Christopher Gabriel Lucio v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed April 27, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00278-CR
NO. 14-22-00279-CR
CHRISTOPHER GABRIEL LUCIO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause Nos. 1666753 & 1666752
MEMORANDUM OPINION
Appellant Christopher Gabriel Lucio appeals his convictions for possession
of a controlled substance and possession of a weapon by a felon. Appellant contends
(1) the trial court erred in admitting evidence of self-incriminating statements that
indicated Lucio was in unlawful possession of a firearm; and (2) the trial court erred
in admitting evidence of self-incriminating statements that indicated Lucio was in
possession of cocaine. We affirm.
BACKGROUND
A. Motion to Suppress Hearing
Before trial, appellant filed a written motion to suppress in both cases in which
he sought to suppress “[a]ll physical evidence including, but . . . not limited to, all
items seized from the vehicle owned by Kasandra Perez . . . that was illegally
stopped[.]” Appellant also sought to suppress “[a]ny and all statements, whether
written or oral, of the Defendant[.]” Appellant asserted the evidence was seized as
the result of an unconstitutional stop of the vehicle appellant was driving.
Mayra Gonzalez, a Pasadena police officer, testified that on the day of the
offense she typed the license plate number of a vehicle driven by appellant into the
police department’s citation maintenance system. Gonzalez conducted a traffic stop
because the system showed outstanding traffic warrants for appellant. Gonzalez
asked appellant if he could pay the fines owed. She told appellant that if he could
pay the fines she would transport him to the courthouse to pay the fines rather than
arrest him. After appellant told Gonzalez he could not pay the fines, Gonzalez asked
appellant to get out of the car.
As appellant was getting out of the car Gonzalez observed on the driver’s side
door a pink baggie that contained a white powder. Gonzalez told appellant she saw
what she thought was narcotics in plain view. Gonzalez then escorted appellant to
the patrol car after explaining to the two passengers what she was doing. Gonzalez
then asked appellant if there was anything else in the car. Appellant responded that
everything in the car “is his.”
Kassandra Perez was sitting in the back of the car. When Gonzalez asked
Perez to get out of the car Gonzalez saw another pink baggie in the handle of the
back door. Perez denied that the baggie belonged to her. When Gonzalez was
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walking Perez toward the patrol car appellant said that everything in the car and the
handgun belonged to him.
Seeking to suppress the evidence seized appellant argued that the narcotics
and gun seized from the car should be suppressed because the officer lacked probable
cause to make the traffic stop. The trial court denied appellant’s motion to suppress
on the grounds that there was reasonable suspicion that the driver of the car had an
outstanding warrant.
B. Trial
After the trial court denied appellant’s motion to suppress, appellant waived
his right to a jury trial and the court proceeded to a bench trial. Video from
Gonzalez’s body-worn camera and dashboard camera were admitted into evidence
over appellant’s objection to the stop previously raised in the motion to suppress.
State’s exhibit 1, the body-worn camera video, showed the events of the traffic
stop as described by Gonzalez. In the video appellant acknowledged that he knew
he had an outstanding traffic warrant. When appellant told Gonzalez he could not
pay the fines, Gonzalez asked appellant to step out of the car. Gonzalez placed
handcuffs on appellant and asked if there was anything illegal in the car that she
needed to know about. After appellant said there was not, Gonzalez asked appellant
about the baggie in the driver’s side door handle. Appellant did not respond.
Gonzalez escorted appellant to her patrol car while she looked up the amount of
appellant’s fines.
Gonzalez went back to the car appellant had been driving and asked Perez to
step out of the backseat of the car. When Perez stepped out of the car Gonzalez found
another baggie containing suspected narcotics. Gonzalez explained to Perez that she
would take Perez to jail as well. As Perez got into the backseat of the patrol car
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appellant told Gonzalez that the baggie belonged to him. Gonzalez asked appellant
if she would find anything else and he told her she would find a gun in the car and
repeated his statement that everything in the car belonged to him. Gonzalez found a
handgun on the driver’s side floorboard. After further searching the car Gonzalez
found a bag containing a small scale and a bottle of what she suspected was Xanax.
At trial appellant made no objection to the admission of his statements made to
Gonzalez.
After the State rested, Perez, appellant, and one of appellant’s co-workers
testified. After appellant rested, he made the following motion:
[Defense counsel]: Judge, I want to make a motion that every — every
statement and all the evidence obtained from the time that he was put
in handcuffs — he, being my client Mr. Lucio — that it all be
suppressed.
*****
[Defense counsel]: But, Judge, it’s not just Miranda. It’s — there’s two
— there’s two aspects to this case. And they’re both addressed in these
cases. One is the stop is prolonged and the other one is that they failed
to give him any Miranda warnings.
The trial court denied appellant’s motion.
The trial court found appellant guilty of possession of between one and four
grams of a controlled substance, and felon in possession of a weapon. This appeal
followed.
ANALYSIS
In two issues appellant contends the trial court erred in admitting evidence of
his statements to Officer Gonzalez, specifically his statements that everything in the
car belonged to him and Gonzalez would find a gun in the car. The State responds
that appellant failed to preserve error because he did not move to suppress the
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statements until they had already been admitted.
We agree with the State that appellant did not timely preserve his complaint
regarding the admission of his statements. “Preservation of error is a systemic
requirement.” Darcy v. State, 488 S.W.3d 325, 327 (Tex. Crim. App. 2016). If an
issue has not been properly preserved for appeal, a reviewing court should not
address the merits of that issue. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.
2009). In fact, it is the duty of this court to ensure that a claim is preserved in the
trial court before addressing its merits. Wilson v. State, 311 S.W.3d 452, 473 (Tex.
Crim. App. 2010) (court of appeals should review preservation of error on its own
motion).
To properly preserve a complaint for appeal, the record must show that the
complaining party made a timely request, objection, or motion that identified the
grounds for the ruling sought from the trial court with sufficient specificity to make
the trial court aware of the complaint. Tex. R. App. P. 33.1(a). An objection should
be made as soon as the ground for the objection becomes apparent, which is
generally when the evidence is admitted. Dinkins v. State, 894 S.W.2d 330, 355
(Tex. Crim. App. 1995). Failing to object at the time evidence is admitted, without
a showing of a legitimate reason to justify the delay, waives the claim of error. Id.In this case, appellant filed a pretrial motion to suppress the evidence seized
during the traffic stop. As grounds for suppression of the evidence appellant asserted
that the search of the vehicle was conducted without probable cause. Appellant’s
pretrial motion did not address appellant’s right to remain silent or whether he was
made aware of that right prior to making the statements. The motion also did not
challenge the length of the stop. The pretrial hearing on appellant’s motion was
limited to appellant’s motion requesting that the evidence seized, i.e., narcotics and
gun, should be suppressed due to a search conducted without probable cause.
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At trial Gonzalez testified to the statements made by appellant without
objection. Appellant’s statements were also recorded on Gonzalez’s body-worn
camera and dashboard camera. Appellant’s only objection to the video recordings
was to reiterate his motion to suppress regarding the traffic stop. To be timely, a
motion to suppress must be presented before evidence is admitted. Nelson v. State,
626 S.W.2d 535, 536 (Tex. Crim. App. 1981); Sims v. State, 833 S.W.2d 281, 284
(Tex. App.—Houston [14th Dist.] 1992, pet. ref’d). Because appellant did not object
to admission of the statements before they were admitted, he failed to preserve error
for appeal. See Stults v. State, 23 S.W.3d 198, 205–06 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d) (to preserve error defense counsel must object before
substantial testimony is given regarding the alleged illegally obtained evidence). We
overrule both appellant’s issues on appeal.
CONCLUSION
Having overruled appellant’s issues, we affirm the trial court’s judgments of
conviction.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Zimmerer, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
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