1986 DODGE 150 PICKUP v. STATE

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Docket Number

No. 06-02-00180-CV.

Attorney(S)

M. Mark Lesher, Lesher Murry, Texarkana, for appellant. Val Varley, Red River County Dist. Atty., Deborah Moore, Red River Asst. County Atty., Clarksville, for appellee.

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Smart Summary

Factual and Procedural Background

Joe B. Queen's 1986 Dodge pickup truck was seized by Texas authorities following the execution of a search warrant at the residence of Sam Black, which included all outbuildings and vehicles on the property. Police officers observed Queen arrive in the truck, removed him from the vehicle, and informed him that the truck was subject to search under the warrant. Upon inquiry, Queen admitted the possibility of contraband in the vehicle. A search revealed three plastic bags containing a white residue that field-tested positive for methamphetamine. Queen admitted he was at the residence to obtain methamphetamine from Black. The State initiated a civil forfeiture action against Queen's truck, alleging it was used in the commission of a felony.

The trial commenced on October 16, 2002. The State presented testimony from Officer Powell and then rested. Queen moved for a directed verdict on the basis that the search was unconstitutional due to lack of probable cause. The trial court denied the motion. Queen then presented a witness. The court recessed the case to allow for additional testimony regarding laboratory test results confirming the substance as methamphetamine. After reopening, a DPS criminologist testified to the positive identification of methamphetamine in the seized bags. The trial court entered findings of fact and law, concluding the truck was contraband used in the commission of a felony under Texas law and that the seizure was lawful. Queen appealed the denial of his motion for directed verdict on constitutional grounds.

Legal Issues Presented

Whether the search and seizure of Queen's vehicle violated his constitutional rights against unreasonable searches and seizures under Article 1, Section 9 of the Texas Constitution and the Fourth Amendment to the United States Constitution.
Whether the trial court erred in denying Queen's motion for directed verdict based on the alleged constitutional violation.
Whether Queen preserved error for appellate review regarding the alleged constitutional violation.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. $217,590.00 in United States Currency, 18 S.W.3d 631 (Tex. 2000)	Uncertainty whether the exclusionary rule applies to civil forfeiture proceedings under Texas law.	The court assumed, as did the parties, that the exclusionary rule applies to civil forfeiture cases, consistent with prior case law.
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965)	Application of the exclusionary rule to civil forfeiture where property was used in criminal activity.	Referenced as traditional authority for applying the exclusionary rule to civil forfeiture.
$4,182.00 in United States Currency v. State, 944 S.W.2d 24 (Tex. App.-Texarkana 1997, no writ)	Assumption that exclusionary rule applies; preservation of error standards.	Used to support the court’s conclusion that failure to object at trial waives appellate review of constitutional claims.
$56,700.00 in United States Currency v. State, 710 S.W.2d 65 (Tex. App.-El Paso 1986), rev’d on other grounds, 730 S.W.2d 659 (Tex. 1987)	Indication that exclusionary rule applies unless deterrent effect is otherwise satisfied.	Referenced in discussing the applicability of the exclusionary rule in civil forfeiture proceedings.
Miranda v. Arizona, 384 U.S. 436 (1966)	Requirement of Miranda warnings before custodial interrogation.	Noted that Queen was read his Miranda rights before questioning.
Rezac v. State, 782 S.W.2d 869 (Tex.Crim.App. 1990)	Requirement for timely and specific objection to preserve error on appeal.	Applied to hold that Queen failed to preserve his constitutional objection because the motion for directed verdict was insufficient.
Zillender v. State, 557 S.W.2d 515 (Tex.Crim.App. 1977)	Objection on one ground cannot support different legal theory on appeal.	Supported the court’s conclusion that Queen’s late objection did not preserve his constitutional claim.
Little v. State, 758 S.W.2d 551 (Tex.Crim.App. 1988)	Failure to object waives even constitutional error if not timely raised.	Reinforced the requirement that constitutional objections must be timely and specific to be preserved.
Gauldin v. State, 683 S.W.2d 411 (Tex.Crim.App. 1984), overruled on other grounds, State v. Guzman, 959 S.W.2d 631 (Tex.Crim.App. 1998)	Same as above regarding preservation of constitutional error.	Applied in support of waiver of constitutional claims for failure to object timely.
Russell v. State, 665 S.W.2d 771 (Tex.Crim.App. 1983)	Preservation of error standards for constitutional claims.	Used to support the court’s waiver analysis.
Stubblefield v. State, 477 S.W.2d 566 (Tex.Crim.App. 1972)	Objection raised for first time in motion for directed verdict does not preserve error.	Applied to find Queen’s motion for directed verdict insufficient to preserve his constitutional claim.
Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709 (Tex. App.-Houston [1st Dist.] 1996, no writ)	Failure to renew motion for directed verdict at close of case waives error in denial of initial motion.	Supported the court’s holding that Queen waived error by not reurging motion after presenting his own evidence.
McMeens v. Pease, 878 S.W.2d 185 (Tex. App.-Corpus Christi 1994, writ denied)	Same as above regarding waiver by failure to renew directed verdict motion.	Reinforced the waiver principle applied by the court.
Bryan v. Dockery, 788 S.W.2d 447 (Tex. App.-Houston [1st Dist.] 1990, no writ)	Same as above regarding waiver of directed verdict motion error.	Supported the court’s conclusion on waiver of error.

Court's Reasoning and Analysis

The court analyzed whether Queen preserved his constitutional challenge to the search and seizure of his vehicle. It emphasized the necessity of timely and specific objections at trial to preserve error for appeal, citing multiple precedents establishing that an objection made for the first time in a motion for directed verdict is insufficient. Queen only objected to the officer’s qualifications regarding the field test and raised constitutional objections for the first time in his motion for directed verdict after the State rested. Moreover, after the trial court denied the motion, Queen presented evidence but did not renew his motion at the close of the case, which results in waiver of any error in the denial of the directed verdict motion. The court also noted that the trial court found the seizure lawful and that the State proved by a preponderance of the evidence that the vehicle was contraband used in felony commission. Because Queen failed to preserve error and waived any claimed constitutional violation, the court affirmed the trial court’s judgment.

Holding and Implications

The court affirmed the judgment of the trial court.

The direct effect of this decision is the upholding of the forfeiture of Queen's 1986 Dodge pickup truck to the State of Texas. The court found no reversible error in the trial court's denial of Queen's motion for directed verdict due to procedural waiver and failure to preserve constitutional objections. This opinion does not establish new precedent beyond reinforcing established rules regarding preservation of error and waiver in constitutional challenges to searches and seizures in civil forfeiture proceedings.

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1986 DODGE 150 PICKUP VIN #1B7FD14T1GS006316, Appellant v. THE STATE OF TEXAS, Appellee.

OPINION

Opinion by Justice ROSS.

Joe B. Queen appeals the judgment of the trial court forfeiting his 1986 Dodge pickup truck to the State of Texas. He contends the trial court erred by not granting his motion for directed verdict because the search leading to the seizure of his pickup truck violated his constitutional right prohibiting unreasonable searches and seizures under Article 1, Section 9, of the Texas Constitution and the Fourth Amendment to the United States Constitution.

We assume, as do both parties, the exclusionary rule applies to civil forfeiture proceedings. The Texas Supreme Court has yet to decide this issue. See State v. $217,590.00 in United States Currency, 18 S.W.3d 631, 632 (Tex. 2000). Traditionally, the exclusionary rule has applied to civil forfeiture proceedings in which an item is forfeited because of its use in carrying out criminal activity, see One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699-02 (1965), and this Court has assumed, without deciding, that the rule applies. $4,182.00 in United States Currency v. State, 944 S.W.2d 24, 27 (Tex. App.-Texarkana 1997, no writ); see also $56,700.00 in United States Currency v. State, 710 S.W.2d 65, 70 (Tex. App.-El Paso 1986) (indicating exclusionary rule would apply unless "the deterrent effect may be satisfied by other means, thereby leaving no reason to exclude the evidence in a civil action"), rev'd on other grounds, 730 S.W.2d 659 (Tex. 1987).

On January 4, 2002, police officers executed a search warrant for the residence of Sam Black, including any and all outbuildings and motor vehicles located on the property. During the execution of the search warrant, officers Danny Powell and Terry Bee observed Queen drive into the yard of Black's residence. The officers removed Queen from the vehicle and informed him they were police officers, that they were executing a search warrant on the premises, and that his truck was subject to search under the warrant. Powell asked Queen whether he had any drugs or other contraband in his vehicle. Queen replied, "probably." A search of the vehicle revealed three plastic bags containing "white residue."

Powell testified he field-tested this substance, and it tested positive for methamphetamine. Bee read Queen his Miranda rights and asked him why he was there. Queen stated he was there to get methamphetamine from Black. The State brought this action to forfeit Queen's truck.

Miranda v. Arizona, 384 U.S. 436 (1966).

The other property contained in the vehicle included a toolbox with contents, an ice scraper, an assortment of tapes, a blue mag light, a box with two speakers, a floor jack with handle, two chains, and a spare tire. In the State's original petition, it sought the forfeiture of this property as well. However, it was stipulated at the outset of the forfeiture proceeding that this property was not used in the furtherance of any criminal violation and they were returned to Queen.

The trial of this matter commenced before the court October 16, 2002. The State presented Powell's testimony and then stated it had no further witnesses. Queen moved for a directed verdict on the ground that the search of his vehicle was not based on probable cause and violated his constitutional right to be free from unreasonable searches and seizures. The trial court denied the motion, and Queen presented a witness on his behalf. The trial court then sue sponte put "this case in recess" and, "in the interest of justice," kept the record open for receipt of testimony concerning the Texas Department of Public Safety (DPS) laboratory test results. While Queen objected to this procedure, he makes no complaint about it on appeal.

On November 14, 2002, at the trial court's urging, the State moved to reopen the case for receipt of the testimony concerning the laboratory test results. Karen Ream, a criminologist with the DPS, testified the bags found in Queen's truck contained .16 grams of methamphetamine. The trial court found that the 1986 Dodge pickup truck was contraband and subject to forfeiture. The court filed findings of fact and conclusions of law, and concluded "[t]he State proved by a preponderance of the evidence" that the seized vehicle "was contraband as defined by Art. 59.01(2)(B)(i) in that it was used in commission of a felony under Chap. 481.115 of the Texas Health and Safety Code." The court also found the seizure of Queen's truck was incident to a lawful search.

Queen's sole point of error is the trial court erred by not granting his motion for directed verdict based on his contention the search of his vehicle was not based on probable cause and violated his constitutional right to be free from unreasonable searches and seizures. In order for an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990); Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977). An objection stating one legal basis may not be used to support a different legal theory on appeal. Zillender, 557 S.W.2d at 517. A failure to object can even waive an error involving constitutional rights, and the rule that the error presented on appeal must be the same objection raised at trial applies with equal force to constitutional violations. Little v. State, 758 S.W.2d 551, 564-65 (Tex.Crim.App. 1988); Gauldin v. State, 683 S.W.2d 411, 413 (Tex.Crim.App. 1984), overruled on other grounds, State v. Guzman, 959 S.W.2d 631 (Tex.Crim.App. 1998); Russell v. State, 665 S.W.2d 771, 777-78 (Tex.Crim.App. 1983).

Queen's only objection to Powell's testimony concerning his field test of the substance found in Queen's truck was that the officer had not been qualified as an expert to so testify. When the substance itself was later offered into evidence, Queen's only objections were based on hearsay and failure to prove the chain of custody. He later objected to the procedures followed by the chemist. These objections were overruled, and Queen does not complain of these rulings on appeal. The only objection to the methamphetamine as the product of an illegal search came during Queen's motion for directed verdict. An objection lodged for the first time in a motion for directed verdict presents nothing for review. Stubblefield v. State, 477 S.W.2d 566, 568 (Tex.Crim.App. 1972). Having failed to object on this basis when the evidence was offered, no error is presented for appellate review. See $4,182.00 in United States Currency v. State, 944 S.W.2d 24, 27 (Tex. App.-Texarkana 1997, no writ).

Even if Queen's motion for directed verdict had been sufficient to preserve his claimed constitutional error, he waived any such error in another way. If a party proceeds to present evidence after that party has moved for a directed verdict, such party must reurge the motion for directed verdict at the close of the case, or any error in its denial is waived. In other words, a party who elects not to stand on its motion for an instructed verdict, and introduces its own evidence, waives its motion for directed verdict unless it reurges the motion at the close of the case. Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex. App.-Houston [1st Dist.] 1996, no writ); McMeens v. Pease, 878 S.W.2d 185, 190 (Tex. App.-Corpus Christi 1994, writ denied); Bryan v. Dockery, 788 S.W.2d 447, 449 (Tex. App.-Houston [1st Dist.] 1990, no writ). Queen moved for a directed verdict after Powell's testimony. After the trial court denied his motion, Queen called a witness to testify on his behalf, but he did not renew his motion for directed verdict at the close of the case. Any error in the denial of his motion for a directed verdict was therefore waived.

We affirm the judgment of the trial court.