Sanders v. State

• Decision Date: 06 December 2012
• Docket Number: No. 06–12–00076–CR.,06–12–00076–CR.
• Parties: Gary Donell SANDERS, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

387 S.W.3d 680

Gary Donell SANDERS, Appellant

v.The STATE of Texas, Appellee.

No. 06–12–00076–CR.

Court of Appeals of Texas, Texarkana.

Submitted: Nov. 26, 2012.

Decided: Dec. 6, 2012.

Lew Dunn, Law Offices of Lew Dunn, Longview, TX, for Appellant.

Richard Kennedy, Assistant District Attorney, Henderson, TX, Michael E. Jimerson, Rusk County District Attorney, Henderson, TX, for Appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

Gary Donell Sanders did nothing to win Officer Shane Guthrie's friendship when he spat on the back of Guthrie's head as he sat in the back seat of Guthrie's patrol car. As a result of this conduct, Sanders was convicted by a jury for harassment of a public servant and was sentenced to seven years' imprisonment. Sanders appeals his conviction, arguing that the trial court erroneously: (1) denied a motion to suppress the evidence; (2) denied a motion for mistrial based on the use of illegally obtained evidence; (3) failed to instruct the jury on the use of illegally obtained evidence; (4) denied a motion for mistrial despite intentional destruction of the saliva; (5) failed to charge the jury on the lesser included offense of assault; and (6) failed to grant a mistrial “after it became apparent that the presiding juror for the punishment phase was different from the guilt/innocence phase.”

We note that the second, third, and fourth points of error—i.e., the failure to grant a mistrial due to the alleged use of illegally obtained evidence, the failure to instruct the jury on the use of illegally obtained evidence, and the complaint regarding the refusal to grant a mistrial (as these issues were developed by Sanders' brief)—each hinge on the assumption that the failure to preserve the spittle somehow rendered evidence that Sanders spat on the officer tainted and inadmissable.

We affirm the judgment of the trial court because we find that Sanders failed to preserve error on the motion to suppress, the destruction of the spittle which had been spewed by Sanders did not render evidence of the act of spitting inadmissible, Sanders was not entitled to the lesser included offense instruction, and the change in presiding jurors was not harmful.

I. Factual Background

Guthrie was uniformed and on patrol when he observed Sanders “walking in ... the eastbound travel lane of West Main” Street, “staggering down the roadway.” A videotape recording of Sanders walking in the lane of traffic in an unbalanced fashion was played for the jury. Guthrie believed Sanders was “maybe ... having a health issue or possibly intoxicated. Something was definitely wrong.” Guthrie was concerned because “anybody coming down that hill [would] not see him and [could] run over him.” The recording depicts Sanders almost staggering in front of the patrol unit's path.

Guthrie turned on his patrol unit lights, exited the vehicle, and initiated contact with Sanders.¹ Immediately, Guthrie noted that Sanders “had a very strong odor of an alcoholic beverage on or about his person” and that he had “slurred speech” and “red bloodshot eyes.” Sanders reached in his pocket and gave Guthrie an unopened can of beer. Guthrie determined he was “clearly intoxicated and presented a danger to himself or others.” He handcuffed Sanders. A “search incident to arrest” was completed, revealing another unopened can of beer and “a little metal pipe” used to “smoke crack cocaine or rock cocaine.” Sanders was placed in the back of the patrol car due to his public intoxication and possession of drug paraphernalia.

Guthrie described Sanders as “[v]ery belligerent ... swearing a whole lot.” The video recording of the arrest depicting Sanders' intoxicated and aggressive demeanor was played for the jury. During transport to the jail, Guthrie testified that the following occurred:

[Sanders] actually leaned past, leaned sideways in the seat of the car, and he's actually got his mouth up close to the cage, the part of it where there's no glass partition. He's leaning out. Of course, he's just tirading, and I hear him clear his throat. And the next thing I hear, the sound, I know, is somebody spitting. I feel it hit me in the back of my head.

Guthrie “reached up to feel it” and realized that Sanders, the only person in the back seat of the patrol car, had projected “a good mouth spit” onto him. On the recording, Guthrie is heard instructing Sanders, “[D]on't be spitting on me again.” He became concerned that Sanders could have a communicable disease and informed him that spitting could constitute harassment of a public servant. After Sanders was dropped “off in book-in,” Guthrie washed the saliva from his head. He did not wait for the saliva to be collected because “[w]e knew exactly who it was that had ... committed the offense.” The jury did as well. They convicted Sanders for harassment of a public servant.

II. Sanders' Motion to Suppress Was Not Preserved

In his first point of error, Sanders argues that the trial court erred in overruling his motion to suppress the evidence, which complained generally that the search and seizure was illegal. On the day of jury selection, a handwritten motion to suppress “any and all evidence in this case” was filed with the trial court. The court did not rule on the motion before trial, but decided to “carry it to trial.” There was no hearing on the motion to suppress when trial began the following day, and the court gave no further special instructions to Sanders' counsel regarding whether and/or when the motion would be ruled upon.

Guthrie testified to the discovery of the beer cans and crack pipe and told the jury that Sanders had spit on him, all without objection. Thereafter, three objections were lodged during the introduction of the videotape recording of the arrest, but none challenged the video on grounds that it was the result of an illegal seizure or search. After presentation of this evidence, Sanders' counsel asked the court to hear the motion to suppress and argued that Guthrie “had no reasonable suspicion or probable cause to arrest the defendant or to seize him and throw him over the police car and handcuff him and search him as he did.” The trial court denied the motion.

A motion to suppress evidence is “nothing more than a specialized objection to the admissibility of that evidence.” Black v. State, 362 S.W.3d 626, 633 (Tex.Crim.App.2012) (citing Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App.1981)). Filing a motion to suppress alone does not preserve any error in the admission of the evidence sought to be suppressed. Coleman v. State, 113 S.W.3d 496, 499–500 (Tex.App.-Houston [1st Dist.] 2003), aff'd on other grounds,145 S.W.3d 649 (Tex.Crim.App.2004). If a motion to suppress has yet to be ruled on when the evidence is offered at trial, a defendant must object to the evidence at the time it is offered in order to preserve error. Ross v. State, 678 S.W.2d 491, 493 (Tex.Crim.App.1984); Ortiz v. State, 930 S.W.2d 849, 855 (Tex.App.-Tyler 1996, no pet.).²

Noncompliance with this rule is excused when, and only when, the trial court makes specific pretrial comments that “essentially [direct the defendant] to wait until all the evidence [is] presented” before seeking a ruling from the court on the motion to suppress and has told the defendant that it would “make no ruling until all the testimony had been presented.” Garza v. State, 126 S.W.3d 79, 84–85 (Tex.Crim.App.2004). No such instruction was given to Sanders in this case. Thus, Sanders was required to object and assert grounds for suppressing the evidence.

Although he did so after the evidence was presented, objections to evidence must be timely. “To be timely, an objection must be raised at the earliest opportunity or as soon as the ground of objection becomes apparent.” Thomas v. State, 884 S.W.2d 215, 216 (Tex.App.-El Paso 1994, pet. ref'd). A ruling made on a motion to suppress after an officer has testified about the facts sought to be suppressed in front of a jury does not preserve error since the ruling is untimely obtained. Id.;Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App. [Panel Op.] 1980); Ratliff v. State, 320 S.W.3d 857, 861 (Tex.App.-Fort Worth 2010, pet. ref'd); Stults v. State, 23 S.W.3d 198, 205–06 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); Laurant v. State, 926 S.W.2d 782, 783 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd); see Nelson v. State, 626 S.W.2d 535, 536 (Tex.Crim.App. [Panel Op.] 1981) (concluding defendant did not timely obtain ruling on motion to suppress until after evidence admitted and failed to preserve error for review). Because the trial court had not instructed Sanders that he could wait to object, or that it would hear the motion to suppress after admission of evidence, Sanders' arguments and ruling on his motion to suppress were untimely. Accordingly, he did not preserve his first point of error for our review. It is overruled.

III. Motion for Mistrial and Jury Instruction Based on Article 38.23 Were Properly Denied

After Guthrie had testified that he rid himself of the saliva because “it posed a potential risk to my personal safety,” Sanders' counsel raised the following issue with the trial court:

Your Honor, the witness has testified that he destroyed evidence in this case without any permission from a court or anyone with authority to tamper, alter or destroy evidence in a criminal proceeding. To that extent, Your Honor, the evidence has been destroyed, which is a third degree felony in and of itself. I would ask the Court order a mistrial.

Counsel pointed to Section 37.09 of the Texas Penal Code and argued that a violation of the Confrontation Clause had occurred. Later in the argument, counsel stated:

We would also submit, Your Honor, that under 38.23 that this so-called evidence that no longer exists anymore, since it was destroyed illegally, it can't be used. So we're saying that since it's not even physically in existence anymore...