Cassandra Sue Benge v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-383 CR ____________________ CASSANDRA SUE BENGE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 03-10-07875-CR MEMORANDUM OPINION Appellant Cassandra Sue Benge was indicted for possession of a controlled substance (methamphetamine) in the amount of four hundred grams or more, including adulterants and/or dilutants. Benge filed three motions to suppress. Benge's first motion to suppress asserted "she was arrested without a valid warrant and/or probable cause and exigent circumstances in violation of her rights as guaranteed by U.S. Const. amend. IV, & XIV, and Tex. Const. Art. 1 sec. 9." Benge's second motion sought suppression of her confession, as well as her oral and written statements, which Benge contended were illegally obtained. Benge's third motion sought suppression of a videotape Benge contended was seized during an illegal search. After conducting a hearing on all three motions to suppress, the trial court denied the first two motions and granted the third. Benge then pled guilty. The trial court assessed punishment at ten years of confinement, probated for ten years, placement in a substance abuse facility, and a fine of five hundred dollars. Benge filed this appeal from the denial of the motions to suppress. In this appeal, Benge asserts that because she answered the door and spoke with Detective Cash, Sergeant Millhouse, another officer on the scene, "had no lawful justification" to be at the side of her house, and the evidence obtained when Sergeant Millhouse subsequently called Detective Cash to the same spot is the "fruit of the poisonous tree." Appellant says it was only from a place where he had no right to be that Millhouse was able to make the observations which were used to get Detective Cash to the same spot and trigger the ensuing searches and seizures. This argument focuses on where Millhouse was when he made his first observations, and differs from the arguments she made to the trial court. At the hearing on Benge's motions to suppress, Benge's counsel argued the informant whose tip led the authorities to Benge's home was unreliable; the search and field test of a jar inside Benge's garage was illegal; the authorities lacked probable cause to arrest Benge without a warrant; all statements obtained from Benge's arrest were fruit of the poisonous tree; the officers should have used the least intrusive method to see whether exigent circumstances existed; the evidentiary warrant was not signed by a magistrate or judge who is a licensed attorney; the "non-drug" exhibits, including a videotape, should not have been admitted because they were improperly seized; the officers' presence in Benge's garage without a warrant was an unreasonable search and seizure; and exigent circumstances did not exist once Benge and other suspects had been removed from the house. The State argues that Benge waived any argument about the legality of Sgt. Millhouse's initial location because that issue "would turn on specific factual information about the layout of the home, garage, and driveway on the property. The State further argues that "because Appellant neither raised the issue in her motions to suppress nor objected to the absence of pertinent findings and conclusions by the court, she denied the court an opportunity to rule on the matter." We agree. The grounds of objection raised on appeal must comport with the objections made before the trial court. See Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996); Elliot v. State, 56 S.W.3d 780, 781 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd); Tex. R. App. P. 33.1(a)(1)(A). In Elliot, the court explained as follows: Under our adversary system, it is incumbent upon litigants to frame the issues for the trial court and to do so at a time and in a manner that will give the trial court an opportunity to respond to the complaint and, if possible, cure any error. Reversing for error not brought to the trial court's attention, in effect, permits the party challenging the trial court's ruling to second-guess his own trial strategy and tactical decisions after they do not produce the desired result. Moreover, there is an inherent incongruity in reversing a trial court based on an "error" when it was never given an opportunity to make a "correct" decision. Elliot, 56 S.W.3d at 783. A trial court cannot be said to have erred in denying a motion on a basis not presented to it. See Keeter v. State, No. PD-1012-03, 2005 Tex. Crim. App. LEXIS 521, at *9 (Tex. Crim. App. April 6, 2005). Benge did not argue before the trial court, as she does on appeal, that Sergeant Millhouse lacked "lawful justification" to be at that side of her house, and that this alleged illegality tainted Detective Cash's investigation and the evidence later recovered. Benge's issue on appeal does not comport with her motions to suppress and her arguments below. See Bell, 938 S.W.2d at 54; Elliot, 56 S.W.3d at 781; Tex. R. App. P. 33.1(a)(1)(A). Because the issue was not preserved for review, Benge's sole issue is overruled. The judgment of the trial court is affirmed. AFFIRMED. _________________________________ DAVID GAULTNEY Justice Submitted on August 29, 2005 Opinion Delivered October 19, 2005 Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.