NORMAN GENE BOLLIG, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed October 4, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01038-CR
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NORMAN GENE BOLLIG, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F06-88126-K
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MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Lang
        Norman Gene Bollig appeals the trial court's judgment convicting him of aggravated sexual assault of a child younger than fourteen years of age. The jury found Bollig guilty and assessed his punishment at twenty years of imprisonment and a $10,000 fine. Bollig raises two issues on appeal arguing the trial court erred when it: (1) overruled his objection to the expert witness; and (2) denied his motion to suppress the evidence of child pornography during the hearing on punishment.
        We conclude that Bollig failed to preserve for appellate review his issue relating to the admissibility of the expert's testimony. Also, we conclude the trial court did not err when it denied Bollig's motion to suppress evidence during the hearing on punishment. The trial court's judgment is affirmed. We issue this memorandum opinion because the issues in this appeal are settled. See Tex. R. App. P. 47.4. Also, because the facts are well-known to the parties, we do not recite them in this opinion.
I. ADMISSIBILITY OF EXPERT TESTIMONY
 
        In his first issue, Bollig argues that the trial court erred when it overruled his objection to the expert witness because there was no attempt to tie the testimony of Andrea Shultz, the clinical supervisor at the Dallas Children's Advocacy Center, to the facts of the case. He claims Shultz had not examined A.P., watched the video recording of A.P.'s interview, or heard any of the testimony. The State responds that Shultz's testimony was tied to the testimony of A.P. and her mother.
        Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an appellate complaint. To preserve a point for appellate review, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the context, obtain a ruling on the complaint, and comply with the rules of evidence or procedure. Tex. R. App. P. 33.1. To preserve an error for appeal, a party's argument on appeal must comport with his objection in the trial court. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003).
        After a hearing on the admissibility of Shultz's testimony, Bollig objected arguing, “I don't think it's relevant. I don't think it adds to anything to what this jury has heard in this case or will hear in [sic] until both sides rest and close.” The trial court sustained the objection. Later, the State presented the trial court with case law in support of its position and the trial court reconsidered the matter. During that hearing, Bollig clarified his objection stating:
 
And what you [the trial court] had stated earlier about the fact that [Shultz] didn't have any personal knowledge about the facts of the case, I am being even broader than that. This is not about whether or not she knows the personal facts of the case and had interviewed the victim and so on and so forth. This has to do with whether or not what [Shultz] has to say is specialized knowledge that is going to be helpful to the jury, and I don't think that prong of [Texas Rule of Evidence] 702 has been met.
 
(Emphasis added). The trial court overruled the objection and allowed Shultz to testify before the jury.
        We conclude Bollig's argument on appeal does not comport with his objection at trial. On appeal, Bollig argues that the trial court erred when it overruled his objection to Shultz's testimony because there was no attempt to tie her testimony to the facts of the case. However, at trial, Bollig objected to Shultz's testimony on the basis that she did not have specialized knowledge that would have assisted the jury in understanding the evidence or in determining a fact in issue. In fact, Bollig specifically stated that he was not objecting on the basis that Shultz's testimony was not sufficiently tied to the facts of the case. Accordingly, we conclude Bollig has failed to preserve his first issue for appellate review.
 
II. MOTION TO SUPPRESS
 
        In his second issue, Bollig argues the trial court erred when it denied his motion to suppress the evidence of child pornography during the hearing on punishment. He argues that the search of his residence and the seizure of a compact disk (CD) containing images of child pornography was unconstitutional based on the United States Supreme Court's decision in Randolph, because the search was conducted after the police obtained his wife's consent, he was present when she consented, and he did not consent. See Georgia v. Randolph, 547 U.S. 103 (2006). The State responds that the evidence was controverted that Bollig was present when the police asked for his wife's consent to search and there is no evidence that Bollig expressly refused consent to search.
A. Standard of Review
 
        A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Hubert, 312 S.W.3d at 559; St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When a trial court rules on a motion to suppress evidence, its application of the law of search and seizure is reviewed de novo. See Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000); Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). However, a trial court is the sole trier of fact, and the judge of witness credibility and the weight to be given to their testimony. See Valtierra, 310 S.W.3d at 447; St. George, 237 S.W.3d at 725.
        When the trial court does not make express findings of fact, an appellate court must view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling, as long as those findings are supported by the record. See Valtierra, 310 S.W.3d at 447. An appellate court reviews the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. See Valtierra, 310 S.W.3d at 447-48; St. George, 237 S.W.3d at 725.
B. Applicable Law
 
        Both the Fourth Amendment to the United States Constitution and article I, section 9, of the Texas Constitution protect 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; Tex. Const. art. 1, § 9; see also Garza v. State, 137 S.W.3d 878, 885 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (article I, section 9 of Texas Constitution does not offer greater protection to individuals against unreasonable searches and seizures than Fourth Amendment). This protects two types of expectations, one involving searches, and the other involving seizures. United States v. Jacobsen, 466 U.S. 109, 113 (1984). A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Id. A “seizure” of property occurs when there is some meaningful interference with an individual's possessory interests in that property. Id. Under both the federal and state constitutions, this protection has been construed as proscribing only governmental action. See id; Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). A search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official does not raise Fourth Amendment or article I, section 9, concerns. See Jacobsen, 466 U.S. at 113-14; State v. Comeaux, 818 S.W.2d 46, 49 (Tex. Crim. App. 1991), overruled on other grounds, State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997). The fact that a private individual independently made a search that might have been impermissible for a government agent cannot render otherwise reasonable official conduct unreasonable. See Jacobsen, 466 U.S. at 114.
C. Application of the Law to the Facts
 
        The record is not clear regarding the events relating to the seizure of the CD containing images of child pornography.   See Footnote 1  Bollig's wife stated that she discovered a CD in her house, viewed it on her television's DVD player, and saw that it contained images of child pornography. Afterward, she went to the church office, saw her pastor, and told him what she had found. After finding the CD, Bollig's wife kept it in her son's bedroom. A week later, Bollig's wife confronted Bollig about the CD containing the images of child pornography, they argued, and she called the police. The police responded to her call, arrested Bollig, and at some point removed him from the house.
        During the hearing on Bollig's motion to suppress, Bollig's wife stated that “[A police officer] talked to me and asked me to give him that CD,” “[I] was asked, do you have the CD in your possession,” and “I was asked for [the CD], and I gave it to them.” Detective Garza stated that “[Bollig's wife] was saying that the pictures were on the CD and that she was very upset at her husband for having those, and she didn't understand-or she didn't know if her daughters were involved in any way,” and she was “adamant” that the police take the CD. Officer Marshall stated, “I wasn't there when [Bollig's wife] originally gave the disk, but she did give the disk to me when I arrived also. Another officer had viewed the disk, it's my understanding based on the Spanish consent to search. When I got there, she gave me the disk again.” During the hearing, the trial court stated “Well, that's not really a search that you're talking about. You're talking about just a seizure. She gives it to [the police].”
        Bollig argues only that the search of his residence and the seizure of the CD containing images of child pornography was unconstitutional based on Randolph because the search was conducted after the police obtained his wife's consent, he was present when she consented, and he did not consent. See Randolph, 547 U.S. 103. However, the trial court made no express findings of fact. Accordingly, we must review the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that comport with its ruling, as long as those findings are supported by the record. Here the record contains testimony showing Bollig's wife gave the police the CD and there was no police search that led to its seizure. We conclude the trial court did not err when it denied Bollig's motion to suppress.
        Issue two is decided against Bollig.
 
III. CONCLUSION
 
        Bollig did not preserve for appellate review his claim relating to the admissibility of the expert's testimony. Also, the trial court did not err when it denied Bollig's motion to suppress evidence during the hearing on punishment.
        The trial court's judgment is affirmed.
        
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
081038F.U05
 
 
Footnote 1 Bollig's wife provided inconsistent testimony and the trial court cautioned her twice by reminding her that she was under oath. Also, the police officers who testified were not present for the entire time that the other police officers were at the Bolligs' residence.