Opinion
NO. 02-18-00156-CR
05-17-2018
DESEAN PERSON APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1476845D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Desean Person appeals from his conviction for evading arrest. In one point, he argues the trial court abused its discretion by overruling his motion to suppress. The State argues that Appellant failed to preserve his complaint for our review. We affirm.
Background
Acting on information collected through several controlled or "cover buys" of marijuana by confidential informants from a certain house, police obtained a warrant to search the house for marijuana and related paraphernalia. The warrant also authorized police to search "each Suspected Party, named and described in the Affidavit, and any [persons] occupying and/or controlling" the house. The only person described in the supporting affidavit was the person who sold marijuana to a confidential informant. The affidavit described him as a "black male [with a] medium complexion [and] short[,] dreadlock style hair with green tips." Testimony and photographic evidence introduced at trial showed that the description in the affidavit matched Appellant's appearance, particularly the distinctive hairstyle.
When police executed the warrant, Appellant was sitting in a car parked at the curb in front of the target house (police were tailing Appellant and waited to execute the warrant until he parked his car). The ten officers executing the warrant were dressed in "raid gear" with the word "police" printed across the chest.
A police officer, with his weapon drawn, approached Appellant's car and shined his flashlight on Appellant. Appellant immediately turned on his headlights and drove away from the curb. The officer ran to his patrol car, activated its flashing lights and siren, and pursued Appellant. After a few blocks, Appellant pulled to a stop but drove off when the officer began to exit his patrol car. Appellant then drove another block, stopped his car, exited the vehicle, and lay down on the ground. Officers then arrested Appellant. Police discovered a bag of marijuana on the ground just outside the driver's door of Appellant's car.
A grand jury indicted Appellant for the offense of evading arrest by using a vehicle, and the indictment included a repeat-offender notice. See Tex. Penal Code Ann. § 38.04 (West 2016). Appellant pleaded not guilty.
Before trial, Appellant filed a motion to suppress "all evidence seized as a result of the stop, detention, and arrest of [Appellant]," arguing that the "stop, detention, and arrest of [Appellant] and the subsequent obtaining of any evidence was effected without a valid warrant, or reasonable suspicion or probable cause" in violation of the Fourth and Fourteenth Amendments. The trial court did not conduct a pretrial hearing on the motion. Instead, on the day of trial, the trial court asked, "We're going to run this motion to suppress with the trial as I understand; is that right?" Appellant's trial counsel answered, "Yes, Your Honor, that's correct."
During trial, the trial court admitted the testimony of several police officers who testified about the facts and circumstances surrounding the warrant, its execution, Appellant's flight from police, and his arrest. Appellant did not object to any of this testimony. When the State offered video from the pursuing officer's dashcam, Appellant's counsel said, "We have no objection." The trial court admitted the video, and the State played it for the jury. The video shows Appellant's flight, the police pursuit, and Appellant's arrest. Appellant did object to testimony concerning the marijuana, and the trial court overruled the objection.
After the State rested, Appellant re-urged his motion to suppress. Appellant argued that police did not have a warrant to search or arrest Appellant and that Appellant was outside the target home's curtilage. The State argued that the warrant authorized police to search the person described in the supporting affidavit and that the supporting affidavit described Appellant's distinctive appearance. The trial court denied the motion to suppress.
The jury found Appellant guilty and assessed punishment of five years' incarceration and a $1,000 fine. The trial court sentenced him accordingly, and this appeal followed.
Preservation of Error
The State argues that Appellant failed to preserve error for our review because he waited to obtain a ruling on his motion to suppress until after the trial court admitted the evidence in question without objection. We agree.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262-63 (Tex. Crim. App. 2013). An objection must be made as soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).
A motion to suppress is a specialized objection to the admissibility of evidence. Porath v. State, 148 S.W.3d 402, 413 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Therefore, a motion to suppress must meet all the requirements of an objection—that is, it must be timely and sufficiently specific to inform the trial court of the complaint. Id.
When a court overrules a pretrial motion to suppress evidence, the defendant need not subsequently object to the admission of the same evidence at trial to preserve error. Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004). However, when the trial court does not make a pretrial ruling on the motion but instead "carries the motion with trial," whether the motion preserves error depends on the circumstances of the trial court's decision to carry the motion. See id.
For example, in Garza, the defendant filed a pretrial motion to suppress, but the trial court did not rule on the motion before trial. Id. Rather, the trial court directed that the motion be carried with the trial, advising the parties that the court would hear the evidence in question as it was presented to the jury. Id. The State offered evidence made the basis of the motion twice, and the defendant did not object. Id. at 81. The defendant finally renewed his motion to suppress the third time the State offered the evidence in question, and the trial court denied the motion. Id.
The Texas Court of Criminal Appeals held that the defendant preserved error even though he did not object to the evidence and obtain a ruling at the earliest possible time. Id. at 84-85. The court reasoned that the trial court's specific pretrial comments essentially directed the defendant to wait until all the evidence was presented before he obtained any ruling from the trial court: "[I]t is clear that any additional attempt by appellant to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told appellant that he would not rule on the motion until the jury had heard the evidence." Id. But the court noted that its "holding today is not meant to apply in situations outside the special circumstances of this case." Id. at 85. Those "special circumstances" were that the motion to suppress dealt with an issue that would have been completely decisive of the case and that the judge told the defendant he would make no ruling until all the testimony had been presented. Id.
The Texas Court of Criminal Appeals specifically distinguished Garza from a factually similar case, Thomas v. State, 884 S.W.2d 215 (Tex. App.—El Paso 1994, pet. ref'd). See Garza, 126 S.W.3d at 84. In Thomas, the defendant filed a pretrial motion to suppress, and the trial court "agreed that the motion . . . could be carried over to trial and raised by objection at the appropriate time." 884 S.W.2d at 216. The defendant did not object when the State offered the evidence in question; instead, he later re-urged his motion to suppress. Id. at 216-17. The El Paso court of appeals held that the defendant waived error by failing to object to the evidence at the earliest opportunity. Id.; accord Strehl v. State, 486 S.W.3d 110, 112 (Tex. App.—Texarkana 2016, no pet.) (holding defendant forfeited error by failing to obtain ruling on motion to suppress until after trial court admitted evidence without objection); Trung The Luu v. State, 440 S.W.3d 123, 127-28 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (same).
In Garza, the Texas Court of Criminal Appeals noted that the distinguishing factor between Garza and Thomas was the comment made by the trial judge in Garza that he would hear all the evidence before ruling on the motion to suppress. Garza, 126 S.W.3d at 84.
The case before us is more like Thomas than Garza. The "special circumstance" identified by the Texas Court of Criminal Appeals in Garza is not present here: The trial court did not indicate that it would not rule on the motion to suppress until it had heard all the evidence. See id. Therefore, like the defendant in Thomas, Appellant needed to object to evidence at the earliest opportunity. See 884 S.W.2d at 216-17; see also Tex. R. Evid. 103(a)(1); London, 490 S.W.3d at 507.
The only evidentiary objection Appellant made at trial was to testimony concerning the marijuana. That objection had nothing to do with the evidence concerning the crime for which Appellant was prosecuted, fleeing from the police—all of which evidence was admitted without objection. Just like the defendant in Thomas, Appellant failed to object when the State offered the evidence in question. We therefore hold that Appellant, like the defendant in Thomas, forfeited his complaint concerning that evidence by waiting until after the State rested to obtain a ruling on his motion to suppress. See 884 S.W.2d at 216-17; see also Tex. R. App. P. 33.1(a)(1). We overrule Appellant's sole point.
Conclusion
Having overruled Appellant's sole point, we affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).
/s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 17, 2018