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Dorsey v. State

Court of Appeals of Texas, First District

December 12, 2019

BENSON DORSEY, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 185th District Court Harris County, Texas Trial Court Case Nos. 1569925, 1570348, 1570349

          Panel consists of Justices Keyes, Kelly, and Goodman.

          OPINION

          Peter Kelly, Justice.

         A grand jury indicted Benson Dorsey for possession of a controlled substance, methadone, with intent to deliver and two violations of the statute barring felons from possessing firearms. See Tex. Health & Safety Code §§ 481.102(4), 481.112(a); Tex. Penal Code § 46.04(a). After the trial court denied Dorsey's motion to suppress certain evidence, Dorsey pleaded guilty to all three charges. On appeal, Dorsey contends that the trial court erred in denying his motion to suppress and that his conviction and punishment for two separate felon-in-possession-of-firearm offenses violates his constitutional guarantee against double jeopardy.

         We affirm.

         BACKGROUND

         This case arises from a rush-hour freeway shooting on the morning of November 6, 2017. The driver of a pick-up truck became irate when another driver tried to prevent him from maneuvering around traffic on the righthand shoulder and responded by firing a handgun at the other driver's vehicle. Law enforcement officers later identified the shooter as Dorsey, a felon twice over. A subsequent search of Dorsey's residence turned up methadone and several firearms.

         A grand jury issued three separate indictments against Dorsey. The first indictment alleged that Dorsey possessed a controlled substance, methadone, with intent to deliver. See Tex. Health & Safety Code §§ 481.102(4), 481.112(a). The second one alleged that Dorsey, a felon, possessed a firearm before the fifth anniversary of his release from supervision under parole. See Tex. Penal Code § 46.04(a)(1). For purposes of this indictment, the State relied on Dorsey's 2012 felony conviction for possession with intent to deliver a controlled substance and possession of multiple firearms in his home. Dorsey was not scheduled to be released from supervision under parole for the drug conviction until 2018. The third alleged that he possessed a firearm at a location other than his residence after having been convicted of a felony. See id. § 46.04(a)(2). For purposes of this indictment, the State relied on Dorsey's 2001 felony conviction for possession of a controlled substance and possession of multiple firearms in his home.

         Dorsey filed a pretrial motion to suppress the evidence against him. He contended that the eyewitness identification procedure used by law enforcement violated his due process rights by being impermissibly suggestive. Because this identification was the lone basis for probable cause to search his residence, Dorsey argued, the trial court was obligated to suppress the evidence obtained in the search.

         The trial court held an evidentiary hearing on Dorsey's motion to suppress. Several witnesses testified at the hearing, including Jennifer Burch, the complaining witness who identified Dorsey as the shooter; responding officers K. Martinez and D. Davila; their supervisor, Sergeant R. Houghton; and Dorsey himself.

         Burch testified that as she drove to work one morning in rush-hour traffic on I-10, a white pick-up truck to her rear moved onto the shoulder to pass other motorists. The truck was unable to maneuver around her. She then heard "what sounded like a rock hitting" her car followed by "several more pops." Burch looked in her rearview mirror, saw that the driver of the truck had a gun, and realized he was shooting her car. In total, she heard around eight to eleven distinct gunshots. The truck then managed to pull around her and sped off past the surrounding traffic.

         The truck was a Ford F250 with a red car-dealership sticker on it. Burch clearly saw the driver as the truck passed her. She then telephoned for emergency assistance. Burch provided the truck's license plate number. In her testimony, she described the driver as a black man wearing a white tee-shirt. He was "a thinner male" with "a short, cleanly cut hairline." Burch did not provide all of these details about the driver to the emergency assistance operator, stating at that time only that he was a black man. As Burch was talking to the emergency assistance operator, the truck came back into view as her lane of traffic progressed. But the truck's driver's side window was now up and it was tinted so that she could not see much inside beyond the outline of his body and that "he was trying to say something" to her "in a very aggressive fashion."

         An officer with the Houston Police Department telephoned Burch later that morning and asked her to meet with police to identify the shooter. The officer told her that unless she could identify the shooter, charges would not be brought against him. She met officers at a gas station, where they showed her two men, and she identified Dorsey as the shooter. She also identified Dorsey as the shooter in open court.

         Officers K. Martinez and D. Davila were on patrol together in the same patrol car that morning. They both testified that dispatch radioed about the incident, describing the shooter's vehicle as a white Ford F250 and providing its license-plate number. Martinez and Davila encountered a truck matching that general description-a white Ford F250-a couple of blocks away from an I-10 offramp. They could not read its plate number or see who was inside because the truck was too far ahead of them, so they followed the truck and tried to catch up to it. After the truck turned a corner, they lost sight of it for a couple of minutes but then found it parked in a nearby residential driveway. When Martinez and Davila initially drove by the residence, no one was in the truck, but two black men were standing in the front doorway of the house or out in front of it. Martinez and Davila confirmed by plate number that the truck in the driveway was the one driven by the freeway shooter, and they learned that the truck was registered to a Jerold Jermane Freeman. By the time Martinez and Davila returned to the residence in their patrol car, the two men had gone inside but could be seen "peeking out the window."

         Martinez and Davila called for backup, and when another unit arrived on the scene they approached the house. Martinez went to the front door with one of the officers who responded to the request for backup, while Davila went to the back of the house. As Martinez approached, the two men who had previously stood in the doorway came outside through the front door; one of these men was Dorsey, who was wearing a white tee-shirt. The other man wore a black tee-shirt. When questioned, Dorsey said that the truck belonged to his nephew, Freeman. [Dorsey said that he had not seen his nephew that morning. In the process of questioning Dorsey, Martinez ran his name and discovered that an arrest warrant had been issued for Dorsey based on a parole violation. Martinez asked for consent to search Dorsey's home, but Dorsey refused.

         When Sergeant Houghton arrived at the scene, Martinez and Davila had detained Dorsey and the second man at the house. Houghton, Martinez, and Davila determined that they would need to obtain a warrant to search Dorsey's home, and that to do so they would need Burch to identify Dorsey as the shooter. Houghton telephoned Burch to arrange an identification and told her that the district attorney would not charge Dorsey for the shooting unless she positively identified him as the shooter. Houghton testified that he told Burch this so she would understand he needed her help. Houghton disagreed that saying so was suggestive, or that the identification procedure used by officers violated departmental rules. Though Houghton conceded that other identification methods, like line-ups or photograph arrays, are preferred, he testified that the gas-station show-up procedure used by officers in this instance made sense due to the danger posed to the public by the freeway shooter and the likelihood that any evidence would be disposed of absent a timely search. Houghton also testified that the surrounding circumstances indicated that either Dorsey or the other man at his house was the driver of the white pick-up truck and the shooter, because these men were the only people present at the home and the events unfolded "very quickly"-that is, Martinez and Davila soon encountered the same truck not far from the freeway and then found it parked in Dorsey's driveway shortly afterward.

         After Burch positively identified Dorsey as the shooter, Martinez and Davila went to the district attorney's office to complete an application for a search warrant. Officer Davila made the necessary supporting affidavit. Davila swore that he had reason to believe that there was evidence of a crime in the truck and Dorsey's home, including but not limited to evidence that a felon had a firearm. In summary, Davila stated in the affidavit that he and Martinez:

• received notice from dispatch that a black man in a white tee-shirt driving a white Ford F250, license plate number JXP5507, had shot at another car;
• subsequently encountered a truck matching this general description on a nearby road but lost sight of the truck while following it;
• found the same truck parked in the driveway of Dorsey's home and verified the plate number was the same one relayed by dispatch;
• detained at this location Dorsey, a black man dressed in a white tee-shirt, whom the complainant later identified as the freeway shooter; and
• determined that Dorsey was a felon by reviewing his criminal history and believed that he was illegally in possession of a firearm.

         Based on the affidavit, a judge signed a warrant for the search of the truck and Dorsey's home. In the subsequent search of Dorsey's home, law enforcement officers found five bottles containing the prescription drug methadone. Officers also found several loaded firearms, including two revolvers, two semi-automatic pistols, and a shotgun. Officers did not find the keys to the truck and they did not find any contraband in the truck when they searched it.

         Dorsey testified that he was at his house that morning, waiting for his landlord to come collect the rent. He stated that he did not leave the house at any point that morning. Dorsey said that he did not see his nephew, Freeman, drop off the pick-up truck at his house, but that Freeman did so some time after seven in the morning. Dorsey saw or heard the truck pull into his driveway, but when he went outside to see who it was he did not see Freeman. Dorsey did see a police cruiser drive by shortly afterward, within a couple of minutes of the truck's arrival.

         When police officers came to his door, Dorsey went out and spoke with them. He told them that the truck belonged to Freeman, who worked at a nearby construction site and parked his truck across the street several days each week. Dorsey told the officers that he assumed that was how the truck ended up in his driveway. He said that he'd never been in the truck, let alone driven it. He denied that he was the freeway shooter.

         The trial court denied Dorsey's motion to suppress. Dorsey then pleaded guilty to the three offenses for which the grand jury indicted him. The trial court assessed his punishment at 25 years' confinement for the drug offense. It assessed his punishment at 20 and 25 years' confinement respectively for ...


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