Turner, John aka John Edward Turner aka Edward Salido v. The State of Texas--Appeal from 205th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOHN TURNER, a/k/a JOHN EDWARD )

TURNER, a/k/a EDWARD SALIDO, ) No. 08-01-00360-CR

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Appellant, ) Appeal from the

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v. ) 205th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20000D05266)

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O P I N I O N

Appellant John Turner appeals his conviction for unlawful possession of marijuana and tampering with physical evidence. Appellant plead guilty to both charges and was sentenced by the court. He received 2 years= confinement in the state jail, probated for 5 years and a fine of $800 for possession of a marijuana. He was also sentenced to 5 years= confinement in prison, probated for 5 years and a fine of $800 for tampering with physical evidence. He now raises two issues for review. First, he argues Article 37.09(d)(1) of the Texas Penal Code is unconstitutional on its face and as applied in this case because it violates the Texas prohibition against ex post facto and retroactive laws. Second, he contends the trial court erred in denying a motion to suppress evidence obtained in violation of the Federal and State Constitutions and the Texas Penal Code. We affirm.

Police were dispatched to an apartment in El Paso County after receiving a report of family violence. When they arrived at the apartment complex, Appellant=s grandmother flagged down the officers and encouraged them to enter Appellant=s apartment. She directed them to the apartment and told them her grandson had locked her and her husband out of the apartment, was dealing drugs, and was inside Agetting rid of all the evidence . . . .@ The front door to the apartment was open and the officers heard voices in argument coming from inside. The officers entered the apartment and saw Appellant in the bathroom flushing marijuana down the toilet. Appellant was handcuffed, the apartment was searched, and the police recovered approximately 12.6 ounces of marijuana. Appellant was arrested and later indicted for unlawful possession of marijuana and tampering with physical evidence.

The defense filed a motion to suppress the marijuana, arguing it had been seized in violation of the Fourth Amendment, the Texas Constitution, and Articles 1.03 and 38.23 of the Texas Penal Code. A pretrial hearing was held and the trial court denied the motion. The court stated on record that the police had probable cause to enter the apartment and exigent circumstances allowed entry in the absence of a search warrant.

With his first issue, Appellant claims Texas Penal Code Article 37.09(d)(1) is unconstitutional on its face and as applied. In particular, Appellant contends the statute violates the State constitutional provision against ex post facto and retroactive laws.

Appellant has failed to preserve error as to any Aas applied@ challenge to the tampering with evidence statute under which he was convicted. A challenge to the constitutionality of a statute as applied falls under the class of rights that may be forfeited by failure to assert them. McGowan v State, 938 S.W.2d 732, 741-42 (Tex.App.--Houston [14th Dist.] 1997, opin. on reh=g), aff=d, 975 S.W.2d 621 (Tex.Crim.App. 1998). As such, as applied challenges are waived on appeal unless raised initially in the trial court. Rodriguez v. State, 71 S.W.3d 800, 802 (Tex.App.--Texarkana 2002, no pet.). Here, Appellant failed to object to the constitutionality of the statute in the court below. As such, Appellant has waived his right to challenge the statute as applied in his case on appeal. This portion of Appellant=s first issue is overruled.

Facial challenges to the constitutionality of a statute contest a court=s jurisdictional power to enforce the statute under any circumstances. Rodriguez, 71 S.W.3d at 802; McGowan, 938 S.W.2d at 741-42. Such a challenge to a statute upon which a defendant=s conviction is based may therefore be raised for the first time on appeal. Rodriguez, 71 S.W.3d at 802; McGowan, 938 S.W.2d at 741-42; see also Rose v. State, 752 S.W.2d 529, 552-53 (Tex.Crim.App. 1988)(opin. on reh=g); Rabbv. State, 730 S.W.2d 751, 752 (Tex.Crim.App. 1987). The underlying reasoning of this rule is rooted in the concept that a void statute cannot convey jurisdiction upon a court. Reyes v. State, 753 S.W.2d 382, 383 (Tex.Crim.App. 1988). For this reason, Appellant=s facial challenge to Article 37.09(d)(1) is properly before the Court.

Article 37.09 of the Texas Penal Code criminalizes the act of tampering with or fabricating physical evidence. Tex.Pen.Code Ann. ' 37.09 (Vernon Supp. 2002). Appellant challenges the portion of the statute which provides:

(d) A person commits an offense if the person:

(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense . . . .

Tex.Pen.Code Ann. ' 37.09(d)(1). Appellant argues this provision is unconstitutional because it Arenders an act criminal only conditionally if certain facts not existing at the time of the act come into being in the future.@ Appellant contends this constitutes an enactment which is both retroactive and ex post facto. However, he cites no authority for such a conclusion. Moreover, the terms Aretroactive@ and Aex post facto@ have been clearly defined otherwise by Texas and Federal law. Appellant=s suggested definitions are unsupported by and contrary to current law.

The Texas Constitution prohibits both ex post facto and retroactive laws. Tex.Const. art. I, ' 16.[1] The retroactive-laws provision forbids the application of statutes or laws that disturb vested, substantive rights. Ibarra v. State, 11 S.W.3d 189, 192 (Tex.Crim.App. 1999). ALaws altering procedure do not generally fall within the prohibition.@ Id. Ex post facto has been defined as a law that: (1) punishes as a crime an act previously committed which was innocent when done; (2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; or (3) deprives a person charged with a crime of any defense available at the time the act was committed. Ex parte Davis, 947 S.W.2d 216, 219-20 (Tex.Crim.App. 1997).

In this case, Appellant argues Article I, ' 16 of the Texas Constitution prohibits criminalizing a physical act Aconditioned upon some action by the executive branch of the government which may or may not occur in the future.@ Appellant does not provide and we have not found authority in State law to support this argument. Though he urges us to adopt this definition and apply it to his case, we decline to do so.

The Legislature has broad authority to define crimes and prescribe penalties. Tex.Const. art. III, ' 1; Wesbrookv. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1407, 149 L. Ed. 2d 349 (2001); Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App. 1990). When reviewing a constitutional challenge to a legislative enactment, the appellate court should presume the statute to be valid. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978); Webb v. State, 991 S.W.2d 408, 414 (Tex.App.--Houston [14th Dist.] 1999, pet. ref=d). This is in keeping with the general presumption that the Legislature=s actions are reasonable and not arbitrary. Granviel, 561 S.W.2d at 511; Webb, 991 S.W.2d at 414. The appellant bears the burden to establish a statute as unconstitutional. Granviel, 561 S.W.2d at 511; Webb, 991 S.W.2d at 414. We will uphold a statute if a reasonable construction of it will render it constitutional and carry out the legislative intent. Granviel, 561 S.W.2d at 511; Webb, 991 S.W.2d at 414.

Article 37.09(d)(1) does not disturb a defendant=s substantive vested rights. Ibarra, 11 S.W.3d at 192. It does not seek to punish as a crime an act previously committed which was innocent when done. Davis, 947 S.W.2d at 219-20. It does not increase the punishment for a particular crime or deprive a criminal defendant of any defense. Id. In light of the foregoing, we do not find Article 37.09(d)(1) of the Texas Penal Code to be violative of State constitutional prohibitions against retroactive or ex post facto laws. Instead, we find this provision to be constitutional on its face. Appellant=s first issue is overruled in its entirety.[2]

With his second issue, Appellant argues the trial court erred in denying his motion to suppress the physical evidence of marijuana seized in his apartment. Appellant contends the evidence was obtained in violation of State and Federal Constitutional and statutory provisions. In particular, Appellant claims the police officers lacked probable cause to enter his apartment.

When a defendant=s pretrial motion to suppress evidence is overruled, he need not subsequently object at trial to the admission of the same evidence in order to preserve error. Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988); Gearing v. State, 685 S.W.2d 326, 329 (Tex.Crim.App. 1985); Traylor v. State, 855 S.W.2d 25, 26 (Tex.App.--El Paso 1993, no pet.). However, should the defendant affirmatively state during trial that he has no objection to the admission of the complained-of evidence, he waives any error in the admission of the evidence, despite the adverse pretrial ruling. Dean, 749 S.W.2d at 83; Gearing, 685 S.W.2d at 329; Traylor, 855 S.W.2d at 26.

In this case, Appellant filed a pretrial motion to suppress the drug evidence seized by the El Paso Police Department. The trial court held a hearing on the motion and it was ultimately denied. However, at the time Appellant plead guilty, the State offered into evidence the lab report indicating the substance seized at the apartment was marijuana in the amount charged in the indictment. The court specifically asked if the defense objected to the exhibit and Appellant=s counsel responded, ANo, Your Honor.@ While clearly a ATRAP,@ such an affirmative response waives the objection. Sands v. State, 64 S.W.3d 488, 491 (Tex.App.--Texarkana 2001, no pet.); Traylor, 855 S.W.2d at 26. As such, no error is preserved for review by this Court. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

August 29, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Article I, ' 16 provides: ANo bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.@ Tex.Const. art. I, ' 16.

[2] We also note Appellant=s interpretation of the statute in question is faulty. Appellant contends that an individual can only be charged under the statute if the evidence destroyed later becomes the subject of an investigation or proceeding. This reading of the statute is in error. Subsection (d)(1) of the statute prohibits the intentional destruction of evidence regardless of whether a subsequent investigation occurs or not. Tex.Pen.Code Ann. ' 37.09(d)(1). The emphasis is on the actor=s intent to destroy the evidence of a crime, not whether an investigation occurs. See Lewis v. State, 56 S.W.3d 617, 625 (Tex.App.--Texarkana 2001, no pet.); Hollingsworth v. State, 15 S.W.3d 586, 594-95 (Tex.App.--Austin 2000, no pet.).