Quentin Dewayne Roach v. State

• Court: Court of Appeals of Texas
• Decided: April 29, 2008
• Docket: 14-06-00756-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 29, 2008

Affirmed and Memorandum Opinion filed April 29, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00756-CR

QUENTIN DEWAYNE ROACH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1016340

M E M O R A N D U M   O P I N I O N

Appellant Quentin Dewayne Roach challenges his conviction for possession with the intent to deliver at least four hundred grams of cocaine, arguing the trial court erred in denying his motion to suppress evidence.  We affirm. 

I.  Factual and Procedural Background

The Harris County Sheriff=s Office received an anonymous tip that large quantities of narcotics were being sold at a particular residence and that the occupants had semi-automatic weapons.  Seven officers went to the residence to conduct a Aknock and talk@ investigation.^[1]  When the officers arrived at the residence, they entered a porch area through an open and unlocked storm door located almost four feet in front of the entrance and knocked on the front door and announced their presence.  The officers could see through the window blinds covering the front door window.  When the officers heard movement within the home, they looked through the blinds and saw appellant and another male running through the living room into the kitchen with what appeared to be gallon-sized bags of cocaine in their hands.

The officers believed the men were attempting to dispose of the cocaine.  One officer yelled that the men were Aditching the dope.@  The officers kicked the door open, announced their presence, and entered the residence without a warrant.  The officers found appellant in the kitchen, where the garbage disposal was on and the water was running.  The gallon-sized bags were on the counter along with Pyrex brand containers, which are commonly used to make crack cocaine.  Additionally, the officers discovered nearly one kilogram of cocaine and a half pound of marijuana in appellant=s bedroom.  The officers also found loaded guns in every room in the house.  The officers seized all of these items during their search of the residence.  Appellant was arrested and charged with the felony offense of possession with intent to deliver at least four hundred grams of cocaine. 

Before trial, appellant filed a motion to suppress the evidence seized during the officers= warrantless search of his residence.  Appellant argued for the suppression of the evidence, asserting the search was conducted without consent or lawful authority and without a valid search warrant or probable cause.  Appellant claimed that because the evidence was the fruit of an illegal search it should be suppressed.  The trial court denied appellant=s motion.

During trial, the State presented testimony regarding the search and the evidence seized by the officers during their search of appellant=s residence, including the weapons, Pyrex containers, scales, gallon-sized bags, cocaine, and marijuana.  Each time the State offered the evidence, defense counsel stated Ano objection.@

A jury found appellant guilty of possession with intent to deliver at least four hundred grams of cocaine.  Appellant was sentenced to fifty years= confinement and assessed a $250,000 fine.

II.  Issue and Analysis

In his sole issue, appellant contends the trial court committed reversible error in denying his motion to suppress the evidence from the officers= search because the jury=s assessment of guilt depended on the evidence that was admitted.  We review the trial court=s ruling on a motion to suppress under an abuse-of-discretion standard.  State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).  If supported by the record, a trial court=s ruling on a motion to suppress will not be overturned.  Id.  At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented.  Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  We afford almost total deference to the trial court=s determination of the historical facts that the record supports, especially when the trial court=s findings turn on evaluating a witness=s credibility and demeanor.  Dixon, 206 S.W.3d at 590.  We review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor.  Id.

In his motion to suppress, appellant argued the evidence should have been suppressed because it was the fruit of an illegal search conducted without consent or lawful authority and without a valid search warrant or probable cause.  Appellant argued the officers= entry was unlawful because (1) the officers entered through a storm door into a porch area to knock on appellant=s front door, and, therefore, their presence at the front door was unlawful; and (2) the officers= testimony of seeing appellant through the front door window blinds was unbelievable and, therefore, no justification existed for the officers= warrantless entry.  Under appellant=s theory at trial, evidence seized in the officers= warrantless search should be suppressed because the officers= entry was in violation of the Fourth Amendment=s warrant requirement.  See U.S. Const. amend. IV. 

The Fourth Amendment guarantees people the right to be secure in their home against unreasonable searches and seizures.  Id.  A warrantless search is per se unreasonable unless the government can demonstrate that it falls within one of the carefully defined exceptions to the Fourth Amendment=s warrant requirement.  Coolidge v. New Hampshire, 403 U.S. 443, 474B75, 91 S. Ct. 2022, 2042, 29 L. Ed. 2d 564 (1971); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).  A police officer=s warrantless entry into a residence is presumptively unreasonable unless the occupants consent or exigent circumstances exist.  Payton v. New York, 445 U.S. 573, 586, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639 (1980); English v. State, 647 S.W.2d 667, 671B72 (Tex. Crim. App. 1983).  Officers cannot justify a warrantless entry into and a search of a residence on the basis of exigent circumstances that the officers created.  Parker v. State, 206 S.W.3d 593, 598, n.21 (Tex. Crim. App. 2006); see United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986).  After hearing testimony from both sides, the trial court judge evaluated the credibility of the testimony and denied appellant=s motion to suppress.

On appeal, however, appellant argues the officers were not entitled to rely on the exigent-circumstances exception because the officers created the exigent circumstances themselves when the seven officers approached the house late at night, peered through the windows, and announced their presence.  Under appellant=s rationale, because the officers created the exigent circumstances themselves, the exigent-circumstances exception to the general rule does not apply and the trial court erred in denying his motion to suppress.

Appellant has failed to preserve this complaint for appellate review because his appellate contention does not comport with his arguments at the motion-to-suppress hearing.  See Tex. R. App. P. 33.1(a)(1)(A).  A motion to suppress is nothing more than a specialized objection to the admissibility of evidence.  Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981).  To preserve a complaint for appellate review, a defendant must raise the complaint to the trial judge by a timely request, objection or motion that specifically identifies the grounds for the ruling he seeks.  Tex. R. App. P. 33.1(a)(1)(A).  A defendant=s appellate contention must comport with the specific objection made at trial.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  An objection grounded on one legal basis may not be used to support a different legal theory on appeal.  Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).  The reviewing court will not consider errors, even of constitutional magnitude, not called to the trial court=s attention.  Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).

Appellant never suggested during the motion-to-suppress hearing that the officers created the exigent circumstances upon which they relied for entry.  Instead, appellant argued only that the officers= presence at the front door was unlawful and the officers= testimony of being able to see inside was a Astretch@ such that no justification existed at all for the officers= warrantless entry.  Because appellant=s appellate contention does not comport with his objections at the suppression hearing, he has failed to preserve error on this issue.  See Wilson, 71 S.W.3d at 349.

Nevertheless, even if appellant had preserved error on this issue, he could not prevail because appellant waived error at trial when he stated Ano objection@ to the contested evidence each time the State offered it and the trial court admitted it.  See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992).  When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error on appeal.  Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).  However, when a defendant affirmatively states during trial that he has Ano objection@ to the admission of evidence, he waives any error, despite the pretrial ruling.  Moody, 827 S.W.2d at 889.

Though appellant initially preserved error through the trial court=s ruling on the pretrial motion to suppress, because appellant=s counsel specifically stated that he had no objection to the State=s offer of evidence seized during the search, this issue was not preserved for appellate review.  See id.  Appellant has waived his complaint to the inadmissibility of the challenged evidence.  See id. 

Appellant=s sole issue on appeal is overruled, and the trial court=s judgment is affirmed.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 29, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

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

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^[1]  In a Aknock and talk@ investigation, law enforcement officers knock at a suspect=s door, identify themselves as police officers, and explain to the individual that he is a suspect in a narcotics investigation.  The officers then advise the suspect of his rights and ask the suspect for consent to search his residence or to further discuss the allegations against him.  Gale v. State, 998 S.W.2d 221, 223 n.2 (Tex. Crim. App. 1999).