Kimberly Ann Brown v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 8, 2024
• Docket: 02-23-00066-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-23-00066-CR ___________________________

KIMBERLY ANN BROWN, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1734131D

Before Sudderth, C.J.; Birdwell and Walker, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

I. Introduction

Appellant Kimberly Ann Brown was convicted by a jury of possession of

methamphetamine (four grams or more but less than 200 grams) and MDMA

(“ecstasy”) (one gram or more but less than four grams). Brown pleaded true to a

habitual offender notice, and the trial court sentenced her to two concurrent terms of

forty years in prison. Brown appeals, raising two issues.

II. Background

Brown ran a stop sign while driving her motorcycle through a four-way

intersection in Kennedale. Corporal Chandra Cohea witnessed this infraction, turned

on her overhead lights, and pulled Brown over. Cohea had trouble reading the paper

license tag on the back of the motorcycle because it was old, barely legible, and as it

turned out, expired. Brown stopped her motorcycle and identified herself to Cohea.

Because Cohea was unable to read the license tag, she asked for the

motorcycle’s registration, proof of insurance, and Brown’s driver’s license. Brown did

not have any of those things. Brown explained that the title for the motorcycle was

lost or stolen. She said that the motorcycle belonged to her, but it was in her brother’s

name. Cohea ran Brown’s name through dispatch and discovered that there were

warrants for her arrest. She then called for backup. Cohea arrested Brown pursuant to

the warrants and placed her in the back of the patrol car.

2 Cohea began to inventory the items attached to the motorcycle in advance of

the bike’s eventual towing. These items included two saddlebags, a purse that Brown

had left behind, and a lockbox that was on top of the gas tank. Neither the saddlebags

nor the purse contained anything of interest. Despite having a combination lock, the

box on the tank was unlocked, and the lid was easily flipped open. Inside the box

were several bags containing what Cohea believed to be methamphetamine.

Laboratory tests eventually confirmed that the bags contained more than four grams

of methamphetamine and more than one (but less than four) grams of MDMA.

III. The State’s Failure to Produce an Arrest Warrant

In her first issue, Brown complains that the drugs admitted at trial were the

product of an illegal search—specifically, that the search was predicated on Brown’s

arrest under a warrant that the State failed to produce in court. Brown filed a motion

to suppress before trial in which she disputed the propriety of her arrest, in part

because there was no arrest warrant. The trial court, after hearing argument, overruled

Brown’s motion.

Although the State failed to adequately demonstrate at trial that Brown was

arrested pursuant to a valid warrant, her arrest was objectively permissible because she

had committed four traffic offenses within the view of the arresting officer.

Therefore, we overrule her issue.

3 A. Standard of Review

We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We

defer almost totally to a trial court’s rulings on questions of historical fact and

application-of-law-to-fact questions that turn on evaluating credibility and demeanor,

but we review de novo application-of-law-to-fact questions that do not turn on

credibility and demeanor. Amador, 221 S.W.3d at 673; Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997); Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

B. Analysis

If the State intends to justify an arrest based on a warrant, it must produce the

warrant and its supporting affidavit for inspection by the trial court. Etheridge v. State,

903 S.W.2d 1, 19 (Tex. Crim. App. 1994). The requirement of production allows the

trial court to inspect the documents and determine whether probable cause existed. Id.

The State may be excused from its failure to produce a warrant if it can produce

evidence that ample probable cause supported issuance of the alleged warrant.

Dorsey v. State, 964 S.W.2d 701, 704 (Tex. App.—Houston [14th Dist.] 1998, pet.

ref’d).

Here, the State wholly failed to produce Brown’s arrest warrant, the probable

cause affidavit, any testimony that would have demonstrated probable cause for the

issuance of the warrant, or even an identification of the charges levied against Brown

4 in the alleged warrant. The State’s response to the lack of a warrant is that Cohea

acted in good faith by relying on the dispatcher’s statement to her that an arrest

warrant for Brown existed. But for good faith to apply, the State must demonstrate

that Cohea acted “in objective good faith reliance upon a warrant issued by a neutral

magistrate based on probable cause.” Tex. Code Crim. Proc. Ann. art. 38.23(b). The

warrant’s absence is fatal to the State’s assertion of good faith. See Burks v. State, 454

S.W.3d 705, 709 (Tex. App.—Fort Worth 2015, pet. ref’d) (“Because there was no

warrant in this case, the statutory exception in article 38.23(b) does not apply.”). The

absence of a warrant in Brown’s case means that the State may not rely on “good

faith” to justify Cohea’s arrest of Brown. See Oliver v. State, 10 S.W.3d 411, 416 n.3

(Tex. App.—Waco 2000, no pet.) (holding that State was unable to rely on good faith

to justify arrest and subsequent search incident to arrest where it was unable to

produce the warrant or other evidence demonstrating that the warrant was based on

probable cause).

But our analysis does not end there. According to Cohea, Brown committed

four traffic violations: running a stop sign, failing to present a driver’s license, failing

to present proof of financial responsibility, and failing to display proof of registration.

See Tex. Transp. Code Ann. §§ 544.010(a) (operator must stop at stop sign);

521.025(a)(1) (requirement that operator carry license while operating motor vehicle);

601.053(a) (operator must provide evidence of financial responsibility to peace

officer); 502.473(b) (operator of motorcycle must display registration insignia).

5 Although Cohea testified that she arrested Brown due to the outstanding warrants, we

are not forced to adopt that rationale—the trial court’s decision 1 will be affirmed if it

is correct under any applicable theory. Arguellez v. State, 409 S.W.3d 657, 662–63 (Tex.

Crim. App. 2013). Police had probable cause to arrest Brown for any of the traffic

offenses she committed within Cohea’s view. See Atwater v. City of Lago Vista, 532 U.S.

318, 354, 121 S. Ct. 1536, 1557 (2001) (holding that officer may arrest driver who

commits traffic offense in his presence without violating Fourth Amendment); see also

Tex. Code Crim. Proc. Ann. 14.01(b) (“A peace officer may arrest an offender

without a warrant for any offense committed in his presence or within his view.”).

Therefore, Brown’s arrest and the subsequent inventory search of the lockbox on her

motorcycle was justified. See Lerma v. State, No. 08-04-00152-CR, 2005 WL 1536281,

at *2 (Tex. App.—El Paso June 30, 2005, no pet.) (not designated for publication)

(holding arrest made pursuant to missing warrant was nonetheless proper where

defendant had committed three traffic violations in officer’s view).

Because Cohea could have arrested Brown for the traffic offenses committed

within her view, Brown’s Fourth Amendment rights were not violated by her arrest.

Further, because the arrest was valid, a search of Brown’s lockbox pursuant to the

Kennedale Police Department’s inventory policy was permissible. See Colorado v.

Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741 (1987) (holding that inventory search of

1 In its findings of fact, the trial court noted that Brown had been arrested after Cohea discovered that Brown “had additional warrants out of Arlington which were confirmed.”

6 impounded automobile is a reasonable search under the Fourth Amendment). We

overrule Brown’s first issue.

IV. Specific Instances of Conduct

In her second issue, Brown claims that the trial court should have allowed her

to cross-examine Cohea about a previous incident in which she was found to have

been dishonest. Brown specifically claims that her Confrontation Clause rights were

violated by this restriction on cross-examination. We disagree—Brown failed to

preserve a constitutional claim and any remaining evidentiary claim fails on the merits.

A. Factual Background

Before trial, the court granted the State’s motion in limine regarding a

determination by the University of Texas at Arlington (UTA) Police Department that

Cohea had been found to be untruthful in an internal-affairs-related matter. During

cross-examination of Cohea, Brown wished to probe this subject, but the trial court

prevented her from doing so.

Outside the jury’s presence, Brown’s attorney questioned Cohea in detail about

the incident. According to Cohea, the internal affairs division of the UTA Police

Department investigated her and uncovered more than ten statements she made that

conflicted with those of other officers. After these findings were sustained, the

Department suspended Cohea for twenty days without pay. A year after Cohea

finished her suspension, she started working for the Kennedale Police Department.

7 Brown argued that Cohea’s testimony was “relevant because it [went to her]

trustworthiness” and because “the State has already introduced testimony about the

merits of her training and her qualifications to conduct these drug investigations.”

The trial court denied Brown’s request.

B. Confrontation Clause Preservation

Brown’s specific argument on appeal is that the trial court violated her

Confrontation Clause rights by not allowing her to cross-examine Cohea about the

suspension. We hold that she did not preserve this claim.

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.

State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an

express or implicit adverse trial-court ruling or object to the trial court’s refusal to

rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim.

App. 2013). In addition, the error complained of on appeal must comport with the

objection the defendant made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012).

A party must object as soon as the basis for the objection becomes apparent.

Tex. R. Evid. 103(a)(1); London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016);

see Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App. 2012) (discussing policies

underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889 (Tex.

8 Crim. App. 2002) (“We have consistently held that the failure to object in a timely and

specific manner during trial forfeits complaints about the admissibility of evidence.

This is true even though the error may concern a constitutional right of the

defendant.” (citations omitted)).

Brown failed to preserve her argument that her Confrontation Clause rights

were violated. Her argument to the trial court was that evidence of UTA’s findings

about Cohea’s dishonesty were “relevant because it [went to her] trustworthiness” and

because the State had elicited testimony about her training and drug-investigation

qualifications. That does not comport with the Confrontation Clause argument she

now makes on appeal. See Golliday v. State, 560 S.W.3d 664, 671 (Tex. Crim. App.

2018) (holding that defendant seeking to admit testimony on relevancy grounds did

not preserve claim that his Confrontation Clause rights were violated by exclusion of

the testimony); Class v. State, No. 02-20-00019-CR, 2021 WL 1685953, at *9 (Tex.

App.—Fort Worth Apr. 29, 2021, pet. ref’d) (mem. op., not designated for

publication) (holding that defendant’s argument that excluded evidence was relevant

and showed bias failed to preserve his Confrontation Clause claim). Accordingly, we

conclude that Brown has failed to preserve her Confrontation Clause claim for our

review.2

2 Brown concedes that she did not object on confrontation grounds at trial but claims that she “presented” the argument in a motion for new trial. We disagree. The motion-for-new-trial stage is too late to timely preserve a Confrontation Clause

9 C. The Evidence was Properly Excluded Under the Rules of Evidence

Even if Brown’s issue on appeal comported with her argument at trial—

relevance—we would still find no error in the trial court’s decision to exclude

evidence of Cohea’s past dishonesty. According to our Rules of Evidence, specific

instances of the conduct of a witness, for the purpose of attacking or supporting the

witness’s credibility, other than for conviction of a crime as provided in Rule 609, may

neither be inquired into on cross-examination of the witness nor proved by extrinsic

evidence. Tex. R. Evid. 608(b). Evidence that the internal affairs division of the UTA

Police Department investigated Cohea, concluded that she made statements in a

report that conflicted with the statements of other officers, and imposed a twenty-day

suspension on her is exactly the sort of “instance of conduct” evidence that Rule

608(b) prohibits. See Harper v. State, No. 14-19-00736-CR, 2021 WL 5183571, at *7

(Tex. App.—Houston [14th Dist.] Nov. 9, 2021, no pet.) (mem. op., not designated

for publication) (holding that trial court acted within its discretion in excluding police

officer’s internal affairs file that showed prior acts of deception); Freeman v. State, 413

S.W.3d 198, 206 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (holding that

evidence arresting officer was untruthful during a prior incident “is exactly the type of

evidence made inadmissible by Rule 608(b)”); see also Hammer v. State, 296 S.W.3d 555,

complaint. See Torres v. State, 424 S.W.3d 245, 255–56 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

10 563 (Tex. Crim. App. 2009) (“Our state evidentiary rules frown on unnecessary

character assassination.”). We overrule Brown’s second issue.

V. Conclusion

Having overruled both of Brown’s issues, we affirm the judgment of the trial

court.

/s/ Wade Birdwell

Wade Birdwell Justice

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

Delivered: August 8, 2024