Gilbert Castorena v. State ( 2016 )

Opinion filed August 11, 2016
In The
Eleventh Court of Appeals
__________
No. 11-15-00164-CR
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GILBERT CASTORENA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 39th District Court
Haskell County, Texas
Trial Court Cause No. 6749
MEMORANDUM OPINION
After a bench trial, the trial court found Gilbert Castorena guilty of possession
of more than one gram but less than four grams of methamphetamine.1 The trial
court assessed Appellant’s punishment at confinement for ten years and then
sentenced him. We affirm.
1
TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010).
I. Background Facts
Nick Shaginaw, a police officer with the Haskell Police Department,
observed Appellant make an illegal right turn, and he stopped Appellant for that
traffic violation. Officer Shaginaw discovered, after he had checked Appellant’s
driver’s license, that Appellant did not have the required liability insurance. He
issued Appellant a ticket for “Fail[ure] to Maintain Financial Responsibility,” and
he issued a warning for the illegal right turn. Officer Shaginaw then asked
Appellant, who was the sole occupant of the pickup, if he had any guns or drugs on
him or in his pickup. Appellant said, “No,” but qualified his answer and explained
that he had a BB gun in his pickup.
Officer Shaginaw said that he was not interested in the BB gun and asked to
search the pickup. He specifically asked: “Do you have anything illegal?” and “Do
you mind if I look?” Appellant replied, “Go ahead.” As Officer Shaginaw began
his search, Appellant informed him that the BB gun was in the glove box.
Officer Shaginaw replied that he was “looking for drugs and other things too.”
Appellant said, “Oh, okay,” and then he walked to the back of his pickup.2 As
Officer Shaginaw conducted his search, he found, in the rear passenger
compartment, a black handbag that contained a small plastic baggie that had
methamphetamine residue in it, a “torch-type lighter,” and a box of plastic bags with
the corners removed. Officer Shaginaw arrested Appellant and took him to the
Rolling Plains Detention Center. After Appellant arrived at the detention center,
James Christopher Rogers, who worked at the facility, searched Appellant and
discovered a baggie that contained 3.94 grams of methamphetamine that Appellant
had hidden in one of his socks.
2
The State introduced, as State’s Exhibit No. 1, the videotape of the traffic stop of Appellant, with
no objection from defense counsel.
2
II. Analysis
In a single issue, Appellant contends that the trial court erred when it admitted
and considered evidence recovered from Appellant’s pickup because he only gave
consent to search the glove box of his pickup, not the entire pickup. Appellant
further contends that, because the search was outside the scope of his consent, the
trial court should have suppressed the evidence found during the search of his person
at the detention center. The State argued that Appellant failed to preserve the issue
for review and that, even if he did, the trial court did not abuse its discretion when it
found that Appellant had consented to the search of his entire pickup. We agree with
the State’s arguments.
A. Appellant did not preserve his issue for review
To preserve a complaint for appellate review, a party must have presented to
the trial court a timely request, objection, or motion in which he states the specific
grounds for the desired ruling, if the grounds are not apparent from the context of
the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1)(A); Layton v. State, 280
S.W.3d 235, 238–39 (Tex. Crim. App. 2009). And the trial court must have ruled
on the request, objection, or motion, or the party must have objected to any refusal
by the trial court to rule. TEX. R. APP. P. 33.1(a)(2); see Mendez v. State, 138 S.W.3d
334, 341 (Tex. Crim. App. 2004). Likewise, to preserve a complaint about the illegal
seizure of evidence, a defendant must either file a motion to suppress and obtain a
ruling or timely object when the State offers the evidence. Ratliff v. State, 320
S.W.3d 857, 860 (Tex. App.—Fort Worth 2010, pet. ref’d); see Ross v. State, 678
S.W.2d 491, 493 (Tex. Crim. App. 1984). If the defendant waits to object at trial,
he must do so before any witness gives substantial testimony about the seized
evidence. Ratliff, 320 S.W.3d at 860.
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Appellant did not move to suppress the evidence prior to trial and did not ask
the trial court to issue a pretrial ruling on whether Appellant had voluntarily
consented to the search of his entire pickup. Similarly, Appellant did not object to
the admission of State’s Exhibit No. 1, which was the video of the traffic stop.
Appellant also did not object to Officer Shaginaw’s testimony about the search of
Appellant’s pickup or about the evidence seized from the pickup. In addition,
Appellant did not object to Rogers’s testimony about the evidence that he seized
from Appellant after Appellant’s arrest. After Officer Shaginaw and Rogers had
both testified, Appellant objected to the admission of State’s Exhibit Nos. 2 and 33
and challenged the “validity of the search.” The trial court admitted both exhibits
“subject to any further objections to the search.” The State then moved to admit
State’s Exhibit No. 4, which was the report of the chemical analysis performed on
the 3.94 grams of methamphetamine; defense counsel stated, “I have no objections
to that.” In his closing argument to the trial court, Appellant’s defense counsel
argued that Officer Shaginaw’s search of the pickup exceeded the scope of
Appellant’s consent to a search of the glove box.
To preserve error, the party must let the trial court know what he wants and
why he thinks he is entitled to it and must do so clearly enough for the trial court to
understand him at a time when the trial court is in the proper position to do something
about it. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Because
Appellant failed to timely object to the evidence contained in State’s Exhibit Nos. 1
and 4 and to the evidence presented in Officer Shaginaw’s and Rogers’s testimony,
we hold that Appellant failed to preserve his issue for review. See Smith v. State,
3
State’s Exhibit No. 2 was a manila evidence envelope that contained State’s Exhibit No. 3, which
contained the plastic evidence envelope that held the baggie of drugs that was seized from Appellant’s sock
during the search at the detention center.
4
243 S.W.3d 722, 726 (Tex. App.—Texarkana 2007, pet. ref’d) (no error preserved
when no motion to suppress, no suppression hearing, no complaint to introduction
of evidence about search, and no objection to admission of drugs). But even if we
are incorrect and Appellant has preserved his issue, he nonetheless consented to the
search of his entire pickup and the black handbag located within it.
B. Appellant consented to the search of his pickup
Absent “a few specifically established and well-delineated exceptions,” the
Fourth and Fourteenth Amendments prohibit searches conducted without a warrant
issued based on probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). Consent to search
is one such exception. Id. However, a suspect is free to limit the scope of his
consent. Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d) (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991)). The scope of
consent is determined by “what the typical reasonable person would have understood
by the exchange between the officer and the suspect.” Id. (citing Jimeno, 500 U.S.
at 251). The State has the burden to prove that the search conducted was within the
scope of Appellant’s consent. Malone v. State, 163 S.W.3d 785, 798 n.6 (Tex.
App.—Texarkana 2005, pet. ref’d).
We review a trial court’s finding on consent to search for an abuse of
discretion. Montanez v. State, 195 S.W.3d 101, 108 (Tex. Crim. App. 2006). We
give almost total deference to the trial court’s decision on historical facts that are
supported by the record. Id.
When Appellant informed Officer Shaginaw that he had a BB gun in his car,
Officer Shaginaw stated that he was not interested in the BB gun, but he nonetheless
asked to search the pickup. Appellant replied, “Go ahead.” As Officer Shaginaw
approached the pickup, Appellant informed him that the BB gun was in the glove
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box. Officer Shaginaw replied, “Okay. I’m looking for drugs and other things too.”
Appellant said, “Oh, okay,” and then he walked to the back of his pickup as
Officer Shaginaw searched it. Officer Shaginaw’s requests were close in time and
related, and in response, Appellant did not alter or withdraw his consent. A
reasonable person would have understood this interaction to grant general consent
to search the vehicle. Simpson, 29 S.W.3d at 330 (“Unless an officer’s request, or a
suspect’s consent, limits a search to a particular area of the vehicle, such as the
passenger compartment or trunk, we believe that a request for a search ‘of the car’
reasonably includes all areas of the vehicle and excludes none.”). The State met its
burden to show by clear and convincing evidence that Appellant consented to Officer
Shaginaw’s search of the pickup and the black handbag located within the pickup.
We hold that the trial court did not abuse its discretion when it found that Appellant
consented to a search of his entire pickup. As a result, the trial court did not abuse
it discretion when it admitted and considered the evidence seized from Appellant’s
pickup and, later, his person. See Bustamonte, 412 U.S. at 219; Simpson, 29 S.W.3d
at 330. We overrule Appellant’s sole issue on appeal.
III. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
August 11, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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