Cleveland Jerod Thomas v. State , 482 S.W.3d 235 ( 2015 )

Opinion filed November 30, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00332-CR
__________
CLEVELAND JEROD THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 39th District Court
Haskell County, Texas
Trial Court Cause No. 6486
OPINION
The jury found Cleveland Jerod Thomas guilty of possession of more than one
gram but less than four grams of cocaine and also found two enhancement
allegations to be “true.” See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D),
481.115(c) (West 2010). The jury assessed punishment at confinement for seventy-
five years. The trial court sentenced Appellant accordingly. Appellant asserts three
issues on appeal, but he does not challenge the sufficiency of the evidence. We
affirm.
I. Evidence at Trial
Because Appellant does not assert a sufficiency challenge to the evidence, we
recite only those facts necessary to address his issues on appeal. Jody Bryson Tullos,
a sergeant with the Texas Department of Public Safety, received information that a
suspect in a pending investigation was driving through Haskell. Shortly thereafter,
Sergeant Tullos observed Appellant driving a vehicle that matched the description
given. Sergeant Tullos drove parallel to Appellant for five to six blocks, during
which time he observed what he believed were one or more traffic violations, which
included extremely dark window tint on the vehicle’s windows. Based on these
violations, Sergeant Tullos stopped Appellant.
During the stop, Sergeant Tullos observed that Appellant kept the left side of
his body hidden and did not look directly at Sergeant Tullos. Sergeant Tullos found
this behavior to be “extremely suspicious.” He went to his patrol car to check
Appellant’s identity and other information and learned that Appellant’s driver’s
license had been suspended in Louisiana.
When Sergeant Tullos returned to Appellant’s vehicle, he walked to the front
of the vehicle to see Appellant’s hidden left side. There, he observed a large
protrusion from Appellant’s left cheek. He asked Appellant what he had in his
mouth, and Appellant replied that he had an abscess. Appellant opened his mouth
slightly in an apparent effort to corroborate his explanation. When he did so,
however, Sergeant Tullos saw a piece of clear plastic draped over the left side of
Appellant’s teeth onto his tongue. Believing that Appellant was hiding narcotics,
Sergeant Tullos requested that Appellant pull his cheek back. Appellant complied,
and a “yellow-ish material inside [a] clear, plastic bag” popped over his teeth.
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Appellant then swallowed the bag despite Sergeant Tullos’s attempt to prevent
Appellant from doing so.
Sergeant Tullos arrested Appellant for tampering with evidence and
transported him to Haskell Memorial Hospital. At the hospital, Appellant refused
treatment, and the doctor on call refused to perform any procedures without his
consent. Consequently, Sergeant Tullos contacted the district attorney’s office to
procure a warrant to search the contents of Appellant’s stomach. Sergeant Tullos
remained at the hospital with Appellant to see if Appellant suffered any ill effects
from ingesting the material and to ensure that Appellant did not die.
Several hours later, Appellant exhibited physical symptoms indicative of a
drug overdose.1 Appellant stated that he had swallowed illegal narcotics and asked
doctors to treat him. With Appellant’s consent, doctors administered a regimen of
charcoal to purge his system and limit his absorption of the narcotic. Appellant then
proceeded to vomit and defecate into containers. A nurse came to the room
periodically and removed approximately five containers of the expelled fluids.
Appellant did not object to the removal of the containers. The nurse then took those
buckets to another room and sifted through their contents in an effort to ascertain the
source of Appellant’s overdose. Through this process, the nurse found a solid mass,
which he gave to a police officer. The police also examined Appellant’s black and
viscous vomit in a search for the clear plastic bag that Appellant apparently had
swallowed while being questioned by Sergeant Tullos. Subsequent analysis of the
substance in the plastic bag revealed that it was cocaine.
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Sergeant Tullos observed that Appellant had “bec[o]me extremely ashy, sweating profusely, . . .
began to tremble, and his eyes appeared fearful.” His heart rate fluctuated between 150 to 160 beats per
minute.
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II. Issues Presented
Appellant asserts in his first issue that the trial court improperly denied his
motion to suppress evidence. Second, Appellant asserts that the trial court erred
when it denied his request for an Article 38.23 jury charge instruction on the
definition of exigent circumstances. See TEX. CODE CRIM. PROC. ANN. art. 38.23
(West 2005). Third, Appellant asserts that the trial court abused its discretion when
it permitted the jury to consider prior felony convictions from Louisiana without
proper verification that they were appropriate for enhancement purposes.
III. Discussion and Analysis
A. Issue One: Denial of Motion to Suppress
Appellant moved to suppress the cocaine because, he alleged, the search of
his expelled bodily fluids was a violation of his Fourth Amendment rights. See U.S.
CONST. amend. IV. The trial court denied this motion, but did not make specific
findings of fact or conclusions of law. Appellant now appeals the trial court’s
decision under two alternate theories. First, Appellant claims that the ultimate
seizure of the cocaine was invalid as it was fruit of an impermissible pretextual stop.
Second, the search of Appellant’s expelled bodily fluids, namely his vomit, was
performed in violation of his Fourth Amendment rights. See id.
1. Pretextual Stop
Appellant argues in his first theory to support his motion to suppress that the
cocaine discovered by Sergeant Tullos was the fruit of a Fourth Amendment
violation because the traffic stop constituted an impermissible pretextual stop.
Appellant moved to suppress the evidence, but the trial court denied the motion. A
motion to suppress is a specialized objection to the admissibility of evidence and,
thus, must be timely and sufficiently specific to inform the trial court of the
complaint. Krause v. State, 243 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d). It is well settled that almost every right, constitutional or otherwise,
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may be waived by the failure to object. Briggs v. State, 789 S.W.2d 918, 924 (Tex.
Crim. App. 1990); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986).
In his pretrial motion to suppress, Appellant broadly sought to suppress all
evidence obtained as a result of a warrantless search conducted without probable
cause or reasonable suspicion of criminal activity. During the hearing, Appellant
exclusively argued that the cocaine seized should be suppressed because the officer
did not obtain a warrant to search Appellant’s expelled bodily fluids. Appellant did
not raise the issue of an impermissible pretextual stop before the trial judge. In
failing to do so, he has waived that complaint for appeal. See Pyles v. State, 755
S.W.2d 98, 116 (Tex. Crim. App. 1988); Cox v. State, 931 S.W.2d 349, 358 (Tex.
App.—Fort Worth 1996), pet. dism’d, improvidently granted, 951 S.W.2d 5 (Tex.
Crim. App. 1997).
2. Search of the Expelled Bodily Fluids
Appellant, under a second theory in support of his motion to suppress,
contends that the trial court abused its discretion when it failed to suppress the
cocaine because Officer Tullos did not obtain a search warrant to search Appellant’s
expelled bodily fluids. A trial court’s ruling on a motion to suppress lies within the
sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.
App. 1996) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).
We review a trial court’s ruling on a motion to suppress under a bifurcated standard
of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We
give great deference to the trial court’s findings of historical facts if the record
supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
Because the trial court is the exclusive factfinder, the appellate court reviews
evidence adduced at the suppression hearing in the light most favorable to the trial
court’s ruling. Carmouche, 10 S.W.3d at 327. We also give deference to the trial
court’s rulings on mixed questions of law and fact when those rulings turn on an
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evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such
rulings do not turn on an evaluation of credibility and demeanor, we review the trial
court’s actions de novo. Id.
The Fourth Amendment protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. CONST. amend. IV. Three elements reviewed under a Fourth Amendment
analysis are (1) was the action a “search” that fell within the protection afforded by
the Fourth Amendment because the person had a legitimate expectation of privacy;
(2) does the person challenging the search have standing; and (3) was a valid warrant,
based upon probable cause, secured by law enforcement for the search, and if not,
was there an applicable exception to the warrant requirement. See Missouri v.
McNeely, 133 S. Ct. 1552, 1558–60 (2013); Hudson v. Palmer, 468 U.S. 517, 525–
26 (1984); Villarreal, 935 S.W.2d at 138. In this case, although not explicitly
outlined by Appellant, his complaints are mainly (1) that the medical treatment by
the doctors was a bodily intrusion search and seizure that required a warrant and
(2) that the subsequent examination of his expelled bodily fluids was an invalid
search and seizure. Thus, our analysis will focus on the validity of any search and
the existence of an exception to the warrant requirement.
For purposes of the Fourth Amendment, a “search” occurs when the
government violates a subjective expectation of privacy that society deems
objectively reasonable. See Kyllo v. United States, 533 U.S. 27, 33 (2001). Whether
a search was reasonable under the Fourth Amendment is a mixed question of law
and fact. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The
burden of establishing a legitimate expectation of privacy is upon an appellant.
Villarreal, 935 S.W.2d at 138. To establish an expectation of privacy, an accused
must show (1) that, by his conduct, he exhibited a genuine intention to preserve
something as private (a subjective expectation of privacy) and (2) that circumstances
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existed under which society was prepared to recognize his subjective expectation as
objectively reasonable. Id. If an appellant fails to establish a reasonable expectation
of privacy, he may not complain of a constitutional violation. Hudson, 468 U.S. at
525–26.
Appellant claims that Sergeant Tullos completed an illegal search of his
bodily fluids as part of a bodily intrusion search and seizure. In Winston v. Lee, the
United States Supreme Court described six factors to be considered when
determining the reasonableness of a bodily intrusion search and seizure. Winston v.
Lee, 470 U.S. 753, 759–61 (1985). These factors include:
1. There must be a probable cause and a search warrant, absent
exigent circumstances;
2. The extent to which the procedure may threaten the safety or
health of the individual;
3. All reasonable medical precautions were taken and no unusual
or untested procedures were employed;
4. The procedure was performed by a physician in a hospital
according to accepted medical practices;
5. The search may be unjustifiable if it endangers the life or
health of the suspect; and
6. The extent of the intrusion upon the individual’s dignitary
interests and personal privacy, and bodily integrity.
Marmolejo v. State, 743 S.W.2d 669, 670 (Tex. App.—El Paso 1987, pet. ref’d)
(citing Winston, 470 U.S. at 759–61). Several Texas appellate courts have applied
the Winston factors to body-search cases. However, with the exception of the Oviedo
v. State decision, the Winston factors have not been applied where a suspect has
willingly consented to medical treatment. Compare, e.g., Hereford v. State, 339
S.W.3d 111, 123–24 (Tex. Crim. App. 2011); State v. Johnston, 336 S.W.3d 649,
660 n.45 (Tex. Crim. App. 2011); Smith v. State, No. 13-11-00694-CR, 2014 WL
7
5901759, at *5 (Tex. App.—Corpus Christi Nov. 13, 2014, pet. granted); Forsyth v.
State, 438 S.W.3d 216, 224 (Tex. App.—Eastland 2014, pet. ref’d); Lewis v. State,
56 S.W.3d 617, 621 (Tex. App.—Texarkana 2001, no pet.); and Marmolejo, 743
S.W.2d at 670, with Oviedo v. State, 767 S.W.2d 214, 217 (Tex App.—Corpus
Christi 1989, no pet.).
Both Appellant and the State refer to Oviedo in their respective briefs. In
Oviedo, the court utilized the six Winston factors to determine the reasonableness of
a bodily intrusion search and seizure. Oviedo, 767 S.W.2d at 217–18. There,
officers transported Oviedo to a hospital for treatment after he swallowed a bag of
cocaine in an effort to avoid arrest. Id. at 215–16. At the hospital, Oviedo displayed
symptoms that he had suffered a drug overdose, and the doctor on call informed him
that he needed treatment. Id. at 216. Oviedo “initially refused treatment, but
changed his mind and allowed [the doctor] to perform all of the procedures.” Id.
Although the facts in Oviedo are similar to Appellant’s case, so are the facts
in Webb v. State. See Webb v. State, 467 S.W.2d 449 (Tex. Crim. App. 1971). In
Webb, the defendant was transported to a hospital after a call alerted authorities that
he had been shot. Id. at 450. Police officers met Webb at the hospital. Id. While
doctors treated Webb, police received information that indicated Webb was involved
in an earlier murder. Id. Consequently, officers placed him under arrest and
stationed an armed guard “in his presence twenty-four hours a day.” Id. When the
doctor ultimately removed the bullet from Webb, he turned it over to police. Id.
There, the court opined that a bodily intrusion analysis was not applicable because:
Appellant has totally failed to show that the surgeons were
conducting an illegal search when they removed the bullet. They were
simply performing a medical operation, for which they had obtained
permission from the appellant. There was no unpermitted invasion of
appellant’s body, such as was prohibited in Rochin v. California, 342
U.S. 165 . . . or even in Apodaca v. State, . . . 146 S.W.2d 381. These
cases involved an unconsented to intrusion into the appellant’s body.
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Although some unpermitted intrusions into the body of the accused may
be admissible into evidence, . . . we need not rule on that issue in the
case at bar.
Id. at 450–51 (emphasis added) (citations omitted). Because Appellant consented to
the medical treatment that resulted in his vomiting and defecation, there was no need
for a warrant, and a Winston analysis is unnecessary. Thus, there was no Fourth
Amendment violation in inducing Appellant to purge the contents of his stomach.
As to the issue of the nurse’s search of his bodily fluids and the search of his
vomit by law enforcement, a review of the record indicates that no evidence
demonstrated that Appellant harbored a “subjective” expectation of privacy in his
expelled bodily fluids. Appellant vomited and defecated into containers as part of a
reaction to medical treatment for a drug overdose. Throughout this process, medical
personnel periodically removed the containers, sifted through their contents in order
to discover the type of drug Appellant had taken, and then disposed of the remainder
of the bodily fluids. The hospital staff worked in accordance with established
hospital procedures. Law enforcement also searched Appellant’s vomit. Appellant
made no effort—explicit or otherwise—to protest the removal of the containers
filled with his bodily fluids and never indicated a desire to deviate from the medical
procedures utilized. Appellant’s conduct did not demonstrate that he held a genuine
intention to preserve the fluids as private property, and he has failed to establish that
he had a legitimate expectation of privacy in his expelled bodily fluids. See
Villarreal, 935 S.W.2d at 138. Consequently, the examination of his expelled bodily
fluids, in the facts presented in this case, was not an impermissible search and
seizure, and his expelled bodily fluids were not encompassed within the protection
of the Fourth Amendment.
In summary, Appellant’s first complaint fails because he consented to the
medical treatment, which obviated the need for a warrant. As for his second
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complaint, the examination of his expelled bodily fluids was not a search within the
Fourth Amendment because Appellant did not demonstrate a legitimate expectation
of privacy in those expelled bodily fluids. Therefore, the trial court did not abuse its
discretion when it refused to suppress the evidence of cocaine. See Hudson, 468
U.S. at 525–26; Villarreal, 935 S.W.2d at 138.
Appellant also relies on the court’s decision in Comeaux to support his
contention that he had a reasonable expectation of privacy in the expelled fluids. We
find that Appellant’s case is distinguishable from the facts in Comeaux. See State v.
Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991) (plurality op.).2 In Comeaux, the
Court of Criminal Appeals held that the defendant had a “subjective” expectation of
privacy that a blood sample given to physicians after an accident would not be used
for a purpose other than that for which it was given. Id. at 51. The Comeaux court
noted that, “in this age of blood testing for everything from HIV infection to drug
use, that a person does not assume that, by giving a sample of blood for private
testing, that blood sample could then be submitted to the State, or to any other person
or entity, for a purpose other than that for which it was given.” Id. at 52. But in
Appellant’s case, he produced his fluids as a part of an overall treatment regimen to
prevent the absorption of cocaine by his body. The fluids were a consequence or
by-product of this treatment. Appellant did not entrust his fluids to doctors but,
instead, relied on the doctors to medically treat him in a way to rapidly remove the
drugs from his body and save his life. Under such circumstances, Appellant did not
submit the fluids for an exceedingly narrow purpose as in Comeaux. However, while
we hold that, in the specific facts of this case, Appellant did not sufficiently
2
Comeaux is a plurality opinion that we address as part of Appellant’s first issue. See Comeaux,
818 S.W.2d 46; see also State v. Hardy, 963 S.W.2d 516, 518–19 (Tex. Crim. App. 1997). We note that,
while the objectively reasonable portion of the Comeaux decision has been questioned, the court’s
subjective-expectation-of-privacy analysis is compelling. See Hardy, 963 S.W.2d at 518–19; Thurman v.
State, 861 S.W.2d 96, 99–100 (Tex. App.—Houston [1st Dist.] 1993, no pet.).
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demonstrate a subjective expectation of privacy in his expelled vomit and fecal
matter, we do not entirely foreclose the possibility that a future set of facts might
support such an expectation. We overrule Appellant’s first issue.
B. Issue Two: Denial of Request for Article 38.23 Jury Charge Instruction
Appellant asserts in his second issue that the trial court erred when it denied
his request for an instruction under Article 38.23 of the Texas Code of Criminal
Procedure. Article 38.23 provides in part:
In any case where the legal evidence raises an issue hereunder,
the jury shall be instructed that if it believes, or has a reasonable doubt,
that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such
evidence so obtained.
CRIM. PROC. art. 38.23(a). During the charge conference, Appellant contended that
the court should issue an instruction on the legality of the search of Appellant’s
expelled bodily fluids and the definition of exigent circumstances. Appellant sought
to have the following instruction included:
An officer is permitted to make a warrantless seizure of items if such
exigent circumstance exist wherein evidence could be destroyed and
the amount of time to obtain a warrant would interfere with the
preservation of such evidence.
....
Exigent circumstances have been variously defined as especially
pressing or urgent law enforcement need and a compelling need for an
official action and no time to secure a warrant. Exigent circumstances,
you are instructed, shall exist if one or more of the following dangers
exist: one, imminent threat to life; two, imminent and serious threat to
property; three, imminent escape of a suspect; four, imminent
destruction of evidence.
The trial court denied the instruction request and gave this instruction on when an
officer has probable cause to stop a vehicle:
[O]ur law permits the stop, arrest, detention, and search of a person by
a peace officer without a warrant only when probable cause exists to
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believe that an offense against the laws of this state or of the United
States have been violated. An officer is permitted to make an arrest of
a motorist if the officer has probable cause to believe the motorist has
committed or is committing an offense.
When we review a claim of jury charge error, we engage in a two-step process.
First, we determine whether error exists, and then we determine whether sufficient
harm resulted from the error to require reversal. Barrios v. State, 283 S.W.3d 348,
350 (Tex. Crim. App. 2009); Olivas v. State, 202 S.W.3d 137, 143 (Tex. Crim. App.
2006); Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). We do not reach
the harm issue, however, unless we first find error in the charge.
When a fact question arises at trial regarding how evidence was obtained,
Article 38.23 requires the trial court to instruct the jury to disregard the evidence if
the jury believes that the evidence was obtained in violation of the Constitution or
laws of the United States or of Texas. See CRIM. PROC. art. 38.23. There are three
requirements that a defendant must meet before he is entitled to the submission of a
jury instruction to disregard evidence: (1) the evidence heard by the jury must raise
an issue of fact; (2) the evidence on that fact must be affirmatively contested; and
(3) that contested factual issue must be material to the lawfulness of the challenged
conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex.
Crim. App. 2007). Accordingly, an Article 38.23 instruction is only required if there
is a factual dispute about how the evidence was obtained. Garza v. State, 126
S.W.3d 79, 85 (Tex. Crim. App. 2004). Further, an Article 38.23 instruction is not
proper for disputes regarding the legal significance of facts. Robinson v. State, 377
S.W.3d 712, 722 (Tex. Crim. App. 2012).
In our examination of the record, we find no factual disputes regarding how
the cocaine was obtained. Both the State and Appellant agree that Sergeant Tullos
arrested Appellant and transported him to Haskell Memorial Hospital. There,
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Appellant initially denied treatment and was kept under observation. Upon showing
signs of a drug overdose, Appellant consented to having his stomach purged of all
contents. Through a search of his expelled bodily fluids, Officer Tullos found
partially digested cocaine. Appellant only disagrees with the trial court’s
determination of the legal significance of the foregoing—namely the legality of the
alleged search. This does not entitle Appellant to an Article 38.23 instruction. See
Robinson, 377 S.W.3d at 722; Brooks v. State, 707 S.W.2d 703, 706 (Tex. App.—
Houston [1st Dist.] 1986, pet. ref’d) (where the essential facts concerning a search
or an arrest are not in dispute, the legality of the search or arrest is a question of law,
not of fact); see also Campbell v. State, 492 S.W.2d 956, 958 (Tex. Crim. App.
1973). We overrule Appellant’s second issue.
C. Issue Three: Use of Louisiana Convictions for Enhancement
Appellant asserts in his third and final issue that the trial court erred when it
allowed the jury to consider, for enhancement purposes, Appellant’s prior felony
convictions from Louisiana. He contends that the State failed to prove that the
Louisiana convictions were not state jail felonies and, thus, that the trial court erred
when it allowed the convictions to be used for the purpose of enhancement. A
conviction in another state can be used to enhance punishment in a felony case if the
crime constituted a felony in Texas. Acosta v. State, 650 S.W.2d 827, 829 (Tex.
Crim. App. 1983). However, a state jail felony may only be used to enhance a state
jail felony. See TEX. PENAL CODE ANN. §§ 12.42(d), 12.425 (West Supp. 2015).
As noted in Cain v. State, the structure of the Louisiana penal system makes
the identification of enhancement-eligible convictions difficult. Compare Cain v.
State, 721 S.W.2d 493, 494 (Tex. App.—Houston [1st Dist.] 1986, no pet.), with
Prado v. State, No. 11-99-00053-CR, 2000 WL 34234883, at *3–4 (Tex. App.—
Eastland Jan. 13, 2000, no pet.) (not designated for publication). In determining
whether foreign convictions were felonies, appellate courts have, at least in part,
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compared the punishment assessed by foreign jurisdictions to that permitted in
Texas. See Tucker v. State, 136 S.W.3d 699, 701 (Tex. App.—Texarkana 2004, no
pet.); Cain, 721 S.W.2d at 494. A state jail felony in Texas is punishable by
confinement for a term not to exceed two years. PENAL § 12.35(a).
The State alleged that Appellant was previously convicted in Louisiana of
distribution of crack cocaine on June 9, 2004, and of possession of cocaine on
November 7, 2007. During the punishment phase, the State offered, and the trial
court admitted, certified judgments of conviction as to each of the enhancement
allegations. State’s Exhibit No. Five shows that Appellant was convicted and
sentenced to serve five years and four years for the possession and distribution
convictions, respectively. These terms both exceed the maximum sentence for a
state jail felony under Texas law. See PENAL § 12.35(a). Furthermore, an
investigator for the district attorney’s office testified that the Louisiana felonies were
analogous to Texas felony offenses that are eligible for use for enhancement
purposes. The trial court did not abuse its discretion when it permitted the jury to
consider Appellant’s prior Louisiana felony convictions. See Tucker, 136 S.W.3d at
701; Cain, 721 S.W.2d at 494. We overrule Appellant’s third and final issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
November 30, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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