Gary Donell Sanders v. State
2012 Tex. App. LEXIS 10087
Tex. App.2012Background
- Gary Donell Sanders was convicted of harassment of a public servant for spitting on Officer Guthrie in the back seat of a patrol car.
- Guthrie testified to smelling alcohol, observing slurred speech, red eyes, and Sanders’ possession of beer and drug paraphernalia.
- Saliva from Sanders was destroyed by Guthrie after the incident, before collection or independent testing.
- Sanders moved to suppress the evidence, but the trial court did not rule on the motion before or during trial and Sanders did not timely preserve error.
- The jury heard videotape of the arrest and Guthrie’s testimony about the spitting incident, leading to Sanders’ conviction.
- Sanders challenged multiple trial rulings, including the denial of a mistrial and the failure to instruct on illegally obtained evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the suppression error preserved? | Sanders: suppression motion untimely; ruling post-admission preserved error. | State: no timely preservation; motion deferred not preserved. | Error not preserved; point overruled. |
| Did destruction of saliva justify mistrial or 38.23 instruction? | Sanders: destruction tainted evidence; requires mistrial and 38.23 instruction. | Guthrie destroyed saliva for safety; no illegal evidence; no instruction required. | No abuse; Article 38.23 not triggered; no mistrial required. |
| Was Sanders entitled to a lesser included offense instruction (assault)? | Sanders: assault lesser included; conduct supports it. | State: harassment requires four additional elements; no basis for lesser offense. | No entitlement; no lesser charge instructed. |
| Did the change of foreman during punishment phase require mistrial? | Sanders: presiding juror change prejudicial; mistrial warranted. | State: no prejudice; proper safeguards administered; no mistrial needed. | Not prejudicial; mistrial not warranted. |
| Was the evidence legally obtained and suppression properly denied? | Sanders: suppression should have been granted. | State: evidence obtained legally; suppression denied properly. | Evidence legally obtained; denial affirmed. |
Key Cases Cited
- Black v. State, 362 S.W.3d 626 (Tex. Crim. App. 2012) (motion to suppress is a procedural objection to admissibility)
- Garza v. State, 126 S.W.3d 79 (Tex. Crim. App. 2004) (timeliness of suppression rulings; pretrial strategy)
- Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (abuse of discretion standard for mistrial finding)
- Shelton v. State, 441 S.W.2d 536 (Tex. Crim. App. 1969) (foreman selection and verdict integrity during bifurcated trials)
- Duke v. State, 365 S.W.3d 722 (Tex. Crim. App. 2012) (abuse of discretion; zone of reasonable disagreement)