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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00120-CR
______________________________
KWAME NKRUMAH PRICE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 76th Judicial District Court
Titus County, Texas
Trial Court No. CR15,894
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
When Mount Pleasant police officers Joshua Hatfield and Kevin Bisnette observed Kwame Nkrumah Price driving on Interstate Highway 30, Price’s vehicle was close behind a tractor-trailer rig—as near as six feet behind the truck or as far as one and one-half car lengths behind it—travelling at a normal speed for that highway. The officers stopped Price for following the truck too closely[1] and, during the stop, first, smelled the odor of marihuana, next, searched Price’s vehicle, and, finally, discovered 28.08 grams of cocaine and 4.74 pounds of marihuana.
Price appeals his resulting conviction[2] for possession of more than four grams, but less than 200 grams of a controlled substance (cocaine), a second degree felony.[3] See Tex. Health & Safety Code Ann. § 481.115(d) (West 2010). We affirm the judgment of the trial court because (1) a jury finding under Article 38.23(a), concerning the search’s legality, is not reviewable for evidentiary sufficiency, and (2) Price has not preserved any challenge to the admission of the evidence from the traffic stop.
(1) A Jury Finding Under Article 38.23(a), Concerning the Search’s Legality, Is Not Reviewable for Evidentiary Sufficiency
Price argues that the initial traffic stop occurred in violation of the Fourth Amendment and Article I, Section 9 of the Texas Constitution. Price asserts that officers lacked reasonable suspicion that he had committed a traffic offense. The trial court had instructed the jury that, if it found the officer had no reasonable suspicion to believe Price was following too closely, the jury should disregard evidence obtained from the resulting traffic stop. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005).
Price’s brief does not explicitly attack the sufficiency of the evidence, but does argue in multiple places that the evidence does not support a finding of reasonable suspicion. We interpret these statements to be a challenge to the sufficiency of the evidence of the Article 38.23[4] jury instruction.
The Texas Court of Criminal Appeals has recognized that evidentiary sufficiency and admissibility of evidence are distinct issues. Sufficiency of the evidence is concerned with whether the elements of an offense have been logically established by all the evidence presented, both admissible and inadmissible. See Hanks v. State, 137 S.W.3d 668, 671 (Tex. Crim. App. 2004); Henry v. State, No. 06-11-00010-CR, 2011 Tex. App. LEXIS 7255, at **6–7 (Tex. App.—Texarkana Sept. 6, 2011, no pet.) (mem. op., not designated for publication). “‘Admissibility’ relates to the fairness of introducing evidence and its logical relevance.” Hanks, 137 S.W.3d at 671. Accordingly, a sufficiency review is appropriate only as to the sufficiency of the State’s proof as to elements of the offense. Id. at 672; see Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The legality of appellant’s detention is not an element of the offense charged, but relates to the admissibility of evidence. See Malik, 953 S.W.2d at 240. But, an evidentiary sufficiency review is not available for an Article 38.23 jury instruction. Henry, 2011 Tex. App. LEXIS 7255, at **6–7; Saylor v. State, No. 05-09-01558-CR, 2011 Tex. App. LEXIS 1048, at **5–6 (Tex. App.—Dallas Feb. 15, 2011, pet. ref’d) (mem. op., not designated for publication); Verhagen v. State, No. 05-05-00078-CR, 2006 Tex. App. LEXIS 1279, at **4-6 (Tex. App.—Dallas Feb. 16, 2006, pet. ref’d) (mem. op., not designated for publication); see Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008) (“[h]ad he received an Article 38.23 jury instruction, he would have no appellate claim at all because the jury’s decision regarding that factual dispute would be unreviewable”).
We overrule this point of error.
(2) Price Has Not Preserved any Challenge to the Admission of the Evidence from the Traffic Stop
Price’s brief also challenges the admissibility of the evidence discovered during the traffic stop. Before we can address the merits of Price’s admissibility argument,[5] we must first determine whether the issue has been preserved for appellate review. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (error preservation is “systemic” requirement; if error not preserved, appellate courts should not address issue).
Price did not file a pretrial motion to suppress the evidence[6] and did not object when the State introduced evidence resulting from the seizure. In fact, when the State offered the cocaine in this case—and the marihuana in the companion case—discovered in the search of Price’s car, Price affirmatively stated “no objection.” Price’s only attempt to challenge the evidence resulting from the seizure was his motion for directed verdict made after the State rested. This motion was made after all of the challenged evidence had been admitted by the trial court without objection. The motion for directed verdict does not request that the evidence be suppressed or excluded, but rather only requests a directed verdict of “not guilty.” Price did not request the evidence be struck from the record, but rather requested only a directed verdict.
A motion for directed verdict is normally not an effective method for raising suppression issues. Although we recognize that a motion to suppress, in a typical drug-possession case, is almost always the functional equivalent of an acquittal,[7] the remedy for illegally obtained evidence is not an acquittal, but is rather exclusion of the evidence.[8] Even if the police officers lacked reasonable suspicion for the initial detention, the evidence may be admissible under the attenuation-of-taint doctrine, or other evidence not tainted by the illegal search or seizure may exist.[9] Price’s sole challenge requested relief to which he was not entitled.
Even if we interpreted Price’s motion for directed verdict as a motion to suppress, such a motion would be untimely. To preserve an issue for appellate review, Price should have complained or objected to the trial court on a timely basis. See Tex. R. App. P. 33.1(a)(1). Such an objection must be presented in a timely manner before the admission of the evidence or as soon as the objectionable nature of the evidence became apparent. Kane v. State, 173 S.W.3d 589, 592–93 (Tex. App.—Fort Worth 2005, no pet.); see Tex. R. App. P. 33.1; Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). The State first introduced evidence resulting from the traffic stop approximately eighty pages in the reporter’s record before the motion for a directed verdict appears. Price failed to make a timely objection to the admission of the evidence. To the extent Price’s brief can be interpreted as arguing the trial court erred in not suppressing the evidence, the admissibility of the evidence obtained as a result of the detention has not been preserved for review. We overrule this point of error.
For the reasons stated, we affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: January 3, 2012
Date Decided: January 12, 2012
Do Not Publish
[1]See Tex. Transp. Code Ann. § 545.062(a) (West 2011).
[2]Price was sentenced to 6.25 years’ imprisonment.
[3]In a companion case, our cause number 06-11-00121-CR, the appeal of which is also decided today, Price was convicted of the state jail felony of possession of more than four ounces, but less than five pounds, of marihuana and received a sentence of two years’ imprisonment. See Tex. Health & Safety Code Ann. § 481.121(b)(3) (West 2010).
[4]A defendant is entitled to a jury instruction pursuant to Article 38.23(a) of the Texas Code of Criminal Procedure when there is a factual dispute regarding the legality of the search. Robinson v. State, No. 06-09-00225-CR, 2011 Tex. App. LEXIS 200 (Tex. App.—Texarkana Jan. 13, 2011, pet. granted) (mem. op., not designated for publication). Article 38.23(a) provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).
[5]We note Price has provided an excellent brief discussing the requirements for a traffic stop and applying said requirements to this case.
[6]The record does not contain any motion to suppress. Our clerk’s office contacted the District Clerk of Titus County and was informed that their file does not contain any motion to suppress.
[7]In many cases all of the State’s evidence will have been tainted by the illegal search or seizure and, thus, suppression is the functional equivalent of an acquittal.
[8]Evidence illegally obtained can be excluded under the exclusionary rule of the Fourth Amendment, the Texas Constitution, or Article 38.23(a) of the Texas Code of Criminal Procedure. See Mapp v. Ohio, 367 U.S. 643 (1961); see also Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23(a).
[9]See, e.g., State v. Elias, 339 S.W.3d 667, 678 (Tex. Crim. App. 2011) (discussing attenuation of taint).