                                                                            ACCEPTED
                                                                        06-14-00212-CR
                                                             SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                   5/22/2015 2:39:28 PM
                                                                       DEBBIE AUTREY
                                                                                 CLERK

               No. 06-14-00212-CR

         IN THE COURT OF APPEALS
                                                       FILED IN
                                                6th COURT OF APPEALS
                   FOR THE                        TEXARKANA, TEXAS
                                                5/22/2015 2:39:28 PM
     SIXTH JUDICIAL DISTRICT OF TEXAS               DEBBIE AUTREY
                                                        Clerk


          TERRY EUGENE GLENN,

                                    Appellant

                       V

              THE STATE OF TEXAS

                                    Appellee


  APPEALED FROM THE 71st DISTRICT COURT

         HARRISON COUNTY, TEXAS

       TRIAL COURT CAUSE #12-0455X


                BRIEF OF STATE


                           COKE SOLOMON
                           CRIMINAL DISTRICT ATTORNEY
                           HARRISON COUNTY, TEXAS
                           P.O. BOX 776
                           MARSHALL, TEXAS 75671
                           (903) 935-8408

        BY:    SHAWN ERIC CONNALLY
               ASSISTANT CRIMINAL DISTRICT ATTORNEY
               BAR #24051899
               ATTORNEY FOR THE STATE


APPELLEE DOES NOT REQUEST ORAL ARUGMENT

                       i
                                      No. 06-14-00212-CR

                                   TERRY EUGENE GLENN
                                               Appellant

                                                V

                                    THE STATE OF TEXAS
                                                Appellee

                       __________________________________________

                      NAMES OF ALL PARTIES AND ATTORNEYS
                      __________________________________________

       The names and identifying information of all parties and attorneys were correctly stated

in Appellant’s brief except for one addition:

       TRIAL COUNSEL FOR STATE AT SUPPRESSION HEARING
       Patricia Colleen Clark
       State Bar No. 04293800
       Harrison County District Attorney’s Office
       P.O. Box 776
       Marshall, Texas 75670
       903-935-8408




                                                ii
                                                    TABLE OF CONTENTS


NAMES OF ALL PARTIES AND ATTORNEYS ........................................................................ ii

INDEX OF AUTHORITIES....................................................................................................... iv-v

PRELIMINARY STATEMENT OF THE NATURE OF THE CASE ...........................................1

           STATE’S REPLY ISSUE ONE: …………………………………1

           STATE'S REPLY ISSUE TWO…………………………………..1

GENERAL STATEMENT OF THE FACTS ..................................................................................2

ARGUMENTS AND AUTHORITIES............................................................................................3
    SUMMARY OF THE ARGUMENT REPLY ISSUE ONE ...............................................3
         ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE.................................4
    SUMMARY OF THE ARGUMENT REPLY ISSUE TWO……………………………..9
         ARGUMENTS AND AUTHORITIES REPLY ISSUE TWO…………………..10

PRAYER ........................................................................................................................................11

CERTIFICATE OF SERVICE ......................................................................................................11




                                                                      iii
INDEX OF AUTHORITIES

CASES:

Amador v. State, 221 S.W.3d 666, 673 (Tex.CrimApp.2007)…………………………………….4

Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007)…………………………………….4

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008)……………………………..4

State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007)…………………………………….4

State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App.2007)………………………………………..5

Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000)………………………………………5

Keehn v. State, 279 S.W.3d 330, 334 (Tex.Crim.App.2009)……………………………………...5

Joseph v. State, 807 S.W.2d 303, 308 (Tex.Crim.App.1991)……………………………………..5

Miller v. State, 686 S.W.2d 725, 728 (Tex.App.-San Antonio 1985, no pet.)…………………….5

Nichols v. State, 886 S.W.2d 324, 325-26 (Tex.App.-Houston[1st Dist.] 1994, pet, ref’d)……….5

Goonan v. State, 334 S.W.3d 357 (Tex.App.-Fort Worth 2011)……………………………….…5

Small v State, 977 s.W.2d 771, 774 (Tex.App.-Fort Worth 1998, no pet.)……………………….6

Hitchcock v. State, 118 S.W.3d 844, 850-51 (Tex.App.-Texarkana 2003, pet. ref’d)……………7

McGee v. State, 105 S.W.3d 609, 613 (Tex.Crim.App.2003)…………………………………….7

Johnson v. State, 263 S.W.3d 287, at 289 (Tex.App.-Houston[1st Dist] 2007)…………………...8

Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1993)…………………………………..8

Galitz v. State, 617 S.W.2d 949, 952 (Tex.Crim.App.1981)……………………………………...8

Webb v. State, 899 S.W.2d 814, 818 (Tex.App.-Waco 1995, pet. ref’d)………………………….8

Morgan v. State, 1996 WL 223551 (Tex.App.-Dallas 1996, not reported)……………………….9

Dossett v. State, 216 S.W.3d 7, 17 (Tex.App.-San Antonio 2006, pet. ref’d)…………...………10

                                             iv
STATUTES:

United States Constitution, Fourth Amendment……………………………………………….….4

United States Constitution, Fifth & Fourteenth Amendments…………………………….…..…..7

Texas Constitution, Article 1 Section 9 & 13………………………………………………...…7-8

Texas Code of Criminal Procedure 1.04, 1.06, 38.23………………………………………..……8




                                     v
            PRELIMINARY STATEMENT OF THE NATURE OF THE CASE

       Appellant’s preliminary statement of the case is correct.



                                STATE’S REPLY ISSUE ONE

       The trial court did not commit reversible error in denying Appellant’s motion to

suppress because based on the totality of the circumstances of Appellant’s impairment

and the incriminating nature of the pill bottle in the Appellant’s hand, probable cause

existed to search the pill bottle. Additionally, the odor of marijuana coming from the

Appellant provided probable cause for the search. Furthermore, no evidence was solicited

at the suppression hearing that the search was conducted without a warrant, and finally,

Appellant’s arguments for suppression under the Fifth & Fourteenth Amendments to the

United States Constitution, Article 1, Section 9 & 13 of the Texas Constitution, and

Texas Code of Criminal Procedure Art.1.04, 1.06, and 38.23 are not preserved for

appellate review because Appellant’s trial counsel did not object under those grounds at

the suppression hearing.



                                STATES REPLY ISSUE TWO

       The trial court did not commit reversible error in admitting state’s trial exhibits #4

and #4A because the beginning and the end of the chain of custody were proven.




                                                 1
                                STATEMENT OF THE FACTS

       On May 13, 2011, Officer Jason Mobley of the Marshall Police Department responded to

a disturbance call at the intersection of Highway 59 and Interstate 20. (RR Vol. 2, p.9) When he

arrived he observed a white male and a black male attempting to drag a black male out of the

middle of the intersection. (RR Vol. 2, p. 10) The black male was laying in the middle of the

street. (RR Vol. 2, p. 10) Officer Mobley was concerned the defendant was potentially a danger

to himself and others and was concerned the defendant was impaired. (RR Vol. 2, p. 10) After

getting him out of the street, Officer Mobley observed the defendant was stumbling over his

words, rambling, and was unsteady on his feet. (RR. Vol. 2, p. 12-13) A pill bottle and drivers

license were observed in plain view in the defendant’s hand and were taken by Officer Mobley

while he was helping the defendant out of the road. (RR Vol. 2, p. 13-14) The name on the pill

bottle was not the defendant’s name, which gave Officer Mobley concern the defendant was in

possession of an illegal substance. (RR Vol. 2, p. 19) When asked why the defendant had a pill

bottle with someone else’s name on it, the defendant indicated he took a prescription for valium.

(RR Vol. 2, p. 15) While talking to the defendant Officer Mobley smelled the odor of burnt

marijuana coming from the defendant’s clothing. (RR Vol. 2, p. 25) Based on the impairment of

the defendant and the incriminating nature of the pill bottle, the bottle was opened and cocaine

was found inside. (RR Vol. 2, p. 19) Appellant’s brief refers to a conflict in the testimony as to

who actually initially opened the pill bottle; however, an examination of state’s suppression

hearing exhibit #4 (which is also state’s trial exhibit #2) at the 5 minute and 15 second mark

reveals that the bottle was opened by Officer Mobley who then communicated to Appellant that

the contents were clearly not valium, and then gave the pill bottle to Officer Johnson who opened


                                                 2
it as well. (State’s suppression exhibit #4 and state’s trial exhibit #2, time code: 5:15) The

contents were verified through a field test as positive for cocaine. (RR Vol 2, p. 22) Soon

afterwards, the defendant was placed under arrest for possession of a controlled substance. (RR

Vol 2, p. 24)



                                 ARGUMENTS AND AUTHORITIES


                  SUMMARY OF THE ARGUMENT REPLY ISSUE ONE

       The trial court did not err in denying Appellant’s motion to suppress. Officer Mobley had

probable cause to search the pill bottle in Appellant’s hand based on the totality of the

circumstances. The Appellant’s impaired demeanor, combined with the incriminating nature of

the pill bottle having another’s name on the label provided probable cause to search the pill

bottle. Additionally, the smell of marijuana coming from the Appellant immediately provided

probable cause to search the Appellant. Furthermore, while Appellant’s trial counsel at the

suppression hearing argued to the trial court in closing that the search was conducted without a

warrant, there was no evidence solicited from any witness that showed the pill bottle was indeed

seized without a warrant, therefore the burden never shifted to the state to either produce a

warrant or alternatively, to prove the reasonableness of the search. Lastly, Appellant’s arguments

for suppression under Fifth & Fourteenth Amendments to the United States Constitution, Article

1, Section 9 & 13 of the Texas Constitution and Texas Code of Criminal Procedure Art.1.04,

1.06, and 38.23 are not properly preserved because Appellant’s trial counsel did not object under

those grounds at the suppression hearing.



                                                  3
                 ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE

       When reviewing a trial court’s ruling on a motion to suppress evidence, a bifurcated

standard of review is used. Amador v. State, 221 S.W.3d 666, 673 (Tex.CrimApp.2007). “Almost

total deference to the trial court’s ruling is given on (1) questions of historical fact…., and (2)

application-of law-to-fact questions that turn on an evaluation of creditability and demeanor.

Amador at 673. But when application-of-law-to-fact questions do not turn on the credibility and

demeanor of witnesses, we review the trial court’s ruling on those questions de novo.” Amador at

673. “Stated another way when reviewing the trial court’s ruling on a motion to suppress, we

must view the evidence in the light most favorable to the trial court’s ruling.” Wiede v. State, 214

S.W.3d 17, 24-25 (Tex.Crim.App.2007). “When the record is silent on the reasons for the trial

court’s ruling, or when there are no explicit fact findings and neither party timely requests

findings and conclusions from the trial court, we imply the necessary fact findings that would

support the trial court’s ruling if the evidence, viewed in the light most favorable to the trial

court’s ruling, supports those findings.” State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex.Crim.App.2008). “The party that prevailed in the trial court is afforded the strongest

legitimate view of the evidence and all reasonable inferences that may by drawn from that

evidence.” Garcia-Cantu at 241. “We must uphold the trial court’s ruling if it is supported by the

record and correct under any theory of law applicable to the case even if the trial court gave the

wrong reason for its ruling.” State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007).

       The Fourth Amendment to the United States Constitution protects citizens from

unreasonable searches and seizures at the hands of Government officials. Wiede at 24. There are

three categories of interactions between police officers and citizens: (1) encounters, (2)


                                                  4
investigative detentions, and (3) arrests. State v. Perez, 85 S.W.3d 817, 819

(Tex.Crim.App.2007). Officer Mobley testified he was performing a “welfare check” of the

Appellant after getting him out of the middle of the road and that Appellant was not under arrest

or being detained and was in fact free to leave. (RR Vol. 2, p.29)

        The pill bottle in this case was in plain view in the Appellant’s hand. (RR Vol 2, p. 14) If

an item is in plain view, neither its observation not its seizure involves any invasion of privacy.

Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). First, law enforcement officials must

be lawfully where the object can be “plainly viewed” Keehn v. State, 279 S.W.3d 330, 334

(Tex.Crim.App.2009). Second, the “incriminating character” of the object in plain view must be

“immediately apparent” to the officials. Keehn at 334. Third, the officials must have the right to

access the object. Keehn at 334. The second prong, the immediacy requirement, requires only a

showing of probable cause that the item discovered is incriminating evidence; actual knowledge

of incriminating evidence is not required. Joseph v. State, 807 S.W.2d 303, 308

(Tex.Crim.App.1991). “Probable cause merely requires that the facts available to the officer

would warrant a man of reasonable caution in the belief … that certain items may be

contraband.” Miller v. State, 686 S.W.2d 725, 728 (Tex.App.-San Antonio 1985, no pet.). An

officer may rely on training and experience to draw inferences and make deductions as to the

nature of the item see. Nichols v. State, 886 S.W.2d 324, 325-26 (Tex.App.-Houston[1st Dist.]

1994, pet, ref’d).

        The facts of this case are directly on point to the facts in Goonan v. State, 334 S.W.3d

357 (Tex.App.-Fort Worth 2011), which applied the above standard. In finding the search of the

defendant’s pill bottle in Goonan, the court noted that “the incriminating nature of the contents


                                                  5
of the pill bottle was obvious to him because the label was made out to someone other than

Goonan” Goonan at 361. The state argues the facts in this case are remarkably similar. Officer

Mobley testified he was lawfully helping the Appellant out of the middle of the road when he

observed the pill bottle in Appellant’s hand in plain view, the “incriminating character” of the

pill bottle was “immediately apparent” to Officer Mobley because the label was made out to

someone other than the Appellant. (RR Vol. 2, p. 15) Which also gave Officer Mobley concern

that the Appellant was in possession of potentially an illegal substance (RR. Vol. 2, p. 19),

combined with the fact the Appellant had to be physically removed from laying in the middle of

the road by two other men and Officer Mobley as well as Appellant’s signs of impairment that he

“wasn’t making a whole lot of sense. He was kind of stumbling over his words, kind of rambling.

When I was walking him out of the road to the curb he was kind of unsteady on his feet”. (RR.

Vol. 2, p. 12-13) Officer Mobley testified on more than one occasion that having a different

name on the pill bottle gave him concern that the pill bottle seized may contain contraband. The

state argues that the facts available to Officer Mobley would warrant a man of reasonable caution

to believe the pill bottle contained contraband and that his search of it was justified and

supported by probable cause. While this reason was not given by the trial court when it gave its

ruling, it is supported by the record and correct under any theory of law applicable to this case

       Additionally, Officer Mobley testified while he was speaking with Appellant, he smelled

the odor of burnt marijuana coming from Appellant’s clothing. (RR Vol. 2, p 25, 38-39) This

alone supported probable cause for a search of the pill bottle in Appellant’s hand. The odor of

marijuana alone is sufficient to constitute probable cause to search a defendant’s person, vehicle,

or objects within the vehicle. Small v State, 977 s.W.2d 771, 774 (Tex.App.-Fort Worth 1998, no


                                                  6
pet.) See also Hitchcock v. State, 118 S.W.3d 844, 850-51 (Tex.App.-Texarkana 2003, pet.

ref’d). While this reason was not given by the trial court when it gave its ruling, it is supported

by the record and correct under any theory of applicable law.

       “On a motion to suppress, the accused bears the burden of rebutting the presumption that

police conduct was proper.” McGee v. State, 105 S.W.3d 609, 613 (Tex.Crim.App.2003). The

accused satisfies this burden by showing that the search or seizure occurred without a warrant.

McGee at 613. The burden of proof then shifts to the state to produce the warrant or to prove the

reasonableness of the disputed conduct. McGee at 613. After examining the record of the motion

to suppress hearing, no evidence was presented that this was a warrantless search. Neither party

asked: “Was the pill bottle searched pursuant to a warrant?” or “Was this a warrantless search of

the defendant’s pill bottle?” or “Officer Mobley, did you have a search warrant before opening

the pill bottle?”. No evidence was presented to the trial court that the search occurred without a

search warrant, nor was there a stipulation on the record that it was a warrantless search. While

Appellant’s trial counsel at the suppression hearing argued to the trial court in closing that the

search was conducted without a warrant, there was no evidence that showed the pill bottle was

searched without a warrant, therefore the burden never shifted to the state to either produce a

warrant or alternatively, to prove the reasonableness of the search. The issue was therefore never

preserved for appeal. Should the court find the issue was preserved for appeal, the state argues it

is without merit for the arguments already made.

       Finally, Appellant argues that this court should suppress the search of the pill bottle based

on violations of the Fifth & Fourteenth Amendments to the United States Constitution, Article 1,

Section 9 & 13 of the Texas Constitution and Texas Code of Criminal Procedure Art.1.04, 1.06,


                                                  7
and 38.23. While these authorities are mentioned in Appellant’s written motion to suppress, at

the actual suppression hearing the only objection made by Appellant’s trial counsel was an

objection under the Fourth Amendment to the United States Constitution. To preserve an issue

for appeal a party must timely object, stating the specific legal basis. Johnson v. State, 263

S.W.3d 287, at 289 (Tex.App.-Houston[1st Dist] 2007). An objection stating one legal theory

may not be used to support a different legal theory on appeal. Id. “As regards specificity, all a

party has to do to avoid forfeiture of a complaint on appeal 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 so something about it.”

Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1993). “The requirement that an

objecting party make a specific objection serves two purposes. First, the trial court must be given

an opportunity to correct the error…..Second, particularly in the context of a motion to suppress

a specific objection gives the opposing party an opportunity to respond to the objections and

provide additional evidence if appropriate.” Galitz v. State, 617 S.W.2d 949, 952

(Tex.Crim.App.1981). The issue raised on appeal should comport with the objection made at

trial, and the trial judge should have an opportunity to rule on the issue, otherwise nothing is

presented for appellate review. Johnson at 289. Additionally, “shotgun” objections, citing many

grounds for the objection without argument, will not preserve points based on authority which is

merely mentioned in the trial court. Webb v. State, 899 S.W.2d 814, 818 (Tex.App.-Waco 1995,

pet. ref’d) (Johnson at 290). These arguments were not properly preserved for appeal because

Appellant’s trial counsel did not object under those grounds at the suppression hearing. The only

objection to the search made was under an alleged violation of the Fourth Amendment to the


                                                  8
United States Constitution. The Court of Appeals in Dallas reached a similar conclusion in

Morgan v. State, 1996 WL 223551 (Tex.App.-Dallas 1996, not reported). The suppression

hearing was the proper time for Appellant’s trial counsel to let the trial judge know what she

wanted, why she wanted it, and why she thought she was entitled to it. Because Appellant’s trial

counsel never made an argument at the suppression hearing for any grounds for suppression

other than Appellant’s Fourth Amendment claim, the trial judge was never given an opportunity

to address the arguments Appellant now makes for the first time on appeal, nor was the state

given an opportunity to respond or present additional evidence if necessary. As such, nothing

was preserved for appellate review. Appellant’s filed written motion was a “shotgun” objection

that cited many grounds, however, no argument was given based on those grounds for the trial

court to rule on at the suppression hearing.

       Appellant’s Issue One should be overruled.



                  SUMMARY OF THE ARGUMENT REPLY ISSUE TWO

       The chain of custody for state’s trial exhibits #4 and #4A were properly proven because

Officer Mobley testified he took the pill bottle from the Appellant’s hand while removing him

from the road thereby establishing the beginning of the chain of custody and Officer Scott Beck

testified he took the evidence to the Tyler Lab, and retrieved it once the analysis was compete

and then brought the substance to court to be admitted as an exhibit and that the substance had

not been altered or tampered with in anyway, thereby establishing the end of the chain of

custody.




                                                9
                 ARGUMENTS AND AUTHORITIES REPLY ISSUE TWO

   The state agrees with Appellant that the applicable law is correctly stated in Dossett v. State,

216 S.W.3d 7, 17 (Tex.App.-San Antonio 2006, pet. ref’d). Proof of the beginning and end of a

chain of custody will support admission of the evidence in the absence of any evidence of

tampering or alteration. Dossett at 17. Thus, gaps or theoretical breaches in the chain of custody

do not affect the admissibility of the evidence, absent affirmative evidence of tampering or

commingling. Id. The State has no burden to disprove tampering or commingling; rather, the

appellant has the burden to present affirmative evidence of tampering or commingling. Id. A

showing of the possibility of tampering or commingling is not sufficient to bar admission of the

evidence, and goes only to the weight of the evidence. Id. Appellant argues in her brief there is

an issue with the amount of drugs seized and therefore there is some evidence of tampering;

however, Officer Mobley testified he made a mistake during the book-in of the Appellant and

wrote the wrong level of offense and it was merely a clerical error. (R.R. Vol. 4, p. 110) Here, as

in Dossett, the state’s evidence showed the pill bottle was originally seized from Officer Mobley

while helping the defendant out of the middle of the road (RR Vol. 4, p. 103) and turned it over

to detectives to be taken to the DPS crime lab in Tyler for analysis (RR Vol 4, p. 104), Officer

Scott Beck testified he took the evidence to the DPS Crime Lab in Tyler to be tested (RR Vol. 4,

p. 71) and Eloisa Esparza from DPS Crime Lab in Tyler testified that she received the evidence

from Officer Beck and forensically tested it (RR Vol. 4, p. 75) and the end of the chain of

custody was proven when Officer Beck testified he picked up the evidence once the analysis was

completed and it was stored in a Marshall Police Department evidence locker until Officer Beck

brought it to Appellant’s trial. (RR Vol. 4, p. 71) Officer Back also testified the evidence had not


                                                 10
been altered or tampered with in any way. (RR Vol. 4, p. 71-72) Appellant’s argument boils

down the mere possibility of tampering and no affirmative evidence of tampering was offered.

        Appellant’s Issue Two should be overruled.

                                            PRAYER

       The trial court having committed no reversible error, the state respectfully prays this

Court affirm the verdict and judgment of the court below.

                                                            Respectfully Submitted
                                                            Coke Solomon
                                                            Criminal District Attorney
                                                            Harrison County, Texas



                                                     By:      /s/ Shawn Eric Connally
                                                            ________________________
                                                            Shawn Eric Connally
                                                            Assistant Criminal District Attorney
                                                            Bar #24051899

                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Brief of the Appellee has
been faxed to the attorney for Appellant, Laura Carpenter, on the 22nd day of May, 2015.


                                                     /s/ Shawn Eric Connally
                                                     ____________________________
                                                     Shawn Eric Connally

                             CERTIFICATE OF COMPLIANCE

      I hereby certify compliance with T.R.A.P 9.4(i)(3), and that the number of words in this
document is 3685.
                                                  /s/ Shawn Eric Connally
                                                  ____________________________
                                                  Shawn Eric Connally



                                                11
