Anthony Thomas Gray v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Opinion filed October 17, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01066-CR

____________

ANTHONY THOMAS GRAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1004134

O P I N I O N

Appellant, Anthony Thomas Gray, appeals after pleading no contest to possession with intent to deliver between four and two-hundred grams of cocaine. The trial court sentenced him to five years= incarceration. In his sole point of error, appellant challenges the trial court=s denial of his motion to suppress the cocaine. We affirm.

Background

On October 16, 2004, a narcotics team with the Harris County Sheriff=s Office received an anonymous tip that cocaine was being sold from an apartment complex. When they arrived at the complex, deputies Jimmy Cook and Paul Croas observed a man coming down the stairs from the specified apartment. They stopped the man and found $1,800 in cash in his pocket. The money was organized in increments usually associated with narcotics sales. The deputies noticed that the man had left the apartment door slightly ajar. When the deputies peered through the partially open door, they saw a man lying on a couch. On the floor nearby was a CD case with lines of a white powdery substance on it. The deputies believed the substance to be cocaine. The deputies knocked on the door, but the man on the couch did not move. Cook and Croas then entered the apartment. While Cook handcuffed the man on the couch, Croas performed a protective sweep and found appellant hiding in a closet. The narcotics team also seized cocaine and other contraband.

Appellant was arrested and charged with possession with intent to deliver between four and two-hundred grams of cocaine. Appellant filed a motion to suppress all evidence discovered during the search, which the trial court denied. Appellant subsequently pled no contest to the charge of possession with intent to deliver between four and two-hundred grams of cocaine, and the trial court sentenced him to five years= incarceration.

Analysis

In his sole point of error, appellant argues that the trial court abused its discretion by overruling his motion to suppress because the deputies failed to announce their presence and wait a sufficient time before entering the appellant=s apartment.[1] Appellant contends that the deputies= actions violated his constitutional rights because no exigent circumstances existed to justify such an entry. Appellant has failed to preserve this issue for appellate review.[2]

For a complaint to be presented on appeal, a timely request, objection, or motion must have been made to the trial court which "states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. P. 33.1(a)(1)(A). An objection or motion stating one legal basis may not be used to support a different legal theory on appeal. Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996); see also Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (A[T]he legal basis of a complaint raised on appeal cannot vary from that raised at trial@). We should look at the Aclear thrust@ of the appellant=s argument at trial to determine if his argument on appeal departs from his trial arguments. Eisenhauer v. State, 754 S.W.2d 159, 161 (Tex. Crim. App. 1988), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991).

In his written motion to suppress, appellant generally argued that the search violated his constitutional rights under the United States and Texas Constitutions and 38.23 of the Code of Criminal Procedure. Such a generic objection is not specific enough to make the court aware of his complaint on appeal that the deputies failed to properly announce their presence before entering the appellant=s apartment. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (holding that the appellant=s arguments that his constitutional and statutory rights were violated were Aglobal in nature@ and not sufficiently specific to preserve those arguments for appeal).

The clear thrust of appellant=s argument at the hearing on his motion to suppress centered on whether the deputies= actually had probable cause to enter the apartment. Specifically, appellant=s counsel repeatedly challenged the State=s assertion that the cocaine was in plain view. Appellant=s counsel argued Athe question is whether or not before they moved the door they saw what they have told you [the cocaine].@ Appellant=s counsel closed the hearing with:

[W]hat they are trying to do is to tell you this is an exception to . . . the requirement for the search warrant, because they are asking you to find that they saw cocaine in plain view. And I submit to you that they did not. What you heard today does not substantiate a finding that this was seized--that anything was seized as a result of a plain view exception to the no search warrant requirement. Thank you.

It is apparent from the record that the clear thrust of appellant=s argument in the motion to suppress hearing aimed at attacking the plain view exception to the warrant requirement offered by the State as support for their showing of probable cause. See Eisenhauer, 754 S.W.2d at 161 (holding that the clear thrust of the argument at trial is the basis for deciding if the argument has been sufficiently raised for appeal). The trial court could not have been aware of the knock-and-announce complaint because of the appellant=s focus on probable cause. See Tex. R. App. P. 33.1; see also Heidelberg, 144 S.W.3d at 537; Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986) (holding that a defendant has not preserved error for review when the objection on appeal differs from the complaint made to the trial court). As a result, appellant waives his knock-and-announce complaint. We overrule appellant=s sole point of error.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Opinion filed October 17, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Amidei.[3]

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant=s complaint that the deputies failed to announce their presence and wait a sufficient time is a so called Aknock-and-announce@ complaint. See Richards v. Wisconsin, 520 U.S. 385 (1997); Price v. State, 93 S.W.3d 358, 362 (Tex. App.CHouston [14th Dist.] 2002, pet ref=d).

[2] The United States Supreme Court recently ruled that a knock and announce complaint under federal constitutional law cannot be the basis for suppression of evidence. Hudson v. Michigan, 126 S. Ct. 2159 (2006). Therefore, even if we were to reach the substance of appellant=s argument, it appears the remedy he seeks, suppression of evidence, is precluded by the Hudson holding.

[3] Senior Justice Maurice E. Amidei sitting by assignment.