COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00322-CR
FIDEL VALDES TORRES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CR17735
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MEMORANDUM OPINION1
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In a single issue, Appellant Fidel Valdes Torres appeals his conviction for
manufacturing and delivering a controlled substance, methamphetamine, in an
amount between four and 200 grams. See Tex. Health & Safety Code Ann.
§ 481.112(a), (d) (West 2017). We affirm.
1
See Tex. R. App. P. 47.4.
Background
While executing a search warrant in July 2013 at a residence in Newark,
Texas, Deputy Chad Lanier, a sergeant in the narcotics division at the Wise
County Sheriff’s Department, arrested Michael Rager, who was already under
indictment for other drug charges at the time. After the arrest, Deputy Lanier
interviewed Rager, who sought to make a deal in exchange for leniency. The
Wise County District Attorney’s Office subsequently accepted a deal that
required Rager to contact his drug supplier and arrange for a delivery of
methamphetamine while under deputy surveillance.
On July 12, 2013, Rager called the supplier and ordered four ounces—
approximately 112 grams—of methamphetamine, while deputies listened to the
conversation on speaker phone. Rager told the deputies that his supplier was
Torres, and he identified the person who spoke on the other end of the telephone
as Torres. During the conversation, Rager asked Torres to deliver the
methamphetamine to his house in Newark, and Torres confirmed he would be
there at 4:30 p.m. Torres failed to arrive at 4:30 p.m. as promised, but at
approximately 5:15 p.m. he called and stated that he was running late due to
traffic. Just before 6:00 p.m., Torres drove past Rager’s house, pulled into a
neighbor’s driveway, called Rager, and changed the delivery location to a gas
station.
When Torres left the neighbor’s driveway, Deputy Lanier, who had been
conducting surveillance from a vehicle parked outside Rager’s home, followed
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Torres to the gas station. When Torres reached the gas station, he phoned
Rager again to let him know. Deputy Applewhite, who was with Rager when he
received Torres’s call, relayed this information to Deputy Lanier, who then
detained Torres and searched his vehicle. Deputy Lanier testified that he found
$255, two cell phones, and a large sandwich baggie containing 110 grams of
methamphetamine in Torres’s pickup. One of the phones was later verified as
the phone used to call Rager to set up the delivery. After the search, Deputy
Lanier placed Torres under arrest.
On April 28, 2015, Torres filed a motion to suppress all evidence obtained
from his vehicle on the day of the arrest, which the trial court denied. Torres
pleaded guilty on May 12, 2016, to manufacturing and delivering a controlled
substance, penalty group one, between four and 200 grams. The trial court
admitted into evidence photographs depicting the baggie, the inside of Torres’s
pickup, and the phone used to set up the drug delivery; a CD recording of
Lanier’s interview with Torres; and the lab test results confirming that the
substance in the baggie was methamphetamine. The trial court convicted Torres
and sentenced him to 25 years in the Institutional Division of the Texas
Department of Criminal Justice.
In his sole issue, Torres contends that the trial court abused its discretion
by denying his motion to suppress “because the record does not support its
conclusion.”
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Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State (Amador I), 221 S.W.3d 666, 673
(Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). We give almost total deference to a trial court’s rulings on questions of
historical fact and application-of-law-to-fact questions that turn on an evaluation
of credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador I, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
Substantive Law
A motion to suppress is merely a specialized objection to the admissibility
of evidence. Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th
Dist.] 2008, pet. ref’d) (citing Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex.
Crim. App. 1981) (op. on reh’g)). As such, a motion to suppress must meet the
ordinary procedural requirements of an objection, in that it must be timely and
sufficiently specific. Moreno v. State, 124 S.W.3d 339, 343 (Tex. App.—Corpus
Christi 2003, no pet.); see also Maxwell v. State, Nos. 02-12-00072-CR, -00073-
CR, -00074-CR, 2013 WL 6729943, at *5 (Tex. App.—Fort Worth Dec. 19, 2013,
no pet.) (mem. op., not designated for publication).
A party forfeits error if (1) the suppression motion makes global or
boilerplate arguments supported only by constitutional and statutory provisions,
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and (2) the party fails to argue any specified grounds during the hearing on the
motion to suppress. Maxwell, 2013 WL 6729943, at *5 (citing Swain v. State,
181 S.W.3d 359, 365 (Tex. Crim. App. 2005), cert. denied, 549 U.S. 861 (2006)).
Because a motion to suppress may be denied for lack of specificity alone, a trial
court commits no error by denying a motion to suppress that fails to sufficiently
specify what evidence should be suppressed. Johnson v. State, 548 S.W.2d
700, 706 (Tex. Crim. App. 1977) (holding no error in the overruling of a motion to
suppress when the appellant failed “to state what evidence, if any, was obtained
as a result of the alleged unlawful arrest”); see also Amador v. State (Amador II),
275 S.W.3d 872, 874 n.3 (Tex. Crim. App. 2009) (“[A] motion to suppress ‘must
. . . identify the items which the defendant seeks to suppress.’” (quoting W.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(a), at
35 (4th ed. 2004)).
Analysis
Torres points out more than once in his brief that the trial court denied his
motion to suppress without granting a hearing, although he does not complain of
this as an issue on appeal. We note, however, that code of criminal procedure
article 28.01 affords trial courts discretion in determining whether to grant a
hearing on a motion to suppress. Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6)
(West 2006); see Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988)
(noting that the granting of a hearing on a motion to suppress is within the trial
court’s discretion); Swanson v. State, 447 S.W.2d 942, 943 (Tex. Crim. App.
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1969). And a trial court may deny a motion to suppress without having a hearing.
Calloway, 743 S.W.2d at 649.
In response to Torres’s sole complaint on appeal—that the trial court
abused its discretion by denying his motion to suppress “because the record
does not support its conclusion”—the State responds that Torres failed to
preserve error because the motion to suppress was not sufficiently specific on its
face. We agree with the State.
In the first paragraph of his motion, Torres sought suppression of “all
property, items, and evidence seized by agents of the State of Texas on or about
July 12, 2013.” In the body of his motion, Torres referred to the items he sought
to exclude as “certain items [that] were allegedly removed from the defendant’s
person or vehicle,” “these items,” “the items taken in the illegal search,” “illegally
seized items,” “the property seized,” and “said property.” But nowhere in his
motion did Torres specify what evidence he actually wanted excluded. Nor did
Torres later articulate “these items” with more specificity at trial. And even on
appeal, Torres has failed to identify to us what evidence he claims should have
been suppressed by the trial court.
The situation here bears close resemblance to Burns v. State, in which we
upheld the denial of a motion to suppress when the defendant “never specifically
identified what evidence he wanted suppressed.” Burns v. State, No. 02-13-
00202-CR, 2014 WL 2538808, at *2 (Tex. App.—Fort Worth June 5, 2014, no
pet.) (mem. op., not designated for publication). In Burns, the defendant argued
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in boilerplate fashion that “[a]ny and all tangible evidence seized by law
enforcement officers or others in connection with the detention and arrest of
[Burns] . . . and any testimony by the Law Enforcement” should have been
suppressed. Id. The defendant also did not identify on appeal what evidence
should be suppressed. Id.
Here, Torres argued in global, boilerplate fashion, that “all property, items,
and evidence seized” should be suppressed. See id. By failing to specifically
identify the evidence he sought to be suppressed—in his motion, at trial, and on
appeal—Torres preserved nothing for our review. See Johnson, 548 S.W.2d at
706.
For that reason, we overrule Torres’s sole issue complaining that there
was no evidence to support the denial of his motion. See Amador II, 275 S.W.3d
at 874 n.3.
Conclusion
Having overruled Torres’s sole issue, we affirm the judgment of the trial
court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: SUDDERTH, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 27, 2017
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Fidel Valdes Torres v. State
Combined Opinion