IN THE

TENTH COURT OF APPEALS

No. 10-07-00056-CR

GABRIEL ANTHONY JIMENEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 06-00382-CRF-361

MEMORANDUM OPINION

After the trial court denied his motion to suppress, Gabriel Jimenez pled guilty to 

two counts of possession of a controlled substance. He was sentenced in each count to 

one year in jail and a fine of $3,000. His sentence was suspended and he was placed on 

community supervision for two years. Jimenez appeals the denial of his motion to 

suppress. Because the trial court did not abuse its discretion in denying the motion to 

suppress, we affirm the trial court’s judgment.

BACKGROUND

Officer Holt of the Bryan Police Department was dispatched on a loud noise call 
Jimenez v. State Page 2

to Jimenez’s house a little after 2 a.m. on October 2, 2005. Holt observed a party going 

on at the house where minors were drinking beer obtained from a keg in the back yard. 

Through the open front door, he also observed a marijuana bong in the living room of 

the house. Holt asked Jimenez’s roommate, Chad Lovell, if he could enter the house. 

Lovell agreed.1 Jimenez also agreed to Holt’s entry but was rude and patronizing to the 

officer.2 Once inside, and due to Jimenez’s behavior toward the officer, Holt patted 

down Jimenez to check for weapons. Holt felt a bulge in the back waistline of Jimenez’s 

pants that felt like a prescription pill bottle. He asked Jimenez about the bulge and 

Jimenez denied having anything on him. While talking with Holt, Jimenez shook the 

pill bottle down the leg of his pants. It fell out of his pants onto the floor. Holt picked it 

up and saw two different prescription pills inside a pill bottle with no prescription 

label.

WARRANTLESS ENTRY

In his sole issue, Jimenez contends that the trial court abused its discretion in 

denying the motion to suppress evidence obtained during a warrantless entry into his 

house. Specifically, he argues that there were no exigent circumstances which would 

allow an exception to the warrant requirement. Jimenez however, ignores the trial 

court’s written findings of fact. The court found, not only that exigent circumstances 

existed for the entry, but also that Holt had consent from Lovell and Jimenez to enter 

the house. The court also found that Holt’s testimony was credible and that Lovell’s 

 

1 Lovell testified at the motion to suppress hearing that Holt did not ask for permission to enter the house.

2

Jimenez did not testify at the motion to suppress hearing.
Jimenez v. State Page 3

testimony that Holt did not ask for permission to enter the house was not credible.

A finding of exigent circumstances is not the only exception to the warrant 

requirement for entry into a person’s home. Consensual entry is another exception. 

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); 

Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). Jimenez does not challenge 

the trial court’s findings regarding consent to entry. See State v. Aviles, No. 10-07-00371-

CR, 2008 Tex. App. LEXIS 2577, *3 (Tex. App.—Waco Apr. 9, 2008, no pet.) (mem. op.) 

(“[B]efore we can hold that a trial court erred vi[s-a-vis] an evidentiary ruling, it is 

incumbent upon the party having the burden to prove error on appeal (i.e., the 

appellant) to negate each potential basis supporting the ruling." quoting In re T.M., 33 

S.W.3d 341, 348 (Tex. App.—Amarillo 2000, no pet.)). Further, the evidence in the 

record supports the trial court’s finding. Johnson v. State, 226 S.W.3d 439, 443 (Tex. 

Crim. App. 2007). Accordingly, the trial court did not abuse its discretion in denying 

Jimenez’s motion to suppress.

The trial court’s judgment is affirmed. 

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 8, 2008

Do not publish 

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