Nos. 14-02-00266-CR, 14-02-00267-CR 14-02-00268-CR
Opinion filed June 5, 2003. Do Not Publish — Tex.R.App.P. 47.2(b).
On Appeal from 351st District Court, Harris County, Texas, Trial Court Cause Nos. 895544, 854901 854902
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
CORRECTED MEMORANDUM OPINION
CHARLES W. SEYMORE, Justice.
The memorandum opinion previously issued on May 22, 2003 is withdrawn and this corrected memorandum opinion is issued in its place. Appellant, Weylin Spradley, appeals his conviction for possession of a chemical dispensing device, namely an aerosol can containing the pepper spray oleoresincapsicum ("OC"). He also appeals the revocation of his probation for filing a false report and adjudication of a prior offense for impersonating a public servant. In five points of error, he alleges that (1) the inventory search of his car was unconstitutional; (2) the "OC spray" statute is void for vagueness; (3) the evidence was factually insufficient to support conviction for possession of OC spray; (4) the evidence was legally insufficient to revoke probation for filing a false report; and (5) the evidence was legally insufficient to adjudicate his guilt for impersonating a public servant. We affirm.
Facts
Before the events relevant to the instant case, appellant was placed on two years' probation for making a false report and five years' deferred adjudication for impersonating a public servant. Appellant was required, as a condition of his probation in both cases, to surrender all police-related equipment and to refrain from acquiring additional police-related equipment. Officer Todd Janke of the Houston Police Department (HPD) was informed that appellant possessed police-related items. Officer Janke then discovered appellant was not only on probation, but also had three outstanding arrest warrants. Officer Janke decided to arrest appellant following the next visit with his probation officer. After the visit, police watched appellant enter his car, a white Chevrolet Lumina with blue lights mounted on the dash, a protective cage separating the front and back seats, and antennas on the trunk. He arrested appellant for the outstanding warrants and conducted an inventory search of the car. Police found the following items: can of OC spray, asp baton, handcuff case, handgun, Streamlight flashlight, fanny pack used to carry a gun, police scanner radio, two sets of Smith and Wesson handcuffs, police boots, two-way radio, two shoulder microphones, two Riverdale Patrol shoulder patches, stun gun, bullet proof vest, black folder containing a State of Texas Bail Enforcement Agent badge and an identification card in his name. Because the OC spray was of a size and concentration unavailable to the general public, appellant was charged with possession of a prohibited weapon. Additionally, because appellant was in possession of police-related items, the State sought revocation of his probation for filing a false report and adjudication of the impersonating a public servant offense. At trial, HPD Crime Lab chemist James Miller identified the OC spray can bearing the labels "Phase IV Tactical OC Aerosol" and "Law Enforcement Use Only." Officer Tony Lee testified that officers are required to complete training before they can use OC spray and must present some police identification before OC spray can be purchased. He also testified that individuals who are sprayed with OC experience a temporary closure of the eyes, uncontrollable coughing, and "mild" panic. Another witness, Bryan Johnson, testified that he was the manager of a local bonding agency where appellant inquired about bounty hunting. Appellant had represented to him that he was a licensed private investigator. After appellant produced his license, Johnson gave him eight files to handle. The files were found in appellant's car after his arrest. Richard Ross of the Texas Commission of Private Security testified that appellant did not have a private investigator's license. Appellant's grandfather, Marion Roberts, testified that he was the true owner of the white Chevrolet Lumina. He gave appellant permission to drive it. Roberts also claimed ownership of most of the police-related items found in the car. He testified he bought them after appellant was placed on probation. Appellant denied ownership of the police-related items, and he testified that after being placed on probation, he purchased only radios in order to monitor the fire departments. He admitted taking the case files from Johnson, but claimed that he did nothing with them because he could not get a license. Also, he denied showing a license to Johnson, but admitted to fabricating his own bail agency identification card. However, he claimed that he made the identification card prior to commencement of probation. Inventory Search
In appellant's first point of error, he contends the trial court erred in admitting items recovered from the car because the search was unreasonable and not based on probable cause. Specifically, he claims the inventory search was illegal because it was not conducted pursuant to lawful impoundment of the car. However, appellant did not lodge an unlawful impoundment objection before the trial court. Instead, he objected that the State failed to produce the arrest warrants in the trial court, and, without valid warrants, there were no grounds for a warrantless arrest. To preserve error on appeal, the objection at trial must specifically set forth the grounds for the objection. Villareal v. State, 811 S.W.2d 212, 217 (Tex.App.-Houston [14th Dist.] 1991, no pet). Because his complaint on appeal differs from that presented to the trial court, we conclude appellant failed to preserve this issue for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (point of error on appeal must comport with objection made at trial); Taylor v. State, 55 S.W.3d 584, 585 (Tex.Crim.App. 2001) (appellant's trial objection did not comport with issue raised on appeal, thus he did not preserve error), cert. denied, 112 S.Ct. 1123 (2002). Accordingly, we overrule appellant's first point of error. OC Spray Statute
In appellant's second point of error, he contends that section 46.05(a)(8) of the Texas Penal Code, which prohibits possession of a chemical dispensing device, is unconstitutional as applied and void for vagueness. However, to preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint. Tex.R.App.P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex.Crim.App. 2002). Even constitutional complaints may be waived by failure to timely raise an objection in the trial court. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000). Thus, a complaint that a statute is unconstitutional as applied because of vagueness must be raised in the trial court in order to preserve error. See McGowan v. State, 938 S.W.2d 732, 741-42 (Tex.App.-Houston [14th Dist.] 1996), aff'd on other grounds sub nom., Weightman v. State, 975 S.W.2d 621 (Tex.Crim.App. 1998). Appellant failed to raise this issue in the trial court. Accordingly, we overrule appellant's second point of error. Legal and Factual Sufficiency In his remaining three points of error, appellant challenges sufficiency of the evidence supporting his OC spray conviction and for revocation of his probation and deferred adjudication. A. Possession of OC Spray
In issue three, appellant challenges both the legal and factual sufficiency of his conviction for possession of a prohibited weapon, namely OC spray. When reviewing the legal sufficiency of the evidence, we must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In making this determination, we review all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "`whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.'" Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). We will set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, we must defer to the jury's determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells a chemical dispensing device. Tex. Pen. Code Ann. § 46.05(a)(8) (Vernon 2002). A chemical dispensing device is defined as "a device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being." Tex. Pen. Code Ann. § 46.01 (Vernon 2002). A review of the evidence shows that after appellant's arrest, police found in his possession a large can of OC spray containing 10% oleoresincapsicum solution. The device was labeled "Law Enforcement Use Only." HPD Crime Lab chemist James Miller testified that personal use OC spray is one-half the size of the can found in appellant's possession and is labeled either 2% or 3% in concentration. He further testified that the larger cans must be purchased at either a police supply store or over the internet. Officer Tony Lee testified that one would experience uncontrollable coughing and mild panic if sprayed with 10% OC spray. Additionally, in order to buy the 10% OC spray, one must present police identification. Accordingly, we find there is legally sufficient evidence that appellant was in possession of OC spray in violation of section 46.05(a)(8). Appellant further contends the evidence is factually insufficient because the officers who testified at trial did not know possession of 10% OC spray violated the penal code. We find appellant's arguments irrelevant. Moreover, the fact that appellant was allowed to purchase the can at a police supply store without showing identification does not mitigate culpability for possession of the 10% OC spray. The OC spray can was sufficiently labeled to put appellant on notice that it was for police use only. Accordingly, we find the verdict was not against the great weight of the evidence and overrule appellant's third point of error. B. Revocation of Probation
In his fourth issue, appellant contends the evidence was legally insufficient to support the trial court's revocation of his probation for filing a false report. However, our review of probation revocation is limited to whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983). The State must prove by a preponderance of the evidence that class Section 2 appellant violated a condition of probation as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). In its motion to revoke, the State alleged that appellant committed three probation violations: (1) intentionally or knowingly carrying a nightstick; (2) intentionally or knowingly engaging in the business of an investigations company without having a license; and (3) possessing police-related items. In determining sufficiency of the evidence to sustain revocation, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979). Additionally, "one sufficient ground for revocation supports the trial court's order to revoke probation." Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980). Appellant denies possessing a nightstick and engaging in the investigation business, but he does not contest possession of other police-related items. He merely argues that the search of his vehicle was illegal. Accordingly, we find there was at least one sufficient ground for revocation — possession of the police-related items. We overrule appellant's fourth point of error. C. Adjudication of Guilt for Impersonating a Public Servant
In appellant's final point of error, he contends the evidence of probation violations was legally insufficient to permit adjudication of his guilt for impersonating a public servant. However, no appeal may be taken from the trial court's determination to proceed with adjudication of guilt on the original charge. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2002); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Therefore, we have no jurisdiction over appellant's last issue. Accordingly, the judgments of the trial court are affirmed.