Montalvo v. State

• Decision Date: 13 January 1993
• Docket Number: No. 3-91-320-CR,3-91-320-CR
• Citation: 846 S.W.2d 133
• Parties: Abel MONTALVO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 133

846 S.W.2d 133

Abel MONTALVO, Appellant, v. The STATE of Texas, Appellee.

No. 3-91-320-CR.

Court of Appeals of Texas Austin.

Jan. 13, 1993.

C. Kent Hargis, Houston, for appellant.

Ronald Earle, Dist. Atty., Frank Bryan, Asst. Dist. Atty., Travis County, Austin, for appellee.

Before POWERS, B.A. SMITH and ONION, ^* JJ.

ONION, Justice (Retired).

This appeal is taken from a conviction for "possession of a controlled substance, namely: Cocaine" less than twenty-eight grams. Appellant waived trial by jury and entered a plea of guilty before the trial court. Appellant's punishment was assessed at six years' imprisonment and a fine of one thousand dollars. The imposition of the sentence was suspended and appellant was placed on probation subject to certain conditions.

Appellant advances three points of error as follows:

1. "Judge Wisser abused his discretion when he granted the State's motion to re-open evidence and reversed himself on appellant's motion to suppress."

2. "Judge Wisser lacked jurisdiction to permit the State to re-open evidence and reverse himself on the motion to suppress when the time for State to file an appeal had expired."

3. "Judge Wisser erred when he denied appellant's motion to suppress."

The points of error, inter alia, present questions, apparently of first impression, as to the extent to which a trial court may reconsider its pretrial suppression order and whether the State's remedy, after the granting of a pretrial motion to suppress evidence, is restricted to its interlocutory appeal from such pretrial order.

On April 1, 1991, after an evidentiary hearing, the trial court granted appellant's pretrial motion to suppress evidence of the cocaine found in the ashtray of appellant's 1985 Chevrolet Camaro automobile following a traffic stop. Deputy Sheriff Frank Rodriguez testified that appellant was slow to stop despite the activated overhead lights on his patrol vehicle; and that during this time, appellant made three furtive gestures or movements inside the car. Appellant reached under the car seat and then made movements toward the passenger side of the car and to the center of the automobile. Rodriguez related that he was concerned about the safety of himself and his fellow officer and that he searched the driver's compartment for weapons. In his search for weapons, Rodriguez opened the ashtray and found the cocaine in question. The officer testified that a .22 caliber weapon, a short single-shot derringer, or other weapon would fit in the ashtray. The trial court expressed the wish that someone would have "brought the actual ashtray in here." The trial court thought the search of an ashtray for weapons was "strange" and granted the motion to suppress the evidence.

On April 5, 1991, the State filed a "Motion to Re-Open Evidence." ¹ Attached to the motion were photographs of a .22 caliber mini-revolver fitting easily inside the ashtray recess in the console of a 1985 Chevrolet Camaro once the metal ashtray had been removed. Affidavits of a police officer and an Austin Capitol Chevrolet Company parts employee were also attached. These affidavits were to the effect that such a weapon as displayed in the photographs could fit inside the ashtray recess, which contained a cover or lid. The motion noted that the question was whether Deputy Rodriguez had a reasonable belief that a weapon might be hidden inside the ashtray.

The appellate record contains a court order dated July 24, 1991, which states in pertinent part:

On the 1st day of May 1991, came on to be heard the State's Motion to Re-Open evidence in this cause. Having considered the motion, affidavits, and argument of counsel the court granted leave to re-open. On the 23rd day of July, 1991, having reconsidered the evidence submitted, the affidavits affixed to the State's Motion to Re-Open, the Court finds that its initial ruling that the evidence in this case be suppressed is in error and the Court hereby rescinds that order.

THEREFORE IT IS ORDERED that the Defendant Abel Montalvo's Motion to Suppress is denied in all respects.

We shall jointly discuss appellant's first two points of error. Appellant urges that once Judge Wisser had granted the motion to suppress evidence, "the State's proper remedy ... was an appeal to a higher court." See Tex.Code Crim.Proc.Ann. art. 44.01 (West Supp.1992). Article 44.01 permits interlocutory appeals by the State under limited circumstances and certain conditions. The State's only right of appeal is confined to narrowly defined situations. The State's right to appeal is not encouraged by the statutory enactment.

Article 44.01(a)(5) provides:

(a) The state is entitled to appeal an order of a court in a criminal case if the order:

(5) grants a motion to suppress evidence, a confession, or an admission of jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance to the case.

Thus, the State has a right to appeal an interlocutory order granting a motion to suppress evidence. See State v. Kaiser 822 S.W.2d 697, 700 (Tex.App.--Fort Worth 1991, pet. ref'd); State v. Monroe, 813 S.W.2d 701, 702 (Tex.App.--Houston [1st Dist.] 1991, pet. ref'd). To invoke the right of appeal under subsection (a) of the statute, the prosecuting attorney must give notice of appeal within fifteen days "after the date on which the order ... to be appealed is entered by the court." Tex.Code Crim.Proc.Ann. art. 44.01(d); State v. Rosenbaum, 818 S.W.2d 398, 402-03 (Tex.Crim.App.1991) (statutory period of fifteen days runs from date that the trial court indicated order would be entered). Appellant appears to argue that article 44.01 provides the exclusive remedy for the State when the trial court has granted a motion to suppress, and that when the State did not give notice of appeal within fifteen days after the granting of the motion to suppress evidence on April 1, 1991, it lost its only recourse. On April 5, 1991, the State filed in the trial court a motion to re-open the evidence on the suppression hearing, which motion was granted on May 1, 1991. On July 23, 1991, the trial court rescinded its earlier ruling and denied appellant's motion to suppress evidence. Appellant contends that the court lacked jurisdiction to permit the State to reopen the evidence and to later reverse itself on the earlier ruling since an appeal was the exclusive remedy for the State. Although appellant makes this assertion, he does not cite authorities or advance argument in support of the proposition. See Tex.R.App.P. 74(f). We have studied article 44.01 and its legislative history, see State v. Moreno, 807 S.W.2d 327 (Tex.Crim.App.1991), and we find no legislative intent that the statute provide an exclusive remedy to the State when the trial court has granted a motion to suppress evidence. As one leading treatise has stated:

In some jurisdictions, the law permits the prosecution to take an interlocutory appeal from a ruling granting the defendant's pretrial motion to suppress. But there are "differences between appellate review and reappraisal of a pretrial ruling at trial," and thus it cannot be said that the availability of interlocutory appeal eliminates any possible argument in favor of reappraisal at trial on behalf of the prosecution. By appeal the prosecutor could overturn an erroneous pretrial ruling especially a misapplication of the law, but only reconsideration at trial would permit consideration of new facts. (Citations omitted).

4 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 11.2(f) at 260 (2nd ed. 1987).

In the instant case, the State acted within four days of the initial ruling to seek reconsideration of new facts bearing on the issue in question and substantially affecting the credibility of the evidence adduced at the original pretrial hearing. The State never sought to appeal the first ruling on the motion to suppress. We reject appellant's claim that article 44.01(a)(5) accorded the State an exclusive remedy and that the trial court lacked "jurisdiction" to permit the State to reopen the evidence on the suppression issue. Cf. United States v. Scott, 524 F.2d 465, 467 (5th Cir.1975) (rejecting claim that 18 U.S.C.A. § 3731 granting government the right to appeal a suppression order was an exclusive remedy); Moreno, 807 S.W.2d at 329 (legislature, in enacting article 44.01, intended to extend to State appellate powers akin to those the United States Congress had extended to the federal government in a criminal case).

Shifting his position, appellant also argues that if the trial court had the necessary discretion, it abused that discretion when it granted the State's motion to reopen the evidence and then reversed itself by rescinding the earlier order.

We observe that appellant made no objection to the trial court's actions. Generally, error must be preserved at trial with a timely and specific objection. See Tex.R.App.P. 52(a); Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991); Sterling v. State, 800 S.W.2d 513, 521 (Tex.Crim.App.1990). Moreover, appellant has failed to bring forward any statement of facts concerning the hearings on May 1 and July 23, 1991. The burden is on appellant to see that a sufficient record is presented to show error requiring reversal. Tex R.App.P. 50(d). Appellant's failure to present a statement of facts showing the rulings of the trial court to which he assigns error presents nothing for review. See Smith v. State, 789 S.W.2d 350, 357 (Tex.App.--Amarillo 1990, pet. ref'd). Therefore, any error is waived. Guilder v. State, 794 S.W.2d 765, 766-67 (Tex.App.--Dallas 1990, no pet.); see also Hall v. State, 829 S.W.2d 407, 410-11 (Tex.App.--Waco 1992, no pet.).

Even if it could be validly argued that error was preserved for review, and in light of the jurisdictional...