                       NUMBERS 13-15-00229-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


THEODORE ENDTER
A/K/A THEODORE ENDLER,                                                   Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


              On appeal from the County Court at Law No. 1
                       of Nueces County, Texas.


                         MEMORANDUM OPINION

               Before Justices Garza, Longoria, and Perkes
                Memorandum Opinion by Justice Perkes
      Appellant Theodore Endter appeals his conviction of unlawfully carrying a weapon,

a class “A” misdemeanor. See TEX. PENAL CODE ANN. § 46.02(a-1)(2)(A) (West, Westlaw

through 2015 R.S.).   After a bench trial, the trial court found appellant guilty and

sentenced him to ninety days in jail, probated for one year. By two issues, appellant
argues that the evidence is insufficient to support his conviction and that the trial court

erred by denying his motion to suppress. We affirm.

                                   I.     BACKGROUND

      Corpus Christi Police Officer Jonathan McGinley responded to a “man down” call

at Whataburger on South Padre Island Drive in Corpus Christi. Appellant was “slumped

over” in a vehicle “parked in the lane of the drive-thru.” As he approached, Officer

McGinley determined that appellant was “passed out” while he was “sitting in the driver’s

seat, slumped forward.” Officer McGinley concluded that appellant was intoxicated.

      Officer McGinley’s partner, Officer Joshua Swain, opened the driver’s side door of

appellant’s vehicle. As he did so, appellant slid out of the seat toward Officer Swain.

After several attempts, the officer succeeded in waking up appellant.       Officer Swain

noticed several signs of appellant’s intoxication, including an odor of alcohol, bloodshot

eyes, and slurred speech. Officer Swain also spotted an open bottle of tequila on the

floorboard of the passenger side of the vehicle. Officer Swain asked appellant if he was

carrying any weapons. After appellant responded that he was, Officer Swain located a

Glock handgun in appellant’s front waistband.

      After the State rested its case-in-chief, appellant moved for a directed verdict,

arguing appellant was not engaged in criminal activity. The trial court denied appellant’s

motion for a directed verdict and found him guilty. This appeal followed.

                       II.    LEGAL SUFFICIENCY OF THE EVIDENCE




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        By his first issue1, appellant argues the evidence at trial was legally insufficient to

sustain his conviction for unlawful carrying a weapon under section 46.02(a-1)(1) of the

Texas Penal Code.2 See id. § 46.02(a–1)(1).

A.      Standard of Review

        “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). We

measure the sufficiency of the evidence by the elements of the offense as defined by a

hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App.

2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a

charge is one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the


        1 In the body of his brief, appellant mistakenly refers to his first issue as “[t]he trial judge erred in
denying Appellant’s motion for directed verdict/motion to suppress evidence obtained pursuant to an illegal
vehicle stop.” His “issues presented” section correctly identifies his first issue as challenging the
sufficiency of the evidence.

        2  In his reply brief, appellant contends that he responded to the “original information” because the
State allegedly failed to notify him of its “amended information.” See TEX. CODE CRIM. PROC. ANN. art.
28.10. (West, Westlaw through 2015 R.S.) (State may amend an information or indictment after notice to
the defendant). Failure to object to a defect, error, or irregularity of form or substance in an indictment or
information before the trial date waives error unless the defect is fundamental. See TEX. R. APP. P. 33.1(a).
Nothing in the record shows that appellant complained of this alleged defect prior to the trial date, or at any
time other than in his reply brief. Gomez v. State, 730 S.W.2d 144, 145 (Tex. App.—Corpus Christi 1987,
pet. ref’d). To the extent appellant complains of any error in the information, we conclude that such a
complaint is waived.
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defendant was tried. Id. The offense of unlawfully carrying a weapon, as charged in

the information, required the State to prove that appellant: (1) intentionally, knowingly,

or recklessly carried on or about his or her person a handgun; (2) in a motor vehicle under

his control; and (3) was engaged in criminal activity. See TEX. PENAL CODE ANN. §

46.02(a–1)(2)(A).

B.    Applicable Law

      The Texas Penal Code provides:

      (a-1) A person commits an offense if the person intentionally, knowingly, or
            recklessly carries on or about his or her person a handgun in a motor
            vehicle or watercraft that is owned by the person or under the person’s
            control at any time in which:

          (1) the handgun is in plain view, unless the person is licensed to carry a
              handgun under Subchapter H, Chapter 411, Government Code, and
              the handgun is carried in a shoulder or belt holster; or

          (2) the person is:

                 (A) engaged in criminal activity, other than a Class C
                     misdemeanor that is a violation of a law or ordinance
                     regulating traffic or boating;

                 (B) prohibited by law from possessing a firearm; or

                 (C) a member of a criminal street gang, as defined by Section
                     71.01.

Id.

C.    Analysis

      Appellant confines his arguments to the location of the handgun and the ownership

of the truck.   Specifically, appellant claims that because the evidence showed the




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handgun was not in plain view and because the State failed to prove ownership of the

truck, the evidence is insufficient to support his conviction. We disagree.

      First, appellant’s argument disregards the amended information, which states:

                                      COUNT TWO

      On or about February 22, 2014, and anterior to the filing of this Complaint,
      in Nueces County, State of Texas, Theodore Endter did there and then
      intentionally or knowingly carry on or about HIS person a handgun in a
      MOTOR VEHICLE that was then and there UNDER THE DEFENDANT’S
      CONTROL, and the defendant was then and there engaged in criminal
      activity, to-wit: DRIVING WHILE INTOXICATED.

While appellant correctly points out that a defendant’s carrying a concealed handgun in

a vehicle may be insufficient by itself to support a conviction under the statute, such

evidence combined with other evidence, such as that the defendant was engaged in

criminal activity, prohibited by law from possessing a firearm, or a member of a criminal

street gang, is sufficient to meet the statutory elements of the offense. See id.

      Here, the State presented evidence that appellant was carrying a handgun in his

waistband and evidence that appellant was driving while intoxicated. It is undisputed

that appellant was in possession of a handgun while sitting in the vehicle. Further, based

on Officer Swain’s testimony that he smelled the odor of alcohol combined with

appellant’s bloodshot eyes and slurred speech, a fact-finder could reasonably conclude

that appellant was intoxicated. See Brooks, 323 S.W.3d at 899 (“The fact-finder is the

exclusive judge of the credibility of witnesses and of the weight to be given to their

testimony.”). Moreover, given that appellant was discovered slumped over in the driver’s

side of the vehicle parked in a drive-thru lane of a Whataburger parking lot, a fact-finder

could reasonably conclude that appellant committed the offense of driving while

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intoxicated. See Dornbusch v. State, 262 S.W.3d 432 (Tex. App.—Fort Worth 2008, no

pet.) (upholding a DWI conviction where the defendant was not driving the vehicle but

was found asleep or passed out in the driver’s seat with the engine running and, thus,

had taken action to affect the functioning of the vehicle in a manner that would enable the

vehicle’s use); Barton v. State, 882 S.W.2d 456 (Tex. App.—Dallas 1994, no pet.) (same).

       Secondly, appellant’s argument that the State failed to prove that he was the owner

of the vehicle is also unpersuasive. Appellant offers no authority, and we find none,

requiring the State to prove ownership of the vehicle as an element of the offense. See

TEX. PENAL CODE ANN. § 46.02(a–1). The plain language of the statute, as stated in the

amended information, requires the State to prove that appellant possessed “control” over

the vehicle. Although the statute does not define “control,” other courts have found that

control does not necessarily involve driving or moving. See Dornbusch, 262 S.W.3d 432

(defendant asleep in driver’s seat of idling vehicle parked in parking lot); see also Hearne

v. State, 80 S.W.3d 677, 679 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (defendant

asleep behind wheel of idling vehicle in “park” in roadway); Barton, 882 S.W.2d at 458

(same, but vehicle in “neutral”).

       Officer Swain testified that he observed appellant slumped forward in the driver’s

seat of the vehicle. No one else was present in the vehicle. Although there was no

testimony offered about whether the vehicle was operational, or had recently been

operated, given the circumstances surrounding appellant’s encounter with the police, we

conclude that a fact-finder could reasonably conclude that the vehicle was under

appellant’s control. See Brooks, 323 S.W.3d at 899. The evidence is legally sufficient


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to support appellant’s conviction. Johnson, 364 S.W.3d at 293–94. Appellant’s first

issue is overruled.

                                     III.    MOTION TO SUPPRESS

        By his second issue, appellant asserts that “the trial judge erred in denying

appellant’s motion for directed verdict/motion to suppress evidence obtained pursuant to

an illegal vehicle stop.” 3        The State responds by arguing that appellant raised his

evidentiary complaints after the evidence was admitted, thus forfeiting his complaints.

We agree with the State.

A.      Preservation

        Preservation of error is a systemic requirement that a first-level appellate court

should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698

(Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 2007)

(en banc)). To preserve error, an appellant must present a timely objection to the trial

court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P.

33.1(a); see Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). An objection

during trial is not required to preserve error to the admission of evidence that was the

subject of a pre-trial motion to suppress. See Ebarb v. State, 598 S.W.2d 842, 843 (Tex.

Crim. App. [Panel Op.] 1980) (holding no trial objection is required to preserve a complaint

of denial of motion to suppress). The error alleged on appeal must comport with the

objection submitted to the trial court. See TEX. R. APP. P. 33.1(a); Heidelberg v. State,

144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (en banc) (“The legal basis of a complaint


        3  A motion for a directed verdict is a challenge to the legal sufficiency of the evidence. Williams
v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).
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raised on appeal cannot vary from that raised at trial.”).

B.      Analysis

        Appellant filed a pre-trial motion to suppress; however, there is no evidence in the

record that the trial court heard the motion or otherwise ruled on it. Although appellant

construes the error on appeal as a denial of a motion to suppress, the record shows that

his arguments at trial were couched as a motion for a directed verdict. Further, to the

extent appellant argued at trial that the police violated his Fourth Amendment rights, he

raised such arguments after the State rested its case-in-chief. This is akin to appellant

stating he has no objection to the State’s evidence. See Harris v. State, 656 S.W.2d

481, 484 (Tex. Crim. App. 1983) (en banc); Grisso v. State, 264 S.W.3d 351, 353-54 (Tex.

App.—Waco 2008, no pet.). Consequently, his second issue has not been preserved.

See TEX. R. APP. P. 33.1(a). Appellant’s second issue is overruled.4

                                         IV.      CONCLUSION

        The trial court’s judgment is affirmed.

                                                                          GREGORY T. PERKES

                                                                          Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
15th day of September, 2016.




         4 Appellant’s motion to suppress was preserved in his companion case of driving while intoxicated-

third offense, which was heard in the 117th District Court in Nueces County before the present case. We
have addressed the suppression issue in a memorandum opinion under appellate cause number 13-15-
0086-CR.
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