Marcus Daniels v. The State of Texas--Appeal from 217th District Court of Angelina County

NO. 12-06-00048-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

 TYLER, TEXAS

MARCUS B. DANIELS, APPEAL FROM THE 217TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Marcus B. Daniels appeals his conviction of possession of less than one gram of methamphetamine, for which he was sentenced to confinement for eighteen months. In three issues, Appellant challenges the trial court s denial of his motion to suppress. We affirm.

Background

Appellant was charged by indictment for possession of less than one gram of methamphetamine1 and pleaded not guilty. Appellant subsequently filed a pretrial motion to suppress. On July 14, 2005, a hearing was conducted on Appellant s motion.

At the hearing, Lufkin Police Officer Jennifer Payne testified on behalf of the State. Payne testified that at approximately 2:15 a.m. on April 29, 2004, she received a dispatch call concerning a report of a burglary of a motor vehicle at the Silver Creek Apartments. The dispatch call described the suspect s vehicle as a white passenger car with no hubcaps. The call further described the car as loud. The dispatch call also described the suspect as a male with a thin build and curly hair.

Payne further testified that when she arrived at the Silver Creek Apartments, a place she described as a high crime area, she saw a white passenger car leaving the complex. Payne stated that she suspected the car she saw was the same car referenced in the dispatch call and performed a traffic stop.2 Payne testified that she made contact with Appellant, who was the driver of the car, and that he was acting strangely. Payne further testified that Appellant told her he had been looking for a friend, but was unable to identify his friend or relate to Payne where his friend lived. Payne stated that Appellant s behavior caused her to feel unsafe, so she placed handcuffs on Appellant. Payne further stated that Officer Dan Lair had previously arrived at the scene. Payne testified that Lair performed a pat down search on Appellant, during which he discovered a medicine bottle filled with pills and a clear packet containing an off white, crystal like substance. Payne stated that the crystal like substance was later field tested and determined to be methamphetamine.

Lair testified as the State s next witness. Lair testified that he also received a dispatch call related to the burglary of a motor vehicle at the Silver Creek Apartments on the night in question. Lair described the Silver Creek Apartments as commonly having a large number of reports of automobile burglary. Lair stated that when he arrived at the scene, Payne was conversing with Appellant, who was wearing handcuffs. Lair recalled that Appellant s car was white with no hubcaps. Lair further stated that Appellant was acting strange and that he suspected Appellant was intoxicated because his speech was slow and slurred. Lair testified that because Appellant appeared nervous, he asked Appellant if he could check his pockets.3 Lair further testified that Appellant consented to the search.4 Lair stated that during his search of Appellant s pockets, he found a medicine bottle, a plastic bag containing an off white, crystal substance, and a small plastic bag containing pills. Lair further stated that a subsequent field test of the crystal substance determined that it was methamphetamine. Lair testified that Payne arrested Appellant for possession of methamphetamine. Following the hearing, the trial court adjourned without ruling on Appellant s motion.

The trial court ultimately denied Appellant s motion to suppress, and the matter proceeded to jury trial. At trial, the State sought to introduce the methamphetamine into evidence. Appellant objected that the State needed to provide further predicate for the methamphetamine to be admissible in that the State needed to prove that it was the same substance that was taken. 5 The trial court overruled Appellant s objection and inquired if Appellant had any further objection. Appellant responded, No, Your Honor. Thereafter, the State rested. Appellant moved for an instructed verdict and renewed his motion to suppress. The trial court overruled both motions.

Appellant then testified in his defense. During his testimony, Appellant admitted to possession of methamphetamine as charged. The jury ultimately found Appellant guilty as charged and assessed his punishment at confinement for eighteen months. The trial court sentenced Appellant accordingly, and this appeal followed.

Suppression of Evidence

In his first, second, and third issues, Appellant contends that the trial court erred in denying his motion to suppress. Specifically, Appellant argues that the trial court erred in denying his motion to suppress because (1) he was stopped without reasonable suspicion, (2) he was searched without probable cause or reasonable suspicion, and (3) the search of his person was not justified under the consent exception to the probable cause requirement.

Standard of Review

Our standard of review of a trial court s ruling on a motion to suppress is bifurcated. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court s determination of historical facts, but we conduct a de novo review of the trial court s application of the law to those facts. See Carmouche, 10 S.W.3d at 327. The trial court is the exclusive finder of fact in a motion to suppress hearing, and as such, it may choose to believe or disbelieve any or all of any witness s testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Where, as here, the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court s ruling and assume that the trial court made implicit findings of fact that support its ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

Waiver

After a defendant receives an adverse ruling on a motion to suppress, the defendant is not required to again object to the admission of evidence at trial in order to preserve the error on appeal. SeeBrown v. State, 183 S.W.3d 728, 741 (Tex. App. Houston [1st Dist.] 2005, pet. ref d). However, if a defendant affirmatively asserts during trial that he has no objection to the previously challenged evidence, he waives any error in its admission despite any previous pretrial ruling. SeeSwain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) (affirmative acceptance of previously challenged evidence waives any error in its admission); Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992); Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).

During the trial of the instant case, the State sought to introduce the evidence of the methamphetamine the officers recovered from Appellant, which Appellant had previously moved to suppress. Appellant objected to the admission of the evidence stating that the evidence needed further predicate to be admissible. The trial court requested that Appellant elaborate as to the grounds for his objection. Appellant responded, This is the same amount, the same substance that was taken. The trial court overruled Appellant s objection and asked Appellant if he had any other objection to the admission of the methamphetamine. Appellant replied, No, Your Honor. Therefore, since Appellant affirmatively stated that he had no objection to the admission of the methamphetamine, we hold that Appellant waived the error, if any, of which he now complains on appeal. Appellant s first, second, and third issues are overruled.

Disposition

Having overruled Appellant s three issues, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered January 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 See Tex. Health & Safety Code Ann. 481.102(6), 481.115(1)(b) (Vernon 2003 & Supp. 2006).

2 Payne indicates in her testimony that Appellant did not stop his car immediately.

3 On cross examination, Lair noted that a person in handcuffs can still be dangerous.

4 Lair stated that, at the time of the search, there were three or four officers on the scene.

5 The issue of inadequate predicate to admissibility was not raised on appeal.