Birdwell, John E. v. State ( 2006 )

Affirmed and Opinion filed January 24, 2006

Affirmed and Opinion filed January 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00127-CR

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JOHN E. BIRDWELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 959,972

O P I N I O N

Appellant John E. Birdwell brings this appeal after a jury found him guilty of possession with intent to deliver a controlled substance.  After appellant pled true to an enhancement paragraph, the trial judge sentenced appellant to fifteen years= incarceration, in accordance with a plea agreement.  In two points of error, appellant argues that the trial court erred by (1) denying appellant=s motion to suppress and (2) denying appellant=s requested jury charge.  We affirm.

Background

On August 28, 2003, Houston police officer Mark Boyle and his partner William Davis arrested appellant for possession of a controlled substance with intent to distribute. At the suppression hearing and at trial, Boyle testified that he had learned from a confidential informant that appellant intended to sell cocaine at a local delicatessen.  The informant told Boyle the scheduled time and place of the transaction and also provided the make, model, and license plate number of appellant=s car.  At trial, appellant testified that although he had agreed to sell cocaine to an acquaintance, he had filled a sock with flour and drywall to resemble a bag of cocaine.

At the suppression hearing, Boyle testified that he first noticed appellant when appellant was walking across the delicatessen=s parking lot.  Boyle followed appellant inside and saw appellant enter the restroom.  Shortly thereafter, appellant left the restroom, glanced around, and went to sit at a table outside.  Boyle returned to his car and continued to observe appellant. According to Boyle, appellant was talking on his cell phone and glancing around is if he were waiting for someone. After about ten minutes, appellant began to walk toward a car that matched the informant=s description.

By this time, Davis had also arrived, and he and Boyle called for appellant to stop. However, Boyle testified that appellant hurriedly climbed inside his car and appeared to be reaching for an object at his waist.  According to Boyle, appellant continued to reach toward his waist even after the officers ordered him to put his hands up.  The officers approached appellant=s car with their guns drawn, and Davis eventually handcuffed appellant on the ground. 

When Boyle performed a pat-down search, he felt a large object in appellant=s pants.  The object was a sock stuffed with a substance that chemical analysis later confirmed to be marijuana and over thirty grams of cocaine.  However, at the time of his arrest and at trial, appellant insisted that the substance was merely flour and drywall.  After appellant=s arrest, officers searched the house where he had been staying, but they found no evidence of cocaine.

Motion to Suppress

In his first point of error, appellant argues that the trial court erred by denying his trial motion to suppress the cocaine recovered from the sock. Appellant alleges that the officers obtained the cocaine in violation of his state and federal rights because (1) they lacked reasonable suspicion and (2) the scope of the search was overly broad. However, appellant has failed to preserve these issues for appeal.

When, as here, there is no pre-trial motion to suppress, an objection must be timely made at the first opportunity in order to preserve error.  Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980); Turner v. State, 642 S.W.2d 216, 217 (Tex. App.CHouston [14th Dist.] 1982, no pet.).  Error is waived when there is no objection regarding the testimony preceding the admission of the objected-to exhibit.  Marini, 593 S.W.2d at 714; Turner, 642 S.W.2d at 217.  At appellant=s trial, defense counsel objected to the admission of the cocaine only after officers Boyle and Davis had testified about the circumstances of appellant=s arrest, including finding a sock filled with cocaine. Both officers also opined that the cocaine was not intended for personal use because it was too large a quantity and was contained in one solid rock as opposed to individual plastic bags. Defense counsel also failed to object before criminologist Kerry Adams identified the substance as cocaine and testified about how much it weighed.  Accordingly, appellant=s objection was untimely and failed to preserve anything for appeal.  See Marini, 593 S.W.2d at 714 (holding that appellant failed to preserve error by objecting to admission of narcotics when there was no objection to the officer=s testimony about finding the contraband); Turner, 642 S.W.2d at 217 (holding that appellant=s objection to five exhibits admitted during detective=s testimony presented nothing for appeal because detective had already testified extensively about the objected-to items).  We overrule appellant=s first point of error.

Jury Instruction

In his second point of error, appellant argues that the trial court erred by denying his request for a jury instruction under article 38.23 of the Texas Code of Criminal Procedure.  An instruction under article 38.23 is appropriate when there are disputed issues of fact affecting the legality of the seizure.  Atkinson v. State, 923 S.W.2d 21, 23 (Tex. Crim. App. 1996). In such a case, the judge must instruct the jury that if it Abelieves, or has a reasonable doubt, that the evidence was obtained in violation of . . . any provisions of the Constitution or laws of the State of Texas, or any provisions of the Constitution or laws of the United States of America, . . . then and in such event, the jury shall disregard any such evidence so obtained.@  Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005); Reynolds v. State, 848 S.W.2d 148, 149 (Tex. Crim. App. 1993).

In appellant=s case, defense counsel requested an instruction under article 38.23 on grounds that a fact dispute existed Awith regard to whether or not the officers had specific articulable facts to justify detention of Mr. Birdwell.@  When prompted by the judge, defense counsel explained that Athere is a fact dispute as to whether or not the car and the license plate played any role in the officers= determination that this was, in fact, the suspect that they were looking for.@  On appeal, however, appellant asserts that fact issues exist regarding: (1) the truthfulness of Officer Boyle and the existence of the narcotic; (2) the credibility and motivation of the informant; (3) whether appellant was inside or outside of the car when the officers approached; and (4) whether appellant was reaching for a weapon.  Appellant cannot raise new grounds for the objection for the first time on appeal.  See Tex. R. App. P. 33.1(a)(1)(A) (stating that objection must state grounds for the desired ruling with sufficient specificity to make trial court aware of the complaint to preserve the issue for appeal); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (stating that appellant=s points of error must correspond to objections made at trial). Because appellant fails to explain how these new grounds pertain to his original objection, we find that appellant has failed to preserve error.  We overrule appellant=s second point of error and affirm his conviction.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed January 24, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).