Gallups, Tracy Glen ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-897-03

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TRACY GLENN GALLUPS, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS COLLIN COUNTY

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   Price, J., filed a concurring opinion.

O P I N I O N

The majority addresses two questions in this case: The first is whether the police had consent to enter the appellant's home to investigate a one-car accident that occurred a few blocks from the home. The second is whether the officer had the authority, under an exception to the warrant requirement under the Code of Criminal Procedure, to arrest the appellant in the absence of a warrant. Because the appellant did not preserve the first question for appellate review, I would not address it.

The appellant filed a motion to suppress in which he claimed that his arrest was illegal because "it was conducted without a valid warrant and no exception to the warrant requirement applied." He went on to discuss Code of Criminal Procedure Article 14.04 ⁽¹⁾ and case law interpreting it. He then argued that the illegally obtained evidence was not admissible under Code of Criminal Procedure Article 38.23 and that the evidence was the fruit of the poisonous tree. The appellant never mentioned Article 14.05, and he did not claim that the officer's entry into his home was illegal.

The trial court held a hearing on the appellant's motion. During the hearing, two officers who had been involved in the investigation and arrest testified.

During his opening statement, defense counsel summarized the facts of the case and then said "The police sometime thereafter, found an insurance card in the vehicle and went into the home, to the address that was on the insurance card, and then made entry into the home, is what's at question, and the subsequent arrest that took place there." ⁽²⁾ The State made a short statement, summarizing the facts that defense counsel had not covered. The trial court swore the witnesses and heard testimony.

Officer Robbie Butler testified that he arrived on the scene of a one-vehicle accident on a December afternoon. A Dodge Ram Charger had crashed into a utility pole, and wires lay on the ground across the road. The driver of the Dodge was missing. A man who had seen the accident and who was waiting in his car for police to arrive spoke with Butler about the accident and described the driver of the Dodge.

The witness described the driver as a white male who was wearing a gray sweat shirt and blue jeans. The driver had a white spot in his hair and blood near his mouth. The witness said that he could smell alcohol on the driver and showed Butler the direction in which the driver had walked when he left the scene.

Butler checked the Dodge to make sure that no one was inside. Then he checked the insurance card in the glove box. The card gave the appellant's name and address, which was about three blocks from the scene of the accident and in the direction that the witness said the driver had gone. Butler contacted Corporal Bill Perkins, who was en route. He gave Perkins a description of the driver and the address listed on the insurance card.

Perkins testified that he drove to the address, and as he walked up to the glass storm-door, he saw the appellant, who matched the physical description of the driver that he had received from Butler. Perkins asked the appellant to step outside to talk to him. Instead of answering or coming out, the appellant motioned Perkins forward. ⁽³⁾ Perkins opened the door and walked into the house.

Perkins asked the appellant if he had been involved in an accident. The appellant claimed that he had let his mother, who was present in the room, drive the Dodge. The appellant's mother denied driving the Dodge, however. Perkins noticed that the appellant's speech was slurred and that he had trouble pronouncing some of his words. Perkins asked the appellant if he had anything in his pocket. The appellant started walking toward Perkins "in a defensive stance" and said that he had a gun and a knife. When the appellant approached Perkins, the officer could smell alcohol on him. The appellant reached for Perkins, after which Perkins physically restrained him. Perkins radioed dispatch and had a unit sent to the appellant's address to pick him up.

The appellant needed assistance to walk. He was attended by a medical unit, and Perkins returned him to the scene of the accident before he was transported to the jail.

The appellant's mother testified that she had been sitting in a recliner and that the appellant had been at home sitting on the couch for about twenty-five minutes when Perkins came to the door. She said that, without knocking, Perkins opened the door and entered her home. She said that Perkins questioned the appellant. During the questioning, she said that she left the room for a few minutes. When she returned her son was on the floor and Perkins was handcuffing him. She also said that, although her son was living in the home, he did not have the authority to consent to allow someone enter her home.

The appellant testified that he had been sitting on the couch when Perkins arrived at the door. He said that Perkins stepped into the doorway and asked him to come outside. The appellant declined, and Perkins came inside and questioned him. The appellant said that he asked Perkins if he had a warrant, and Perkins did not respond. After questioning the appellant, Perkins arrested him and took him outside.

While the State was cross-examining the appellant, the trial judge interrupted the testimony and told the parties that he had a plea agreement to preside over.

[Court]: Say, listen, I'm about to start trying another case. How much time do you need?

[State]: Well, Your Honor, about five minutes.

[Court]: This case is in recess, and I'll call you guys back.

All right. Let's go--let's do this plea.

[Defense]: Judge, are you calling us back today?

[Court]: I'll call you back today. But let me tell you something, I already know what I'm going to do here. So if you guys want me to tell you what I'm going to do, or come back, what would you rather do?

[State]: Well, if it's the court's position that the decision has already been made at this point in time, the State would pass the witness.

[Defense]: We rest.

[Court]: Both sides rest and close. Would you like to be heard?

[Defense]: I'm asking you to suppress anything gained after the officer entered the home.

[Court]: The Motion to Suppress is denied.

On direct appeal, the appellant claimed, among other things, that the motion to suppress should have been granted on the basis of Article 14.05. But this claim was not preserved for review.

Not long ago, in a unanimous opinion, we noted that to preserve a claim for review, the defendant must make a timely and specific objection. "'except for complaints involving fundamental constitutional systemic requirements ..., all other complaints ... are waived by failure to comply with Rule [of Appellate Procedure] 33.1.'" ⁽⁴⁾ And even more recently, regarding preservation of error, the Court said,

Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides, in relevant part, that for a complaint to be presented on appeal, a timely request, objection, or motion must have been made to the trial court, which "states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Texas Rule[] of Evidence 103(a)(1) contains similar guidelines, providing that "a timely objection or motion to strike [must appear] on the record, stating the specific ground of objection, if the specific ground was not apparent from the context." Additionally, it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial. ⁽⁵⁾

I see no reason that these principles should not be applied in this case.

The appellant did not mention Article 14.05 in his motion to suppress. He did not mention Article 14.05 during the hearing on his motion to suppress. The appellant was given an opportunity to be heard at the end of the hearing. Instead of saying that he wished to add Article 14.05 as a basis for the motion to suppress, defense counsel said, "I'm asking you to suppress anything gained after the officer entered the home."

During his opening remarks, defense counsel said that there was some question about the entry into the home. Also, there was some evidence admitted during the motion to suppress hearing that could have been relevant to a claim under Article 14.05, it was not sufficient to preserve review. But the same statement and evidence could be relevant to the issue of consent under the Fourth Amendment to the United States Constitution or Article 1, Section 9 of the Texas Constitution. Did the appellant intend to preserve a claim under Article 14.05; Article 1, Section 9; or the Fourth Amendment? All of them? We cannot tell. More importantly, neither the trial court, nor opposing counsel, could tell.

We do not look at the evidence admitted during a suppression hearing to discern what the parties claims were. Trial courts, opposing counsel, and reviewing courts should not have to guess about what a defendant is claiming. In this case, the appellant made no mention that he wanted to invoke Article 14.05. As a result, I would conclude that the appellant has not preserved the claim for appellate review, and I would not review the merits of the claim.

III. Conclusion

I agree with the majority that the appellant's arrest was authorized under Article 14.03(a)(1). I would not address the appellant's claims under Article 14.05. I concur in the judgment.

Filed: December 8, 2004.

Publish.

1. Article 14.04 states the following:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

2.

Sic passim.

3. During the hearing on the motion to suppress Perkins demonstrated the gesture. His hand was extended, and then he moved his hand back toward himself.

4.

Mendez v. State, 138 S.W.3d 334, 339 (Tex. Crim. App. 2004) (quoting Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).

5.

Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (Meyers, J., joined by Keller, P.J., and Womack, Keasler, Hervey, and Cochran, JJ.) (citations omitted) (emphasis added in opinion quoted).