Glenn v. State

• Decision Date: 04 September 2015
• Docket Number: No. 06–14–00212–CR,06–14–00212–CR
• Citation: 475 S.W.3d 530
• Parties: Terry Eugene Glenn, Sr., Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

475 S.W.3d 530

Terry Eugene Glenn, Sr., Appellant

v.The State of Texas, Appellee

No. 06–14–00212–CR

Court of Appeals of Texas, Texarkana.

Submitted: June 22, 2015

Decided: September 4, 2015

Laura M. Carpenter, Laura M. Carpenter, PLLC, Marshall, TX, for appellant.

Shawn Connally, Assistant District Attorney, Marshall, TX, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Burgess

Terry Eugene Glenn, Sr., was convicted by a Harrison County jury of possession of a controlled substance in an amount less than one gram¹ and, after pleading "true" to two prior felony convictions, was sentenced to fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Glenn asserts that the trial court erred in denying his motion to suppress evidence obtained through a warrantless search and in admitting a pill bottle and cocaine because the State failed to establish a proper chain of custody as to this evidence. Because we find (1) that the record supports the trial court's denial of Glenn's motion to suppress and (2) that the trial court did not err in admitting the pill bottle and the cocaine, we affirm the judgment of the trial court.

I. There Was Probable Cause for the Warrantless Search

In his first point of error, Glenn asserts that the trial court erred in denying his motion to suppress the cocaine because this evidence was seized without probable cause and without a search warrant in violation of his rights guaranteed under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; Article 1, Sections 9, 10, 13, and 19 of the Texas Constitution ; and Articles 1.04, 1.06, and 38.23 of the Texas Code of Criminal Procedure. He argues that the officers detaining him² lacked both a search warrant and probable cause to search the pill bottle and that the plain-view doctrine did not justify the opening of the pill bottle and seizure of the contents—the cocaine. The State argues that the pill bottle was in plain view, which justified the investigation of its contents, and that Glenn smelled of burnt marihuana, which gave the officers probable cause to search the contents of the pill bottle. The State also argues that Glenn failed to produce any evidence at the suppression hearing that there was no search warrant and that as a result, he failed to rebut the presumption that the police conduct was proper and failed to preserve anything for appellate review.³ Finally, the State argues that Glenn failed to preserve any issue under the Fifth and Fourteenth Amendments to the United States Constitution, as well as any issue under the Texas Constitution or the Texas Code of Criminal Procedure, since at the suppression hearing he only argued that the search was illegal under the Fourth Amendment to the United States Constitution.

A. Glenn Preserved Only His Complaint Under the Fourth Amendment

A motion to suppress evidence is a specialized means of objecting to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex.Crim.App.1981). As such, a motion to suppress must meet the requirements of an objection. Carroll v. State, 911 S.W.2d 210, 218 (Tex.App.–Austin 1995, no pet.) ; Mayfield v. State, 800 S.W.2d 932, 935 (Tex.App.–San Antonio 1990, no pet.). To preserve an issue involving the admission of evidence for appellate review, the objection must inform the trial court why, or on what basis, the evidence should be excluded. Ford, 305 S.W.3d at 533 (citing Cohn v. State, 849 S.W.2d 817, 821 (Tex.Crim.App.1993) (Campell, J., concurring)).⁴ In order to preserve his complaint for appeal,

all a party has to do ... 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). However, the objection must be sufficiently clear that opposing counsel and the trial court have an opportunity to address or correct the purported deficiency. Ford, 305 S.W.3d at 533. For this reason, "shotgun objections" generally citing many grounds for the objection without argument preserve nothing for appeal. Johnson v. State, 263 S.W.3d 287, 290 (Tex.App.–Houston [1st Dist.] 2007, pet. dism'd, untimely filed) ; Webb v. State, 899 S.W.2d 814, 818 (Tex.App.–Waco 1995, pet. ref'd). Likewise, a form motion to suppress asserting multiple grounds that are not subsequently asserted with argument during the suppression hearing does not preserve the subsequently unasserted grounds for appeal. See Johnson, 263 S.W.3d at 289–90 ; Morgan v. State, No. 05–94–01135–CR, 1996 WL 223551, at *4–5 (Tex.App.–Dallas Apr. 30, 1996, pet. ref'd) (not designated for publication).⁵ Also, an issue on appeal that does not comport with the objection made at trial presents nothing for appellate review. Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999) ; Wright v. State, 154 S.W.3d 235, 241 (Tex.App.–Texarkana 2005, pet. ref'd).

In the trial court, Glenn filed a generic motion to suppress evidence alleging that "[t]he search of Defendant was in violation of Defendant's Constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution, and those rights under Article 1, Section 9, of the Texas Constitution, and Article 38.23 of the Texas Rules of Criminal Procedure." The motion contained no allegations of fact or arguments supporting these alleged violations. Further, at the hearing on his motion to suppress, Glenn argued only that the evidence adduced at the hearing was obtained in violation of the Fourth Amendment. Therefore, he preserved only his Fourth Amendment complaint for our review. See Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (holding that defendant waived his trial objection under due course of law provision of Texas Constitution because he failed to present any argument to trial judge that due course of law provision provided greater protection than federal Due Process Clause).

B. Standard of Review

We review a trial court's ruling on a motion to suppress evidence for abuse of discretion. Vactor v. State, 181 S.W.3d 461, 464 (Tex.App.–Texarkana 2005, pet. ref'd) ; Carter v. State, 150 S.W.3d 230, 235 (Tex.App.–Texarkana 2004, no pet.). We must affirm the trial court's ruling if it is correct under any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543–44 (Tex.Crim.App.1990) ; Shaw v. State, 122 S.W.3d 358, 363 (Tex.App.–Texarkana 2003, no pet.). We use a bifurcated standard of review that gives " ‘almost total deference to a trial court's determination of the historical facts that the record supports [,] especially when the trial court's fact[-]findings are based on an evaluation of credibility and demeanor.’ " Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) ). This same standard " ‘applies to a trial court's determination of historical facts when that determination is based on a videotape recording admitted into evidence at a suppression hearing.’ " Id. (quoting Montanez v. State, 195 S.W.3d 101, 109 (Tex.Crim.App.2006) ). We afford this "same level of deference to a trial court's ruling on ‘application of law to fact questions,’ or ‘mixed questions of law and fact,’ if the resolution of those questions turns on an evaluation of credibility and demeanor." Id. (citing Montanez, 195 S.W.3d at 106 ). However, those issues and questions that do not turn on credibility or demeanor are reviewed de novo. Amador, 221 S.W.3d at 673 ; Vactor, 181 S.W.3d at 464. Further, when a trial court does not make explicit findings of historical fact, we " ‘review the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported by the record.’ " Amador, 221 S.W.3d at 673 (quoting Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005) ).

When a defendant alleges a Fourth Amendment⁶ violation, he has the burden of producing evidence that rebuts the presumption that the police conduct was proper. State v. Robinson, 334 S.W.3d 776, 778–79 (Tex.Crim.App.2011) ; Amador, 221 S.W.3d at 672. One means of meeting this burden is to show that a search or seizure occurred without a warrant. Robinson, 334 S.W.3d at 779 ; Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986), abrogated on other grounds by Handy v. State, 189 S.W.3d 296 (Tex.Crim.App.2006). Only when the defendant meets his initial burden of proof does the burden shift "to the State to prove that the search or seizure was nonetheless reasonable under the totality of the circumstances." Amador, 221 S.W.3d at 672–73.

C. Glenn Met His Initial Burden of Proof

In some cases, the State stipulates that the search or seizure was warrantless, thereby relieving the defendant of rebutting the presumption of proper police conduct. See, e.g., Robinson, 334 S.W.3d at 779. Where there is no stipulation, as in this case, the defendant must produce some evidence that the search or seizure was warrantless. See, e.g., Russell, 717 S.W.2d at 9–10. The State contends that this evidence must be affirmative, direct testimony that there was no search warrant.⁷ While we note that producing affirmative, direct testimony is not particularly burdensome, nevertheless, the defendant is not required to produce direct evidence that there was no warrant.

In Russell, the defendant claimed the evidence of her guilt should have been suppressed since it was the product of an illegal arrest. Id. at 8. The Texas Court of Criminal Appeals set forth the entirety of the testimony relevant to the arrest in an Appendix, consisting of the examination of the arresting officer by the defendant's attorney. Id. at 9 n.3, 11–13. Nowhere in the examination did the attorney ask the officer whether he obtained or had an arrest warrant. Thus, there...