Andre Adams v. State ( 2004 )

    NUMBER 13-03-383-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

ANDRE ADAMS,                                                                         Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 262nd District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

            In a single issue, appellant, Andre Adams, challenges the trial court’s denial of his motion to suppress. We affirm.

          As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

          The record contains the trial court’s certification that the case is not a plea-bargain case and the defendant has the right to appeal. See Tex. R. App. P. 25.2(a)(2).  

          Appellant filed a motion to suppress a bottle containing PCP seized from his vehicle shortly after his arrest, arguing it was the product of an illegal search and seizure. The State argues that appellant failed to preserve any error by failing to object to the testimony of two witnesses concerning the bottle. The trial court, after hearing arguments outside the presence of the jury, denied appellant’s motion. After the motion was denied, the officer who conducted the search testified that he seized the bottle from appellant’s car. A police chemist then verified the contents of the bottle as PCP, and it was admitted into evidence. Appellant objected to the admission of the bottle on chain-of-custody grounds, but made no objection on grounds of improper search and seizure.

          To preserve error where a motion to suppress has been denied, there is no requirement that appellant later object at trial to either the admission of the evidence he sought to suppress, or to testimony concerning the evidence. Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Wilson v. State, 857 S.W.2d 90, 93 (Tex. App.–Corpus Christi 1993, pet. ref’d). However, if at the time the evidence is admitted, appellant affirmatively states “no objection,” any previous objection to the admission of the evidence is withdrawn, and any error in its admission is not preserved. See Moody, 827 S.W.2d. at 889.

          Here, the trial court’s denial of appellant’s motion to suppress was sufficient to preserve any error regarding the seizure of the evidence. See id. Appellant was not required to object to the officer’s testimony. See id. Although appellant objected to admission of the evidence on chain-of-custody grounds, he did not affirmatively state “no objection.” See id. Thus, by obtaining a ruling on the motion to suppress, appellant properly preserved for review any error concerning the admission of the seized evidence. Id. We now address the merits of appellant’s arguments.

          Appellant argues that the search of his vehicle was neither a proper search incident to an arrest, nor a proper search incident to a lawful impoundment of a vehicle.

Standard of Review

          When reviewing a ruling on a motion to suppress, we apply a bifurcated standard in which we afford almost total deference to a trial court’s factual determinations, but review de novo how the court applies the law to those facts. Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). If a trial court fails to make explicit findings of fact, we must view the evidence in the light most favorable to the trial court’s ruling and assume the trial court made implicit findings of fact that are supported by the record. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

Search Incident to an Arrest

          In his first subissue, appellant argues that the search of his vehicle was an unlawful search incident to an arrest. Specifically, appellant argues that Officer Palomo’s search of the vehicle was neither sufficient in spatial nor temporal proximity to his arrest.

          When an officer lawfully arrests a vehicle’s occupant or recent occupant, the officer may then perform a search, incident to the arrest, of the vehicle’s passenger compartment. See New York v. Belton, 453 U.S. 454, 460 (1981). Generally, cases employing Belton’s rationale involve arrestees who are inside the vehicle when an officer first detains them. See, e.g., Gary v. State, 647 S.W.2d 646, 647. However, when an arrestee is detained outside of the vehicle, Belton’s rationale still applies if the arrestee is considered a “recent occupant.” See Thornton v. United States, 124 S. Ct. 2127, 2129 (2004); Gauldin v. State, 683 S.W.2d 411, 414 (Tex. Crim. App. 1984), rev. on other grounds, State v. Guzman, 959 S.W.2d 631 (Tex. Crim. App. 1998); State v. Kelly, 963 S.W.2d 866, 869 (Tex. App.–San Antonio 1998, no pet.).

          In determining if a person is considered a “recent occupant” under Belton, we analyze factors such as temporal and spatial proximity to the vehicle. See Gauldin, 683 S.W.2d at 414. Additionally, we examine any evidence of flight or any indication that appellant quickly exited his vehicle in an attempt to avoid contact with the police. Kelly, 963 S.W.2d at 869; Pettigrew v. State, 908 S.W.2d 563, 570 (Tex. App.–Fort Worth 1995, pet. ref'd.).

           The record reflects that appellant attempted to avoid detection by the authorities. See Pettigrew, 908 S.W.2d at 570. Appellant left the scene after crashing his vehicle into a fence. He drove to a nearby apartment complex, where paramedics witnessed him suspiciously fleeing his vehicle. Shortly thereafter, police found appellant hiding nearby. We conclude that appellant was a “recent occupant” such that the rationale of Belton applies, see Gauldin, 683 S.W.3d at 44; see Belton, 453 U.S. at 460, and that the search of appellant’s vehicle, pursuant to his arrest, was lawful. See Belton, 453 U.S. at 460. Viewing the evidence in the light most favorable to the trial court’s ruling, see Balentine, 71 S.W.3d at 768, we hold the trial court did not err in denying appellant’s motion to suppress.
          Appellant relies on Kelly, 963 S.W.2d at 869, which performed a “recent occupant” analysis based upon disputed facts regarding appellant’s temporal and spatial proximity to the vehicle. Id. In Kelly, our sister court affirmed a trial court order suppressing evidence, holding that the trial court correctly found that the arrestee was no longer a recent occupant of the vehicle. Id. at 870. The arrestee had been out of the vehicle for approximately ten to fifteen minutes before his arrest, and had entered his home once or twice. The Kelly court reviewed the “record in the light most favorable to the trial court’s ruling in concert with the recognized justification underlying the warrantless search.” Id. The court reasoned that the arrestee was sufficiently removed from his vehicle in time and space that he was not a “recent occupant.” Id.

          Appellant argues that because there is evidence that he was outside of his vehicle for an amount of time comparable to that in Kelly, he cannot be deemed a “recent occupant” of the vehicle. We disagree.   

          In Kelly, our sister court, as it was required to do, reviewed the evidence in the light most favorable to the trial court’s ruling, see Balentine, 71 S.W.3d at 768, and affirmed the trial court’s order suppressing the evidence. In the instant case, the trial court denied appellant’s motion to suppress. The trial court was best positioned to evaluate the evidence and determine the amount of time that likely elapsed from appellant exiting his car and his arrest. Though appellant did distance himself from the vehicle, the record reflects that he abandoned the car, fled suspiciously, and hid to avoid detection. Viewing the evidence in the light most favorable to the trial court’s ruling, we conclude that the trial court was free to find, based on the evidence, that appellant was the car’s “recent occupant.” Accordingly, we hold that the officer was authorized to perform a search of appellant’s vehicle.

Lawful Impoundment

          In his second subissue, appellant argues that the impoundment of his vehicle was unlawful, and that evidence seized pursuant to the resulting inventory search was therefore improperly admitted into evidence.

          Before an inventory of the contents of a vehicle may be conducted, there must be a lawful impoundment. Mayberry v. State, 830 S.W.2d 176, 179 (Tex. App–Dallas 1992, pet. ref’d.) (citing South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976); Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1980)). For an impoundment to be lawful, the seizure of the vehicle must be reasonable under the Fourth Amendment. Benavides, 600 S.W.2d at 811.

          There are several factors that courts consider in determining the reasonableness of an impoundment: (1) the availability of someone at the scene of the arrest to whom the officers could have given possession of the vehicle; (2) whether the vehicle was impeding the flow of traffic or was a danger to public safety; (3) whether the vehicle was locked; (4) whether the detention of the arrestee would likely be of such duration to require the police to take protective measures; (5) whether there was a reasonable connection between the arrest and the vehicle; and (6) whether the vehicle was used in the commission of a crime. Mayberry, 830 S.W.2d at 180.

          Applying these factors, we conclude that the impoundment of appellant’s vehicle was lawful. The record reflects that there was no one available to whom officers could have given possession of appellant’s vehicle, and that appellant’s detention likely would be of a significant duration. Id. The record also demonstrates that appellant, while under the influence of PCP, crashed his vehicle into a fence. Thus, the vehicle was used in the commission of a crime, and there was a sufficiently reasonable connection between appellant’s arrest and his vehicle. Id. Accordingly, viewing the evidence in the light most favorable to the trial court’s ruling, we conclude that the trial court did not err in finding the impoundment of appellant’s vehicle lawful.

          Appellant’s sole issue is overruled and the judgment of the trial court is affirmed.

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed this the

26th day of August, 2004.