                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00057-CR


STEPHEN ALLEN WRIGHT                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                                   Introduction

      Appellant Stephen Allen Wright appeals his conviction for possession with

intent to deliver four or more but less than 200 grams of oxycodone. We affirm.

             Pills Turn Up from Up-turned Car and then Vanish

      Sometime around nine o’clock in the morning on March 13, 2011,

Appellant had to be cut out of his car after he flipped it upside down. As his
      1
       See Tex. R. App. P. 47.4.
rescuers strapped him to a gurney for Care Flight transport, he demanded that

they retrieve from the up-ended car a zippered, sub-zero lunch bag and that it

accompany him to the hospital.

       At the hospital, emergency room nurses insisted they would have to move

the bag so they could unstrap Appellant from the gurney. He reluctantly let them

do so only after they assured him they would not take anything from it. A nurse

placed the bag atop a defibrillator next to Appellant’s head, so he could see it at

all times.

       The nurse asked Appellant if he was currently taking any medications, to

which he said yes, and then she asked if they were in his bag. When he replied

that they were, she opened it and discovered multiple prescription drug bottles

inside. None of the labels on the bottles bore Appellant’s name, however, and

several had been altered or removed entirely.

       Because Appellant had injured his head, was still in a neck brace, and was

at high risk for a spinal injury, he was held by hospital staff for monitoring. As the

nurses helped him change into a hospital gown, a large bundle of cash plopped

from his trousers.    Another pocket yielded a second bundle.          Together, the

bundles totaled more than $4,700.00.          Hospital staff collected the cash and

placed it with the medications in Appellant’s lunch bag. The nurses then alerted

the hospital security guards, who called the police.

       When Officer Bobby Smith arrived, he examined the lunch bag and its

contents, which in addition to the prescription drugs and cash, included


                                          2
Appellant’s wallet and photo ID. He asked Appellant if the bag belonged to him

and Appellant told him it did.     When the officer asked who owned the pills,

Appellant said he was holding them for a “friend.”         He could not, however,

provide any contact information for this “friend.”

      Officer Smith then contacted Officer Jose Johnson, who had been a first

responder at the scene of Appellant’s wreck.         Officer Johnson joined Officer

Smith at the hospital and then spoke to the emergency room nurse who had

seen the pill bottles in Appellant’s bag. Officer Johnson examined the bottles,

cash, and bag (which he recognized from the scene of the accident) and then

asked Appellant whose prescription drugs he had and why they were in his

possession. Appellant replied, as he had previously to Officer Smith, that he was

holding the bottles for a “friend.” He would not elaborate on who the “friend” was

nor did he verify that he was holding the pills for anyone whose name was listed

on the labels. At last, he exclaimed that he had the drugs because he was “a f---

--g addict.” Officer Johnson then placed Appellant under arrest, and Appellant

was taken to jail.

      Officer Johnson seized the drugs, boxed them up, and checked them into

the police department’s property room for safekeeping. The record shows that

the drugs were checked out of the property room only once––when a few days

after they were checked in, Jason Allison, senior forensic scientist for the police

department’s crime lab, checked them out for analysis. Allison’s tests detected




                                          3
oxycodone, a controlled substance. The record shows that Allison returned the

drugs to the property room after testing.

      The trial court appointed Appellant a lawyer to provide defense

representation shortly after the arrest. Within a month, Appellant was indicted for

possession of oxycodone with intent to deliver.      The record does not reveal

whether Appellant tried to check the drugs out from the property room for

examination or independent analysis at any time before his case went to trial in

January 2012. 2

      On the first day of trial, after a lunch break between jury selection and the

State’s first witness, the prosecutor told Appellant and the trial court that

property-room personnel were unable to locate the drugs but were still looking for

them. Neither Appellant nor the State asked for a continuance, and the trial

resumed.

      The State’s evidence included photographs of the pill bottles (State’s

Exhibit 2) and of the cash (State’s Exhibit 3) in addition to the crime lab’s report

identifying the drugs as oxycodone (State’s Exhibit 6). The jury found Appellant

guilty, and after considering punishment evidence, which included proof that

Appellant had already served two terms in the penitentiary, it assessed 40 years’

confinement. The trial court sentenced Appellant accordingly.


      2
       The sub-zero lunch bag, Appellant’s wallet and ID, a pocket knife, a debit
card, and the cash, however, were released to a relative designated by
Appellant.


                                            4
                     Missing Evidence Complaints Forfeited

      In his first two issues, Appellant complains that the trial court took “no

corrective action” when the State failed to produce the drugs at trial. By taking

“no corrective action,” he argues, the trial court violated his due process rights

under the United States Constitution and his due course of law rights under the

Texas constitution because “[t]he labels on the pill bottles could have been used

to exonerate [him].” 3

      Although Appellant does not identify precisely what “corrective action” he

faults the trial court for not taking, he cites a case in his brief from the Waco court

of appeals, in which that court recognized three “remedies for the loss or

destruction of evidence: (1) dismissal; (2) exclusion of related evidence; or (3) an

adverse inference instruction.” Pena v. State, 226 S.W.3d 634, 655 (Tex. App.––

Waco 2007), rev’d on other grounds, 285 S.W.3d 459, 465 (Tex. Crim. App.

2009) (Pena III).

      The record does not show that Appellant asked the trial court to dismiss

his case or to issue any adverse-inference jury instruction based upon lost

evidence. The record does show, however, that Appellant asked the trial court to

suppress evidence related to the evidence that was lost. Specifically, the record



      3
        Appellant does not explain how the labels “could have been used to
exonerate” him. Because we hold that Appellant has otherwise failed to preserve
his claim for review, however, we need not delve into whether or how the labels
could have been so used.


                                          5
shows that Appellant objected to three of the State’s exhibits: those numbered 2,

3, and 6. 4

       Given that suppression of these three exhibits is the only remedy related to

the lost evidence Appellant actually asked for at trial, we will treat his first two

issues as claims that the trial court erred by not suppressing State’s Exhibits 2, 3,

and 6, rather than claims that the trial court erred by not taking some other

remedy that Appellant did not ask for. 5

       Although the record shows that Appellant asked the trial court to suppress

the exhibits, the record also shows that when Appellant heard that the evidence

stored in the property room had been misplaced, he did not discuss with the trial

court any of the theories that he now presents on appeal. That is, he did not

argue that federal due process or state due course of law constitutional

protections required the trial court to take some “corrective action” because the

State “lost or destroyed” evidence. 6 Nor did he argue that suppression was


       4
       State’s Exhibit 2 is a photograph of the bottles containing the drugs
witnesses testified the police seized from Appellant at the hospital; State’s 3 is a
photograph depicting two rubber-banded bundles of currency and a zippered
bank deposit bag that the witnesses testified had also been seized; and State’s 6
is a report prepared by the crime lab detailing the results of its analysis of the
drugs depicted in State’s 2.
       5
       We need not make this assumption regarding Appellant’s third issue,
discussed below, because his brief clearly states in that issue that the trial court
erred by not suppressing evidence.
       6
       While ticking off a laundry list of objections to State’s Exhibit 6, Appellant
did invoke, without elaboration or argument, “[s]tate and federal due process.”


                                           6
required because the police engaged in bad faith. 7 Instead, the record shows

that as soon as Appellant learned that the State’s evidence had been lost, he

urged the trial court to suppress the exhibits that had not been lost because the

chain of custody was defective:

            [Defense Counsel]: Your Honor, I believe the facts are going
      to show that [Appellant] was in a car wreck. He was taken to the
      hospital. When he got to the hospital, somebody found a bag that
      had some kind of narcotics in it. The offense reports don’t show who
      found the bag, where it came from, who searched it, who took it, who
      gave it to the police. All of that kind of stuff is what I’m talking
      about . . . .

            ....

             [T]here’s nothing in the reports about how the items got from
      the wreck to the hospital, who discovered them at the wreck, who
      took them into custody, how they got from the wreck to the hospital
      for the nurse to find them. And that’s the -- that’s what I’m talking
      about.

            ....

             [T]he discovery documents show that . . . the wreck was
      investigated by police officers, that [Appellant] was taken by either --
      by someone from the wreck site to the -- to the hospital. The drugs
      somehow got from the wreck site to the hospital. That -- who took
      the drugs, got custody of them, put them at the hospital, we don’t
      know who did that, so we don’t know what kind of violation it is.

            ....

            We’re going -- we contend that there is -- the chain of custody
      -- I understand the law is that the chain of custody goes to the
      weight of the -- to the weight of the evidence and not the

      7
       Appellant claims the record shows the trial court prevented him from
presenting evidence of bad faith. Our review of the pages he cites, however, do
not support this claim.


                                         7
      admissibility. However, there is [sic] a lot of cases that say the chain
      of custody is so bad that that does go to the admissibility. And in
      this case, we’re -- we believe the chain of custody is such -- is so
      bad that it’s going to go to the admissibility.

      Appellant later re-urged his suppression arguments based on a Fourth

Amendment illegal-search-and-seizure theory:

             [Defense Counsel]: Your Honor, at this point we again renew
      our, for lack of a better word, motion to suppress based upon the
      subzero bag. According to Officer Johnson, that bag was seized by
      someone, either a fire department or EMS guy, who is employed by
      the government. Therefore, it was the government that was seizing
      those items and that invokes [Appellant’s] constitutional rights and
      we would again urge the Court to consider that in the motion to
      suppress.

      Finally, the record shows that when the State offered State’s Exhibits 2

and 3, Appellant objected that “they are not relevant to this case, because there

[had] been no showing that they were actually -- the items depicted herein were

in [Appellant’s] possession.” In other words, Appellant objected on the grounds

of improper chain of custody, search and seizure, and relevancy––but not, as he

argues in his brief, because “the State lost or destroyed evidence and the trial

court erred in taking no corrective action.”

      To preserve a complaint for appellate review, a party must present to the

trial court a timely request, objection, or motion stating the specific grounds for

the ruling desired. Tex. R. App. P. 33.1(a); Broxton v. State, 909 S.W.2d 912,

918 (Tex. Crim. App. 1995); Williams v. State, 402 S.W.3d 425, 437 (Tex. App.––

Houston [14th Dist.] 2013, pet. ref’d); Trung The Luu v. State, No. 14-12-00665-

CR, 2013 WL 4487564, at *2 (Tex. App.––Houston [14th Dist.] Aug. 22, 2013, no


                                          8
pet.). The appellate complaint must comport with the specific objection made at

trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Williams, 402

S.W.3d at 437. Even claims of constitutional error may be forfeited by failure to

preserve them at trial. See Broxton, 909 S.W.2d at 918; Briggs v. State, 789

S.W.2d 918, 924 (Tex. Crim. App. 1990).

      The record does not reflect nor does Appellant cite anywhere in the record

that he asserted in the trial court that federal due process or state due course of

law required the trial court to take some “corrective action” (whether dismissal,

suppression, or otherwise) because the State had lost evidence. In Pena III, the

court of criminal appeals reiterated long-standing concepts of error preservation:

             The complaining party bears the responsibility of clearly
      conveying to the trial judge the particular complaint, including the
      precise and proper application of the law as well as the underlying
      rationale. Error preservation does not involve a hyper-technical or
      formalistic use of words or phrases; instead, “[s]traight forward
      communication in plain English” is sufficient. To avoid forfeiting a
      complaint on appeal, the party must “let the trial judge know what he
      wants, why he thinks he is entitled to it, and to do so clearly enough
      for the judge to understand him at a time when the judge is in the
      proper position to do something about it.”

Pena, 285 S.W.3d at 463–64 (citations omitted and emphasis added).

      Because Appellant’s arguments on appeal that the trial court erred by not

suppressing Exhibits 2, 3, and 6 do not comport with the objections he raised in

the trial court to those exhibits, he has failed to preserve his first two issues for

appellate review. See Tex. R. App. P. 33.1(2); Pena III, 285 S.W.3d at 463–64;

Wilson, 71 S.W.3d at 349; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App.



                                         9
1999), cert. denied, 531 U.S. 828 (2000); Williams, 402 S.W.3d at 437.

Accordingly, we overrule Appellant’s first and second issues.

       In his third issue, Appellant contends that he is entitled to a reversal

because the trial court “applied the wrong test” when it decided to admit the

crime lab report (State’s Exhibit 6). Again, though, this is a theory that Appellant

did not present to the trial court. The record shows that when the State offered

exhibit 6, Appellant objected on “hearsay,” “chain of custody,” “Sixth

Amendment,” “[s]tate and federal due process,” and “14th amendment to the

State [sic] constitution” grounds. But the record does not show that Appellant

argued to the trial court, as he does for the first time on appeal, that the trial court

applied the “wrong test” when it determined whether the lab report that was

admitted as State’s Exhibit 6 should have been suppressed.

       We have noted that, among other objections to State’s Exhibit 6, Appellant

invoked without elaboration or argument “[s]tate and federal due process.”

However, such “shotgun” objections, which cite many grounds for the objection,

unaccompanied by argument or explanation, and which serve only to obscure the

specific grounds of the objection, do not preserve a complaint for appellate

review. See Johnson v. State, 263 S.W.3d 287, 290 (Tex. App.––Houston [1st

Dist.] 2007, pet. dism’d); Webb v. State, 899 S.W.2d 814, 818 (Tex. App.––Waco

1995, pet. ref’d); Berry v. State, 813 S.W.2d 636, 639 (Tex. App.––Houston [14th

Dist.] 1991, pet. ref’d).




                                          10
      As with his first two issues, Appellant has not preserved this claim for

review.   See Tex. R. App. P. 33.1(2); Wilson, 71 S.W.3d at 349; Ibarra, 11

S.W.3d at 197; Williams, 402 S.W.3d at 437.              Accordingly, we overrule

Appellant’s third issue.

      Appellant’s Statements to Officers in the Hospital were Harmless

      In his fourth issue, Appellant contends that the trial court abused its

discretion by admitting un-Mirandized “statements” Appellant gave police before

the hospital was ready to discharge him. Appellant’s briefing does not specify

precisely which statements he contends the trial court erred to admit but the

State reasons that Appellant’s complaint concerns “roughly four admissions” that

he possessed the lunch bag in which the drugs were found and one that he was

an addict.

      As a preliminary matter, the State contends that Appellant’s claim on

appeal does not comport with his objection at trial. It notes that at trial Appellant

objected that code of criminal procedure article 38.22 required the trial court to

suppress the statements because they were given after police officers had

arrested him but before they had read him the Miranda warnings. The State

contrasts that objection with Appellant’s claim on appeal that, largely due to the

actions of hospital security officers (who Appellant claims acted as agents of the

police department), Appellant was in custody by the time he answered questions

posed by the police. It appears the difference lies in who had exerted custody

over Appellant when he answered the police officer’s questions. Because he


                                         11
objected at trial that he was in the custody of police officers and on appeal claims

that he was in the custody of hospital security acting as agents of the police,

arguably the objection and claim do not comport.

      This is a closer call than those we considered with the first three issues.

But thick or thin, it is a hair we need not split because we are not sold on

Appellant’s claim that the trial court abused its discretion by admitting Appellant’s

statements because they were the product of custodial interrogation conducted

without proper Miranda warnings. See Wilson v. Coon, 808 F.2d 688, 690 (8th

Cir. 1987) (holding that reasonable person would perceive physical restraint by

ambulance personnel as imposed only for medical examination, not police

interrogation); see also People v. DeBoer, 829 P.2d 447, 449 (Colo. App. 1991)

(defendant confined to hospital bed not in custody); State v. DesLaurier, 646

A.2d 108, 110, 112–13 (Conn. 1994) (defendant restrained in neckbrace on

bodyboard in ambulance not in custody); Cummings v. State, 341 A.2d 294,

300–02 (Md. Ct. Spec. App. 1975) (“The consensus of American case law is that

the questioning of a suspect who is confined in a hospital but who is not under

arrest is not a custodial interrogation within the contemplation of Miranda.”);

Commonwealth v. LaFleur, 791 N.E.2d 380, 382–84 (Mass. App. Ct. 2003)

(defendant not in custody when physically restrained by EMTs during brief

questioning); State v. Lapp, 658 P.2d 400, 403 (Mont. 1983) (hospital

interrogation noncustodial where no coercion used to overcome suspect’s

freedom of choice); People v. Ripic, 182 A.D.2d 226, 231–32 (N.Y. 1992)


                                         12
(defendant not in custody even though restrained by medical devices in hospital

bed); State v. Tyson, 643 P.2d 396, 399 (Or. App. 1982) (hospital interrogation

noncustodial absent evidence police would have detained defendant had he

attempted to leave). But see Robinson v. State, 224 So.2d 675, 678 (Ala. Ct.

App. 1969) (interrogation custodial where defendant was “being detained” in

hospital bed); Commonwealth v. D'Nicuola, 292 A.2d 333, 335–36 (Pa. 1972)

(deprivation of freedom of action includes hospital confinement), disapproved by

Commonwealth v. Ellis, 549 A.2d 1323, 1333 (Pa. Super. 1988).

      Moreover, even if we bought into Appellant’s claim and considered that his

questioning by police was conducted while in custody (whether that custody had

been imposed by the police or hospital security acting as agents of the police),

we are assured beyond a reasonable doubt that any error in admitting his

responses was harmless.       The most damning admissions Appellant made to

police officers––that the lunch bag in which the drugs were found was his––was

persuasively established by other evidence, and the admission that he was an

addict was arguably beneficial to the defense given that Appellant was tried for

possession with intent to distribute.

      As the State points out, the record shows that Appellant asked for his bag

to accompany him on his helicopter ride to the hospital. Once there, he told a

nurse that the medications he was taking were in his bag and then he reluctantly

relinquished it only after the nurses had assured him that they would not take

anything from it. Inside the bag the nurses found Appellant’s identification, a


                                        13
credit card, and a debit card. None of this evidence was the product of any

custodial interrogation, whether by the police or hospital security personnel.

Furthermore, the State did not stress during its closing arguments the admissions

Appellant made to officers while in the hospital but relied more on the evidence of

Appellant’s acts indicating ownership of the bag at the crash site and his

admissions to nurses at the hospital.     Accordingly, even if we assumed that

Appellant had preserved this claim for our review and that the trial court erred by

not suppressing the statements, we would be compelled by the record to hold

that beyond a reasonable doubt any error contributed not a whit to Appellant’s

conviction or punishment.    See Campbell v. State, 325 S.W.3d 223, 238–39

(Tex. App.––Fort Worth 2010, no pet.); Bailey v. State, 281 S.W.3d 29, 37 (Tex.

App.––El Paso 2005, no pet.). Accordingly, we overrule Appellant’s fourth issue.




                                        14
                                   Conclusion

       Having overruled all of Appellant’s issues, we affirm the judgment of the

trial court.

                                                   /s/ Anne Gardner
                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

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

DELIVERED: January 23, 2014




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