No. 08-02-00189-CR.
August 7, 2003. DO NOT PUBLISH.
Appeal from 168th District Court of El Paso County, Texas (TC# 20010D03073).
Panel No. 1: LARSEN, McCLURE, and CHEW, JJ.
Ann Crawford McCLURE, Justice.
Russ Rutzen appeals from his conviction for possession with intent to deliver more than four but less than 200 grams of cocaine. Appellant waived his right to a jury trial and entered a negotiated plea of guilty. The trial court assessed his punishment in accordance with the plea bargain at a fine of $1,000 and imprisonment for a term of ten years, probated for ten years. We affirm.
FACTUAL SUMMARY
Jose Hernandez, an El Paso County Deputy Sheriff, was on patrol in the lower-valley area of El Paso when he observed a truck exceeding the posted speed limit of 35 miles per hour. The driver stopped his truck at a red light, then spun his tires in an exhibition of speed when the light turned green. Hernandez turned on his overhead lights and stopped the truck for both traffic offenses. Due to heavy traffic on the street, Hernandez asked the driver, whom he identified as Appellant, to exit the vehicle and step to the side of the street. Hernandez noticed that Appellant appeared much more nervous than would be expected for a traffic stop. Appellant's hands were visibly shaking and he kept looking around. Hernandez then asked Appellant to have a seat in the backseat of the patrol car while he ran a license and warrants check. Appellant gave Hernandez permission to search the truck and he signed a written consent to search form. Hernandez requested assistance from another unit to search the vehicle so he waited until Deputy Quiroz arrived. Quiroz watched Appellant while Hernandez conducted the search. Hernandez found a club in the vehicle and he placed Appellant under arrest for unlawfully carrying a weapon. When Hernandez handcuffed Appellant, he saw a white powdery substance scattered around the backseat of the patrol car where Hernandez had been sitting. Hernandez knew the powdery substance was not in his car prior to Appellant sitting in the backseat because he had inspected his car when he went on duty and no one else had been in the backseat. The substance proved to be cocaine. Appellant filed a "Motion to Suppress the Arrest," alleging he was arrested without a warrant or probable cause. In order to establish standing, Appellant testified at the suppression hearing that he had possessed the cocaine on his person prior to Hernandez finding it in the backseat of the patrol car. Appellant argued "that the stop was bad from the onset" and the State had failed to prove he committed an offense because it did not prove the posted speed limit. He also argued that the State had failed to affirmatively link him to the cocaine found in the backseat. The trial court denied the motion to suppress. LEGALITY OF THE DETENTION
In his sole point of error, Appellant contends that the trial court erred in denying the motion to suppress because the detention exceeded the scope of the traffic stop, and therefore, the consent to search is a product of the unlawful detention. He also argues that the State failed to prove that his detention was based on reasonable suspicion. Appellant did not make any of these arguments in the trial court. To preserve error for review on appeal, a defendant's complaint on appeal must comport with the objection raised at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997). By his written motion to suppress and brief arguments in the trial court, Appellant challenged the lawfulness of his arrest by arguing that it was without a warrant or probable cause. He did not argue that his detention exceeded the scope of the traffic stop or that his consent to search was the product of an unlawful detention. Based on comments made at the suppression hearing, both the State and trial court understood the motion to suppress as aimed at the basis for the traffic stop and not the scope of the detention. Because Appellant's objections made in the trial court do not comport with the argument made on appeal, the issue is not preserved for our review. See Leno v. State, 934 S.W.2d 421, 423 (Tex.App.-Waco 1996), pet. dismissed as improvidently granted, 952 S.W.2d 860 (Tex.Crim.App. 1997) (defendant's arguments on appeal regarding confession were not preserved where they varied from the arguments he made in his motion to suppress); Foster v. State, 874 S.W.2d 286, 289 (Tex.App.-Fort Worth 1994, pet. ref'd)(grounds argued on appeal as to why affidavit and search warrant were defective were waived because they did not comport with arguments made in motion to suppress). We overrule Appellant's sole point of error and affirm the judgment of the trial court.