Parisher v. State, No. 03-08-00046-CR (Tex. App. 6/5/2009)

• Decision Date: 05 June 2009
• Docket Number: No. 03-08-00046-CR.,03-08-00046-CR.
• Parties: DANIEL RAY PARISHER, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

DANIEL RAY PARISHER, Appellant, v.THE STATE OF TEXAS, Appellee.

No. 03-08-00046-CR.

Court of Appeals of Texas, Third District, Austin.

Filed: June 5, 2009.

Do Not Publish.

Appeal from the District Court of San Saba County, 33rd Judicial District, No. 5477, Honorable Guilford L. Jones III, Judge Presiding.

Affirmed.

Before Justices WALDROP, HENSON and ONION.^*

MEMORANDUM OPINION

JOHN F. ONION Jr., Justice.

AppellantDaniel Ray Parisher appeals his conviction for the possession of an immediate precursor, pseudoephedrine, with the intent to unlawfully manufacture a controlled substance, to wit: methamphetamine.SeeTex. Health & Safety Code Ann. § 481.124(a)(2)(West Supp. 2008).Appellant waived trial by jury and entered an "open" plea of guilty in a bench trial.The trial court assessed his punishment at eleven years in the Institutional Division of the Texas Department of Criminal Justice.

POINTS OF ERROR

Appellant advances eight points of error, all claiming that the trial court abused its discretion in denying the pretrial motion to suppress evidence for various reasons.¹

PROCEDURAL HISTORY

The indictment filed on August 4, 2005, alleged in pertinent part that appellant:

on or about the 14th day of January 14, 2005, in the County of San Saba and the State of Texas did then and there with intent to unlawfully manufacture a controlled substance, to wit: methamphetamine, possess an immediate percursor, to wit: ephedrine or pseudoephedrine.²

Appellant's pretrial motion to suppress evidence was heard by the trial court on March 17, 2006.The trial court denied the motion on August 4, 2006.Upon request, the trial court in open court on September 8, 2006, made findings of facts and conclusions of law.SeeState v. Oages,210 S.W.3d 643, 644(Tex. Crim. App.2006);State v. Cullen,195 S.W.3d 696, 699(Tex. Crim. App.2006).On May 7, 2007, appellant waived trial by jury and entered an open plea of guilty to the indictment before a different district judge.Appellant judicially confessed in writing to the offense charged—"Possession of certain chemical [pseudoephedrine] with intent to manufacture a controlled substance."The court reporter's record of this guilty plea proceeding, if any, is not in the appellate record.The judicial confession alone is sufficient to satisfy the statutory evidence requirement as to felony guilty pleas before the trial court.SeeTex. Code Crim. Proc. Ann. art. 1.15(West 2005);Dinnery v. State,592 S.W.2d 343, 353(Tex. Crim. App.1979)(op. on reh'g).If other evidence was introduced, it is not a part of this record.There is certainly no chemical analysis evidence or a showing of any evidence illegally seized or the date thereof.

This guilty plea proceeding, being a unitary trial,³ was recessed and recalled on October 25, 2007, before the original trial judge, who assessed appellant's punishment at eleven years' imprisonment.

All of appellant's issues turn on the suppression hearing, so we examine the ever-developing law regarding pretrial motions to suppress evidence.SeeTex. Code Crim. Proc. Ann. art. 28.01(6)(West 2006).

THE BURDEN OF PROOF

When a defendant seeks to suppress evidence by a pretrial motion on the basis of the Fourth Amendment to the United States Constitution, he, as the movant, bears the burden of producing evidence that defeats the presumption of proper police conduct.Amador v. State,221 S.W.3d 666, 672(Tex. Crim. App.2007);Russell v. State,717 S.W.2d 7, 9(Tex. Crim. App.1986).A defendant meets this initial burden of proof by establishing that a search or seizure occurred without a warrant.Ford v. State,158 S.W.3d 488, 492(Tex. Crim. App.2005);Bishop v. State,85 S.W.3d 819, 822(Tex. Crim. App.2002);Russell,717 S.W.2d at 9.At this point, the burden shifts to the State to prove that the search or seizure was reasonable without a warrant under the totality of the circumstances.Russell,717 S.W.2d at 9.If, however, the State introduces or produces evidence of an executed search warrant based on probable cause in its underlying affidavit, the burden shifts back to the defendant to show the invalidity of the search warrant.Ford,158 S.W.2d at 492;Russell,717 S.W.2d at 9;see alsoDavidson v. State,249 S.W.3d 709, 717-18(Tex. App.-Austin2008, pet. ref'd).

THE TRIER OF FACT

The trial court is the trier of fact at a pretrial hearing on a motion to suppress evidence.Wiede v. State,214 S.W.3d 17, 24-25(Tex. Crim. App.2007);Allridge v. State,850 S.W.2d 471, 492(Tex. Crim. App.1991).The trial court is free to believe or disbelieve all or any part of a witness's testimony, even if the testimony is not controverted.State v. Ross,32 S.W.3d 853, 855(Tex. Crim. App.2000).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).

STANDARD OF REVIEW

We generally review a trial court's ruling on a pretrial suppression motion for an abuse of discretion.State v. Dixon,206 S.W.3d 587, 590(Tex. Crim. App.2006);Swain v. State,181 S.W.3d 359, 365(Tex. Crim. App.2005);Balentine v. State,71 S.W.3d 763, 768(Tex. Crim. App.2002).The trial court's ruling should be upheld so long as it is within the zone of reasonable disagreement.SeeDixon,206 S.W.3d at 590;Montgomery v. State,810 S.W.2d 372, 391(Tex. Crim. App.1990)(op. on reh'g).This is the rather common standard of review regarding the admissibility of evidence.

When we review a trial court's ruling on a motion to suppress, we give great deference to the trial court's determination of historical facts supported by the record, while we review the application of the law to the facts de novo.Torres v. State,182 S.W.3d 899, 902(Tex. Crim. App.2005);Maxwell v. State,73 S.W.3d 278, 281(Tex. Crim. App.2002);State v. Ross,32 S.W.3d 853, 855-56(Tex. Crim. App.2000);Carmouche v. State,10 S.W.3d 323, 327;Guzman v. State,955 S.W.2d 85, 85-89(Tex. Crim. App.1997).⁴

We must uphold the trial court's ruling if it is supported by the record and correct under any theory of 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);Armendiarz v. State,123 S.W.3d 401, 404(Tex. Crim. App.2003);State v. Steelman,93 S.W.3d 102, 107(Tex. Crim. App.2002).

A SPECIALIZED OBJECTION

A pretrial motion to suppress evidence under article 28.01(6)⁵ is nothing more than a specialized objection to the admissibility of evidence.Galitz v. State,617 S.W.2d 949, 952 n.10(Tex. Crim. App.1981).Therefore, it must meet the specificity requirement for an objection.Tex. R. App. P. 33.1(a)(1)(A);Flores v. State,129 S.W.3d 169, 171(Tex. App.-Corpus Christi 2004, no pet.);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.).⁶

In Martinez v. State,17 S.W.3d 677(Tex. Crim. App.2000), the Texas Court of Criminal Appeals recognized the specificity requirement as it applied to suppression motions.There, the court held that the defendant had procedurally defaulted the issues he raised on appeal because the claims had not been made in his motion to suppress nor had he advanced any argument on those issues in the trial court.Id. at 682-83.It is commonly required that the motion to suppress evidence must specify with particularity the grounds upon which the motion is based, and the failure to assert a particular ground operates as a waiver of the right to challenge the admissibility of the evidence on that ground.W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment§ 11.2(a)(4th ed. 2004).Martinez was cited as an illustration.Id.Professor LaFave suggested that attorneys should avoid "shot gun"motions to suppress with conclusory language such as "illegal arrest" and "violation of constitutional rights," and "specify exactly why arrests or resulting searches are invalid."Id.

In Swain,181 S.W.3d at 365, the court held that because the allegations in the suppression motion were global in nature and contained little more than citation to constitutional and statutory provisions, they were not sufficiently specific to preserve the argument later made on appeal.See alsoRothstein v. State,267 S.W.3d 366, 373(Tex. App.-Houston [14th Dist.]2008, pet. ref'd)(holding that "generic" allegations in suppression motion were not specific enough to preserve argument advanced for appellate review).⁷

In his dissent in Torres v. State,Judge Holcomb noted that the defendant had filed a boiler plate pretrial motion to suppress"any and all evidence seized or obtained as a result of illegal acts."182 S.W.3d at 904.He observed that the motion failed to specify what evidence the defendant wanted to suppress asserting only that the evidence in question was the "fruit" of a warrantless arrest, citing the Fourth Amendment.Id.Judge Holcomb believed that the failure to specify what evidence the defendant wanted suppressed would have justified the trial court in denying the suppression motion on that basis alone.Id. at 904 n.3(citingJohnson v. State,548 S.W.2d 700, 706(Tex. Crim. App.1977)(appellate court perceives no error in the trial court's denial of motion to suppress"[s]ince the appellant fails to state what evidence, if any, was obtained as a result of the alleged unlawful arrest. . . .")).

Appellant's motion to suppress evidence is a boiler plate motion in general and conclusory language.It does not specify what particular evidence he wanted suppressed.Citing constitutional and statutory provisions, appellant alleged a search of his residence by virtue of a warrant, a warrantless search (apparently of his house), and his unlawful and warrantless arrest.He wanted "any and all tangible evidence,""evidence that may be used at trial," and "evidence"...