                               NO. 12-11-00152-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

KEITH ALLEN WASHINGTON,                        §           APPEAL FROM THE 173RD
APPELLANT

V.                                             §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §           HENDERSON COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Keith Allen Washington appeals his conviction for three counts of engaging in organized
criminal activity. In two issues, Appellant argues that the trial court erred in overruling his
motion to suppress evidence. We affirm.


                                          BACKGROUND
       A Henderson County grand jury indicted Appellant along with LaChance and Elkon
Crutchfield for the felony offense of engaging in organized criminal activity. The indictment
arose from a criminal investigation of activities at the Crutchfields’ home.        Specifically,
investigators observed what they believed to be stolen items at the home and obtained and served
three search warrants on the residence. In the course of their investigation, the investigators
recovered two ATVs that they later determined were stolen and a trailer containing equipment that
had been stolen from a business.
       Prior to trial, Appellant filed a motion to suppress evidence. In his motion to suppress,
Appellant argued that the warrants failed to describe items subject to search with adequate
particularity and that the judges who signed the warrants did not have the authority to do so
because they were not attorneys. The trial court denied the motion to suppress following a
hearing.
       Appellant pleaded not guilty at trial. All three men were tried together. The jury found
Appellant guilty of the three charged instances of engaging in organized criminal activity. On
each count, the jury assessed punishment at imprisonment for ten years and suspended that
sentence for a period of ten years. This appeal followed.


                                           SEARCH WARRANTS
       Appellant argues that the trial court erred in overruling his motion to suppress evidence
because the search warrants do not describe the items subject to search with adequate particularity
and because the judges who signed the warrants were not authorized to do so.
Background
       During the investigation, Texas Department of Public Safety agent Richard Fulton
observed a truck pull into the Crutchfield residence with a trailer in tow. In the trailer was an
ATV and other items. Fulton saw the men at the residence unloading the ATV and other items
quickly and in a manner that he thought was suspicious. Shortly thereafter, Fulton obtained the
first of three search warrants for the Crutchfield residence. In the affidavit in support of the
warrant, he detailed his investigation into stolen property, including the recovery of stolen
property at another address in Henderson County. At that other location, he had recovered a
stolen car that had mail belonging to Elkon Crutchfield in it and a trailer he believed to be stolen
that had a license plate belonging to Elkon Crutchfield on it. In the affidavit, Fulton asked for
permission to recover the trailer located at the Crutchfield residence and the ATV.             The
magistrate signed a warrant authorizing him to search the residence and to bring before the court
“the property described in the affidavit, to-wit: A black tandem axle gooseneck dump trailer,
unknown make, and other property, vehicles, and vehicle parts stolen during an ongoing scheme of
events by Elkon and LaChance Crutchfield.”
       In the return and inventory on the search warrant, the officer indicated that he seized a
Dodge pickup truck, the gooseneck trailer, and two “unidentified blue Yamaha ATV[s].” In the
affidavit in support of the second search warrant, Fulton wrote that he observed two power drills at
the location when he executed the first search warrant. He determined that those drills were
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stolen because he observed the name “Jeff Wasson” on one of the drills, and a person with that
name had told him that his name was on one of two drills that had been stolen from him in the
recent past. Fulton requested permission to recover the drills and “other property stolen during a
burglary in Tyler, TX.”
       The affidavit in support of the third search warrant was written by Kendell Wellman, an
investigator with the Henderson County sheriff’s office. He requested permission to recover
some specific tools as well as “numerous other tools and equipment reported stolen to the
Henderson County Sheriff’s office by Phoenix fabricators on 03/08/2010, case number
C10-12729.” A magistrate approved the warrant. Wellman executed the search warrant and
recovered a number of items he believed to have been stolen.
Standard of Review
       We review a trial court’s ruling on a motion to suppress evidence for an abuse of
discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total
deference to the trial court’s determination of historical facts and then review de novo the trial
court’s application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.
Crim. App. 2000). Where the trial court does not make explicit findings of fact, we review the
evidence in a light most favorable to the trial court’s rulings, and assume the trial court made
implicit findings of fact supporting its ruling. Id. at 327-28.
Analysis
       The Texas Court of Criminal Appeals has held that intermediate appellate courts are to
“review preservation of error on [their] own motion.” See Ford v. State, 305 S.W.3d 530, 532-33
(Tex. Crim. App. 2009). This is because preservation of issues for appellate review is a systemic
requirement on appeal, and an appellate court should not “address the merits of [an] issue” if it
“has not been preserved for appeal.” Id.; see also Wilson v. State, 311 S.W.3d 452, 473-74 (Tex.
Crim. App. 2010).
       A defendant has preserved the issues raised in a pretrial motion to suppress by obtaining a
ruling on the motion and need not object when the evidence is introduced at trial. See Lemons v.
State, 135 S.W.3d 878, 882 (Tex. App.–Houston [1st Dist.] 2004, no pet.) (citing Moraguez v.
State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986)). However, the affirmative acceptance of
this previously challenged evidence waives any error in the admission of that evidence. See
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Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992); Lemons, 135 S.W.3d at 882.
Affirmative acceptance can be shown by stating that the party has no objection to the evidence
when it is offered. See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) (any error
waived when “appellant affirmatively stated that he had no objections”); Moody v. State, 827
S.W.2d 875, 889 (Tex. Crim. App. 1992) (appellant’s response during trial that he had “no
objection” waived claim of inadmissibility of challenged evidence that had been subject of
suppression hearing).
         There is not a tight fit between the evidence recovered during the various search warrants
and the evidence offered at trial. Some of the evidence offered at trial was not recovered pursuant
to search warrants. For example, the investigating officer made observations from the roadway
while he was surveilling the Crutchfield house. And some of the evidence that was recovered was
not offered. For example, the second search warrant was granted to recover two yellow Dewalt
rechargeable drills and “other property stolen during a burglary.”                       Those items were not
recovered, but Fulton wrote in the search warrant return that several plants and a bag of potting soil
were recovered. Fulton testified at the pretrial motion to suppress that those items were seized by
officers conducting a different investigation. No other rationale was offered for the seizure of the
plants and soil, but the State did not seek to admit that evidence at trial.
         However, Appellant1 affirmatively stated that he had no objection to the admission of
almost all the evidence that was offered in this case. Specifically, Appellant, or his counsel,
stated that he had no objection or said “no” or “none” in response to the question of whether there
was an objection to almost every one of the forty-five exhibits. Appellant objected to or at least
did not affirmatively waive a complaint about several of the exhibits. Specifically, exhibit 32 is a
photograph of a welding machine. Appellant did not respond when asked for an objection.
Exhibit 40 is a photograph of a pump. Appellant did not respond when asked for an objection,
although in this instance the trial court may have taken one attorney’s statement that there was no
objection as being the statement of all three defendants. With respect to exhibit 42, a list of values
of items of personal property that had been stolen, Appellant joined an objection that the
valuations were inadmissible because they did not take into account the age of the property.

         1
             Appellant was represented by counsel the first day of trial. He represented himself on the second day of
trial.
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        The welding machine was not recovered pursuant to a search warrant. The pump appears
to have been recovered pursuant to a search warrant, although it is not clear, but does not appear to
be an item Appellant was charged with stealing.2 The list of property values was not recovered as
a result of the search warrant. It is not a list of recovered items, but a list of the items that had been
stolen from the complaining witness.
        Appellant affirmatively stated that he had no objection to the relevant evidence when it was
offered at his trial. Therefore he failed to preserve a complaint about the admissibility of the
evidence in this case for appellate review.
        Even if Appellant had preserved his pretrial objection, we would uphold the trial court’s
ruling. Generally, in determining whether a specific warrant meets the particularity requirement,
a court must inquire whether an executing officer reading the description in the warrant would
reasonably know what items are to be seized. Porath v. State, 148 S.W.3d 402, 410 (Tex. App.–
Houston [14th Dist.] 2004, no pet.) (citing United States v. Layne, 43 F.3d 127, 132 (5th Cir.
1995)); see also Uresti v. State, 98 S.W.3d 321, 337 (Tex. App.–Houston [1st Dist.] 2003, no pet.)
(“The items to be seized must be described with sufficient particularity such that the executing
officer is left with no discretion to decide what may be seized.”) (citing Winkfield v. State, 792
S.W.2d 727, 731 (Tex. App.–Corpus Christi 1990, pet. ref’d)).
        Police officers may seize incriminating evidence found in “plain view” when executing a
warrant. See Zarychta v. State, 44 S.W.3d 155, 166-67 (Tex. App.–Houston [14th Dist.] 2001,
pet. ref’d).   For the plain view exception to the warrant requirement to attach, two requirements
must be met: (1) the officer must be in a proper position to view the item or lawfully be on the
premises; and (2) the fact that the officer has discovered evidence must be immediately apparent.
Id. (citing Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991)); Sandefer v. State, Nos.
12-04-00013-CR, 12-04-00014-CR, 12-04-00015-CR, 12-04-00016-CR, 2005 Tex. App. LEXIS
6301, at *24-25 (Tex. App.–Tyler Aug. 10, 2005, no pet.) (mem. op., not designated for
publication) (citing Bower v. State, 769 S.W.2d 887, 906 (Tex. Crim. App. 1989)).
        When items cannot be described more specifically, a more general description will suffice.


        2
            The officer speculated that the pump was part of an apparatus housed in a trailer that was used to
surreptitiously pump diesel fuel from an underground container. This scheme was not part of the charges for which
Appellant was on trial, and it was not clear whether he was involved in any such scheme.
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See Proctor v. State, 356 S.W.3d 681, 687-88 (Tex. App.–Eastland 2011, pet. ref’d). The
problem in this case is that the items could have been described more specifically. In fact, it
appears that they were described more specifically in the police reports referenced in the affidavits.
Those reports, however, were not presented to the magistrate. Nevertheless, based on the
reasoning in Bower, we hold that the officers were permitted to seize additional evidence of a
crime while serving the search warrants. The items they recovered were not mere evidence.
Each item recovered was something the officers believed was a stolen item, and the officers had a
lawful right to be where they were when they observed those items.
       We overrule Appellant’s first issue.
       In his second issue, Appellant argues that the magistrates did not have the authority to issue
the search warrants used to search his property. All magistrates may issue search warrants, but a
magistrate must be an attorney to issue a search warrant for “evidence of an offense or constituting
evidence tending to show that a particular person committed an offense.” See TEX. CODE CRIM.
PROC. ANN. arts. 18.01(c), 18.02(10) (West 2005 & Supp. 2012). A warrant issued pursuant to
Article 18.02(10) is broader than a warrant issued simply to collect a piece of stolen property or an
illegal drug. See TEX. CODE CRIM. PROC. ANN. art. 18.02(1), (7).
       Appellant argues that the warrants issued in this case are Article 18.02(10) warrants.
Because the magistrates are not attorneys, Appellant asserts that they lacked the authority to issue
the warrants. Indeed, the warrants, though not the affidavits, are captioned “Article 18.02(10),
Texas Code of Criminal Procedure.”
       However, the caption of the warrant does not determine what kind of warrant has been
issued. When considering a similar case, the Thirteenth Court of Appeals held that the substance
of the warrant, not the caption, dictated whether a warrant was an evidentiary or Article 18.02(10)
warrant. See State v. Acosta, 99 S.W.3d 301, 305 (Tex. App.–Corpus Christi 2003, pet. ref’d).
In Acosta, both the search warrant application and the warrant itself were captioned “Article
18.02(10).” Id. at 302. Nevertheless, after reviewing the search warrant affidavit and the search
warrant itself, the court reversed the trial court’s ruling suppressing the evidence, holding that the
search warrant was for the recovery of cocaine and a magistrate who was not a licensed attorney
could issue a search warrant for illegal drugs. Id. at 305.
       We agree with the reasoning in the Acosta decision. Therefore, we hold that the search
                                                  6
warrant in this case was granted pursuant to Article 18.02(1) for the recovery of stolen property
and could be lawfully granted by a magistrate not licensed to practice law. The items sought by
the police and authorized by the magistrate were items of stolen property and the magistrate did
not authorize the collection of Article 18.02(10) evidence. Accordingly, the trial court did not err
in overruling Appellant’s motion to suppress on the grounds that the magistrates lacked authority
to issue warrants. We overrule Appellant’s second issue.


                                                        DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.



                                                                BRIAN HOYLE
                                                                  Justice

Opinion delivered February 28, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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                                       COURT OF APPEALS
                  TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                              JUDGMENT


                                         FEBRUARY 28, 2013


                                         NO. 12-11-00152-CR


                                KEITH ALLEN WASHINGTON,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                            Appeal from the 173rd Judicial District Court
                        of Henderson County, Texas. (Tr.Ct.No. B-18,186C)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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