Tribble v. State, 01-89-00799-CR

• Citation: 792 S.W.2d 280
• Decision Date: 28 June 1990
• Docket Number: No. 01-89-00799-CR,01-89-00799-CR
• Parties: Karen Ann TRIBBLE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 280

792 S.W.2d 280

Karen Ann TRIBBLE, Appellant, v. The STATE of Texas, Appellee.

No. 01-89-00799-CR.

Court of Appeals of Texas Houston (1st Dist.).

June 28, 1990.

Rehearing Denied July 13, 1990.

Robert Turner, Houston, for appellant.

John B. Holmes, Jr., Harris Co. Dist. Atty., Carol Cameron and Kelly Siegler, Asst. Harris Co. Dist. Attys., for appellee.

Before SAM BASS, COHEN and MIRABAL, JJ.

OPINION

MIRABAL, Justice.

The trial court found appellant guilty of possession of a controlled substance, namely, cocaine. The court assessed punishment at two years probation.

In two points of error, appellant asserts the trial court erred in denying her motion to suppress evidence. We affirm.

On August 19, 1988, Tammy Bailey was working as a flight attendant for Continental Airlines on a flight from Detroit to Houston. During the flight, Ms. Bailey encountered appellant with her young child in the aisle as Ms. Bailey was pushing a beverage cart. Appellant apparently thought Ms. Bailey struck or pushed appellant's daughter, and a confrontation took place. When Ms. Bailey went into the galley to get more wine, appellant pushed her from the back, thrusting her forward. Ms. Bailey explained to appellant that it is unlawful to interfere with a crew member. Appellant responded by cursing and threatening Ms. Bailey. Ms. Bailey obtained statements from eight or nine passengers who witnessed the incident. Ms. Bailey went to the cockpit, reported the incident to Captain Pistoli, and remained in the cockpit during the remainder of the flight. Prior to landing at Houston Intercontinental Airport, Captain Pistoli called security and requested an investigation.

Officer Craig Ritter of the Houston Airport Police Department, along with Officer M.J. Bryant, responded to the dispatch call. Upon the flight's arrival at the airport, both Captain Pistoli and Ms. Bailey explained the incident to the officers. Ms. Bailey identified appellant to the officers as appellant stepped off the airplane. Officer Ritter then told appellant she was under arrest for interfering with a flight crew.

Officer Ritter and Officer Lynn Robideaux, also of the Houston Airport Police Department, escorted appellant to the First Aid Room, while Officer Bryant proceeded to investigate and speak with other witnesses. Officer Ritter read appellant the Miranda warnings, and asked Officer Robideaux to search appellant's purse. As Officer Robideaux started to remove a black plastic container from the purse, appellant stated, "Oh no, I am in trouble now." Officer Robideaux asked appellant what the item was, and appellant said it was a "derring" used to crush rock cocaine. Appellant said she had used it at a party the night before and had forgotten that it was in her purse. Officer Robideaux opened the container and observed a white film inside that she assumed was cocaine. Robideaux looked back in the purse and saw a small pink straw with white powdery residue inside.

Appellant's motion to suppress stated in part:

Defendant prays this Court will suppress any and all evidence seized or obtained as a result of acts by law enforcement officers, their agents, or other persons, which violated rights guaranteed the Defendant by the Federal and State Constitutions and laws. In support the Defendant would show:

....

The search was not pursuant to a valid inventory search, was the product of an illegal detention, was absent exigent circumstances, and was made without probable cause to believe the Defendant was engaged in criminal activity.

....

The seizure of the evidence was illegal in that it was made without the Defendant's effective consent. Rather, any "consent" was the fruit of an unlawful detention.

The State first argues that appellant failed to preserve error for review (1) by failing to identify for the trial court which specific evidence should be suppressed, and (2) by raising objections on appeal which do not comport with appellant's objections at trial.

In Eisenhauer v. State, 754 S.W.2d 159, 160-61 (Tex.Crim.App.), cert. denied, 488 U.S. 848, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988) the court stated:

Though it has long been the rule that a general or imprecise specific objection is insufficient to preserve error for appeal, where the grounds of the objection are obvious to the court or the opposing counsel, the error will not be waived ... We find this latter exception to be controlling in the case at bar. The clear thrust of appellant's challenge was directed toward the propriety of the warrantless arrest and subsequent search.

We hold that appellant's motion to suppress was specific enough, and consistent enough with the argument made on appeal, to preserve error.

The State next argues that appellant failed to preserve error because the same evidence was introduced during the guilt/innocence phase without appellant's objection. The State cites the following exchange:

[Prosecutor]: Your Honor, we would reoffer all the evidence that was adduced in the Motion to Suppress Evidence.

[Defense Counsel]: I have a copy that I have purchased for the Court. I would like to go ahead and just hand it to the Clerk so she might include that in the file at this time.

The Court: It will be included.

The State argues that, because appellant did not object to the State's offer of the testimony from the motion to suppress hearing, appellant waived error on appeal.

Introduction of testimony by the defendant at trial waives any complaint on appeal regarding its admissibility. Rogers v. State, 774 S.W.2d 247, 263 (Tex.Crim.App.), cert. denied, 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989); Rodriguez v. State, 775 S.W.2d 27, 31 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd) (where proceedings on a motion to suppress were adopted at trial in their entirety by consent of all parties, the defendant waived the argument on appeal that his oral confession contained in the testimony was not admissible). However, in the case at bar, appellant made clear to the trial court and opposing counsel that his stipulation regarding the evidence was made subject to his motion to suppress. Immediately preceding the portion of the record cited by the State, the following transpired:

[Prosecutor]: Your Honor, at this time the State would offer into evidence what has previously been marked as State's Exhibit Number 1. I'll tender it to Mr. Turner for his inspection.

The Court: [Defense counsel], do you waive the formal arraignment?

[Defense Counsel]: We would waive formal reading of the indictment. The Defendant would enter a plea of not guilty, and we have no objection to the stipulation of evidence, except that we would like to make the record clear that the stipulation is made, subject to the prior Motion to Suppress that has been previously heard by this Court, and that we object, of course, to the admissibility of both the testimony and the controlled substance, cocaine, itself, but we would stipulate and join in the stipulation of evidence: if the State's witnesses were, in fact, here today that they would testify to what we have agreed to in the stipulation, but the stipulation is made, subject to our Motion to Suppress Evidence.

....

The Court: That will be granted. So stipulated. Anything further, [Prosecutor]?

(Emphasis added.) Defense counsel's above statements preserved error for review.

In her first point of error, appellant contends the trial court erred in denying appellant's motion to suppress the search of appellant's purse because appellant's warrantless arrest was unlawful under the Texas Code of Criminal Procedure.

The standard of review governing a trial court's ruling on a motion to suppress is whether the court clearly abused its discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). The trial judge is the sole fact finder at a hearing on a motion to suppress and, as such, the judge may believe or disbelieve all or any part of any witness' testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App. [Panel Op.] 1980). Because the trial court is the sole trier of fact at a hearing on a motion to suppress, any finding supported by the record will not be disturbed. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App. [Panel Op.] 1980), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981).

The Texas Code of Criminal Procedure provides:

Where it is shown by satisfactory proof to a peace officer, upon the...