In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00103-CR
TATE ED BROWN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 106th District Court Garza County, Texas Trial Court No. 20-3487, Honorable Reed A. Filley, Presiding
March 31, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
A jury found Tate Ed Brown, Appellant, guilty on two counts of possession of a
controlled substance, one gram or more but less than four grams.1 In two issues on
appeal, Appellant argues that the trial court erred in denying his motion to suppress and
the evidence was insufficient to convict him. We affirm.
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c). BACKGROUND
Trooper Ricky Walters, a state trooper for the Texas Department of Public Safety,
was on patrol in Garza County on January 12, 2020. Using his radar, he clocked a vehicle
driving 34 miles per hour in a 30-mile-per-hour zone. He performed a traffic stop. When
he approached the passenger side of the vehicle, where Appellant was seated, Trooper
Walters immediately detected the odor of marijuana emanating from the car. He asked
Appellant to exit the vehicle. Appellant sat in the trooper’s vehicle while the trooper
checked Appellant’s and the driver’s licenses.
Trooper Walters then conducted a search of the vehicle. Appellant acknowledged
there was marijuana inside. The trooper found a bag of marijuana in the front passenger
seat. He also found two baggies inside a cup located in the center console of the vehicle.
Trooper Walters suspected, and it was later confirmed by testing, that one baggie
contained methamphetamine and one baggie contained cocaine. Appellant and the
driver were both arrested. When he was booked and searched at the jail, Appellant was
found to have more cocaine inside the money in his pocket.
Appellant was indicted for possession of methamphetamine under one cause
number and for possession of cocaine under another. Each indictment included an
enhancement paragraph alleging a 2015 felony conviction for possession of a controlled
substance. The charges were consolidated for trial.
Appellant filed a motion to suppress in which he argued that Trooper Walters did
not have a legally sufficient reason to stop the vehicle, thus “this was an illegal motor
vehicle detention . . . .” In support of his motion, Appellant attached his handwritten
2 “Statement of Claim” asserting that the driver “maintained all speed signs” and “was
moving at 15-20 miles per hour” when Trooper Walters turned on his lights to pull them
over. By his motion, Appellant sought to suppress “all evidence,” “all physical evidence,”
“all photographs, digital still images and videotaped images,” “all testimony of any law
enforcement officers,” “the results of any and all scientific tests,” and “all statements” of
Appellant.
The trial court set the motion for hearing by submission. Appellant submitted no
additional evidence in support of his motion. In its response, the State asserted that
Trooper Walters, using his radar, determined that the vehicle was driving over the posted
speed limit. The State submitted Trooper Walters’s offense report and the dashcam video
recording of the stop in support of its response. The trial court denied Appellant’s motion.
Appellant did not request, and the trial court did not make, findings of fact supporting the
denial of the motion to suppress.
The case was tried to a jury in March of 2022. The jury found Appellant guilty on
both charges, found the enhancement paragraph to be true, and assessed punishment
in each count at 20 years’ confinement plus a $1,000 fine.
ANALYSIS
Denial of Motion to Suppress
In his first issue, Appellant argues that the trial court should have granted his
motion to suppress because Trooper Walters did not have any legal right to stop the
vehicle, as it was not speeding or violating any other law. We review a trial court’s ruling
on a motion to suppress for an abuse of discretion. Martinez v. State, 348 S.W.3d 919, 3 922 (Tex. Crim. App. 2011). We apply a bifurcated standard of review, affording almost
total deference to a trial judge’s determination of historical facts and reviewing the trial
court’s application of law to the facts de novo. Brodnex v. State, 485 S.W.3d 432, 436
(Tex. Crim. App. 2016).
We first address the State’s argument that Appellant waived any issue regarding
the legitimacy of the traffic stop and the evidence from the ensuing search by declaring
he had “no objection” to the admission of such evidence at trial. Preservation of error is
a systematic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.
App. 2009). Though a trial court’s denial of a prior motion to suppress normally preserves
a complaint for review, the situation changes when the complainant states, at trial, that
he has no objection to the evidence. Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim.
App. 2013). Stating “no objection” may, but does not necessarily, result in the
abandonment of any complaint regarding the admission of the evidence. See id. (whether
statement of “no objection” forfeits earlier-preserved error is “context-dependent”). If the
record plainly demonstrates the defendant did not intend to abandon his earlier objection
to the admission of the evidence and the trial court did not construe the statement as
such, then the reviewing court should not regard it as waived. Id. If the record does not
make it clear, then we should consider the issue waived. Id. at 885–86.
At trial, Trooper Walters was the State’s first witness. He testified that he stopped
the vehicle for going 34 miles per hour in a 30-mile-per-hour zone and that this was a
lawful reason to pull a driver over. He confirmed that he then conducted a traffic stop and
got out of his vehicle. At that point, Appellant’s counsel asked to approach the bench.
He requested a running objection “subject to the motion to suppress,” which the trial court 4 granted. Appellant’s counsel further stated, “No objections to any testimony at this point,
Judge . . . .”
As the State’s direct examination of Trooper Walters continued, the State moved
to admit its exhibits 3A through 3E, which were the narcotics at issue. Appellant’s counsel
stated, “No objections, Your Honor.” Subsequently, Appellant’s counsel affirmatively
stated that he had “no objections” to the other evidence offered by the State, which
consisted of the bodycam and dashcam videos and the drug analysis laboratory report.
In the course of the trial, Appellant’s counsel did not argue or imply that the traffic stop
was illegal. Instead, Appellant’s counsel pursued a strategy focused on whether
Appellant knowingly or intentionally possessed the narcotics found in the vehicle. In his
closing argument, Appellant’s counsel indicated that the traffic stop was legal, stating:
I think the trooper was looking for a reason to stop that vehicle. And then when the – when the vehicle went 34 in a 30, as you heard from the video, the trooper stopped him for the traffic violation. That’s all legal.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00103-CR
TATE ED BROWN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 106th District Court Garza County, Texas Trial Court No. 20-3487, Honorable Reed A. Filley, Presiding
March 31, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
A jury found Tate Ed Brown, Appellant, guilty on two counts of possession of a
controlled substance, one gram or more but less than four grams.1 In two issues on
appeal, Appellant argues that the trial court erred in denying his motion to suppress and
the evidence was insufficient to convict him. We affirm.
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c). BACKGROUND
Trooper Ricky Walters, a state trooper for the Texas Department of Public Safety,
was on patrol in Garza County on January 12, 2020. Using his radar, he clocked a vehicle
driving 34 miles per hour in a 30-mile-per-hour zone. He performed a traffic stop. When
he approached the passenger side of the vehicle, where Appellant was seated, Trooper
Walters immediately detected the odor of marijuana emanating from the car. He asked
Appellant to exit the vehicle. Appellant sat in the trooper’s vehicle while the trooper
checked Appellant’s and the driver’s licenses.
Trooper Walters then conducted a search of the vehicle. Appellant acknowledged
there was marijuana inside. The trooper found a bag of marijuana in the front passenger
seat. He also found two baggies inside a cup located in the center console of the vehicle.
Trooper Walters suspected, and it was later confirmed by testing, that one baggie
contained methamphetamine and one baggie contained cocaine. Appellant and the
driver were both arrested. When he was booked and searched at the jail, Appellant was
found to have more cocaine inside the money in his pocket.
Appellant was indicted for possession of methamphetamine under one cause
number and for possession of cocaine under another. Each indictment included an
enhancement paragraph alleging a 2015 felony conviction for possession of a controlled
substance. The charges were consolidated for trial.
Appellant filed a motion to suppress in which he argued that Trooper Walters did
not have a legally sufficient reason to stop the vehicle, thus “this was an illegal motor
vehicle detention . . . .” In support of his motion, Appellant attached his handwritten
2 “Statement of Claim” asserting that the driver “maintained all speed signs” and “was
moving at 15-20 miles per hour” when Trooper Walters turned on his lights to pull them
over. By his motion, Appellant sought to suppress “all evidence,” “all physical evidence,”
“all photographs, digital still images and videotaped images,” “all testimony of any law
enforcement officers,” “the results of any and all scientific tests,” and “all statements” of
Appellant.
The trial court set the motion for hearing by submission. Appellant submitted no
additional evidence in support of his motion. In its response, the State asserted that
Trooper Walters, using his radar, determined that the vehicle was driving over the posted
speed limit. The State submitted Trooper Walters’s offense report and the dashcam video
recording of the stop in support of its response. The trial court denied Appellant’s motion.
Appellant did not request, and the trial court did not make, findings of fact supporting the
denial of the motion to suppress.
The case was tried to a jury in March of 2022. The jury found Appellant guilty on
both charges, found the enhancement paragraph to be true, and assessed punishment
in each count at 20 years’ confinement plus a $1,000 fine.
ANALYSIS
Denial of Motion to Suppress
In his first issue, Appellant argues that the trial court should have granted his
motion to suppress because Trooper Walters did not have any legal right to stop the
vehicle, as it was not speeding or violating any other law. We review a trial court’s ruling
on a motion to suppress for an abuse of discretion. Martinez v. State, 348 S.W.3d 919, 3 922 (Tex. Crim. App. 2011). We apply a bifurcated standard of review, affording almost
total deference to a trial judge’s determination of historical facts and reviewing the trial
court’s application of law to the facts de novo. Brodnex v. State, 485 S.W.3d 432, 436
(Tex. Crim. App. 2016).
We first address the State’s argument that Appellant waived any issue regarding
the legitimacy of the traffic stop and the evidence from the ensuing search by declaring
he had “no objection” to the admission of such evidence at trial. Preservation of error is
a systematic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.
App. 2009). Though a trial court’s denial of a prior motion to suppress normally preserves
a complaint for review, the situation changes when the complainant states, at trial, that
he has no objection to the evidence. Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim.
App. 2013). Stating “no objection” may, but does not necessarily, result in the
abandonment of any complaint regarding the admission of the evidence. See id. (whether
statement of “no objection” forfeits earlier-preserved error is “context-dependent”). If the
record plainly demonstrates the defendant did not intend to abandon his earlier objection
to the admission of the evidence and the trial court did not construe the statement as
such, then the reviewing court should not regard it as waived. Id. If the record does not
make it clear, then we should consider the issue waived. Id. at 885–86.
At trial, Trooper Walters was the State’s first witness. He testified that he stopped
the vehicle for going 34 miles per hour in a 30-mile-per-hour zone and that this was a
lawful reason to pull a driver over. He confirmed that he then conducted a traffic stop and
got out of his vehicle. At that point, Appellant’s counsel asked to approach the bench.
He requested a running objection “subject to the motion to suppress,” which the trial court 4 granted. Appellant’s counsel further stated, “No objections to any testimony at this point,
Judge . . . .”
As the State’s direct examination of Trooper Walters continued, the State moved
to admit its exhibits 3A through 3E, which were the narcotics at issue. Appellant’s counsel
stated, “No objections, Your Honor.” Subsequently, Appellant’s counsel affirmatively
stated that he had “no objections” to the other evidence offered by the State, which
consisted of the bodycam and dashcam videos and the drug analysis laboratory report.
In the course of the trial, Appellant’s counsel did not argue or imply that the traffic stop
was illegal. Instead, Appellant’s counsel pursued a strategy focused on whether
Appellant knowingly or intentionally possessed the narcotics found in the vehicle. In his
closing argument, Appellant’s counsel indicated that the traffic stop was legal, stating:
I think the trooper was looking for a reason to stop that vehicle. And then when the – when the vehicle went 34 in a 30, as you heard from the video, the trooper stopped him for the traffic violation. That’s all legal. There’s no issues with that. That’s certainly within the realm of what officers can do, and that’s what the officer did. And we’re not complaining about that.
In our view, Appellant’s affirmative “no objection” statements, combined with the
statements regarding the legitimacy of the traffic stop, evince an intent to abandon
Appellant’s earlier objection to the admission of evidence obtained as a result of the stop.
See Thomas, 408 S.W.3d at 885–86 (“no objection” statement should be considered in
context of entirety of record; statement waives previously preserved error unless the
record “plainly demonstrates” that defendant and trial court understood otherwise).
Therefore, we conclude that Appellant waived his complaint regarding the trial court’s
denial of his motion to suppress. We overrule Appellant’s first issue.
5 Sufficiency of the Evidence
In his second issue, Appellant contends that the evidence does not support his
conviction for possession of a controlled substance, claiming that there is “legally
insufficient evidence of any affirmative links regarding [p]ossession.” Appellant argues
that the driver of the vehicle could have placed the contraband inside the cup while
Trooper Walters was questioning Appellant.
When reviewing the sufficiency of the evidence, we review all of the evidence in
the light most favorable to the verdict to determine whether any rational factfinder could
have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). We consider both direct and
circumstantial evidence as well as all reasonable inferences that may be drawn from that
evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
In cases involving unlawful possession of a controlled substance, the State must
prove that the accused exercised care, custody, control, or management over the
substance and that the accused knew that the matter possessed was contraband. Brown
v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc). When the accused is
not shown to have had exclusive possession of the place where the contraband was
found, the evidence must link the accused to the contraband and establish that the
accused’s connection with it was more than fortuitous. Evans v. State, 202 S.W.3d 158,
161–62 (Tex. Crim. App. 2006). A factfinder may “infer that the defendant intentionally
or knowingly possessed the contraband if there are sufficient independent facts and
6 circumstances justifying such an inference.” Tate v. State, 500 S.W.3d 410, 413–14 (Tex.
Crim. App. 2016). Circumstantial evidence can be sufficient to establish guilt; it is not
necessary for every fact to point directly and independently to the accused’s guilt. Acosta
v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). The jury, as the trier of fact, is the
sole judge of the weight of the evidence and credibility of the witnesses. TEX. CODE CRIM.
PROC. ANN. art. 38.04; Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
Numerous factors have been recognized as contributing to an evaluation of
whether a defendant possesses or is linked to contraband. Those factors include: (1) the
accused’s presence when the search was executed; (2) whether the contraband was in
plain view; (3) the accused’s proximity to and the accessibility of the contraband; (4)
whether the accused was under the influence of a controlled substance when arrested;
(5) whether the accused possessed other contraband when arrested; (6) whether the
accused made incriminating statements; (7) whether the accused attempted to flee; (8)
whether the accused made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia was present; (11) whether the
accused owned or had the right to possess the place where the drugs were found; (12)
whether the place the drugs were found was enclosed; (13) whether the accused was
found with a large amount of cash; and (14) whether the conduct of the accused indicated
a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. These factors are non-
exhaustive and are not to be considered in isolation. Id. at 164–66.
Considering these factors, and the totality of the circumstances, we find evidence
in the record showing that Appellant was in the vehicle when it was stopped and present
when it was searched; marijuana was found in a bag where Appellant was sitting; 7 Appellant was in close proximity to and had access to the cocaine and methamphetamine
found in the cup in the center console; Appellant had cocaine in his pocket when he was
arrested; Appellant acknowledged that marijuana was in the vehicle; there was an odor
of marijuana in the vehicle; and the cocaine and methamphetamine were found in an
enclosed place. Based on the combined and cumulative force of the evidence and the
reasonable inferences therefrom, we conclude that the jury was rationally justified in
finding beyond a reasonable doubt that Appellant knowingly possessed cocaine and
methamphetamine. See Jackson, 443 U.S. at 318–19; Evans, 202 S.W.3d at 162.
Therefore, the evidence was sufficient to support his conviction. See Brooks, 323 S.W.3d
at 895. We overrule Appellant’s second issue.
CONCLUSION
Having overruled both of Appellant’s issues on appeal, we affirm the judgment of
the trial court.
Judy C. Parker Justice
Do not publish.