      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-01-00209-CR




                                      Casey Lohse, Appellant

                                                  v.

                                   The State of Texas, Appellee




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
        NO. B-00-0140-S, HONORABLE BEN WOODWARD, JUDGE PRESIDING




                A jury found appellant Casey Lohse guilty of the offense of possession of cocaine.

See Tex. Health & Safety Code Ann. § 481.115(a) (West Supp. 2002). The court assessed

punishment at eight years in prison, suspended imposition of the sentence, and placed appellant on

community supervision for eight years. Appellant contends that the court erred in denying her pretrial

motion to suppress evidence because, at the hearing, the State failed to present for the court’s review

a valid capias for the arrest of a third party. We will affirm the judgment.

                Appellant filed a pretrial motion to suppress and contended generally that she was

arrested illegally and that the seizure of items incident to her arrest was unlawful. The only witness

at the pretrial suppression hearing was San Angelo Police Officer Todd Reed. On August 28, 1999,
at approximately 9:00 a.m., Officer Reed was on patrol when he observed appellant commit a traffic

violation by failing to signal within 100 feet of making a turn. Officer Reed stopped appellant for the

traffic violation. Officer Reed asked appellant for identification and insurance and while doing so

noticed that appellant’s front-seat passenger was very nervous; he also asked the passenger to identify

herself. Officer Reed ran a driver’s license and warrant check on both appellant and her passenger.

He learned from the computerized national reporting system that the passenger had an outstanding

capias for arrest for the offense of possession of marihuana. Relying on the computer generated

information, Officer Reed arrested appellant’s passenger, seated her in the back of his patrol car, and

called for an assisting officer.

                 Appellant remained in the driver’s seat of her car while Officer Reed conducted a

search of the passenger compartment incident to the arrest of appellant’s passenger. In the

passenger-side door pocket, Officer Reed noticed a soft-sided eyeglass case, opened it, and found a

plastic bag that contained two small heart-shaped cookies that were tan in color. He removed the

cookies and found another plastic bag containing a white powdery substance. Also, in the eyeglass

case, he found a film canister containing two small plastic bags; one contained a brown-colored

substance which he believed was methamphetamine and the other contained a white powdery

substance which he believed was cocaine. The assisting officer conducted a chemical field test on the

substances which tested positive for methamphetamine and cocaine. Also, in the passenger




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compartment was appellant’s purse which contained a driver’s license covered in a white powdery

substance.1 The officers arrested appellant for possession of cocaine.

                 At the suppression hearing, although Officer Reed recited the number of the capias

and testified that he had seen it, the State did not produce the capias for the court’s review. Following

Officer Reed’s testimony, appellant “challenged the existence of a [capias] for the arrest of

[appellant’s passenger].” Appellant argued that without seeing the capias, it was impossible for the

court to determine whether it was valid. Appellant argued that all the evidence recovered in the

search of her car should have been suppressed because the State failed to provide for the court’s

review a valid capias for appellant’s passenger’s arrest. The State responded that Officer Reed’s

testimony was sufficient to establish the existence of the capias and that there was no evidence to

support a challenge to the validity of the capias. The court overruled the motion to suppress.

                 At trial, during Officer Reed’s testimony, the State moved to admit as evidence a

certified copy of the capias for appellant’s passenger’s arrest. Appellant objected to the admission

of the capias and argued that the court should have granted her pretrial motion to suppress the

evidence because the State failed to present the capias for the court’s review at the pretrial hearing.


  1
    Although not presented as a point of error, appellant argues in her appellate brief that no reason
was given for the search of her purse, and that the officers searched her purse without probable cause,
without a warrant and without her consent. According to Officer Reed’s testimony, appellant’s purse
was located in the passenger compartment of the car.

    In a search incident to the arrest of a car passenger, the area searched may include the entire
passenger compartment of the vehicle. New York v. Belton, 453 U.S. 454, 460-61 (1981). Further,
once contraband is found during a search incident to arrest, the search is lawfully extended to the
remainder of the vehicle and its containers as the officers then have probable cause to believe more
contraband may be present in the car. Guzman v. State, 959 S.W.2d 631, 633-34 (Tex. Crim. App.
1998).

                                                   3
Appellant contended that, “in order for an arrest to be supported by a [capias], the Court has to see

the [capias].” The trial court overruled appellant’s objection and admitted the certified copy of the

capias as evidence.


                                                Discussion

                    Appellant contends that, despite the fact that the State presented a certified copy of

the capias for appellant’s passenger’s arrest at trial, the court reversibly erred in denying her pretrial

motion to suppress because the State failed to present a capias for the court’s review and prove

pretrial the existence of a valid capias based on probable cause that would allow the arrest of anyone

in her car. Appellant asserts that a well-settled rule applies in this case: when an accused objects to

the admission of evidence on the ground it was unlawfully seized and the State relies upon a search

warrant, in the absence of a waiver, reversible error will result unless the record reflects that the

warrant was exhibited to the trial judge. Cannady v. State, 582 S.W.2d 467, 469 (Tex. Crim. App.

1979). Although the rule developed in the context of search warrants, it also applies to arrest

warrants. Gant v. State, 649 S.W.2d 30, 33-35 (Tex. Crim. App. 1983). Appellant contends that

because the State failed to exhibit the capias for arrest of her passenger to the judge for his review

at the pretrial hearing, the arrest of her passenger was unlawful, the search of the passenger

compartment of her car conducted incident to that arrest was unlawful, and her arrest was unlawful.

The State responds that appellant does not have standing to complain about a capias for the arrest

of a third party.




                                                     4
                In reviewing a suppression determination, we are deferential to the trial court and will

reverse only if the court abused its discretion such that the decision is unsupported by the record.

Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (citing Upton v. State, 853 S.W.2d

548, 552 (Tex. Crim. App. 1993)). Generally, in determining whether a trial court’s decision on a

motion to suppress is supported by the record, we consider only evidence adduced at the suppression

hearing because the court’s ruling was based on it rather than evidence presented later at trial.

Rachal, 917 S.W.2d at 809 (citing Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App.

1984)). This general rule, however, is inapplicable when the suppression issue is raised during the

trial on the merits. Id. When the suppression issue is raised again at trial, with subsequent

participation by the defense, consideration of the relevant trial testimony is appropriate for review.

See Rachal, 917 S.W.2d at 809 (citing Hardesty, 667 S.W.2d at 135).2

                In resolving this case, first, without addressing the State’s lack-of-standing argument,

we will assume without deciding that appellant has standing to challenge the search of her own car

incident to her passenger’s arrest which thereby led to her arrest. Second, we apply the Rachal

court’s reasoning in this case and consider the fact that the State produced the capias at trial for the

court’s review. Appellant raises no complaint about the court’s overruling of her trial objection to

the admission of the certified copy of the capias. Further, appellant makes no assertion that the capias

was substantively defective. The record reflects that the capias was reviewed by the court and



   2
     As the Rachal court observed, “Moreover, it would be unreasonable to ignore trial evidence in
our review of the court’s suppression decision only to be confronted by the evidence in our
consideration of whether the error was harmless.” 917 S.W.2d 799, 809 (Tex. Crim. App. 1996);
Tex. R. App. P. 44.2.

                                                   5
determined to be valid. We hold that the trial court did not abuse its discretion when overruling

appellant’s motion to suppress. Appellant’s issue is overruled. The judgment of conviction is

affirmed.




                                            __________________________________________

                                            David Puryear, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: April 18, 2002

Do Not Publish




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