                                                                     ACCEPTED
                                                                 12-15-00059-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                            8/27/2015 9:09:19 AM
                                                                   CATHY LUSK
                                                                          CLERK

      CAUSE NO. 12-15-00059-CR

                  IN THE                       RECEIVED IN
                                         12th COURT OF APPEALS
                                              TYLER, TEXAS
 THE 12th DISTRICT COURT OF      APPEALS 8/27/2015 9:09:19 AM
                                              CATHY S. LUSK
                                                  Clerk
                FOR THE

            STATE OF TEXAS
                                                 8/27/2015

      DERRICK DEMOND COOKS,

                         APPELLANT
                    V.

         THE STATE OF TEXAS,

                         APPELLEE


STATE’S REPLY TO APPELLANT’S BRIEF


          D. MATT BINGHAM
         Criminal District Attorney
           Smith County, Texas

            MICHAEL J. WEST
    Assistant Crimina1 District Attorney
           Bar I.D. No. 21203300
         Smith County Courthouse
              100 N. Broadway
             Tyler, Texas 75702
            ph: (903) 590-1720
            fax: (903) 590-1719
         mwest@smith-county.com

     ORAL ARGUMENT NOT REQUESTED
                                            TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REPLY TO APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    2

COUNTERPOINT ONE: Appellant has not properly preserved
this point. Alternatively, Appellant has waived any error by
repeatedly and affirmatively stating that he had "no objection"
to the evidence he that now complains was improperly admitted . . . . .                                         2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                            ii
                                           INDEX OF AUTHORITIES
STATUTE/RULES                                                                                                   P AGE

TEX. R. APP. P ROC. (Vernon 2012)

Rule 33.1 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   5, 6

TEX. R. EVID. ANN. (Vernon 2015)

Rule 103 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Rule 104 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 104 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

F EDERAL CASES                                                                                                  P AGE

Terry v. Ohio, 392 U.S.1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         5

STATE CASES                                                                                                     P AGE

Brimage v. State, 918 S.W.2d 466
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        5

Brown v. State, 334 S.W.3d 789
(Tex.App. - Tyler 2010, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             10

Carrillo v. State, 98 S.W.3d 789
(Tex.App. - Amarillo 2003, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                10

Clark v. State, 365 S.W.3d 333
(Tex.Crim.App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        7

DuBose v. State, 915 S.W.2d 493
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        4

Ex parte Moore, 395 S.W.3d 152
(Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        10

                                                           iii
STATE CASES (CONT)                                                                                         P AGE

Euziere v. State, 648 S.W.2d 700
(Tex.Crim.App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   7

Gibbs v. State, No. 12-07-00238-CR, 2008 Tex. App. LEXIS 665
(Tex.App. - Tyler Jan. 31, 2008, no pet.)
(not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       10

Guzman v. State, 955 S.W.2d 85
(Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   3, 4

Holmes v. State, 248 S.W.3d 194
(Tex.Crim.App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   10

Moraguez v. State, 701 S.W.2d 902
(Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   10

Oles v. State, 993 S.W.2d 103
(Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   3

Ranson v. State, 707 S.W.2d 96
(Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   5, 7

Rezac v. State, 782 S.W.2d 869
(Tex.Crim.App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   7

State v. Carter, 915 S.W.2d 501
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     4

Walker v. State, ___ S.W.3d ___, 2015 Tex. App. LEXIS 4424
(Tex.App. - Tyler 2015, no pet. h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          7

Willis v. State, 192 S.W.2d 585
(Tex.App. - Tyler 2006, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          3




                                                         iv
STATE CASES (CONT)                                                                                         P AGE

Villarreal v. State, 935 S.W.2d 134
(Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   3




                                                         v
                           CAUSE NO. 12-15-00059-CR

                                      IN THE

                   THE 12th DISTRICT COURT OF APPEALS

                                     FOR THE

                                STATE OF TEXAS


                          DERRICK DEMOND COOKS,

                                              APPELLANT
                                         V.

                             THE STATE OF TEXAS,

                                              APPELLEE


                 STATE’S REPLY TO APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS:

      Comes now the State of Texas, through the undersigned Assistant Criminal

District Attorney, and respectfully urges this Court to overrule Appellant’s alleged

errors and affirm the judgment of the trial court in the above-numbered cause.

                             STATEMENT OF THE CASE

      Appellant, Derrick Demand Cooks, was indicted in Cause No. 241-1485-14,

in the 241st District Court of Smith County, Texas, with the offense of Possession of

                                          1
a Controlled Substance. (CR: 1). On March 3, 2015, the parties met in the trial court,

Appellant with counsel, and a jury trial was held after Appellant entered a "Not

Guilty" plea to the offense alleged by the indictment. (RR 3: 42). After hearing

evidence and argument of counsel, the jury found Appellant guilty of the offense

alleged by the indictment. (RR 3: 149). After argument of counsel, the same jury

assessed a sentence of two years in a State Jail facility and imposed a $6,500.00 fine.

(RR 3: 244).

      Appellant gave timely notice of appeal, counsel was appointed, and a brief filed

with the Court. The State's response brief will be timely filed if the Court grants the

attached motion for an extension of time.

                               STATEMENT OF F ACTS

      Appellant has stated the essential nature of the evidence presented at his trial.

In the interest of judicial economy any other facts not mentioned herein that may be

relevant to disposition of Appellant's points of error will be discussed in the State's

arguments in response to the individual points.

    REPLY TO APPELLANT’S P OINTS OF ERROR AND SUMMARY OF ARGUMENT

COUNTERPOINT ONE: Appellant has not properly preserved this point.
Alternatively, Appellant has waived any error by repeatedly and affirmatively
stating that he had "no objection" to the evidence he that now complains was
improperly admitted.


                                            2
A.    Summary of Argument

      Appellant argues that the trial court incorrectly overruled his motion to

suppress evidence. He alleges on appeal that the search in this case was

unconstitutional where it exceeded the bounds of a proper Terry pat-down for

weapons and was not made pursuant to his consent. (Appellant's brief at 8-12).

      However, Appellant failed to present this argument to the trial court and thus

cannot raise these new arguments for the first time on appeal. In addition, each time

the complained-of evidence was offered, Appellant repeatedly and affirmatively

stated that he had "no objection" to its admission.

B.    The Trial Court’s Discretion on a Motion to Suppress Evidence

       A trial court’s denial of a motion to suppress is generally reviewed for an

abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Willis

v. State, 192 S.W.2d 585, 590 (Tex.App. - Tyler 2006, pet. ref’d), citing Villarreal

v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996).

      In reviewing a trial court’s ruling on a motion to suppress, appellate courts

must give great deference to the trial court’s findings of historical fact as long as the

record supports the findings. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.

1997). This Court should afford the same amount of deference to the trial court’s

rulings on “mixed questions of law and fact” if the resolution of those ultimate

                                            3
questions turns on an evaluation of witness credibility and demeanor. Id. Appellate

courts must view the record in the light most favorable to the trial court’s ruling and

sustain the trial court’s ruling if it is reasonably correct on any theory of law

applicable to the case. Id. The Court of Criminal Appeals has decided that it is

improper for an appellate court to weigh the factual sufficiency of the evidence

elicited at the suppression hearing because the trial judge is the sole and exclusive

trier of fact and judge of the credibility of the witnesses, as well as the weight to be

given their testimony. DuBose v. State, 915 S.W.2d 493, 496 (Tex.Crim.App. 1996).

      The trial judge is also the initial arbiter of the legal significance of those facts.

Id.; TEX. R. EVID. ANN. Rule 104 (a) (Vernon 2015). On appeal, the Court should

limit its review of the trial court’s rulings, both as to the facts and the legal

significance of those facts, to a determination of whether the trial court has abused

its discretion. Id. In fact, the Court of Criminal Appeals has specifically instructed

appellate courts to give deference to the trial court’s ruling with regard to a motion

to suppress. State v. Carter, 915 S.W.2d 501, 504 (Tex.Crim.App. 1996).

      Even if this Court would have reached a different result on the issue of

suppression, as long as the trial court’s rulings are at least within the “zone of

reasonable disagreement,” the Court should not intercede. Id. at 496-97. The Fourth

Amendment and the Texas Constitution forbid only unreasonable searches and

                                            4
seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; Brimage v. State, 918

S.W.2d 466, 500 (Tex.Crim.App. 1996).

C.    Appellant has failed to properly preserve his point of error.

      The Court may not need to address the merit of Appellant’s point where he has

failed to show that the error, if any, was properly preserved.

      In order to preserve error, an objection must be timely and must call the

attention of the trial court to the particular complaint raised on appeal. Ranson v.

State, 707 S.W.2d 96, 99 (Tex.Crim.App. 1986); TEX. R. APP. PROC. ANN. Rule 33.1

(a) (Vernon 2015).

      In his brief, Appellant argues that the search in issue here was unconstitutional

where it where it exceeded the bounds of a proper Terry pat-down for weapons and

was not made pursuant to his consent. (Appellant's brief at 8-12).1 However, prior to

trial, Appellant merely filed a generic all-purpose motion to suppress which did not

specifically allege either a violation of Terry v. Ohio, or that he did not consent to the

search of his pockets. See (CR: 26-28).

      Similarly, at the hearing on his motion to suppress, Appellant did not argue that

the vial of phencyclidine (hereinafter "PCP") that he pulled out of his pocket was

illegally seized in violation of Terry v. Ohio, or that his consent to the search was


      1
          Terry v. Ohio, 392 U.S.1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

                                                5
invalidated for the reasons he now argues on appeal. In fact, Appellant's complaint

at trial was nothing like his argument on appeal. Instead, Appellant argued:

      MR. DAVIDSON: Judge, it's my motion, and I'll just submit on the
      motion and the evidence and ask the Court to find that the stop was
      made because the car was -- the vehicle was targeted without the
      requisite probable cause and ask the Court to find that the evidence
      should not be admissible and should be suppressed. (emphasis supplied).

                                                                     (RR 3: 37).

      In recognition of this argument, the trial court made specific findings on the

record that "[s]ufficient probable cause existed for the stop based on the traffic

violation." (RR 3: 38).

      Consequently, the record is clear that Appellant did not argue in any manner

at trial that the PCP he had in his possession should have been suppressed based upon

the arguments he now makes for the first time on appeal.

      Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides, in relevant part,

that for a complaint to be presented on appeal, a timely request, objection, or motion

must have been made to the trial court, which "states the grounds for the ruling that

the complaining party sought from the trial court with sufficient specificity to make

the trial court aware of the complaint, unless the specific grounds were apparent from

the context." TEX. R. APP. PROC. ANN. Rule 33.1 (a) (1) (A) (Vernon 2015). Texas

Rule of Evidence 103 contains similar guidelines, providing that "a timely objection

                                          6
or motion to strike [must appear] on the record, stating the specific ground of

objection, if the specific ground was not apparent from the context." TEX. R. EVID.

Rule 103 (a) (1) (Vernon 2015) Additionally, it is well settled that the legal basis of

a complaint raised on appeal cannot vary from that raised at trial. See Euziere v. State,

648 S.W.2d 700, 703-04 (Tex.Crim.App. 1983).

      Where Appellant argued at trial solely on the basis of insufficient probable

cause to stop the vehicle in which he was riding, his complaints on appeal concerning

a violation of Terry v. Ohio and a lack of consent are completely different than the

argument disposed of by the trial court. Nor can it be said that the specific grounds

argued on appeal were "apparent from the context" of Appellant's generic motion to

suppress, or his oral argument regarding a lack of probable cause to make a traffic

stop. TEX. R. APP. PROC. ANN. Rule 33.1 (a) (1) (A) (Vernon 2015).

      Consequently, Appellant's alleged error has not been properly preserved and

the Court should overrule this point of error. Ranson, 707 S.W.2d at 99; see also

Walker v. State, ___ S.W.3d ___, 2015 Tex. App. LEXIS 4424 (Tex.App. - Tyler

2015, no pet. h.) ("[A]n issue on appeal must comport with the objection made at trial,

i.e., an objection stating one legal basis may not be used to support a different legal

theory on appeal.") citing Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012);

Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990).

                                            7
D.    Appellant has waived any complaint concerning the admission of the PCP
      in this case where he affirmatively stated that he had "no objection" to its
      admission.

      Should the Court deem Appellant's point of error properly preserved, it still

lacks any merit on the record and the law where Appellant waived his appellate

complaints concerning the admission of the PCP seized from him by repeatedly and

affirmatively stating that he had "no objection" to its admission. (RR 3: 94). The

record shows that when the State first offered for conditional admission the exhibit

containing the PCP seized from Appellant, the following occurred:

      MR. BIGGS: Judge, at this time, I'm going to offer State's Exhibit 3 and
      its contents under Rule 104.

      MR. DAVIDSON: I have no objection.

      THE COURT: State's Exhibit 3 and its contents are admitted into
      evidence conditionally under Rule 104.
                                                           (RR 3: 92).

      The record shows that the State made a conditional re-offering of the same

exhibits containing the PCP seized from Appellant during the testimony of the

arresting officer. And, Appellant for the second time asserted that he had "no

objection" to that admission:

      MR. BIGGS: Judge, I'm going to go ahead and re-offer State's 3 and its
      contents that I've marked now as State's 3-A and 3-B under 104, Judge.
      I'm sorry.



                                         8
      MR. DAVIDSON: No objection.

      THE COURT: All right. State's Exhibit 3 and its contents, 3-A and 3-
      B, are admitted into evidence conditionally under 104.2
                                                                 (RR 3: 94).

      Additionally, when the State re-offered the exhibits containing the PCP during

the testimony of a DPS forensic chemist, Appellant for the third time again

affirmatively stated that he had "no objection" to its admission for all purposes:

      MR. MACHICEK: And, Your Honor, at this time, we would offer
      State's 3, as well as its contents, 3-A and 3-B, for all purposes.

      MR. DAVIDSON: No objection.

      THE COURT: All right. State's Exhibit 3and its contents, 3-A and 3-B,
      are admitted into evidence for all purposes. And you may publish.

                                                                           (RR 3: 107-08).

      Importantly, Appellant did not request a running objection after the trial court

overruled his motion to suppress the PCP. (RR 3: 39-40).

      The law provides that "[W]hen the defendant affirmatively asserts during trial

he has 'no objection' to the admission of the complained of evidence, he waives any


      2
          Rule of Evidence 104 provides in part:

      Relevance That Depends on a Fact. When the relevance of evidence depends on
      whether a fact exists, proof must be introduced sufficient to support a finding that the
      fact does exist. The court may admit the proposed evidence on the condition that the
      proof be introduced later.
                                          TEX. R. EVID. ANN. Rule 104 (b) (Vernon 2014).


                                                   9
error in the admission of the evidence despite the pre-trial ruling." Ex parte Moore,

395 S.W.3d 152, 157 (Tex.Crim.App. 2013) quoting Moraguez v. State, 701 S.W.2d

902, 904 (Tex.Crim.App. 1986); see also Gibbs v. State, No. 12-07-00238-CR, 2008

Tex. App. LEXIS 665, *3-4 (Tex.App. - Tyler Jan. 31, 2008, no pet.) (not designated

for publication) ("Consequently, we hold that by his statement that he had "no

objection" to the exhibits which were the subject of his pretrial motion to suppress,

Appellant affirmatively waived any error.");3 Brown v. State, 334 S.W.3d 789, 804

(Tex.App. - Tyler 2010, pet. ref'd) citing Holmes v. State, 248 S.W.3d 194, 196 (Tex.

Crim.App. 2008) ("When a defendant affirmatively states that he has no objection to

the admission of the evidence during trial, he waives his right to complain on appeal

that the evidence was illegally obtained.").

      Consequently, the was no abuse of the trial court's discretion in the admission

of the exhibits containing the PCP seized from Appellant where he did not seek a

running objection to the exhibits and repeatedly acquiesced to their admission

whenever offered for admission into evidence. There is thus no merit to Appellant's

pint of error and it should be overruled.



      3
       The State proffers unpublished opinions to point out the reasoning of the courts therein
      when faced with very similar facts “rather than simply arguing without reference, that
      same reasoning.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex.App. - Amarillo 2003, pet.
      ref’d).

                                              10
                                       P RAYER

      WHEREFORE, for the reasons stated herein, the State of Texas prays that the

Court of Appeals overrule Appellant’s Point of Error and affirm the judgment of the

241st District Court, Smith County, Texas, in this case.

                                        Respectfully submitted,

                                        D. MATT BINGHAM
                                        Smith County Criminal District Attorney


                                            /s/ Michael J. West
                                        _________________________
                                        Michael J. West
                                        Asst. Criminal District Attorney
                                        Bar I.D. No. 21203300
                                        100 N. Broadway, 4th Fl.
                                        Tyler, Texas 75702
                                        (903) 590-1720
                                        (903) 590-1719 (fax)


                          CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the pertinent sections of the State’s Reply

Brief in the above numbered cause contain 4, 869 words, an amount which complies

with Texas Rule of Appellate Procedure 9.4 (I).


                                                 /s/ Michael J. West
                                        _________________________
                                        Michael J. West
                                        Asst. Criminal District Attorney
                                        Bar I.D. No. 21203300

                                          11
                            CERTIFICATE OF SERVICE

                                                     21st day of ________________,
      The undersigned hereby certifies that on this _____          August
2015, the following have been completed:

      (1) The original of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent via electronic filing to the Clerk of the Court of
      Twelfth Court of Appeals.

      (2) A legible copy of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent via electronic filing to:

      Mr. Austin Jackson,
      Attorney at Law
      112 East Line Street, Ste. 310
      Tyler, Texas 75702



                                                /s/ Michael J. West
                                       _________________________
                                       Michael J. West
                                       Asst. Criminal District Attorney
                                       Bar I.D. No. 21203300




                                         12
