Ratliff v. The State Of Tex.
| Decision Date | 15 July 2010 |
| Docket Number | No. 2-09-275-CR.,2-09-275-CR. |
| Citation | 320 S.W.3d 857 |
| Parties | David Clayton RATLIFF a/k/a Clayton David Singleton a/k/a David Clay Ratliff, Appellant,v.The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Richard Alley, Fort Worth, TX, for Appellant.
Don Schnebly, Edward D. Lewallen, Assistant Criminal District Attorneys, Weatherford, TX, for The State of Texas.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.
Appellant David Clayton Ratliff a/k/a Clayton David Singleton a/k/a David Clay Ratliff appeals his conviction for possessing less than one gram of methamphetamine.1 In three points, he contends that the trial court erred by denying his motion to suppress evidence that he says the police obtained illegally and by denying his motion for mistrial based on the State's allegedly improper jury argument. We affirm.
A Weatherford resident, Kelly Lindner, called the police because she saw a white car that she did not recognize near her neighbors' residence while her neighbors were gone, and she believed that “something bad was happening.” She told the police that people from the car were removing items from her neighbors' garage and putting them in the car. One of the car's passengers was Lindner's neighbors' daughter, Rachel Adams, although Lindner did not know that fact at the time she called the police. Appellant and Bryan Harko were the car's other occupants.
Weatherford Police Department Detective Troy Luecke received a dispatch call regarding the suspicious white car, found it, and saw its three occupants. 2 According to Detective Luecke, appellant, the front seat passenger, was confrontational and agitated when Detective Luecke tried to ask him identification questions. Because Detective Luecke smelled marijuana coming from appellant, he asked appellant to get out of the car, and upon searching appellant, found two marijuana cigarettes in appellant's pocket. Thus, Detective Luecke arrested appellant.3
After the arrest, Detective Luecke searched the parts of the car “that [appellant] could reach.” 4 During the search, Detective Luecke found a briefcase that contained the following: three syringes, a pack of rolling papers, a small clear ziplock bag with white residue in it, a spoon with a white crystal substance on it (which field tested positive at the crime scene for methamphetamine), and two papers bearing appellant's name. Detective Luecke explained that because “they were no longer in sterile packages” at the time he found them, the syringes appeared to have been used.
A Parker County grand jury indicted appellant for possessing less than one gram of methamphetamine; the indictment contained enhancement paragraphs alleging that appellant had several previous felony convictions. Appellant waived arraignment and pled not guilty.
On the morning of his trial, appellant filed a motion to suppress the evidence that Detective Luecke had obtained. Appellant contended that the warrantless search was unreasonable under the federal constitution and the Texas constitution and statutes because, among other reasons, Detective Luecke did not have authority to search the car incident to appellant's arrest under Arizona v. Gant.5 Although the motion stated that a pretrial hearing outside of the jury's presence was necessary, there was no such hearing. Instead, after voir dire and before the first witness testified, appellant informed the court that he had filed the motion and that he would bring it to the court's attention at his “first time to object during the [trial].”
During Detective Luecke's testimony, he identified and discussed each item that he had found in the car. The State then offered the items to the court for admission, at which point appellant objected under the Texas and federal constitutions, particularly relying on Gant. The court overruled the objection and admitted the evidence. After the evidence was admitted, appellant's counsel asked Detective Luecke several questions about the contents of the briefcase, and the State then asked Detective Luecke further questions about the briefcase's contents without any objection. 6 Herman Carrell, who works as a forensic scientist at the crime lab, testified without objection that he tested the white substance found by the police and confirmed that it is .05 grams of methamphetamine.7 Later in the trial, after the State recalled Detective Luecke, appellant again asked him about the particular items that he had found in the briefcase. Then, after the State rested, appellant again moved to suppress the State's evidence on the basis of Gant.
After the parties finished presenting evidence and argument, the jury found appellant guilty of possessing methamphetamine, and after the trial court heard evidence regarding his punishment and found some of the enhancement allegations from his indictment to be true, it assessed a sentence of fifteen years' confinement. Appellant filed notice of this appeal.
In his first two points, appellant contends that the trial court erred by denying his motion to suppress and by admitting the evidence that was obtained from the car. The titles of his two points (which include a page number range of the reporter's record that his points relate to) and the argument within the points indicate that appellant complains about the admission of the physical evidence found by Detective Luecke after appellant's arrest. The State contends that appellant has forfeited his complaints about the admission of the evidence. We agree with the State.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh'g) cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex.R.App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 338, 341 (Tex.Crim.App.2004). Preservation of error is a systemic requirement. Archie v. State, 221 S.W.3d 695, 698 (Tex.Crim.App.2007).
To preserve error about the illegal seizure of evidence, a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial. See Tex.R.App. P. 33.1(a); Tex.R. Evid. 103(a)(1); Ross v. State, 678 S.W.2d 491, 493 (Tex.Crim.App.1984); Stults v. State, 23 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (op. on reh'g); Thomas v. State, 884 S.W.2d 215, 216 (Tex.App.-El Paso 1994, pet. ref'd). If the defendant waits until the State offers the evidence at trial, the objection to the evidence must be made before a witness gives substantial testimony about it. See Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App. [Panel Op.] 1980) ( that an objection to evidence “must be urged at the earliest opportunity”); Stults, 23 S.W.3d at 205-06; Angelo v. State, 977 S.W.2d 169, 177 (Tex.App.-Austin 1998, pet. dism'd w.o.j.) (op. on reh'g); see also Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App.) ( that “if a question clearly calls for an objectionable response, a defendant should make an objection before the witness responds”) cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995).
In Tell v. State, an aggravated robbery case, the defendant attempted at trial to suppress the admission of a ski mask that police officers obtained from his residence without a search warrant or consent. 908 S.W.2d 535, 538, 543 (Tex.App.-Fort Worth 1995, no pet.). But the defendant allowed a police officer to answer four questions about seizing the ski mask before objecting to the evidence. Id. On appeal, we concluded that “[b]ecause Tell failed to object at the time the ski mask was mentioned and allowed further questions and answers before finally objecting,” he “waived any error in the admission of the ski mask.” Id. at 544.
Similarly, in Turner v. State, the defendant contested the trial court's admission of evidence that a detective had seized from his vehicle after his arrest. 642 S.W.2d 216, 216-17 (Tex.App.-Houston [14th Dist.] 1982, no pet.). The court of appeals held that the defendant forfeited his objections at trial by allowing the detective to testify “extensively to the arrest and the items found in the search.” Id. at 217. The appellant did not object to the testimony “but only to the five exhibits.” Id.; see also Marini, 593 S.W.2d at 714 (); King v. State, No. 02-07-00172-CR, 2008 WL 3918051, at *3 (Tex.App.-Fort Worth Aug. 26, 2008, pet. ref'd) () (“When a party objects to the admission of physical drug evidence after a police officer has already testified about finding the drugs without objection, nothing is presented for review.”).
As noted above, appellant filed a motion to suppress evidence but did not obtain a pretrial hearing or ruling on the motion. As the following excerpt of Detective Luecke's testimony demonstrates, appellant then allowed Detective Luecke to testify about the evidence extensively before objecting to the admission of the State's physical evidence:
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