Opinion issued July 16, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00782-CR
TOMMY JOE GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 07CR0629
MEMORANDUM OPINION
A jury convicted appellant, Tommy Joe Green, of unlawful possession of a firearm by a felon. See Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2008). After finding that appellant had two previous convictions for possession of a controlled substance, the jury assessed punishment at 50 years’ imprisonment. Appellant brings three points of error, in which he contends the trial court erred in overruling his motion to suppress. We affirm.
Background
Texas City Police Officer Richard Valdivia pulled over the car appellant was driving when Valdivia saw appellant fail to signal a right turn. Appellant parked the car, got out, and waited for Officer Valdivia to approach him. Valdivia asked appellant for his driver’s license, and appellant responded that he had only an identification card. Officer Valdivia also asked for permission to search both appellant and the car. Appellant gave permission for a personal search, but refused to allow a search of the car, explaining that it did not belong to him. Valdivia had a search run on appellant, which revealed that appellant did not have a driver’s license, and Valdivia arrested appellant. See Tex. Transp. Code Ann. §§ 521.021, .461 (Vernon 2007) (requiring driver’s license when operating motor vehicle on highway and establishing offense for violation).
After appellant’s arrest, Officer Valdivia’s partner, Officer Brian Berg, searched the car appellant was driving. Berg searched the immediate area where appellant had been sitting and found a .38 handgun wrapped in a cloth in the middle of the passenger’s seat. A man approached the officers and claimed to own the car, but the officers testified that appellant had already been arrested and that the search was either in progress or had been concluded. The officers did not allow the man to prove his ownership. The car was towed away, pursuant to what Officer Berg testified was the standard practice of the Texas City Police Department to either tow a vehicle or release it to the registered owner. The alleged owner did not testify at trial.
Detective Randall Johnson spoke to appellant on the day after appellant was arrested. Johnson testified that he informed appellant of his Miranda rights before asking appellant to make a statement. Johnson testified that appellant waived those rights in writing before making his voluntary statement and confession, and that appellant neither requested an attorney, nor appeared intoxicated. Johnson also testified that, approximately 27 hours after the arrest, appellant signed the statement and confession, which contained the following language: “I further state that I understand that I have waived each of the rights set out in the beginning of this statement and was fully aware of my rights during the entire period that the above statement was taken.”
Appellant testified outside the presence of the jury that he was under the influence of the drug Xanax at the time of his arrest and that the effect of the drug had not worn off when he signed his confession. Appellant also testified that he asked Detective Johnson for an attorney.
After an evidentiary hearing outside the jury’s presence, the trial court denied appellant’s motion to suppress the statement:
THE COURT: Okay. It’s the Court’s finding that a [Code of Criminal Procedure article] 38.22 warning was appropriately given in this case and was initialed off and was signed off by the Defendant in this case on multiple occasions. And that the Defendant had -- did waive his Miranda, so-called Miranda rights not just once, but a couple of times. And that the statement was made voluntarily. So I’m denying the suppression of the statement. And that’s it.
See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005). The trial court did not expressly rule prejudgment on the motion to suppress evidence of the gun.
Discussion
In point of error one, appellant claims the trial court erred in denying his motion to suppress his confession. On appeal, appellant essentially argues four specific reasons for the alleged error: (1) appellant was not timely taken before a magistrate and warned; (2) the record contains evidence that appellant was not admonished of his Miranda rights before giving his confession; (3) Detective Johnson did not provide a scientific basis for his testimony that appellant was not under the influence of drugs at the time the statement was taken; and (4) appellant requested a lawyer, yet Detective Johnson nonetheless proceeded with questioning appellant. Of these four reasons, only the last was argued by appellant at the hearing on the motion to suppress. Accordingly, we hold appellant has not preserved reasons one, two, and three for appellate review. See Tex. R. App. P. 33.1(a) (preservation-of-error rule); Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) (appellate court cannot reverse on legal theory not presented to trial court by complaining party).
We now consider the argument that appellant did preserve—appellant’s claim that he requested a lawyer at the time of his arrest, yet Detective Johnson nonetheless proceeded with questioning appellant without a lawyer present. Appellant’s briefing consists of the following:
Testimony elicited by trial counsel during the suppression hearing focused on Appellant’s denial of his right to counsel as a basis to suppress his written confession. Trial counsel argued to the court, “I would argue to the Court that once the right to an attorney is invoked, that the officer is supposed to stop questioning. And even if somebody signs the waivers after that, if the right to an attorney is invoked, then that’s not a valid waiver. (RR3-128). For these reasons, Appellant’s written statement should have been suppressed.
Appellant neither cites authority for this argument, nor attacks the trial court’s finding that his statement was made voluntarily. The record contains evidence that Detective Johnson informed appellant that appellant had “the right to have a lawyer present to advise [him] prior to and during any questioning.”
We overrule point of error one.
In points of error two and three, appellant claims the trial court erred in denying his motion to suppress evidence of the gun, because he claims the inventory search of the car was illegal under both the state (point two) and federal (point three) constitutions. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. The trial court did not rule during trial on appellant’s motion to suppress evidence of the gun, but ruled postjudgment as follows:
3.The Court further finds that the vehicle was searched without a warrant. The court finds that the vehicle search was reasonable, was incident to a lawful arrest and the vehicle was also lawfully inventoried prior to being impounded.
4.Finally the Court finds that during the lawful search of the vehicle, by the Texas City Police Department, a gun was found on the front seat of the vehicle. It was subsequently learned that the Defendant, Tommy Joe Green had been convicted of a Felony and he was charged with Felon in Possession of a Firearm.
On appeal, appellant challenges the impoundment of the car and the resulting inventory search, but appellant does not challenge the legality of the search based on
a search incident to an arrest. See New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981) (“Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”) ; State v. Gray, 158 S.W.3d, 465, 470 & n.12 (Tex. Crim. App. 2005). Even if the trial court’s postjudgment “order” is a ruling on appellant’s motion to suppress that preserves error under Texas Rule of Appellate Procedure 33.1(a)(1)(A), appellant has not challenged on appeal all possible legal bases to support the introduction of the gun into evidence. Because the trial court’s decision can be upheld on any theory of law applicable to the case, we do not decide whether the inventory search would violate the state and federal constitutions. See Hailey, 87 S.W.3d at 121.
We overrule points of error 2 and 3.
Conclusion
We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Bland, Sharp, and Taft.
Do not publish. Tex. R. App. P. 47.2(b).