







COURT OF APPEALS








COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
 




 
TOMMY PANDO,
 
                            Appellant,
 
v.
 
THE STATE OF TEXAS,
 
                            Appellee.


 
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No. 08-02-00530-CR
 
Appeal from the
 
384th District Court
 
of El Paso County, Texas
 
(TC#20020D01608)




 
O
P I N I O N
Tommy Pando
pleaded guilty to possession of child pornography and was sentenced by the
court to five years= imprisonment in accordance with a plea agreement.   On appeal, he argues that the trial court
erred by refusing to suppress certain evidence. 
We affirm.
Factual
Background




Abigail Olmos
was married to Pando. 
On August 16, 2001, Pando was arrested for
assaulting her daughter.  Olmos immediately obtained a protective order, prohibiting Pando from returning to the marital home.  After the protective order was issued, Pando=s friends called Olmos and told her
that Pando wanted some things from the house,
including some tapes.
On September 14, 2001, Olmos was cleaning out the attic over the garage, when she
found a box containing videotapes.  Olmos started watching the tapes because she wanted to separate
Pando=s tapes from her own. 
She discovered that some of the tapes contained nude images of her
daughter.  It appeared that Pando had surreptitiously videotaped her as she was
dressing or stepping out of the shower.  Olmos believed that some of the pornographic tapes were
labeled in Pando=s handwriting.  The box also contained other pornography,
guns, drug paraphernalia, and marijuana. 
According to Olmos, Pando
had exclusive control of the attic when he lived at the house, but he had not
returned to the house since the protective order was issued.
Olmos called the police to report what she
had found.  When the police arrived at
the house, Olmos gave them permission to search all of the house and gave them the contraband she had
already found.  The police found
additional tapes in an entertainment center and a closet.  The police subsequently arrested Pando for possession of marijuana.   While under arrest, he gave a statement in
which he admitted making the videotapes.
Limitations
on Appeals From Plea-Bargained Convictions
Failure to Comply with Extra-Notice
Requirement




Under the version of the Texas Rules
of Appellate Procedure applicable to this case, an appellant who was sentenced
in accordance with a plea agreement must include an Aextra-notice recitation@ in the notice of appeal.  See Woods v. State, 108 S.W.3d 314,
315-16 (Tex. Crim. App. 2003); see also Tex. R. App. P. 25.2(b)(3) (2002 version).[1]  The notice of appeal must specify that:  (1) the appeal is for a jurisdictional
defect; (2) the substance of the appeal was raised by written motion and ruled
on before trial; or (3) the trial court granted permission to appeal.  See Woods, 108
S.W.3d at 315-16.  If the notice
of appeal does not contain an extra-notice recitation, the appellant may cure
this omission by filing an amended notice of appeal in this Court at any time
before filing his brief.  Tex. R. App. P. 25.2(f)[2];
Bayless v. State, 91 S.W.3d 801, 805-06
(Tex. Crim. App. 2002).  After the appellant files his brief, he may
file an amended notice of appeal Aonly on leave of the appellate court
and on such terms as the court may prescribe.@ 
Tex. R. App. P. 25.2(f).  If the appellant fails to file either an
original or an amended notice of appeal containing the extra-notice recitation,
we do not have the power to address the merits of the appellant=s claims.  See Bayless,
91 S.W.3d at 803 n.2; White v. State, 61 S.W.3d 424, 428-29 (Tex. Crim. App. 2001).




In this case, Pando=s notice of appeal does not contain
an extra-notice recitation.   Pando did not file an amended notice of appeal before
filing his brief, nor has he requested leave of this Court to file an amended
notice.[3]  Accordingly, we lack the power to consider Pando=s arguments on appeal.
Lack of Written Motion
In any event, it does not appear that
the filing of an amended notice of appeal containing an extra-notice recitation
would allow us to consider Pando=s appellate arguments.  An extra-notice recitation must be true and
supported by the record.  Woods, 108 S.W.3d at 316. 
Moreover, we are not authorized to address issues that do not fall
within one of the three categories listed in former rule 25.2(b)(3).  Id.
In his sole issue on appeal, Pando argues that the trial court should have suppressed
evidence collected at the house.  This is
not a jurisdictional issue, and the record does not reflect that the trial
court granted permission to appeal this issue. 
See Tex. R. App. P.
25.2(b)(3)(A),(C) (2002 version).  The record does reflect that the trial court
conducted a suppression hearing and signed an order refusing to suppress the
evidence before the plea proceedings. 
However, the record does not contain a written motion to suppress the
evidence.  We have inquired with the
district clerk, and there is no such motion on file in this case.




The rule allows a plea-bargaining
defendant to appeal when Athe substance of the appeal was raised by written motion
and ruled on before trial.@  Tex. R. App. P. 25.2(b)(3)(B) (2002 version) (emphasis added).  In Woods, the appellant=s amended notice of appeal stated
that he was appealing a written pretrial order finding that he was competent to
stand trial.  108
S.W.3d at 315.  The Court of
Criminal Appeals held that this extra-notice recitation did not state a ground
that was cognizable under rule 25.2(b)(3).  Id. at 316.  The court stated:
As for
the appeal of the trial court=s written order finding appellant competent, the
notice does not allege that appellant=s incompetency was a matter raised by written motion
and ruled upon before trial.  And the
record would not substantiate such a recitation:  appellant filed written motions for
psychiatric examinations and those motions were granted.  Whether appellant was actually competent to
stand trial was ruled upon by written order but was never advanced in a written
motion.
 
Id.
at 316 n.6.
In this case, the trial court made a
written pretrial ruling, but Pando did not make a
written pretrial motion.  Therefore, even
if Pando amended his notice of appeal, it could not
accurately state that the substance of the appeal was raised by written motion
and ruled on before trial.  Because an
appeal of a written pretrial order is not cognizable under rule 25.2(b)(3) absent a written pretrial motion, we do not have the
power to address the merits of Pando=s appellate arguments.[4]




Preservation
of Error 
There is another reason why we cannot
address the merits of Pando=s appellate arguments:  he did not make the arguments in the trial
court.
To preserve an error for appellate
review, the complaining party must raise the issue in the trial court by a timely
and specific request, objection, or motion. 
Tex. R. App. P. 33.1(a)(1).  A motion to
suppress based on one legal theory cannot be used to support a different legal
theory on appeal.  See Urquhart v. State, ___ S.W.3d ___, ___, 2003 WL
22923435, at *1 (Tex. App.--El Paso Dec. 11, 2003, no pet. h.); Leno v.
State, 934 S.W.2d 421, 423 (Tex. App.--Waco 1996), pet. dism=d, improvidently granted, 952 S.W.2d 860 (Tex. Crim. App. 1997).




In his sole issue on appeal, Pando asserts that he had a reasonable expectation of
privacy in the garage attic because he took steps to keep others out of the
area.  He therefore argues that Olmos=s search was illegal and that she did not have the authority
to consent to the police search.  Pando did not make these arguments in the trial court.
As noted above, no written motion to
suppress appears in the record.  From the
transcription of the suppression hearing, it appears that Pando=s counsel only moved to suppress Pando=s statement.  In his
examination of witnesses at the hearing, Pando=s counsel focused on the voluntariness of the statement.  Contrary to his stance on appeal, counsel
also attempted to establish that Pando did not have
exclusive control of the garage attic, apparently trying to create doubt as to
whether the contraband found there actually belonged to Pando.
In his closing argument, Pando=s counsel argued that the arrest warrant was not supported by
probable cause because there was no evidence that the marijuana was Pando=s and that the statement was not voluntary.  When counsel finished his closing argument,
the trial judge asked, AAnd you don=t want me to consider . . . anything
about the videotapes or anything?@ 
Counsel indicated that he intended to file a motion to suppress the
evidence collected at the house, but he was not yet prepared to address issues
related to that evidence because he had only been on the case for a short
time.  Counsel stated that he was Anot waiving any rights,@ but his understanding was that the
admissibility of the statement was the only issue currently before the
court.  The judge indicated that although
he would be willing to consider the admissibility of the videotapes at a later
date, he did not believe another hearing would be necessary.  Pando=s counsel agreed.




The prosecutor then began his closing
argument by requesting the court to rule immediately on the admissibility of
all the evidence.  The judge and the
prosecutor agreed that Athe issue@ was whether Olmos had standing and
authority to consent to the seizure of the evidence.  Neither the judge nor the prosecutor
elaborated on any specific arguments as to why Olmos
did or did not have standing and authority to consent.  The prosecutor simply asserted that Olmos did have such standing and authority because the
evidence was found in the marital home. 
Then he quickly moved on to address the voluntariness
of the statement.  Pando=s counsel did not participate in the
discussion.
When the prosecutor finished his
closing argument, the judge stated that he would make a ruling the following
day.  Then the following colloquy
occurred between the judge and Pando=s counsel:
Judge: [I]f you
have anything other on the seizure of the evidence--I believe the evidence is
before me, unless something comes up. 
You need to also maybe give me a case or something to address that issue
if you feel that--
 
Counsel:         I=ll do that in a memorandum form, Judge.  I apologize.
 
Judge: I don=t need a memorandum, just case law.  I don=t need
you to tell me what the cases are about. 
I can read the cases and make that determination.
 
If
you feel you have a case on point that says that the wife did not have standing
to consent to the seizure of these items or to the relinquishing of these
items, then give me a case that would support your contention.  All right?
 
Counsel:         I will, Your Honor.




The record does not demonstrate that counsel subsequently
supplied the judge with a case or any argument regarding the admissibility of
the evidence collected at the house.  The
judge eventually signed an order denying ADefendant=s Motion to Suppress Defendant=s Statement@ and another order denying ADefendant=s Motion to Suppress Physical
Evidence.@
From this review of the record, it is
apparent that Pando did not move to suppress the
evidence collected at the house; he only moved to suppress his statement.  Although the record indicates that Pando=s counsel planned to seek suppression of the other evidence,
the record does not indicate that he followed through on that plan.  It is true that the judge and the prosecutor
briefly discussed whether Olmos had standing and
authority to consent to seizure of the evidence.  But they did not discuss the specific
argument raised by Pando on appeal, and Pando=s counsel did not discuss the issue at all.  Accordingly, we conclude that Pando failed to preserve any error in the trial court=s refusal to suppress the evidence.
Conclusion
For the reasons stated herein, we
overrule Pando=s issue on appeal and affirm the
judgment of the trial court.
SUSAN
LARSEN, Justice
April 15, 2004
 
Before Panel No. 3
Barajas, C.J., Larsen, and
Chew, JJ.
 
(Publish)




[1]The
Texas Rules of Appellate Procedure have been amended, effective January 1,
2003, to replace the extra-notice requirement with a requirement that the trial
court certify whether the appellant has the right to appeal.  See Final Approval of Amendments to
the Texas Rules of Appellate Procedure, 66 Tex.
B.J. 166 (2003).  Pando filed his
notice of appeal in 2002.


[2]This
provision was formerly found in subsection (d). 
See Tex. R. App. P. 25.2 (2002 version).


[3]In
its brief filed on December 10, 2003, the State pointed out that Pando=s
notice of appeal does not comply with rule 25.2(b)(3).


[4]The
State argues that this appeal should be dismissed for lack of jurisdiction
because of Pando=s
failure to comply with rule 25.2(b)(3).  In years past, the Court of Criminal Appeals
indicated that the failure to comply with rule 25.2(b)(3)
and its predecessor deprived the appellate court of jurisdiction.  See, e.g., White, 61
S.W.3d at 428-29; Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994). 
More recently, the court stated, citing Davis:  AWe
recognize that in the past we have addressed the issue of whether a notice
conferred jurisdiction over a court of appeals when in fact a question of
jurisdiction was not at issue.@  Bayless, 91
S.W.3d at 803 n.2. 
The court further stated:
 
Once a notice of appeal has been timely
filed in a case, the Court of Appeals obtains jurisdiction over the case.  Thus, defects in the notice that do not
affect whether the instrument filed with the clerk is actually a notice of
appeal do not prevent the appellate court from having jurisdiction over the
appeal.  Instead, they might affect the
matters that are cognizable by the appellate court.
 
Id.  Finally, the court stated that Athe issue is not whether the
jurisdiction of the Court of Appeals was invoked; it is whether the Court of
Appeals had the power to address the merits of appellant=s
claims.@  Id. 
Bayless does not explain the
distinction between an issue over which a court has no jurisdiction and an
issue that the court does not have the power to address.  See Olivo v.
State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996)
(AJurisdiction concerns the power of a
court to hear and determine a case.@).  Nevertheless, the case makes clear that
compliance with rule 25.2(b)(3) is not a
jurisdictional issue.  See Zapata v.
State, 121 S.W.3d 66, 66-67, 70 (Tex. App.--San Antonio 2003, pet. ref=d); see also Woods, 108 S.W.3d
at 316 (stating that an appellate court Ais
not authorized to address@
issues that do not fall within one of the categories listed in former rule
25.2(b)(3)).


