Flushed Away Parte 13

[Ulrike Dweck]

Thesurgeon reaches the prostate by putting a tool (resectoscope) into the end of the penis and through the urethra. This tool is about 12 inches long and a half inch in diameter. It has a lighted camera and valves that control irrigating fluid. It also contains an electrical wire loop that cuts tissue and seals blood vessels. The surgeon guides the wire loop to remove the tissue blocking the urethra one piece at a time. The pieces of tissue are carried by the irrigating fluid into the bladder. They are flushed out at the end of the procedure. Another version of this procedure is called the button TURP. Instead of a loop, a small button-shaped device on the end of the resectoscope vaporizes the prostate tissue using an electrical current.

TURP is most often done to ease symptoms caused by an enlarged prostate. This is often from benign prostate hyperplasia (BPH). BPH is not cancer. It's a common part of aging. When the prostate gland is enlarged, it can press against the urethra and interfere with or block the passage of urine out of the body.

Tell your provider if you have a history of bleeding disorders or if you are taking any blood-thinning medicines (anticoagulants), aspirin, or any other medicines that affect blood clotting. You may need to stop these medicines before the procedure.

You will be given anesthesia to put you to sleep for the procedure. Sometimes a medicine is used that numbs your body from the waist down, so you can still be awake (spinal anesthesia). Your feet will be placed in stirrups that are raised up.

The surgeon may first inspect the urethra and bladder with a thin tube (cystoscope). This has a light and a camera on one end. This tube is passed through the tip of the penis, then into the urethra and bladder. This lets the healthcare provider check these areas for any tumors or stones in the bladder.

Next, the resectoscope is passed into the urethra. It's used to cut away the pieces of prostate tissue that are bulging or blocking the urethra. Electricity will be applied through the resectoscope to stop any bleeding. The pieces are flushed into the bladder. Then they are drained out through the urethra.

The catheter will stay in place for 1 to 3 days. This is to help urine drain while your prostate gland heals. You will likely have blood in your urine after surgery. A bag of solution may be attached to the catheter to flush the blood and possible clots out of your bladder and the catheter. The bleeding will slowly decrease. Then the catheter will be removed.

El Paso Police Officer Enrique Mier and his partner were dispatched to an apartment complex on a family violence call. Appellant s grandmother, Estella Turner, had reported having trouble with her grandson. When Mier arrived at the scene, Mrs. Turner flagged him down and told him that Appellant had locked her and her husband out of the apartment. She said Appellant was dealing drugs and flushing the evidence. Mrs. Turner urged him to hurry and led him to the second-floor apartment. Mier saw that the front door was wide open. From the doorway, Mier announced that he was a police officer and asked whether anyone was inside. No one answered, but Mier could hear the sounds of an argument and confrontation. Believing family violence might be occurring, Mier entered to find Appellant and his grandfather in a bathroom with the door half open. Appellant was flushing marihuana down the toilet as his grandfather asked, What are you doing? I can t believe this, I won t be able to do anything for you. Mier found additional marihuana in the bathroom and placed Appellant under arrest. Mier inititally believed he had entered the grandparents apartment, but during the course of the investigation he learned that Appellant lived in the apartment alone and Mr. Turner paid the rent.

At the suppression hearing, Mrs. Turner recalled the police arriving at the apartment. She told them that her husband and Appellant were inside, but she denied telling Officer Mier anything else. Mr. Turner told a completely different version of events. He went to the apartment because his son, Gary Turner, had called to tell him two people were in the apartment and refused to leave. Gary and Appellant were not at the apartment when Gary made this phone call. Mr. Turner looked through the peephole and saw two people in the apartment but they would not open the door. Mr. Turner sent his wife to ask the apartment manager for a key. The manager refused because the Turners were not listed on Appellant s lease, but he did call the police. Before the police arrived, Mr. Turner phoned Appellant and asked him to come open the door so they could get the trespassers out of the apartment. When Appellant returned, they discovered that the trespassers had already fled by jumping out of the second-floor window. Mr. Turner told Appellant that they should throw away anything the men might have left behind. Mr. Turner walked outside to tell his wife that the police were no longer needed. He saw the police walk into the apartment and witnessed Appellant attempting to flush something down the toilet, although he did not see what it was.

A two-count indictment charged Appellant with possessing more than four ounces but less than five pounds of marihuana (Count I) and tampering with physical evidence (Count II). Appellant filed a motion to suppress the evidence seized during the warrantless search of his residence. The trial court denied the motion following the suppression hearing.

Appellant entered a negotiated guilty plea to a two-count indictment alleging that he possessed more than four ounces but less than five pounds of marihuana (Count I), and he tampered with physical evidence (Count II). Pursuant to the plea bargain, Appellant s punishment was assessed at confinement for two years in the state jail, probated for five years, and an $800 fine (Count I), and imprisonment for a term of five years, probated for five years, and a fine of $800 (Count II). In his notice of appeal, Appellant indicated that he intended to appeal the denial of his pre-trial motion to suppress. Appellant s conviction was affirmed in an unpublished opinion issued on August 29, 2002. See Turner v. State, No. 08-01-00360-CR, 2002 WL 1987906 (Tex.App.--El Paso August 29, 2002, pet. ref d)(not designated for publication). In that opinion, we held that the suppression issue was waived when Appellant s counsel affirmatively stated at the guilty plea that he had no objection to the admission of the lab report identifying the contraband as marihuana. See Turner, 2002 WL 1987906 at *3. The Court of Criminal Appeals denied Appellant s petition for discretionary review.

On July 28, 2004, Appellant filed a writ of habeas corpus pursuant to Article 11.072 of the Code of Criminal Procedure // alleging that he was denied the effective assistance of counsel at trial because his attorney waived the suppression issue. He argued that he would have obtained a reversal of his conviction had the merits been reached on appeal. The trial court denied habeas corpus relief and entered written findings of fact and conclusions of law. Appellant timely filed a notice of appeal.

In his first three issues, Appellant contends that trial counsel rendered ineffective assistance by affirmatively stating that he had no objection to the introduction of the lab report identifying the contraband as marihuana, and therefore, the trial court abused its discretion by denying habeas corpus relief.

" taking into account the facts and circumstances known to the police at the time of the search, the officers acted reasonably and were justified in entering and searching the apartment to determine whether family violence had occurred or was about to occur.

The court concluded that Mier and his partner were justified in entering the apartment and bathroom under the emergency doctrine, and therefore, the resulting seizure of the marihuana found in plain view was lawful. The court further found that because Appellant s motion to suppress was without merit, he failed to establish the prejudice prong of the Strickland standard.

In order to justify the search of a residence under the emergency doctrine, the State must show (1) that the officers had probable cause to search the residence, and (2) that obtaining a search warrant was impracticable because the officers reasonably believed there was an immediate need to act in order to protect or preserve life or to prevent serious bodily injury. Brimage v. State, 918 S.W.2d 466, 482 (Tex.Crim.App. 1996); Bray v. State, 597 S.W.2d 763, 765 (Tex.Crim.App. 1980). The State is not required to prove an actual emergency existed at the time of the officer's warrantless entry. Id. Rather, the State need only show that the facts and circumstances surrounding the entry and search were such that the officers reasonably believed an emergency existed that made obtaining a search warrant impracticable. Id.

In determining whether a warrantless search is justified under the emergency doctrine, we apply an objective standard of reasonableness which looks at the officer s conduct and takes into account the facts and circumstances known to the officer at the time of the entry. See Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App. 1998); Brimage, 918 S.W.2d at 501. We look to ensure that the warrantless search is strictly circumscribed by the exigencies that justify its initiation. Laney, 117 S.W.3d at 862.

All of the trial court s factual findings are supported by the record. The evidence established that Officer Mier responded to a family-violence disturbance call at Appellant s apartment complex. Upon arrival, he was flagged down by Appellant s grandmother, who told him that Appellant locked the grandparents out of the apartment and flushed drugs down the toilet. Mier went to the upstairs apartment where he found the door wide open. He announced that he was a police officer but no one replied. He could hear the sounds of an argument and what he believed to be a confrontation. Concerned that family violence might be in progress, Mier entered the apartment. Based on these circumstances, the trial court found that Mier s warrantless entry into the apartment was justified under the emergency doctrine because he had an objectively reasonable belief that family violence had occurred or was about to occur.

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