                                   NO. 07-04-0115-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                  DECEMBER 20, 2004

                          ______________________________


                             LEE A. BRIONES, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2003-402135; HONORABLE CECIL G. PURYEAR, JUDGE

                         _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


       Following his plea of not guilty, appellant Lee A. Briones was convicted by a jury of

possession with intent to deliver a controlled substance in a drug free zone. Punishment

was assessed by the jury at 70 years confinement. By two issues, appellant challenges

his conviction maintaining the trial court erred in failing (1) to suppress illegally seized
evidence and (2) to charge the jury with the law applicable to illegally seized evidence. We

affirm.


          In July 2002, Officer Manuel Reyna was working undercover with the Drug

Enforcement Administration when he met appellant through a confidential informant (CI)

to discuss a narcotics and arms transaction. Approximately a week later, while other law

enforcement officers were conducting visual surveillance on appellant’s residence, Reyna

and the CI were invited inside to purchase crack cocaine. According to Reyna’s testimony,

he and the CI followed appellant into a bedroom where appellant retrieved cocaine from

a closet. Once the transaction was completed, Reyna, the CI, and all other officers

involved in surveillance returned to the police department.


          While at the department, the CI gave a statement which prompted Reyna to obtain

a search warrant. Approximately one hour after the buy, Reyna instructed other officers

to return to appellant’s residence to resume surveillance while he secured the warrant.

During surveillance, a female carrying a paper sack exited appellant’s residence, got in her

car, and drove away. Concerned with possible removal of narcotics or the buy money, a

senior officer directed other officers to follow and stop the female. She was identified as

appellant’s mother and was detained for outstanding warrants. Apprehensive that evidence

might be destroyed, the senior officer at the residence instructed officers to enter and

secure the premises. Six officers dressed in raid gear entered the premises without

knocking and conducted a search of persons and a protective sweep.


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       At the time, appellant and one of his brothers were the only occupants. They were

handcuffed and officers remained in the residence with them but did not conduct a search

for narcotics until Officer Reyna notified them he had obtained a warrant. Reyna testified

that after a judge signed the warrant,1 he contacted the officers on site and advised them

to begin the search unaware that officers had already entered the premises.


       Although Reyna had procured a warrant, a copy of it had not been presented to the

owner of the residence when officers had begun searching drawers, closets, clothing, etc.

and seized cocaine in the pockets of two jackets.2 Also seized were digital scales, a bowl

typically used to cook cocaine, and plastic baggies commonly used to package cocaine.


       Appellant was indicted for possession with intent to deliver 400 or more grams of

cocaine in a drug free zone. Following a hearing on his motion to suppress evidence, the

trial court denied it on the basis that the warrant had been duly complied with and the

officers had the right to enter the residence and secure it.


       By his first issue, appellant maintains the trial court erred in failing to suppress

illegally seized evidence. We disagree. A trial court’s ruling on a motion to suppress is

reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App. 1999).


       1
        The warrant commanded officers to search for “crack cocaine, and any other
controlled substances, packaging materials, scales, money, and any other contraband
and/or items consistent with or indicative of trafficking of crack cocaine and other controlled
substances and the containers which may contain them . . . .”
       2
           See Tex. Code Crim. Proc. Ann. art. 18.06(b) (Vernon 1977).

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We apply a bifurcated standard of review giving almost total deference to the court’s

determination of historical facts and reviewing de novo its application of the law of search

and seizure to those facts. Laney v. State, 117 S.W.3d 854, 857 (Tex.Cr.App. 2003); State

v. Ross, 32 S.W.3d 853, 856 (Tex.Cr.App. 2000); see also Guzman v. State, 955 S.W.2d

85, 89 (Tex.Cr.App. 1997). The evidence should be viewed in the light most favorable to

the court’s ruling. Armendariz v. State, 123 S.W.3d 401, 402 (Tex.Cr.App. 2003), cert.

denied, __ U.S. __, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004); State v. Ballard, 987 S.W.2d

889, 891 (Tex.Cr.App. 1999). Furthermore, the trial court’s ruling admitting the evidence

will be upheld if it is reasonably supported by the evidence and correct on any theory of

law. Willover v. State, 70 S.W.3d 841, 845 (Tex.Cr.App. 2002). In a suppression hearing

the trial court is the sole judge of the credibility of the witnesses and the weight to be given

their testimony. Id. at 855.


       Relying on the Fourth Amendment, article I, section 19 of the Texas Constitution,

and articles 1.06 and 38.23 of the Texas Code of Criminal Procedure, appellant asserts the

exigent circumstances exception to a warrantless search does not apply and “seizure” of

the evidence occurred prior to obtaining a warrant. The State’s position is that exigent

circumstances to enter the premises existed and if not, relying on Segura v. United States,

468 U.S. 796, 104 S.Ct. 3380, 3386, 82 L.Ed.2d 599, 609 (1984), it argues the evidence

was seized pursuant to a valid search warrant.




                                               4
      To justify a warrantless search, the State must show the existence of probable

cause at the time of the search and the existence of exigent circumstances that made

procuring a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Cr.App.

1991). Exigent circumstances include (1) rendering aid or assistance to persons whom the

officers reasonably believe are in need of assistance, (2) preventing the destruction of

evidence or contraband, and (3) protecting the officers from persons whom they reasonably

believe to be present and armed and dangerous. Id. at 107.


      Securing a dwelling based on probable cause to prevent destruction or removal of

evidence while a search warrant is being sought is not an unreasonable seizure. Segura,

104 S.Ct. at 3388. Where officers having probable cause enter a residence and arrest the

occupants who have a legitimate possessory interest in its contents and secure the

premises to preserve the status quo while others, in good faith, are in the process of

obtaining a warrant, they do not violate the Fourth Amendment’s proscription against

unreasonable seizures.     Id. at 3382; McGlothlin v. State, 705 S.W.2d 851, 855

(Tex.App.–Fort Worth 1986), rev’d on other grounds, 749 S.W.2d 856 (Tex.Cr.App. 1988).


      The evidence established that following the buy, Officer Reyna and the other officers

returned to the police department where the decision to obtain a warrant was made. For

approximately one hour appellant’s residence was without surveillance. The evidence also

showed that once surveillance resumed and appellant’s mother left the residence carrying

a sack, she was stopped far enough away from the residence so as not to alert appellant.


                                            5
Testimony from other officers established that appellant’s mother had no means of

communicating with appellant after she was stopped, and no evidence was presented of

possible counter-surveillance that could have lead appellant to discover law enforcement

was conducting surveillance. Although the State argues it was concerned with destruction

or removal of evidence, there is no evidence in support of that argument. Also, there was

no evidence to indicate that obtaining a search warrant would have been impracticable.

We conclude the State did not establish the existence of exigent circumstances to justify

entry into appellant’s residence prior to Officer Reyna obtaining the warrant.


       Nevertheless, whether the initial entry into appellant’s residence was illegal is

irrelevant to the admissibility of the challenged evidence where there was an independent

source for the warrant under which the evidence was seized. See Segura, 104 S.Ct. at

3390; see also Walters v. State, 680 S.W.2d 60, 62 (Tex.App.–Amarillo 1984, no pet.). The

warrant was based on information gathered during the undercover buy which was wholly

unconnected and prior to the initial entry. The items appellant asserts were erroneously

admitted into evidence were seized during a search conducted pursuant to a valid warrant.

We conclude the trial court did not abuse its discretion in denying appellant’s motion to

suppress. Issue one is overruled.


       By his second issue, appellant urges error by the trial court in failing to charge the

jury with the law applicable to illegally seized evidence pursuant to article 38.23(a) of the




                                             6
Texas Code of Criminal Procedure.3          The State asserts appellant has waived this

contention. We agree.


         Following the charge conference and the trial court’s offer to entertain objections,

defense counsel objected and requested:


         an instruction be given to the jury on the execution of the search warrant in
         this case. There has been evidence that it may possibly have not come up
         to the standard that it needs to.


On appeal appellant does not challenge the execution of the warrant; rather, he contends

an instruction was mandatory because a fact question was raised by the evidence

regarding the illegality of the warrantless search. (Emphasis added).


         The objection lodged at trial does not comport with the complaint on appeal and

thus, nothing is preserved for review regarding article 38.23(a). See Goff v. State, 931

S.W.3d 537, 551 (Tex.Cr.App. 1996); Boyd v. State, 643 S.W.2d 700, 706 (Tex.Cr.App.

1982).       By his objection following the charge conference, appellant challenged the

execution of the warrant and on appeal contends the search was conducted without a

warrant. The underlying objection in no way alerted the trial court to the alleged error of

which appellant now complains. Issue two is overruled.


         3
          Article 38.23(a) provides in part:
         In any case where the legal evidence raises an issue hereunder, the jury
         shall be instructed that if it believes, or has a reasonable doubt, that the
         evidence was obtained in violation of the provisions of this Article, then and
         in such event, the jury shall disregard any such evidence so obtained.

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      Accordingly, the judgment of the trial court is affirmed.


                                         Don H. Reavis
                                           Justice

Do not publish.




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