Blay Ruffino v. State ( 2008 )

Affirmed and Memorandum Opinion filed July 29, 2008

Affirmed and Memorandum Opinion filed July 29, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-000476-CR

_______________

BLAY RUFFINO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1112972

M E M O R A N D U M   O P I N I O N

A jury found appellant Blay Ruffino guilty of possession with intent to deliver heroin,  and the trial court assessed punishment at thirty years confinement in the Texas Department of Criminal Justice, Institutional Division, and imposed a $10,000 fine.  In two issues, appellant contends the trial court erred in denying his motion to suppress evidence.  We affirm.

I.  Factual and Procedural Background

In April 2007, appellant was indicted for the felony offense of possession with intent to deliver heroin alleged to have occurred on or about January 4, 2007.  Before his trial in May 2007, appellant filed a motion to suppress physical evidence, including the heroin found in his backpack, which had been obtained during a warrantless search of his person.  In this motion, appellant asserted:

the evidence seized and obtained was the result of a warrantless search of the defendant=s person without probable cause in violation of [his] constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution, Art. 1, Section 9, of the Texas Constitution, and Art. 38.23 C.C.P.  Further, said search was not the result of actual consent . . . .

The trial court conducted a hearing on  this motion on May 21, 2007.  The only witness to testify at this hearing was Houston Police Department (AHPD@) Officer Jimmy Cargill. 

Cargill testified that on January 4, 2007, he and other members of a special HPD narcotics squad conducted surveillance on appellant as he was driven from his residence in Houston to another location across town.  After a brief stop at an apartment complex, the vehicle appellant was in drove toward the Montrose Boulevard area.  During the course of the surveillance, Cargill stated that he observed the driver of the vehicle change lanes several times without signaling.  Based on these traffic violations, a marked patrol car was called in to conduct a traffic stop.

According to Cargill, when the vehicle was pulled over, one of the officers approached the driver, while Cargill approached appellant.  Cargill stated  he requested that appellant exit the vehicle; when appellant stepped out of the car, a black backpack that had been resting in appellant=s lap dropped to the street.  Cargill explained that he recovered the backpack and, because of traffic concerns on Montrose Boulevard, the officers moved the Ascene@ of the traffic stop to a nearby gas station.  Cargill transported appellant in the front seat of his vehicle after conducting a Apat-down@ search of appellant and handcuffing him for officer safety.  Cargill emphasized appellant was not under arrest when he transported appellant to the secondary scene at the gas station, although appellant was not free to go and was being Adetained@ for investigative purposes.

As Cargill transported appellant to the gas station, he explained to appellant that he was with the HPD Narcotics Division and that appellant was the target of an ongoing investigation.  Cargill stated he informed appellant that he believed appellant was in possession of heroin.  Cargill testified that appellant denied possessing any heroin and verbally consented to a search of his backpack, in which Cargill discovered a locked metal box.  Cargill admitted that he had neither a search nor arrest warrant prior to searching appellant=s backpack.  Cargill also stated that appellant verbally consented to the search of the locked metal box.  Cargill testified that, prior to unlocking the metal box with the key appellant identified, Cargill obtained written consent to search appellant=s backpack, the metal box, and appellant=s residence.  This consent-to-search form was admitted into evidence during the suppression hearing.  By signing the form, which was witnessed by another officer at the scene, appellant acknowledged that Ano promises, threats, force, physical nor mental coercion of any kind ha[d] been used against [him]@ to get his consent to the search.

Cargill acknowledged that there were approximately six to eight officers at the scene of the initial stop and at the subsequent gas station location, all of whom were carrying handguns.  He also clarified that he never observed appellant violate the law until he discovered the heroin in appellant=s backpack. 

After hearing Cargill=s testimony and considering the evidence and argument, the trial court orally denied appellant=s motion to suppress without making any findings.  A jury subsequently convicted appellant of possession with intent to deliver heroin, and the trial court sentenced appellant to 30 years confinement in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine.  This appeal timely ensued.

II.  Issues Presented

In his first issue, appellant asserts that the trial court erred by denying his motion to suppress the evidence obtained during the search of the backpack and metal box because appellant was illegally detained.  Appellant further argues in his second issue that he did not  consent to the search and therefore the evidence was illegally obtained. The State responds that appellant has failed to preserve these issues for review.  We agree.

III.  Analysis

A.        Preservation of Error

Generally, when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error.  See Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App.1986) (en banc); Mikel v. State, 167 S.W.3d 556, 558 (Tex.App.CHouston [14th Dist.] 2005, no pet.). But when the defendant affirmatively asserts during trial that he has Ano objection@ to the admission of the evidence at issue, he waives any error in its admission, despite the pretrial ruling.  See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992) (en banc); Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988) (en banc); Moraguez, 701 S.W.2d at 904; Mikel, 167 S.W.3d at 558.

Here, appellant initially preserved error through the trial court=s ruling on his pretrial motion to suppress.  But when the State offered into evidence appellant=s backpack and the metal box found in the backpack, appellant=s counsel stated, AYour Honor, as to Exhibit No. 4, which is the black bag, the backpack so to speak, no objection.  To State=s Exhibit No. 5, the black box inside the backpack, no objection.@^[1]  Later, when the State introduced the heroin discovered in the black box, appellant=s counsel likewise stated the defense had no objection:   AYour Honor, as to 10 and 11,[^[2]] I don=t object.  It=s the subject of this case.@^[3]

Because defense counsel expressly stated that the defense had no objection to the admission of the backpack, the metal box, and the heroin, appellant=s complaints about the trial court=s ruling on his motion to suppress were not preserved for our review.^[4]  See Moody, 827 S.W.2d at 889; Dean, 749 S.W.2d at 83; Moraguez, 701 S.W.2d at 904; Mikel, 167 S.W.3d at 558.  Accordingly, we overrule appellant=s first and second issues.

IV.  Conclusion

Having overruled appellant=s two issues for review, we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed July 29, 2008.

Panel consists of Justices Yates, Guzman, and Brown.

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

---

^[1]  Emphasis added.

^[2]  These exhibits consisted of the two packets of black tar heroin discovered in the locked metal box.

^[3]  Emphasis added.

^[4]  Moreover, even if these complaints were preserved, the testimony of the only witness to testify at the suppression hearing  supports the trial court=s denial of the motion to suppress. We ordinarily review a trial court=s ruling on a motion to suppress for abuse of discretion.  Dyar v. State, 125 S.W.3d 460, 462 (Tex.  Crim. App. 2003); see also Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (en banc).  At a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Wiede v. State, 214 S.W.3d 17, 24B25 (Tex. Crim. App. 2007); Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991) (en banc). AVoluntary consent to search is a well‑established exception to the warrant and probable cause requirements of the Fourth Amendment to the United States Constitution.@  Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006).  The validity of a consensual search is a fact issue, and the State must prove by clear and convincing evidence that consent was given voluntarily.  Gutierrez v. State, 221 S.W.3d 680, 686 (Tex. Crim. App. 2007).

As discussed above, Cargill testified that appellant verbally consented to the initial search and subsequently signed a consent to search form.  By signing the form, appellant acknowledged that his consent was voluntary and not obtained through coercion or duress.  Appellant offered no evidence to controvert either Cargill=s testimony or the circumstances surrounding appellant=s signing of the consent form.  Under these circumstances, the trial court did not abuse its discretion in denying appellant=s motion to suppress.