                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00126-CR



    CURLEY HAWTHORNE JEFFERSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 276th District Court
                Marion County, Texas
                Trial Court No. F14669




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
           When Richard Nixon confessed to deputies of the Marion County Sheriff’s Department

that he had committed a burglary, he also told them he had traded certain of the stolen items to

Curley Hawthorne Jefferson for crack cocaine. Law enforcement officers obtained and executed

a search warrant for the stolen items at Jefferson’s residence, but in the process discovered and

seized apparent cocaine, for which Jefferson was charged. Consequently, a Marion County jury

convicted Jefferson of possession of a controlled substance (cocaine) in an amount of one gram or

more, but less than four grams,1 and assessed him twenty years’ imprisonment and a $2,000.00

fine.

           On appeal, Jefferson asserts that the trial court erred in admitting into evidence the cocaine

seized during the search and in improperly instructing the jury on the plain-view doctrine. We

affirm the judgment of the trial court, because we find (1) there was no error in admitting evidence

of the cocaine and (2) the plain-view jury instruction was not erroneous.

(1)        There Was No Error in Admitting Evidence of the Cocaine

           Recounting the principal background of this case will aid in the understanding of

Jefferson’s complaint about the admission of the evidence of the cocaine. During an investigation

of a burglary of Bucks N Ducks Hunting Club (Bucks N Ducks), Nixon confessed to the burglary

to Investigator David Capps of the Marion County Sheriff’s Department and told him that he had

stolen a generator, a lawn mower, a propane cooker, and a wheel barrow in the burglary and had

traded the stolen items to Jefferson for cocaine. Based on this information, Sheriff David


1
    See TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (West Supp. 2017), § 481.115(c), (d) (West 2017).

                                                        2
McKnight prepared an affidavit in support of a search warrant, which alleged, inter alia¸ that

Jefferson was in control of a certain mobile home and other buildings, and that:

       [Jefferson] has possession of and is concealing at said suspected place in violation
       of the laws of the State of Texas the following property: Articles stolen from
       [Bucks N Ducks], which may include 1. CPE 1000 Watt Inverter/Generator, Red
       in color 2. Toro 22” Recycler Model Lawn Mower, Red/Black in color 3. Propane
       Powered Cooker 4. Wheelbarrow, and other items reported stolen in [the Bucks N
       Ducks] Burglary.

A search warrant was issued in accordance with the affidavit for the search of the premises stated

in the affidavit and naming the four items specified in the affidavit, as well as “other items reported

stolen in [the Bucks N Ducks] Burglary.”

       Sheriff McKnight, his deputies, Capps, Jason Rippey, Michael Williams, Frank Cason, and

Alisha Riehl, and Game Warden Robb Furlow executed the search warrant. Four officers entered

the residence initially to secure the residence and ensure that there was nobody in the residence

with weapons. During the course of securing the residence, in the bedroom from which they

removed Jefferson, officers testified that they saw a tray on a shelf in Jefferson’s bedroom that

contained a plastic baggie containing white powder and a plastic baggie that contained white

chunks. The officers all testified that the baggies with the white substances were clearly visible

without moving the tray and that they suspected the white substances were crack cocaine. In

addition, Furlow testified that Jefferson was initially found in a bathroom, the toilet in which had

just been flushed and in which was seen in open view a plastic baggie containing a white powdery

substance. The three baggies containing suspected cocaine were seized that day along with the

items specified in the search warrant. Only the contents of the baggie containing the white chunks

was analyzed, which was determined to be 1.55 grams of cocaine.
                                                  3
           In a pretrial hearing, in the face of Jefferson’s objection to the admission of this evidence,

the trial court ruled that it was admissible. After the State rested its case, Jefferson again asserted

the inadmissibility of the evidence in a motion for instructed verdict, which was denied.

           Jefferson complains that the trial court erroneously admitted evidence of the cocaine seized

during the execution of a search warrant directed at stolen items. Jefferson argues that the cocaine

was located in a place where the items specified in the search warrant, because of their size, could

not be seen and that therefore the officers exceeded the scope of their search warrant. Additionally,

he appears to argue that, in the execution of a search warrant issued under Article 18.02(a),

subsections (1) through (10) and (12) of the Texas Code of Criminal Procedure,2 the plain-view

doctrine allows seizure only of items that are related to the offense for which the warrant is issued.

We disagree.

           At the outset, it is important to note that, in his objection to the evidence at trial, Jefferson

argued only that the search warrant was issued under subsections (1) through (9) of Article

18.02(a), and that, in the case of a search warrant issued under these sections, the seizure of items

in plain view is limited to items that are related to the offense for which the search warrant was

issued. In supporting his objection at trial, Jefferson never argued that the officers exceeded the

scope of the search warrant by searching where the items listed in the search warrant could not be

located nor that the plain view doctrine was limited for search warrants issued under subsections

(10) or (12) of Article 18.02(a).




2
    See Tex. CODE CRIM. PROC. ANN. art. 18.02(a)(1)–(10), (12) (West Supp. 2017).
                                                          4
            “To preserve an issue involving the admission of evidence for appellate review, the

objection is required to inform the trial court why, or on what basis, the evidence should be

excluded.” Douglas v. State, 489 S.W.3d 613, 629 (Tex. App.—Texarkana 2016, no pet.) (citing

Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (citing Cohn v. State, 849 S.W.2d 817,

821 (Tex. Crim. App. 1993) (Campell, J., concurring)).3 To preserve a complaint on appeal, “all

a party has to do . . . 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). Further, “an issue on appeal that does not comport with the objection made at trial

presents nothing for appellate review.” Douglas, 489 S.W.3d at 629 (citing Ibarra v. State, 11

S.W.3d 189, 197 (Tex. Crim. App. 1999); Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—

Texarkana 2005, pet. ref’d)). At trial, Jefferson did not argue that the officers exceeded the scope

of the search warrant or that search warrants issued under subsections (10) or (12) of Article

18.02(a) limited the scope of items in plain view that could be seized. Therefore, these arguments

in support of his first issue have not been preserved.

            A trial court’s decision to admit or exclude evidence is reviewed under an abuse-of-

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of

discretion occurs only if the decision is “so clearly wrong as to lie outside the zone within which

reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We may not


3
    See also TEX. R. APP. P. 33.1(a)(1)(A).
                                                  5
substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003). We will uphold an evidentiary ruling if it was correct on any theory of law

applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

        Under the plain-view doctrine, a law enforcement officer may lawfully seize an item when

(1) he or she has a right to be in a location where the article is in plain view and (2) the article leads

the officer to have an immediately apparent belief, i.e., probable cause, that the article constitutes

contraband, evidence of a crime, or an item otherwise subject to seizure. State v. Dobbs, 323

S.W.3d 184, 187 (Tex. Crim. App. 2010); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App.

2000) (citing Texas v. Brown, 460 U.S. 730, 737 (1983)). This is applicable to “a police officer

who is lawfully on private premises pursuant to a warrant . . . so long as he has not exceeded the

authority granted him by the warrant.” Dobbs, 323 S.W.3d at 187. In such an instance, the officer

“may seize any item in plain view that probable cause tells him is contraband.” Id.

        In this case, the officers observed the cocaine in plain view in the course of securing the

premises for their search. Officers may conduct a cursory examination of a residence to secure it

and seize any contraband seen during that examination. See Ramos v. State, 934 S.W.2d 358, 365–

66 (Tex. Crim. App. 1996); see also Vuong v. State, 830 S.W.2d 929, 937–38 (Tex. Crim. App.

1992) (officer checking hotel room bathroom to make sure no one else was in the room may seize

evidence of illegal narcotics found in plain view). Therefore, unless some limitation of the plain-

view doctrine applies, the officers in this case lawfully seized the cocaine that they found in plain

view, and such evidence was admissible at trial.



                                                    6
         Jefferson argues that search warrants issued under subsections (1) through (9) of Article

18.02(a)4 limit the scope of items that may be seized under the plain-view doctrine to those items

that are related to the offense for which the warrant was issued. None of the cases cited by

Jefferson, and none of the authority found by us, supports his argument. 5 To the contrary, the

Texas Court of Criminal Appeals has held that the plain-view doctrine applies without limitation

in a similar situation. In Dobbs, the officers searched a residence pursuant to a search warrant for

narcotics and came upon two new sets of golf clubs in the middle of a bedroom floor that were

determined to be stolen. Dobbs, 323 S.W.3d at 185–86. Article 18.02(a)(7) permits search

warrants to be issued to search for and seize drugs and controlled substances. TEX. CODE CRIM.

PROC. ANN. art. 18.02(a)(7). The Texas Court of Criminal Appeals noted that an officer who is

legitimately on private premises pursuant to a search warrant “may also seize anything he

discovers in plain view on those premises if it is ‘immediately apparent’ to him . . . that it

constitutes contraband, without the necessity of obtaining a second warrant to justify the seizure.”

Dobbs, 323 S.W.3d at 187.6 We see no reason why this rule would not also apply to the execution

of the search warrant issued in this case.


4
 In this case the search warrant was issued under subsection (8), which provides that “[a] search warrant may be issued
to search for and seize: . . . (8) any property the possession of which is prohibited by law.” TEX. CODE CRIM. PROC.
ANN. art. 18.02(a)(8).
5
 See Joseph v. State, 807 S.W.2d 303 (Tex. Crim. App. 1991); Chase v. State, 508 S.W.2d 605 (Tex. Crim. App.
1974), overruled on other grounds by Ex parte Trahan, 591 S.W.2d 837 (Tex. Crim. App. 1979); State v. Young, 8
S.W.3d 695 (Tex. App.—Fort Worth 1999, no pet.); Carrington v. State, 655 S.W.2d 229 (Tex. App.—Houston [14th
Dist.] 1983, no pet.).
6
 See also Carmen v. State, 358 S.W.3d 285, 298 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“the limitation on
the plain-view doctrine appl[ies] only if a warrant is issued under article 18.02(10) and not under any of the other
subdivisions of article 18.02”); Young, 8 S.W.3d at 699 (“‘plain view’ evidence may be properly seized with respect
to searches authorized by warrants issued under subsections (1) through (9) and (12) of article 18.02”).
                                                          7
       Consequently, we find no abuse of discretion in the admission of evidence of the cocaine

seized during the execution of the search warrant.

(2)    The Plain-View Jury Instruction Was Not Erroneous

       Jefferson also complains that the trial court erred in giving the following instruction

regarding evidence seized in plain view:

               Our law provides that items obtained by an officer during a search in
       violation of any provision of the Constitution or the laws of the State of Texas or
       of the Constitution or laws of the United States of America cannot be considered
       as evidence against the accused on the trial of any criminal case. Only items
       described in a search warrant may be seized and considered as evidence unless at
       the time of the search, while executing a search warrant, the items which are not
       described in a search warrant are in plain view of the officers conducting the search
       and the officers conducting the search have probable cause to believe the items
       obtained were contraband or evidence of a crime.

Our review of alleged jury charge error involves a two-step process. See Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error occurred and

then evaluate whether sufficient harm resulted from the error to require reversal.” Wilson v. State,

391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731–

32).

       “[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). “A trial

court must submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415 S.W.3d

915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC. ANN. art.

36.14 (West 2007)). “The purpose of the jury charge . . . is to inform the jury of the applicable

law and guide them in its application. It is not the function of the charge merely to avoid

                                                 8
misleading or confusing the jury: it is the function of the charge to lead and prevent confusion.”

Id. (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).

       Relying on the same cases cited in support of his first issue, Jefferson contends that the

instruction is erroneous because the plain-view doctrine is limited to evidence related to the items

named in the search warrant. As we have previously noted, legal authority does not support

Jefferson’s contention. Further, the instruction given by the trial court is a substantially correct

statement of the law as stated in Dobbs. See Dobbs, 323 S.W.3d at 187; see also Walter, 28 S.W.3d

at 541. Consequently, the trial court did not err.

       For the reasons stated, we affirm the trial court’s judgment.




                                              Josh R. Morriss III
                                              Chief Justice

Date Submitted:        December 21, 2017
Date Decided:          December 28, 2017

Do Not Publish




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