Belle, Anthony Wayne v. State

• Court: Court of Appeals of Texas
• Decided: June 27, 2006
• Docket: 14-05-00331-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 27, 2006

Affirmed and Memorandum Opinion filed June 27, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00331-CR

ANTHONY WAYNE BELLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 994,571

M E M O R A N D U M    O P I N I O N

A jury convicted appellant Anthony Wayne Belle on one count of possession with intent to manufacture or deliver a controlled substance weighing more than 400 grams and sentenced him to fifty years confinement in the Texas Department of Criminal JusticeCInstitutional Division.  In his sole issue on appeal, he contends the trial court erred by denying his motion to suppress.  We affirm.

I.  Factual and Procedural Background

On July 16, 2004, appellant drove a Ford Taurus into the parking lot of a Houston pool hall.  He circled the lot several times while talking on his cellular phone and eventually parked the vehicle approximately twenty feet from an unmarked police car.  A truck driven by another male then parked in front of the Taurus.  Appellant and the driver of the truck exited their respective vehicles, and after greeting each other and shaking hands, the driver of the truck handed appellant a gold-colored gift bag.  Appellant placed the bag in the front passenger seat of the Taurus, and eventually drove out of the parking lot.  Officer William Davis of the Houston Police Department=s narcotics division, who had made numerous narcotics-related arrests at that location, witnessed the events from the unmarked police car and suspected the two men engaged in a narcotics transaction.  After discovering that the license plates on the Taurus had expired earlier in the year, he then followed appellant out of the parking lot and requested additional officers to report to the area.

Davis stated that, while he was following appellant, he saw appellant change lanes without signaling and drive in excess of the posted speed limit.  Approximately three miles from the pool hall, an officer responding to Davis=s call signaled for appellant to pull over.  Appellant turned into a restaurant parking lot.  Davis approached the vehicle and asked appellant if there was anything illegal in the vehicle; appellant responded that there was not.  Davis then requested permission to search the vehicle, but appellant refused his request.

A K-9 unit was called to the location and arrived thirty minutes later.  The canine made a positive odor response to the exterior door seam on the passenger side of the Taurus.  After officers removed the gift bag from the floor of the vehicle, the canine examined the interior of the car.  Another positive odor response was made in the area where the gift bag had been sitting.  Finally, the canine made a positive odor response to the gift bag itself.   Officers then opened the gift bag and found what appeared to be a kilogram of narcotics.  Appellant was arrested and charged with possession with the intent to deliver a controlled substance weighing over 400 grams.  The substance inside the bag was later determined to be cocaine.

Appellant filed a motion to suppress the evidence obtained from the canine search.  The motion also included a request for a Daubert hearing^[1] on the basis that the evidence was inadmissible because Athe training and use of the animal on this occasion was not trained or maintained properly so as to render any result inherently unreliable.@  The trial court held a pretrial hearing at which it heard testimony on the Daubert issue.  At the conclusion of the hearing, the trial court denied the motion to suppress.  A jury found appellant guilty and sentenced him to fifty years imprisonment.  This appeal ensued.

II.  Issue Presented

In this sole issue, appellant contends the trial court improperly denied his motion to suppress because the arresting officers conducted a search that exceeded the scope of the stop.  Before we address the merits of this issue, however, we first consider whether it has been properly preserved for our review.

III.  Discussion

A.      Did Appellant Preserve Error?

Appellant=s motion to suppress contained generalized allegations that Athe arrest and search of [appellant] and the seizure of items, papers, and effects from [appellant]@ and Athe search of [appellant=s] vehicle@ were without probable cause or reasonable suspicion.  As authority, he cited only the Fourth and Fourteenth Amendments to the Federal Constitution, article I section 9 of the Texas Constitution, and section 38.24 of the Code of Criminal Procedure.  The motion contained no citations to analogous case law, nor did it present any argument to support appellant=s contentions regarding the absence of probable cause or reasonable suspicion. 

At the hearing on the motion to suppress, appellant challenged the sufficiency of the canine=s training prior to his arrest.  He also argued that allowing the canine to sniff inside the vehicle exceeded the scope of the search.  In his closing statement at the hearing, appellant=s trial counsel summarized his argument before the trial court:

[A]bsent the Court being offered some scintilla of evidence proving the validity, the underpins [sic] of the training, and the way the training was applied to this particular dog, renders the search no search.  And the entire probable cause for that search was that dog.  Absent that dog=s training and experience, there is no probable cause to search. . . . .

In addition, Your Honor, on the other article of suppression, once the dog entered into this vehicle . . . I believe the search . . . becomes inadmissible because it=s beyond the scope.

On appeal, however, appellant abandons the arguments raised at the hearing.  Instead, he contends, Athe state of the evidence shows that the officers did nothing to further investigate or effectuate the traffic stop@ and therefore, Athe continued detention to wait for a canine unit was improper.@^[2]  But as appellant concedes in his brief, Athere was no [argument] at the suppression hearing that the initial stop was not legal.@ 

To present a claim for appellate review, it is a prerequisite that a complaint stating the specific grounds for the objection be made in the trial court.  Tex. R. App. P. 33.1(a) (emphasis added).  This applies to constitutional rights, including freedom from an unlawful search and seizure.  Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988) (en banc).  Global objections to constitutional provisions and to the general exclusionary statute, such as those made in appellant=s written motion to suppress, are not sufficiently specific to preserve the arguments he now makes on appeal.  Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (en banc).  Although error is not waived Awhere the grounds of the objection are obvious to the court or the opposing counsel,@ Eisenhauer v. State, 754 S.W.2d 159, 161 (Tex. Crim. App. 1988) (en banc), the only grounds made obvious at trial were those voiced at the pretrial hearing.  As the Court of Criminal Appeals noted in Hailey v. State, AIt violates ordinary notions of procedural default for a Court of Appeals to reverse a trial court=s decision on a legal theory not presented to a trial court by the complaining party.@  87 S.W.3d 118, 122 (Tex. Crim. App. 2002).  Accordingly, appellant has not preserved error, and the judgment of the trial court is affirmed.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed June 27, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  See Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579 (1993).

^[2]  Appellant=s brief also contained a preemptive rebuttal to the argument that the search was valid under an Aimpoundment@ theory.  Appellant acknowledges that such an argument was not raised by the State at the hearing, and the State also does not raise that theory in its brief.