Black v. State

• Decision Date: 15 February 2012
• Docket Number: No. PD–1551–10.,PD–1551–10.
• Citation: 362 S.W.3d 626
• Parties: Gary Lyn BLACK, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

362 S.W.3d 626

Gary Lyn BLACK, Appellant,

v.The STATE of Texas.

No. PD–1551–10.

Court of Criminal Appeals of Texas.

Feb. 15, 2012.

L. Patrick Davis, Fort Worth, for Appellant.

David W. Vernon, Asst. D.A., Cleburne, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALA, JJ., joined.

The appellant was convicted of possession with intent to deliver methamphetamine in an amount between four and 200 grams, and the jury assessed his punishment at thirty years' imprisonment. In an unpublished opinion, the Tenth Court of Appeals affirmed the appellant's conviction, holding that the trial court did not abuse its discretion in denying the appellant's motion to suppress the contraband.¹ We granted the appellant's petition for discretionary review primarily to decide whether the trial court erred to re-open the hearing on the motion to suppress shortly after trial commenced to hear additional evidence outside the jury's presence in support of its pretrial denial of the appellant's motion. The appellant contends that this procedure violated Rachal v. State.² We will affirm the judgment of the court of appeals.

FACTS AND PROCEDURAL POSTURE

In the Trial Court

The appellant filed a pretrial motion to suppress the methamphetamine seized from his person, contending that the original stop that led to his arrest was conducted without a warrant. The trial court waited until the morning after the jury was selected, but before the trial itself had begun, to conduct a pretrial hearing on the motion. At the hearing, the State elicited testimony from Investigator Brent Dickey of the Johnson County STOP Special Crimes Unit that, on August 8, 2007, he was in an undercover vehicle conducting surveillance of the appellant's home in Alvarado.³ Dickey observed the appellant leave the house in a car, and he followed as the appellant drove toward Burleson. Dickey was familiar with the appellant and believed that there were active warrants for his arrest, a fact he confirmed by calling the warrants division of the Sheriff's Office. Not wanting to compromise his undercover status, Dickey called, via dispatcher, for a marked Burleson police car to stop the appellant based on the active arrest warrants. Officer John Morgan of the Burleson Police Department responded and initiated a traffic stop of the appellant, who proved not to have a driver's license. As Dickey stood by watching, Morgan then arrested the appellant on the basis of the outstanding warrants and his driving without a license. Performing a pat-down search of the appellant, Morgan found a metal cigarette tin in the pocket of his shorts containing several baggies of methamphetamine.

At the conclusion of the hearing, counsel for the appellant argued that the arrest warrants the State proffered in justification for the appellant's stop were invalid because the supporting documentation had not been executed until after the issuance of the warrants themselves. Both warrants were signed by Johnson County Justice of the Peace Pat Jacobs. One warrant authorized the appellant's arrest for the offense of driving with expired license plates. Although this warrant was signed on April 19, 2007, the police officer's affidavit in support of the warrant was not executed until May 1, 2007. The other warrant authorized the appellant's arrest for failing to appear in Judge Jacobs's court. This warrant was also signed on April 19, 2007. The complaint in support of this warrant was sworn out by a court clerk, and avers on its face that it was “filed” on April 19, 2007. However, the jurat, also signed by Judge Jacobs, is actually dated the next day, April 20, 2007. The appellant argued that, because the sworn documentation for both warrants post-dated the warrants themselves, the warrants could not legally support the initial stop that led to his arrest. At the conclusion of argument, the trial court announced that it would deny the appellant's motion to suppress. The appellant expressly requested written findings of fact and conclusions of law,⁴ and the trial court directed the State to prepare them.

Later the same day, the appellant's jury trial commenced. Just before the jury entered the courtroom, counsel for the appellant announced on the record that he would object to any effort on the State's part to re-litigate the motion-to-suppress issue: “I'll object each and every time if there is any type of relitigation pursuant to a Rachal v. State, R–A–C–H–A–L. I will not consent to relitigation.” Nevertheless, on the second day of trial, after Investigator Dickey and Officer Morgan had each testified during the State's case-in-chief, the prosecutor requested the trial court “to, in effect, re-open, supplement, whatever the case may be, the motion to suppress, for the record that you're able to consider so that it properly shows the truth and the facts in this case.” Pursuant to this request, the State was permitted to elicit testimony, outside the jury's presence, from Judge Jacobs. She testified that she was present on the date the appellant failed to appear, that the offense of failure to appear occurred in her view, and that she issued the warrant for failure to appear on the basis of this personal knowledge. At every stage, the appellant objected to this supplementation of the motion-to-suppress record. The trial court never expressly ruled on those objections. Nevertheless, in the findings of fact and conclusions of law that the State subsequently prepared, and the trial court signed, the trial court concluded that, because the failure-to-appear offense had occurred in Judge Jacobs's presence, the warrant that she issued for the appellant's arrest was expressly authorized under Article 45.103 of the Texas Code of Criminal Procedure. ⁵

In the Court of Appeals

On appeal, the appellant challenged the trial court's denial of his motion to suppress. He argued, as he had at trial, that the arrest warrants did not comply with Article 15.03(a)(2) of the Texas Code of Criminal Procedure because the supporting documents were not executed until after the arrest warrants had issued.⁶ In an unpublished opinion, the court of appeals sidestepped the appellant's argument, holding that the trial court did not err in concluding that Article 45.103 allowed for Judge Jacobs's issuance of the arrest warrant without a sworn complaint for failure to appear and that the arrest warrant for that offense was valid.⁷ On this basis, the court of appeals concluded that the trial court did not abuse its discretion in denying the appellant's motion to suppress.⁸

The appellant filed a motion for rehearing, complaining that there was no legitimate evidence in the record to show that the failure to appear occurred in the presence of Judge Jacobs. He maintained that the trial court erred in reopening the suppression evidence during the course of the trial in order to allow Judge Jacobs to testify. The court of appeals denied the motion for rehearing in a memorandum opinion.⁹ The court of appeals acknowledged that, under Rachal, a reviewing court may consider evidence presented during trial that relates to a suppression issue only if the suppression issue is re-litigated before the fact-finder by consent of the parties.¹⁰ But the court of appeals distinguished Rachal, noting that, in this case, the trial court had permitted Judge Jacobs to testify in the context of a reopening of the suppression hearing, outside of the jury's presence.¹¹ On the strength of an opinion from the Austin Court of Appeals in Montalvo v. State,¹² the court of appeals held that it was within the trial court's discretion to allow a mid-trial supplementation of the record on the motion to suppress.¹³

We granted the appellant's petition for discretionary review in order to address what boils down to two questions: (1) whether the court of appeals erred in holding that Rachal does not prohibit a trial court from reopening evidence in order to revisit its ruling on a pretrial motion to suppress, outside the jury's presence, even after trial has commenced; and (2) whether, even assuming that it was permissible for the trial court to reopen the suppression hearing during trial to entertain additional evidence outside the jury's presence, the trial court properly considered Judge Jacobs's testimony that probable cause to issue the arrest warrant for failure to appear was based upon her personal knowledge when the face of the warrant itself indicated that Judge Jacobs's probable- cause finding was based, not on her personal knowledge, but on the court clerk's tardy complaint.

ANALYSIS

Rachal v. State versus Montalvo v. State

The rule upon which the appellant principally relies was explicitly mentioned for the first time in a footnote in our opinion in Hardesty v. State: ¹⁴

When appellate courts are asked to determine whether the trial court erred in overruling a pretrial motion the general rule is that we consider only evidence adduced at hearing on that motion and do not resort to testimony subsequently elicited at trial because the ruling in issue was not based on the latter. But where the ground of error complains of the admission of evidence at trial, and the issue has been consensually relitigated by the parties during trial on the merits, consideration of the relevant trial testimony is appropriate. The procedure generally distills to “defendant's choice” because the admissibility of an arrest, search, confession and the like, are not material issues on which the State bears the burden of proof at trial—unless raised by the defendant. Therefore, any attempt by the State to first interject evidence relevant only to such issues may be foiled by a proper objection by the defense. But if, as here, the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the...