Kiana Meshon Mitchell v. State

• Court: Court of Appeals of Texas
• Decided: March 7, 2019
• Docket: 07-18-00169-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00169-CR

KIANA MESHON MITCHELL, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the County Court at Law No. 2 Ellis County, Texas Trial Court No. 1710074, Honorable A. Gene Calvert, Jr., Presiding

March 7, 2019

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant Kiana Meshon Mitchell appeals from her conviction by jury of the Class

B misdemeanor offense of possession of marijuana in an amount less than two ounces 1

and the resulting sentence of forty-five days of confinement, suspended in favor of

community supervision for a period of fifteen months.2 Appellant challenges her

conviction through two issues. We will affirm.

1 TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (West 2018). 2 TEX. PENAL CODE ANN. § 12.22 (West 2018). Background

Because appellant does not challenge the sufficiency of the evidence supporting

her conviction, we will discuss only those facts necessary to an understanding of her

appellate issues. TEX. R. APP. P. 47.1.

When appellant was stopped for a traffic violation3 on Interstate 45 by a K9

narcotics officer, the officer made contact with appellant and smelled a strong odor of

marijuana. He asked her if she had marijuana in her car. She initially denied it. The

officer asked appellant to get out of her car and she complied. The officer told appellant

he was going to allow his drug dog to go around her car and if the dog alerted, he would

search the car. He asked appellant if there was anything in the car. She admitted she

had a blunt in the center console. The officer found the blunt, along with loose tobacco.

The officer asked, referring to the blunt he found, “this one here?” Appellant answered

affirmatively. Appellant was charged with possessing the marijuana in the blunt.

Before trial, appellant filed a motion to suppress her statements to the officer and

the marijuana found in her car, arguing she was in custody for purposes of Miranda4 at

the time she told the officer she had a blunt in her car and when she identified the blunt

the officer found. Because he did not administer the Miranda warnings, she argued, her

statements and the marijuana should have been suppressed. The trial court heard the

motion. The police officer testified, and a recording of the traffic stop was admitted into

3 See TEX. TRANSP. CODE ANN. § 545.062 (West 2018) (describing traffic violation of following too closely). The officer testified that he was standing on the side of the interstate assisting another motorist when he saw appellant traveling too closely behind a pick-up truck to provide sufficient stopping distance. 4 Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). 2 evidence. After viewing the recording and listening to the officer’s testimony and

arguments of counsel, the trial court denied the motion in part and granted it in part.

The case later proceeded to jury trial. At the start of voir dire, the trial court made

some opening comments. Several venire members arrived late in the courtroom. The

court interrupted the proceedings, saying “All right. At this point, those of you that came

in late, we’ve discussed quite a few things before you came in, so we’re going to excuse

you. You will be excused from any further jury service. The deputy will provide you with

a work excuse.” Neither party objected to dismissal of those panel members.

During trial, appellant testified and admitted she possessed the marijuana with

which she was charged. The jury found her guilty and punishment was assessed as

noted.

Analysis

Dismissal of Late-Arriving Venire Members

In her first issue, appellant contends the trial court erred by sua sponte dismissing

the late-arriving venire members without receiving any type of excuse from them because

the court lacked authority to do so. The State argues appellant failed to preserve this

complaint for our review. We agree and overrule the issue.

To preserve an error for appeal, the record must contain a complaint that was

made to the trial court by a timely and specific request, objection, or motion. See TEX. R.

APP. P. 33.1(a)(1); Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). The

requirement to preserve a complaint of error through a timely and specific request,

3 objection, or motion applies to almost all error, including constitutional error. Fuller v.

State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).

Appellant did not bring to the attention of the trial court any complaint concerning

the dismissal of the late-arriving venire members at the time the members were

dismissed, when counsel exercised his challenges, or when the jury was seated. Indeed,

at no point prior to appeal did appellant raise this issue. Accordingly, the issue is not

preserved for our review and we overrule it.

Motion to Suppress

In her second issue, appellant contends the trial court erred by failing to grant her

motion to suppress in its entirety. The State argues that any error in denying appellant’s

motion to suppress was harmless. We agree with the State and find any error in the trial

court’s ruling harmless.

In appellant’s testimony during the guilt-innocence phase of trial, she admitted to

her possession of the marijuana. At the beginning of the direct examination, appellant

said, “I’m ashamed that I’ve even done this. I’m so sorry.” Her counsel responded, “Okay.

But you know part of what we’re here about—so you are not here saying that you didn’t

possess marihuana. That’s not what you are here saying, are you?” Appellant replied,

“No.” When asked what “ultimately made her tell the truth” about the marijuana, appellant

said, “When the officer stated he was going to search my car with the dog . . . I might as

well tell him where it was at so he wouldn’t have to do that.”

“It has long been the rule of this state that the admission of improper evidence

cannot be urged as grounds for reversal where the defendant gives testimony on direct

4 examination which establishes the same facts as those objected to.” Leday v. State, 983

S.W.2d 713, 716 (Tex. Crim. App. 1998). “[E]rror in the admission of evidence obtained

as a result of an illegal search becomes harmless where the defendant testifies and

affirms the truths of such evidence.” Finney v. State, 672 S.W.2d 559, 565 (Tex. App.—

Austin 1984, no pet.) (citing Daniels v. State, 387 S.W.2d 886, 887 (Tex. Crim. App. 1965)

(finding any error in admission of items seized from a camper harmless when the

defendant admitted to taking the same items the owner testified were taken in the

burglary). See also Maghe v. State, 496 S.W.2d 71, 72 (Tex. Crim. App. 1973) (citing

Crawford v. State, 478 S.W.2d 456, 457-58 (Tex. Crim. App. 1972) (citing Daniels, 387

S.W.2d 886)). And, the improper admission of evidence is harmless if the same or similar

evidence is admitted without objection at some other point during trial. Estrada v. State,

313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (citing Leday, 983 S.W.2d at 716-18).

Given appellant’s on-the-stand admission of possession of the marijuana, any

error in the trial court’s denial of her motion to suppress and subsequent erroneous

admission of evidence was harmless.

We resolve appellant’s second issue against her.

Conclusion

Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.

James T. Campbell Justice

Do not publish.