Richard Allan Gard v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00087-CR
RICHARD ALLAN GARD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Richard Allan Gard appeals his conviction for possessing
between four grams and two hundred grams of methamphetamine with intent to
deliver.2 In three points, appellant contends that the trial court erred by denying
his motion to suppress evidence due to allegedly excessive force in his arrest,
1
See Tex. R. App. P. 47.4.
2
See Tex. Health & Safety Code Ann. §§ 481.102(6), .112(a), (d) (West
2010).
that the trial court erred by denying his motion to suppress evidence because the
search of his car was illegal, and that the evidence is insufficient to support his
conviction. We affirm.
Background Facts
In December 2009, Euless Police Department Officer Hung Ho obtained a
search warrant for appellant’s home and car. Several plain clothes officers,
including Officer Ho, were stationed near appellant’s home to wait for his arrival.
The officers saw appellant drive toward his home and then continue past it.
Officer Ho followed appellant in an unmarked police car and witnessed three
traffic violations. Officer Ho then called marked patrol units to the scene to stop
appellant. Appellant stopped his car, and Officer Ho approached him,
commanding him to get out of the car. Because appellant did not immediately do
so, Officer Ho pulled him from the car, put him on the ground on his stomach,
and placed him in handcuffs. According to Officer Ho’s testimony at trial, when
officers rolled appellant onto his back, they found, where appellant’s stomach
had been, two baggies containing methamphetamine and three empty plastic
baggies. Officer Ho testified that these items were not on the street before he
put appellant on the ground.
The police searched appellant, finding a cell phone and $590. The police
also searched appellant’s car and found another plastic bag containing
methamphetamine, a digital scale, and “some other various pills.” The police
2
later searched appellant’s home and found three more bags of
methamphetamine.
A Tarrant County grand jury indicted appellant for possessing more than
four grams but less than two hundred grams of methamphetamine with intent to
deliver. Appellant pled not guilty. Before trial, appellant filed a motion to
suppress evidence concerning items “seized from his person, the ground around
him, and the motor vehicle . . . as such was obtained as a result of an illegal
search . . . in violation of his rights.”3 Under a broad construction of the motion to
suppress, appellant argued, among other assertions, that the search of his car
was made without a warrant or another ground supporting the search. The trial
court denied appellant’s motion. After receiving evidence and arguments from
the parties, the jury found appellant guilty. The trial court sentenced appellant to
thirty years’ confinement. Appellant brought this appeal.
Preservation of Error
In his first point, appellant argues that the trial court erred by denying his
motion to suppress because the police used excessive force while arresting him.
The State contends that appellant forfeited his complaint about excessive force.
We agree with the State.
3
In the motion, appellant relied on federal and state law but did not contend
that state law gave him greater rights than the federal constitutional provisions
that he cited. Similarly, on appeal, although appellant cites federal and state
provisions, he does not argue that we should analyze them distinctly.
3
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687,
691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A
reviewing court should not address the merits of an issue that has not been
preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.
2010) (op. on reh’g).
All a party has to do to avoid the forfeiture of a complaint on appeal is to let
the trial judge know what he wants, why he thinks himself entitled to it, and to do
so clearly enough for the judge to understand him at a time when the trial court is
in a proper position to do something about it. Lankston v. State, 827 S.W.2d
907, 909 (Tex. Crim. App. 1992); see Clark v. State, 365 S.W.3d 333, 339 (Tex.
Crim. App. 2012). The objections made at trial, however, must comport with the
error raised on appeal. See Clark, 365 S.W.3d at 339; Camacho v. State, 864
S.W.2d 524, 533 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994);
Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
Appellant argues in his first point that evidence should have been
suppressed because the police used excessive force. However, appellant did
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not urge this basis for excluding evidence in his written motion to suppress or in
the hearing on that motion. Instead, in his written motion (as broadly construed),
appellant contended that evidence should have been excluded because the
police either illegally stopped his car or illegally searched his car. At the
beginning of the hearing on appellant’s motion, appellant’s counsel conceded
that the basis of the motion to suppress was that there was no justification for the
police’s stopping appellant’s car. Appellant’s counsel questioned Officer Ho
about the amount of force used, but appellant never asserted excessive force as
a ground for suppression and never connected this line of questioning to illegally
obtained evidence.
As appellant never claimed in the trial court that evidence should have
been excluded on the ground that the police used excessive force, he has
forfeited that point on appeal. See Clark, 365 S.W.3d at 339 (explaining that “if a
party fails to properly object to constitutional errors at trial, these errors can be
forfeited”); Camacho, 864 S.W.2d at 533; Rezac, 782 S.W.2d at 870; Hargrove v.
State, 162 S.W.3d 313, 324 (Tex. App.—Fort Worth 2005, pet. ref’d). We
overrule appellant’s first point.
The Search of Appellant’s Car
In his second point, appellant contends that the trial court erred by denying
his motion to suppress evidence found in his car. Appellant argues that the
search of his car was unauthorized in connection with his arrest under Arizona v.
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Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723–24 (2009). In fact, in the
argument portion of his second point, appellant relies only on Gant.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006).
When reviewing the trial court’s ruling on a motion to suppress, we must
view the evidence in the light most favorable to the trial court’s ruling. Wiede,
214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
When the trial court makes explicit fact findings, we determine whether the
evidence, when viewed in the light most favorable to the trial court’s ruling,
supports those fact findings. Kelly, 204 S.W.3d at 818–19. We then review the
trial court’s legal ruling de novo unless its explicit fact findings that are supported
by the record are also dispositive of the legal ruling. Id. at 818. We must uphold
the trial court’s ruling if it is supported by the record and correct under any theory
6
of law applicable to the case even if the trial court gave the wrong reason for its
ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,
541 U.S. 974 (2004).
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at
24. To suppress evidence because of an alleged Fourth Amendment violation,
the defendant bears the initial burden of producing evidence that rebuts the
presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young
v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015
(2009). A defendant satisfies this burden by showing that a search and seizure
occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant
makes this showing, the burden of proof shifts to the State, which is then
required to establish that the search or seizure was conducted pursuant to a
warrant or was otherwise reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d
899, 902 (Tex. Crim. App. 2005).
Appellant failed to meet his initial burden of rebutting the presumption of
proper police conduct because he did not present evidence that the search of his
car occurred without a warrant. See Amador, 221 S.W.3d at 672; State v.
Woodard, 314 S.W.3d 86, 96 (Tex. App.—Fort Worth 2010) (stating that “a
defendant must establish that (1) a search or seizure occurred (2) without a
warrant”), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011). In fact, appellant
7
established that there was a warrant by attaching a copy of it to his motion to
suppress. The warrant, containing a signature from a magistrate and bearing the
date of December 16, 2009, stated in part,
Warrant to Search a particular place for a particular controlled
substance, namely METHAMPHETAMINE, and seize evidence . . .
relating to the . . . distribution of METHAMPHETAMINE . . . .
....
Now therefore, you are commanded to enter the . . . vehicles
described as:
....
. . . TAN 1999 CHEVROLET BLAZER BEARING TEXAS LP
992-TKN[.]
During the suppression hearing, Officer Ho testified about an event that
occurred on December 17, 2009 (the date of appellant’s arrest). He explained
that he had obtained a warrant the previous day to search a residence and to
search “a 1999 tan Chevrolet Blazer,” at which time the following exchange
occurred between appellant’s counsel and the trial court:
[DEFENSE COUNSEL]: Objection, Your Honor, to, one, the
witness reading from a document not in evidence, and we contest
that there is a valid search or arrest warrant in this case, Your
Honor, until it is produced in court.
THE COURT: Okay. I didn’t hear anything about a warrant.
Officer Ho then made several more references to the warrant without an
objection from appellant. For example, when appellant’s counsel asked Officer
Ho whether the police’s search of appellant’s car was conducted incident to
8
appellant’s arrest, Officer Ho testified, without objection, that the search occurred
“[i]ncident to arrest and also it was included in [the] search warrant.”
Appellant argues in his brief that the “search warrant was never introduced
into the Motion to Suppress hearing and therefore . . . there [were] no grounds for
searching the Blazer.” It is true that the State did not present the warrant during
the suppression hearing. The court of criminal appeals has held that when “a
defendant objects to the [trial] court admitting evidence on the ground that it was
unlawfully seized and the State relies on a search warrant, in the absence of a
waiver, reversible error will result unless the record reflects that the warrant was
exhibited to the trial judge.” Handy v. State, 189 S.W.3d 296, 298 (Tex. Crim.
App. 2006) (citing Cannady v. State, 582 S.W.2d 467, 469 (Tex. Crim. App.
[Panel Op.] 1979)). In this case, we can infer that the warrant was “exhibited to
the trial judge” because it was filed with the trial court through its attachment to
appellant’s motion to suppress,4 the court held a hearing on that motion, and in
the court’s findings of facts, the court stated that a search warrant dated
December 16, 2009 “authorized the search of a 1999 tan Chevrolet Blazer.”
4
A trial court may determine the merits of a motion to suppress on the
contents of the motion itself. See Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6)
(West 2006); see also Rodriguez v. State, 844 S.W.2d 744, 745 (Tex. Crim. App.
1992) (indicating that courts of appeals should consider written motions to
suppress and attachments to such motions in reviewing trial courts’ rulings on the
motions). The warrant that appellant attached to his motion belies his statements
in the trial court that a warrant did not exist.
9
Furthermore, even if the warrant had not been exhibited to the trial judge,
the court of criminal appeals has stated that “when the existence of the warrant is
recognized in a motion to suppress and there is uncontradicted testimony that a
warrant existed, . . . it is not necessary for the record to show that the warrant
was exhibited to the court.” Ortega v. State, 464 S.W.2d 876, 878 (Tex. Crim.
App. 1971); see also Bogany v. State, Nos. 14-10-00138-CR, 14-10-00139-CR,
14-10-00140-CR, 14-10-00141-CR, 14-10-00142-CR, 14-10-00143-CR, 14-10-
00145-CR, 14-10-00146-CR, 2011 WL 704359, at *1 (Tex. App.—Houston [14th
Dist.] Mar. 1, 2011, pet. ref’d) (mem. op., not designated for publication) (citing
Ortega for the same proposition). The rule in Ortega applies to the facts recited
above; appellant recognized the existence of a warrant by attaching it to his
motion to suppress, and Officer Ho testified, without contradiction (because he
was the only witness at the suppression hearing), that the warrant existed and
authorized the search of appellant’s car.
Thus, we disagree with appellant that the officers’ “only justification for the
search of the Blazer was [his] arrest.” Instead, we conclude that the trial court
did not err by expressly finding that a warrant authorized the police’s search of
appellant’s car. It is therefore immaterial whether any alternative grounds existed
for a warrantless search under the search-incident-to-arrest exception (under
Gant) or another exception to the warrant requirement, and we decline to
address that issue. See Tex. R. App. P. 47.1; State v. Holcombe, 145 S.W.3d
10
246, 255 (Tex. App.—Fort Worth 2004), aff’d, 187 S.W.3d 496 (Tex. Crim. App.),
cert. denied, 549 U.S. 824 (2006).
Because appellant filed a copy of the warrant that particularly authorized
the search of his car and did not produce evidence that the search occurred
without a warrant, we conclude that he failed to satisfy his initial burden of proof
that the search occurred without a warrant, and we hold that the trial court did not
err by overruling his motion to suppress to the extent that it challenged the
legality of that search. See Robinson, 334 S.W.3d at 778–79; Amador, 221
S.W.3d at 672; Romo v. State, 315 S.W.3d 565, 572 (Tex. App.—Fort Worth
2010, pet. ref’d). We overrule appellant’s second point.
Evidentiary Sufficiency
In his third point, appellant argues that the evidence is insufficient to
support his conviction. In our due-process review of the sufficiency of the
evidence to support a conviction, we view all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
11
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.
State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009). Thus, when performing an evidentiary sufficiency review, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). Instead, we Adetermine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.@ Hooper v. State, 214
S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
Intent to deliver may be established through circumstantial evidence. See
Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.—Fort Worth 2004, no pet.).
Furthermore, “intent to deliver is a question of fact for the jury to resolve, and it
may be inferred from the acts, words, or conduct of the accused.” Taylor v.
State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). Testimony by
experienced law enforcement officers may be used to establish a defendant’s
intent to deliver. Robinson v. State, 174 S.W.3d 320, 331 (Tex. App.—Houston
[1st Dist.] 2005, pet. ref’d). We may consider several factors in determining such
intent, including the nature of the location where the defendant was arrested, the
quantity of drugs the defendant possessed, the manner of packaging the drugs,
the presence or absence of drug paraphernalia (for use or sale), whether the
defendant possessed a large amount of cash in addition to the drugs, and the
12
defendant’s status as a drug user. Jones v. State, 195 S.W.3d 279, 288 (Tex.
App.—Fort Worth 2006) (op. on reh’g), aff’d, 235 S.W.3d 783 (Tex. Crim. App.
2007); Jordan, 139 S.W.3d at 726. “The number of factors present is not as
important as the logical force the factors have in establishing the elements of the
offense.” Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston [14th
Dist.] 2006, pet. ref’d) (op. on reh’g).
Appellant contends that the amount of methamphetamine recovered by the
police is inconsistent with intent to deliver. Appellant possessed more than five
grams of methamphetamine when the police arrested him.5 Officer Ho testified
that five grams of methamphetamine is a significant amount, is worth at least
$500, and, as such, is more consistent with dealing than using.
Furthermore, Officer Ho testified that other items that the police recovered
from appellant are consistent with drug dealing. The methamphetamine
recovered from appellant was found in small plastic baggies along with other
empty plastic baggies. Officer Ho explained that small plastic baggies are
commonly used by people who are dealing drugs and that drug users do not
typically keep their drugs in multiple baggies. See Rhodes v. State, 913 S.W.2d
242, 246, 250–51 (Tex. App.—Fort Worth 1995) (relying on an officer’s testimony
that packaging drugs in multiple small baggies was inconsistent with personal
drug use), aff’d, 945 S.W.2d 115 (Tex. Crim. App.), cert. denied, 522 U.S. 894
5
The State called a forensic chemist to confirm that the substances that
appellant possessed were methamphetamine.
13
(1997). Officer Ho also testified that a digital scale was recovered from
appellant’s car and that drug dealers normally use digital scales to weigh their
drugs before selling them. Next, Officer Ho testified that appellant was arrested
carrying $590, an amount consistent with drug dealing.6 See Elder v. State, 100
S.W.3d 32, 34 (Tex. App.—Eastland 2002, pet. ref’d) (considering the
defendant’s possession of $596 as a fact supporting the jury’s determination that
the defendant intended to deliver cocaine). Finally, Officer Ho testified that he
recovered two cell phones from appellant and that drug dealers typically use one
phone for personal use and one phone for use in dealing drugs.
Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude that a rational factfinder could have found beyond a reasonable doubt
that appellant intended to deliver methamphetamine. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
Along with challenging the sufficiency of the evidence to prove his intent to
deliver, appellant contends that the evidence was insufficient to show that he
possessed the methamphetamine that the police found on the ground close to
him. However, Officer Ho testified that the drugs he found under appellant’s
6
Appellant called a former employer who testified that he had paid
appellant with cash in December 2009. This evidence could have raised a
conflicting inference about the source of the $590 that appellant possessed upon
his arrest. But in our evidentiary sufficiency review, we must presume that the
factfinder resolved any conflicting inferences in favor of the verdict and defer to
that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330
S.W.3d at 638.
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stomach were not on the street before he placed appellant on the ground. Also,
the jury could have rationally considered that the items found in appellant’s car
(digital scales, more methamphetamine, and cell phones) comprised
circumstantial evidence that the drugs found nearby appellant belonged to him.
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that a rational factfinder could have found beyond a reasonable doubt that
appellant possessed the methamphetamine that officers found near his body.
We conclude that the evidence is sufficient to support appellant’s
conviction. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d
at 638. We overrule appellant’s third point.
Conclusion
Having overruled each of appellant’s points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 30, 2012
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