Jimmy Jackson v. State ( 2009 )

Opinion issued July 2, 2009

 In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-07-00859-CR

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JIMMY JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1129117

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MEMORANDUM OPINION  

          A jury convicted appellant, Jimmy Jackson, of the offense of possession with intent to deliver more than 400 grams of a controlled substance (hydrocodone), and, after having found true two enhancement paragraphs alleging prior felony convictions for burglary of a motor vehicle and aggravated robbery, the trial court assessed his punishment at 35 years in prison. See Tex. Health & Safety Code Ann. §§ 481.102(3)(A), 481.112(a) (Vernon 2003); Tex. Penal Code Ann. §§ 12.41(1), 12.42(d) (Vernon 2003 & Supp. 2008). We determine (1) whether appellant waived his sole challenge to the denial of his motion to suppress evidence by not having raised it below and (2) whether a recitation in the judgment that the offense is a first-degree felony is erroneous. Answering both questions in the affirmative, we modify the judgment to correct the noted recitation and affirm the judgment as so modified.

Background

          While conducting surveillance in an unmarked police vehicle, Houston Police Department Officer Jones observed that (1) appellant’s van was parked in the parking lot of a physician’s office; (2) several men exited the van and entered the office; (3) the same men soon exited the office and reentered the van; (4) appellant drove the men to a pharmacy; (5) the same men exited the van and entered the pharmacy; (6) the same men soon exited the pharmacy, each carrying a white bag that Officer Jones recognized as the type commonly used to carry prescription drugs; (7) the men reentered appellant’s van; and (8) appellant drove the men to a gas station, where the men, none of whom was carrying his pharmacy bag anymore, exited and went their separate ways.  

          Officer Jones followed appellant until he observed him failing to maintain a single lane as he made a right turn, at which point Officer Jones had a uniformed officer pull appellant over. Officer Jones then arrived and requested consent to search appellant’s vehicle. Appellant signed a written consent form. During the search, Officer Jones found a backpack containing white bags with bottles of hydrocodone that were prescribed to men other than appellant.

Motion to Suppress Evidence

          In his sole issue, appellant argues that the trial court abused its discretion in denying his suppression motion.

A.      Pertinent Facts

          Appellant filed a pretrial motion to suppress evidence, which read:

COMES NOW JIMMY JACKSON, Defendant in the above entitled and numbered cause and moves the court to suppress all evidence seized on March 20, 2007, as a result of the search of the defendant’s vehicle and search of the defendant’s person . . . and in support of such motion defendant shows:

I.

On March 20, 2007, officers . . . conducted the search of the defendant’s vehicle, and search of the defendant’s person . . . . As a result, certain items of evidence were seized which the prosecution intends to introduce against the defendant at trial. This evidence includes, but is not limited to:

1.A quantity of an alleged controlled substance, to wit: hydrocodone.

2.All statements made and actions done by the defendant, if any, at the time of and subsequent to his stop by law enforcement officers.

3.All photographs, digital still images, and video-taped images taken of the physical evidence.

4.All testimony of any law enforcement officers as to the findings of any physical evidence.

5.The result of any and all scientific tests or procedures conducted on any item of physical evidence.

6.Any and all other evidence which may have been obtained by law enforcement officers.

II.

This above-described search was unreasonable and illegal in violation of the Fourth Amendment of the United States Constitution, Article 1, Section 9 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure because it was not conducted pursuant to a valid search warrant.

III.

The search was not conducted pursuant to a valid search warrant in that there was no search warrant issued at all and yet the officers still proceeded to conduct the search. The search and seizure of the foregoing items were made without probable cause. . . .

(Emphasis added.) Appellant’s suppression motion was not heard until trial, during the testimony of Officer Jones, the State’s first witness.

          Before appellant’s suppression motion was heard, Officer Jones testified to all the facts up through and including the moment that appellant drove away after having dropped the men off at the gas station. At this point, the prosecutor approached the bench, stating that he would like to “go into detail with [Officer Jones] in his experience, the narcotics the way these operations work and how the different members of the [narcotics] operation are established.” Appellant objected on the ground of relevancy.

          The trial court excused the jury, at which point Officer Jones testified that, in his experience, what he had observed was a narcotics transaction in which a “crew” (the passengers in appellant’s van), organized by a “crew leader” (appellant), obtain prescription drugs under their name in exchange for small amounts of cash or a meal, with the crew leader’s retaining the prescriptions to sell for profit. The court overruled appellant’s reasserted relevancy objection, but ordered the evidence limited to “system and intent.”

          The trial court then asked appellant if he wanted his suppression motion heard. Appellant agreed. The following discussion occurred between the parties and the court:

Prosecutor:Judge, I’m sorry that I’m hesitating. The Motion to Suppress is a little general. I’m assuming that there is an issue as to consent—

Court:Well, I’m sure he’s saying there wasn’t any warrant; and there wasn’t any probable cause.

Prosecutor:There absolutely was no warrant. I have no problem with that. I just needed to know if I needed to fast forward to the issue.

Court:It’s saying they were illegally obtained.

Prosecutor:Okay.

Appellant:That’s correct, Judge.

Prosecutor:Okay.

(Emphasis added.) Officer Jones then testified, outside the jury’s presence, that (1) he observed appellant, while making a right turn, “commit[] a traffic infraction by failing to maintain a single lane of traffic”; (2) he had a uniformed officer pull appellant over; (3) Officer Jones approached the vehicle and asked for appellant’s consent to a search of the vehicle; and (4) appellant voluntarily signed a consent-to-search form.

          The following discussion then occurred:

Court:[to appellant] Your witness.

Prosecutor:Did you want to see the consent [form], Your honor?

Court:No.

Appellant: No questions, Judge.

Court:[to Officer Jones] You may step down. [to appellant] Do you have any evidence that you want to produce?

Appellant:Not at this time, Judge.

Court:We’re hearing your Motion to Suppress, and if you got [sic] any evidence you want to present to [sic] it, I’ll listen to it right now.

Appellant:Having no evidence at this time, judge, I—

Court:All right. Your Motion to Suppress is overruled.

          The trial court’s written order denying the suppression motion does not state its basis or bases, and findings of fact and conclusions of law were neither requested nor entered.

B.      The Law

          “[A] motion to suppress is a specialized objection to the admissibility of evidence.” Porath v. State, 148 S.W.3d 402, 413 (Tex. App.—Houston [14th Dist.] 2004, no pet.). “Therefore, a motion to suppress must meet all of the requirements of an objection, that is, it must be timely and sufficiently specific to inform the trial court of the complaint.” Id.; see Tex. R. App. P. 33.1(a)(1).   

          One of the “generally acknowledged policies of requiring specific objections” is “to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it.” Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). The other side of the same coin is that “[a]n objection stating one legal theory may not be used to support a different legal theory on appeal.” Johnson v. State, 263 S.W.3d 287, 289 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d). “The issue raised on appeal should comport with the objection made at trial, and the trial judge should have an opportunity to rule on the issue, otherwise nothing is presented for appellate review.” Id.  

C.      Application of the Law to the Facts

          On appeal, appellant argues that the trial court abused its discretion in denying his suppression motion because (1) the initial stop was made without reasonable suspicion that he had violated Texas Transportation Code section 545.060 because his failure to maintain a single lane of traffic was not proved to be unsafe; (2) the stop was thus illegal; and (3) his consent to search the vehicle was invalid as the fruit of the poisonous tree. The problem is that appellant did not raise these arguments below.

          Appellant’s written suppression motion was very general. The most that it recited was that the search was illegal for having been conducted without a warrant and that the search and seizure were made without probable cause. Nowhere did the motion argue that the consent to search was tainted by an illegal stop. Nowhere did it mention reasonable suspicion. The only place that the motion mentioned the vehicle’s stop was in the list of evidence that should be suppressed: “[a]ll statements made and actions done by the defendant, if any, at the time of and subsequent to his stop . . . .” But this was simply the description of evidence that appellant wished suppressed, not a ground for suppression or an argument concerning reasonable suspicion or whether the written consent was tainted by the stop. The written motion thus would not have made the trial court aware of any of the arguments that appellant now raises on appeal.

          The hearing on appellant’s suppression motion did not clarify appellant’s challenge, either. Appellant said nothing when the prosecutor voiced concern about the motion’s generality and stated his assumption that consent was the challenged issue. Nor did appellant say anything when the trial court, apparently reading from appellant’s motion, expressed that appellant was challenging the lack of a warrant and probable cause (not reasonable suspicion, the traffic stop, or attenuation of any taint arising therefrom). The only thing that appellant said before the officer testified was that the court was “correct” in viewing appellant’s motion as “saying [the challenged items of evidence] were illegally obtained.” But the statement that evidence was “illegally obtained” is also very general.

          Appellant did not cross-examine the officer, and he did not present any evidence or argument afterwards. The officer did testify to the facts leading up to the stop; however, he also testified to how appellant’s consent was obtained and whether it was voluntary, and he had already also testified to his observations that led to his tailing appellant’s van in the first place (which could be relevant either to probable cause, a ground that was raised in appellant’s motion, or reasonable suspicion, a ground that was not). See Saldivar v. State, 209 S.W.3d 275, 281 (Tex. App.—Fort Worth 2006, no pet.) (considering evidence adduced before and during suppression hearing when motion was carried to trial). Finally, appellant never asserted, after the officer’s testimony, that the observed traffic violation was not a violation after all.

          Neither in his motion nor at the hearing did appellant raise the arguments that he now makes, and it is simply not clear from the evidence and discussions at the hearing that the trial court understood appellant’s suppression motion to raise them. See Tex. R. App. P. 33.1(a)(1)(A). Accordingly, we hold that appellant waived his appellate complaint.

Punishment

          We have noticed an error in the judgment that we will correct sua sponte. Appellant was indicted for possession with intent to deliver at least 400 grams of a Penalty Group 1 controlled substance, hydrocodone, enhanced by two prior convictions, the first prior conviction having become final before the second felony occurred. See Tex. Health & Safety Code Ann. §§ 481.102(3)(A), 481.112(a); Tex. Penal Code Ann. §§ 12.41(1), 12.42(d). Without enhancement allegations, the indictment would have charged an offense outside the Penal Code’s felony classification, with a punishment range of life or 15 to 99 years in prison, plus a fine not to exceed $250,000. See Tex. Health & Safety Code Ann. § 481.112(a), (f). But the State opted to charge appellant as a habitual felony offender. See Tex. Penal Code Ann. § 12.42. As enhanced under the habitual-felony-offender statute, appellant’s offense thus carried a punishment range of life or 25 to 99 years in prison, with no fine. See id. § 12.42(d).

          The judgment correctly indicates that appellant was punished as a habitual felony offender. However, it mistakenly recites that the degree of the offense for which appellant was indicted was a first-degree felony. Because the offense for which appellant was charged and convicted is outside of the Penal Code’s felony classification, it is considered a third-degree felony for the purposes of the habitual-felony-offender statute. Tex. Penal Code Ann. § 12.41(1) (“For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows: (1) ‘felony of the third degree’ if imprisonment in a penitentiary is affixed to the offense as a possible punishment . . . .”). We thus modify the judgment to reflect that the offense was a third-degree felony.  

  Conclusion

          We overrule appellant’s sole issue. We modify the judgment to reflect that appellant’s offense was a third-degree felony, and we affirm the judgment as so modified.  

Tim Taft

Justice

Panel consists of Chief Justice Radack and Justices Sharp and Taft.   

Do not publish. See Tex. R. App. P. 47.2(b).