Gard v. State

• Decision Date: 30 August 2012
• Docket Number: NO. 02-11-00087-CR,02-11-00087-CR
• Parties: RICHARD ALLAN GARD APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

RICHARD ALLAN GARDAPPELLANT

v.THE STATE OF TEXAS STATE

NO. 02-11-00087-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: August 30, 2012

FROM THE396TH DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION¹

AppellantRichard Allan Gard appeals his conviction for possessing between four grams and two hundred grams of methamphetamine with intent to deliver.²In three points, appellant contends that the trial court erred by denying his motion to suppress evidence due to allegedly excessive force in his arrest,that the trial court erred by denying his motion to suppress evidence because the search of his car was illegal, and that the evidence is insufficient to support his conviction.We affirm.

Background Facts

In December 2009, Euless Police Department OfficerHung Ho obtained a search warrant for appellant's home and car.Several plain clothes officers, including Officer Ho, were stationed near appellant's home to wait for his arrival.The officers saw appellant drive toward his home and then continue past it.Officer Ho followed appellant in an unmarked police car and witnessed three traffic violations.Officer Ho then called marked patrol units to the scene to stop appellant.Appellant stopped his car, and Officer Ho approached him, commanding him to get out of the car.Because appellant did not immediately do so, Officer Ho pulled him from the car, put him on the ground on his stomach, and placed him in handcuffs.According to Officer Ho's testimony at trial, when officers rolled appellant onto his back, they found, where appellant's stomach had been, two baggies containing methamphetamine and three empty plastic baggies.Officer Ho testified that these items were not on the street before he put appellant on the ground.

The police searched appellant, finding a cell phone and $590.The police also searched appellant's car and found another plastic bag containing methamphetamine, a digital scale, and "some other various pills."The policelater searched appellant's home and found three more bags of methamphetamine.

A Tarrant County grand jury indicted appellant for possessing more than four grams but less than two hundred grams of methamphetamine with intent to deliver.Appellant pled not guilty.Before trial, appellant filed a motion to suppress evidence concerning items "seized from his person, the ground around him, and the motor vehicle . . . as such was obtained as a result of an illegal search . . . in violation of his rights."³Under a broad construction of the motion to suppress, appellant argued, among other assertions, that the search of his car was made without a warrant or another ground supporting the search.The trial court denied appellant's motion.After receiving evidence and arguments from the parties, the jury found appellant guilty.The trial court sentenced appellant to thirty years' confinement.Appellant brought this appeal.

Preservation of Error

In his first point, appellant argues that the trial court erred by denying his motion to suppress because the police used excessive force while arresting him.The State contends that appellant forfeited his complaint about excessive force.We agree with the State.

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);Lovill v. State, 319 S.W.3d 687, 691-92(Tex. Crim. App.2009).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);Mendez v. State, 138 S.W.3d 334, 341(Tex. Crim. App.2004).A reviewing court should not address the merits of an issue that has not been preserved for appeal.Wilson v. State, 311 S.W.3d 452, 473(Tex. Crim. App.2010)(op. on reh'g).

All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.Lankston v. State, 827 S.W.2d 907, 909(Tex. Crim. App.1992);seeClark v. State, 365 S.W.3d 333, 339(Tex. Crim. App.2012).The objections made at trial, however, must comport with the error raised on appeal.SeeClark, 365 S.W.3d at 339;Camacho v. State, 864 S.W.2d 524, 533(Tex. Crim. App.1993), cert. denied, 510 U.S. 1215(1994);Rezac v. State, 782 S.W.2d 869, 870(Tex. Crim. App.1990).

Appellant argues in his first point that evidence should have been suppressed because the police used excessive force.However, appellant didnot urge this basis for excluding evidence in his written motion to suppress or in the hearing on that motion.Instead, in his written motion (as broadly construed), appellant contended that evidence should have been excluded because the police either illegally stopped his car or illegally searched his car.At the beginning of the hearing on appellant's motion, appellant's counsel conceded that the basis of the motion to suppress was that there was no justification for the police's stopping appellant's car.Appellant's counsel questioned Officer Ho about the amount of force used, but appellant never asserted excessive force as a ground for suppression and never connected this line of questioning to illegally obtained evidence.

As appellant never claimed in the trial court that evidence should have been excluded on the ground that the police used excessive force, he has forfeited that point on appeal.SeeClark, 365 S.W.3d at 339(explaining that "if a party fails to properly object to constitutional errors at trial, these errors can be forfeited");Camacho, 864 S.W.2d at 533;Rezac, 782 S.W.2d at 870;Hargrove v. State, 162 S.W.3d 313, 324(Tex. App.—Fort Worth2005, pet. ref'd).We overrule appellant's first point.

The Search of Appellant's Car

In his second point, appellant contends that the trial court erred by denying his motion to suppress evidence found in his car.Appellant argues that the search of his car was unauthorized in connection with his arrest under Arizona v.Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723-24(2009).In fact, in the argument portion of his second point, appellant relies only on Gant.

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review.Amador v. State, 221 S.W.3d 666, 673(Tex. Crim. App.2007);Guzman v. State, 955 S.W.2d 85, 89(Tex. Crim. App.1997).In reviewing the trial court's decision, we do not engage in our own factual review.Romero v. State, 800 S.W.2d 539, 543(Tex. Crim. App.1990);Best v. State, 118 S.W.3d 857, 861(Tex. App.—Fort Worth 2003, no pet.).The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.Wiede v. State, 214 S.W.3d 17, 24-25(Tex. Crim. App.2007);State v. Ross, 32 S.W.3d 853, 855(Tex. Crim. App.2000), modified on other grounds byState v. Cullen, 195 S.W.3d 696(Tex. Crim. App.2006).

When reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling.Wiede, 214 S.W.3d at 24;State v. Kelly, 204 S.W.3d 808, 818(Tex. Crim. App.2006).When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings.Kelly, 204 S.W.3d at 818-19.We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling.Id. at 818.We must uphold the trial court's ruling if it is supported by the record and correct under any theoryof law applicable to the case even if the trial court gave the wrong reason for its ruling.State v. Stevens, 235 S.W.3d 736, 740(Tex. Crim. App.2007);Armendariz v. State, 123 S.W.3d 401, 404(Tex. Crim. App.2003), cert. denied, 541 U.S. 974(2004).

The Fourth Amendment protects against unreasonable searches and seizures by government officials.U.S. Const. amend. IV;Wiede, 214 S.W.3d at 24.To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct.Amador, 221 S.W.3d at 672;seeYoung v. State, 283 S.W.3d 854, 872(Tex. Crim. App.), cert. denied, 130 S. Ct. 1015(2009).A defendant satisfies this burden by showing that a search and seizure occurred without a warrant.Amador, 221 S.W.3d at 672.Once the defendant makes this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was otherwise reasonable.Id. at 672-73;Torres v. State, 182 S.W.3d 899, 902(Tex. Crim. App.2005).

Appellant failed to meet his initial burden of rebutting the presumption of proper police conduct because he did not present evidence that the search of his car occurred without a warrant.SeeAmador, 221 S.W.3d at 672;State v. Woodard, 314 S.W.3d 86, 96(Tex. App.—Fort Worth2010)(stating that "a defendant must establish that (1) a search or seizure occurred (2) without a warrant"), aff'd, 341 S.W.3d 404(Tex. Crim. App.2011).In fact, appellantestablished that there was a warrant by attaching a copy of it to his motion to suppress.The warrant, containing a signature from a magistrate and bearing the date of December 16, 2009, stated in part,

Warrant to Search a particular place for a particular controlled substance, namely METHAMPHETAMINE, and seize evidence . . . relating to the . . . distribution of METHAMPHETAMINE . . . .

. . . .

Now therefore, you are commanded

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