Charles Edward Stewart v. State

• Court: Court of Appeals of Texas
• Decided: June 25, 2003
• Docket: 09-02-00028-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-02-028 CR

CHARLES EDWARD STEWART, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 3

Montgomery County, Texas

Trial Cause No. 00-155561

OPINION

After a jury found Charles Edward Stewart guilty of driving while intoxicated, the trial court assessed punishment at a $700 fine and 180 days of confinement in the Montgomery County Jail. The trial court suspended the jail sentence and placed Stewart on community supervision for eighteen (18) months.

The three points of error raised on appeal relate to the denial of Stewart's motion to suppress evidence. "Trial courts are the traditional finders of fact, and their determinations of historical fact are entitled to deference." Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002). "We review the trial court's ruling for an abuse of discretion, giving 'almost total deference to a trial court's determination of historical facts' and reviewing de novo the court's application of the law of search and seizure." Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002) (quoting Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). Where the trial court did not make explicit findings of historical fact, we review the evidence in a light most favorable to the trial court's ruling. Welch, 93 S.W.3d at 53 (citing Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000)). If the parties consensually relitigated a suppression issue during trial on the merits, we consider the relevant trial testimony in our review. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).

Point of error one contends, "The trial court erred by not granting defendant's motion to suppress the evidence due to illegal search and seizure." Stewart's motion invoked several state and federal constitutional provisions to challenge the legality of the arrest and the admissibility of any written or oral statements, tangible evidence, photographs, medical records, or other tangible evidence. The suppression hearing, which was heard and ruled upon before the State began its case-in-chief and reconsidered after both parties rested, focused exclusively upon the officer's failure to take Stewart before a magistrate after taking him to a hospital for treatment of a suspected drug overdose. At no point in the suppression hearing did Stewart challenge the search of his vehicle's trunk on the ground that he had not given effective consent for its entry. ⁽¹⁾ "An objection stating one legal basis may not be used to support a different legal theory on appeal." Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Because the issue presented does not comport with the specific grounds raised at trial, point of error one is overruled.

Point of error two contends, "The trial court erred by not granting the defendant's motion to suppress the evidence due to defendant's Constitutional right against self incrimination." In his argument on the point, Stewart contends that the police officer brought Stewart to the hospital for the sole purpose of obtaining incriminating evidence to support an illegal arrest. ⁽²⁾ He did not present this theory during the suppression hearing conducted before the State commenced its case-in-chief. Rather, counsel conceded that "I know he was sick." After the medical records had been admitted into evidence and the parties rested on the guilt phase of the trial, defense counsel mentioned, in the course of re-urging the motion to suppress, that "maybe he wasn't as sick as we thought he was." Defense counsel made that statement as part of his argument that the officer should have remained at the hospital to see if Stewart could have been transported to the magistrate. The subterfuge argument raised on appeal was not presented to the judge at the suppression hearing. Again, the legal theory raised on appeal does not comport with the theory presented at trial. Id. At any rate, the only evidence obtained from Stewart at the hospital was non-testimonial in nature, and therefore not protected by the constitutional privilege against self-incrimination. See Schmerber v. California, 384 U.S. 757, 763-65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Olson v. State, 484 S.W.2d 756, 771-72 (Tex. Crim. App. 1969)(op. on reh'g). Finally, on examination by the prosecutor, the officer specifically denied that he took Stewart to the hospital for the specific purpose of gathering evidence against him. He further testified that Stewart was unable to stand up unsupported and was unable to speak coherently or comprehend anything they were telling him, and that he transported Stewart to the hospital because he felt that Stewart had overdosed and that his condition might be life-threatening. Thus, the record supports an implied finding that the officer did not employ a subterfuge to gather either testimonial or non-testimonial evidence. Point of error two is overruled.

Point of error three contends, "The trial court erred by not granting defendant's motion to suppress the evidence because legal procedure was violated when the defendant was placed under arrest and not brought before a magistrate under Article 15.17, DUTIES OF ARRESTING OFFICER & MAGISTRATE." In addition to explaining why he transported Stewart from Oak Ridge North to the hospital in neighboring Conroe for emergency medical treatment, the officer also provided an explanation for leaving him there. The stop occurred shortly before midnight. The officer stayed with Stewart at the hospital until nearly 6:00 a.m. Stewart remained unconscious "most of the time." He was given two doses of a drug that counteracts the effects of narcotics. At 6:00 a.m., the doctor told the officer that the appellant would not be coherent or even conscious any time soon. The officer advised the doctor that he would obtain a warrant and subpoena the hospital records, and returned to the city where he was one of only two officers on duty. The officer explained:

When somebody has overdosed, yes, we leave them at the hospital until they are released. Once he was released from the hospital, I had every reason to believe he would be sober. He wasn't going to be a risk for anyone at that point.

I had no videotape, no Intoxilizer test. There was no physical evidence at that point. There was no reason to wait around for who knows how long and then take him to jail when we could subpoena the hospital records and get a warrant.

At 7:00 a.m., the nurse assessing Stewart's condition noted, "Very lethargic. Slurred speech. States name, age, month and year. Confused to place. Requires repeated stimulation to arouse." He was discharged at 10:25 a.m., with instructions not to drive that day.

Article 15.17 applies to persons arrested under warrant. Tex. Code Crim. Proc. Ann. art. 15.17 (Vernon Supp. 2003). The date of the offense was January 15, 2000. The arrest warrant was signed on April 25, 2000, but we cannot discern from the record the dates on which the appellant was taken into custody and taken before a magistrate. Of course, a person arrested without a warrant must also be taken before a magistrate for the warnings described in Article 15.17. See Tex. Code Crim. Proc. Ann. art. 14.06 (Vernon Supp. 2003). A prompt determination of probable cause is a condition of any significant pretrial restraint of liberty. Green v. State, 872 S.W.2d 717, 721 (Tex. Crim. App. 1994). However, a failure to comply with Article 14.06 does not vitiate a search made incident to a lawful arrest. Corbin v. State, 426 S.W.2d 238, 240 (Tex. Crim. App. 1968) ("[T]he purpose of taking an accused before a magistrate is for the magistrate to give him the warnings and discharge the duties required by Art. 15.17 of the Code. Such warnings are not prerequisite to the search of the person of the accused."). It is the illegal detention due to the failure to carry the accused before a magistrate, not an illegal arrest, that vitiates a confession. Smith v. State, 171 Tex. Crim. 313, 350 S.W.2d 344, 347 (1961). Absent a causal connection between the officer's failure to take the suspect before a magistrate and the evidence obtained, the evidence is admissible against him. Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992) (confession); Alvarado v. State, 744 S.W.2d 685, 686 (Tex. App.--San Antonio 1988, no pet.) (physical evidence).

Clearly, the police officer released Stewart from custody before leaving the hospital. Thus, the restraint terminated before the failure to take the accused before a magistrate rendered any continued detention illegal. The trial court could have found that the urine screen was taken for the purpose of providing medical treatment for a suspected overdose, and the record contains no evidence obtained through police interrogation at the hospital. Absent a causal connection between the alleged statutory violation and the evidence sought to be suppressed, the trial court did not err in denying the appellant's motion to suppress. Point of error three is overruled. The judgment is affirmed.

AFFIRMED.

PER CURIAM

Submitted on June 3, 2003

Opinion Delivered June 25, 2003

Do Not Publish

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. The trunk contained vials of pharmaceutical products, including Soma, Neurontin, Vicodin ES, Vicodin HP, Zantac, Halcion, Phenergan, Robaxin, Elavil, Ativan, Augmentin, penicillin, Tenex, Valium, Restoril, Daypro, diphenhydramine, and ibuprofen.

2. The treating physician testified that Stewart tested positive for cocaine, amphetamine, benzodiazepine (a controlled substance sold as the sleeping pill Restoril), and opiates.