Heiden v. State, No. 03-07-00614-CR (Tex. App. 3/25/2009)
| Decision Date | 25 March 2009 |
| Docket Number | No. 03-07-00614-CR.,03-07-00614-CR. |
| Parties | CARL EDWARD HEIDEN JR., Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Comal County, 207th Judicial District, No. CR2006-386, Honorable Jack H. Robison, Judge Presiding.
Affirmed.
Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.
A jury convicted Carl Edward Heiden, Jr., of the offense of possession with intent to deliver a controlled substance, methamphetamine, in an amount more than 4 grams and less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(d) (West Supp. 2008). Punishment was assessed at ten years' imprisonment, probated for ten years, and a $2,000 fine. In a single issue on appeal, Heiden challenges the district court's denial of his motion to suppress evidence. We will affirm the judgment.
The underlying facts of this case are not disputed on appeal. On August 8, 2006, a court order was issued to take Heiden into custody for the purpose of transporting him to a state hospital for a mental health examination. See Tex. Health & Safety Code Ann. § 573.011 (West 2003), §§ 573.012, .021 (West Supp. 2008), §§ 573.022, 574.045 (West 2003). Attached to the order was an affidavit by Heiden's mother in which she stated the following:
[Heiden] has sleepless nights and thinks some one is watching him through his bedroom windows and spraying some kind of poison into his room to kill him.
He has made phone calls to the police and 911 because he wants them to catch whoever is doing this to him.
. . . .
I'm greatly concerned that he poses a danger to himself or others.
He threatens that he will kill whoever is doing these things to him and in his delusional state of mind he may at some point think that this could be myself or his father or an innocent person.
Since he does have access to firearms I feel that this poses a threat to both himself and others.
I feel it has reached a point where something has to be done before something drastic occurs.
I want to get help for him before he hurts someone.
This morning he was attempting to make a molatoff [sic] cocktail with a light bulb which he had drilled a hole in one end.
That afternoon, at approximately 3:00 p.m., three officers from the Comal County Sheriff's Office arrived at the residence of Heiden's parents—where Heiden was living at the time—to execute the order. One of the officers, Deputy Enrique Sanchez, testified at the hearing on the motion to suppress. According to Sanchez, as the officers approached the residence, Heiden arrived in his car. Sanchez testified that, as Heiden was getting out of the car, Heiden's father came out of the house and "engaged in a conversation with his son." The officers then approached Heiden, verified his identity, and informed Heiden of the order and "our purpose or reason for being there." Sanchez testified that Heiden "immediately got agitated with his father." At this point, Sanchez testified, Deputy Jeff Adams proceeded to handcuff him. When asked if, in his mind, Heiden was under arrest at this point, Sanchez testified, "Yes, he's in custody." However, the officers did not Mirandize1 Heiden or tell him that he was under arrest. Instead, Sanchez recalled, "we told him that we were placing handcuffs on him for safety purposes."
Next, Sanchez searched Heiden. In response to defense counsel's questioning, Sanchez described the search as follows:
When asked what he found in the initial pat-down search, Sanchez testified, Sanchez added that he believed the item to be "just an object," not a weapon. Sanchez then reached into Heiden's right front pants pocket and pulled out a prescription bottle. Sanchez "showed the bottle to [Heiden] and asked him if he was under any medication." According to Sanchez, Heiden volunteered, "No, that's meth." After Heiden made this statement, Sanchez opened the prescription bottle. Sanchez testified that what he saw inside the bottle was consistent with what Heiden had told him. Sanchez then "seized the evidence."
Heiden was then transported to McKenna State Hospital in San Antonio by the other officers. At some point either before or after Heiden was transported to the hospital, Sanchez searched Heiden's vehicle and seized clear, empty Ziploc bags.3 Later, Sanchez met up with the other officers at the hospital and waited for Heiden to be evaluated. On August 9, after Heiden had been examined, another court order was issued to take Heiden into protective custody and transport him to San Antonio State Hospital. This order was executed by the same officers who executed the first order. The following day, on August 10, an arrest warrant was issued for Heiden for the offense of methamphetamine possession. Heiden was ultimately charged with the offense of methamphetamine possession with intent to deliver.
Prior to trial, Heiden filed a motion to suppress the evidence obtained when the officers took him into custody at his parents' residence. Specifically, Heiden sought to suppress (1) the prescription bottle seized from his pocket, (2) his statement to Sanchez that the bottle contained "meth," (3) the methamphetamine subsequently discovered in the bottle, and (4) the plastic bags that were seized from Heiden's vehicle. The district court denied the motion to suppress, and the case proceeded to trial.4
Heiden was subsequently convicted and sentenced. This appeal followed.
In his only issue on appeal, Heiden challenges the district court's denial of his motion to suppress. We review a ruling on a motion to suppress evidence for abuse of discretion. Shepherd v. State, ___ S.W.3d ___, 2008 Tex. Crim. App. LEXIS 855, at *6 (Tex. Crim. App. Sept. 10, 2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). In so doing, we view the facts in the light most favorable to the trial court's decision. Id. When, as here, the trial court fails to make explicit findings of fact, we imply fact findings that support the trial court's ruling so long as the evidence supports the findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts. Id. (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)).
Because the motion to suppress was not relitigated by the parties during trial, our review of the district court's ruling is limited to the evidence that was before it during the hearing on the motion to suppress. See, e.g., Rangel v. State, 250 S.W.3d 96, 97-98 (Tex. Crim. App. 2008) (per curiam) (); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (); Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) ().
The prescription bottle and Ziploc bags
Two of the items Heiden sought to suppress were the prescription bottle seized from his pants pocket (admitted during trial as State's Exhibit 3) and the Ziploc bags seized from his vehicle (admitted during trial as State's Exhibit 4). Regarding the bottle, Heiden asserts that Deputy Sanchez exceeded the permissible scope of a pat-down frisk by reaching into Heiden's pocket and pulling out an object that Sanchez did not believe to be a weapon. Regarding the Ziploc bags, Heiden claims that the warrantless search of his vehicle was not supported by probable cause or exigent circumstances.
The State argues that Heiden waived any error in the admission of these items. We agree. As a general rule, when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. See Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987); Figueroa v. State, 250 S.W.3d 490, 514 (Tex. App.-Austin 2008, pet. ref'd). However, when the defendant affirmatively asserts during trial he has "no objection" to the admission of the complained-of evidence, he waives any error in the admission of the evidence that otherwise would have been preserved by the pre-trial objection and ruling. See Holmes v. State, 248 S.W.3d 194, 196 (Tex. Crim. App. 2008); Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983); Boykin v. State, 504 S.W.2d 855, 857 (Tex. Crim. App. 1974); Figueroa, 250 S.W.3d at 514. In this case, when the prescription bottle and the Ziploc bags were offered into evidence, the following exchange occurred:
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