Quinton Shandra Jones v. State ( 2016 )

Affirmed and Memorandum Opinion filed November 22, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00612-CR
QUINTON SHANDRA JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 74300
MEMORANDUM OPINION
After a bench trial, the court found appellant guilty of possession of a
controlled substance and sentenced him to nine years’ confinement. In four issues,
appellant challenges the sufficiency of the evidence and the trial court’s denial of a
motion to suppress. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
In his fourth issue, appellant contends the evidence is legally insufficient to
support his conviction because the trial court was not rationally justified in finding
beyond a reasonable doubt that appellant possessed a controlled substance.
A. Standard of Review
When reviewing the sufficiency of the evidence after a bench trial, we apply
the same Jackson v. Virginia standard that is applied in an appeal from a jury trial.
See Robinson v. State, 466 S.W.3d 166, 173 (Tex. Crim. App. 2015) (citing
Jackson v. Virginia, 443 U.S. 307, 309, 319 (1979)). Under this standard, we
consider the combined and cumulative force of all admitted evidence in the light
most favorable to the verdict to determine whether, based on that evidence and the
reasonable inferences therefrom, a fact finder was rationally justified in finding
guilt beyond a reasonable doubt. Tate v. State, No. PD-0730-15, — S.W.3d —,
2016 WL 5113495, at *2 (Tex. Crim. App. Sept. 21, 2016) (citing Jackson, 443
U.S. at 318–19). The State need not disprove every conceivable alternative to a
defendant’s guilt. Id. Direct evidence and circumstantial evidence are equally
probative. Id.
The trial court is the sole judge of credibility and weight to be attached to the
testimony of witnesses, and the court may draw multiple reasonable inferences
from the facts so long as each is supported by the evidence. Id. The trial court
may not, however, draw conclusions based on speculation. Id. Speculation occurs
when the inference is insufficiently based on the evidence to support a finding
beyond a reasonable doubt. Id. When the record supports conflicting inferences,
we presume that the fact finder resolved the conflicts in favor of the verdict. Id.
2
The trial court is free to believe or disbelieve all or part of a witness’s
testimony. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d); see also Hernandez v. State, 161 S.W.3d 491, 501 (Tex. Crim.
App. 2005) (noting that a fact finder may disbelieve some or all of a witness’s
testimony even when that testimony is not contradicted).
B. The Evidence
Three witnesses testified at trial: (1) the arresting police officer, Mike
Glaspie; (2) the State’s chemist; and (3) a passenger in appellant’s car, Tahika
Johnican.
1. The State’s Witnesses
Officer Glaspie testified that he saw a car leaving a house where
methamphetamine is sold. He followed the car and stopped the driver for a
perceived traffic violation and to determine whether the driver was intoxicated.
Appellant was the driver. There were three passengers: (1) Margaret Nichols in
the front; (2) Jimmy Garcia in the rear on the driver side; and (3) Johnican in the
rear on the passenger side. The stop was recorded on Officer Glaspie’s dash
camera, and the trial court admitted the video into evidence.
Officer Glaspie conducted an HGN test on appellant and did not believe
appellant was impaired. Glaspie’s dispatch informed him that there was an arrest
warrant for Garcia. After another officer arrived on the scene for backup, Glaspie
and the officer arrested Garcia. Glaspie testified that while appellant was out of
the car during the traffic stop for about thirty minutes, Glaspie could not see what
was happening inside the car where the passengers had remained.
Glaspie asked appellant if Glaspie could search appellant’s car. Appellant
consented. Glaspie removed Nichols and Johnican from the car, and Glaspie
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searched it. He found two Crown Royal bags on the floorboard near the front
passenger seat where Nichols had been sitting. Inside each bag, Glaspie found a
pipe commonly used to smoke methamphetamine, crack cocaine, or marijuana.
Glaspie found 3.8 grams of methamphetamine in one of the pipes. Glaspie also
found a prescription bottle with assorted pills inside a purse near the front
passenger seat.
Inside the center console arm rest between the front driver and passenger
seats, Glaspie found three bags containing a crystalized substance. The State’s
chemist testified that the bags contained 1.5556 grams of methamphetamine.
2. Johnican’s Testimony
Johnican testified for the defense. She testified that she, Nichols, and
appellant lived together. Nichols and appellant were dating. Johnican knew
Nichols was a “meth dealer.” Nichols had sold methamphetamine at their house in
front of appellant.
On the night of the arrest, appellant was driving the group in a rental car.
Nichols told appellant that they needed to go to West Columbia to “pick up some
money,” which Johnican understood to mean that Nichols was going to sell some
methamphetamine. When asked at trial whether appellant would have known
“what was going on,” Johnican testified, “Right.”
Before the arrest, everyone had gone into the “nasty” house that they had
stopped at for Nichols to sell methamphetamine. But the sale did not occur. After
they left the house, appellant was upset with Nichols because Nichols did not get
money and they had detoured for nothing.
Johnican testified that she did not see appellant with any drugs that night,
and appellant never looked in the center console. Johnican testified that Nichols
4
had drugs on her. Nichols told Johnican that Nichols had “two sacks” of
methamphetamine.
Johnican testified that during the traffic stop Nichols reached across the
driver seat into the driver side door pocket. Then Nichols opened the center
console and closed it, but Johnican did not see Nichols put anything inside.
Johnican also testified that Nichols said Nichols put methamphetamine in the
center console.
C. Legal Principles
The trial court found appellant guilty of knowingly or intentionally
possessing a controlled substance—methamphetamine weighing at least one gram
but less than four grams. See Tex. Health & Safety Code Ann. § 481.115(a), (c).
To prove the requisite intent, the State had to prove that appellant (1) exercised
control, management, or care over the substance in question and (2) knew that the
substance was contraband. See id. § 481.002(38) (defining possession); see also
Tate, 2016 WL 5113495, at *2; Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim.
App. 1988).
A defendant’s mere presence is insufficient to establish possession. Tate,
2016 WL 5113495, at *2. But, possession of contraband need not be exclusive,
and the evidence may show that the defendant jointly possessed the contraband.
Martin, 753 S.W.2d at 386. If contraband is not in the exclusive possession of the
defendant, a fact finder may infer that the defendant intentionally or knowingly
possessed the contraband if there are sufficient independent facts and
circumstances justifying such an interference. Tate, 2016 WL 5113495, at *2. A
non-exclusive list of factors that may link the defendant to the knowing possession
of contraband include:
5
(1) the defendant’s presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant’s proximity to and
the accessibility of the narcotic; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether
the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present;
(11) whether the defendant owned or had the right to possess the place
where the drugs were found; (12) whether the place where the drugs
were found was enclosed; (13) whether the defendant was found with
a large amount of cash; and (14) whether the conduct of the defendant
indicated a consciousness of guilt.
Id. at *3. The purpose of linking the defendant to the contraband is to prevent an
innocent bystander such as a friend or relative from conviction “merely because of
his fortuitous proximity to someone else’s drugs.” Evans v. State, 202 S.W.3d 158,
161–62 (Tex. Crim. App. 2006). Although these factors are helpful, the ultimate
inquiry remains: “Based on the combined and cumulative force of the evidence and
any reasonable inferences therefrom, was a jury rationally justified in finding guilt
beyond a reasonable doubt?” Tate, 2016 WL 5113495, at *3 (citing Jackson, 443
U.S. 307, 318–19).
Furthermore, in a bench trial, the trial court may consider the law of parties.
Diaz v. State, 902 S.W.2d 149, 151 (Tex. App.—Houston [1st Dist.] 1995, no pet.);
see also Leon v. State, 102 S.W.3d 776, 781–82 (Tex. App.—Houston [14th Dist.]
2003, no pet.) (holding that the evidence from a bench trial was sufficient based on
the law of parties). A person is criminally responsible as a party to an offense if,
acting with intent to promote or assist the commission of the offense, the person
solicits, encourages, directs, aids, or attempts to aid another person to commit the
offense. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (citing Tex.
Penal Code Ann. § 7.02). “Thus, to prove possession of a controlled substance as a
6
party, the State must show (1) that another person possessed the contraband and
(2) that the defendant, with the intent that the offense be committed, solicited,
encouraged, directed, aided, or attempted to aid the other’s possession.” Robinson
v. State, 174 S.W.3d 320, 324–25 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d); see also Martin, 753 S.W.2d at 386–87 (reviewing the sufficiency of the
evidence for possession of methamphetamine under a law-of-parties theory).
D. Analysis
After reviewing the entire record and relevant authorities, we hold that the
evidence is legally sufficient to support appellant’s conviction for possession as a
principal and a party.
Of the potential links identified above, the most probative of appellant’s
guilt are the third and eleventh. Although the contraband was not in plain view,
appellant was in close proximity and had convenient access to the
methamphetamine found in the center console of the car; and as the renter of the
car, he had the right to possess the place where the drugs were found. Compare
Tate, 2016 WL 5113495, at *6 (sufficient evidence to support the driver’s
conviction when the drugs were found in a syringe in plain view in a compartment
underneath the air conditioner controls between the driver and front-seat
passenger), with Roberson v. State, 80 S.W.3d 730, 734, 742 (Tex. App.—Houston
[1st Dist.] 2002, pet. ref’d) (insufficient evidence to support the driver’s conviction
as a principal or party when the drugs were found on the floorboard of the
passenger side of the car and outside the car on the passenger side).
Further, Johnican’s testimony that Nichols felt inside the driver side door
pocket before putting methamphetamine in the center console would enable the
trial court to rationally infer that Nichols moved the methamphetamine from the
driver side door pocket and placed it in the center console. See Tate, 2016 WL
7
5113495, at *2 (fact finder may draw reasonable inferences from the evidence).
The driver-side door was a location for which appellant had the closest proximity
and greatest accessibility among all of the car’s occupants.
Considering the totality of the evidence, the trial court rationally could have
found beyond a reasonable doubt that appellant (1) exercised control, management,
or care over the methamphetamine and (2) knew that the substance was
contraband. See Tate, 2016 WL 5113495, at *2
The trial court also could have credited Johnican’s testimony that
(1) Nichols asked appellant to drive Nichols to the house so she could get some
money, (2) appellant knew that Nichols had sold methamphetamine, and
(3) appellant knew “what was going on”—that Nichols intended to sell
methamphetamine at the house. From this evidence, the trial court rationally could
have found that appellant knew Nichols was possessing cocaine. And, from the
evidence that appellant drove Nichols to a drug house where appellant knew
Nichols intended to sell methamphetamine, the trial court rationally could have
found that appellant (1) intended to promote or assist Nichols in her possession of
the methamphetamine and (2) aided Nichols in her possession of the
methamphetamine. Cf. Woods v. State, 998 S.W.2d 633, 634–36 (Tex. App.—
Houston [1st Dist.] 1999, pet. ref’d) (sufficient evidence to support conviction as a
party to possession of cocaine when the defendant arranged the meeting between
the informant and the person who sold the cocaine to the informant, and the
defendant was present during the sale and transfer of the cocaine).
Considering all of the admitted evidence, we conclude the evidence is
legally sufficient to support appellant’s conviction. Appellant’s fourth issue is
overruled.
8
II. MOTION TO SUPPRESS
In his first issue, appellant contends the trial court erred by denying his
motion to suppress because Officer Glaspie lacked reasonable suspicion to stop the
car. In his second issue, appellant contends the trial court erred similarly because
the stop was unreasonably prolonged past the time necessary to satisfy the purpose
of the stop. After reciting general Fourth Amendment principles and the standard
of review, we address each of appellant’s contentions.
A. General Fourth Amendment Principles
The Fourth Amendment protects the right of people to be free from
“unreasonable searches and seizures.” U.S. Const. amend IV. Whether a
particular search or seizure is reasonable is measured in objective terms by
examining the totality of the circumstances. See Kothe v. State, 152 S.W.3d 54, 63
(Tex. Crim. App. 2004). We apply the familiar rationale from Terry v. Ohio when
determining the reasonableness of a traffic stop. See St. George v. State, 237
S.W.3d 720, 726 (Tex. Crim. App. 2007) (citing Terry v. Ohio, 392 U.S. 1, 19–20
(1968)). Under Terry, an investigative detention must be (1) “justified at its
inception” and (2) “reasonably related in scope to the circumstances that justified
the interference in the first place.” Id.
Under the first inquiry, the detention is justified when the officer has
reasonable suspicion of criminal activity. See Furr v. State, No. PD-0212-15, —
S.W.3d —, 2016 WL 5118607, at *3 (Tex. Crim. App. Sept. 21, 2016).
“Reasonable suspicion to detain a person exists when a police officer has specific,
articulable facts that, when combined with rational inferences from those facts,
would lead him to reasonably conclude that the person detained is, has been, or
soon will be engaged in criminal activity.” Id. at *4 (quotation omitted).
9
Under the second inquiry, “the general rule is that an investigative stop can
last no longer than necessary to effect the purpose of the stop.” Kothe, 152 S.W.3d
at 63. “In other words, once the purpose for the stop is exhausted, police may not
unnecessarily detain drivers solely in hopes of finding evidence of some other
crime.” Id. at 64. Unless officers develop reasonable suspicion to continue the
detention, the detention becomes unreasonable. See St. George, 237 S.W.3d at
727; see also Simpson v. State, 29 S.W.3d 324, 327 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d) (“[O]nce the purpose of the original detention has been
effectuated, any continued detention must be supported by some additional
reasonable suspicion, that is, something out of the ordinary that is occurring and
some indication that the unusual circumstance is related to crime.”).
B. Standard of Review
“We review a trial court’s denial of a motion to suppress for an abuse of
discretion and apply a bifurcated standard of review, affording almost complete
deference to the trial court’s determination of historical facts, especially when
those determinations are based on assessments of credibility and demeanor.” Furr,
2016 WL 5118607, at *3. “When the trial court does not make express findings of
fact, as in this case, we view the evidence in the light most favorable to the trial
court’s ruling and will assume [the trial court] made findings that are consistent
with its ruling and that are supported by the record.” Id. “Thus, the party that
prevailed in the trial court is afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn from that evidence.” State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
We review de novo “whether the facts are sufficient to give rise to
reasonable suspicion in a given case.” Furr, 2016 WL 5118607, at *3. And, we
review de novo whether a particular seizure was reasonable under the Fourth
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Amendment. Kothe, 152 S.W.3d at 62. If the trial court’s ruling is correct under
any theory of law applicable to the case, we will affirm. See Furr, 2016 WL
5118607, at *3.
C. Reasonableness of the Initial Detention
In his first issue, appellant contends the trial court erred because Officer
Glaspie lacked reasonable suspicion to stop the driver of the car for a traffic
violation or apparent intoxication. We hold that the trial court rationally concluded
Glaspie had reasonable suspicion to stop the car to investigate whether appellant
was intoxicated.
Officer Glaspie testified that he observed the car leaving a house where
methamphetamines were sold. He saw the car “swerving in his lane of traffic.”
Then, Glaspie observed the car cross a “white line onto the shoulder of the road.”
He testified that the car’s passenger-side tires crossed the white line. State’s
Exhibit 1, the recorded video, begins thirty seconds before the stop. It shows
appellant’s car traveling in the right of two lanes on one side of a divided roadway.
The car immediately drifts to the right solid white line and touches the line or
comes very close to it. About ten seconds later, the car moves to the left side of
the lane and touches or comes very close to the striped line. About ten seconds
later, the car moves again to the right side of the lane, and the passenger-side tires
cross the solid white line.
Glaspie observed the car’s “erratic driving” at about 2:25 a.m., and he
testified that he normally encounters intoxicated drivers after midnight. When
Glaspie observed the car swerve within its lane and cross the white line, he
“stopped the vehicle and started a DWI investigation.” The erratic driving made
him concerned that the driver was intoxicated or otherwise impaired.
11
The possibility of an innocent explanation for unusual driving behavior does
not deprive an officer from having reasonable suspicion to investigate the
possibility of criminal conduct, such as intoxicated driving. See Leming v. State,
493 S.W.3d 552, 564–65 (Tex. Crim. App. 2016). “Indeed, the principal function
of his investigation is to resolve that very ambiguity and establish whether the
activity is in fact legal or illegal.” Id. at 565 (quotation omitted).
Under our de novo review, we hold that the evidence recited above is
sufficient to give rise to Glaspie’s reasonable suspicion that appellant was driving
while intoxicated or impaired, justifying a temporary investigative detention. See
id. at 564 (holding that the officer had reasonable suspicion to investigate potential
intoxication when the vehicle drifted back and forth within its lane below the
posted speed limit; agreeing with the trial court’s characterization of the driving as
“erratic”); Miller v. State, 418 S.W.3d 692, 694, 697–98 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d) (holding that the officer had reasonable suspicion to
investigate potential intoxication when the vehicle “straddled” the line dividing
two lanes for a few seconds); see also Curtis v. State, 238 S.W.3d 376, 381 (Tex.
Crim. App. 2007) (holding that officers had reasonable suspicion when the
defendant’s car weaved “in and out of its lane several times, over a short distance,
late at night”).
Appellant’s first issue is overruled.
D. Scope of the Detention
In his second issue, appellant contends the traffic stop was unreasonably
prolonged past the time necessary to satisfy the purpose of the stop. In particular,
appellant contends the purpose of the stop ended (1) at the earliest when Officer
Glaspie finished the HGN test, (2) when “the warrant checks returned” about
twenty-five minutes into the stop and did not indicate appellant had a warrant, or
12
(3) at the latest when Garcia was arrested. Appellant consented to the search of the
car after these incidents, so appellant argues that his consent was the product an
illegal detention.
First, we review the evidence concerning the scope of the detention.
Deferring to the trial court’s implied findings that are supported by the record, we
hold that appellant was not illegally detained at the conclusion of the HGN test.
Further, appellant has not preserved error for his contentions that the stop became
unlawful after the warrant checks or Garcia’s arrest.
1. The Evidence
Viewing Glaspie’s testimony together with State’s Exhibit 1, the video
recording of the stop, in the light most favorable to the trial court’s ruling, the
following events occurred with approximate timestamps from the video:
00:26 Glaspie activated his car’s lights to initiate a traffic stop.
00:56 Glaspie’s car came to a stop behind appellant’s car.
02:09 Glaspie approached appellant’s car and asked appellant for his
license and insurance.
02:24 – 05:12 Glaspie collected identifications from appellant, Garcia, and
Johnican. Nichols said she did not have hers. Glaspie told
appellant he stopped appellant because appellant was swerving.
Glaspie returned to his car.
05:30 – 06:36 Glaspie read three license numbers to dispatch. Glaspie asked
dispatch to “check them through Angleton, Brazoria County,
Clute, Freeport, Lake Jackson, and Brazoria PD.”1
14:20 – 15:30 Dispatch and Glaspie had a conversation, though dispatch is
mostly unintelligible on the recording. Glaspie said, “Yeah,”
“what,” “ok,” and “nothing else on the other ones yet?”
15:50 Glaspie backed up his car so he could have more room to do a
field sobriety test.
1
On appeal, the parties agree that Glaspie was requesting warrant checks.
13
16:30 – 18:30 Glaspie approached appellant and asked him to step out of the
car and walk between the cars. Glaspie asked appellant if he
had anything to drink and asked why appellant seemed
confused in the car. They discussed appellant’s driving history
that day. Glaspie patted appellant’s pockets. Glaspie told
appellant that Glaspie thought appellant and the passengers
were intoxicated. Glaspie asked to conduct a field sobriety test,
and appellant agreed.
18:30 – 18:40 Glaspie told dispatch, “I’ll be performing FST [unintelligible]
driver. It’ll be the first individual I had you run.”
18:45 – 20:55 Glaspie performed the HGN test. Glaspie told appellant, “You
got a little bit, but that can be caused from fatigue, too . . .
staring at the highway too long.” Glaspie told appellant that
being a fatigued driver is “a little bit worse” and “almost as bad
as being a drunk driver.”
20:55 – 22:05 Glaspied asked appellant who the girl was in the front seat.
Appellant told him it was Margaret Nichols. Glaspie told
appellant to “hang tight” while Glaspie went back to Nichols to
confirm her name and date of birth. Glaspie told Nichols to
“hang tight,” and he returned to his car.
22:05 – 22:30 Glaspie gave Nichols’s information and description to dispatch.
24:30 – 26:10 Dispatch informed Glaspie that Garcia was “99,” and Glaspie
asked, “What are the warrants for?” Dispatch responded,
“Assault with deadly weapon, used a .38 caliber revolver,
aggravated assault and parole violation.” Glaspie asked for a
“county unit.” Glaspie asked for “confirmation on those hits,”
and dispatch responded that they were “good warrants.”
31:35 – 32:20 Glaspie asked dispatch for the “ETA on BCSO.” Dispatch said
a unit was on its way.
33:05 –35:45 The back-up deputy arrived and spoke with Glaspie. They
arrested Garcia and placed him in Glaspie’s car.
35:50 – 36:00 Glaspie, pointing toward appellant and appellant’s car, told the
male deputy, “She’s checking him and the two girls all the way
around.”2
2
Throughout the stop, the dispatch’s voice sounded female. Thus, it would be reasonable
for the trial court to find that Glaspie was referring to the dispatch “checking” appellant for
14
36:10 – 37:45 Glaspie told appellant that Garcia was arrested for a warrant
and was going back to prison. Glaspie returned to appellant’s
car and asked Nichols and Johnican if they had anything else in
the car. Glaspie collected Garcia’s knife and phone. Glaspie
said, “So nobody in here drinks? So he’s the only one who
drinks, huh?” Nichols and Johnican talked over each other and
the answers are not intelligible on the recording.
37:50 – 38:00 Glaspie returned to his car and asked Garcia if “this” was
Garcia’s phone.
38:51 – 39:17 Glaspie spoke with dispatch and asked, “Are they all clear?”
Dispatch cannot be heard on the recording.
39:36 – 39:50 Glaspie asked appellant whether he or his passengers had
anything in the car that they should not have. Appellant said,
“No,” and, “I hope not.” Glaspie asked for consent to search
the car, and appellant consented.
Glaspie searched the car and arrested appellant and Nichols about five minutes
later.
Glaspie testified during the suppression hearing that when he stopped the
car, he “started a DWI investigation.” From his initial encounter with appellant,
Glaspie thought appellant was “impaired on a substance” or “trying to hide
something.” On cross-examination, Glaspie answered “correct” to the following
questions: (1) “[T]he initial stop was because you believe that the driver of the
vehicle was impaired in some manner,” and (2) “So would it be reasonable to say
that after you did the HGN that you did not believe [appellant] to be impaired?”
2. No Illegal Detention at the Conclusion of the HGN Test
Appellant contends the traffic stop was unlawfully prolonged past the time
necessary to effect the purpose of the stop because Officer Glaspie determined that
appellant was not impaired at the conclusion of the HGN test.
warrants. See Garcia-Cantu, 253 S.W.3d at 241 (reasonable inferences are drawn in favor of the
trial court’s ruling).
15
Citing a Fifth Circuit case, appellant “concedes that case law establishes that
an officer may wait a reasonable amount of time for computer checks of warrants
to be completed, even if that time was longer than reasonably necessary to
administer the HGN test.” Indeed, in Kothe v. State, the Court of Criminal
Appeals held that an officer did not unduly prolong a traffic stop after concluding
that the defendant was not intoxicated when the officer waited up to twelve
minutes for the results of a warrant check. See 152 S.W.3d at 57, 65–66.
“On a routine traffic stop, police officers may request certain information
from a driver, such as a driver’s license and car registration, and may conduct a
computer check on that information.” Id. at 63. Checking the driver for warrants
is part of a routine traffic stop. See id.
The video recording reveals that Officer Glaspie requested a warrant check
on appellant before conducting the HGN test. See id. at 66 (reasoning that because
the officer initiated the warrant check before concluding the driver was not
impaired, the officer was not “using the warrant check solely as a means to
purposely extend the detention”). After the officers arrested Garcia, but before
appellant consented to the search, Officer Glaspie told the deputy that dispatch was
still “checking him . . . all the way around” while pointing toward appellant. After
this statement, Glaspie asked dispatch, “Are they all clear,” which the trial court
could have found was a reference to the warrant check on appellant. Glaspie did
not testify at the suppression hearing that the warrant check on appellant was
completed at any particular time. Thus, based on this record, the trial court
16
rationally could have found that the warrant check on appellant had not been
completed before the conclusion of the HGN test.3
Under these circumstances, the trial court did not abuse its discretion by
denying appellant’s request to suppress all evidence recovered after the HGN test.
See id. at 65–66.
3. Other Arguments Not Preserved
On appeal, appellant alternatively argues that he was illegally detained
(1) when the “warrant check was complete” and Officer Glaspie discovered that
appellant “did not himself have a warrant” because it was not reasonable to detain
appellant “so that Glaspie would have backup to arrest the passenger,” 4 or (2) “as
soon as the passenger was arrested.” These arguments are not preserved.
“To preserve an issue for appellate review, a party must present to the trial
court a timely request, objection, or motion stating the specific grounds for the
ruling desired.” Penton v. State, 489 S.W.3d 578, 580 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d) (citing Tex. R. App. P. 33.1(a)). “The appellate complaint
must comport with the specific complaint that appellant timely lodges in the trial
court.” Id. (citing Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)).
“The complaining party must have clearly conveyed to the trial court the particular
complaint raised on appeal, including the precise and proper application of law as
well as the underlying rationale.” Pabst v. State, 466 S.W.3d 902, 907 (Tex.
3
Appellant has not argued on appeal or at trial that the warrant check took too long or
unnecessarily prolonged the traffic stop. See Kothe, 152 S.W.3d at 65 (“Only if a license check
‘unduly prolongs’ the detention is the officer’s action unreasonable under the circumstances.”).
4
Appellant’s argument rests upon his assumption that the warrant check on appellant was
“complete” about twenty-five minutes into the stop because that is when the warrant for Garcia
was discovered. As discussed above, however, using the proper standard of review, we must
credit the evidence that the warrant check on appellant had not been completed until after
Garcia’s arrest.
17
App.—Houston [14th Dist.] 2015, no pet.) (citing Pena v. State, 285 S.W.3d 459,
463–64 (Tex. Crim. App. 2009)).
Although a party need not use specific or technical words, the party must
“let the trial court know what he wants and why he feels himself entitled to it
clearly enough for the judge to understand him.” Vasquez v. State, 483 S.W.3d
550, 554 (Tex. Crim. App. 2016). “[A] general or imprecise objection will not
preserve error for appeal unless ‘the legal basis for the objection is obvious to the
court and to opposing counsel.’” Id. (quoting Buchanan v. State, 207 S.W.3d 772,
775 (Tex. Crim. App. 2006)).
We look to the context of the complaint, and “when the context shows that a
party failed to effectively communicate his argument, then the error will be
deemed forfeited on appeal.” Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim.
App. 2009). “[A] complaint that could, in isolation, be read to express more than
one legal argument will generally not preserve all potentially relevant arguments
for appeal.” Id. at 314.
At the suppression hearing, appellant was emphatic that the traffic stop
should have ended at the conclusion of the HGN test, not at some later time. He
argued as follows:
Once he—the officer conducted the field sobriety tests, the HGN, he
decided according to his testimony that Mr. Jones was not impaired.
At that point in time the reason for his stop ended. So my argument is
from that point on nothing can be admitted that was recovered after
that time.
....
But if you decide that [the initial stop] was satisfactory I think
certainly the evidence on the video and Officer Glaspie’s testimony
shows that once he got Mr. Jones out of the car, performed the HGN,
talked to him a little bit, he decided he was not impaired. The reason
for that stop was over at that point in time. He should have let Mr.
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Jones head out at that point in time. . . . So again, my argument is that
at that point in time the reason for the stop was over with and anything
after that is going to be bad.
Appellant did not mention the warrant check or the extension of the stop due to the
arrest of Garcia. In response, the State argued that extending appellant’s detention
was reasonable because Officer Glaspie “had to wait for backup to retrieve this
person who had a warrant,” and only two or three minutes passed between the
arrest and Officer Glaspie’s request for consent to search the car.
In rebuttal, appellant did not waver in his position. He did not mention the
warrant check or arrest of Garcia. Instead, he argued, “Once the officer decided
that there was no reason to arrest or further investigate Mr. Jones for DWI, the stop
or reason for the stop ended right there.” After appellant’s rebuttal, the trial court
asked the State to respond to appellant’s contention: “Address the second point,
[prosecutor], about—as I gathered from the testimony what [defense counsel] said,
he did the HGN and determined that he didn’t think he was impaired. Why
wouldn’t the reason for the stop as it applies to the Defendant stop at that time?”
Based on appellant’s arguments and the trial court’s question, we conclude
that appellant did not provide the trial court with the “precise and proper
application of law as well as the underlying rationale” now asserted on appeal. See
Pabst, 466 S.W.3d at 907 (holding that a complaint at trial that a stop was illegal
because the defendant had not committed a crime was insufficient to preserve the
argument on appeal that a stop was illegal because of its length). The only legal
basis for appellant’s objection that would have been “obvious” to the trial court
was that the stop should have ended at the conclusion of the HGN test. See
Vasquez, 483 S.W.3d at 554.
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The additional arguments appellant makes on appeal that he did not make to
the trial court are not preserved, and so we do not address the merits of them.
Appellant has forfeited these complaints.
Appellant’s second issue is overruled.
III. CONCLUSION
Having overruled all of appellant’s issues necessary to the disposition of this
appeal, we affirm the trial court’s judgment.5
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Frost and Justices McCally and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
5
We do not reach appellant’s third issue concerning the sufficiency of the evidence “after
excluding the suppressible evidence” because it is premised on a successful challenge to the trial
court’s denial of the motion to suppress. See Tex. R. App. P. 47.1.
20