Thomas v. State

• Court: Texas Court of Appeals
• Writing for the Court: MIKE WILLSON, JUSTICE
• Citation: Thomas v. State, 482 S.W.3d 235 (Tex. App. 2015)
• Decision Date: 30 November 2015
• Docket Number: No. 11–13–00332–CR,11–13–00332–CR
• Parties: Cleveland Jerod Thomas, Appellant v. The State of Texas, Appellee

482 S.W.3d 235

Cleveland Jerod Thomas, Appellant

v.The State of Texas, Appellee

No. 11–13–00332–CR

Court of Appeals of Texas, Eastland.

Opinion filed November 30, 2015

Jenny Henley, Law Office of Jenny Henley, Abilene, for Appellant.

Michael Fouts, District Attorney, Haskell, for Appellee.

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

OPINION

MIKE WILLSON, JUSTICE

The jury found Cleveland Jerod Thomas guilty of possession of more than one gram but less than four grams of cocaine and also found two enhancement allegations to be "true." See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(c) (West 2010). The jury assessed punishment at confinement for seventy-five years. The trial court sentenced Appellant accordingly. Appellant asserts three issues on appeal, but he does not challenge the sufficiency of the evidence. We affirm.

I. Evidence at Trial

Because Appellant does not assert a sufficiency challenge to the evidence, we recite only those facts necessary to address his issues on appeal. Jody Bryson Tullos, a sergeant with the Texas Department of Public Safety, received information that a suspect in a pending investigation was driving through Haskell. Shortly thereafter, Sergeant Tullos observed Appellant driving a vehicle that matched the description given. Sergeant Tullos drove parallel to Appellant for five to six blocks, during which time he observed what he believed were one or more traffic violations, which included extremely dark window tint on the vehicle's windows. Based on these violations, Sergeant Tullos stopped Appellant.

During the stop, Sergeant Tullos observed that Appellant kept the left side of his body hidden and did not look directly at Sergeant Tullos. Sergeant Tullos found this behavior to be "extremely suspicious." He went to his patrol car to check Appellant's identity and other information and learned that Appellant's driver's license had been suspended in Louisiana.

When Sergeant Tullos returned to Appellant's vehicle, he walked to the front of the vehicle to see Appellant's hidden left side. There, he observed a large protrusion from Appellant's left cheek. He asked Appellant what he had in his mouth, and Appellant replied that he had an abscess. Appellant opened his mouth slightly in an apparent effort to corroborate his explanation. When he did so, however, Sergeant Tullos saw a piece of clear plastic draped over the left side of Appellant's teeth onto his tongue. Believing that Appellant was hiding narcotics, Sergeant Tullos requested that Appellant pull his cheek back. Appellant complied, and a "yellow-ish material inside [a] clear, plastic bag" popped over his teeth. Appellant then swallowed the bag despite Sergeant Tullos's attempt to prevent Appellant from doing so.

Sergeant Tullos arrested Appellant for tampering with evidence and transported him to Haskell Memorial Hospital. At the hospital, Appellant refused treatment, and the doctor on call refused to perform any procedures without his consent. Consequently, Sergeant Tullos contacted the district attorney's office to procure a warrant to search the contents of Appellant's stomach. Sergeant Tullos remained at the hospital with Appellant to see if Appellant suffered any ill effects from ingesting the material and to ensure that Appellant did not die.

Several hours later, Appellant exhibited physical symptoms indicative of a drug overdose.¹ Appellant stated that he had swallowed illegal narcotics and asked doctors to treat him. With Appellant's consent, doctors administered a regimen of charcoal to purge his system and limit his absorption of the narcotic. Appellant then proceeded to vomit and defecate into containers. A nurse came to the room periodically and removed approximately five containers of the expelled fluids. Appellant did not object to the removal of the containers. The nurse then took those buckets to another room and sifted through their contents in an effort to ascertain the source of Appellant's overdose. Through this process, the nurse found a solid mass, which he gave to a police officer. The police also examined Appellant's black and viscous vomit in a search for the clear plastic bag that Appellant apparently had swallowed while being questioned by Sergeant Tullos. Subsequent analysis of the substance in the plastic bag revealed that it was cocaine.

II. Issues Presented

Appellant asserts in his first issue that the trial court improperly denied his motion to suppress evidence. Second, Appellant asserts that the trial court erred when it denied his request for an Article 38.23 jury charge instruction on the definition of exigent circumstances. See TEX.CODE CRIM. PROC. ANN. art. 38.23 (West 2005). Third, Appellant asserts that the trial court abused its discretion when it permitted the jury to consider prior felony convictions from Louisiana without proper verification that they were appropriate for enhancement purposes.

III. Discussion and Analysis

A. Issue One: Denial of Motion to Suppress

Appellant moved to suppress the cocaine because, he alleged, the search of his expelled bodily fluids was a violation of his Fourth Amendment rights. See U.S. CONST. amend. IV. The trial court denied this motion, but did not make specific findings of fact or conclusions of law. Appellant now appeals the trial court's decision under two alternate theories. First, Appellant claims that the ultimate seizure of the cocaine was invalid as it was fruit of an impermissible pretextual stop. Second, the search of Appellant's expelled bodily fluids, namely his vomit, was performed in violation of his Fourth Amendment rights. See id.

1. Pretextual Stop

Appellant argues in his first theory to support his motion to suppress that the cocaine discovered by Sergeant Tullos was the fruit of a Fourth Amendment violation because the traffic stop constituted an impermissible pretextual stop. Appellant moved to suppress the evidence, but the trial court denied the motion. A motion to suppress is a specialized objection to the admissibility of evidence and, thus, must be timely and sufficiently specific to inform the trial court of the complaint. Krause v. State, 243 S.W.3d 95, 102 (Tex.App.—Houston [1st Dist.] 2007, pet. ref'd). It is well settled that almost every right, constitutional or otherwise, may be waived by the failure to object. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990) ; Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App.1986).

In his pretrial motion to suppress, Appellant broadly sought to suppress all evidence obtained as a result of a warrantless search conducted without probable cause or reasonable suspicion of criminal activity. During the hearing, Appellant exclusively argued that the cocaine seized should be suppressed because the officer did not obtain a warrant to search Appellant's expelled bodily fluids. Appellant did not raise the issue of an impermissible pretextual stop before the trial judge. In failing to do so, he has waived that complaint for appeal. See Pyles v. State, 755 S.W.2d 98, 116 (Tex.Crim.App.1988) ; Cox v. State, 931 S.W.2d 349, 358 (Tex.App.—Fort Worth 1996), pet. dism'd, improvidently granted, 951 S.W.2d 5 (Tex.Crim.App.1997).

2. Search of the Expelled Bodily Fluids

Appellant, under a second theory in support of his motion to suppress, contends that the trial court abused its discretion when it failed to suppress the cocaine because Officer Tullos did not obtain a search warrant to search Appellant's expelled bodily fluids. A trial court's ruling on a motion to suppress lies within the sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) ). We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give great deference to the trial court's findings of historical facts if the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). Because the trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court's ruling. Carmouche, 10 S.W.3d at 327. We also give deference to the trial court's rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court's actions de novo. Id.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. Three elements reviewed under a Fourth Amendment analysis are (1) was the action a "search" that fell within the protection afforded by the Fourth Amendment because the person had a legitimate expectation of privacy; (2) does the person challenging the search have standing; and (3) was a valid warrant, based upon probable cause, secured by law enforcement for the search, and if not, was there an applicable exception to the warrant requirement. See Missouri v. McNeely, –––U.S. ––––, 133 S.Ct. 1552, 1558–60, 185 L.Ed.2d 696 (2013) ; Hudson v. Palmer, 468 U.S. 517, 525–26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) ; Villarreal, 935 S.W.2d at 138. In this case, although not explicitly outlined by Appellant, his complaints are mainly (1) that the medical treatment by the doctors was a bodily intrusion search and seizure that required a warrant and (2) that the subsequent examination of his expelled bodily fluids was an invalid search and seizure. Thus, our analysis will focus on the validity of any search and the existence of an exception to the warrant requirement.

For purposes of the Fourth Amendment, a "search" occurs when the government violates a subjective expectation of privacy that society deems objectively reasonable. See Kyllo v....