No. 05-05-01626-CR
Opinion issued October 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 23715-86. Affirmed.
Before Chief Justice THOMAS and Justices BRIDGES and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
A jury found Charles Edward Madden guilty of possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. After the jury found appellant guilty, the trial court assessed appellant's punishment, enhanced by two prior felony convictions, at sixty years' imprisonment. In two points of error, appellant complains the trial court erred in denying his pretrial motion to suppress, and in admitting into evidence over his objection, illegally seized evidence resulting from statements made while under arrest. We affirm the trial court's judgment.
The date of the offense was November 27, 2004.
The enhancement allegations were contained in the State's November 22, 2005 "Notice of Intent to Use Evidence of Extraneous Acts, Conduct, Crimes and Character and Notice of Intent to Prosecute Defendant as a Habitual Felony Offender."
Background
Appellant was charged in a two-count indictment, bearing cause number 23495-86, with the knowing possession, with intent to deliver, methamphetamine, a controlled substance, in an amount of one gram or more but less than four grams (count I) and with knowing manufacture, by means of chemical synthesis by a clandestine laboratory, methamphetamine, a controlled substance, in an amount of one gram or more but less than four grams (count II). On June 9, 2005, appellant filed three motions to suppress the evidence obtained as the result of his stop and arrest. On June 23, 2005, the trial court conducted a hearing on appellant's motions to suppress. The defense called appellant as its first witness at the suppression hearing. Appellant testified that on November 27, 2004, he was arrested for certain offenses in Kaufman County. One of those offenses was possession of a controlled substance "by virtue of a traffic stop." Subsequent to the traffic stop, appellant and his vehicle were searched. Appellant did not give permission for the search, and the search was not conducted pursuant to a search warrant. On cross-examination, appellant testified that when Officer Joshua Jennings approached him while he was still in his car, Jennings asked if appellant had any identification. Appellant had no identification. Appellant gave the officer an insurance paper to the truck. When Jennings asked appellant for a name and date of birth, appellant gave him the name "Rickey Moseley." Jennings again asked appellant for a date of birth. Appellant told him it was "11/6/59." Although appellant said he did not see the officer check on the information, he testified the officer came back to him, took him out of the truck, and put him in handcuffs. Appellant did not recall whether Jennings told him the name and date of birth appellant gave him was not registering with dispatch. Jennings asked appellant if there were any illegal weapons in the vehicle. Appellant replied, "if you consider a broken sword tip an illegal weapon." When asked where that "broken off sword tip" was, appellant replied, "I have no idea. I tried to find it and couldn't." When asked whether it was "sitting on the top of the console of [his] car," appellant answered, "Like in plain view, no, ma'am, it was not, because I couldn't see it. I asked him if he wanted me to get it for him, and I remember looking down for it, and it wasn't there." When asked if the officer took it out of his car, appellant replied, "Well, I can say, no, he did not take it out of my car. It was not in my vehicle." Mabank police officer Joshua Jennings testified he was working on Saturday, November 27, 2004, in uniform, and in a marked patrol vehicle. That night, Jennings stopped a brown truck on Highway 175. Two people were in the truck. Jennings stopped the truck because it had no license plate light, and under Texas law, a vehicle is supposed to have an illuminated license plate light. After stopping the vehicle, Jennings approached the driver's side of the vehicle, and requested the driver for his license and proof of insurance. Jennings was not given a driver's license. The driver said "he had left his wallet at the house." Jennings asked for the driver's name and date of birth. The driver gave the name "Rickey Moseley" and a date of birth of "8/19/1951." Jennings ran a check through "Kaufman County communications" for a driver's license for that person. Jennings was advised "there was no such name and date of birth issued a Texas driver's license." Jennings returned to the vehicle, asked the driver to get out and step to the rear, and advised the driver the information he had given could not be found in the State of Texas. Jennings identified appellant as the driver. Appellant then told Jennings his date of birth was "11/6/1959." Jennings ran another check with that date of birth and it did come back to a Rickey Mosely. During this time, Jennings observed that appellant was "real hesitant when answering questions" and was acting nervous. When Jennings would try to confirm information, appellant would "kind of stumble and try to re-answer it." Jennings believed he had been given false identification, so as a safety precaution, he asked appellant if there were any weapons in the vehicle. After appellant told Jennings there was a broken-off piece of sword on the center console of his pickup, Jennings found a sword blade "laying on the center console" in plain view. At that point, for his safety, Jennings asked the passenger to get out of the vehicle. During the stop, Jennings observed "an ammonia smell coming from the area." Based on his experience in recovering anhydrous ammonia, the odor was familiar to Jennings. The passenger exited with a pocket knife in her hand. The officer conducted a "weapons pat down" on both subjects. The passenger was arrested for another offense. Jennings and backup officer Swearingen went to the bed of the pickup and saw a silver bottle with bluing marks on the outside. Based on his experience and training, Jennings believed this was an unapproved container of anhydrous ammonia. Jennings drew that conclusion because the container had a brass valve, and an approved container is required to have a metal valve. Together with the odor, the bluing of the valve led Jennings to suspect there was anhydrous ammonia in the container. At that time, Jennings "placed [appellant] into detention to further [Jennings's] investigation." Jennings asked appellant for consent to search, which appellant denied. However, at that point, Jennings believed he had probable cause to search. The officers searched the bed of the pickup truck and recovered several items used in manufacturing controlled substances. They found "Camp fuel, Drano, the anhydrous ammonia, gas tanks or empty gas cans with hoses used as generators, filters that they use and different other containers that they use for mixing." Syringes were found on the passenger. The officers then searched the cab of the truck. When asked if he found another item in plain view, Jennings replied, "Underneath the driver seat in a clear container with plain view, if you bent down to look under the seat and-contained a brownish-color rock." Because the truck was "kind of high up," it was not difficult for Jennings to see the uncovered container under the seat. Based on Jennings's experience in recovering methamphetamine, "the colors and texture of it," he believed the container held methamphetamine. Jennings concluded the items in the bed of the truck were "a clandestine lab or pieces of a clandestine lab used in producing methamphetamine." Jennings recovered the items as evidence and arrested appellant for possession of a controlled substance and for transporting anhydrous ammonia in an unapproved container. On cross-examination, Jennings testified that giving a fictitious or false name or date of birth is a violation of the law. At the time, Jennings said he was uncertain of whether he had a "failure to identify." Jennings also testified that when appellant was giving his date of birth, Jennings asked for the address that was last on his driver's license when he possessed it. Appellant gave Jennings an address in Gun Barrel City, but gave a Kemp zip code. When Jennings asked for proof of insurance, appellant handed him the registration papers bearing the name Ricky Mosely. Those papers showed a different address from the one appellant had given Jennings. Jennings testified, however, that at that point, appellant was only being detained for further investigation-he was not arrested. Jennings testified the "original name" was given while appellant was sitting in the pickup, but after Jennings found there was no registration for that name and date of birth, he asked appellant to step to the rear and to the back of the pickup. The dialogue about the driver's identity took place before Jennings looked inside the vehicle and saw the broken sword. Jennings asked appellant whether he had any weapons in the vehicle after he decided to detain appellant for giving false information. After appellant's response about the sword, Jennings looked and, on the console, saw what he described as "a broken off sword tip approximately eight inches in length with a single-sharpened edge." When asked specifically where on the console he saw the sword, Jennings replied, "it was an after-market console that was placed in the pickup. It had cup holders, and, I believe, a little compartment in front of the cup holders, and it was down, laying in there. It was a [sic] open compartment. Something you keep change or something in." Jennings was standing on the side of the road when he looked into the vehicle and saw the sword tip. He could not recall whether the door was open or closed. Jennings could see the top portion of the weapon, or he could see the entire length of it. The sharpened edge was pointed towards the console. Jennings said the "sharpened edge, the blade of the sword was laying, I guess, horizontal, and [he] could see the top part of it." It did not have a handle. Jennings grasped the dull edge of the sword in removing it from the vehicle. Jennings described the sword as having a point on one end and a jagged edge on another end. When he first saw the object, Jennings recognized it as being a blade. He was uncertain if it belonged to a sword or a fixed-blade knife. Jennings also found a clear container in the cab of the truck under the driver's seat, which he was able to see in "open view or plain view." When asked how he could see it under the seat, Jennings replied that when he saw the blade, he opened the door and recovered the piece of sword. When asked how being on top of the seat reaching over to the console and pulling out the sword enabled him to look underneath the seat to see something in plain view "way down there," Jennings testified he "bent down a little bit to check to see if there was any other weapons in front of the console or just under the front seat." That was when he found a hard, plastic container. After the backup officer brought to Jennings's attention the "strong odor of anhydrous he was also smelling," Jennings looked around in the bed of the pickup. There was a lot of "stuff" in the back of the truck. When asked if he had to move stuff around, Jennings replied, "No, sir. The bottle that we found at the time we were seeing to be anhydrous ammonia was in-setting on top of a-I believe-a tire between a truck toolbox that attaches to the bed of a truck." That was after Jennings found the sword. Jennings said at the time he found the sword or "that knife," appellant was not free to leave. There was nobody to whom to release the vehicle; it was under Jennings's care, custody, and control while he was furthering his investigation. After the suspects were arrested, the vehicle was towed to the police pound. Jennings did not have a search warrant. Defense counsel asked, "Nothing prevented you from obtaining a search warrant from the bed of that vehicle, was there?" Jennings replied, "Due to the vehicle being mobile, and it could have been evidence been destroyed." When asked if there was anything else in the vehicle, other than the "knife or the stuff underneath the seat," Jennings replied, "At a later date and time, when a DPS narcotics came down to see what I had recovered, they did locate in a container, we believed that contained parts of a laboratory apparatus, a picture-at the time when I recovered it, the ammonia smell was too strong and dangerous to open, recovered a large amount of what we believed at the time to be methamphetamine." That was found on December 2, 2004, about four or five days later. Jennings testified he was not performing an inventory search out there on the side of the road when he looked in the back of the truck-he was "conducting a search due to an unapproved container being found based on probable cause." Jennings clarified he was conducting a search due to the bottle containing anhydrous ammonia. On redirect examination, Jennings testified he smelled the ammonia first because he was "up wind from it." Then he saw the container in plain view. The combination of both "seeing that" and "smelling that" caused him to believe or suspect there could have been a "meth lab" in the vehicle. That was the reason Jennings further investigated. Jennings testified it is a violation of Texas law to transport anhydrous ammonia in an unapproved container. Based on his personal observations, Jennings continued investigating. Jennings could see the container with the bluing in plain view in the bed of the truck, without moving anything around or searching anything in order to see it. During trial, Jennings testified to essentially the same facts. Jennings also testified the sword blade he found in "plain view" was approximately eight-and-a-half inches long and, therefore, illegal, because it is longer than the legal length of five-and-a-half inches. After finding the "knife" Jennings advised appellant he was under arrest for unlawfully carrying a weapon. After the anhydrous ammonia was discovered in an unapproved container labeled as "carbon dioxide," Jennings advised appellant he was under arrest for transporting a chemical laboratory apparatus. Jennings discovered a clear bag in appellant's left "chest pocket" when searching appellant incident to the arrest. Based on his training and experience, Jennings believed the bag contained methamphetamine. Upon that discovery, Jennings advised appellant he was also under arrest for possession of methamphetamine. The vehicle was impounded and secured at the Mabank Police Department automobile pound. Jennings took appellant to the Mabank Police Department, where during book-in procedures, appellant signed the property sheet as Charles Madden. When Jennings learned of this, he approached appellant, who then identified himself as Charles Madden and gave a correct date of birth. Through fingerprints, Jennings confirmed appellant's true identity as Charles Madden. The stop was video- and audio-taped and the tape was admitted into evidence and viewed by the jury. The State also called Jeoff Williams who testified that based on his training and experience working in narcotics it was his professional opinion the amount of methamphetamine found was not for personal use, but was possessed with the intent to deliver. The State also offered, and the trial court admitted for record purposes only, over objection, State's Exhibit 45, a facsimile copy of a certified copy of a State of Texas "blue warrant" for Charles Edward Madden, which was outstanding at the time of appellant's arrest. The defense presented two witnesses who testified the license plate light on Rickey Mosely's truck was operational. Rickey Dale Mosely testified the truck was his, he lived in Gun Barrel with his parents, and he had known appellant for about thirty years. At about 10:30 a.m. on December 7, 2004, Mosely went to Sunshine Wrecker in Gun Barrel to get his truck. At that time, Mosely checked the lights and they were in proper working order. He paid to get the truck out of the pound, kept it three or four days, and then took it to appellant's parents' house and left it. Mosely did not give appellant permission to lie to the police about his identity. None of the items in the bed of the truck belonged to Mosely. The defense also called automobile mechanic James Creagh, the owner of Action Automotive. Creagh testified that on April 11, 2005, Bobby Madden, appellant's father, brought the truck to Creagh's business and asked him to check the lights. At about 1:00 p.m. on that date, Creagh determined that one light was missing, but the remaining light was operational. Creagh testified there was no way to tell whether the light was working on November 27, 2004. He did opine that there was no evidence the bulb had recently been replaced. Motion to Suppress
In two points of error, appellant complains of the trial court's denial of his pretrial motion to suppress and admission of illegally seized evidence, over his objection, resulting from statements made while under arrest. The State first responds that appellant waived his objections to use of the methamphetamine found in the vehicle search by stating he had "no objection" to the laboratory reports describing the analysis of the methamphetamine. The State also contends, to the extent appellant claims violations of his rights under the Texas Constitution, he waived error by failing to detail such claims. See Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App. 1991). 1. Waiver
We agree with the State that appellant waived any claimed violation under the Texas Constitution by failing to detail such claims. See id. The portion of appellant's argument that cites to the Texas Constitution deals with consent to search. Because it is undisputed appellant did not give permission to search, that is not an issue in this case. Consequently, appellant's argument under the Texas Constitution concerning consent is irrelevant to resolution of the issues in this appeal. In support of its argument that appellant waived his complaint regarding the suppression issue by affirmatively stating "no objection" to the admission of the lab report, the State relies on Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992); Dean v. State, 749 S.W.2d 80, 82-83 (Tex.Crim.App. 1988); and Traylor v. State, 855 S.W.2d 25, 26 (Tex.App.-El Paso 1993, no pet.). In Traylor, the El Paso court of appeals held that the appellant's argument the cocaine should have been suppressed was waived by stating "no objection" when the State offered an "exhibit describing" the cocaine. The Traylor court relied on Dean and Moody. However, Dean and Moody are distinguishable. In each of those cases, the affirmative waiver by stating "no objection" was made to the offer of the contraband itself that was recovered in an alleged illegal search. In Traylor, the affirmative waiver by stating "no objection" was to a laboratory report describing the allegedly illegally seized substance. In this case, the record reflects appellant objected to the physical evidence of the contraband when it was offered into evidence during trial on the same grounds previously raised in his motions to suppress. The trial court overruled his objections and admitted the contraband into evidence. Later, when the laboratory reports of the analysis, reflecting the tested substances contained methamphetamine, were offered into evidence, appellant affirmatively stated he had no objection to their admission. But, appellant never contended the substance was not methamphetamine. He argued below, and contends on appeal, only that the substance was illegally seized. The trial judge denied appellant's motion to suppress at the conclusion of the suppression hearing; it was not "carried along" during the trial. Appellant had already preserved error twice by the time the laboratory reports were offered. It is difficult to see how appellant's "no objection" to the reports would have misled the trial judge into believing appellant was either waiving or forfeiting his complaint the search was illegal. See generally 43A George E. Dix Robert O. Dawson, 43A Texas Practice: Criminal Practice and Procedure § 42.273 (2d ed. 2001). We decline, therefore, to follow Traylor. And because Dean and Moody are factually distinguishable, we conclude they offer no support for the State's waiver argument here. Therefore, we reach the merits of the suppression issue. 2. Denial of Motion to Suppress
Appellant contends the trial court erred in denying his motion to suppress and in admitting the evidence because Jennings conducted an illegal search and seizure of the evidence in the truck following statements appellant made after he was arrested and because the search was without a warrant. The State responds that the stop was justified to investigate a vehicle equipment offense, and the ensuing search was justified because there were outstanding warrants, probable cause of various traffic, weapon, and drug offenses, and a protective check was necessary. Therefore, appellant's non-custodial statement about a weapon that was in plain view was not necessary to justify the search. The standard of appellate review of a trial court's ruling on a motion to suppress is a mixed one: both deferential and de novo. We give almost total deference to the trial court's determination of historical facts, especially when the findings are based on an evaluation of credibility and demeanor. See Manzi v. State, 88 S.W.3d 240, 243 (Tex.Crim.App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When, as here, the trial court does not make explicit findings of fact, we assume the trial court made implicit findings of fact supported in the record, and we review the evidence in a light most favorable to the trial court's ruling. See Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000); Carmouche, 10 S.W.3d at 327-28. We review de novo the trial court's application of search and seizure law to the facts. See Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. The evidence from the suppression hearing showed Jennings had reasonable suspicion a traffic offense was being committed in his presence when he saw appellant's vehicle pass him without sufficient lighting over the license plate. See Tex. Transp. Code Ann. §§ 547.004(a), 547.322(f) (Vernon 1999); Terry v. Ohio, 392 U.S. 1, 30 (1968). As fact finder, the trial judge was within his discretion in believing the officer. Having lawfully stopped appellant's vehicle, appellant's conflicting and unverifiable information about his identity gave rise to probable cause he was committing more offenses in the officer's presence, including failure to identify and operating a motor vehicle without a driver's license. Jennings was entitled to detain appellant while he investigated appellant's true identity. During that lawful detention, Jennings was at a place where he had a right to be when he saw, in plain view, what he believed to be an unlawful weapon. At that point, Jennings was authorized to, and did, arrest appellant for unlawfully carrying a weapon. Incident to that arrest, Jennings was entitled to search the entire vehicle, including containers, without a warrant. See Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999); State v. Gray, 158 S.W.3d 465, 470 (Tex.Crim.App. 2005). That search then revealed more offenses: transportation of anhydrous ammonia in an unauthorized container and possession of controlled substances. Moreover, the taint of any illegality in the stop, detention, and search was attenuated by the later discovery of the outstanding warrant for appellant's arrest. See Lewis v. State, 915 S.W.2d 51, 54 (Tex.App.-Dallas 1995, no pet.) (holding evidence obtained after illegal detention admissible because discovery of warrant attenuated taint of illegality); Reed v. State, 809 S.W.2d 940, 947 (Tex.App.-Dallas 1991, no pet.) (warrant purged taint of any illegality from initial arrest). Appellant did not challenge the outstanding warrant, which was admitted during trial for record purposes only. We conclude the trial court did not abuse its discretion in denying appellant's motion to suppress the evidence seized. We overrule appellant's two points of error. We affirm the trial court's judgment.