Opinion
No. 04-11-00749-CR
06-12-2013
Daniel Maurice SMALLWOOD, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B10-711
Honorable M. Rex Emerson, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
AFFIRMED
This appeal arises from Appellant Daniel Maurice Smallwood's guilty plea and conviction for the felony offense of possession of a controlled substance, hydrocodone, in an amount of four grams or more but less than 200. On appeal, Appellant argues that the trial court erred in denying his motion to suppress, which challenged the initial stop, the length of the detention, and the search of Appellant. The State contends, inter alia, that we should decline to address the merits of Appellant's claim because it is not clear from the record what the fruits of the alleged unlawful search and seizure are or whether the alleged fruits have "somehow been used" by the State.
BACKGROUND
Appellant was traveling on Interstate Highway 10, in Kerr County, Texas, when he was stopped by Investigator Chapman of the 198th District Court Attorney's office. After the stop, Investigator Chapman ordered Appellant to exit and make his way to the back of his vehicle, where Investigator Chapman obtained his driver's license and proof of insurance. Investigator Chapman then went back to his patrol car to run criminal history and warrant checks. When Investigator Chapman returned, he patted Appellant down for weapons and "[f]elt two large objects below [Appellant's] waistband that [he] recognized to be contraband." At that point, Investigator Chapman arrested Appellant and called for backup. Investigator Chapman and Appellant testified that approximately ten to twelve minutes elapsed from the time Investigator Chapman stopped Appellant to the time Investigator Chapman conducted the pat down.
Appellant was charged by indictment with the offense of possession of a controlled substance, hydrocodone, in an amount of four grams or more but less than 200. Appellant filed a motion to suppress evidence resulting from his detention. Appellant and Investigator Chapman testified at the hearing on Appellant's motion to suppress, and the trial court denied Appellant's motion. Appellant then entered a plea of guilty and was sentenced by the court to three years' confinement probated for three years. Appellant now appeals the trial court's denial of his motion to suppress.
STANDARD OF REVIEW
"When reviewing a trial court's ruling on a motion to suppress, the overarching standard of review guiding appellate courts is whether the trial court abused its discretion." State v. Whittington, No. 04-12-00365-CR, 2013 WL 820413, *4 (Tex. App.—San Antonio Mar. 6, 2013, no pet.) (mem. op., not designated for publication). But, in determining whether to address the merits of Appellant's claim that the trial court erred in denying his motion to suppress evidence prior to his guilty plea, we must conduct a two-step inquiry. Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998); accord Badgett v. State, 79 S.W.3d 581, 584 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (op. on remand); see Brennan v. State, 140 S.W.3d 779, 781 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd).
First, [we] must identify "the fruits" that the trial court held would not be suppressed. Second, [we] must determine that these fruits have "somehow been used" by the State. If it is not clear from the testimony and exhibits what "the fruits" are, then [we] need not address the merits of the claim. Likewise, if the fruits have not "somehow been used" by the State, then [we] need not address the merits of the claim.Gonzales, 966 S.W.2d at 524 (citations omitted); accord Badgett, 79 S.W.3d at 584; Wyss v. State, 2008 WL 4093378, *1 (Tex. App.—Austin Sept. 5, 2008, no pet.) (mem. op., not designated for publication); see Martinez v. State, Nos. 04-09-00204-CR, 04-09-00205-CR, 2011 WL 5869596, *1 (Tex. App.—San Antonio Nov. 23, 2011, no pet.) (mem. op., not designated for publication); Brennan, 140 S.W.3d at 781.
A NALYSIS
We begin our analysis with the determination of whether, from the record before us, we can identify "the fruits" the trial court declined to suppress. See Gonzales, 966 S.W.2d at 524; Brennan, 140 S.W.3d at 781; Badgett, 79 S.W.3d at 584. The State asserts there is no physical evidence or testimony indicating that the "contraband" seized by Investigator Chapman is the hydrocodone, which Appellant pled guilty to possessing.
The current case is analogous to McGlynn v. State, 704 S.W.2d 18 (Tex. Crim. App. 1982) (op. on reh'g). In McGlynn, an officer seized a variety of pills from a bottle found in the appellant's purse. See id. The appellant filed a motion to suppress, which the trial court denied. Id. at 19. The appellant then pled guilty to possession of methylphenidate. Id. The appellant challenged the trial court's denial of her motion to suppress. Id. The Court of Criminal Appeals stated that "[t]he testimonial record . . . simply does not show that anything the officer seized was methylphenidate, much more than it was the same methylphenidate, to which [appellant] pleaded guilty of possessing." Id. at 20. Because the record was unclear as to what fruits of the search had somehow been used, the court refused to address the appellant's argument as to the constitutionality of the search. See id. at 21.
In the current case, Appellant's first amended motion to suppress requested the suppression of the following evidence:
a. Any and all tangible evidence seized by law enforcement officers or others in connection with the detention and arrest of Daniel M. Smallwood in this case or in connection with the investigation of this case, and any testimony by the 198th Judicial Police Force or any other law enforcement officers or others concerning such evidence.Appellant's motion to suppress "does not specify what contraband, if any, was seized by an allegedly illegal search and seizure or arrest." See Wyss, 2008 WL 4093378, at *2-4; see also McGlynn, 704 S.W.2d at 19-20.
b. The arrest of Daniel M. Smallwood at the time and place in question and any and all evidence which relates to the arrest, and any testimony by the 198th Judicial Police Force or any other law enforcement officers or others concerning any action of Daniel M. Smallwood while in detention or under arrest in connection with this case.
c. Any other matters that the Court finds should be suppressed upon hearing of this motion.
Appellant's brief states that "[d]uring the pat down and frisk for weapons of the Appellant, Investigator Chapman located a bag of hydrocodone tablets in the Appellant's underwear." To support this assertion, Appellant cites to two pages of the reporter's record containing Investigator Chapman's testimony from the motion to suppress hearing. The first citation directs us to Investigator Chapman's testimony that during his pat down of Appellant he "[f]elt two large objects below his waistband that [he] recognized to be contraband." The second citation points to another statement by Investigator Chapman in which he again refers to the seized substance as contraband. Here, as in McGlynn, the record contains no evidence that the hydrocodone Appellant pled guilty to possessing is the "contraband" that Investigator Chapman seized from below Appellant's waistband. See McGlynn, 704 S.W.2d at 19, 20. Thus, the mere reference in this record to the substance seized by Investigator Chapman as "contraband," without more, does not support identification of the fruits as required by Gonzales. See McGlynn, 704 S.W.2d at 21; see also Gonzales, 966 S.W.2d at 524; Wyss, 2008 WL 4093378, at *2; cf. Badgett, 79 S.W.3d at 584 (determining that although "the testimony and exhibits in the reporter's record of the suppression hearing [did] not explicitly identify which item(s) of evidence appellant sought to suppress[,]" it was reasonably clear based on a police affidavit containing appellant's blood alcohol results "that 'the fruits' resulting from the State's seizure of appellant's blood were the test results demonstrating his .13 blood alcohol level").
Because it is not clear from the testimony and exhibits what "the fruits" of Investigator Chapman's allegedly unlawful search were, we do not address the merits of Appellant's claim. See Gonzales, 966 S.W.2d at 524; McGlynn, 704 S.W.2d at 21; Brennan, 140 S.W.3d at 781; Gonzales v. State, 977 S.W.2d 189, 191 (Tex. App.—Austin 1998, pet. ref'd) (op. on remand).
CONCLUSION
The record does not show that the hydrocodone Appellant pled guilty to possessing was the fruit of the challenged search. Because we are unable to identify from the record any fruits of the alleged unlawful search and seizure, we do not address the merits of Appellant's appeal. Because Appellant presents no other issues, we cannot conclude the trial court abused its discretion. Accordingly, the trial court's judgment is affirmed.
Patricia O. Alvarez, Justice DO NOT PUBLISH