                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00087-CR


RICHARD ALLAN GARD                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1

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      Appellant Richard Allan Gard appeals his conviction for possessing

between four grams and two hundred grams of methamphetamine with intent to

deliver.2 In three points, appellant contends that the trial court erred by denying

his motion to suppress evidence due to allegedly excessive force in his arrest,


      1
         See Tex. R. App. P. 47.4.
      2
         See Tex. Health & Safety Code Ann. §§ 481.102(6), .112(a), (d) (West
2010).
that the trial court erred by denying his motion to suppress evidence because the

search of his car was illegal, and that the evidence is insufficient to support his

conviction. We affirm.

                               Background Facts

      In December 2009, Euless Police Department Officer Hung Ho obtained a

search warrant for appellant’s home and car.       Several plain clothes officers,

including Officer Ho, were stationed near appellant’s home to wait for his arrival.

The officers saw appellant drive toward his home and then continue past it.

Officer Ho followed appellant in an unmarked police car and witnessed three

traffic violations. Officer Ho then called marked patrol units to the scene to stop

appellant.   Appellant stopped his car, and Officer Ho approached him,

commanding him to get out of the car. Because appellant did not immediately do

so, Officer Ho pulled him from the car, put him on the ground on his stomach,

and placed him in handcuffs. According to Officer Ho’s testimony at trial, when

officers rolled appellant onto his back, they found, where appellant’s stomach

had been, two baggies containing methamphetamine and three empty plastic

baggies. Officer Ho testified that these items were not on the street before he

put appellant on the ground.

      The police searched appellant, finding a cell phone and $590. The police

also searched appellant’s car and found another plastic bag containing

methamphetamine, a digital scale, and “some other various pills.” The police




                                        2
later       searched   appellant’s   home    and    found   three   more    bags    of

methamphetamine.

        A Tarrant County grand jury indicted appellant for possessing more than

four grams but less than two hundred grams of methamphetamine with intent to

deliver.      Appellant pled not guilty.    Before trial, appellant filed a motion to

suppress evidence concerning items “seized from his person, the ground around

him, and the motor vehicle . . . as such was obtained as a result of an illegal

search . . . in violation of his rights.”3 Under a broad construction of the motion to

suppress, appellant argued, among other assertions, that the search of his car

was made without a warrant or another ground supporting the search. The trial

court denied appellant’s motion. After receiving evidence and arguments from

the parties, the jury found appellant guilty. The trial court sentenced appellant to

thirty years’ confinement. Appellant brought this appeal.

                                 Preservation of Error

        In his first point, appellant argues that the trial court erred by denying his

motion to suppress because the police used excessive force while arresting him.

The State contends that appellant forfeited his complaint about excessive force.

We agree with the State.



        3
        In the motion, appellant relied on federal and state law but did not contend
that state law gave him greater rights than the federal constitutional provisions
that he cited. Similarly, on appeal, although appellant cites federal and state
provisions, he does not argue that we should analyze them distinctly.


                                            3
      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. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687,

691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A

reviewing court should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.

2010) (op. on reh’g).

      All a party has to do to avoid the forfeiture of a complaint on appeal is to let

the trial judge know what he wants, why he thinks himself entitled to it, and to do

so clearly enough for the judge to understand him at a time when the trial court is

in a proper position to do something about it. Lankston v. State, 827 S.W.2d

907, 909 (Tex. Crim. App. 1992); see Clark v. State, 365 S.W.3d 333, 339 (Tex.

Crim. App. 2012). The objections made at trial, however, must comport with the

error raised on appeal. See Clark, 365 S.W.3d at 339; Camacho v. State, 864

S.W.2d 524, 533 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994);

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

      Appellant argues in his first point that evidence should have been

suppressed because the police used excessive force. However, appellant did


                                          4
not urge this basis for excluding evidence in his written motion to suppress or in

the hearing on that motion. Instead, in his written motion (as broadly construed),

appellant contended that evidence should have been excluded because the

police either illegally stopped his car or illegally searched his car.        At the

beginning of the hearing on appellant’s motion, appellant’s counsel conceded

that the basis of the motion to suppress was that there was no justification for the

police’s stopping appellant’s car.    Appellant’s counsel questioned Officer Ho

about the amount of force used, but appellant never asserted excessive force as

a ground for suppression and never connected this line of questioning to illegally

obtained evidence.

      As appellant never claimed in the trial court that evidence should have

been excluded on the ground that the police used excessive force, he has

forfeited that point on appeal. See Clark, 365 S.W.3d at 339 (explaining that “if a

party fails to properly object to constitutional errors at trial, these errors can be

forfeited”); Camacho, 864 S.W.2d at 533; Rezac, 782 S.W.2d at 870; Hargrove v.

State, 162 S.W.3d 313, 324 (Tex. App.—Fort Worth 2005, pet. ref’d).              We

overrule appellant’s first point.

                           The Search of Appellant’s Car

      In his second point, appellant contends that the trial court erred by denying

his motion to suppress evidence found in his car. Appellant argues that the

search of his car was unauthorized in connection with his arrest under Arizona v.




                                         5
Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723–24 (2009).              In fact, in the

argument portion of his second point, appellant relies only on Gant.

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.     Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006).

      When reviewing the trial court’s ruling on a motion to suppress, we must

view the evidence in the light most favorable to the trial court’s ruling. Wiede,

214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

When the trial court makes explicit fact findings, we determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling,

supports those fact findings. Kelly, 204 S.W.3d at 818–19. We then review the

trial court’s legal ruling de novo unless its explicit fact findings that are supported

by the record are also dispositive of the legal ruling. Id. at 818. We must uphold

the trial court’s ruling if it is supported by the record and correct under any theory


                                          6
of law applicable to the case even if the trial court gave the wrong reason for its

ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,

541 U.S. 974 (2004).

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. To suppress evidence because of an alleged Fourth Amendment violation,

the defendant bears the initial burden of producing evidence that rebuts the

presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015

(2009). A defendant satisfies this burden by showing that a search and seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

makes this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was otherwise reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d

899, 902 (Tex. Crim. App. 2005).

      Appellant failed to meet his initial burden of rebutting the presumption of

proper police conduct because he did not present evidence that the search of his

car occurred without a warrant.     See Amador, 221 S.W.3d at 672; State v.

Woodard, 314 S.W.3d 86, 96 (Tex. App.—Fort Worth 2010) (stating that “a

defendant must establish that (1) a search or seizure occurred (2) without a

warrant”), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011).        In fact, appellant


                                        7
established that there was a warrant by attaching a copy of it to his motion to

suppress. The warrant, containing a signature from a magistrate and bearing the

date of December 16, 2009, stated in part,

             Warrant to Search a particular place for a particular controlled
      substance, namely METHAMPHETAMINE, and seize evidence . . .
      relating to the . . . distribution of METHAMPHETAMINE . . . .

            ....

            Now therefore, you are commanded to enter the . . . vehicles
      described as:

            ....

           . . . TAN 1999 CHEVROLET BLAZER BEARING TEXAS LP
      992-TKN[.]

      During the suppression hearing, Officer Ho testified about an event that

occurred on December 17, 2009 (the date of appellant’s arrest). He explained

that he had obtained a warrant the previous day to search a residence and to

search “a 1999 tan Chevrolet Blazer,” at which time the following exchange

occurred between appellant’s counsel and the trial court:

             [DEFENSE COUNSEL]: Objection, Your Honor, to, one, the
      witness reading from a document not in evidence, and we contest
      that there is a valid search or arrest warrant in this case, Your
      Honor, until it is produced in court.

            THE COURT: Okay. I didn’t hear anything about a warrant.

Officer Ho then made several more references to the warrant without an

objection from appellant. For example, when appellant’s counsel asked Officer

Ho whether the police’s search of appellant’s car was conducted incident to




                                        8
appellant’s arrest, Officer Ho testified, without objection, that the search occurred

“[i]ncident to arrest and also it was included in [the] search warrant.”

      Appellant argues in his brief that the “search warrant was never introduced

into the Motion to Suppress hearing and therefore . . . there [were] no grounds for

searching the Blazer.” It is true that the State did not present the warrant during

the suppression hearing. The court of criminal appeals has held that when “a

defendant objects to the [trial] court admitting evidence on the ground that it was

unlawfully seized and the State relies on 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.” Handy v. State, 189 S.W.3d 296, 298 (Tex. Crim.

App. 2006) (citing Cannady v. State, 582 S.W.2d 467, 469 (Tex. Crim. App.

[Panel Op.] 1979)). In this case, we can infer that the warrant was “exhibited to

the trial judge” because it was filed with the trial court through its attachment to

appellant’s motion to suppress,4 the court held a hearing on that motion, and in

the court’s findings of facts, the court stated that a search warrant dated

December 16, 2009 “authorized the search of a 1999 tan Chevrolet Blazer.”




      4
        A trial court may determine the merits of a motion to suppress on the
contents of the motion itself. See Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6)
(West 2006); see also Rodriguez v. State, 844 S.W.2d 744, 745 (Tex. Crim. App.
1992) (indicating that courts of appeals should consider written motions to
suppress and attachments to such motions in reviewing trial courts’ rulings on the
motions). The warrant that appellant attached to his motion belies his statements
in the trial court that a warrant did not exist.


                                          9
      Furthermore, even if the warrant had not been exhibited to the trial judge,

the court of criminal appeals has stated that “when the existence of the warrant is

recognized in a motion to suppress and there is uncontradicted testimony that a

warrant existed, . . . it is not necessary for the record to show that the warrant

was exhibited to the court.” Ortega v. State, 464 S.W.2d 876, 878 (Tex. Crim.

App. 1971); see also Bogany v. State, Nos. 14-10-00138-CR, 14-10-00139-CR,

14-10-00140-CR, 14-10-00141-CR, 14-10-00142-CR, 14-10-00143-CR, 14-10-

00145-CR, 14-10-00146-CR, 2011 WL 704359, at *1 (Tex. App.—Houston [14th

Dist.] Mar. 1, 2011, pet. ref’d) (mem. op., not designated for publication) (citing

Ortega for the same proposition). The rule in Ortega applies to the facts recited

above; appellant recognized the existence of a warrant by attaching it to his

motion to suppress, and Officer Ho testified, without contradiction (because he

was the only witness at the suppression hearing), that the warrant existed and

authorized the search of appellant’s car.

      Thus, we disagree with appellant that the officers’ “only justification for the

search of the Blazer was [his] arrest.” Instead, we conclude that the trial court

did not err by expressly finding that a warrant authorized the police’s search of

appellant’s car. It is therefore immaterial whether any alternative grounds existed

for a warrantless search under the search-incident-to-arrest exception (under

Gant) or another exception to the warrant requirement, and we decline to

address that issue. See Tex. R. App. P. 47.1; State v. Holcombe, 145 S.W.3d




                                        10
246, 255 (Tex. App.—Fort Worth 2004), aff’d, 187 S.W.3d 496 (Tex. Crim. App.),

cert. denied, 549 U.S. 824 (2006).

      Because appellant filed a copy of the warrant that particularly authorized

the search of his car and did not produce evidence that the search occurred

without a warrant, we conclude that he failed to satisfy his initial burden of proof

that the search occurred without a warrant, and we hold that the trial court did not

err by overruling his motion to suppress to the extent that it challenged the

legality of that search. See Robinson, 334 S.W.3d at 778–79; Amador, 221

S.W.3d at 672; Romo v. State, 315 S.W.3d 565, 572 (Tex. App.—Fort Worth

2010, pet. ref’d). We overrule appellant’s second point.

                              Evidentiary Sufficiency

      In his third point, appellant argues that the evidence is insufficient to

support his conviction.     In our due-process review of the sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010). This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.




                                          11
      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009). Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007).    Instead, we Adetermine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.@ Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

      Intent to deliver may be established through circumstantial evidence. See

Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.—Fort Worth 2004, no pet.).

Furthermore, “intent to deliver is a question of fact for the jury to resolve, and it

may be inferred from the acts, words, or conduct of the accused.” Taylor v.

State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). Testimony by

experienced law enforcement officers may be used to establish a defendant’s

intent to deliver. Robinson v. State, 174 S.W.3d 320, 331 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d). We may consider several factors in determining such

intent, including the nature of the location where the defendant was arrested, the

quantity of drugs the defendant possessed, the manner of packaging the drugs,

the presence or absence of drug paraphernalia (for use or sale), whether the

defendant possessed a large amount of cash in addition to the drugs, and the

                                         12
defendant’s status as a drug user. Jones v. State, 195 S.W.3d 279, 288 (Tex.

App.—Fort Worth 2006) (op. on reh’g), aff’d, 235 S.W.3d 783 (Tex. Crim. App.

2007); Jordan, 139 S.W.3d at 726. “The number of factors present is not as

important as the logical force the factors have in establishing the elements of the

offense.”   Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston [14th

Dist.] 2006, pet. ref’d) (op. on reh’g).

      Appellant contends that the amount of methamphetamine recovered by the

police is inconsistent with intent to deliver. Appellant possessed more than five

grams of methamphetamine when the police arrested him.5 Officer Ho testified

that five grams of methamphetamine is a significant amount, is worth at least

$500, and, as such, is more consistent with dealing than using.

      Furthermore, Officer Ho testified that other items that the police recovered

from appellant are consistent with drug dealing.          The methamphetamine

recovered from appellant was found in small plastic baggies along with other

empty plastic baggies.       Officer Ho explained that small plastic baggies are

commonly used by people who are dealing drugs and that drug users do not

typically keep their drugs in multiple baggies. See Rhodes v. State, 913 S.W.2d

242, 246, 250–51 (Tex. App.—Fort Worth 1995) (relying on an officer’s testimony

that packaging drugs in multiple small baggies was inconsistent with personal

drug use), aff’d, 945 S.W.2d 115 (Tex. Crim. App.), cert. denied, 522 U.S. 894

      5
       The State called a forensic chemist to confirm that the substances that
appellant possessed were methamphetamine.


                                           13
(1997).   Officer Ho also testified that a digital scale was recovered from

appellant’s car and that drug dealers normally use digital scales to weigh their

drugs before selling them. Next, Officer Ho testified that appellant was arrested

carrying $590, an amount consistent with drug dealing.6 See Elder v. State, 100

S.W.3d 32, 34 (Tex. App.—Eastland 2002, pet. ref’d) (considering the

defendant’s possession of $596 as a fact supporting the jury’s determination that

the defendant intended to deliver cocaine). Finally, Officer Ho testified that he

recovered two cell phones from appellant and that drug dealers typically use one

phone for personal use and one phone for use in dealing drugs.

      Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that a rational factfinder could have found beyond a reasonable doubt

that appellant intended to deliver methamphetamine. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.

      Along with challenging the sufficiency of the evidence to prove his intent to

deliver, appellant contends that the evidence was insufficient to show that he

possessed the methamphetamine that the police found on the ground close to

him. However, Officer Ho testified that the drugs he found under appellant’s


      6
        Appellant called a former employer who testified that he had paid
appellant with cash in December 2009. This evidence could have raised a
conflicting inference about the source of the $590 that appellant possessed upon
his arrest. But in our evidentiary sufficiency review, we must presume that the
factfinder resolved any conflicting inferences in favor of the verdict and defer to
that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330
S.W.3d at 638.


                                        14
stomach were not on the street before he placed appellant on the ground. Also,

the jury could have rationally considered that the items found in appellant’s car

(digital   scales,   more   methamphetamine,     and   cell   phones)   comprised

circumstantial evidence that the drugs found nearby appellant belonged to him.

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

that a rational factfinder could have found beyond a reasonable doubt that

appellant possessed the methamphetamine that officers found near his body.

       We conclude that the evidence is sufficient to support appellant’s

conviction. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d

at 638. We overrule appellant’s third point.

                                   Conclusion

       Having overruled each of appellant’s points, we affirm the trial court’s

judgment.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

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

DELIVERED: August 30, 2012




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