COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-09-275-CR
DAVID CLAYTON RATLIFF APPELLANT A/K/A CLAYTON DAVID SINGLETON A/K/A DAVID CLAY RATLIFF
V.
THE STATE OF TEXAS STATE
------------
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
OPINION ------------
Appellant David Clayton Ratliff a/k/a Clayton David Singleton a/k/a David
Clay Ratliff appeals his conviction for possessing less than one gram of
methamphetamine.1 In three points, he contends that the trial court erred by
denying his motion to suppress evidence that he says the police obtained illegally
1 See Tex. Health & Safety Code Ann. '' 481.102(6), .115(b) (Vernon 2010). and by denying his motion for mistrial based on the State=s allegedly improper
jury argument. We affirm.
Background Facts
A Weatherford resident, Kelly Lindner, called the police because she saw a
white car that she did not recognize near her neighbors= residence while her
neighbors were gone, and she believed that Asomething bad was happening.@
She told the police that people from the car were removing items from her
neighbors= garage and putting them in the car. One of the car=s passengers was
Lindner=s neighbors= daughter, Rachel Adams, although Lindner did not know
that fact at the time she called the police. Appellant and Bryan Harko were the
car=s other occupants.
Weatherford Police Department Detective Troy Luecke received a dispatch
call regarding the suspicious white car, found it, and saw its three occupants. 2
According to Detective Luecke, appellant, the front seat passenger, was
confrontational and agitated when Detective Luecke tried to ask him identification
questions. Because Detective Luecke smelled marijuana coming from appellant,
he asked appellant to get out of the car, and upon searching appellant, found two
2 The car=s driver, Harko, knew appellant because appellant had given him tattoos. Harko said that appellant had called him to pick appellant up from a motel and give appellant a ride to Weatherford in exchange for A[f]orty dollars and some dope.@
2 marijuana cigarettes in appellant=s pocket. Thus, Detective Luecke arrested
appellant.3
After the arrest, Detective Luecke searched the parts of the car Athat
[appellant] could reach.@4 During the search, Detective Luecke found a briefcase
that contained the following: three syringes, a pack of rolling papers, a small
clear ziplock bag with white residue in it, a spoon with a white crystal substance
on it (which field tested positive at the crime scene for methamphetamine), and
two papers bearing appellant=s name. Detective Luecke explained that because
Athey were no longer in sterile packages@ at the time he found them, the syringes
appeared to have been used.
A Parker County grand jury indicted appellant for possessing less than one
gram of methamphetamine; the indictment contained enhancement paragraphs
alleging that appellant had several previous felony convictions. Appellant waived
arraignment and pled not guilty.
On the morning of his trial, appellant filed a motion to suppress the
evidence that Detective Luecke had obtained. Appellant contended that the
warrantless search was unreasonable under the federal constitution and the
3 Another officer who was at the scene said that he did not smell marijuana coming from appellant, and Harko said the same. 4 Harko said that although he had his own drug paraphernalia in the car, he gave police consent to search it.
3 Texas constitution and statutes because, among other reasons, Detective
Luecke did not have authority to search the car incident to appellant=s arrest
under Arizona v. Gant.5 Although the motion stated that a pretrial hearing
outside of the jury=s presence was necessary, there was no such hearing.
Instead, after voir dire and before the first witness testified, appellant informed
the court that he had filed the motion and that he would bring it to the court=s
attention at his Afirst time to object during the [trial].@
During Detective Luecke=s testimony, he identified and discussed each
item that he had found in the car. The State then offered the items to the court
for admission, at which point appellant objected under the Texas and federal
constitutions, particularly relying on Gant. The court overruled the objection and
admitted the evidence. After the evidence was admitted, appellant=s counsel
asked Detective Luecke several questions about the contents of the briefcase,
and the State then asked Detective Luecke further questions about the
briefcase=s contents without any objection.6 Herman Carrell, who works as a
forensic scientist at the crime lab, testified without objection that he tested the
5 129 S. Ct. 1710, 1723B24 (2009). 6 State=s Exhibit No. 8, a document that Detective Luecke generated and that was titled AWeatherford Police Department Property Receipt,@ listed appellant as the defendant and described that officers had found ADavid Ratliff=s@ briefcase, a white crystal substance, rolling papers, syringes, a silver spoon with methamphetamine residue, and papers containing appellant=s name. This exhibit was admitted without a constitutionally based objection by appellant.
4 white substance found by the police and confirmed that it is .05 grams of
methamphetamine.7 Later in the trial, after the State recalled Detective Luecke,
appellant again asked him about the particular items that he had found in the
briefcase. Then, after the State rested, appellant again moved to suppress the
State=s evidence on the basis of Gant.
After the parties finished presenting evidence and argument, the jury found
appellant guilty of possessing methamphetamine, and after the trial court heard
evidence regarding his punishment and found some of the enhancement
allegations from his indictment to be true, it assessed a sentence of fifteen years=
confinement. Appellant filed notice of this appeal.
Preservation of Error
In his first two points, appellant contends that the trial court erred by
denying his motion to suppress and by admitting the evidence that was obtained
from the car. The titles of his two points (which include a page number range of
the reporter=s record that his points relate to) and the argument within the points
indicate that appellant complains about the admission of the physical evidence
found by Detective Luecke after appellant=s arrest. The State contends that
7 Appellant objected on constitutional grounds to the admission of Carrell=s report that showed the result of his test but not to Carrell=s testimony regarding the test.
5 appellant has forfeited his complaints about the admission of the evidence.
We agree with the State.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d
249, 265 (Tex. Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070
(1999). Further, the trial court must have ruled on the request, objection, or
motion, either expressly or implicitly, or the complaining party must have objected
to the trial court=s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State,
138 S.W.3d 334, 338, 341 (Tex. Crim. App. 2004). Preservation of error is a
systemic requirement. Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App.
2007).
To preserve error about the illegal seizure of evidence, a defendant must
either file a motion to suppress and obtain a ruling on the motion or timely object
when the State offers the evidence at trial. See Tex. R. App. P. 33.1(a); Tex. R.
Evid. 103(a)(1); Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984);
Stults v. State, 23 S.W.3d 198, 205 (Tex. App.CHouston [14th Dist.] 2000, pet.
ref=d) (op. on reh’g); Thomas v. State, 884 S.W.2d 215, 216 (Tex. App.CEl Paso
1994, pet. ref=d). If the defendant waits until the State offers the evidence at trial,
the objection to the evidence must be made before a witness gives substantial 6 testimony about it. See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App.
[Panel Op.] 1980) (explaining that an objection to evidence Amust be urged at the
earliest opportunity@); Stults, 23 S.W.3d at 205B06; Angelo v. State, 977 S.W.2d
169, 177 (Tex. App.CAustin 1998, pet. dism=d w.o.j.) (op. on reh’g); see also
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.) (explaining that Aif a
question clearly calls for an objectionable response, a defendant should make an
objection before the witness responds@), cert. denied, 516 U.S. 832 (1995).
In Tell v. State, an aggravated robbery case, the defendant attempted at
trial to suppress the admission of a ski mask that police officers obtained from his
residence without a search warrant or consent. 908 S.W.2d 535, 538, 543 (Tex.
App.CFort Worth 1995, no pet.). But the defendant allowed a police officer to
answer four questions about seizing the ski mask before objecting to the
evidence. Id. On appeal, we concluded that A[b]ecause Tell failed to object at
the time the ski mask was mentioned and allowed further questions and answers
before finally objecting,@ he Awaived any error in the admission of the ski mask.@
Id. at 544.
Similarly, in Turner v. State, the defendant contested the trial court=s
admission of evidence that a detective had seized from his vehicle after his
arrest. 642 S.W.2d 216, 216B17 (Tex. App.CHouston [14th Dist.] 1982, no pet.).
The court of appeals held that the defendant forfeited his objections at trial by
allowing the detective to testify “extensively to the arrest and the items found in 7 the search.@ Id. at 217. The appellant did not object to the testimony Abut only to
the five exhibits.@ Id.; see also Marini, 593 S.W.2d at 714 (holding that an
objection to the admission of physical evidenceCnarcoticsCwas forfeited
because the appellant had not objected at trial to the officer=s testimony about
finding the narcotics); King v. State, No. 02-07-00172-CR, 2008 WL 3918051, at
*3 (Tex. App.CFort Worth Aug. 26, 2008, pet. ref=d) (mem. op., not designated for
publication) (AWhen a party objects to the admission of physical drug evidence
after a police officer has already testified about finding the drugs without
objection, nothing is presented for review.@).
As noted above, appellant filed a motion to suppress evidence but did not
obtain a pretrial hearing or ruling on the motion. As the following excerpt of
Detective Luecke=s testimony demonstrates, appellant then allowed Detective
Luecke to testify about the evidence extensively before objecting to the
admission of the State=s physical evidence:
Q. . . . Detective Luecke, you brought with you a box to court today; is that correct?
A. Yes, ma=am.
Q. What is it?
A. The evidence we removed from the vehicle that day.
Q. Okay. I=m going to show you what I=m going to mark as State=s Exhibit No. 2, which is a single baggy that has currently been stapled to four other baggies. So I=m only talking about the baggy
8 that has State=s Exhibit No. 2 on it. Can you identify the contents of that clear plastic baggy?
A. It=s two marihuana cigarettes.
Q. And are those the two marihuana cigarettes that you retrieved from the pants of Mr. Ratliff?
A. Yes. It has my initials on the envelope.
....
Q. Once Mr. Ratliff was arrested, then what did you do?
A. Basically, you know, I observed a backpack and a briefcase sitting behind the passenger seat.
Q. What, if anything, did you locate?
A. Located three syringes that appeared to have been used, a pack of rolling papers, a small clear ziplock bag containing white residue, a spoon containing white crystal substance on the spoon, and two different papers that contained the name of Ratliff.
Q. . . . Specifically what are the contents of State=s Exhibit No. 3?
A. It=s a spoon. It still has -- you can still see some white residue on the spoon.
Q. And what=s the significance of the white residue?
A. I believed it to be methamphetamines.
Q. Why?
9 A. Due to the texture and that I=ve seen crystal meth and methamphetamines during my time as a patrolman, detective, and SWAT, and K-9.
Q. Okay. Finally, I=m going to show you what=s been marked as State=s Exhibit 7. And if you will identify that for the jury please.
A. It=s going to be the paperwork contained in Ratliff=s name that was removed from the briefcase.
Q. . . . And if you=ll take a look at the contents of that and make sure that those are the items that you retrieved from the briefcase from the Rendezvous?
A. This is an envelope contained in the name of Clint Ratliff.
We conclude that, as in Tell and Turner, along with the other cases cited
above, appellant=s failure to object at the time Detective Luecke specifically
described the physical evidence and explained how he found that evidence
forfeited any error associated with his objection to the State=s later introduction of
the evidence. See Tex. R. App. P. 33.1; Tell, 908 S.W.2d at 543B44; Turner, 642
S.W.2d at 216B17. Thus, we overrule appellant=s first and second points.
Appellant=s Motion for Mistrial
In his third point, appellant contends that the trial court erred by denying
his motion for mistrial that he made during the State=s jury argument, in which the
following colloquy occurred: 10 [THE STATE]: . . . Now, it=s important for you to know that you don=t all have to agree on which reason Officer Luecke had to search the briefcase. Nine of you can say, AYou know what, I think he smelled the marihuana and I think there was probable cause.@
[DEFENSE COUNSEL]: Objection. They have to agree unanimously on each one of the issues. This isn=t a selective deal.
THE COURT: Sustained.
[THE STATE]: Three of you can say, AYou know what, I don=t believe that part but I do believe that consent was given.@ As long as the total of you that are agreeing is 12, as long as all of you agree that there was a reason for him to search --
[DEFENSE COUNSEL]: Objection. I just objected to that. It=s a misstatement of the law. They all have to go down the checklist, and it has to be unanimous. If any one of them has a reasonable doubt, they don=t finish.
THE COURT: I=ll sustain the objection.
[THE STATE]: Again, what I said is that all of you have to agree. Okay? If three of you agree to one reason and nine of you agree to another, it doesn=t matter how it=s split.
[DEFENSE COUNSEL]: I=m going to object once again. If they don=t have a unanimous agreement or if they have a reasonable doubt on one issue, they don=t go further. Thank you.
THE COURT: Sustained. And ladies and gentlemen, you have the Charge with you. And it explains the situation.
[DEFENSE COUNSEL]: Because the State had persisted three times in telling them what the law is not, I=d ask for a mistrial.
THE COURT: That=s denied. 11 When a trial court sustains an objection and instructs the jury to disregard
(as the trial court did here) but denies a defendant=s motion for mistrial, we must
decide whether the trial court abused its discretion by denying the mistrial.
Hawkins v. State, 135 S.W.3d 72, 76B77 (Tex. Crim. App. 2004). Only in
extreme circumstances, when the prejudice caused by improper conduct is Aso
prejudicial that expenditure of further time and expense would be wasteful and
futile,@ will a mistrial be required. Id. at 77; see also Simpson v. State, 119
S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).
In determining whether a trial court abused its discretion by denying a
mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial
effect), (2) curative measures, and (3) the certainty of conviction absent the
misconduct. Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at 259.
Here, appellant cannot show that the trial court abused its discretion by denying
his motion for mistrial because he has not demonstrated that misconduct, severe
or otherwise, occurred.
The court of criminal appeals has Along held that >error in jury argument
does not lie in going beyond the court=s charge, but in stating law contrary to the
same.= That is, there is no error in correctly arguing the law, even if the law is not
included in the court=s charge.@ State v. Renteria, 977 S.W.2d 606, 608 (Tex.
Crim. App. 1998) (citing Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App.
12 [Panel Op.] 1982)); Corpus v. State, 30 S.W.3d 35, 41B42 (Tex. App.CHouston
[14th Dist.] 2000, pet. ref=d) (holding that there was no error when the State
argued that two people could jointly possess an object, which was a correct
statement of the law, even when the law of joint possession was not included in
the jury charge); Gillis v. State, 694 S.W.2d 245, 251 (Tex. App.CFort Worth
1985, pet. ref=d) (holding similarly). Therefore, if the State=s jury argument
correctly stated the law and was not inconsistent with the trial court=s charge,
then it was not improper.
Article 38.23 of the code of criminal procedure states that if the jury has a
reasonable doubt that evidence has been obtained in violation of the law, it shall
disregard the evidence. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).
Appellant asserts, A[T]he jury was told by the Prosecutor that not all 12 [jurors]
had to agree on probable cause, an issue submitted to them[.] That argument of
the Prosecutor was contrary to the requirements set forth in the Court=s Charge
on that issue.@ However, the jury charge did not explicitly inform the jury that
each juror had to agree on the particular factual basis for Detective Luecke=s
search. Rather, the charge instructed the jury that the search could be supported
by either Harko=s consent or a Adetectable odor of marihuana that Officer Luecke
was able to smell,@ and then later the charge told the jury generally that its
Averdict must be unanimous.@ The State told the jury that they were required to
all agree that Detective Luecke had some basis for the search although jurors 13 could disagree as to which basis supported the search. We conclude that this
argument, although supplementary to the charge, was not inconsistent with its
explicit language.
As to whether the argument made by the State at trial is contrary to the
law, appellant has not cited any authority to show that jurors must be unanimous
on the particular facts (between those that could show consent or probable
cause) that validate a search, and we have not found any authority that directly
addresses the issue. Surely, a jury=s verdict in a criminal case must be
unanimous. Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2009); Ngo
v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005); see Landrian v. State, 268
S.W.3d 532, 536 (Tex. Crim. App. 2008) (explaining that Athe jury must be
unanimous in finding that the defendant committed a specific statutory crime@).
However, Adifferent jurors may be persuaded by different pieces of evidence,
even when they agree upon the bottom line. Plainly, there is no general
requirement that the jury reach agreement on the preliminary factual issues
which underlie the verdict.@ Davis v. State, 268 S.W.3d 683, 711 (Tex.
App.CFort Worth 2008, pet. ref=d); see Valdez v. State, 218 S.W.3d 82, 84B85
(Tex. Crim. App. 2007) (holding that a jury was not required to unanimously
decide which two of several alleged prior felony convictions supported the
enhancement of the appellant=s punishment because the penal code=s
14 enhancement provision states only that the State is required to prove Atwo felony
offenses@).
For example, in a felony murder case, a jury is not required to unanimously
concur regarding which specific felony the defendant committed or attempted to
commit in conjunction with the murder. White v. State, 208 S.W.3d 467, 469
(Tex. Crim. App. 2006). Similarly, a jury is not required to unanimously agree on
the statutory method of intoxication (between having a blood alcohol
concentration of .08 or more or not having normal use of faculties) in a driving
while intoxicated case as long as the jury unanimously decides that the
defendant was intoxicated. Price v. State, 59 S.W.3d 297, 301B03 (Tex.
App.CFort Worth 2001, pet. ref=d).
A[T]he question of what a jury must be unanimous about . . . is determined
by the legislative intent of the applicable statute.@ Valdez, 218 S.W.3d at 84.
AIn divining legislative intent, we look first to the language of the statute. When
the meaning is plain, we look no further.@ Lomax v. State, 233 S.W.3d 302, 308
(Tex. Crim. App. 2007) (quoting Rodriguez v. State, 953 S.W.2d 342, 353 (Tex.
App.CAustin 1997, pet. ref=d)). While article 38.23 allows the jury to resolve
factual disputes related to whether evidence was obtained legally or illegally, the
article does not express that the jury must unanimously decide why the evidence
was obtained legally or illegally. See Tex. Code Crim. Proc. Ann. art. 38.23(a);
see also Newsom v. State, No. 10-07-00169-CR, 2009 WL 1163403, at *6B7 15 (Tex. App.CWaco Apr. 22, 2009, pet. ref=d) (mem. op, not designated for
publication) (holding that a jury charge was not erroneous although it permitted a
jury to find that a traffic stop was justified without requiring the jury to agree about
which of three alleged traffic violations was the basis for the stop). Thus, we hold
that the jury was not required to agree about the factual justification to support
the legality of Detective Luecke=s search as long as all jurors agreed that the
evidence was not obtained illegally.
For these reasons, we conclude that the trial court did not abuse its
discretion by denying appellant=s motion for mistrial because the State=s jury
argument was not improper. We overrule appellant=s third point.
Conclusion
Having overruled all three of appellant=s points, we affirm the trial court=s
judgment.
TERRIE LIVINGSTON CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
PUBLISH
DELIVERED: July 15, 2010