Eisenhauer v. State

• Decision Date: 23 March 1988
• Docket Number: No. 149-85,149-85
• Parties: Lee Warren EISENHAUER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 159

754 S.W.2d 159

56 USLW 2602

Lee Warren EISENHAUER, Appellant, v. The STATE of Texas, Appellee.

No. 149-85.

Court of Criminal Appeals of Texas,

En Banc.

March 23, 1988.

W. Scott Carpenter, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Timothy G. Taft, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., and Alfred Walker, First Asst., State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

This appeal is from a conviction for possession of a controlled substance, to-wit: cocaine. Following appellant's plea of nolo contendre before the court, punishment was assessed at six years' imprisonment, probated, and a fine of $2,000.

Prior to the bench trial, appellant filed a pretrial motion to suppress. Only one police officer testified at the hearing and the motion was overruled. Thereafter, appellant entered his nolo contendre plea and the evidence seized as a result of the search was utilized to support his plea and the judgment. See Article 1.15, V.A.C.C.P. After conviction, appellant appealed only the denial of the pretrial motion to suppress, which was permissible under Article 44.02, V.A.C.C.P. ¹

In Eisenhauer v. State, 657 S.W.2d 184 (Tex.App.--Houston [1st Dist.] 1983) (hereinafter Eisenhauer I ), the same search and seizure being tested before the Court today was the subject of a federal constitutional challenge. The Court of Appeals found that the arrest of the appellant was not supported by probable cause and, as a result, the fruits of the subsequent search were inadmissible. The decision was based solely on federal constitutional grounds, to which the Court of Appeals incorrectly applied the rule of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). This Court granted review of the Eisenhauer I decision in Eisenhauer v. State, 678 S.W.2d 947 (Tex.Cr.App.1984) (hereinafter Eisenhauer II ). Presiding Judge Onion, writing for the majority, concluded that the Court of Appeals' application of the Aguilar two-prong test was erroneous, as the federal law rested on the rule of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, rehearing denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983), which required review of the totality of circumstances. This Court was careful to point out that both Eisenhauer I and Eisenhauer II rested entirely upon federal grounds.

After reversing the Court of Appeals in Eisenhauer II, this Court remanded the case for consideration of appellant's grounds of review based on state law. The remand resulted in yet another decision styled Eisenhauer v. State, 684 S.W.2d 782 (Tex.App.--Houston [1st Dist.] 1984) (hereinafter Eisenhauer III ). In Eisenhauer III, the Court of Appeals was faced with the task of determining whether probable cause for the search and seizure existed under Texas law. In concluding that the arrest was illegal, the Court of Appeals again applied the analysis of Aguilar v. Texas, supra. From this ruling, the State filed a petition for discretionary review which was granted by this Court to determine: (1) whether appellant sufficiently preserved State law grounds for review; (2) whether it was error for the Court of Appeals to apply the rule in Aguilar to probable cause determinations based on State law, and (3) whether probable cause existed under Texas law. ² We now reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

The first point that must be addressed is whether appellant sufficiently preserved the State law point of error for review. Before his trial at the bench, appellant filed a written motion to suppress. It stated, inter alia, that: "Defendant was arrested without a warrant and without probable cause in violation of the IV, V, and XIV Amendments to the Constitution of the United States and in violation of the laws and Constitution of the State of Texas." At the hearing on the motion, appellant's attorney objected to the arrest only on federal grounds, stating: "We are dealing with Draper-Aguilar-Spinelli situations...." The State argues the above quoted language, even taken in light of the written motion, is insufficient to preserve the error for review on appeal.

Though it has long been the rule that a general or imprecise specific objection is insufficient to preserve error for appeal, where the grounds of the objection are obvious to the court or the opposing counsel, the error will not be waived. Carter v. State, 717 S.W.2d 60 (Tex.Cr.App.1986); Samuel v. State, 688 S.W.2d 492 (Tex.Cr.App.1985); Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977). We find this latter exception to be controlling in the case at bar. The clear thrust of appellant's challenge was directed toward the propriety of the warrantless arrest and subsequent search. Article I, Section 9, of the Texas Constitution is directly on point. Failure to explicitly state "Art. I, § 9" should not be an impediment to review, particularly where, as here, this Court remanded the case to the Court of Appeals for the specific purpose of hearing appellant's state law points of error.

It has also been held that a timely filed motion to suppress will be sufficient to preserve error even without oral argument at the suppression hearing. Vicknair v. State, 670 S.W.2d 286 (Tex.App.--Houston [1st Dist.] 1984, review refused). It logically follows that a motion to suppress will be sufficient to preserve an alleged error where the oral argument covers some, but not all, of the grounds raised in the motion. This is not like the situation presented in Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.1980), in which this Court held the State law grounds urged by the defendant for the first time on appeal had not been properly preserved for review since both the objection and the motion to suppress were based solely on federal grounds. The State's first ground of review is overruled.

The State next poses the following ground of review: "The First Court of Appeals erred in holding that under Texas law probable cause based upon hearsay must satisfy the two-prong test of Aguilar v. State (sic), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)."

This case presents the Court with the first clear cut opportunity since the United States Supreme Court handed down Illinois v. Gates, supra, to establish a uniform guideline for determining the existence of probable cause under the constitution and laws of the State of Texas. While numerous cases have dealt with probable cause determinations, our research indicates the vast majority have dealt solely with federal constitutional issues. Very few cases presented before this Court have sought redress on State law grounds, and even fewer have resulted in decisions based upon the independent law of the State of Texas. See e.g., Marquez v. State, 725 S.W.2d 217 (Tex.Cr.App.1987); Ware v. State, 724 S.W.2d 38 (Tex.Cr.App.1986); Cassias v. State, 719 S.W.2d 585 (Tex.Cr.App.1986).

The opinion of the Court of Appeals in Eisenhauer III relies on the Aguilar-Spinelli analysis, despite the existence of a contrary federal standard. It is important to note that the Court of Appeals cites no authority for this conclusion. ³ Moreover, research indicates that this Court has never stepped forward to adopt affirmatively the two-pronged Aguilar-Spinelli test as THE method of assessing probable cause under the constitution and laws of the State of Texas. ⁴ Finding valid precedent lacking, it is up to this Court to make a pronouncement as to the proper State model for assessing probable cause. In doing so, we must analyze the nature and extent of the protections offered by the Texas Constitution, the statutory pronouncements of the Legislature and the interpretive caselaw.

An examination of Article I, Section 9, supra, reveals that it is virtually identical to its federal constitutional counterpart, the Fourth Amendment. Article I, Section 9 reads as follows:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures and searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."

The Fourth Amendment states:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Article I, Section 9 of the Constitution of this State, and the Fourth Amendment of the Federal Constitution are, in all material aspects, the same. Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983); Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343 (1944); Daniel v. State, 704 S.W.2d 952 (Tex.App.--Fort Worth 1986). The arguments for greater protections advanced here must be addressed on the basis of interpretive caselaw or legislative pronouncements.

A review of the procedures used by this Court in the past for determining probable cause provides little, if any, guidance. During the period of time between Aguilar (1964) and Gates (1983), this State followed the lead of the United States Supreme Court and tacitly applied the Aguilar-Spinelli test to challenges based both on federal and state law. See e.g. Jones v. State, 640 S.W.2d 918 (Tex.Cr.App.1982); Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1980); Kleasen v. State, 560 S.W.2d 938 (Tex.Cr.App.1977). However, the line of cases following the Aguilar-Spinelli model cannot be said to demonstrate, in and of themselves, judicial preference for a broader interpretation of Article I, Section 9 which provides greater protections than the Fourth Amendment. As this Court stated in Brown v. State, supra: "We ... decline [defend...