Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00198-CR
Antonio PULIDO-MAYA,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 11-11-0273-CRA
Honorable Donna S. Rayes, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 11, 2013
AFFIRMED
Antonio Pulido-Maya appeals his conviction for possession of a useable quantity of
marijuana in an amount greater than fifty pounds but no more than two thousand pounds. See TEX.
HEALTH & SAFETY CODE ANN. § 481.121(b) (West 2010). Pulido-Maya was stopped and detained
for speeding while driving northbound on Interstate 37 in Atascosa County, Texas. The Texas
Department of Public Safety trooper who stopped and detained Pulido-Maya discovered 133.8
pounds of marijuana in Pulido-Maya’s gas tank, after Pulido-Maya consented to a search. Pulido-
04-13-00198-CR
Maya moved to suppress evidence arising from the traffic stop. After the motion was denied,
Pulido-Maya pled no contest, and the trial court sentenced him to twelve years’ imprisonment.
In his written motion, Pulido-Maya moved to suppress on the ground that he “was arrested
without lawful warrant, probable cause or other lawful authority” and that “any tangible evidence
seized in connection with this case . . . was seized without warrant, probable cause or other lawful
authority,” and he further complained of general constitutional violations. He asked the court to
suppress any evidence of his arrest, any evidence related to the arrest, and any evidence seized as
a result of the arrest or connected to the police investigation. Pulido-Maya did not present any
evidence at the motion to suppress hearing. The State’s sole witness was the DPS trooper who
stopped Pulido-Maya. At the conclusion of the trooper’s testimony, Pulido-Maya’s counsel argued
“our challenge here today is a fourth amendment [sic] charge that this detention was illegal almost
from the outset and that because of the illegal detention, the consent, even though given
voluntarily, should be considered invalid.” He continued “because the consent was given during
what I consider to be an illegal detention, the consent should be considered invalid and the
proceeds of the investigation, the marijuana found should be considered fruit of the poisonous tree
and should be thrown out.” At the hearing’s conclusion, the trial court denied the motion to
suppress, stating on the record its reasons for finding that the DPS trooper’s extension of the traffic
stop was not unreasonable. It also stated that Pulido-Maya’s consent was “given freely and
voluntarily.” No written findings of fact or conclusions of law were requested or made.
On appeal, Pulido-Maya challenges the denial of the motion to suppress on grounds not
presented to the trial court. He presents the issue before this court as “[t]he appellant would
respectfully submit that the trial Court [sic] in its legal conclusion that the consent given was given
freely and voluntarily.” He only sets out authority discussing voluntary consent, and his actual
argument consists of seven sentences:
-2-
04-13-00198-CR
In the instant case the trial court made an express finding that the
consent in question was ‘given freely and voluntarily.’ The finding
went no further than that wholly conclusory statement by the trial
court. The finding by the trial court did not take into account the
totality of the circumstances surrounding the purported consent.
Specifically, the finding of the trial court did not encompass a
finding that when asked for consent by [the DPS trooper] the
appellant’s reply of ‘go for it’ amounted to a voluntary consent to
conduct a search of the magnitude demonstrated by the subsequent
actions of [the DPS trooper]. The prosecution failed to meet its
burden of demonstrating a valid consent as a basis for justifying the
presumptively unreasonable conducted by members of law
enforcement. Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App.
2009); Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000).
The order of the trial Court [sic] denying the appellant’s [sic]
constituted an abuse of discretion. It should be reversed.
Pulido-Maya thus appears to contend that 1) his consent was not voluntarily given; 2) the trial
court made insufficient findings of fact for appellate review on that issue; and 3) the DPS trooper’s
search of Pulido-Maya’s gas tank was outside the scope of his consent.
To preserve error for appellate review, the Rules of Appellate Procedure require a
defendant to make a timely request, objection, or motion to the trial court, stating “the grounds for
the ruling that the complaining party sought from the trial court with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent from the
context.” 1 TEX. R. APP. P. 33.1(a)(1)(A). A motion to suppress is a specialized objection to the
admissibility of evidence, and thus 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). If the motion to suppress does not identify specific constitutional violations, the defendant’s
argument and questioning of witnesses at a suppression hearing may suffice to make the grounds
apparent from the context. See DeMoss v. State, 12 S.W.3d 553, 557–58 (Tex. App.—San Antonio
1
The State has not argued that Pulido-Maya failed to preserve the issue of voluntariness, but we have an independent
duty to ensure that a complaint was preserved before addressing its merits. Wilson v. State, 311 S.W.3d 452, 473 (Tex.
Crim. App. 2010) (per curiam) (op. on reh’g).
-3-
04-13-00198-CR
1999, pet. ref’d). If a defendant moves to suppress evidence and his motion is denied, his points
of error on appeal must comport with his grounds for suppression in the trial court. Wilson v. State,
71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
In Strauss v. State, the appellant, after being stopped for speeding, consented to a search of
his van that resulted in the seizure of sixty pounds of marijuana. 121 S.W.3d 486, 489 (Tex. App.—
Amarillo 2006, pet. ref’d). He filed a motion to suppress challenging the validity of his consent,
alleging “the officers entered upon and searched ‘premises’ and seized materials ‘without lawful
consent or lawful authority and without a search warrant.’” Id. However, the appellant did not raise
the issue of the voluntariness of his consent at the suppression hearing, even after the trial judge
specifically returned to the courtroom to clarify the issues the parties wanted him to consider. Id.
In addition, the appellant tendered a brief to the trial court, expressly representing “that while he
thought it ‘doubtful that the consent to search . . . was voluntary,’ the ‘issue does not have to be
decided’ since the prior arrest was unlawful.” Id. at 490. The court of appeals was “troubled with
the prospect that an appellant can urge an objection on particular grounds in a written motion, later
inform the trial court to disregard one or more of those grounds, and then contend, on appeal, that
one of those very grounds which the trial court was directed to ignore actually warrants reversal
of the judgment.” Id. (citing Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 2003) (discussing
the doctrine of invited error by which a litigant is estopped from complaining about that which he
induced)). In addition, the appellant violated the spirit of the preservation rule because
“[i]ndicating that one ground for objection need not be addressed falls short of informing the trial
court, with sufficient specificity, of all the grounds upon which the appellant relies in asserting his
complaint.” Id. The court of appeals concluded that the “appellant [could not] assert, on appeal,
the ground that he told the court need not be decided.” Id.
-4-
04-13-00198-CR
We are confronted with an almost indistinguishable situation. Pulido-Maya was stopped
for a traffic violation, and while he was detained, he consented to a search of his vehicle, resulting
in the discovery of marijuana. The motion to suppress filed in the trial court focused exclusively
on the DPS’s trooper allegedly illegal detention of Pulido-Maya. At the suppression hearing, his
counsel expressly conceded Pulido-Maya’s consent to search his vehicle was “given voluntarily,”
and only argued that Pulido-Maya’s consent was “invalid” because the DPS trooper illegally
extended his detention of Pulido-Maya, thereby tainting the validity of his consent. Thus, not only
did Pulido-Maya’s counsel not raise the issue of voluntariness to the trial court, he affirmatively
disclaimed it as an issue. Because the issue of the voluntariness of Pulido-Maya’s consent was not
sufficiently specified in the motion to suppress, was not apparent from the context of the hearing,
and was in fact affirmatively disclaimed as an issue to the trial court, any issue of voluntariness
was not preserved for appellate review. Id.; see Wilson, 71 S.W.3d at 349; TEX. R. APP. P.
33.1(a)(1)(A).
The trial court was not aware that any issue concerning the voluntariness of Pulido-Maya’s
consent existed and was in fact informed that his consent was voluntary. We decline to require the
trial court to make findings on an uncontested issue.
Finally, to the extent that Pulido-Maya contends the search of his gas tank was outside the
scope of his consent, we hold that, because he did not present that issue to the trial court, it was
not preserved for appellate review. See Wilson, 71 S.W.3d at 349; TEX. R. APP. P. 33.1(a)(1)(A).
Because the complaints presented by Pulido-Maya on appeal do not comport with the
complaint that Pulido-Maya presented to the trial court, this court is presented with nothing to
review, and we must affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
Do Not Publish
-5-