Lindley v. State

ON MOTION FOR REHEARING

The State in its motion for rehearing complains that this Court erred in sustaining appellant’s third and fourth points of error. Appellant in those points of error complained that evidence obtained as a result of a search of his vehicle was improperly admitted into evidence because the search warrant failed to particularly describe the vehicle and, consequently, the search exceeded the scope of the warrant. Although the State failed to argue that the appellant did not preserve such grounds for review by this Court on original submission, in its motion for rehearing the State strenuously argues that appellant failed to object to the search on these grounds. We agree with the State’s contention and, accordingly, our opinion dated March 24, 1989, is withdrawn and the following is substituted.

This appeal is from a conviction for aggravated possession of cocaine with the *584intent to distribute. A jury found the appellant guilty, assessed her punishment at fifty years’ confinement, and a fine of $100,000.00. We affirm.

In September of 1986, a drug investigation centered on an apartment at 110 East Hawkins Parkway in Longview, Texas. Appellant was the lessee of said apartment. From September 4 to September 12 of 1986, a twenty-four-hour surveillance was conducted by members of the Department of Public Safety’s (hereinafter DPS) narcotics unit, Gregg County Sheriff’s Department, and the Longview Police Department. The court ordered a wiretap of the incoming and outgoing phone calls at the apartment. The narcotics agents also watched the comings and goings of a black Z-28 that was driven by appellant and her husband. On September 12, 1986, appellant’s husband was followed to and from Dallas. On that same day, a search warrant was obtained to search appellant’s apartment and “all vehicles known by the affiant to be under the care and control of John Harley Lindley and Judith Parrish Lindley.” A search of the apartment was made and 1443.6 grams (3.18 pounds) of cocaine and 17.1 grams of marihuana were found. A search of the black Z-28 was also conducted and a briefcase was found in the trunk portion of the vehicle. The briefcase contained notebooks and other various items which indicated that appellant was involved in drug trafficking.

In her first point of error, appellant contends that there was no showing of probable cause to support the issuance of the search warrant. Appellant argues that, although there might have been probable cause that John Lindley had committed a crime, there is nothing in the affidavit to support a finding of probable cause to believe that cocaine was on the premises to be searched. Specifically, she argues that the affidavit entirely fails to establish a nexus between the place to be searched and the evidence sought by the warrant.

Probable cause to believe a person has committed a crime does not automatically supply probable cause to search that person’s home for evidence of the crime. U.S. v. Freeman, 685 F.2d 942 (5th Cir.1982); Johnson v. State, 722 S.W.2d 417 (Tex.Cr.App.1986). Where the facts and circumstances within the knowledge of a police officer, arising from a reasonably trustworthy source, would warrant a man of reasonable caution in the belief that items of contraband or evidence of a crime may presently be found in a specified place, there is probable cause to issue a warrant to search that place. Cassias v. State, 719 S.W.2d 585 (Tex.Cr.App.1986).

In the instant case, police relied upon three conversations recorded by the wiretap to establish probable cause. The affidavit shows that on September 5, 1986, the surveillance team observed an individual identified as Kathy Rector enter appellant’s apartment. Rector placed an outgoing phone call to her mother. Her mother asked, “O.K., what I’m saying is are you going to be able to get it?,” to which Rector replied, “Yeah.” Her mother then asked, “The speed or the coke?”

On September 8, 1986, John Lindley discussed the sale of “cases of champagne.” He offered to sell ten “cases of champagne” at $1,200.00 per case. The affiant of the search warrant stated that based on his experience as a narcotics investigator, he was aware that the common price of 10 ounces of cocaine would be approximately $1,200.00. Affiant further stated in the warrant that the phrase “cases of champagne” is used by drug traffickers to refer to controlled substances, especially when such controlled substances are discussed over the telephone. Also during this conversation, the caller asked appellant’s husband, “You got ten?” Appellant’s husband replied, “Right now, yeah I’m sittin’ right on here.”

On September 10, 1986, a woman named Kristie called John Lindley and said, “I have that, that fertilizer that you needed.” Appellant’s husband replied, “Well, why don’t you come by and see me?” Affiant stated in the affidavit that “fertilizer” is used by persons who distribute cocaine to mean money.

The affidavit supporting the search warrant contains factual allegations that estab*585lish a nexus between the place to be searched, the apartment, and the evidence sought by the warrant — cocaine. Applying the Cassias standard to the facts in this case, we find that there was probable cause to support the issuance of the search warrant. The first point is overruled.

In her four remaining points of error, appellant raised the following contentions: (2) the search warrant was invalid because the facts attested to were not so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time; (3) the evidence obtained by the execution of the warrant should not have been admitted because the warrant failed to particularly describe the vehicle to be searched; (4) the search of the automobile and the briefcase found therein exceeded the scope of the search warrant; and (5) the search warrant was invalid because it did not sufficiently describe the items to be seized.

In our original opinion we reversed and remanded this cause for a new trial based on points three and four as listed above. However, we are now persuaded that none of these contentions were preserved for review by this Court.

The appellant made the following objection to the admission of the evidence recovered as a result of the search of the apartment and automobile:

Your Honor, I’m going to dictate what I will refer to as Defendant’s Trial Objection Number 1, which is an objection to going to admissibility of all items of evidence, both physical, documentary, and testimentary [sic] obtained as a result of a search of the Defendant’s residence at 110 Hawkins Parkway, Apartment 1098, and the search of a black Z-28 automobile located in the parking lot of that apartment complex. Defendant is going — or does object to the admissibility of any of that evidence on the grounds that same was obtained by means of a search warrant which was issued based on inadequate or no probable cause, a search warrant which was based on an illegal wire intercept, and an illegal pin register, both of which were obtained in violation of the statutory provisions of the Texas Code of Criminal Procedure, both of which based on inadequate or no probable cause that, in fact, the search which was issued and made the basis of the search resulting in this evidence, physical evidence was obtained in a bootstrap fashion, basing the probable cause for the search warrant on an illegal pin register and wire intercept. Defendant would show that that search violates her rights under the Fourth Amendment to the United States Constitution and the search provisions of the Texas Constitution, as well as Article 38.23 of the Texas Code of Criminal Procedure.
That would be our objection, Your Honor, to matters obtained as a result of that specific search on that apartment and on that automobile.

Although there is general language claiming that the search violated both the state and federal constitutions, it is clear from the context of the objection that appellant was basing his objection to the search solely on the ground that there was no or insufficient probable cause for the issuance of the search warrant.

Although appellant based his trial objection on that ground, he now complains on appeal that the search warrant and search were violative of his rights on numerous other legal theories.

The error presented on appeal must be the same as the objection raised before the trial court. Nelson v. State, 607 S.W.2d 664, 565 (Tex.Cr.App.1980) (panel opinion). Appellant’s contentions in points of error 2-5 differ from her trial objection. Since that is the case, appellant has not preserved those contentions for review. See Bennett v. State, 742 S.W.2d 664, 673 (Tex.Cr.App.1987); Hodge v. State, 631 S.W.2d 754, 757 (Tex.Cr.App.1982).

There is some general language in appellant’s trial objection that states that the search violates both his federal and state constitutional rights. That language appears as follows:

Defendant would show that that search violates her rights under the Fourth *586Amendment to the United States Constitution and the search provisions of the Texas Constitution, as well as Article 38.23 of the Texas Code of Criminal Procedure.

As stated earlier, this statement, taken in context with appellant’s trial objection, reflects that her objection is based solely on the ground that the warrant was not supported by probable cause. However, if this portion of the objection could be segregated from the remainder of the objection, it would still not be sufficiently specific to support her contentions on appeal. Points of error 2-5 are overruled.

The judgment of the trial court is affirmed.