Lavette Onsha McAfee-Jackson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 1, 2021
• Docket: 09-19-00430-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00430-CR __________________

LAVETTE ONSHA MCAFEE-JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 19-338240 __________________________________________________________________

MEMORANDUM OPINION

A jury found Appellant Lavette Onsha McAfee-Jackson guilty of

misdemeanor possession of more than two but less than four ounces of marijuana.

In one appellate issue she challenges the trial court’s denial of her motion to

suppress. We affirm.

1 Evidence at Trial 1

Trooper Blake Fletcher with the Texas Department of Public Safety testified

that on January 11, 2019, he initiated a traffic stop on a vehicle driven by Appellant

for an improperly placed license plate. According to Trooper Fletcher, he

approached the driver’s side, identified himself, and explained to Appellant why he

initiated the stop. Trooper Fletcher testified that he told Appellant he was going to

issue her a warning, went back to his patrol car to print the warning, and returned to

the driver’s side of the Appellant’s vehicle. Trooper Fletcher testified that “as I was

speaking with her and as she was signing the warning, I smelled marijuana coming

from inside the vehicle.” He asked her if she had marijuana in the vehicle and he

testified he did not remember her exact response but had her exit the vehicle. He

testified he asked her again if she had marijuana in the vehicle, and she said she

“didn’t think so.” He testified he asked her where the marijuana was when it was in

1 Our appellate record shows that Appellant’s original request for preparation of the reporter’s record asked that the record include only the “[d]irect [e]xamination of officer” and “[a]ll exhibits offered or introduced into evidence.” Neither the request nor Appellant’s notice of appeal included any designation of the issue to be raised on appeal. After the case was abated and new counsel appeared, Appellant filed an amended designation of items to be included in the reporter’s record and asked for a partial reporter’s record – “[t]he entire testimony of Trooper Fletcher[,]” “[a]ll admitted or offered exhibits[,]” and “[a]ny motion to suppress or objection regarding either contraband or paraphernalia, raised or litigated on the record.” The amended designation also did not include a statement of issue to be raised on appeal. 2 the vehicle, and she responded, “I had a bag and it was in the driver door, but I hope

it’s empty.”

According to Trooper Fletcher, he had probable cause to search the vehicle,

and based on the smell and Appellant admitting to drug paraphernalia in the vehicle,

he detained her and searched the vehicle. He testified he found a baggy in the driver’s

side door with a usable amount of marijuana inside of it and a “pretty good amount[]”

of marijuana in a duffle bag in the back seat. He testified the marijuana weighed

approximately 3.9 ounces. State’s Exhibit 2, the marijuana seized, was admitted into

evidence without objection.

On cross-examination, defense counsel asked Trooper Fletcher questions

regarding whether he could differentiate between the smell of marijuana and zero

THC hemp, and when Trooper Fletcher responded that he could not provide specific

articulable facts that differentiate the two, the following exchange occurred:

[Defense counsel]: Judge, I move to suppress the search of this marijuana based on he said it was smell and odor alone. And you don’t get to move forward if you’ve got a plant that’s got nothing, that’s not illegal, that looks and smell, as his testimony, the exact same. . . . He’s not allowed to move forward with the search if he can’t - - if he doesn’t have a real probable cause to think it’s marijuana.

THE COURT: Well, I think her admissions and the smell together are enough.

[Defense counsel]: To move forward with the arrest, yes; but to get her out of the car at that point to move forward with the search - - he admitted, I got her out of the car to search immediately based on the

3 smell of odor of marijuana, which cannot be differentiated from non- THC hemp cannabis plant.

THE COURT: Okay. Motion to suppress is denied.

Denial of Appellant’s Motion to Suppress

On appeal, Appellant argues the trial court abused its discretion by denying

Appellant’s motion to suppress evidence seized during Trooper Fletcher’s search of

Appellant’s vehicle. According to Appellant, Trooper Fletcher testified that he had

probable cause to search Appellant’s vehicle during the traffic stop based on the fact

that he smelled marijuana, and that “Fletcher also conceded that, when presented

with Defense Exhibits 1 and 3, which were ‘zero THC hemp flower bought at a

corner store’ – he could not tell the difference in either look or smell between that

substance and the actual marijuana in State’s Exhibit 2.” Appellant argues she

moved to suppress evidence obtained from the search “based on Fletcher’s

concession that he could not differentiate between the smell of contraband and an

entirely legal substance – a hemp plant with no THC.”

We conclude that Appellant failed to comply with Texas Rule of Appellate

Procedure 34.6(c) in either of her requests for preparation of a partial reporter’s

record because she did not designate the issues to be raised on appeal. Appellant also

did not object at the first opportunity to admission of the evidence obtained from the

search of the vehicle she was driving.

4 Rule 34.6(c)(1) of the Texas Rules of Appellate Procedure provides that if the

appellant requests a partial reporter’s record, “the appellant must include in the

request a statement of the points or issues to be presented on appeal and will then be

limited to those points or issues.” Tex. R. App. P. 34.6(c)(1). An appellate court

“must presume that the partial reporter’s record designated by the parties constitutes

the entire record for purposes of reviewing the stated points or issues.” Tex. R. App.

P. 34.6(c)(4); see also Zavala v. State, 498 S.W.3d 641, 642 (Tex. App.—Houston

[14th Dist.] 2016, no pet.). When an appellant obtains a partial reporter’s record and

does not comply with Rule 34.6(c) by designating the issues to be raised on appeal,

the appellate court must presume that the material missing from the reporter’s record

is relevant and supports the trial court’s judgment. See Zavala, 498 S.W.3d at 642.

Considering the portions of the record designated for appeal and assuming that the

omitted portions of the reporter’s record support the trial court’s judgment, we

cannot conclude that the trial court abused its discretion by denying the motion to

suppress.

Additionally, to preserve a complaint for appellate review, the record must

show the complaint was made to the trial court by a timely request, objection, or

motion stating the grounds for the ruling sought with sufficient specificity to make

the trial court aware of the complaint and that the court ruled on the request,

objection, or motion. See Tex. R. App. P. 33.1(a); Aguilar v. State, 26 S.W.3d 901,

5 905 (Tex. Crim. App. 2000). To be timely, an objection must be made as soon as the

ground for complaint is apparent or should be apparent. See Aguilar, 26 S.W.3d at

905. A specific objection to inadmissible evidence should be urged at the first

opportunity. Id. at 905-06. The complaining party must object “before substantial

testimony is given regarding the alleged illegally seized item.” Coleman v. State,

113 S.W.3d 496, 500 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 145 S.W.3d 649

(Tex. Crim. App. 2004) (defendant waived error in admission of evidence of

narcotics seized from his home where he waited until after officers and crime

laboratory chemist had testified extensively about seized items).

On appeal, Appellant asserts she filed a motion to suppress on the first day of

trial

alleging, among other things, that her detention was illegal and the admission of statements made by Appellant violated her rights under the Fourth Amendment[;] [h]owever, trial counsel did not move to suppress the evidence obtained pursuant to the vehicle search until his cross-examination of Fletcher.

Appellant’s motion to suppress asked the trial court to suppress Appellant’s oral

statements to law enforcement at the time of arrest because she claimed that her

statements were involuntary, coerced, and she was deprived the right to counsel and

did not make an intelligent and knowing waiver of that right. According to the

motion to suppress, the admission of Appellant’s statements would be a violation of

the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States

6 Constitution, Article I, Sections 9 and 10 of the Texas Constitution, and Articles

1.05 and 38.23 of the Texas Code of Criminal Procedure. Appellant did not obtain a

hearing or ruling on her motion to suppress before trial.

Under these circumstances, the mere filing of the motion to suppress did not

preserve the error Appellant urges on appeal. See Thomas v. State, 884 S.W.2d 215,

216 (Tex. App.—El Paso 1994, pet. ref’d). Appellant argues that her objection was

timely because unlike in other typical contraband suppression cases, “the

suppression issue in this case did not become apparent until Trooper Fletcher

testified that he could not differentiate between the contraband and the two

containers of legal hemp product.” We disagree. The suppression issue was apparent

from the beginning of the trial, and Appellant should have objected at the earliest

testimony regarding the drugs. For example, the Appellant made no objection when

Trooper Fletcher testified that he smelled marijuana and asked Appellant to exit the

vehicle, Appellant did not object when Trooper Fletcher testified that he found

marijuana in her car, and the Appellant stated no further objections when the State

offered the marijuana into evidence. See Aguilar, 26 S.W.3d at 905; Coleman, 113

S.W.3d at 500; see also Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App.

1980) (defendant forfeited claim that trial court should have suppressed physical

evidence of narcotics because defendant had not objected at trial to officer’s

testimony about finding narcotics); Laurant v. State, 926 S.W.2d 782, 783 (Tex.

7 App.—Houston [1st Dist.] 1996, pet. ref’d) (where trial court did not rule on motion

to suppress before trial, defendant forfeited error by waiting until after officers

testified about the physical evidence to object to admission of the physical evidence).

When the State offers the subject evidence at trial and the defendant affirmatively

voices, “no objection,” then the defendant will have waived any error in the

admission of the evidence. See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim.

App. 2005) (“The affirmative acceptance of this previously challenged evidence

waived any error in its admission.”); Moraguez v. State, 701 S.W.2d 902, 904 (Tex.

Crim. App. 1986) (a defendant may generally make an objection to the introduction

of evidence in a pretrial motion to suppress, but he waives that objection and any

error relating thereto when he affirmatively states “no objection” to introduction of

same evidence at trial).

Accordingly, Appellant’s complaint regarding the denial of the motion to

suppress and the introduction of the evidence obtained from the search was not

preserved for review. We overrule Appellant’s issue and affirm the trial court’s

judgment.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

8 Submitted on June 25, 2021 Opinion Delivered September 1, 2021 Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.