Opinion
No. 10-06-00007-CR.
Opinion delivered and filed January 10, 2007. Do Not Publish.
Appeal from the 82nd District Court, Falls County, Texas, Trial Court No. 8021.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
(Justice VANCE concurs in the judgment with a note).
"(Note by Justice Vance: I would overrule Brooks' issue, rather than finding it not preserved. The record reflects that the judge and the parties understood the arguments being advanced concerning suppression of the evidence.)"
MEMORANDUM OPINION
Brooks appeals his conviction for first-degree-felony possession of cocaine with intent to deliver. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a), (d) (Vernon 2003); see also id. § 481.102(3)(D) (Vernon Supp. 2006). We affirm. In Brooks's one issue, he contends that the trial court erred in overruling Brooks's motion to suppress evidence. Brooks argues that his arrest was illegal under Texas Code of Criminal Procedure Chapter 14, governing warrantless arrests. See TEX. CODE CRIM. PROC. ANN. arts. 14.01-14.06 (Vernon 2005 Supp. 2006). "As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court. . . ." TEX. R. APP. P. 33.1(a); see Buchanan v. State, No. PD-0006-06, 2006 Tex. Crim. App. LEXIS 2032, at *6-*7 (Tex.Crim.App. Oct. 18, 2006). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Neal v. State, 150 S.W.3d 169, 175 (Tex.Crim.App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004)) (ellipsis in Neal); see Marin v. State, 851 S.W.2d 275, 278-80 (Tex.Crim.App. 1993). ". . . Texas Rule of Appellate Procedure 33.1 [is a] `judge-protecting' rule of error preservation." Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005) (quoting Martinez v. State, 91 S.W.3d 331, 335 (Tex.Crim.App. 2002)). "Whichever party complains on appeal about the trial judge's action must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the . . . rule in question and its precise and proper application to the evidence in question." Reyna at 177. "When the objection is not specific, and the legal basis is not obvious, it does not serve the purpose of the contemporaneous-objection rule for an appellate court to reach the merits of a forfeitable issue that is essentially raised for the first time on appeal." Buchanan at *6-*7. Moreover, in order to preserve the complaint, "the point of error on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). "[A] pretrial motion to suppress based upon constitutional principles" does not suffice "also to preserve error under Chapter 14 of the Texas Code of Criminal Procedure." Buchanan at *1. Brooks's motion to suppress evidence argued only under the United States and Texas Constitutions and Texas Code of Criminal Procedure Articles 38.22 and 38.23. See U.S. CONST. arts. IV-VI, XIV; TEX. CONST. art. I, §§ 9-10, 19; TEX. CODE CRIM. PROC. ANN. arts. 38.22-38.23 (Vernon 2005). On appeal, Brooks cites the Fourth Amendment only for the proposition, "Generally, a warrantless arrest is, pursuant to the Fourth Amendment, unreasonable per se unless the arrest fits into one of a `few specifically defined and well delineated exceptions.'" (Br. at 7 (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993).) The exception to which Brooks points is probable cause. Brooks concedes, however, that he is "foreclosed to argue that there is no probable cause as to" himself. (Br. at 8 n. 13 (citing Dixon v. State, [No. PD-1592-05, 2006 Tex. Crim. App. LEXIS 1006] (Tex.Crim.App. May 24, 2006)).) On appeal, Brooks otherwise argues only under Code of Criminal Procedure Chapter 14. Texas statutory law embodied in Chapter 14 establishes requirements distinct from those imposed by the United States and Texas Constitutions. See Dyar v. State, 125 S.W.3d 460, 463 (Tex.Crim.App. 2003); see also Buchanan, 2006 Tex. Crim. App. LEXIS 2032, at *8. To the extent that Brooks's Chapter 14 argument on appeal does not comport with his constitutional and statutory complaints at trial, Brooks fails to preserve his issue. We overrule Brooks's issue. Having overruled Brooks's sole issue, we affirm. Affirmed