Opinion
No. 05-16-00227-CR
05-18-2017
BRYAN ZAVALA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause No. F-1235264-K
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Fillmore
Following the denial of his motion to suppress, Bryan Zavala pleaded guilty to attempted possession of less than one gram of cocaine. Pursuant to a plea agreement, the trial court deferred a finding of guilt and placed Zavala on community supervision for a period of one year. Zavala argues the trial court erred by denying his motion to suppress because "the search of his body by ordering him to remove his socks and shoes after sitting on the street curb for an hour was unreasonable and beyond the allowable scope of a warrantless search," and his "detention status had changed to an arrest status and . . . the officer should have gotten a search warrant before ordering him to remove clothing." We affirm the trial court's denial of the motion to suppress.
Background
Following his arrest for possession of less than one gram of cocaine, Zavala filed a motion to suppress all evidence and statements allegedly obtained as a result of illegal acts or procedures by law enforcement officials. As relevant to this appeal, Zavala asserted that (1) at the time he was detained, law enforcement officials had neither reasonable suspicion nor probable cause to believe he was engaged in criminal activity; (2) "the evidence [to be] offered by the government" was not obtained pursuant to a reasonable investigative detention, an arrest warrant, or a search warrant; (3) there were no exigent circumstances; and (4) he did not consent to the "acquisition of the evidence."
The only witness at the June 12, 2014 hearing on the motion to suppress was Irving Police Officer Travis Allen. Officer Allen testified that, at approximately 1:45 a.m. on October 28, 2012, he responded to a 911 call reporting a disturbance. When he arrived at the location, it appeared there was a large party in progress. Officer Allen saw three men running toward a small silver car. The men got in the car, but did not drive away. Officer Allen considered this conduct to be suspicious based of the time of night and because the men were running away from the party immediately after he arrived, but did not leave. According to Officer Allen, "[s]omething just didn't seem normal about that."
Officer Allen approached the car to "see what was going on." Zavala, who was in the driver's seat, rolled the window down and Officer Allen immediately noticed a "very strong odor of unburned marijuana coming from inside the vehicle." Officer Allen called for a backup officer and questioned Zavala about what the three men were doing. According to Officer Allen, at this point, the men were detained, but had not been arrested.
Another officer arrived within a few minutes, and Officer Allen removed the men from the car one at a time and "sat them" on the curb so that he could search the car. Officer Allen noticed that each of the men had a strong odor of marijuana on his person. Officer Allen found a small bag of marijuana stuffed slightly inside the backseat of the car. One of the men who was with Zavala stated the marijuana belonged to him.
The officers then searched the three men to see if they had "any more paraphernalia or drugs." Officer Allen did the "normal search" of Zavala's pockets, waistband, and other "things" that he thought could conceal drugs. Officer Allen did not find anything during his search but suspected, because Zavala smelled so strongly of marijuana, that there were drugs somewhere on Zavala's body. The other officer then requested that Zavala remove his socks and shoes. When Zavala took off his left sock, a small bag of white powdery substance fell out. Zavala put his foot on top of the bag. Officer Allen told Zavala to move his foot and saw a bag of cocaine on the ground. Zavala admitted the cocaine belonged to hm. Officer Allen arrested Zavala for possession of cocaine.
While Zavala's counsel was cross-examining Officer Allen, the trial court stated it had Veteran's Court scheduled, and the hearing would need to be recessed. The trial court indicated it would be finished with Veteran's Court at 3:30 p.m., and the parties could return to continue the hearing on Zavala's motion to suppress at that time. The record does not reflect the parties returned to continue the hearing or that additional evidence was offered on the motion to suppress. The trial court's docket sheet indicates the "MTS" was denied on September 12, 2014, but there is no written order denying the motion to suppress.
On January 20, 2016, Zavala pleaded guilty to the lesser included offense of attempted possession of a controlled substance. The trial court deferred an adjudication of guilt and placed Zavala on community supervision for one year. The trial court certified that, although this is a plea-bargain case, Zavala had a right to appeal matters that were raised by written motion filed and ruled on before trial.
Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Brodnex v. State 485 S.W.3d 432, 436 (Tex. Crim. App. 2016). We review the trial court's factual findings for an abuse of discretion, but review the trial court's application of the law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We afford almost total deference to the trial court's determination of historical facts, "especially if those are based on an assessment of credibility and demeanor." Brodnex, 485 S.W.3d at 436 (quoting Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). We give the same deference to the trial court's conclusions with respect to mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We review mixed questions of law and fact that do not turn on credibility and demeanor as well as purely legal questions de novo. Brodnex, 485 S.W.3d at 436.
As a general rule, we view the evidence in the light most favorable to the trial court's ruling and afford the prevailing party the strongest legitimate view of the evidence, including all reasonable inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013). When, as in this case, a trial court does not make explicit findings of historical facts, "we will assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion." Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000); see also Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016). We will affirm the trial court's ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case, even if the trial court did not rely on that theory. Alford v. State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013).
Analysis
The United States constitution protects against unreasonable searches by governmental officials. U.S. CONST. amend. IV. A defendant asserting a search or seizure violates the federal constitution bears the burden of producing evidence to rebut the presumption of proper conduct by law enforcement. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The defendant can satisfy this burden by establishing the search or seizure occurred without a warrant. Id. If the defendant satisfies his initial burden, the burden then shifts to the State to establish that the search or seizure was nevertheless reasonable under the totality of the circumstances. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). The State concedes Officer Allen did not have a warrant at the time he searched Zavala.
Although Zavala cites to both the federal and Texas constitutions in his appellate brief, he does not argue that the Texas constitution provides greater protection than the federal constitution. Therefore, we will analyze his unreasonable search claim solely on federal grounds. See Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993) (declining to address defendant's claims based on Texas constitution because he "proffered no argument or authority concerning the protection provided by the Texas Constitution or how that protection differs from the protection provided by the United States Constitution"); Harris v. State, 475 S.W.3d 395, 399 n.1 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). Further, the court of criminal appeals has recently indicated the Texas constitution grants no greater protection in this area than does the Fourth Amendment. See Hankston v. State, No. PD-0887-15, 2017 WL 1337659, at *7 (Tex. Crim. App. Apr. 12, 2017).
The Fourth Amendment exclusionary rule is made applicable to the states through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 650-51 (1961); Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
Zavala first argues "the search of his body by ordering him to remove his socks and shoes after sitting on the street curb for an hour was unreasonable and beyond the allowable scope of a warrantless search." However, a police officer has probable cause to search "when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found." Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). "[I]n the context of searches, probable cause involves 'a fair probability that contraband or evidence of a crime will be found.'" Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). Texas courts have consistently concluded the odor of marijuana alone is sufficient to constitute probable cause to search a defendant's person, vehicle, or objects within the vehicle. See Moulden v. State, 576 S.W.2d 817, 819-20 (Tex. Crim. App. [Panel Op.] 1978); Miller v. State, 608 S.W.2d 684, 685-86 (Tex. Crim. App. [Panel Op.] 1980); Brenes v. State, 488 S.W.3d 384, 389 (Tex. App.—Texarkana 2016, pet. ref'd); Rocha v. State, 464 S.W.3d 410, 418 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd); Jordan v. State, 394 S.W.3d 58, 64-65 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (citing cases).
"A warrantless search of a person is reasonable only if it falls within a recognized exception" to the warrant requirement. Weems, 493 S.W.3d at 577; State v. Villarreal, 475 S.W.3d 784, 808-09 (Tex. Crim. App. 2014); cert. denied, 136 S.Ct. 2544 (2016); Deleon v. State, No. 11-15-00143-CR, 2017 WL 549007, at *2 (Tex. App.—Eastland Feb. 10, 2017, pet. filed). However, Zavala did not complain in his appellate brief that the search did not fall within a recognized exception to the warrant requirement. See State v. Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016) ("if the appellant fails to argue a 'theory of law' applicable to case on appeal, that argument is forfeited."); see e.g. Horton v. State, No. 01-14-00993-CR, 2016 WL 1644486, at *5 (Tex. App.—Houston [1st Dist.] Apr. 26, 2016, pet. ref'd) (mem. op., not designated for publication), cert. denied, 137 S.Ct. 1378 (2017) ("Because the trial court was not apprised of any issues regarding possible exceptions to the warrant requirement and the argument at trial was focused on probable cause, we conclude that Horton has failed to preserve the issue of whether there was a valid exception to the warrant requirement as a ground for complaint on appeal."). Accordingly, we need not address whether the evidence supports the trial court's implied finding that the search fell within a recognized exception to the warrant requirement.
See also Brown v. State, No. 05-16-00654-CR, 2017 WL 491261, at *3 (Tex. App.—Dallas Feb. 7, 2017, no pet.) (mem. op., not designated for publication) (noting that officer smelled the odor of marijuana coming from defendant's vehicle and had "probable cause to search the vehicle").
Immediately after Zavala rolled down the window of the car, Officer Allen smelled a strong odor of marijuana emanating from the car. While removing Zavala and the other individuals from the car, Officer Allen smelled a strong odor of marijuana emanating from their persons. Accordingly, Officer Allen had probable cause to search both the vehicle and Zavala, see Miller, 608 S.W.2d at 685-86; Rocha, 464 S.W.3d at 418, and we conclude the scope of the search was reasonable under the circumstances.
Zavala also contends that his "detention status had changed to an arrest status" prior to being required to remove his socks and shoes, Officer Allen failed to obtain a search warrant, and the scope of the search exceeded that permitted for a search incident to arrest. A motion to suppress is a specialized objection to the admissibility of evidence. Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012). Therefore, it must conform to the requirements for an objection. Douglas v. State, 489 S.W.3d 613, 629 (Tex. App.—Texarkana 2016, no pet.). The motion must be timely and sufficiently specific to inform the trial court of the complaint. Krause v. State, 243 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). Further, although the court of criminal appeals has "long eschewed hyper-technical requirements for error preservation," Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016), the complaint on appeal must correspond to the issues raised in the motion filed in the trial court, see Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); Douglas, 489 S.W.3d at 629. The party must "let the trial court know what he wants and why he feels himself entitled to it clearly enough for the judge to understand him." Vasquez, 483 S.W.3d at 554. A motion which states one legal theory cannot be used to support a different legal theory on appeal. Davis v. State, 22 S.W.3d 8, 11 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)).
See also Pallares-Ramirez v. State, No. 05-15-01347-CR, 2017 WL 33738, at *3 (Tex. App.—Dallas Jan. 3, 2017, no pet.) (mem. op., not designated for publication).
See also Pallares-Ramirez, 2017 WL 33738, at *3.
See also Grubbs v. State, No. 05-15-01429-CR, 2016 WL 5851921, at *1 (Tex. App.—Dallas Oct. 6, 2016, no pet.) (mem. op., not designated for publication).
See also Grubbs, 2016 WL 5851921, at *1 ("A trial court's decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record.").
To determine whether a complaint was preserved for appellate review, we consider the context in which it was made and the parties' and the trial court's shared understanding at that time. Pena, 285 S.W.3d at 464. "[W]hen the context shows that a party failed to effectively communicate his argument, then the error will be deemed forfeited on appeal." Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009). "[A] complaint that could, in isolation, be read to express more than one legal argument will generally not preserve all potentially relevant arguments for appeal." Id. at 314. To determine whether a particular legal argument was preserved for appellate review without having been expressly made below, we look for statements or actions on the record that clearly indicate the trial court's and trial counsel's understanding. Id. at 315-16.
Zavala did not specifically complain in either his motion to suppress or during the hearing on the motion that he been arrested at the time of the search or that requiring him to remove his shoes and socks exceeded the scope of a search incident to arrest. Further, the record does not reflect that Zavala effectively communicated in the trial court that he was requesting the cocaine be suppressed because he had been arrested at the time of the search or because requiring him to remove his shoes and socks exceeded the scope of a search incident to arrest. Accordingly, he failed to preserve this complaint for our review. See Vasquez, 483 S.W.3d at 556 (A general or imprecise objection will not preserve error for appeal unless the legal basis for the objection is obvious to the court and to opposing counsel.); Resendez, 306 S.W.3d at 313; Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) ("Appellant's global statements in his pretrial motion to suppress were not sufficiently specific to preserve the arguments he now makes on appeal.").
See also Rothstein v. State, 267 S.W.3d 366, 373-74 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (determining defendant did not preserve issue for appeal where his argument on appeal did not comport with objection raised in motion to suppress or at suppression hearing); Grubbs, 2016 WL 5851921, at *2 ("Because appellant's argument on appeal does not comport with any objection raised in the motion to suppress, he failed to preserve error, if any, for review.").
We resolve Zavala's sole issue against him and affirm the trial court's denial of the motion to suppress.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160227F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F-1235264-K.
Opinion delivered by Justice Fillmore, Justices Whitehill and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 18th day of May, 2017.