                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00600-CR


JOSHUA ROLSTON MAJORS A/K/A                                        APPELLANT
JOSHUA ROSTON MAJORS

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12459

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                        MEMORANDUM OPINION 1

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      After the trial court denied his motion to suppress, Appellant Joshua

Rolston Majors pled guilty to possession of more than four grams but less than

two hundred grams of a controlled substance—methamphetamine—with intent to

deliver, preserving the denial of his motion to suppress for appeal. He pled true

      1
       See Tex. R. App. P. 47.4.
to both enhancement paragraphs.          A jury convicted him and assessed his

punishment at sixty years’ confinement, and the trial court sentenced him

accordingly. In a single point, Appellant complains, “The admission of numerous

points of evidence at punishment resulted in harmful, reversible error that

affected Appellant’s substantial rights.” Because his point on appeal does not

comport with his arguments raised in the trial court, we overrule his sole point

and affirm the trial court’s judgment.

      During the night shift, Hood County Sheriff’s Deputy Gary Clark was at the

Tiger Mart gas station in Cresson, Texas, watching a vehicle belonging to

Michael Reddell. Three weeks earlier, Deputy Clark had received information

from someone he had arrested for possession of methamphetamine that Reddell

was transporting methamphetamine from Fort Worth to Hood County and selling

it out of the Tiger Mart.

      As Deputy Clark watched the gas station, he saw a pickup truck pull into

the parking lot. Deputy Clark observed Reddell’s vehicle back out of its parking

space and pull alongside the pickup at the other end of the parking lot, away from

the gas pumps. The vehicles stopped next to each other for approximately two

to three minutes with the driver’s-side windows aligned. Deputy Clark believed

that the two drivers were speaking to each other. Reddell’s vehicle then left the

gas station and traveled westbound on Highway 377 toward Granbury.

Approximately one minute later, the pickup left the gas station and also headed

westbound on Highway 377 toward Granbury.


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      Deputy Joshua Lane, a certified drug dog handler, was working with his

drug dog that day, and he had parked his marked patrol car approximately one

block away from the gas station. Deputy Lane followed Reddell’s vehicle after it

left the gas station, the pickup traveled behind Deputy Lane, and Deputy Clark

followed the pickup.

      Deputy Clark testified during the suppression hearing that he had followed

the pickup to get probable cause to make a traffic stop.     Deputy Clark also

testified that he had seen the pickup weave within its lane and drive onto the

improved shoulder two to three times and that, in his opinion, the pickup had

been following Deputy Lane’s unit too closely. Deputy Clark suspected that the

driver might be impaired and also that the driver might have been involved in a

drug transaction at the gas station.

      Based on all of his observations, Deputy Clark stopped the pickup at 1:59

a.m. Deputy Clark approached the truck from the passenger side and observed

Appellant sitting in the driver’s seat. He was the sole occupant. While speaking

with Appellant, Deputy Clark noticed a black bag sticking out from under the

driver’s seat by Appellant’s right leg.

      Appellant told Deputy Clark that he had been arrested on a weapons

charge in another county.      Deputy Clark asked Appellant to step out of the

pickup. Before getting out, Appellant reached down and shoved the black bag

under the seat. Deputy Clark patted Appellant down for weapons but did not

locate anything.


                                          3
      Deputy Clark then went to his patrol car to check Appellant’s driver’s

license and criminal history and also called Deputy Lane, who was not far away,

and asked him to come to his location with his drug dog. Deputy Clark then

walked back to Appellant and asked him about the black bag under the driver’s

seat. Appellant denied any knowledge of the bag and refused consent to search

his pickup in response to Deputy Clark’s request.

      By this time, according to Deputy Clark, it was approximately 2:06 a.m.,

and Deputy Lane had arrived with his drug dog.           Deputy Clark testified that

approximately six to seven minutes had elapsed between his initiation of the

traffic stop and Deputy Lane’s arrival.

      Deputy Lane used his drug dog to conduct an open-air sniff around

Appellant’s pickup. The drug dog signaled an alert at the driver’s-side door.

Deputy Clark testified that he had explained to Appellant that the drug dog had

alerted and that the alert gave the deputy probable cause to search the pickup.

Deputy Clark testified that he had then asked Appellant if there was anything

illegal in the pickup and that Appellant had replied, “[Y]es.”

      Deputy Clark read Appellant his Miranda warnings, 2 and Appellant agreed

to speak with him. Appellant told Deputy Clark that methamphetamine was in the

pickup. Deputy Clark then handcuffed Appellant.


      2
       See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630
(1966).



                                          4
      Deputy Clark searched Appellant’s pickup and located the black bag that

he had seen earlier. Inside it, Deputy Clark found items that he testified were

related to the sale of methamphetamine: (1) several Ziploc baggies containing

methamphetamine; (2) digital scales; (3) empty Ziploc baggies; (4) a glass

smoking pipe with white powder residue; (5) a straw with white powder residue;

and (6) a spoon.

      Appellant was placed under arrest for possession of methamphetamine at

2:12 a.m. The return on Appellant’s driver’s license came back at 2:11 a.m. and

showed that his driver’s license was invalid.           The entire incident lasted

approximately thirteen minutes.

      In a single point, Appellant complains that the admission of “[a]ll

statements by Investigator Clark and other employees of the Hood County Sheriff

that related to any occurrence after the initial traffic stop, and . . . [a]ll physical

evidence obtained by the Hood County Sher[]iff after the initial traffic stop” was

reversible error as the evidence “should have been suppressed as fruit of the

poisonous tree.” Appellant had argued in his motion to suppress that these items

were the fruits of his unlawful arrest, made pursuant to neither warrant, probable

cause, nor any other lawful authority in violation of state and federal

constitutions, as well as article 38.22 of the code of criminal procedure.

      At the hearing on the motion to suppress, Appellant reiterated these

grounds, emphasizing the vague nature of the “following too closely” allegation

as a traffic offense committed in the officer’s presence. He also argued that the


                                          5
dog sniff that is only 67 to 68 percent reliable would not provide sufficient

probable cause to support a warrant and, equally, is insufficient to support a

warrantless search. He did not argue at any time to the trial court that the dog

sniff unreasonably prolonged the detention or exceeded the scope of the

detention. He raises those complaints for the first time on appeal. Appellant

specifically limits his complaints in his brief, arguing that

      the evidence obtained by the officer was the fruit of an unreasonable
      search because the search exceeded the scope of the initial
      detention. Appellant was stopped by Investigator Clark for following
      too closely. Investigator Clark asked him to step out of the car, and
      requested permission to search the vehicle. Appellant denied
      consent. Investigator Clark then requested a K-9 unit to do a drug
      sniff of the exterior of the vehicle. The scope of a routine traffic stop,
      without more, does not include a K-9 unit doing a drug sniff of the
      exterior of the vehicle. Investigator Clark violated Appellant’s
      Constitutional rights by continued detention without articulable facts
      to justify the continued detention. The search was unjustified, and
      illegal.

             The K-9 drug sniff of Appellant’s vehicle exceeded the scope
      of the traffic stop. The K-9 drug sniff was an unlawful search. The
      evidence discovered in course of the search should have been
      suppressed as fruit of an unlawful search. (Citations omitted.)

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. 3 Further, the trial court must have ruled on the request,

      3
       Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d 252, 254 (Tex.
Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth
2013, pet. ref’d).



                                           6
objection, or motion, either expressly or implicitly, or the complaining party must

have objected to the trial court’s refusal to rule. 4

          The complaint made on appeal must also comport with the complaint

made in the trial court, or the error is forfeited. 5    To determine whether the

complaint on appeal comports with that made at trial, we consider the context in

which the complaint was made and the parties’ shared understanding at that

time. 6

          Because Appellant’s complaints that the dog sniff unlawfully prolonged his

detention and exceeded the scope of the detention were first raised on appeal,

they are untimely and not preserved for appellate review.         Further, because

these appear to be the only complaints Appellant raises on appeal, we overrule

his sole point and affirm the trial court’s judgment.




          4
       Tex. R. App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex.
Crim. App. 2011) (Pena II).
          5
       Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Lovill v.
State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be
preserved if the legal basis of the complaint raised on appeal varies from the
complaint made at trial.”); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.
2009) (Pena I) (“Whether a party’s particular complaint is preserved depends on
whether the complaint on appeal comports with the complaint made at trial.”).
          6
       Clark, 365 S.W.3d at 339; Resendez v. State, 306 S.W.3d 308, 313 (Tex.
Crim. App. 2009); Pena I, 285 S.W.3d at 464.



                                            7
                                            /s/ Lee Ann Dauphinot
                                            LEE ANN DAUPHINOT
                                            JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 7, 2014




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