Michael D. Phillips a/k/a Andrick L. Adams v. The State of Texas--Appeal from 140th District Court of Lubbock County
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NO. 07-06-0093-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 31, 2007
______________________________
MICHAEL D. PHILLIPS AKA ANDRICK ADAMS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-407958; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Michael D. Phillips a/k/a Andrick Adams, appeals his conviction for
possession of a controlled substance, cocaine, of more than 4 grams but less than 200
grams, with intent to distribute. Appellant was sentenced to 35 years confinement in the
Institutional Division of the Texas Department of Criminal Justice. We affirm.
Factual and Procedural Background
Appellant was arrested when Lubbock Police responded to an anonymous call that
someone was “messing with construction equipment” in the 2100 block of 56th Street.
Officers responded and found that the street was closed to traffic with a six foot chain link
fence erected in the middle of the street around construction equipment and the
construction site. A car was parked next to the fence and appellant was observed walking
on the outside of the fence toward the vehicle. One officer parked his car in a manner to
block appellant’s car and got out and approached appellant while appellant was seated in
his car with the windows up. The officer knocked on the window in an effort to get the
appellant to talk to him. Appellant did not respond but continued to talk on his cell phone.
After knocking on the windows two or three more times, the officer gave clear orders for
the appellant to step from his vehicle. Appellant obeyed and was questioned about his
presence at the site. Appellant’s answers were vague as he could not name the friends
he was visiting nor give the address of the house. Appellant did indicate that the house
was just down the street. Appellant and the police went to the location indicated by
appellant but no one would answer the door.
Eventually, the officers requested
identification and appellant produced a Texas Tech University identification in the name
of “Andrick Adams.” Upon checking the name on the identification for warrants, it was
learned that there was an outstanding Department of Public Safety warrant. The police
arrested appellant and while conducting a search of appellant’s person, incident to arrest,
located a small plastic bag that contained what was later identified as cocaine.
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Appellant was subsequently indicted for the possession of a controlled substance
with intent to distribute within a drug free zone. Appellant had filed a motion to suppress
in the original case. That case was subsequently dismissed and appellant was re-indicted.
However, appellant’s motion to suppress does not appear in the clerk’s record in the
subsequent indictment. Appellant waived a jury trial and was found guilty of the lesser
included offense after a bench trial. During the bench trial, appellant objected to the
admission of the evidence claiming it was seized illegally under the fourth amendment and
fourteenth amendment to the United States Constitution, Article 1, Sections 9, 10, and 19
of the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure. The
trial court overruled the objections and admitted the evidence.
By one issue, appellant contends that the trial court erred in admitting the evidence
of the drugs seized from appellant. Appellant contends that the seizure was the result of
an illegal detention and, therefore, the evidence was subject to exclusion.
Analysis
Both parties correctly identify abuse of discretion as the appropriate standard of
review when reviewing a trial court’s admission of evidence. Davis v. State, 61 S.W.3d
94, 96 (Tex.App.–Amarillo 2001, no pet.). A trial court abuses its discretion when its
opinion falls outside the zone of reasonable disagreement. Id. at 96-97. We give almost
total deference to the trial court’s determination of historical facts and review the
application of the law to the facts de novo. Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App. 1997). Since the trial court made no findings of historical facts, we will
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review the evidence in a light most favorable to the trial court’s ruling and assume the trial
court made implicit findings of fact supported in the record. Carmouche v. State, 10
S.W.3d 323, 327-28 (Tex.Crim.App. 2000). Finally, if the trial court’s decision is correct
on any theory of law applicable to the case, the decision will be sustained. State v. Ross,
32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).
At the outset we observe that appellant contends that the trial court erred in
overruling his motion to suppress. However, appellant is in error for there was no motion
to suppress before the trial court. Even though counsel for appellant referenced the motion
to suppress filed in the original cause when making his objection, the motion was not
carried forward in the re-indicted case. Therefore, the purported motion to suppress was
not part of the record brought forward on appeal and thus, nothing has been preserved for
appeal via the motion to suppress. See TEX . R. APP. P. 33.1.
Next, the State contends that the objection made by appellant at the time the
evidence was first offered was generic and, therefore, did not preserve error. We need not
rule on that matter to properly decide this case and, therefore, elect to issue no opinion on
that question. However, we will assume, arguendo, that the issue was preserved.
Even with that assumption, the evidence was still properly considered because of
the discovery of the outstanding warrant for the arrest of Andrick Adams, the name and
identification provided by appellant to the police. As this court has previously noted, the
discovery of an outstanding warrant during an illegal detention of an individual breaks the
connection between the discovered evidence and any taint associated with the initial
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detention. Fletcher v. State, 90 S.W.3d 419, 420 (Tex.App.–Amarillo 2002, no pet.). The
subsequently discovered probable cause evidenced by the valid arrest warrant
demonstrated that the evidence discovered during the search incident to the arrest was not
discovered through exploitation of the initial illegal detention. Id. Here the appellant’s initial
detention may have been improper, however, appellant furnished identification that
identified him as Andrick Adams, who happened to have an outstanding warrant from the
Department of Public Safety. It was the search incident to this arrest that lead to the
discovery of the contraband. Thus, the trial court’s decision to admit the evidence was
proper and, therefore, could not have been an abuse of discretion. Davis, 61 S.W.3d at
96-97. Therefore, appellant’s contention is overruled.
Conclusion
Having overruled appellant’s sole issue, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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