Penton v. State, 2016 Tex. App. LEXIS 2895

Background

Deputy Santos stopped a car after observing it enter an intersection as the light changed from yellow to red; appellant was a passenger.
Santos noticed appellant “squirming,” handcuffed and moved him to a patrol car, recovered two baggies of a crystal-like substance from the vehicle, and appellant then told officers the drugs were his.
Appellant was indicted for possession with intent to deliver methamphetamine (charged as first-degree based on weight) with two prior-felony enhancements; he pled not guilty but pleaded true to enhancements.
Appellant filed a motion to suppress his oral statements as products of an unlawful detention/arrest; the trial court denied suppression and the jury convicted him of the lesser-included offense of possession of methamphetamine (second-degree felony).
Appellant appealed arguing (1) the stop/detention/arrest lacked reasonable suspicion/probable cause and thus his statements should be suppressed, and (2) the judgment incorrectly recited conviction of a first-degree offense rather than the second-degree lesser-included offense.

Issues

Issue	Penton’s Argument	State’s/Respondent’s Argument	Held
Whether appellant preserved complaint that the traffic stop/detention/arrest lacked reasonable suspicion/probable cause, so his post-stop statements should be suppressed	The stop was unlawful because entering on yellow that turns red before passing is not a violation; arrest/detention lacked probable cause, so statements are fruit of illegal detention/arrest	Motion to suppress was too general in trial court; appellant failed to present the specific legal grounds now raised on appeal, so issue not preserved	Not preserved — appellate court overruled suppression issue for lack of preservation
Whether the trial-court judgment mischaracterized the convicted offense (first-degree POSSESSION WITH INTENT vs. convicted lesser-included second-degree POSSESSION)	Judgment should be reformed to reflect conviction for second-degree possession (what jury actually found)	State concedes the judgment erred and agrees modification is appropriate	Sustained — judgment modified to reflect second-degree felony possession of methamphetamine

Key Cases Cited

Pabst v. State, 466 S.W.3d 902 (Tex. App.—Houston [14th Dist.] 2015) (preservation requirements for appellate review)
Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002) (appellate complaint must comport with trial objection)
Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995) (constitutional errors may be waived by failure to timely complain)
Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) (cannot reverse on legal theory not timely presented)
Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009) (complaining party must convey particular complaint and rationale to trial court)
Vasquez v. State, 483 S.W.3d 550 (Tex. Crim. App. 2016) (clarity required to preserve error; general objections insufficient unless basis obvious from record)
French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992) (appellate courts may reform judgments to correct clerical errors)
Musgrove v. State, 425 S.W.3d 601 (Tex. App.—Houston [14th Dist.] 2014) (modifying judgment to reflect correct offense level)
Collins v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007) (statutory classification for methamphetamine-weight offenses)
Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005) (written motion specificity and preservation)
Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) (must argue matters raised in written motion at hearing)
Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) (defendant not guaranteed error-free representation)
State v. Rendon, 477 S.W.3d 805 (Tex. Crim. App. 2015) (post-Swain preservation principles)
State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2015) (preservation and specificity of suppression motions)