Garza v. State

• Decision Date: 28 January 2004
• Docket Number: No. 1691-02.,1691-02.
• Citation: 126 S.W.3d 79
• Parties: Peter Zapata GARZA, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

126 S.W.3d 79

Peter Zapata GARZA, Appellant, v. The STATE of Texas.

No. 1691-02.

Court of Criminal Appeals of Texas.

January 28, 2004.

Steven J. Lieberman, Houston, for Appellant.

Carmen Castillo Mitchell, Asst. DA, Houston, Matthew Paul, State's Attorney, Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, J.J., joined.

The question in this case deals with preservation of error. Appellant was convicted of possession with intent to distribute cocaine. Tex. Health & Safety Code Ann. arts. 481.102(3)(D), 481.112(a) (Vernon Supp.2002). Police stopped appellant's van after he made an illegal left turn, and while checking his driver's license, they learned he had two outstanding arrest warrants. Upon arresting appellant, the officers performed an inventory search on the van and discovered what appeared to be drug paraphernalia sitting in an open box in plain view. Shortly thereafter, one of the officers found what appeared to be a diaper wrapped tightly in a plastic bag. Inside the diaper was a white substance, which tested positively as cocaine, weighing 28.75 grams.

Prior to trial, appellant filed a motion to suppress the evidence seized from the van during the inventory inspection, and requested a separate hearing on that motion. The trial court denied the request for a separate hearing, stating:

Now we have a motion for a hearing, motion to suppress outside the presence of the jury. That's going to be denied for this reason: If I grant your motion, they're not going to have any evidence, so they would be subject to an instructed verdict because they don't have any evidence to proceed on, and if I deny your motion, it doesn't make any difference, the jury gets to hear it all anyway.

Both the State and appellant concede that the trial judge directed the motion to suppress to be carried with trial.

At trial, the officers testified as to the search of appellant's van, the seizure of drug paraphernalia, and the seizure of two bags of a white substance that tested positively as cocaine. Appellant did not object to that testimony. Appellant also did not object to the chemist's testimony that the white substance found in the van was cocaine weighing 28.75 grams. Later, when the State attempted to offer into evidence the drug paraphernalia and the cocaine seized during the search, appellant urged his motion to suppress outside of the jury's presence and objected on the ground that the officers' search of the van was outside the scope of a proper inventory search. The trial court denied the motion. On appeal, the Court of Appeals held that appellant's objection, at the time the State offered the actual exhibits, was untimely. The court concluded that appellant had waived error by failing to object at the time the officers and the chemist had testified. Garza v. State, No. 01-00-00625-CR, 2002 WL 1585900 (Tex.App.Houston [1st. Dist.] July 18, 2002) (not designated for publication).

Appellant asserts two grounds for review. First, he contends that because the hearing on the motion to suppress and the jury trial were conducted in a unitary proceeding, he correctly preserved error by re-urging his motion to suppress at the introduction of the physical evidence seized from the van. In his second ground for review, appellant argues that the trial court should have given him a jury instruction pursuant to Article 38.23 of the Texas Code of Criminal Procedure because a fact issue was presented at trial regarding the legality of the search of his van. We agree with appellant's first ground for review and we remand to the Court of Appeals. But because the Court of Appeals correctly affirmed the trial court's decision on the jury instruction issue, we overrule appellant's second ground for review.

Discussion

Preservation of Error

To preserve error, the record must show that appellant made a timely request, objection, or motion, and that the trial court ruled on it.¹ Tex.R.App. P. 33.1(a)(1); Nelson v. State, 626 S.W.2d. 535, 536 (Tex. Crim.App.1981). There are two main purposes behind requiring a timely, specific objection: 1) to inform the judge of the basis of the objection and give him the chance to make a ruling on it, and 2) to give opposing counsel the chance to remove the objection or provide other testimony. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977). By affording the judge an opportunity to rule on an objection, he is able to decide whether the evidence is admissible. If the judge decides the evidence is inadmissible, the jury is shielded from hearing it.

Appellant contends that the Court of Appeals decision conflicts with two cases, namely Morrison v. State, 71 S.W.3d 821 (Tex.App.Corpus Christi 2002, no pet.), and Gearing v. State, 685 S.W.2d 326 (Tex. Crim.App.1985). Although we agree with the appellant that he did preserve error, we believe both of these cases are distinguishable from appellant's case. In Gearing, the defendant filed a pretrial motion to suppress the introduction into evidence of a pistol obtained during a search of defendant's vehicle. 685 S.W.2d at 326. As in appellant's case, the trial court did not rule on the motion to suppress, but suggested that the motion be carried with trial and discussed when the issue was raised. Id. at 329. The court heard trial testimony about the evidence at issue, and the defendant did not object to that testimony. Later, when the State moved to introduce the pistol into evidence, the defendant's attorney explicitly stated "no objection." Id. Appellant urges that his case is procedurally the same as Gearing, and reads Gearing to mean that when the trial and the hearing on the motion to suppress are conducted in any unitary proceeding, and the court rules on the motion to suppress, error has been preserved. Because Gearing decides the merits of the case without effectively ruling on the preservation of error issue, we reject such a broad interpretation.

Certain dicta by the Court in Gearing taints the decision with incertitude. Specifically, the Court ends the case with the following paragraph:

It would appear [defendant] waived the error, if any, unless it can be argued that in permitting counsel to argue the pretrial motion after trial and ruling upon the same, the court in an unorthodox manner allowed the preservation of error. Be that as it may, no error in our opinion is presented upon consideration of the merits.

685 S.W.2d at 330 (emphasis added). The ambiguity of this quoted portion introduces a number of problems. For one, it is difficult to ascertain if the Court conclusively decided whether error was preserved, because the opinion skips most of the preservation of error analysis and instead moves directly to the merits of the case. The three-paragraph error analysis by the Court sets out basic law, but it does not draw any specific conclusions relating to the law as it applies to the facts of the case. The introductory phrase, "[i]t would appear [the defendant] waived the error...," suggests the Court implicitly decided that the defendant waived preservation of error. Id. at 329. But, the Court then alludes to the notion that it may have found that error was preserved, when it states "... unless ... the court in an unorthodox manner allowed the preservation of error." Id. The Court does not, however, explicitly say whether it did or did not allow the preservation of error in this unorthodox way. Instead, the Court decides the case on the merits, without ever specifically ruling on the preservation of error issue, by stating "[b]e that as it may, no error in our opinion is presented upon consideration of the merits." See Gearing, 685 S.W.2d at 330 (emphasis added).

Even if one could argue that the Court found that error was preserved, the "unorthodox" exception in Gearing would not apply here. Gearing was a bench trial, whereas appellant's case is a jury trial. In a bench trial, the judge often will learn the substance of the evidence before he can rule on the motion to suppress. The judge is presumed to disregard the inadmissible evidence if the court is called on to decide the merits of the case. In essence, the judge assumes dual roles: He acts as a judge in ruling on the admissibility of the evidence, and he acts as a juror in weighing the credibility of the evidence. Consequently, the time at which a motion is reurged or a ruling is obtained is not as crucial, because the judge, as fact-finder, is aware of the substance of the motion regardless of when the defendant finally argues it. Conversely, in a jury trial, the timing of an objection and ruling is much more important because, if the objection is not made early enough and a ruling is not obtained, the jury is able to hear evidence which it might never have heard at all.

An additional problem with Gearing is that it is unclear whether, if the Court indeed found that error was waived, the Court decided so because the defendant failed to receive a ruling on the pre-trial motion, because the defendant's attorney stated "no objection" at trial, or because of a combination of both. The Court states only that "the appellant failed to obtain a pre-trial ruling on the said motion, and stated `no objection' at trial upon the offer of the pistol." Gearing, 685 S.W.2d at 329 (emphasis added). If the Court found error was waived primarily because there was no pre-trial ruling, then Gearing actually weakens appellant's arguments, since appellant did not obtain a pre-trial ruling on his motion. If, on the other hand, the Court's decision was mostly based on a combination of both factors (the failure to get a pretrial ruling, and the statement "no objection"), appellant's case lies in a gray area, because appellant's counsel did not state "no objection." The point is that the language in Gearing makes it difficult to determine the weight the Court gave each of the factors...