Kimberly Renee Parker v. State

• Court: Court of Appeals of Texas
• Decided: July 24, 2009
• Docket: 06-08-00188-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00188-CR ______________________________

KIMBERLY RENEE PARKER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 32659-B

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Kimberly Renee Parker's erratic, suspicious driving at around 3:45 a.m. led Officer John Rowe to discover that her vehicle registration was expired. When Rowe stopped Parker's vehicle, he learned that Parker was jittery, appeared to be under the influence of methamphetamine, and had outstanding warrants for her arrest. Parker and her lone passenger were both arrested and placed in the back of a patrol car. The subsequent search of Parker's vehicle yielded 7.88 grams of methamphetamine and many drug-related items. Parker was convicted of possession of methamphetamine in an amount between four and 200 grams and was sentenced to sixteen years' imprisonment and assessed a $10,000.00 fine. We affirm the judgment of the trial court because (1) Parker failed to preserve any error in the admission of the evidence found in the search of her vehicle, and (2) Parker's sentence is not disproportionate to the offense.

Rowe was on patrol very early one morning when he spotted Parker driving a vehicle well below the speed limit while weaving within the lane. Thinking she might be intoxicated, he decided to follow her. The turn signal was sporadically blinking on and off in a manner that led Rowe to believe the "bulb was shorting out." He ran the vehicle's license plate and registration while following. Dispatch advised that the registration was expired, and Rowe decided to pull Parker over. She turned without signaling before coming to a stop.

When Rowe first approached Parker, she appeared nervous and jittery. His "very first impression was I'm dealing with somebody that's on some kind of drug," "tweaking, that's where someone is sped up on speed, methamphetamines." Rowe called for backup due to Parker's mannerisms, and because a male passenger was present. Officer Jerry Wayne McDaniel arrived at the scene and observed that Parker could not "keep her hands still." Based on his experience and training, it was also apparent to McDaniel that Parker was under the influence of methamphetamine. Parker had no identification. Rowe asked her to step out of the car. As she stepped out, both officers thought they saw a gun underneath the driver's seat. They quickly handcuffed Parker, but discovered they mistook a hairbrush handle for the handle of a handgun. Nevertheless, a name and birth date check revealed that Parker had outstanding warrants for her arrest, and she was placed in the back of a patrol car. A weapons frisk of the passenger produced brass knuckles, and the passenger was also arrested and placed in a patrol car for possession of a prohibited weapon. Subsequently, the officers searched the vehicle.

Among various other items, officers found in the vehicle 7.88 grams of methamphetamine, a metal tube pipe and glass pipe commonly used to smoke methamphetamine, a broken glass pipe, tin foil with residue, and another piece of aluminum foil charred by heat.

McDaniel testified that the search also revealed "a flask-type balloon which was--the flask contained a dark colored substance, had the balloon that was attached, had black electrical tape wrapped around the balloon, it was pulled down over the neck of the flask, and it was emitting a smoke that was coming off of it." Parker's counsel affirmatively stated there was no objection to the introduction of photographs depicting this contraption. The officers found "several other precursors . . . used to manufacture methamphetamine," all admitted with counsel's affirmative statement of no objection, and displayed for the jury. They included: a backpack containing a Scooby Doo note pad with a list of ingredients and instructions for manufacturing methamphetamine, Lorazepam and Alprazolam pills, a hot plate used to create a chemical reaction to break down pills, a bag containing razor blades, a pill box, a metal box, balloons, a silver spoon, acetone solvent used during the manufacture of methamphetamine, a dish designed to "powder out the finished product from the liquid to go to crystalline," and a heat gun used to flash the solvent off the finished product.

(1) Parker Failed to Preserve Any Error in the Admission of the Evidence Found in the Search of Her Vehicle

Parker asserts that the evidence of her guilt was improperly admitted, as it was the fruit of an illegal search of her vehicle. ⁽¹⁾ We note three glaring problems with her assertion on appeal.

First, while Parker filed a motion to suppress the evidence obtained from the search of her vehicle, she failed to request a ruling from the trial court. Second, her counsel affirmatively stated on the record that he had no objection to the introduction of the methamphetamine and other items recovered in the vehicle. Third, no objection was made to Rowe's and McDaniel's testimony recounting the fruits of their search.

As a prerequisite to presenting a complaint for our review, a party must have made the complaint to the trial court by a timely request, objection, or motion, which was ruled on by the trial court expressly or implicitly, or which it refused to rule on despite complaint. Tex. R. App. P. 33.1. "Even constitutional rights, such as protection from an unlawful search and seizure, can be waived by failing to object in a timely manner." Stults v. State, 23 S.W.3d 198, 206 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd) (citing Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988)). "An objection should be made as soon as the ground for objection becomes apparent, which is generally when the item is offered into evidence." Id. at 205 (citing Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995)).

To preserve error on a claim of illegal seizure, Parker was required to obtain a ruling on a motion to suppress or object during trial. Bollinger v. State, 224 S.W.3d 768, 778 (Tex. App.--Eastland 2007, pet. ref'd) (citing Dunavin v. State, 611 S.W.2d 91, 97 (Tex. Crim. App. 1981)); Sands v. State, 64 S.W.3d 488, 491 (Tex. App.--Texarkana 2001, no pet.); Ortiz v. State, 930 S.W.2d 849, 855 (Tex. App.--Tyler 1996, no pet.) (absent a ruling, counsel's motion to suppress the evidence was insufficient to preserve error on unlawful search complaint) (citing Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988)).

Because Parker failed to preserve this point of error for our review, we overrule it.

(2) Parker's Sentence Is Not Disproportionate to the Offense

Parker also claims her sentence was disproportionate given the mitigating testimony presented during the punishment phase about her character, hardships she suffered in life, and the possibility that some of the items found in the car could have belonged to the passenger. ⁽²⁾ We disagree.

Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Possession of methamphetamine in an amount between four and 200 grams is a second-degree felony offense. Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). "An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the institutional division for any term of not more than 20 years or less than 2 years." Tex. Penal Code Ann. § 12.33 (Vernon 2003). Additionally, a fine of up to $10,000.00 may be imposed. Id. Parker's sentence falls within the applicable statutory range.

That does not end our inquiry. A prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. U.S. Const. amend. VIII; see Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Solem v. Helm, 463 U.S. 277, 290 (1983); Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.--Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.--Dallas 1994, pet. ref'd); see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (describing this principle as involving a "very limited, 'exceedingly rare,' and somewhat amorphous" review).

First, we engage in an initial threshold comparison of the gravity of the offense with the severity of the sentence to determine whether it leads to an inference of gross disproportionality. Harmelin, 501 U.S. at 1005; see McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Lackey, 881 S.W.2d at 420-21. Only then do we compare the sentence at issue to the sentences imposed for similar crimes in the same jurisdiction and sentences imposed for commission of the same crime in other jurisdictions. Harmelin, 501 U.S. at 1005; Solem, 463 U.S. at 292; McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.--Texarkana 2006, no pet.); Lackey, 881 S.W.2d at 420-21.

In this case, Parker's sentence was not grossly disproportionate to the gravity of the offense, especially in light of the evidence presented during the trial and punishment phases. Even if it was, no evidence in the record allows us to compare Parker's sentence to the sentences imposed on other persons in Texas or on persons in other jurisdictions who committed a similar offense. See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.--Texarkana 2000, pet. ref'd); Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.--Texarkana 1995, pet. ref'd). Without such evidence, the record before us does not support Parker's claim of demonstrable error. Cf. Jackson, 989 S.W.2d at 846 ("there is no evidence in the record reflecting sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to make a comparison").

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: July 21, 2009

Date Decided: July 24, 2009

Do Not Publish

1. The exception allowing a warrantless search of a motor vehicle incident to an arrest does not justify a search of a vehicle after the occupants of the vehicle have been handcuffed or otherwise secured. Arizona v. Gant, ___ U.S. ___, 129 S.Ct.1710, 1714, 173 L.Ed.2d 45 (2009). The exception authorizes a search within an arrestee's immediate control to prevent the arrestee from gaining possession of a weapon or destroying evidence. Id. Thus, when an arrestee is secured so he or she cannot access a weapon or evidence in his or her vehicle, a search (otherwise unauthorized) of the arrestee's vehicle violates the Fourth Amendment to the United States Constitution. Id. at 1719.

Parker contends that Gant applies to her situation because she was allegedly arrested for the outstanding warrants and placed in the back of the patrol car before the search of her vehicle. Although the facts of this are distinguishable from Gant, we need not address this unpreserved issue.

2. This claim was appropriately preserved through a motion for new trial. See Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.).

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00231-CR

                     REGENA NELL ECHOLS GALLAGHAN, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the Sixth Judicial District Court

                                                             Lamar County, Texas

                                                            Trial Court No. 22356

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            During her revocation^[1] hearing, Regena Nell Echols Gallaghan^[2] testified that, when her local Wal-mart store refused to take back three DVDs she had purchased, but that “were messed up,” she “got very angry” and personally “traded them out” for the same titles from the shelves of the store.  She acknowledged that her action in doing so was “very stupid.”  The State’s motion to revoke Gallaghan’s community supervision alleged that she was guilty of theft of the “traded” DVDs and that she had failed to pay court costs, attorney’s fees, and a fine pursuant to the conditions of her community supervision.  Gallaghan appeals the revocation of her community supervision asserting that the evidence is insufficient to prove either that she stole from Wal-Mart in violation of the conditions of her community supervision or that she had the ability to pay the court costs, attorney’s fees, and fine.  Because we find that the greater weight of the credible evidence could create a reasonable belief that Gallaghan committed theft in violation of the condition of community supervision requiring her to abstain from committing an offense against the laws of Texas, we affirm the trial court’s judgment. 

            We review the trial court’s decision to revoke community supervision for an abuse of discretion.  Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.).  The trial court does not abuse its discretion if the order revoking community supervision is supported by a preponderance of the evidence; in other words, if the greater weight of the credible evidence would create a reasonable belief that the defendant has violated a condition of his or her community supervision.  Rickels, 202 S.W.3d at 763–64; T.R.S., 115 S.W.3d at 320–21.  We examine the evidence in a light most favorable to the trial court’s order.  Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); T.R.S., 115 S.W.3d at 321; Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref’d) (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)).  If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then no abuse of discretion is shown.  Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); T.R.S., 115 S.W.3d at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.—Texarkana 1995, pet. ref’d)).

            Gallaghan argues that her plea of true to the State’s motion to revoke community supervision was not a plea as to each and every allegation.  Thus, she argues that the State was required to introduce evidence to prove by a preponderance of the evidence that she committed an offense in violation of the terms of her community supervision or that she had the ability to pay, but did not pay the court costs, attorney’s fees, and fines ordered by the court.

            Gallaghan filed a written plea to the motion to revoke community supervision, in which she acknowledged in writing that “each and every allegation” contained in the “Petition” was “true.”^[3]  Gallaghan also pled “true” in open court:

            THE COURT:  Okay.  Ma’am, on Cause Number 22356, which is a motion to revoke your community supervision, how do you plead, true—that you violated the terms and conditions of your community supervision, are those allegations true or not true?

            DEFENDANT:  True.

The theft allegation contained within the motion to revoke Gallaghan’s community supervision gave rise to a separate prosecution for theft, in which Gallaghan also pled guilty.^[4]  A plea of true, standing alone, is sufficient to support the revocation of community supervision.  Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).

            Also, Gallaghan’s husband, John, testified that Gallaghan “had anger issues” and became angry on discovering that DVDs she had purchased from Wal-Mart “were messed up.”  John testified, “She went to take them back; they refused to take them because they were already opened.  Well, she got upset and she did what she had to do.”  Gallaghan, herself, testified that she “traded [the DVDs] out.”^[5] 

            Considering the record in a light most favorable to the trial court’s ruling, the trial court could have found that the State met its burden to prove by a preponderance of the evidence that Gallaghan committed theft, either by the written and oral pleas of “true,” or through the testimony of Gallaghan and her husband.  Therefore, the trial court did not abuse its discretion in revoking Gallaghan’s community supervision.^[6]

            We affirm the judgment of the trial court.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          June 28, 2011 

Date Decided:             July 15, 2011

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^[1]Gallaghan’s community supervision resulted from her original conviction for the underlying offense of credit/debit card abuse, repeat offender, and resulting sentence of six years’ confinement with a $480.00 fine.

^[2]The court’s judgment in this case refers to Gallaghan as Regena Echols.  In companion case number 06-10-00232-CR, the judgment refers to her as Regena Nells Echols Gallaghan, and in cause number 06-10-00233-CR, she is referred to as Regena Nell Gallaghan.  To avoid confusion, we list Gallaghan’s full name in this opinion as well as in our opinions in the above-referenced companion cases.

^[3]Gallaghan asserts that her written judicial confession was not introduced as evidence at the trial court’s hearing and cannot be considered.  We disagree.  The written confession signed by Gallaghan was made as part of plea admonishments—State’s Exhibit No. 1—filed with the district clerk and included in the clerk’s record that is before us.  We review the entire record when reviewing complaints regarding sufficiency of the evidence.  Jackson v. Virginia, 443 U.S. 307, 334 (1979).

^[4]Gallaghan’s pleas on her motion to revoke in this cause, as well as a motion to revoke in another cause for an underlying offense of forgery, and the separate theft charge arising from the Wal-Mart incident were all heard simultaneously.  Filing separate briefs, Gallaghan appealed the trial court’s revocation of community supervision for forgery in our cause number 06-10-00232-CR, as well as her conviction for theft in cause number 06-10-00233-CR.

^[5]Gallaghan argues that her testimony did not establish that she left the store with the DVDs or that the offense was committed in the “county where the trial was sought.”  However, theft is unlawful appropriation, or taking, of property with the intent to deprive the owner of the property.  Tex. Penal Code Ann. § 31.03(a) (West 2011).  “[A]sportation--the act of carrying away or removing property--is not an element of statutory theft.”  Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.); see Nautilus Ins. Co. v. Steinberg, 316 S.W.3d 752, 756 (Tex. App.—Dallas 2010, pet. denied) (citing Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1982)); see also Edwards v. State, 440 S.W.2d 648, 649 (Tex. Crim. App. 1969).  Also, because the conditions of Gallaghan’s community supervision prevented her from committing an offense “against the laws of this State, or any other State or of the United States,” the theft was not required to be committed in Lamar County for the purposes of the revocation proceeding.

^[6]Because the ground alleging Gallaghan violated her community supervision by committing theft was supported by a preponderance of the evidence, we need not reach Gallaghan’s complaints that the State failed to prove she had the ability to pay the court costs, attorney’s fees, and fines imposed by the conditions of community supervision.