Elias Caballero, Jr. v. The State of Texas--Appeal from County Criminal Court No. 2 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ELIAS CABALLERO, JR.,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00141-CR

Appeal from the

County Criminal Court at Law No. 2

of El Paso County, Texas

(TC# 20010C17005)

MEMORANDUM OPINION

This is an appeal from a jury conviction for the offense of driving while intoxicated. The court assessed punishment at eighteen months community supervision and a probated fine of $750. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On December 4, 2001, Appellant filed a motion to suppress the intoxilyzer results that were obtained as a result of Appellant s detention and arrest. Both Appellant and the State filed briefs in support of their positions and the court entered a written order denying Appellant s motion to suppress the intoxilyzer results.

Notwithstanding the entry of that order, on November 15, 2002, the court conducted a suppression hearing and the court entered another order denying Appellant s motion to suppress the intoxilyzer results. On December 19, 2002, the court entered its written findings of fact and conclusions of law.

At the hearing of November 15, 2002, the State stipulated that Appellant was arrested without a warrant and that Appellant had standing to contest the validity of the stop and arrest. The State offered into evidence police reports detailing the circumstances of Appellant s stop and arrest for the offense of driving while intoxicated. // Appellant objected to the introduction of the police reports on the ground that the reports were hearsay. The court referenced the Granados case and overruled the objection on the ground that the rules of evidence did not apply in suppression hearings. // As well as Appellant s hearsay objection, he objected to the admittance of the police reports on the grounds that: (1) it violated his Sixth-Amendment right of confrontation; (2) it removed the trial court s ability to judge the credibility of witnesses who prepared the police reports; (3) the records had not been properly authenticated under Rule of Evidence 902; (4) the Granados ruling improperly shifted the burden of showing the reasonableness of the stop to the accused; and (5) the Granados ruling applies only to live testimony. The court overruled all of Appellant s objections and denied the motion to suppress the intoxilizer results.

II. DISCUSSION

In Appellant s sole issue, he asserts that the court abused its discretion by denying his motion to suppress the evidence because the State relied on unsworn police narratives in violation of Texas Code of Criminal Procedure article 28.01, section 1(6) and Texas Rule of Evidence 902(10). //

Regarding the standard of review, when reviewing a trial court s ruling on a motion to suppress based upon an alleged lack of probable cause or reasonable suspicion, the reviewing court affords almost total deference to the trial court s express or implied determination of historical facts. It reviews de novo the court s application of the law pertaining to search and seizure to those facts. Krug v. State, 86 S.W.3d 764, 765 (Tex. App.--El Paso 2002, pet. ref d).

Initially, we must address the State s contention that Appellant has failed to preserve the contention regarding article 28.01, section 1(6). In the Granados case, the Court of Criminal Appeals held that former Texas Rule of Criminal Evidence 1101(d)(4) which had expressly provided that the rules of evidence applied to motions to suppress illegally obtained evidence, had been abolished. Granados, 85 S.W.3d at 227. The court reasoned that as that rule no longer existed, under the provisions of Rules of Evidence 101(d)(1)(A) and 104(a), save for the rules governing privileges, the rules of evidence no longer applied to suppression hearings. // Granados, 85 S.W.3d at 227. On appeal, Appellant contends that the State must provide affidavits that are in compliance with article 28.01, section 1(6) and it failed to do so as the police statements were unsworn. This contention was not raised below; accordingly, Appellant has waived this contention on appeal. Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000).

Appellant maintains that the court erred in admitting the police reports because the State failed to comply with the authentication, notarization and notice requirements of Tex. R. Evid. 902(10). However, this is clearly a rule of evidence and in making its determination regarding preliminary questions of admissibility of evidence, as in a motion to suppress evidence, the trial court is not bound by any rules of evidence except those with regard to privileges. Granados, 85 S.W.3d at 227; Turner v. State, 132 S.W.3d 504, 508 (Tex. App.--Houston [1st Dist.] 2004, pet. ref d); Tex. R. Evid. 104(a).

Appellant also urges that the Court of Criminal Appeals in Sells v. State, 121 S.W.3d 748, 764 (Tex. Crim. App. 2003) carved out an exception to the Granados holding and that this Court should do the same by holding that article 28.01, section 1(6) applies to motions to suppress hearings. Specifically, Appellant asserts that under article 28.01, section 1(6), the court could not have relied solely upon the unsworn police reports. In Sells, the State did not provide a copy of Sell s video recording containing his oral statements to the police twenty days prior to the pretrial suppression hearing in contravention of Texas Code of Criminal Procedure article 38.22, section 3(a)(5). The Court held that while the rules of evidence, in general, do not apply to suppression hearings, the twenty-day notice provision in article 38.22, section 3(a)(5) of the Code of Criminal Procedure, which is not a rule of evidence, does apply because the provision was enacted when the rules of evidence did apply to such hearings. Sells, 121 S.W.3d at 760-64; Tex. Code Crim. Proc. Ann. art. 38.22, 3(a)(5) (Vernon Supp. 2004-05).

Assuming that this contention has been preserved on appeal, article 28.01, section 1(6) clearly gives the trial court the discretion to determine the format of a pretrial suppression hearing regarding the nature of the evidence to be heard. See State v. Miller, 116 S.W.3d 912, 915 (Tex. App.--Austin 2003, no pet.). Appellant does not provide authority that the affidavits referenced in the statute must be sworn, and the Sells case does not address the question of whether a court must only determine the merits of a motion to suppress based upon the motion itself, upon opposing affidavits, or upon oral testimony under article 28.01, section 1(6). Given these factors, we are disinclined to create another exception to the holding in Granados. Issue No. One is overruled.

Having overruled Appellant s sole issue on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

March 10, 2005

Before Panel No. 2

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

(Do Not Publish)