Rose, Alan Vantlan v. State

Affirmed and Majority and Concurring Opinions filed May 3, 2005 Affirmed and Majority and Concurring Opinions filed May 3, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00152-CR ____________ ALAN VANTLAN ROSE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 958,899 M A J O R I T Y   O P I N I O N Appellant, Alan Vantlan Rose, was charged by indictment with the felony offense of possession of a controlled substance. The trial court denied appellant=s motion to suppress the evidence and found appellant guilty. Appellant pleaded true to two enhancement paragraphs, and the trial court assessed punishment at five years= confinement and a $2,500 fine. In one point of error, appellant contends the trial court erred by failing to suppress evidence seized as a result of his illegal warrantless arrest. We affirm. BACKGROUND On August 19, 2003, Harris County Sheriff=s Deputy John Palermo was working a second job at the Maxicore building in Harris County. Due to the substantial amount of criminal activity in the surrounding parking lots, Deputy Palermo=s primary duties included patrolling the parking lot, approaching people who were sitting inside their vehicles, and requesting they go inside the building or leave the parking lot. During his patrol that day, Deputy Palermo noticed appellant sitting alone in his car. Palermo walked towards the car to ask appellant not to Ahang out@ on the property. As Palermo approached appellant=s vehicle, Palermo testified appellant opened his door and stepped out. Appellant=s wife, Sharerria Rose, in a position to see appellant in the vehicle, testified she saw Deputy Palermo approach the vehicle and take appellant out by his shirt. Thereafter, Palermo immediately smelled an Aoverwhelming@ odor of marijuana on appellant=s clothing and inside his vehicle. Palermo patted appellant down, handcuffed him, and searched his vehicle. Palermo=s search revealed a pack of cigarettes on the center console that contained four rocks of crack cocaine. STANDARD OF REVIEW In his sole appellate point of error, appellant contends the trial court erred when it denied his motion to suppress the cocaine seized as a result of his illegal warrantless arrest. Generally, a trial court=s ruling on a motion to suppress evidence is reviewed by an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is an abuse of discretion when the ruling is so clearly wrong as to be outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We afford almost total deference to a trial court=s determination of the historical facts the record supports, especially when the trial court=s fact findings are based upon an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We afford the same amount of deference to the trial court=s ruling on mixed questions of law and fact if the resolution of those questions turns on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856. However, we review de novo the trial court=s application of the law to the historical facts. Carmouche, 10 S.W.3d at 327. When the trial court does not make findings of fact, we review the evidence in the light most favorable to the trial court=s ruling. Id. at 327B28. DISCUSSION At trial, appellant argued the contraband should be suppressed because: (1) Deputy Palermo had no right to approach him in the parking lot since he was not loitering;[1] and (2) Palermo=s physical removal of appellant from his automobile was an illegal search, a contention based on the testimony of Mrs. Rose.[2] On appeal, however, appellant argues he was illegally arrested because the odor of marijuana alone did not provide sufficient probable cause for his warrantless arrest. Appellant also argues the search of his vehicle was in furtherance of his illegal arrest requiring suppression of the evidence recovered. These arguments, presented for the first time on appeal, are waived. The issues of probable cause to arrest and propriety of the search following the arrest were never raised in the trial court below, and appellant may not raise these issues for the first time on appeal as challenges to the trial court=s ruling on his motion to suppress the evidence. To preserve error, a defendant=s trial objection must comport with the issue raised on appeal. See Tex. R. App. P. 33.1(a); Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996); Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001 pet. ref=d). At the suppression hearing, the only issues raised were whether Deputy Palermo had a right to approach appellant=s vehicle and whether Palermo=s removal of appellant from that vehicle constituted an improper search. In this court, however, appellant presents two new bases for excluding the evidence recovered by Officer Palermo that are substantially different from those raised in the trial court. It is well settled that a Court of Appeals can affirm a trial court=s decision on a legal theory not presented to the trial court without violating ordinary notions of procedural default. Hailey v. State, 87 S.W.3d 118, 121 (Tex. Crim. App. 2002). However, it violates ordinary notions of procedural default for a Court of Appeals to reverse a trial court=s decision on a legal theory not presented to the trial court by the complaining party. Id. This rule is based on the notions that a trial court=s decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record. Id. Had appellant presented these new issues to the trial court during the suppression hearing, the court would have been able to apply the law to the issues, and the State would have had the opportunity to develop a complete record on the issue of whether Officer Palermo=s warrantless arrest of appellant was based on probable cause. Because those issues were not raised at trial, we will not violate ordinary notions of procedural default, nor vitiate the efforts of the trial court and the prosecution by ruling on issues that were never presented during the proceedings below. These issues are waived on appeal, and there is nothing for this court to review. Accordingly, we overrule appellant=s sole point of error that appellant=s arrest was illegal and evidence seized as a result of that arrest should have been suppressed pursuant to Texas Code of Criminal Procedure article 38.23. Because appellant=s issues have been overruled, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Majority and Concurring Opinions filed May 3, 2005. Panel consists of Justices Yates, Anderson, and Hudson. (Anderson, J., concurring.) Do Not Publish C Tex. R. App. P. 47.2(b). [1] Deputy Palermo did have a right to approach appellant=s vehicle in the parking lot whether he was loitering or not. See Stewart v. State, 603 S.W.2d 861, 862 (Tex. Crim. App. 1980) (finding officers did not seize appellant when they approached him on foot because his van was already stopped and appellant exited the van without being ordered to do so); Merideth v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. 1980) (holding an investigatory detention does not occur when an officer approaches a parked car in a public place). [2] Because the trial court did not make any findings of fact, viewing the evidence in the light most favorable to this ruling, we presume the trial court believed Deputy Palermo=s testimony that appellant exited the vehicle as Palermo approached. See Ross, 32 S.W.3d at 856; Carmouche, 10 S.W.3d at 327.