Powers, Marcus Tremayne v. State

• Court: Court of Appeals of Texas
• Decided: March 16, 2004
• Docket: 14-03-00442-CR
• Status: Published

Opinion

Affirmed and Opinion filed _____________, 2003

Affirmed and Memorandum Opinion filed March 16, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00442-CR

MARCUS TREMAYNE POWERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 935,816

M E M O R A N D U M   O P I N I O N

            Appellant Marcus Powers appeals the trial court’s denial of his motion to suppress evidence obtained from a traffic stop on January 10, 2003.  Following the denial of his motion, appellant waived a jury and entered a plea of guilty to the charged offense of possession of a controlled substance, namely phencyclidine.  The trial court deferred an adjudication of appellant’s guilt, and he was placed under community supervision for two years.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.1.  We affirm.

            In his first issue, appellant argues the trial court erred in denying his motion to suppress because the State failed to establish probable cause to arrest him.  The State counters by contending appellant failed to preserve this alleged error for appellate review.  We agree with the State’s contention.

            A motion to suppress is nothing more than a specialized objection to the admission of evidence. See Martinez v. State, 17 S.W.3d 677, 682-83 (Tex. Crim. App. 2002).  To preserve error, a request, objection or motion must state the grounds therefor with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a).  If the objection made in the trial court differs from the complaint made on appeal, the defendant has failed to preserve error for review. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

            In the present case, the record reveals appellant’s motion to suppress, as well as the suppression hearing, was limited to the issue of the legality of the stop.  No evidence or argument was presented relating to the legality of the arrest.  Because appellant now advances arguments concerning the arrest which he failed to make in either his motion or the suppression hearing, we hold appellant did not preserve this issue for appellate review.  Appellant’s first issue is overruled.

            In his second issue, appellant argues the evidence presented at the suppression hearing failed to establish the legality of the stop.  We disagree.  A trial court’s decision on a motion to suppress will be upheld if it is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).  An officer who observes a traffic violation may lawfully stop a motorist. Carmouche v. State, 10 S.W.3d 323, 328-29 (Tex. Crim. App. 2002).

In the present case, Officer Emanuel Pierson of the Houston Police Department testified he observed the vehicle driven by appellant make a right-hand turn off of

Sunflower Street

into the left northbound lane on

Cullen Street

.  Officer Pierson believed this conduct to be in violation of Section 545.101(a) of the Texas Transportation Code.[1]  While appellant testified he turned directly into the right lane on

Cullen Street

, the conflict between his testimony and Officer Pierson’s testimony does not require reversal.  In a suppression hearing, the trial court is the sole trier of fact, as well as the judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).  We must defer to the determinations made by the trier of fact concerning the weight and credibility to be given the contradictory evidence presented at the suppression hearing. See Johnson v. State, 23 S.W.3d 1, 8-9 (Tex. Crim. App. 2000).  Accordingly, appellant’s second issue is overruled.

The judgment is affirmed.

                                                                        /s/        Paul C. Murphy

                                                                                    Senior Chief Justice

Judgment rendered and Memorandum Opinion filed March 16, 2004.

Panel consists of Justices Anderson, Seymore, and Murphy.*

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

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[1] That section provides: “To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway.”

* Senior Chief Justice Paul C. Murphy sitting by assignment.