to suppress evidence on Fourth Amendment grounds bears the initial burden to produce some evidence that the government conducted a warrantless search or seizure that he has standing to contest. State v. Martinez, 569 S.W.3d 621, 623 (Tex. Crim. App. 2019) (quoting Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986), disavowed in part on other grounds by Handy v. State, 189 S.W.3d 296, 299 n.2 (Tex. Crim. App. 2006)); Handy, 189 S.W.3d at 298-99; see, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S. Ct. 2556, 2561 (1980). Once the defendant does so, the burden shifts to the State to prove either that the search or seizure was conducted pursuant to a warrant or, if warrantless, was otherwise reasonable. Martinez, 569 S.W.3d at 623-24 (quoting Russell, 717 S.W.2d at 9); Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007). If the State produces evidence of a warrant, the burden of proof shifts back to the defendant to show the warrant's invalidity. Martinez, 569 S.W.3d at 623 (quoting Russell, 717 S.W.2d at 9-10).

Whether a search is reasonable is a question of law that we review de novo, measuring reasonableness by examining the totality of the circumstances. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004). In the process, we must balance the public interest and the individual's right to be free from arbitrary detentions and intrusions. Id. at 63.

When reviewing a magistrate's determination of probable cause to issue a search warrant under the Fourth Amendment or Texas Code of Criminal Procedure article 18.01, we apply the deferential standard of review the United States Supreme Court articulated in Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Under that standard, we uphold the probable-cause determination "so long as the magistrate had a 'substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing." Gates, 462 U.S. at 236, 103 S. Ct. at 2331 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547 (1980)); see Swearingen, 143 S.W.3d at 811; see also State v. McLain, 337 S.W.3d 268, 271-72 (Tex. Crim. App. 2011); Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).

In assessing the sufficiency of an affidavit for an arrest or a search warrant, the reviewing court is limited to the affidavit's four corners. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992). The reviewing court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate could drawreasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006); see Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Davis v. State, 202 S.W.3d 149, 155-58 (Tex. Crim. App. 2006) (discussing the extent to which inferences may be reasonably inferred from an affidavit).

A warrant must be sufficiently particular to satisfy the Fourth Amendment. See Bonds v. State, 403 S.W.3d 867, 874-75 (Tex. Crim. App. 2013). A warrant is sufficiently particular if it enables the officer to locate the property and distinguish it from other places in the community. Id. at 875. The particularity requirement is related to the probable-cause requirement in that it enables the magistrate to determine whether probable cause exists for the requested search. Id.

When the State justifies a search or arrest on the basis of a warrant, it must produce the warrant and supporting affidavit to the trial court if the defendant challenges the search or arrest's validity. Etheridge v. State, 903 S.W.2d 1, 19 (Tex. Crim. App. 1994); Weems v. State, 167 S.W.3d 350, 356 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd); see Handy, 189 S.W.3d at 298 (search warrant). This procedure allows the trial court to review the documents and determine whether probable cause exists and whether the accused's rights have been protected. Etheridge, 903 S.W.2d at 19; Garrett v. State, 791 S.W.2d 137, 140 (Tex. Crim. App. 1990); Weems, 167 S.W.3d at 356; see Handy, 189 S.W.3d at 298-99.

2. Analysis

Montgomery contends "the penile swab evidence was illegally obtained" because the supporting affidavit did not request a penile swab and consequently did not establish "probable cause for the magistrate to authorize such a search" in violation of his Fourth Amendment rights. He also asserts that the magistrate failed "to specifically list items of property that are to be searched" in contravention of article 18.01's requirement. See Tex. Code Crim. Proc. Ann. art. 18.01(d). We disagree with these contentions.

Article 18.01(c) specifies,

A search warrant may not be issued under Article 18.02(10) unless the sworn affidavit required by Subsection (b) sets forth sufficient facts to establish probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that

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