Opinion
No. 05-08-00439-CR
Opinion Filed May 27, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B)
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-19624-JN.
MEMORANDUM OPINION
Appellant Edwin Charles Salter, Jr. appeals his two-year sentence after a jury found him guilty of the state jail offense of theft of property of the value of $1500 or more but less than $20,000. Appellant presents a sole issue for review: whether the trial court abused its discretion by denying appellant's motion to suppress evidence. Because appellant did not preserve error in the trial court, we conclude nothing is presented for our review. Thus, we affirm. Appellant filed a pre-trial motion to suppress "all evidence seized" as a result of what he claims was an illegal detention. Appellant's pre-trial motion was denied by the trial court. However, during the trial, appellant affirmatively stated he had "no objection" to the admission of the evidence that was the subject of the motion to suppress. An objection during trial is not required to preserve error to the admission of evidence that was the subject of a pre-trial motion to suppress. See Ebarb v. State, 598 S.W.2d 842, 843 (Tex.Crim.App. [Panel Op.] 1980) (holding no trial objection is required to preserve a complaint of denial of motion to suppress). Notwithstanding, when a defendant states during trial that he has "no objection" to the admission of challenged evidence, he waives any error in the trial court's admission of the evidence despite the pre-trial ruling. See Harris v. State, 656 S.W.2d 481, 484 (Tex.Crim.App. 1983); Grisso v. State, 264 S.W.3d 351, 353-54 (Tex.App.-Waco 2008, no pet.). The record on appeal shows appellant affirmatively stated during trial he had "no objection" to the evidence challenged in his pre-trial motion to suppress; consequently, his sole issue on appeal has not been preserved. Accordingly, nothing is presented for our review. Moreover, even if error had been preserved, the record does not show the trial court abused its discretion in denying appellant's motion to suppress. A trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard. This court must give almost total deference to the trial court's determination of historical facts; however, we review the application of the law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). When credibility is in issue, we must defer to the trial court's determination of the facts. The court of criminal appeals has stated that "the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses" and the evidence presented at a hearing on a motion to suppress. Green v. State, 934 S.W.2d 92, 98 (Tex.Crim.App. 1996). In our review of the trial court's ruling on a motion to suppress, we must review the record and all reasonable inferences therefrom in the light most favorable to the ruling, and uphold the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Amador v. State, 275 S.W.3d 872, 878-79 (Tex.Crim.App. 2008); Knisley v. State, 81 S.W.3d 478, 481 (Tex.App.-Dallas 2002, pet. ref'd). Appellant argues he was illegally detained without the requisite reasonable suspicion or specific articulable facts "which taken together with rational inference from those facts" reasonably led the arresting officer to conclude he was, had been, or would be engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 21 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997). The State disagrees, contending instead the initial contact was an "encounter"-not a seizure -and that appellant was only detained after he admitted he possessed drug paraphernalia. Applying the above standard to the facts of this case, the record shows the following. Dallas Police Officer Michael Dominguez testified at the motion to suppress hearing that in the early morning hours of February 1, 2007, while on routine patrol in a high crime area in the southeast area of Dallas, he observed a vehicle parked just outside a gated apartment complex. Dominguez's attention was drawn to the vehicle because of the time and because as he slowed down he saw two men in the vehicle. One man, later identified as appellant, quickly got out of the passenger side of the vehicle and walked toward a trash can. Dominguez parked his squad car and approached the vehicle. Dominguez asked both the driver and the man who had exited from the vehicle for identification. The driver identified himself as Tyron Busby. The vehicle was registered to Busby's mother. The passenger identified himself as appellant. As Dominguez spoke to the driver, he saw a baggie of marijuana on the floorboard on the passenger's side of the vehicle. Neither man admitted to possessing the marijuana; however, appellant admitted he had a crack pipe on his person. After several additional officers arrived on the scene, the driver was arrested for possession of marijuana and appellant was arrested for possession of drug paraphernalia based on his admission. After the two men were placed in a patrol car, Dominguez saw eight shipping boxes with "Sam's Warehouse" stamped on the boxes in the back seat of Busby's vehicle. Two of the open boxes contained Kodak digital cameras. After learning from Sam's Distribution Center in DeSoto, Texas, that the boxes of cameras had been stolen, the men were transported to the DeSoto Police Department. There, they were charged with theft. Jira Sansom testified he was the warehouse operations manager for the Wal-Mart Distribution Center located in DeSoto. Sansom located the trailer from which the cameras had been stolen. Sansom identified the boxes as being from Eastman Kodak marked to be shipped to the Wal-Mart distribution center in DeSoto. Sansom did not give either of the men permission to take the cameras. The police returned fourteen digital cameras to Sansom. The State correctly points out that the court of criminal appeals has recognized three categories of interactions between the police and citizens: encounters, investigative detentions, and arrests. See State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002); Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App. 1996). Encounters are consensual interactions between citizens and police that do not require reasonable suspicion and do not implicate constitutional rights. Florida v. Royer, 460 U.S. 491, 497-98 (1983); Franks v. State, 241 S.W.3d 135, 141 (Tex.App.-Austin 2007, pet. ref'd). Encounters are consensual if a reasonable person would feel free to disregard the police and go about his business. See California v. Hodari D., 499 U.S. 621, 628 (1991). An encounter is not considered a seizure for Fourth Amendment purposes and does not warrant constitutional analysis. See Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). Dominguez approached the vehicle on foot. When he did so, he observed in plain view on the floorboard a bag of marijuana. The driver, Busby, was arrested because he had possession of the vehicle in which the marijuana was found. After Busby was arrested, Dominguez asked appellant, who was not in the vehicle when Dominguez approached it, whether "he had anything on him that he wasn't supposed to have." In response, appellant said he possessed a crack pipe, which he showed to Dominguez. Dominguez then arrested appellant for possession of drug paraphernalia. Even assuming appellant had preserved error for our review, we would conclude the trial court did not err in denying appellant's motion to suppress. The "fruit of the poisonous tree" doctrine only forbids the use of evidence obtained as a result of an illegal detention. See Beck v. Ohio, 379 U.S. 89, 91 (1964); Reed v. State, 809 S.W.2d 940, 944 (Tex.App.-Dallas 1991, no pet.). The stolen property for which appellant was convicted was discovered as a result of Busby's detention, not appellant's detention. Appellant was not in the vehicle when Dominguez approached it. He was outside the vehicle standing near a trash can at the time. Thus, the stolen property was not evidence obtained as a result of appellant's detention. Furthermore, appellant cannot rely on Busby's detention to suppress the cameras because he has no standing to challenge his detention. See Morfin v. State, 34 S.W.3d 664, 667 (Tex.App.-San Antonio 2000, no pet.) (defendant did not have standing to challenge the search of another's vehicle). For the reasons set out above, even if error had been preserved, the record does not show the trial court abused its discretion in denying appellant's motion to suppress. No error is shown. We affirm.
Appellant was indicted for the primary offense of theft of property of the value of $1500 or more, but less than $20,000 with two additional enhancement paragraphs, the effect of which is to increase the range of punishment to that of a third degree felony. However, pursuant to an agreed motion to quash enhancement paragraphs, the two enhancement paragraphs were stricken, leaving appellant subject to the punishment range of a state jail felony.