Tony G. Bailey v. State ( 2004 )

NO. 07-03-0148-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 23, 2004
______________________________
TONY G. BAILEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-439,301; HON. BRADLEY UNDERWOOD, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Appellant, Tony G. Bailey, appeals his convictions for possessing, with intent to
deliver, a controlled substance (methamphetamine) and manufacturing a controlled
substance. His sole issue on appeal involves whether he voluntarily consented to a
second search of his house. As a result of that search, the contraband in question was
found. So too was it later admitted into evidence at trial prior to appellant attempting to
suppress its admission. We affirm the judgment of the trial court.
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John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T EX . G O V ’T
C ODE A N N . §75.002 (a)(1 ) (Vernon 199 8).
The record illustrates that when the police arrived at appellant’s home they did so
with the intent to search for an individual named Roberts. Appellant invited the police in
and permitted them to look for Roberts. After discovering various items of contraband, the
police testified that they asked for and received additional consent to conduct an additional
search for drugs and drug-making paraphernalia. On appeal, appellant contends that the
contraband found should have been suppressed because the second purported instance
of consent was coerced. However, this reason for suppressing the evidence was never
mentioned below. Indeed, appellant denied, at trial, that he even consented to the second
search of his abode. Having denied that he even consented to a second search, he could
have hardly argued that his consent to the second search was coerced. So, because the
ground underlying his claim on appeal does not match that uttered at trial, it was not
preserved for review. See Johnson v. State, 651 S.W.2d 303, 311 (Tex. App.--San
Antonio 1983, no pet.) (holding that the appellant was precluded from seeking review of
the voluntariness of his girlfriend’s consent to search when his objection at trial was that
the police failed to obtain permission from him to search).
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Justice
Do not publish.
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