### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00350- CR

Jam es Bell IV, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 655 83, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found J ames Be ll I V g uilty of possession with intent to deliver coca ine in an amount of four g rams or more but less than 200 g rams. See Tex. Hea lth & Safety Code Ann. § 481.112 (West 2010). After Be ll pleade d true to alleg ations of prior convictions, the district court sentenc ed him to forty y ear s’ imprisonment and a $2,000 fine. Be ll appea ls, ask i n g t h i s Court to

reve rse his conviction and rema nd for a new trial beca

use, he asser

ts, the admissio n o f el even exhibi ts, statements made by Be ll while in custody , and testimony of Be ll’s roommate amounted to “funda mental er ror or plain err or.” We will aff irm the district court’s judg ment.

BACK GR OUND The underlying f

acts of this ca se ar e not disputed on appe al. Off icer s Mitchell and Br adley of the Killeen Police Depa rtment wer e dispatche d to an apa rtment complex to i nvestig ate the smell of marijuana repor ted to be coming from one of the apar tments, a partment D. When theoffice rs knocke d on the door, ther e wa s no answe r, but they could s mell marijuana

. As they wer e about t o leave the complex , Be ll arr ived i n a Ford Ex plorer and went to apar tment D wit h key s in his hand. The office rs approa ched Be ll and asked him for identification. Be ll responde d that h is identification was in the Ex plorer, so he went to retrie ve it, but returne d empty handed and said that he must have left it in the apar tment. Be ll then unlocked the door to the ap ar t m ent, and Mitchell positioned himself so that he could see into apar tment to make sure that no one else was inside. As Be ll enter ed the apar

tment, Mitchell and Br adley could smell fre shly burned and raw marijuana

. Mitchell was also able to see l o o s e marijuana sitti ng on a red tray on the coff ee table in the apar tment. As appellant came back to shut the door, the officers entered t h e ap ar tment and aga in asked Be l l fo r i d entifica tion. Be ll responde d that it was actua lly g oing to be in the Ex plorer in a g ree n “Cricke t” bagbehind the drive r’s seat. Mitchell asked if he could retrie ve the identification for B ell, and B ell replied, “ Yea h, g o ahea d,” and g ave Mitche ll the key s to the Ex plorer. Mitchell went to the Ex plorer an d l o oked for the Cricket bag

. He found the bag behind the driver seat, as Be ll said it would be. On top of the Cricket bag there wer e “two bag g ies,”

one of which contained sever al smaller bag s of coca ine and one of which contained cra ck coca ine. Mitchell looked in the bag and found a nother ba g g ie of c ocaine and a car d with Be ll’s name on it. He then broug ht the Cricket bag to Be ll and asked whether this was the bag he was taking about and whether this bag belong ed to him. Be ll said y es. Mitchell informed Be ll that he had found coca ine and asked Be ll if Be ll had any thing else on him. Be ll said he had marijuana in his pocket. Mitchell

rec overe d the marijuana

and plac ed B ell under a

rre st. The officer s planned to seat Be ll on the couch in the a partment, but they

wanted to

sear ch it first “for office r safe ty and [Bell’s] safe ty .” Under the couch cushion, Br adley found a
2loaded Hi-Point 9mm handg un, Be ll’s wallet with identification in it, and a black Adidas bag , which

was open and had another bag g ie of coca ine sticking out of it. The office rs also clea red the coff

ee table in front of the couch, which co ntained the red tray with loose marijuana and a digital scale

. Then they allowed B ell to sit down. At some poi n t , Be l l volunteere d that the apartment did not actua lly belong to him; he was stay ing there , but the lease was in the name of his g irlfriend, My na J ean Trevino, who worke d

near by

. Be ll said he had just dropped her off at work. Be ll g ave Mitchell Trevino’ s phone number, and Mitchell called her to ask whether Be ll belong ed in the apar tment. She confirme d that Be ll was stay ing with her. She then came back to the apar tment at Mitchell’s reque st. When she arr ived, she told the office rs that ever

y thing they found in the apar tment belong ed to her. Howeve r, she later said that she was unawa

re of the coca ine, and that she was try ing to “take the fall” fo r the marijuana , which was hers. The office rs explained that they wer e g oing to s ea rch the rest of the apar tment. Trevino initially did not consent to a sear ch, so the office rs called a detec tive, who instructed them to “fr eeze the scene ” until they could obtain a sear ch war rant. During that phone conver sation, Trevino chang ed her mind and signe d a form consenting to the sear ch. She also asked to have a drink from

a particula

r cup that was on a coff

ee table, and when the office r handed her the cup, he found a bag g ie of cra ck coca ine underne ath it. Whil e sear ching the apar tment, the office rs also found cra ck

coca ine hidden in a c andle holder

.

All of the evidenc e collecte d was admitted at trial without objection. I n fac t, Be ll’s 1 trial counsel made only one objection during the trial, during the State’s closing argument, when he

Be ll also does not appea r to have filed a motion to suppress. 1 3objected to the S tate’s ex planat i o n “[ i ] f y ou find that he possessed [t he drugs] either joint ly or by

himself, the man is g uilty of the offe nse.” Be ll’s attorney objected on the g rounds that “it’s require d to prove that he intended to possess and with the intent to deliver .” This obje ction was ove rruled.

Be ll’s attorney called one witness—Trevino—in Be ll’s defe nse. Trevino tes t i fi ed that the coca ine belong ed to Be ll and she had no knowledg e of it prior to Be ll’s arr est. I n response to questioning by Be ll’s attorney , Trevino testified that she was upset that, as a result of the incident with Be ll, she was in jail for a month befor e making bail. Be ll’s attorney then asked “How long was Mr. Be ll in? ” Trevino responde d, “Thirty minutes.” Counsel followed up with the question, “You

s e e m u p s e t a t th a t?” T r e v in o e la

b o r a te d th a t s h e w a s “ li v in g [h e r ] li f

e n o r ma ll y ” e xc e p t f o r o c c a s io n a l marijuana use, and that she was upset that Be ll did not help her make even a fourth of her bond afte r she let him stay with her, so she “had to borrow money from ever y wher e,” while he was able to come up with whateve r money was nece ssary to make his bond in thirty minutes. On cross examination, the State asked “Do y ou know what siz e bond Mr. Be ll was able to make within 30 minutes of being

arr ested? ” And Trevino responded, “$50,000 bond.” I n the State’s fina l arg ument, the prosec utor emphasized this testim ony :

y o u c a n c o n s id e r h o w q

u ic k ly th e d e f

e n d a n t ma d e b o n d

. Y o u h e a

r d f r o m M is s T r e v in o that the defe ndant made a $50,000 bond in 30 minutes. He’ s living at someone else’s house, driving someone e lse’s ca r, but y et he’ s making a $50,000 bond. Where do y ou think he’s g etting that money ? You ca n consider that.

I n rea lity , Be ll had made bail within thirty minutes of when it was set, but he had actua lly spent two day s in jail befor e bail was set. Thus, Trevino’ s testimony sug g esting that Be ll wa s only in jail for thirty minutes was fa lse.
4After being convic ted by the jury , Be ll was sentenc ed by the district court to forty

y ear s’ imprisonment and a $2000 fine. Be ll appea ls, asser ting in four issues that (1) the district court

err ed in admitting ten of the State’s ex h i b i t s b ec ause they “ar e the products of the illega l sear ch of Appellant’s apar

tment”; (2) the district court err ed in admi t t i n g a m anil a envelope that “is

cover ed with stickers which contain inadmissible hear say ”; (3) the district court “er red in admitting Appellant’s oral cu s t o d i al statements” when “ther e was no evidenc e of Miranda war nings and Article 38. 2 2 s af

eguards”; and (4) “the State knowing ly used false or misleading evidenc e that

2 Ap p el l ant had posted a $50,000 bond 30 minutes afte r his arr est.” Appellant acknow ledg es t h at Be ll’s motion for new trial “ra ised no g rounds other than the interests of justice” and “[t] here wer e 3

no objections to admission of highly incriminatory evidenc e.” But he asser ts that the evidenc e was 4 “g ather ed in clea

r vio l at i o n of the Constit utions of the United States and Texas as well as Texas statutory law.” H e ther efor e urg es that “Te x as should either adopt the f eder al plain er

ror standa rd

See Miranda v. Arizona , 384 U.S. 436 (1966); Tex. Code Crim. Proc. Ann. art. 38.22 (West 2 2005). We note that althoug h the motion for new tr ial argued only for a new trial in the i ntere st

3 of justice, Be ll’s aff

idavit in support of h i s m o tion for new trial states, without elabor ation, “No sear ch war

rant.” This statement in his aff idavit is insufficient to prese rve the issue for appea l. See Krause v. State , 243 S.W .3d 95, 105 (Tex. App.—Houston [1 s t Di s t .] 2007, pet. ref ’d) (holding motion to sup p re s s m u s t be timely and sufficie ntly specific to inform trial court of complaint); Benne tt v. State , 82 S.W .3d 397, 399 (Tex. App.—Austin 2002, no pet.) (holding no err or prese rved wher e appellant did not move to suppress or otherwise object to evidenc e alleg edly seized as result of unlawful sear ch); Reha v. State , No. 14-95-01349- CR, 1997 Tex. App. L EXI S 5114, at *3, *10 (Tex. App.—Houston [14t h Dist.] Sept. 25, 1997, pet. ref ’d) (not desig nated for publication) (citing Massey v. State , 933 S.W .2d 141, 148 (Tex. Crim. App. 1996)) (holding motion to suppress that did not identify evidenc e seized pursuant to the defe ndant’s arr est failed to lodge a specific objection as re quired a

nd thus failed to pre serve claim for r eview)

. Reg arding the eleve n exhibi ts that are the subject of Be ll’s first two issues, Be ll’s counsel 4 stated at trial that he had “no obje ction” to those exhibit s as they wer e admitted. 5or app l y t he Marcus test or a simil ar formulation in apply ing the fundame ntal err or provision of Rule 103(d).” See Fe d. R. Crim. P. 52(b) (“A plai n er ro r that aff ects substantial rig hts may be considere d even though it was not broug ht to the court’ s at t ention”); Tex

. R. Evid.103(d) (stating
courts may “take no t i ce o f fundame ntal err ors aff ecting substantial rig hts althoug h they wer e not broug ht to the attention of the court” ); United States v. Marcus , 560 U.S. ___, ___, 130 S. Ct. 2159 (2 0 1 0 ). Under this test, Be ll contends, forf eited err or (i.e., err or for which no objection has been made) should be reviewa ble for plain err or, whil e waived error (i.e., a party ’s relinquis hment of a known rig ht) would be unrevie wable. Be ll urg es that adopting such a standard “would not only see that justice is done but pr event wr its of habea s corpus ba sed on ineff ective a ssistance of c ounsel.” The State responds that “ther e is no rea son to consider the adoption of the fede ral rule and the ab andonment of long standing prec edent” that alre ady addre sses fundame ntal err or in T ex as an d that Be ll’s arg uments fail eve n under f eder al rule 52 a

nd Marcus

.
DISCUSSIO N We are bound by Texas law in deter minin g whether Be ll is entitled to the relief he seeks. To prese rve err or for appellate revie w, the complaining party must have made an objection, motion, or reque st stating “the g rounds for the ruling that the complaining party soug ht from the trial court with sufficie nt specific ity to make the trial court aware of t he complaint, unles s t h e specific g rounds wer e appar ent from the context.” Tex. R. App. P. 33.1(a) (1)( A); Clark v. State , 365 S.W .3d 3 3 3 ,

_ _ _ , N o . PD

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t * 1 2 ( T e x. Cr im

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. “The point of error on appea l must comport with the objection made at trial.” Clark , 365 S.W .3d at___, 2012 Tex. Crim. App. L EXI S 649, at *12. There fore , if a party fails t o p ro perly object to
6err ors—eve n constitutional err ors—at trial, these err ors can be forf eited. Id. ; Briggs v. State , 789 S.W .2d 918, 924 (Tex. Crim. App. 1990). A revie wing court should not addre ss the merits of forf eited err ors on appea l. W ilson v. State , 311 S.W .3d 452, 473-74 (Tex. Cr i m . App. 2010); Peav ey v. State , 248 S.W .3d 455, 470 (Tex. App.—Austin 2008, pet. ref ’d). Howeve r, “an appellate
court may , in rar e case s, ‘take notic e o f fundame ntal err ors aff ecting substantial rig hts althoug h they we re n o t broug ht to the attention of the trial court.’” Boler v. State , 177 S.W .3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref ’d) (quoting Tex. R. Evid. 103(d)) ; see Marin v. State , 851 S.W .2d 275, 279 (Tex. Crim. App. 1993).

Be ll prese nts n o ar gu m ent or authority sug g esting that his conviction should be

reve rsed based on fu n d am ental err or under rule of evidenc e 103(d); he instead relies exclusively

on th e four- part plain-er

ror test that repr esents the U.S. Supreme Court’s interpre tation of fede ral rule 52(b). No Texas co u rt h as adopted fede ral rule 52’s plain-er ror standard, and we decline to 5 d o s o here

. See Solis v. State , No. 14-06-00502- CR, 2007 Tex. App. L EXI S 2858, at *4-6 (Tex

.

I n United States v. Marc us , the Court wrote: 5 Rule 52(b) permits an appellate court to rec og nize a “plai n er ro r t hat aff ects substantial rig hts,” even if the claim of err or was “not broug ht” to the district court’s “ attention.” L ower courts, of c ourse, must apply the Rule as this Court has interpre ted i t. And t he cases that set forth our interpre tat i o n h o l d that an appellate co u rt may , in its discretion, corr ect an err or not raised at trial only wher e the appellant demonstrates that (1) there is an “er ror” ; (2) the err or is “cle ar or obvious, rathe r than s u b

j ect to rea sonable dispute”; (3) the err or “af fec ted the appellant’ s substantial rig hts, which in the ordinary case means” it “af fec ted the outcome of the district court proce eding s ” ; and (4) “the err or seriously aff ect[s] the fairne ss, integ rity or public re putation of judicial proce eding s.” 560 U.S. ___, ___, 130 S. C t. 2159, 2164 (2010) (c itations omi tted). 7App.—Houston [14th Dis t.] Apr. 12, 2007, no pet.) (mem. op.) (dec lining to apply fede ral rule 52
to consider unprese rved err or beca use “the fede ral rules of proce dure apply in federa l co u rt s, not state courts”) ; Flores v. State , No

. 1 3 -9 9 -5 6 1 -CR, 2001 Tex. App. L EXI S 1091, at * 4 (Tex. App.—Corpus Christi Fe b. 15, 2001, no pet.) (not desig nated for publication) (dec lining to revie w conviction under plain-er ror test and stating “[t] he Fe dera l Rules of Criminal Procedur e are applicable to f

eder al trials, not sta te trials”). As such, Be ll ha s not show n that he is e x cepte d from the g ener al err or-pr eser

vation require ment. See Boler , 177 S.W .3d at 373. Fu rther, beca use the

rec ord shows, and Bell has a ck n owledg ed, he made no objection, m otion, or request complaining of t he admissi on of t he evidence and arg uments about which he now complains on appea l, he has failed to prese rve err or for any of the issues he raises on appea l. See Tex. R

. Ap p . P. 33.1(a) ; Saldano v. State , 70 S.W .3d 873, 886-89 (Tex. Crim. App. 2002) (discussing err or prese rv at ion and waivable and forf

eitable rig hts); Peav ey , 248 S.W .3d at 470; see also Resende z v. S tate , 306 S.W .3d 308, 315-17 (Tex. Crim. App. 2009) (holding appellant did not prese rve his article 38.22 argument for appea l wher e he did not make sufficie n t l y specific objection in trial court); Marin , 851 S.W .2d at 278 (stating that trial judge has no duty to exclude hear say absent objection of party and using rule ag ainst hear say as example of rule that can be forf eited); Smith v. State , 721 S.W .2d 844, 855 (Tex. Crim. App. 1986) (whe re rec ord did not ref lect whether appellant was g iven Miranda

war nings, cou rt held err or was not prese rved for revie w beca use appellant did not object at trial); Hajjar v. State , 176 S.W .3d 554, 566 (Tex. App.—Houst o n [ 1 s t Dist.] 2004, pet. ref ’d) (holding that by failing to object to p ro s ec u t o rial misconduct at trial, “appe llant has prese rved nothing for

o u r re v i ew ”); Benne tt v. State , 82 S.W .3d 397, 399 (Tex. App.—Austin 2002, no pet.) (holding

8that “[n] o err or is prese rved” where ap pellant did not move to suppress or otherwise object to

evidenc e alleg edly seized as result of unlawful sear ch). Consequently , there is no basis for reve rsing Be ll’s conviction.

CONCLUSION

We affir m the district court’s judg ment.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: Jul y

25, 2012 Do Not Publish

9