Memorandum Opinion of September 26, 2006 Withdrawn; Affirmed and Substitute Memorandum Opinion filed February 1, 2007.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-00333-CR
____________
SAMUEL RICHARD MARES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 992,012
S U B S T I T U T E M E M O R A N D U M O P I N I O N
We overrule appellant=s motion for rehearing, withdraw our memorandum opinion of September 26, 2006, and substitute the following in its place.
This is an appeal from a conviction for possession of a controlled substance. Following the trial court=s denial of his motion to suppress evidence, appellant Samuel Richard Mares entered a guilty plea to the charge, and the punishment, enhanced by two prior felony convictions, was assessed by the trial court at thirty years= confinement. On appeal, appellant asserts the trial court erred in overruling his motion to suppress evidence seized during the search of his vehicle because: (1) the search was not a valid search incident to arrest, and (2) the detention of appellant=s vehicle after his arrest was illegal and negated any probable cause obtained as a result of a canine search and the trial court erred in overruling his motion for new trial because: (1) the indictment did not allege that he was an habitual offender, and (2) the court inaccurately admonished him on the range of punishment applicable to the case. We affirm.
I. Factual and Procedural Background
On June 23, 2004, Houston Police Department (AHPD@) officers assigned to the Harris County Organized Crime Unit conducted surveillance of a 2000 white Cadillac Escalade driven by appellant. HPD Sergeant H.C. Nichols observed appellant turning into a parking lot without using his turn signal and requested via radio that a state trooper initiate a traffic stop of appellant. Nichols testified that he saw Department of Public Safety Trooper Claude Davis, Jr. Afall in behind@ the Escalade, and saw Davis turn his lights on. According to HPD Officer Richard Fernandez, Jr., he also heard the radio communications, saw Davis=s lights turn on, and observed Davis=s stop of appellant. Shortly after both Davis=s and appellant=s vehicles were parked, Fernandez arrived at the scene. At that time Mares was in custody in Davis=s car. Thus, the majority of contested facts concern events that took place between the time appellant parked his car and the time additional officers arrived on the scene.
Davis testified that as he saw the Escalade in front of him, he drove toward the vehicle and activated his overhead lights. He further testified that as he was pulling up to stop appellant, the Escalade Aimmediately makes a hard right turn, no type of signal or anything like that, and pulls right in front of a Starbucks door.@ Davis stated he pulled in behind the Escalade and approached the driver=s side of the Escalade but appellant was no longer in his car.
According to Davis, he entered the coffee shop and asked if anyone could identify the person driving the Escalade. After one of the employees pointed to appellant, Davis approached appellant and asked him if he was the driver. Appellant responded, Ayes,@ and Davis asked him for his driver=s license. Appellant told Davis he did not have his license with him. Davis then asked appellant to provide his name and date of birth. Davis testified that he returned to his cruiser Ato run a driving history check on [appellant]@ and Ato see what type of criminal record he had.@ After receiving that information, Davis stated he called for backup Abecause [appellant] was going to be arrested for driving while license suspended.@ Davis returned to the coffee shop to inform appellant that he was going to be arrested, and found appellant attempting to call his girlfriend to have her pick up the Escalade. At some point thereafter, appellant=s girlfriend arrived. Appellant was then arrested for driving with a suspended license, handcuffed, and placed in Davis=s cruiser.
Contrary to the testimony of Nichols, Davis, and Fernandez, appellant testified that Davis never attempted to pull him over. Instead, appellant contends that Davis did not approach him until he had been in the coffee shop for Aabout five minutes.@ Appellant claims Davis only asked him if he was driving the Escalade and then left the coffee shop after appellant responded in the affirmative. According to appellant, Davis did not approach appellant a second time until after appellant=s girlfriend had arrived. Appellant alleges that after he provided Davis with his name and date of birth, Davis returned to his cruiser for Afive to ten minutes@ before returning once again to inform appellant that his license was suspended. At that point, appellant stated he gave his girlfriend the key to the Escalade, but was told by Davis that she would not be allowed to drive away with the vehicle. According to appellant, thirty minutes had elapsed between the time Davis first approached him in the coffee shop and the time he was placed under arrest for driving with a suspended license.
After appellant was placed under arrest, a canine unit arrived at the scene. Officers walked the canine around the perimeter of the Escalade, and it alerted near the driver=s side door. The canine was then allowed to enter the vehicle. It alerted to a tan satchel which was found to contain two bags of white powder and several prescription bottles bearing appellant=s name. The white powder was later determined to be sixty-five grams of cocaine. After being indicted for felony possession of a controlled substance, appellant filed a motion to suppress the evidence discovered in his vehicle. The trial court denied his motion, and appellant entered a guilty plea to the charge and pleaded true to two felony conviction enhancements. The court assessed appellant=s punishment at confinement for a period of thirty years. Thereafter, appellant filed a motion for new trial which the trial court subsequently denied.
II. Issues Presented
In his first issue, appellant contends the State failed to prove that the search of appellant=s car was legal under the Texas and United States Constitutions. Specifically, he argues that: (1) the search was not a valid search incident to arrest, and (2) the detention of appellant=s vehicle after his arrest was illegal thereby negating any probable cause obtained as a result of the dog=s positive alert. Appellant argues in his second issue that the trial court erred in overruling his motion for new trial because: (1) the indictment did not allege he was an habitual offender, and (2) the court inaccurately admonished him on the range of punishment applicable to the case. As such, appellant argues, he did not knowingly and voluntarily enter a plea of guilty.
III. Standard of Review
In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Gray, 158 S.W.3d 465, 466 (Tex. Crim. App. 2005) (en banc). Accordingly, the judge may believe or disbelieve all or any part of a witness=s testimony, even if that testimony is not controverted. Id. Furthermore, when the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Id. at 467. If the trial court=s decision is correct on any theory of law applicable to the case, the decision will be sustained. Id.
IV. Discussion
A. Denial of Appellant=s Motion to Suppress
Appellant argues in his brief that the search of his vehicle was not justified under the Asearch incident to arrest@ exception to the warrant requirement because he was not a Arecent occupant@ of the vehicle.[1] The State responds that, in the court below, appellant contested only that there was no probable cause to search his car but never challenged whether the search was a proper search incident to arrest and, in failing to do so, waived this issue.
In order to preserve a complaint for appellate review, a party must make a timely, specific objection. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 52(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994) (en banc); see also Garcia v. State, Nos. 01-94-00818-CR and 01-94-00819-CR, 1995 WL 356018, at * 2 (Tex. App.CHouston [1st Dist.] June 15, 1995, no writ) (not designated for publication) (A[L]ike an objection at trial, a motion to suppress evidence does not properly preserve an error for appeal unless the objecting party states the specific grounds for the objection . . . .@). Further, a point of error on appeal must correspond to the objection made at trial. See Wilson, 71 S.W.3d at 349; Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (en banc). An objection stating one legal theory may not be used to support a different legal theory on appeal. See Broxton, 909 S.W.2d at 918; Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (en banc).
On its face, appellant=s motion to suppress argues only that the search was illegal because it was conducted without appellant=s consent and without a valid search warrant or probable cause. Similarly, appellant=s argument at the pretrial hearing raised only the issue of probable cause. However, a search incident to arrest does not require consent, a warrant, or separate probable cause to search. See New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981) (holding that a police officer may search the passenger compartment of an automobile and any containers therein as a contemporaneous incident of the arrest of a vehicle occupant). At no time did appellant contest the validity of a search incident to arrest. Because the trial judge did not have an opportunity to rule on appellant=s motion based on the argument presented here, nothing is preserved for our review. See Rezac, 782 S.W.2d at 871.
However, assuming appellant had preserved error, we would conclude appellant=s argument lacks merit. It is well settled that warrantless searches are per se violative of the Fourth Amendment=s proscription of unreasonable searches unless they fall within one of the specifically established exceptions. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290 (1978). One recognized exception to the Fourth Amendment=s warrant requirement is that an officer may search the area within the immediate control of an arrestee. See Chimel v. California, 395 U.S. 752, 762B63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969) (concluding search following lawful custodial arrest is permitted because of need to remove weapons that arrestee might attempt to use to resist arrest or effect escape as well as need to preserve evidence); Smith v. State, 759 S.W.2d 163, 166 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d). In New York v. Belton, the United States Supreme Court expanded the authority to search under this exception to vehicles. Belton, 453 U.S. at 460, 101 S. Ct. at 2864 (A[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, [footnote omitted] he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.@). Once an officer determines that there is probable cause to make an arrest, officers may ensure their safety and preserve evidence by searching the entire passenger compartment. Thornton v. United States, 541 U.S. 615, 623, 124 S. Ct. 2127, 2132, 158 L. Ed. 2d 905 (2004). A Belton-type search of an automobile also applies when there has been a lawful custodial arrest of a Arecent occupant@ of a vehicle. Id. at 624, 124 S. Ct. at 2131B32; see also State v. Gray, 158 S.W.3d 465, 470 (Tex. Crim. App. 2005) (en banc) (AIncident to [an arrest for failing to signal a turn], the officer could have lawfully searched [appellant]=s person and the passenger compartment of [appellant]=s vehicle and the containers in it.@).
In determining whether appellant was a recent occupant of his automobile at the time of his arrest, we examine factors such as his temporal and spatial proximity to the vehicle. See Thornton, 541 U.S. at 615B16, 124 S. Ct. at 2128 (noting that Aan arrestee=s status as a >recent occupant= may turn on his temporal or spatial relationship to the car at the time of the arrest and search . . . .@); State v. Kelly, 963 S.W.2d 866, 869 (Tex. App.CSan Antonio 1998, no pet.); Caruthers v. State, No. 03-01-00390-CR, 2002 WL 1987608, at *5 (Tex. App.CAustin August 30, 2002, pet. ref=d) (not designated for publication). We also examine whether there is evidence of flight or an indication that appellant quickly exited his vehicle in an attempt to avoid contact with the police. See Kelly, 963 S.W.2d at 869; Pettigrew v. State, 908 S.W.2d 563, 570 (Tex. App. CFort Worth 1995, pet. ref=d).
After reviewing the record, we conclude the evidence is sufficient to show that appellant was a recent occupant of his vehicle. Appellant pulled into the coffee shop upon noticing that Trooper Davis had signaled for him to pull over. Davis testified he had his Aoverhead lights on@ when he observed appellant Amake a hard right turn@ as he attempted to initiate the traffic stop. According to Davis, when he got out of his car, appellant was no longer in the Escalade. When the prosecutor asked Davis AAnd all that had to happen very quickly since you were right behind him, right?@ Davis responded AYes, ma=am.@ Davis testified he knew appellant had gone into the coffee shop because Davis could see both sides of the vehicle and appellant did not go to the right or left of the vehicle, and so must have gone in front of the vehicle. The coffee shop was directly in front of the Escalade. Davis testified that he was Athat close behind@ appellant such that he could conclude that appellant could only have entered the coffee shop. Davis entered the coffee shop, asked the employees who had exited the vehicle, and the employees pointed to appellant. After approaching appellant, appellant admitted he had been driving the Escalade.
But for his having quickly exited the Escalade and entering the coffee shop, appellant would still have been in his vehicle at the time Davis confronted him, and would have been arrested in his vehicle immediately after answering the questions that led Davis to conclude he was operating a vehicle with a suspended license. Although the location where the inquiry takes place is not dispositive, it is clear from this record that only appellant=s flight placed him outside the vehicle at the time he was confronted by Davis.[2] See Pettigrew, 908 S.W.2d at 570 (noting that A[a]bandoning the >recent occupant= provision would create an incentive for suspects to attempt to flee the scene to avoid a search . . . .@).
In reaching this conclusion, we distinguish State v. Kelly, 963 S.W.2d at 870. In Kelly, an officer followed the appellant for blocks without making a stop. After the appellant parked in his grandmother=s driveway, the officer turned on his lights and stopped in front of the house. Although the testimony offered at the hearing on Kelly=s motion to suppress was contradictory, the trial court granted the motion. In affirming the ruling, the Fourth Court of Appeals stated the trial court could have found Kelly was in the house before the officer Amade his presence known to him,@ had Abeen out of his vehicle for at least ten to fifteen minutes by the time of his arrest,@ and Ahad physically distanced himself from the vehicle.@ Id. at 870. Thus, the result in Kelly is in large measure dictated by the standard of review, under which the appellate court was required to Apresume that the trial court impliedly found the facts necessary to support its ruling.@ Id. at 868.
Here, however, the same presumption dictates a contrary result. Presuming, as we must, that the trial court found the facts necessary to support its ruling, we conclude the trial court reasonably could have found that (1) Davis signaled his intent to stop the appellant; (2) upon seeing Davis=s lights, the appellant attempted to evade police by turning suddenly into the parking lot; (3) the appellant next attempted to flee on foot by entering the coffee shop and seeking a Aback exit@; (4) the appellant then attempted to remove evidence by telephoning a third party to remove the vehicle; and (5) all these events happened in quick succession. Based on this evidence, the trial court could have concluded that appellant was a Arecent occupant@ of the vehicle whose arrest justified a contemporaneous search of the vehicle he had recently exited.
Because appellant has waived this issue, and because, regardless of waiver, we conclude the officers= search of his vehicle was a valid search incident to arrest, we need not reach appellant=s argument that the continued detention of his car after his arrest was unlawful.[3] Appellant=s first issue is overruled.
B. Appellant=s Plea of Guilty Was Knowingly and Voluntarily Entered
In his second issue, appellant contends the trial court erred in overruling his motion for new trial because: (1) the indictment did not allege that he was an habitual offender, and (2) the court inaccurately admonished him on the range of punishment applicable to the case. As such, appellant argues he did not knowingly and voluntarily enter a plea of guilty.
Here, appellant was charged with possession of a controlled substance and his punishment, enhanced under Texas Penal Code ' 12.42(d) by two prior felony convictions, was assessed at thirty years= confinement. Section 12.42(d) provides, in relevant part:
If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.
Tex. Penal Code Ann. ' 12.42(d) (Vernon Supp. 2006).
The indictment alleged that the primary offense occurred on June 23, 2004; that on August 15, 1985, appellant was convicted in federal court of the felony offense of distribution of, and aiding and abetting in the distribution of, cocaine in Cause No. H-85-40-01; and on July 30, 1992, appellant was convicted in state court of the felony offense of possession of a controlled substance in Cause No. 566464. Appellant complains that the indictment alleged only that he had been previously convicted of two felony offenses but failed to allege that the first prior conviction became final before he committed the offense giving rise to the second prior conviction. Therefore, appellant argues that the indictment did not allege he was an habitual offender under section 12.42(d). He further contends that, as a result, the trial court inaccurately admonished him on the applicable range of punishment, thereby preventing him from knowingly and voluntarily entering a guilty plea.[4] In support of his argument, appellant cites to Porter v. State, 566 S.W.2d 621 (Tex. Crim. App. 1978), in which the court found there was no evidence to show that appellant=s second previous conviction was for an offense committed after the first previous conviction had become final. See id. at 622. However, Porter is inapposite. Where a defendant pleads Atrue@ to the enhancement paragraphs, he waives the complaint that the evidence is insufficient to support a finding that the prior convictions were final. Id. Although Porter is relevant when an accused challenges the sufficiency of the evidence proving the prior convictions, it is not relevant when, as here, the accused argues that the language of the indictment fails to give adequate notice that the State will attempt to prove habitual offender status. AThe averment in an indictment that an accused person has been convicted is sufficient to charge the finality of the prior felony conviction.@ Jones v. State, 711 S.W.2d 634, 635 (Tex. Crim. App. 1986) (en banc). Finally, Aif an indictment contains two enhancement allegations and the accused pleads >true= to the allegations concerning the prior convictions, the punishment is absolutely fixed by law . . . .@ Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981) (en banc). Thus, it is unnecessary as a matter of law to admonish an accused who pleads Atrue@ or Aguilty@ to enhancement convictions alleged in the indictment. Id. at 112.
Here, the indictment charged two prior convictions, and was therefore sufficient to charge the finality of the prior convictions. Appellant did not object to the form or the substance of the indictment prior to his plea bargain and sentencing, but instead pleaded Atrue@ to two prior convictions and was correctly admonished on the range of punishment mandated by Section 12.42(d) of the Texas Penal Code:
The Court: You stand charged by indictment with the felony of possession of a controlled substance alleged to have occurred on June 23rd, 2004, in Harris County. You have also allegedly been convicted twice of felonies, and so the range of punishment that you are facing today is no less than 25 years, no more than 99 years or life in the Institutional Division of the Texas Department of Criminal Justice.
* * * * *
Mares: Guilty.
The Court: Guilty. And is it true that you are the same Samuel Mares who was convicted on August 15, 1985, in Cause No. H854001 in the United States District Court for the Southern District of Texas, and you were convicted of the felony offense of distribution of cocaine and aiding and abetting in the distribution of cocaine? Is that true?
Mares: Yes.
The Court: Is it also true that you are the same Samuel Mares who was on July 30, 1992, in Cause No. 566464, in the 230th District Court of Harris County, were convicted of the felony offense of possession of a controlled substance? Is that also true?
Mares: Yes, ma=am.
The Court: Sir, are you pleading guilty and true because you are guilty of the crime and these enhancement paragraphs are true and for no other reason?
Mares: Yes, ma=am.
Evidence of the sequence of the prior convictions was solicited and admitted by appellant=s counsel at the hearing on appellant=s motion for new trial:
Q: What was your discussion?
A: Well, that he was sentenced first in the federal conviction, served that sentence, got out and committed another offense and was sentenced in the State court.
* * * * *
Q: And did you have a discussion with him about the indictment, about how it read?
A: I don=t recall discussing the particulars of the indictment other than they alleged the two prior convictions.
Q: But Samuel Mares did know that he went to the Fed prison and got outC
A: Yes.
Q: Cand then once he is out, he commits a new offenseC
A: Correct.
Q: Cwent to the pen, and then he committed the offense that occurred in June 23rd of 2004?
A: Correct.
Even if appellant preserved his allegations of error in the language of the indictment, the allegation is without merit. Because the finality and sequence of appellant=s two prior convictions were sufficiently alleged and proved, appellant=s second issue is overruled.
V. Conclusion
For the foregoing reasons, we affirm the trial court=s judgment.
/s/ Eva M. Guzman
Justice
Judgment rendered and Substitute Memorandum Opinion filed February 1, 2007.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant does not challenge the validity of his arrest.
[2] During cross-examination, appellant admitted that he asked coffee shop employees if there was a back exit to the coffee shop, and was told there was none.
[3] See Pettigrew, 908 S.W.2d at 570 (AA search under Belton is allowed even when the arrestee has been handcuffed and placed in a police car.@).
[4] Article 26.13 of the Texas Code of Criminal Procedure provides, in relevant part: A(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of: (1) the range of the punishment attached to the offense . . . .@ Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2006).