Hudson v. State

TOM GRAY, Chief Justice,

concurring.

Hudson appeals his conviction for burglary of a vehicle. See Tex. PeNAl Code Ann. § 30.04(a) (Vernon 2003). Our first duty as an appellate court, beyond determining our jurisdiction, is to determine, if the complaint is of the type that must be preserved for review, whether it has been properly preserved. See Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App.2005); Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App.2000); see also Alonzo v. State, 158 S.W.3d 515, 515-17 (Tex.Crim.App.2005) (Keller, P.J., dissenting). Accordingly, we should affirm on the following grounds. Because the majority does not do so, I concur in the judgment.

Motion to Suppress Evidence. In Hudson’s first two issues, he contends that the trial court erred in overruling Hudson’s motion to suppress evidence. In his first issue, he complains of his oral statements.1 In his second issue, he complains of a specimen of his saliva.

A defendant is not required to have the evidence which he sought to suppress admitted in order for the court of appeals to address the merits of an appeal challenging denial of a pretrial motion to suppress. [AJppellate courts must use a two step inquiry when deciding whether to address the merits of a claim regarding the trial court’s denial of a pretrial motion to suppress evidence prior to a guilty plea. First, the appellate court must identify “the fruits” that the trial court held would not be suppressed. McGlynn [v. State ], 704 S.W.2d [18,] 21 [ (Tex.Crim.App.1982) ]. Second, the appellate court must determine that these fruits have “somehow been used” by the State. Kraft [v. State], 762 S.W.2d [612,] 613-14 [ (Tex.Crim.App.1988) ]. If it is not clear from the testimony and exhibits what “the fruits” are, then the appellate court need not address the merits of the claim. Likewise, if the fruits have not “somehow been used” by the State, then the appellate court need not address the merits of the claim.

Gonzales v. State, 966 S.W.2d 521, 524 (Tex.Crim.App.1998) (some internal citations omitted).

The record does not contain the proceedings at Hudson’s guilty plea. The record does not clearly show any statements by Hudson or any saliva DNA analysis evidence. Nor does the record show any use of such evidence by the State. Accordingly, we should not address the mer*606its of Hudson’s first two issues, and should overrule them on those grounds.

Motion for New Trial. In Hudson’s third issue, he contends that the trial court erred in overruling Hudson’s motion for new trial. Hudson’s issue is inadequately briefed.2 “The appellant’s brief must ... contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(h). When an appellant does not provide argument with citations in support of an issue, the issue is inadequately briefed, presents nothing for review, and must be overruled. See Hall v. State, 160 S.W.3d 24, 26 n. 2 (Tex.Crim.App.2004), cert. denied, — U.S. -, 125 S.Ct. 2962, 162 L.Ed.2d 891 (2005); Hankins v. State, 132 S.W.3d 380, 385 (Tex.Crim.App.), cert. denied, 543 U.S. 944, 125 S.Ct. 358, 160 L.Ed.2d 256 (2004); McCarthy v. State, 65 S.W.3d 47, 49 n. 2 (Tex.Crim.App.2001), cert. denied, 545 U.S. 1117, 125 S.Ct. 2906, 162 L.Ed.2d 298 (2005); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000) (op. on orig. submission); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App.2000). Hudson’s brief does not provide argument in support of his issue. Hudson’s third issue is thus inadequately briefed, and we should overrule it on that ground.

We should, having overruled Hudson’s issues on the above grounds, affirm. I concur in the judgment.

. Although the trial court orally granted Hudson’s motion as to the statements, the court’s written order simply denies the motion.

. Hudson’s issue, in its entirety, is as follows:

Appellant filed a motion for new trial presenting evidence that Defendant could not have voluntarily abandoned the Dr. Pepper can [from which Hudson alleges a saliva specimen was taken] because the jail rules prohibited him from taking such items back into the jail. Such motion established that the evidence seized from Appellant should have been suppressed at the original hearing. For this reason, along with the law showing the violations of Appellant's constitutional rights as detailed above, the trial court erred in denying Appellant's motion for new trial.