Lavonda Denise Grant v. The State of Texas--Appeal from 194th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Lavonda Denise Grant

Appellant

Vs. No. 11-01-00339-CR B Appeal from Dallas County

State of Texas

Appellee

The jury found Lavonda Denise Grant guilty of possession with intent to deliver cocaine, weighing 4 grams or more but less than 200 grams. The jury assessed appellant=s punishment at confinement for 7 years. Appellant appeals. We affirm.

In a single point of error, appellant contends that the trial court erred in admitting evidence, over her objections, of cocaine, marihuana, firearms, cash, and a laboratory analysis report which were found in appellant=s home. Appellant argues that the evidence was obtained as a result of an unlawful warrantless search.

We note that the record fails to include the specific motion or objections urged by appellant at trial. However, the record shows that appellant=s objections were being considered by the trial court. Near the beginning of the trial, the following exchange between appellant=s counsel and the trial court regarding certain evidence occurred:

[DEFENSE COUNSEL]: May we approach the bench?

THE COURT: I think I know where you=re going with this. Just make it subject to that, it will save some time.

[DEFENSE COUNSEL]: We=ll make our objection subject to what we discussed prior this morning.

THE COURT: Subject to the motion that the Court=s carrying with the case, it=s admitted.

Similar general, as opposed to specific, objections and rulings by the trial court were made throughout the trial when the challenged evidence was offered and admitted. The record fails to show the motion, if any, that was filed or the specific objections that were made. Appellant=s complaint was waived. See TEX.R.APP.P. 33.1(a)(1)(A); Broxton v. State, 909 S.W.2d 912 (Tex.Cr.App.1995).

However, in the interest of justice and because it appears apparent that the trial court was aware that appellant was contending that the search of her apartment was unlawful, we will review appellant=s point of error. The issue in this case is whether appellant gave the investigating officers oral consent to search her apartment. Consent searches are an established exception to the warrant and probable cause requirements of the Fourth Amendment to the U.S. Constitution. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). If the State secured the voluntary consent to a warrantless search, the search neither violates the United States nor the Texas Constitutions. Brimage v. State, 918 S.W.2d 466 (Tex.Cr.App.1996). The State had the burden to prove the voluntariness of the consent to search by clear and convincing evidence. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Cr.App.1997).

Dallas Police Officer Maria Kaminske testified that she and her partner went to appellant=s apartment following a complaint that the odor of marihuana was coming form appellant=s apartment. The apartment had two doors that opened onto a courtyard. Both doors were open. Officer Kaminske went to one door, and her partner went to the other door. When she looked into the apartment, Officer Kaminske saw appellant standing in the kitchen. Appellant saw Officer Kaminske and walked to the door. Officer Kaminske told appellant that they had received a complaint about the smell of marihuana. Officer Kaminske stated that appellant told her that appellant had just finished smoking marihuana. Officer Kaminske, while standing outside the door, looked into the apartment and observed several Amarihuana roaches@ (A[t]he leftover of a marihuana cigarette@) on a table. Officer Kaminske asked appellant if there was anymore marihuana; and appellant answered: AGo ahead and search.@ The challenged items of evidence were discovered by the officers following appellant=s statement. Officer Kaminske stated that she did not have any consent-to-search forms; therefore, there was no written consent to search by appellant.

Appellant testified that Officer Kaminske asked appellant if she could search the apartment and that appellant asked the officer if the officer had a warrant. At that point, according to appellant, Officer Kaminske=s male partner walked up and said that he could get one. Appellant testified that she never gave the officers permission to search her apartment.

Lashonda Grant, appellant=s cousin, testified that she was present when Officer Kaminske and her partner came to appellant=s apartment. Lashonda stated that the Amale@ officer asked appellant if Ahe@ could search the apartment and that appellant told Ahim@: ANo. Do you have a search warrant?@ The male officer replied: ANo, but I can get one.@

Officer Kaminske=s partner testified on rebuttal, following the testimony of appellant and her cousin, that he at no time had any conversation with appellant or anyone in the apartment about searching or search warrants.

When reviewing a trial court=s ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving almost total deference to the trial court=s determination of historical facts and reviewing de novo the trial court=s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Cr.App.2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Cr.App.1997). Also, we review the evidence in the light most favorable to the trial court=s ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex.Cr.App.2000).

The issue of consent was disputed, and the trial court determined the credibility of the witnesses. The trial court believed Officer Kaminske=s testimony and disbelieved the contrary evidence.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

May 22, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, J., and

McCall, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.