                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00152-CR


MICHAEL BOX                                                            APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE

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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F16-2185-367

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Michael Box appeals his conviction and four-year sentence for

possession of a controlled substance—less than one gram of methamphetamine.

In three issues, Box argues that the trial court erred by denying his suppression

motion, by viewing a video from the arresting officer’s in-car camera prior to trial,



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       See Tex. R. App. P. 47.4.
and by considering evidence of a prior conviction for enhancement purposes.

Because we conclude that Box has failed to preserve his first two arguments for

review and because we conclude that the trial court did not abuse its discretion

by admitting and considering the complained-of evidence, we will affirm.

                                  II. BACKGROUND

      Officer Abimael Casanova of the Lewisville Police Department testified that

on August 23, 2015, he was working patrol when he saw Box driving his SUV

down Interstate 35. From Casanova’s view, it appeared that Box was driving

without the SUV’s taillights illuminated, so he initiated a traffic stop.    After

approaching Box’s SUV from the passenger side for safety reasons, Casanova

questioned Box about the taillights and where he was going.         According to

Casanova, Box was unusually nervous and fidgety.         Casanova also did not

believe Box’s story about where he was going, allegedly to Walmart, because

Box had passed two Walmarts on his drive down Interstate 35.           After Box

revealed that he did not have a drivers’ license on him, Casanova went back to

his patrol vehicle, ran Box’s name through the department’s system, and learned

that Box did not have a valid drivers’ license.

      After returning to Box’s SUV, Casanova again asked Box where he was

going, and Box then explained that he was actually out driving around to clear his

head after an argument with his wife. By Casanova’s account, he asked Box to

step out of his SUV and then asked Box if he could search the SUV, to which

Box agreed and handed Casanova the keys to his SUV.             Upon searching,


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Casanova found three methamphetamine pipes, one of which contained a usable

amount of methamphetamine.

         The trial court found Box guilty of possession of a controlled substance—

less than one gram of methamphetamine.              After conducting the punishment

phase of trial and after having found the State’s two enhancement paragraphs to

be true, the trial court sentenced Box to four years’ incarceration. This appeal

followed.

                                     III. DISCUSSION

         In his first point, Box complains that the trial court erred by not granting his

motion to suppress. Specifically, Box complains that Casanova illegally asked

him to step out of his SUV and illegally searched his vehicle. The State argues

that Box has failed to preserve this issue for our review. We agree with the

State.

         To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d

670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Even

constitutional errors may be waived by failure to timely complain in the trial court.

Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).                  And the

complaint made on appeal must comport with the complaint made in the trial

court or the error is forfeited. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.


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Crim. App. 2004); Vafaiyan v. State, 279 S.W.3d 374, 383 (Tex. App.—Fort

Worth 2008, pet. ref’d). To determine whether the complaint on appeal comports

with that made at trial, we consider the context in which the complaint was made

and the parties’ shared understanding at that time. Clark v. State, 365 S.W.3d

333, 339 (Tex. Crim. App. 2012).

       In this case, at the beginning of trial, Box orally motioned the court to

suppress “everything” after the initial traffic stop. Box’s argument to the trial court

was that his taillights were illuminated and that, therefore, Casanova conducted

an improper traffic stop. Now, on appeal, Casanova is arguing that Casanova’s

asking Box to step out of his SUV and then searching the SUV was

unconstitutional.   Because Box’s objection at trial does not comport with the

complaint he now makes on appeal, he has forfeited this complaint for our

review. See Pabst v. State, 466 S.W.3d 902, 907–08 (Tex. App.—Houston [14th

Dist.] 2015, no pet.) (“[A]ppellant argued in detail that the stop was illegal

because the temporary tag was legible and appellant had not committed a

crime[.] [R]epeating this statement did not make it apparent that appellant also

was urging that the stop was illegal because of its length.”). We overrule Box’s

first point.

       In his second point, Box argues that the trial court impermissibly watched

the video from Casanova’s in-car camera prior to trial. Box argues that this

violated his right “to confront the witness sponsoring the video.”         The State




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argues that Box had agreed to allow the trial court judge to watch the video of the

traffic stop prior to trial.

       We have examined the record, and it is obvious that the parties had

agreed to let the trial judge review the video prior to trial. Moreover, not only had

the parties agreed to let the trial judge review the video, Box never objected to

the trial judge having viewed the video, despite multiple opportunities, and thus

he forfeited this complaint for our review.

       As mentioned above, to preserve a complaint for our review, a party must

have presented to the trial court a timely request, objection, or motion that states

the specific grounds for the desired ruling if they are not apparent from the

context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds,

472 S.W.3d at 674. And a reviewing court should not address the merits of an

issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530,

532 (Tex. Crim. App. 2009).

       Because Box did not complain about the trial court judge having viewed

the video prior to trial when he was given the opportunity to, he has forfeited this

complaint for our review. We overrule Box’s second point.

       In his third point, Box argues that the trial court impermissibly granted “the

State’s motion to amend the indictment to include the enhancements” and that

one of the judgments, labeled a judgment nunc pro tunc, was impermissibly used

to enhance his conviction. The State argues that it never moved to amend the




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indictment and, among other arguments, that Box admitted to serving the prison

sentence detailed in the judgment that he now complains of.

      At the punishment phase, over Box’s objection to State’s exhibit 10, the

State introduced evidence that Box had served prison time for two prior felony

convictions—burglary of a habitation and unauthorized use of a motor vehicle.

Regarding the unauthorized use of a motor vehicle, the State introduced two

judgments with the same cause number—State’s exhibits 9 and 10.             State’s

exhibit   9   indicates   that   Box   served    in   a   “SPECIAL    ALTERNATE

INCARCERATION PROGRAM” for the unauthorized use of a motor vehicle, but

State’s exhibit 10, which has a handwritten title of “Nunc Pro Tunc,” indicates that

Box had been sentenced to ten years’ incarceration. Although Box’s argument

on appeal is difficult to understand, it appears as though he is complaining of the

trial court’s admitting and then considering State’s exhibit 10.

      In general, we review a trial court’s admission of evidence under an abuse-

of-discretion standard. See Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim.

App. 2016). This means that as long as a trial court’s decision falls within the

zone of reasonable disagreement, we will not disturb it. See id. at 83.

      Here, at the punishment hearing, Box admitted that he had spent “about

eight and a half years in prison” for the unauthorized-use-of-a-motor-vehicle

conviction. Thus, it was within the zone of reasonable disagreement for the trial

court to admit and consider the judgment titled “Nunc Pro Tunc,” which indicated

that Box had been sentenced to ten years’ incarceration, and that State’s exhibit


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10 was the proper judgment for the court to consider regarding the State’s

enhancement allegation. We also agree with the State that there is no evidence

in the record that it ever moved to amend or was granted an amendment to the

indictment. We overrule Box’s third point.

                                IV. CONCLUSION

      Having overruled Box’s three points on appeal, we affirm the trial court’s

judgment.




                                                 /s/ Bill Meier
                                                 BILL MEIER
                                                 JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and BIRDWELL, JJ.

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

DELIVERED: August 9, 2018




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