Opinion
NO. 03-16-00304-CRNO. 03-16-00305-CR
03-28-2018
Rochelle Lee Ricks, Appellant v. The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY
NOS. 2015CR0435 & 2015CR0437, HONORABLE RANDAL C. GRAY, JUDGE PRESIDINGMEMORANDUM OPINION
A jury convicted Rochelle Lee Ricks of possession of marihuana and unlawfully carrying a weapon, assessing punishment at 180 days in jail for the marihuana-possession charge, probated for 24 months, and 90 days in jail for the weapon charge. See Tex. Health & Safety Code § 481.121; Tex. Penal Code § 46.02. The trial court rendered judgments of conviction consistent with the jury's verdicts.
On appeal, Ricks challenges the trial court's denial of her motion to suppress evidence gathered after a traffic stop and a search and the court's denial of her requested jury instruction on illegal seizure of evidence under Article 38.23(a) of the Texas Code of Criminal Procedure. We will affirm the trial court's judgments of conviction.
No preserved error on motion to suppress
Ricks's pretrial motion sought to suppress evidence of marihuana and a gun that she claimed were the products of an illegal detention and search. Ricks did not bring forward a record showing that she obtained a ruling on the pretrial motion, but rather the record reflects that her counsel sought to carry the motion through the trial:
[Defense counsel]: I also have a Motion to Suppress on file which I informed the Court at announcement it would just run with trial. So, at some point, of course, as the evidence develops after the jury has already heard the testimony I would be asking the Court to grant my motion. I'm going to be objecting to the testimony as it comes in expecting to be overruled. After that—after the testimony has been presented, I'm going to re-urge my motion and ask the Court to then grant my motion, basically instruct the jury to disregard what they have heard. So, I guess, I'm conceding that this issue can come up at that point anyway.
THE COURT: Anything else to take up?
Appellant has the burden of bringing forward a record on appeal sufficient to show that the trial court erred in its ruling on a motion to suppress. Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007). Although the parties do not address the error-preservation issue on the motion to suppress, preservation of error is a systemic requirement that should be reviewed by courts of appeals regardless of whether the issue is raised by the parties. Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). If an issue has not been preserved for appeal, reviewing courts should not address the merits of that issue. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2010). Generally, if a court overrules a pretrial motion to suppress evidence, the defendant need not subsequently object to the admission of the same evidence at trial to preserve error. Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004). But in the absence of a pretrial ruling, a defendant must object and obtain a ruling at the earliest opportunity to preserve error on a motion to suppress evidence. Id. A defendant who affirmatively states, "No objection," when evidence is offered at trial waives his complaint that the evidence was, as a matter of law, illegally obtained. Holmes v. State, 248 S.W.3d 194, 196 (Tex. Crim. App. 2008).
Here, the officer who arrested Ricks testified during trial without objection about finding marihuana in a plastic container inside the pocket of a purse belonging to Ricks, and the jury watched a video of the incident. Ricks's counsel objected to evidence of the marihuana when it was offered, but only after the officer's testimony. See Thomas v. State, 884 S.W.2d 215, 216-17 (Tex. App.—El Paso 1994, pet. ref'd) (concluding that appellant waived error by failing to obtain pretrial hearing or ruling on his motion to suppress evidence, carrying motion to trial, and allowing police to testify without objection about facts of case, search, and discovery of syringe with cocaine residue). Further, when the video and the gun were offered into evidence, Ricks's counsel affirmatively stated that he had "no objection" to their admission and "no objection" to publication of the video to the jury.
On the record before us, we conclude that the objection to the evidence of the marihuana failed to preserve error because the objection was untimely, and the statement of "no objection" to the gun waived any complaint that it was, as a matter of law, illegally obtained. See Holmes, 248 S.W.3d at 196; Garza, 126 S.W.3d at 84; Thomas, 884 S.W.2d at 216-17. Accordingly, Ricks presents nothing for appellate review as to the admission of that evidence. We overrule Ricks's first issue.
No error in denial of Article 38.23(a) instruction
In her second issue, Ricks challenges the trial court's denial of her requested jury instruction on illegal seizure of evidence under the exclusionary rule in Article 38.23(a) of the Texas Code of Criminal Procedure. Ricks requested the instruction only as to her possession-of-marihuana charge.
Under Article 38.23(a), "[n]o evidence obtained by an officer . . . in violation of any provisions of the Constitution or laws . . . shall be admitted in evidence against the accused" at trial. Tex. Code Crim. Proc. art. 38.23(a); Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). If evidence presented to the jury raises a question of whether the fruits of a police-initiated search or arrest were illegally obtained, "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." Robinson, 377 S.W.3d at 719. To be entitled to an Article 38.23(a) instruction, the defendant must show that: (1) an issue of historical fact was raised in front of the jury; (2) the fact was contested by affirmative evidence at trial; and (3) the fact is material to the constitutional or statutory violation that the defendant has identified as rendering the particular evidence inadmissible. Id. When a disputed, material issue of fact is successfully raised as to how the evidence was obtained, the terms of the statute are mandatory, and the jury must be instructed accordingly. Id. However, where the issue raised by the evidence at trial does not involve controverted historical facts, but only the proper application of the law to undisputed facts, that issue is properly left to the determination of the trial court. Id.
Here, the facts concerning the officer's search were not contested, and there was no fact issue as to how the evidence was obtained. See id. Nevertheless, Ricks contends that the instruction should have been given to allow the jury to determine "whether Appellant's continued detention by the officer constituted an unreasonable delay and the [marihuana] evidence subsequently seized was illegally seized." That was merely a question about the proper application of the law to the undisputed facts in evidence, which was properly left to the determination of the trial court. See id.; Madden v. State, 242 S.W.3d 504, 513, 518 (Tex. Crim. App. 2007) (concluding that appellant was not entitled to Article 38.23(a) instruction and noting that jury cannot make legal determination of whether certain facts do or do not constitute reasonable suspicion to detain defendant). Because Ricks failed to show her entitlement to an Article 38.23(a) instruction, the trial court did not err in refusing her request for it. See Robinson, 377 S.W.3d at 719; Madden, 242 S.W.3d at 518. We overrule Ricks's second issue.
We affirm the trial court's judgments of conviction.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Field and Bourland Affirmed Filed: March 28, 2018 Do Not Publish