                                  NO. 07-06-0093-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                JANUARY 31, 2007
                         ______________________________

            MICHAEL D. PHILLIPS AKA ANDRICK ADAMS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2005-407958; HONORABLE JIM BOB DARNELL, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Michael D. Phillips a/k/a Andrick Adams, appeals his conviction for

possession of a controlled substance, cocaine, of more than 4 grams but less than 200

grams, with intent to distribute. Appellant was sentenced to 35 years confinement in the

Institutional Division of the Texas Department of Criminal Justice. We affirm.
                           Factual and Procedural Background


       Appellant was arrested when Lubbock Police responded to an anonymous call that

someone was “messing with construction equipment” in the 2100 block of 56th Street.

Officers responded and found that the street was closed to traffic with a six foot chain link

fence erected in the middle of the street around construction equipment and the

construction site. A car was parked next to the fence and appellant was observed walking

on the outside of the fence toward the vehicle. One officer parked his car in a manner to

block appellant’s car and got out and approached appellant while appellant was seated in

his car with the windows up. The officer knocked on the window in an effort to get the

appellant to talk to him. Appellant did not respond but continued to talk on his cell phone.

After knocking on the windows two or three more times, the officer gave clear orders for

the appellant to step from his vehicle. Appellant obeyed and was questioned about his

presence at the site. Appellant’s answers were vague as he could not name the friends

he was visiting nor give the address of the house. Appellant did indicate that the house

was just down the street. Appellant and the police went to the location indicated by

appellant but no one would answer the door.            Eventually, the officers requested

identification and appellant produced a Texas Tech University identification in the name

of “Andrick Adams.” Upon checking the name on the identification for warrants, it was

learned that there was an outstanding Department of Public Safety warrant. The police

arrested appellant and while conducting a search of appellant’s person, incident to arrest,

located a small plastic bag that contained what was later identified as cocaine.




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      Appellant was subsequently indicted for the possession of a controlled substance

with intent to distribute within a drug free zone. Appellant had filed a motion to suppress

in the original case. That case was subsequently dismissed and appellant was re-indicted.

However, appellant’s motion to suppress does not appear in the clerk’s record in the

subsequent indictment. Appellant waived a jury trial and was found guilty of the lesser

included offense after a bench trial. During the bench trial, appellant objected to the

admission of the evidence claiming it was seized illegally under the fourth amendment and

fourteenth amendment to the United States Constitution, Article 1, Sections 9, 10, and 19

of the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure. The

trial court overruled the objections and admitted the evidence.


       By one issue, appellant contends that the trial court erred in admitting the evidence

of the drugs seized from appellant. Appellant contends that the seizure was the result of

an illegal detention and, therefore, the evidence was subject to exclusion.


                                         Analysis


       Both parties correctly identify abuse of discretion as the appropriate standard of

review when reviewing a trial court’s admission of evidence. Davis v. State, 61 S.W.3d

94, 96 (Tex.App.–Amarillo 2001, no pet.). A trial court abuses its discretion when its

opinion falls outside the zone of reasonable disagreement. Id. at 96-97. We give almost

total deference to the trial court’s determination of historical facts and review the

application of the law to the facts de novo. Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997). Since the trial court made no findings of historical facts, we will


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review the evidence in a light most favorable to the trial court’s ruling and assume the trial

court made implicit findings of fact supported in the record. Carmouche v. State, 10

S.W.3d 323, 327-28 (Tex.Crim.App. 2000). Finally, if the trial court’s decision is correct

on any theory of law applicable to the case, the decision will be sustained. State v. Ross,

32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).


       At the outset we observe that appellant contends that the trial court erred in

overruling his motion to suppress. However, appellant is in error for there was no motion

to suppress before the trial court. Even though counsel for appellant referenced the motion

to suppress filed in the original cause when making his objection, the motion was not

carried forward in the re-indicted case. Therefore, the purported motion to suppress was

not part of the record brought forward on appeal and thus, nothing has been preserved for

appeal via the motion to suppress. See TEX . R. APP. P. 33.1.


       Next, the State contends that the objection made by appellant at the time the

evidence was first offered was generic and, therefore, did not preserve error. We need not

rule on that matter to properly decide this case and, therefore, elect to issue no opinion on

that question. However, we will assume, arguendo, that the issue was preserved.


       Even with that assumption, the evidence was still properly considered because of

the discovery of the outstanding warrant for the arrest of Andrick Adams, the name and

identification provided by appellant to the police. As this court has previously noted, the

discovery of an outstanding warrant during an illegal detention of an individual breaks the

connection between the discovered evidence and any taint associated with the initial


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detention. Fletcher v. State, 90 S.W.3d 419, 420 (Tex.App.–Amarillo 2002, no pet.). The

subsequently discovered probable cause evidenced by the valid arrest warrant

demonstrated that the evidence discovered during the search incident to the arrest was not

discovered through exploitation of the initial illegal detention. Id. Here the appellant’s initial

detention may have been improper, however, appellant furnished identification that

identified him as Andrick Adams, who happened to have an outstanding warrant from the

Department of Public Safety. It was the search incident to this arrest that lead to the

discovery of the contraband. Thus, the trial court’s decision to admit the evidence was

proper and, therefore, could not have been an abuse of discretion. Davis, 61 S.W.3d at

96-97. Therefore, appellant’s contention is overruled.


                                          Conclusion


       Having overruled appellant’s sole issue, the judgment of the trial court is affirmed.




                                             Mackey K. Hancock
                                                 Justice



Do not publish.




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