Gamero v. State

BRIAN ANTHONY GAMERO, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-15-00280-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

July 19, 2017

Appeal from the Criminal District Court No. 1 of El Paso County, Texas

(TC# 20140D02777)

OPINION

Appellant Brian Anthony Gamero appeals his convictions of intoxication manslaughter, intoxication assault, and unlawful possession of a controlled substance arising from a car collision involving Appellant and two other drivers. In three issues, Appellant contends the trial court erred when making evidentiary rulings during both the guilt and punishment phase of his criminal trial. We affirm.

I. BACKGROUND

On April 19, 2014, Police Officer Dominic Chacon was driving southbound on Zaragoza street in El Paso when he observed a fight in a bowling alley parking lot. After making a U-turn, he witnessed a vehicle collision happen in front of him, which he described as causing a loud, chaotic, and traumatic sound, almost like an explosion. The collision was captured on his dashcam unit. Chacon described that when he was driving northbound, his attention was drawn to flashing lights coming from oncoming or southbound traffic. He saw a vehicle dark in color, later identified as a PT Cruiser, traveling at a high rate of speed, that "clipped" a second vehicle, silver in color. The contact forced the silver vehicle into the opposite lane of traffic causing a gray pickup truck to collide into it. The PT Cruiser also spun from the contact and crossed over several lanes before coming to rest in front of Chacon's police unit. Chacon immediately called for assistance and subsequently checked on persons involved. Appellant was the driver of the PT Cruiser and he was not significantly injured. Chacon next found Crystal Saldaña unconscious behind the wheel of her silver Mazda. Officer Jacob Kiesel soon arrived to assist and he found Crystal unresponsive, with shallow breathing and a very faint pulse. When Kiesel realized that she was no longer breathing, he and others pulled her from her vehicle and administered CPR. Crystal died soon thereafter. The driver of the pickup truck survived, but he suffered serious injuries.

An ambulance transported Appellant to a local hospital where another officer conducted standardized field sobriety tests. The officer observed that Appellant had bloodshot eyes, an emanating odor of alcohol, slurred speech, and dilated pupils. After Appellant refused to voluntarily provide a blood sample, the officer obtained a warrant and a sample of blood was taken. The testing showed the blood-alcohol concentration exceeded the legal limit, as well as the presence of other substances including THC, the active drug in marihuana, Xanax, cocaine, butalbital, a sedative-hypnotic barbiturate, and codeine.

Back at the scene, Officer Kiesel continued to investigate and approached the PT Cruiser's already-open passenger door with two other officers. Shining his flashlight inside the vehicle, Officer Kiesel noticed a small, clear baggie containing a white, powdery substance which hebelieved, from his experience and training, to be cocaine. Eventually, officers arranged for transport of Appellant's PT Cruiser to a fenced-in, police impound lot, not open to the public, and used to hold vehicles for further investigations. Officer Gabriel Corral was later asked to run his canine partner "Kim" by Appellant's car. As Corral ran Kim by Appellant's vehicle, Kim alerted to the driver's side door. Proceeding to inspect the area that drew Kim's attention, Corral found a magnetic key holder attached to the frame underneath the vehicle. Inside, he found small plastic bags containing a white, powdery substance and another bag containing a green substance. Corral then called Detective Octavio Pasillas to inform him of the findings. The officers arranged for Appellant's PT Cruiser to be moved into a bay area where Pasillas secured the narcotics.

In a five-count indictment, Appellant was charged with: intoxication manslaughter; intoxication assault; unlawful possession with intent to deliver a controlled substance, to wit, cocaine, one to four grams; manslaughter; and, aggravated assault. Among the evidence presented during the guilt phase of the trial, the State offered photographs of the deceased victim taken at the time of the autopsy, which were admitted over Appellant's objections. The jury returned a guilty verdict against Appellant for intoxication manslaughter, intoxication assault, and unlawful possession of a controlled substance, cocaine.

During the punishment phase of the trial, the State called Officer Shawn Cowie to testify regarding a prior arrest of Appellant on January 31, 2013, for the offenses of driving while intoxicated and possession of a controlled substance, cocaine. Following deliberations, the jury assessed the maximum fine and the following punishment for each charge: twenty years' confinement for intoxication manslaughter, ten years' confinement for intoxication assault, and ten years' confinement for possession of a controlled substance, cocaine, one to four grams, with all confinement to be served at the Texas Department of Criminal Justice. The trial court sentencedAppellant in accordance with the jury's assessment.

II. DISCUSSION

Appellant Gamero raises three issues in this appeal. First, Appellant contends that the trial court erred in denying his motion to suppress the evidence obtained at the police impound lot. Second, he contends the court erred when it admitted autopsy photographs of the deceased victim during the guilt portion of the trial. Lastly, he contends the court erred in denying his motion to suppress evidence of his prior arrest for driving while intoxicated and possession of a controlled substance.

A. Suppression of Narcotics found in Stored Vehicle

In his first issue, Appellant contends that investigating officers violated his Fourth Amendment rights in conducting a search of his vehicle while it was stored at the police impound lot.¹ Appellant contends that prior to the warrantless search, the officers at the lot did not have probable cause to conduct a lawful search, nor were there any exigent circumstances then present. In response, the State argues that Appellant waived error, if any, by giving "no-objection" responses when both the photographs depicting the narcotics and a lab report of the testing were offered into evidence during the trial. The State also argues, on the merits of the warrantless search, that the officers had probable cause, based on collective knowledge acquired at the scene of the collision and afterward at the impound lot.

1. Preservation of Error

"Preservation of error is a systemic requirement on appeal." Ford v. State, 305 S.W.3d 530, 532 (Tex.Crim.App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App. 2005)). Reviewing courts should not address the merits of an issue if the issue is not preserved.Id. at 532-33. To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. Priester v. State, 478 S.W.3d 826, 840 (Tex.App.--El Paso 2015, no pet.) (citing TEX.R.APP.P. 33.1(a)(1)). A "defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Id. (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996)). If, after the trial court has made a preliminary ruling on the objection, the objecting party later affirmatively states that it has no objection to the admission of the evidence, he may waive his previously preserved error. Thomas v. State, 408 S.W.3d 877, 885-86 (Tex.Crim.App. 2013); Estrada v. State, 313 S.W.3d 274, 302 (Tex.Crim.App. 2010). To assess whether a waiver of previously preserved error has occurred, we first determine whether "the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his 'no objection' statement to constitute an abandonment of a claim of error that he had earlier preserved for appeal[.]" Thomas, 408 S.W.3d at 885. If it remains ambiguous as to whether waiver was intended after reviewing the entire record, we should resolve the ambiguity in favor of a finding of waiver. Id.; Stairhime v. State, 463 S.W.3d 902, 906 (Tex.Crim.App. 2015).

The record in the present case shows that Appellant initially objected to the warrantless search of his vehicle at the impound lot and moved to suppress the narcotics recovered from the magnetic key holder found attached to the frame underneath the vehicle. The trial court overruled Appellant's objection and denied his motion to suppress. Thereafter, the State moved to admit other, similar evidence including photographs of the narcotics and a lab report of results. When the State thereafter offered into evidence the narcotics themselves, Appellant stood by his previous objections.

In reviewing the record, the State correctly points out that during Officer Corral's testimony, the State moved to admit a photo of the magnetic key holder with the small bags of narcotics. After some discussion over Appellant's relevance objection, Appellant stated that he had no other objection. Then later, Appellant stated that he had no objection to the lab report connected to the narcotics found in the magnetic key holder.

The State fails to recognize, however, that Appellant asserted an objection to the lab report and alternatively offered the report with his redactions. More importantly, the State fails to acknowledge a later discussion in which Appellant objected to the cocaine the State offered into evidence stating, "We have objected prior to this and we object again." This later discussion evinces Appellant's continued opposition to the admission of the narcotics offered by the State. Thus, we find that Ap...