Barnard Lnell Morrow v. the State of Texas ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00228-CR
Barnard Lnell Morrow, Appellant
v.
The State of Texas, Appellee
FROM THE 426TH DISTRICT COURT OF BELL COUNTY
NO. 82898, THE HONORABLE STEVEN J. DUSKIE, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Barnard Lnell Morrow of capital murder of multiple
persons. See Tex. Penal Code § 19.03(a)(7). On appeal, Morrow contends that the trial court
erred when it denied his motion to suppress evidence. For the following reasons, we affirm the
judgment of conviction.
BACKGROUND 1
On March 20, 2020, the police were conducting a covert surveillance operation on
Morrow as a person of interest concerning the murder of three persons that occurred in the early
morning hours of March 14. A detective with the Killeen Police Department observed Morrow
exiting an apartment carrying a black Puma backpack and getting into the driver’s side rear door
1 Because the parties are familiar with the facts of the case, its procedural history, and
the evidence adduced at trial, we do not recite them in this opinion except as necessary to advise
the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, .4.
of a vehicle, which then began driving away. In addition to the driver, another person was in the
front passenger seat. After officers observed the driver commit several traffic violations 2 and
Morrow and the front-seat passenger not wearing seat belts, a “high risk” traffic stop was
initiated. The initiating officer directed the three occupants to get out of the vehicle, and they
were arrested. 3 A canine “free-air sniff” was performed on the vehicle, and the canine alerted on
the backpack in the backseat. 4 Officers searched the backpack and discovered ammunition and a
Canik 9mm pistol, which was later identified as the murder weapon. After the vehicle occupants
were arrested, the police impounded the vehicle and did an inventory search.
Morrow was charged with capital murder of multiple persons during the same
criminal transaction, see Tex. Penal Code § 19.03(a)(7) (stating that person commits capital
murder when person murders more than one person during same criminal transaction), and the
case proceeded to jury trial in March 2022. After the jury was selected, the trial court heard
2 An officer testified at trial that he observed the driver fail to stop at a designated point,
an intersection, and fail “to signal intent” correctly prior to making a turn. See Tex. Transp.
Code §§ 545.101 (addressing signaling turns), .151 (addressing vehicle approaching or
entering intersection).
3 Morrow and the passenger were arrested because they were not wearing a seat belt.
See Tex. Transp. Code § 545.413(a) (addressing seat belt offense); see also id. § 543.001
(“Any peace officer may arrest without warrant a person found committing a violation of
this subtitle.”).
4 The canine’s handler testified:
While passing the driver’s door, [the canine’s] head went up, and then he
suddenly jumped in through the rear driver side passenger window. And I saw a
detail, a backpack that was in the back, and he went in a down position, which is
his final response position, indicating that he located one of his trained odors.
The handler also answered, “Yes, sir,” when asked if the canine alerted on the backpack in
the backseat.
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Morrow’s pending motion to suppress evidence. Morrow sought to suppress the tangible
evidence that law enforcement officers seized in connection with his detention and arrest or their
investigation of the case, including the backpack, the pistol, and ammunition and any testimony
concerning such items. Morrow contended that the backpack was searched without a warrant,
probable cause, or other lawful authority in violation of his rights pursuant to the Fourth, Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution and sections 9, 10, and 19
of article I of the Texas Constitution. See Tex. Code Crim. Proc. art. 38.23(a) (“No evidence
obtained by an officer or other person in violation of any provisions of the Constitution or laws
of the State of Texas, or of the Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal case.”).
In response, the State contended that the search of the backpack was justified as a
search incident to arrest or as an inventory search. Its witnesses at the suppression hearing were
officers who participated in the traffic stop, including the canine’s handler who testified about
the canine’s alert on the backpack and officers who testified that they personally observed that
the passengers, including Morrow, were not wearing their seat belts prior to the traffic stop. The
defense did not call witnesses but argued that Morrow had an expectation of privacy as to the
backpack, that the officers did not have probable cause to search it, and that they should have
obtained a search warrant. After confirming with Morrow that the motion was limited to
“evidence seized” during the traffic stop, the trial court found that “the search and seizure of the
backpack was reasonable” and that “[i]t was with probable cause” and denied the motion to
suppress the evidence. Morrow did not request findings of fact or conclusions of law as to the
trial court’s ruling.
3
The jury trial proceeded over the next few days, and the jury found Morrow guilty
of capital murder as charged in the indictment. See Tex. Penal Code § 19.03(a)(7). The trial
court sentenced Morrow to imprisonment for life without parole and signed a judgment in
accordance with the jury’s verdict and its sentence. See id. § 12.31(a)(2) (setting punishment at
imprisonment for life without parole for capital felony in case in which state does not seek
death penalty and individual who committed offense is 18 years of age or older). This
appeal followed.
ANALYSIS
In his sole appellate issue, Morrow contends that the trial court erred in denying
his motion to suppress evidence because “the evidence failed to show that the rear passenger seat
of the vehicle stopped was equipped with a seat belt” as required by section 545.413 of the Texas
Transportation Code. See Tex. Transp. Code § 545.413 (stating among elements of offense
that person “is occupying a seat that is equipped with a safety belt” and “not secured by a
safety belt”).
We review a trial court’s ruling on a motion to suppress evidence for an abuse of
discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (citing Balentine
v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002)). “We review the evidence in the light
most favorable to the trial court’s ruling and assume that the trial court made implicit findings of
fact supported in the record.” Id. “We will sustain the trial judge’s decision if it is correct on
any theory of law applicable to the case.” Id. (citing State v. Ross, 32 S.W.3d 853, 856 (Tex.
Crim. App. 2000)).
4
Morrow argues that his arrest for not wearing a seat belt was illegal under article
38.23 of the Texas Code of Criminal Procedure because “there was no evidence that the rear
driver’s seat of the vehicle in which Morrow was sitting was equipped with a seat belt.” 5 He
also argues that the pistol was legally being carried under section 46.02 of the Texas Penal Code
and was therefore not subject to seizure by the arresting officers. Morrow, however, did not
make these arguments in his motion to suppress, during the hearing on his motion to suppress, or
during trial and, thus, has not preserved them for our review. See Tex. R. App. P. 33.1(a)
(stating required steps to preserve complaints for appellate review); Swain, 181 S.W.3d at 365(concluding that global statements in pretrial motion to suppress, including that statements were
inadmissible under article 38.23, “were not sufficiently specific to preserve the arguments he
now makes on appeal”); see also Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016)
(“If a trial objection does not comport with arguments on appeal, error has not been preserved.”).
Thus, we do not address the merit of these arguments. See Diruzzo v. State, 581 S.W.3d 788,
797 (Tex. Crim. App. 2019) (“Preservation of error is a systemic requirement.”); Ford v. State,
305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (“If an issue has not been preserved for appeal,
neither the court of appeals nor this Court should address the merits of that issue.”).
To the extent that Morrow argues that the arrest was a “pretextual arrest” and that
the search of the backpack cannot stand under the theory of a search incident to arrest or the
canine alert, the trial court reasonably could have found that the canine’s positive alert on the
backpack provided probable cause to search the backpack without first obtaining a warrant. See
State v. Copeland, 501 S.W.3d 610, 612–13 (Tex. Crim. App. 2016) (stating that trial court’s
5 Morrow does not dispute that an officer may arrest a person who commits an
offense under section 545.413 of the Texas Transportation Code. See Tex. Transp. Code
§§ 543.001, 545.413(a).
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ruling on motion to suppress must be upheld on appeal “if it is correct under ‘any theory of law
applicable to the case’” (quoting Calloway v. State, 743 S.W.2d 645, 652 (Tex. Crim. App.
1988))). Morrow does not challenge the traffic stop or the officers’ authority to conduct the
“free-air sniff,” see Medina v. State, 565 S.W.3d 868, 876 (Tex. App.—Houston [14th Dist.]
2018, pet. ref’d) (explaining that “open-air sniff around the exterior of a vehicle” is not
considered search for purposes of Fourth Amendment (citing Illinois v. Caballes, 543 U.S. 405,
408 (2005))); he does not contend that the traffic stop was impermissibly extended to allow for
the canine sniff, see Rodriguez v. United States, 575 U.S. 348, 357 (2015); and the evidence was
that the canine alerted on the backpack in the backseat. “The law is well established that as soon
as a drug-detection dog alerts on a car, officers have probable cause to search the car without a
warrant.” Branch v. State, 335 S.W.3d 893, 901 (Tex. App.—Austin 2011, pet. ref’d). And
based on this record, the search of the vehicle properly included the backpack. See, e.g.,
Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (“We hold that police officers with probable
cause to search a car may inspect passengers’ belongings found in the car that are capable of
concealing the object of the search.”).
For these reasons, we overrule Morrow’s issue.
CONCLUSION
Having overruled Morrow’s issue, we affirm the trial court’s judgment
of conviction.
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__________________________________________
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Affirmed
Filed: June 23, 2023
Do Not Publish
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