Mundine, Nathaniel v. State ( 2012 )

AFFIRM; Opinion Filed November 7, 2012
In The
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No. 05-1 1-00851-CR
NATHANI EL MUN DINE, Appellant
V.
TI-IE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-12000-U
MEMORANDUM OPINION
Before Justices Bridges, Richter, and Lang
Opinion By Justice Lang
Nathaniel Mundine appeals his conviction for possession with intent to deliver a controlled
substance, cocaine, in the amount of four grams or more, but less than 200 grams. Pursuant to a plea
agreement. Mundine entered a plea of guilty, but before entering his plea, Mundine filed a motion
to suppress evidence, which was denied without a hearing. In three issues on appeal, Mundine
contends that the trial court erred by denying his motion to suppress without conducting a hearing.
In his first issue, Mundine argues the trial court erred by denying his motion to suppress without
conducting “a full and fair hearing” to determine whether the police’s warrantless search and seizure
was lawful. Mundine contends in his second issue that the trial court’s denial of his motion to
suppress without a hearing, without any evidence being submitted by the State, and when no record
was made, denied him procedural due process, as provided by the I 4th Amendment to the United
Slates Constitution. In his third issue, Mundine contends that because no evidence was submitted
by the State to the trial court bcft)re it rendered its order denying his motion to suppress. Mundine
was denied his right of due course of law under the Texas Constitution. See TEx. C0NsT. art. I,
§ 19.
We conclude Mundine has failed to preserve his issues. The trial court’s judgment is
affirmed. Because all dispositive issues are clearly settled in law, we issue this memorandum
opinion. See TEX. R. APP. P. 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUNI)
On May 28, 2009, the manager of the Glenshire Villa Apartments informed a Baich Springs
Police Community Service Officer and a Balch Springs Police Chaplain Reverend that there was
some “suspicious activity” in one of the apartments. The officer, chaplain, and an apartment security
officer went to the apartment and knocked on the door, which was answered by a male. Mundine,
who was standing at a bar sink inside the apartment, turned around, and the officer noticed Mundine
was “wearing latex gloves and had little orange baggies laying on the bar next to a plate of what
appeared to be crack cocaine.” Mundine was arrested and later indicted.
On June 10, 2010, Mundine filed a motion to suppress evidence, generally challenging the
seizure of the narcotics evidence that led to his arrest. The motion to suppress was set for hearing
on four different occasions, but the record does not reflect a hearing ever took place. The trial court
signed an order denying the motion to suppress on January 28, 2011, after which Mundine pleaded
guilty on June 6, 20 11. At oral submission, Mundine’ s counsel argued the written motion to suppress
included a request for a hearing because the motion contained the following language, “Any other
reason that may be relevant at the hearing on this motion.” However, Mundine’s counsel
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acknowledees that at no point was any request or motion made that the trial judge hold a hearing
afler the order was signed or to set aside the denial of the motion to suppress because no hearing was
COfl(lucte(l
II. STANDARI) OF REVIEW
“We review the trial court’s ruling on a motion to suppress under an abuse—of-discretion
standard.” Johnson v. State, 359 S.W.3d 725, 729 (Tex. App.—Houston [14th Dist.1 2011, pet.
granted) (citing Swain i’. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005); Thomas v. State, 297
S.W.3d 458, 460 (Tex. App.—Houston [14th Dist.1 2009. pet. ref’d)). “A trial court does not abuse
its discretion when its decision is within the zone of reasonable disagreement.” Yanez v. State, 199
S.W.3d 293, 302 (Tex. App.——’orpus Christi 2006, pet. reed) (citing Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990) (en bane)). “We give almost total deference to the trial
court’s determination of’ historical facts but review de novo the trial court’s application of the law
to those facts.” Johnson, 359 S.W.3d at 729 (citing State v. Ross. 32 S.W.3d 853, 856 (Tex. Crim.
App. 2000), modifIed on other grounds, State v. Cu/len, 195 S.W.3d 696 (Tex. Crim. App. 2006);
Thomas, 297 S.W.3d at 460).
111. APPLICABLE LAW
A. Preservation of Issue for Appeal
“It is well established that, in order to preserve an issue for appeal, a timely objection must
be made that states the specific ground ofobjection, if the specific ground was not apparent from the
context.” Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crirn. App. 2006) (citing TEx. R. App. P.
33. l(a)(l)(A)). Furthermore, “if a party fails to properly object to constitutional errors at trial, these
errors can be forfeited.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Texas courts
have found “that numerous constitutional rights, including those that implicate a defendant’s due
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process rights, may be for%ited for purposes of appellate review unless properly preserved.”
:liideisoji ‘. State. 301 S.W.3d 276. 280 (Tex. Crim. App. 2009); see u/so In re CS., 198 S.W.3d
855, 857 (Tcx. App-Dallas 2006, no pet.) (noting that appellant did not argue his due process
complaints fell into either category of exception to general rule of preservation of error “and we do
not believe that they do”); Belt v. State, 127 S.W.3d 277, 282 (Tex. App.— Fort Worth 2004. no pet.)
(determining appellant failed to preserve for review any violations of his due process rights where
appellant did not raise a due process challenge in the court below); in re CC’., 13 S.W.3d 854, 860
(Tex. App,—Austin 2000, no pet.). Similarly, the Court of Criminal Appeals has held an appellant
may fail to preserve for appellate review a complaint regarding “the rights and protections afforded
under the Texas due course of law provision.” Pena v. State, 285 S.W.3d 459. 464 (Tex. Crim. App.
2009); see also Castilla v. State, 374 S.W.3d 537, 542 (Tex. App.—San Antonio 2012, pet. ref’d)
(deciding appellant failed to preserve his complaint that the trial court’s failure to submit a spoliation
instruction violated his state constitutional right to due course of law when “he presented no
constitutional argument whatsoever to the trial court”); Terre/I v. State, 311 S.W.3d 561, 563
(Tex.App.—Waco 2009, pet. retd) (determining that appellant failed to preserve his complaint that
the State’s failure to preserve taped interviews violated his due course of law rights).
In addition, other courts have determined “any complaint appellant had about the lack of a
hearing and its ramifications was not preserved for [their] review” where “nothing in the record
before [them] illustrate[d] that appellant complained, in any way, to the trial court about its failure
to hold a hearing.”Aa’ains v. State, 132 S.W.3d 701, 702 (Tex. App.—Amarillo 2004, no pet.) (mem.
op.); see also Ex Parte Torres, No. 08-10-00330-CR, 2012 WL 1431660, at *2 (Tex. App.—El Paso
Apr. 25, 2012, no pet.) (not designated for publication) (determining no error was preserved
“[b]ecause the record [did] not show that Appellant objected to the inadequacy of the motion to
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suppress or that he argued to the trial court that [his attorneyJ rendered ineffective assistance of
counsel br tnling to schedule a hearing on the pending motion’’): harris vStaic, No. 06—04—00132—
CR, 2005 WL 2076634, at *1 (Tex. App.—Texarkana Aug. 30. 2005, pet. refd) (mem. op., not
designated for publication) (deciding no preservation of error because “trial counsel did not complain
about the procedure followed”).
B. Requirement of a Hearing oii a Motion to Suppress
“A trial court ‘may,’ but is not required to, resolve a motion to suppress evidence in a pretrial
hearing under Article 28.01 of the Code of Criminal Procedure.” Black i. State, 362 S.W.Sd 626,
633 (Tex. Crirn. App. 2012). “[Al trial court is not required to rule on a motion to suppress before
trial, and sometimes a trial court may fInd it useful to carry the motion along with the trial on the
merits.” )ork i’. Stale, 342 S.W.3d 528, 550-51 (Tex. Crim. App. 2011). “Because the legislature
carefully used the term ‘may’ throughout art. 28.01 when it intended discretionary acts and
procedures and used the terms ‘must’ or ‘shall’ when it intended mandatory acts or procedure, [the
Court of Criminal Appeals conclude[dl that the legislature intended to establish a discretionary and
informal procedure for the trial court to conduct suppression hearings under art. 28.01, § 1(6).” Ford
v. State, 305 S.W.3d 530, 539 (Tex. Crim. App. 2009). “A trial judge may use his discretion in
deciding what type of information he considers appropriate and reliable in making his pre-trial
ruling.” Id.
IV. APPLiCATION OF LAW TO FACTS
In all three of his issues, Mundine claims the trial court’s failure to conduct a hearing was
error because it relieved the State of its burden to show that the seizure was lawful. However, his
issues address the procedure of the trial court’s denial of his motion to suppress evidence, not the
merits. Nothing in the record before us shows Mundine complained, in any way, to the trial court
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about no hearing being held or what type of information the trial court relied upon in denying the
motion. Moreover, a trial court is not required to conduct a hearing on a motion to suppress
evidence. See Black, 362 S.W.3d at 633; York, 342 S.W.3d at 550-51. Regardless, when an alleged
error is not brought to the attention of the trial court, no error is preserved for review on appeal. See
Tnx. R. App. P. 33.1(aXIXA); Buchanan, 207 S.W.3d at 775; In re Ct, 13 S.W.3d at 860 (“It is
a general rule that appellate courts will not consider any error which counsel for accused could have
called, but did not call, to the attention ofthe trial court at the time when such error could have been
avoided or corrected by the trial court”); see also Adams, 132 S.W.3d at 702. Mundine’s issues are
not preserved for our review. See Adams, 132 S.W.3d at 702.
V. CONCLUSiON
All three of the issues Mundine raised on appeal rest on the contention that the trial court
erred in denying Mtmdine’s motion to dismiss without a hearing. These issues are not preserved.
Accordingly, we decide appellant’s three issues against him and affirm the trial court’s judgment.
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JUDGMENT
NATHANIEL MUNDINE. Appellant Appeal from the 291t Judicial District
Court of Dallas County. Texas. (Tr.Ct.No.
No. 05-I l-005 I-CR V. F09— 12000-U).
Opinion dehvered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee Bridges and Richter participating.
In accordance with this Court’s opinion of this date, the trial court’s judgment is
AFFIRMED.
Judgment entered November 7, 2012.
f
DOUGLXS S. LANG
JUSTICE