Kinte L. Sargent v. State

Court of Appeals of Texas

Kinte L. Sargent v. State

DecidedApril 7, 2011

Docket02-09-00346-CR

StatusPublished

This text of Kinte L. Sargent v. State (Kinte L. Sargent v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kinte L. Sargent v. State, (Tex. Ct. App. 2011).

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Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-09-00346-CR

KINTE L. SARGENT APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

Introduction

Appellant Kinte L. Sargent appeals his conviction for possessing a

controlled substance with intent to deliver, asserting that the trial court erred by

denying his motion to suppress a recorded interview in which he admitted that

drugs seized during a search were his. We affirm.

1 See Tex. R. App. P. 47.4. Background Facts and Procedural History

Appellant was playing video games in a Fort Worth duplex with Cedric and

Cory Finley when narcotics officers, executing a search warrant, entered through

the front door. Appellant ran from the living room toward a bedroom before

stopping in the hallway and lying down on the floor. He told officers securing the

duplex as they walked by that any drugs they found belonged to him.

Once the duplex was secured, Officer Thomas Bulger led Appellant

outside and placed a tape recorder between them on the hood of a pickup truck

parked in the driveway. He turned the recorder on, read Appellant the Miranda

warnings,2 and recorded Appellant admitting that the drugs seized in the duplex

were his.

Officers searching the kitchen found digital scales and a large, black

plastic bag in a cupboard. The bag contained approximately one hundred grams

of crack cocaine divided into smaller plastic bags.

The officers arrested Appellant, and he was charged with possession of

four or more but less than two hundred grams of cocaine with intent to deliver.

Before trial, he filed a motion to suppress his recorded statement, claiming that

its admission would violate his rights under provisions of the state and federal

constitutions and the code of criminal procedure. The trial court denied the

motion to suppress after a hearing.

2 See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).

2 At trial, Officer Bulger testified that as soon as the officers entered the

duplex, Appellant spontaneously admitted owning all the drugs. Appellant did not

object to this testimony. Officer Bulger further testified that he subsequently

recorded an interview with Appellant during which Appellant reiterated that all the

drugs were his. The recording was admitted in evidence and published to the

jury.3 After the State rested, Cedric Finley testified for the defense that he did not

hear Appellant claim that the drugs were his.

The jury found Appellant guilty and assessed his punishment at thirty-five

years’ confinement. The trial court sentenced him accordingly.

Issues on Appeal

In six issues, Appellant claims that the trial court abused its discretion by

admitting his recorded statement in violation of the Fourth, Fifth, Sixth, Eighth,

and Fourteenth Amendments to the United States Constitution; article 1, section

9 of the Texas constitution; and articles 1.04, 38.22 and 38.23 of the Texas Code

of Criminal Procedure. Appellant combines all six issues and argues that his

recorded statement should have been suppressed because (1) the officer’s

warning was an improper statement of the law; and (2) Appellant did not

3 Before trial, the driveway recording of the interview was copied to two compact discs, marked State’s Exhibits 1 and 11. State’s Exhibit 1 contained the original recording and two redacted versions that the prosecutor had prepared anticipating potential objections at trial. State’s Exhibit 1 was admitted and published to the trial court at the pretrial hearing. State’s Exhibit 11 contained only the original unredacted recording and was admitted at trial and published to the jury. Neither redacted version was used at trial.

3 expressly state that he understood his rights and that he voluntarily, knowingly,

and intelligently waived them.

Initially, the State responds that we need not consider all of Appellant’s

issues because he did not argue them all at the pretrial hearing. Specifically, the

State points out that Appellant did not argue to the trial court that admitting the

statement would violate the Texas constitution, article 1.04 of the code of criminal

procedure, and the Fourth, Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution. Thus, the State argues, Appellant has waived all but

his claims under the Fifth Amendment and article 38.22 of the code of criminal

procedure.

In support of this argument, the State relies on appellate rule 33.1(a) and

two cases from the court of criminal appeals.4 Neither of the cases cited by the

State, however, involves a trial court’s denial of a motion to suppress, as is the

case here. Moreover, rule 33.1(a) states that as a prerequisite for presenting a

complaint for appellate review, the record must show that the complaint was

made to the trial court by a timely request, objection or motion that stated the

grounds for the sought-after ruling with sufficient specificity to make the trial court

aware of the complaint. Tex. R. App. P. 33.1(a)(1); see Mosley v. State, 983

4 The State cites Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) for the proposition that error under the Sixth Amendment Confrontation Clause may be waived; and Gallo v. State, 239 S.W.3d 757, 758 (Tex. Crim. App. 2007) for its holding that the appellant’s trial objection in that case did not comport with his argument on appeal and, therefore, that his complaint on appeal was not preserved.

4 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). The record shows that Appellant timely filed a motion to suppress,

that the motion plainly invokes the provisions upon which he bases his appellate

claims for relief, and that the trial court denied the motion. Initially, therefore,

Appellant preserved all his claims for review. See Tex. R. App. P. 33.1(a)(1);

Mosley, 983 S.W.2d at 265; Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim.

App. 2004).

We say initially because, although Appellant cited state and federal

constitutional provisions as grounds for relief in both his motion to suppress and

in his brief, he does not distinguish his state and federal constitutional claims or

provide substantive argument in support of each. Specifically, he does not argue

how the Texas constitution affords more protection than its federal counterpart.

Accordingly, of his constitutional claims, we consider only those relying on the

United States Constitution and we disregard those based upon the Texas

constitution. See Welch v. State, 93 S.W.3d 50, 52 n.5 (Tex. Crim. App. 2002);

Heitman v. State, 815 S.W.2d 681, 690–91 n.23 (Tex. Crim. App. 1991).

Appellant’s second and fifth issues, therefore, are overruled. We now turn to the

remaining ones.

Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v.

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