Opinion
NO. 12-17-00103-CR
06-06-2018
MARK WILSON KUTCH, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE COUNTY COURT AT LAW NO. 1 JOHNSON COUNTY , TEXAS
MEMORANDUM OPINION
Mark Wilson Kutch appeals his conviction for driving while intoxicated. In five issues, he argues the trial court erred in admitting his blood alcohol results and his statements to the arresting officer into evidence at trial. We affirm.
BACKGROUND
Appellant was charged by information with driving while intoxicated. He pleaded "not guilty" and the case proceeded to a jury trial. Prior to opening statements and outside the presence of the jury, Appellant made an oral motion to suppress the blood alcohol results. The State offered a copy of the search warrant affidavit into evidence, without objection. Appellant argued to the trial court that the results should be suppressed because the affidavit did not contain probable cause for the issuance of the warrant. The trial court denied the motion to suppress and allowed the State to admit the blood test results into evidence.
During trial, the State called Officer Shelly Henken who testified that she stopped Appellant for a traffic violation. Officer Henken testified that when she activated her overhead lights, Appellant continued driving for two hundred yards, which caused her to activate her siren to alert Appellant to pull over. Officer Henken testified that she made contact with Appellant and identified him by his driver's license. Prior to the State eliciting testimony about Appellant's statements to Officer Henken, Appellant objected to their admission on grounds that they were obtained in violation of Article 38.22 of the Texas Code of Criminal Procedure, Article 1, section 10 of the Texas Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution. The trial court overruled the objection. Officer Henken testified that Appellant initially said he saw her overhead lights flashing, but later stated he did not see the lights flashing. Officer Henken further testified that she asked Appellant if he had anything to drink, and he said nothing. Officer Henken testified that Appellant's speech was slow, slurred, and thick tongued.
The jury subsequently found Appellant guilty of driving while intoxicated. The trial court sentenced Appellant to two years of community supervision with terms and conditions. This appeal followed.
ERROR PRESERVATION
In Appellant's first two issues, he contends that the trial court erred in denying his motion to suppress his blood test results in violation of his rights pursuant to the United States and Texas Constitutions. He argues, as he did in the trial court, that the search warrant affidavit does not contain probable cause because the "affidavit shows that the affiant has reason to believe certain facts but never came to believe those facts." However, he also argues, for the first time on appeal, that there is "no grant of a search warrant 'supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'" We will first address whether Appellant preserved his complaint that there was "no grant of a search warrant."
Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion. Mays v. State , 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). To preserve a complaint for appellate review, the record must show that the complaining party made a timely and specific request, objection, or motion stating the specific grounds for the ruling desired. TEX. R. APP. P. 33.1(a)(1); Garza v. State , 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule and the complaining party must have objected to the refusal. TEX. R. APP. P. 33.1(a)(2); Garza , 126 S.W.3d at 81-82. There are two main purposes behind requiring a timely and specific objection: (1) to inform the trial court of the basis of the objection and give the trial court the chance to make a ruling on the objection, and (2) to give opposing counsel the opportunity to respond to the complaint. Resendez v. State , 306 S.W.3d 308, 312 (Tex. Crim. App. 2009); Garza , 126 S.W.3d at 82. To preserve error, a party "must be specific enough as to 'let the trial [court] know what he wants, why he thinks himself entitled to it, and do so clearly enough for the [court] to understand him at a time when the trial court is in the proper position to do something about it.'" Resendez , 306 S.W.3d at 312-13 (quoting Lankston v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). An appellate court will not consider errors, even of constitutional magnitude, that were not called to the trial court's attention. Broxton v. State , 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Rothstein v. State , 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008, pet ref'd). Further, a party fails to preserve error when the contention urged on appeal does not comport with the specific complaint made in the trial court. See Lovill v . State , 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Rothstein , 267 S.W.3d at 373.
Moreover, we consider the context of the complaint in determining if the party preserved error. Resendez , 306 S.W.3d at 313. If the correct ground for exclusion was obvious to the trial court and opposing counsel, a general or imprecise objection will not result in waiver. Zillender v. State , 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). However, if the context shows that the party failed to effectively communicate his argument, the error will be considered waived on appeal. Lankston , 827 S.W.2d at 909.
In this case, Appellant made an oral motion to suppress prior to trial. The following discussion took place outside the presence of the jury, prior to opening statements:
The Court: Okay. We do - ya'll informed me that we do have an issue of a warrant. I don't think that will take long, will it?
Defense Counsel: No.
State: No, sir.
The Court: Okay. Can we go ahead and take that up right now?
State: Yes, sir.
Defense Counsel: I have no problem.
The Court: Okay. Why don't you hand the warrant to the Court Reporter so she can mark if for the purposes of the record.
State: Judge, the State would offer State's 1 for purposes of the motion.
The Court: Okay.
Defense Counsel: We have no objections.During the State's presentation of evidence, Appellant objected to the admission of his blood test results on grounds that the State did not properly authenticate the evidence and "for the reasons previously stated regarding the warrant."
The Court: For record only?
State: Yes, sir.
The Court: Okay. And you - Mr. Burns, you may present your argument.
Defense Counsel: Your Honor, on the - search warrant was issued after the affidavit was supposedly put before them. And on the second page, as you'll see, the officer/affiant in the affidavit for search warrant talks about what he has reason to believe but he never says in there that he believes all those things; and therefore, you know, there's nothing to base the - the search warrant on. Its' not a sworn affidavit. It's just he has a reason to do something but he hasn't - doesn't say he did.
The Court: Okay. Response?
State: Judge, what's required for a warrant is [an] affidavit made by a sworn affiant with knowledge, that presents within the four corners of the affidavit probable cause for the issuance of the warrant. I think it's just a semantical argument at this point whether she sees -- says she has good reason to believe, or reason to believe, or "I believe", or "I have no doubt". It's just a question of the wording, all of which doesn't really matter when it's a sworn affiant and there's sufficient facts for probable cause within the four corners of the affidavit.
The Court: Okay. I'll deny the motion to suppress the search warrant.
Defense Counsel: Your Honor, when that issue comes up, may I just refer back to this?
The Court: You can just say, "I make the objections I had previously made on the record."
Defense Counsel: Thank you.
The Court: And that will be sufficient, Mr. Burns, to cover you for everything that you've made specifically to this point.
Appellant now argues, essentially, that no search warrant existed to authorize the taking of his blood:
[A]t the end of the affidavit there is a Notary's signature and a municipal court judge's signature, but there is no grant of a search warrant "supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" as required by the Fourth Amendment to the Constitution of the United States... [I]n this case there is, at best an affidavit but no warrant was issued. [T]he rambling affidavit asks for blood, but no warrant authorizes the seizure of a person's blood nor does any document call for the seizure...of any blood. [T]he Municipal Court Judge could simply have been certifying that the affiant was being sworn in.
There is no warrant to describe who or what is to be searched and no warrant authorizes a seizure of anything...[T]he State failed to obtain a search warrant. [T]he search was illegal.
As discussed above, Appellant's contention urged on appeal does not comport with the specific complaint made in the trial court. Appellant's only complaints to the trial court regarding the admission of his blood test results were limited to whether the affidavit in support of the search warrant established probable cause because the officer used the language "reason to believe" and "never says in there that he believes all those things." See Lovill , 319 S.W.3d at 691-92; Rothstein , 267 S.W.3d at 373. Thus, Appellant failed to raise his complaint that no search warrant existed with sufficient specificity to (1) inform the trial court of the basis of the objection and give the trial court the chance to make a ruling on the objection, and (2) to give opposing counsel the opportunity to respond to the complaint. Resendez , 306 S.W.3d at 312; Garza , 126 S.W.3d at 82. Because Appellant failed to make a timely and specific request, objection, or motion stating the specific grounds for the ruling desired, he has waived his contention that no search warrant existed and we will not consider it. See TEX. R. APP. P. 33.1(a)(1); see also Garza , 126 S.W.3d at 81-82.
MOTION TO SUPPRESS
Having concluded that Appellant waived his argument that no search warrant existed, we now address his argument that the trial court erred in denying his motion to suppress on grounds that the affidavit in support of the search warrant did not establish probable cause. Standard of Review and Applicable Law
On appeal, Appellant devotes the majority of his brief to the argument that no search warrant existed. However, he does include a brief recitation of the argument he made to the trial court that the affidavit did not establish probable cause. Construing Appellant's brief reasonably, yet liberally, we reach the merits of this argument. See TEX. R. APP. P. 38.9; Sanchez v. State , 98 S.W.3d 349, 355 (Tex. App.—Houston [1st Dist.] 2003, no pet.) ("[I]f the court is able to ascertain the nature of the complaint from the argument, the issue will be preserved for appellate review. [O]nly in the rare instance of an indecipherable argument should an issue be deemed waived by the court.").
Both the United States and Texas Constitutions provide that a search warrant must be based on probable cause supported by oath or affirmation. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. To support a search warrant, an affidavit must contain sufficient facts to satisfy the issuing magistrate that probable cause does in fact exist for the warrant's issuance. See TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West 2017).
The court of criminal appeals has stated that appellate courts should apply the deferential standard articulated in Illinois v. Gates when reviewing a magistrate's determination that probable cause existed to issue a warrant. Swearingen v. State , 143 S.W.3d 808, 810-11 (Tex. Crim. App. 2004); see Davis v . State , 144 S.W.3d 192, 196-97 (Tex. App.—Fort Worth 2004, pet. ref'd). Under the Gates standard, we look to the "totality of the circumstances" regarding the facts contained in the affidavit and give great deference to the magistrate's probable cause determination as long as he had a "substantial basis" to do so. Gates , 462 U.S. 213, 236-37, 103 S. Ct. 2317, 2331, 76 L. Ed. 527 (1983); Davis , 144 S.W.3d at 196-97. The magistrate is allowed to make a practical, common sense decision, given all the circumstances set forth in the affidavit, including the "veracity" and "basis of knowledge" of the persons supplying hearsay information. Gates , 462 U.S. at 238, 103 S. Ct. at 2332.
The role of the reviewing court is to ensure that the magistrate had a substantial basis for his conclusion. Id. In reviewing the sufficiency of an affidavit for an arrest or search warrant, we are limited to the four corners of the affidavit. Jones v. State , 833 S.W.2d 118, 123 (Tex. Crim. App. 1992). Analysis
Appellant contends that Officer Henken's affidavit did not establish probable cause for a warrant because "the affidavit shows that the affiant has reason to believe certain facts but never came to believe those facts or at least never swore that he did."
The affidavit states at the top of the document "[T]he undersigned affiant, S. Henken #389, being a peace officer under the laws of the State of Texas and being duly sworn, on oath makes the following statements and accusations." The affidavit identifies Appellant by name, date of birth, and physical description. It gives a full recitation of the facts including the traffic stop, Officer Henken's observations, and the results of Appellant's field sobriety testing. Specifically, Officer Henken states that she witnessed Appellant driving a black truck and pulled him over after observing him fail to stop at the designated line in an intersection and then almost hit a parked car. She further elaborates that upon contacting Appellant, he had a moderate odor of alcohol emitting from his breath, his eyes were glassy and his eyelids were heavy, his speech was slurred and thick-tongued, he interrupted during instructions, he stumbled several times, and he swayed back and forth. She indicates that she performed two of the three field sobriety tests and lists the clues of intoxication she observed Appellant exhibit on those tests.
Appellant argues that Officer Henken's statements that she has "good reason to believe" that Appellant committed the offense and that his blood will contain evidence essentially negates probable cause. We are not persuaded by this argument. As previously stated, the magistrate is allowed to make a practical, common sense decision, given all the circumstances set forth in the affidavit in making his probable cause determination. Gates , 462 U.S. at 238, 103 S. Ct. at 2332. Our role is to ensure that the magistrate had a substantial basis for his conclusion. Id. Further, reviewing courts should not invalidate a warrant by interpreting the affidavit in a hypertechnical, rather than common sense manner. State v. McLain , 337 S.W.3d 268, 272 (Tex. Crim. App. 2011). Thus, based on the foregoing, we conclude that the magistrate had a substantial basis for determining that probable cause existed to issue a search warrant for Appellant's blood, and consequently, the trial court did not err in denying Appellant's motion to suppress the blood evidence. Gates , 462 U.S. at 236-37, 103 S. Ct. at 2331; Davis , 144 S.W.3d at 196-97. Appellant's first and second issues are overruled.
APPELLANT'S STATEMENTS
In Appellants third, fourth, and fifth issues, he argues that the trial court erred by admitting the statements he made to Officer Henken after the traffic stop because he did not receive Miranda warnings prior to questioning. He argues that the admission of these statements violates Article 38.22 of the Texas Code of Criminal Procedure, and his rights pursuant to the United States and Texas Constitutions. We will address these issues together. Discussion
The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona , 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. Where, as in this case, the facts are undisputed and there are no questions of credibility or demeanor, we review de novo the question of whether a statement was the product of custodial interrogation. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In determining whether an individual was in custody, the ultimate inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California , 511 U.S. 318, 322, 114 S. Ct. 1526, 1528-29, 128 L. Ed. 2d 293 (1994) (per curiam). The determination depends on the objective circumstances, not on the subjective views of either the interrogating officers or the person being questioned. Id. 511 U.S. at 323, 114 S. Ct. at 1529. Moreover, the determination is made on an ad hoc basis. Dowthitt v. State , 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). Custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. Id.
Here, it is undisputed that Officer Henken did not read Appellant the warnings required under Miranda and Article 38.22 prior to asking Appellant questions. 384 U.S. at 444, 86 S. Ct. at 1612; see TEX. CODE CRIM. PROC. ANN. Art. 38.22 § 2(a)(1)-(5) (West 2018). Appellant argues that his answers to Officer Henken's questioning regarding whether he saw the red and blue flashing lights prior to stopping and whether he had anything to drink were the product of a custodial interrogation. However, the evidence shows that these statements were made in response to questions that Officer Henken asked Appellant shortly after pulling him over and identifying him and prior to performing field sobriety testing.
A traffic stop does not constitute "custody" for Miranda purposes. Henderson v. State , 05-14-00025-CR, 2014 WL 6780647 at *4 (Tex. App.—Dallas Dec. 2, 2014, pet. ref'd) (mem. op., not designated for publication); see also State v . Stevenson , 958 S.W.2d 824, 828 (Tex. Crim. App.1997) (citing Berkemer v. McCarty , 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)). Furthermore, performance of field sobriety tests alone does not give rise to custody. Henderson , 2014 WL 6780647 at *4; see also Stevenson , 958 S.W.2d at 829. An officer may detain a person in order to gather information in the course of a roadside investigation before placing the person in custody under Miranda. Henderson , 2014 WL 6780647 at *4; see also Lewis v . State , 72 S.W.3d 704, 707-713 (Tex. App.—Fort Worth 2002, pet. ref'd). Thus, Appellant was not in custody at the time he made the challenged statements and, as a result, warnings were not required. For this reason, the trial court did not err in admitting the statements. We overrule Appellants third, fourth, and fifth issues.
Appellant cites to Branch v. State , 932 S.W.2d 577 (Tex. App.—Tyler 1995, no pet.) in support of his argument. In that case, we held that questioning the Appellant about what he drank and where he was going when he was pulled over amounted to a custodial interrogation. Id. at 581. In Branch , however, the questioning occurred at the jail after Appellant had already been placed under arrest for driving while intoxicated. Id. at 579-81. Thus, Appellant's reliance on Branch is misplaced.
CONCLUSION
Having overruled Appellants five issues, we affirm the trial court's judgment.
JAMES T. WORTHEN
Chief Justice Opinion delivered June 6, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the County Court at Law No 1 of Johnson County, Texas (Tr.Ct.No. M201601116)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.