Trung the Luu v. State
440 S.W.3d 123
Tex. App.2013Background
- In Sept. 2011 police conducted a knock-and-talk at an address PostNet had for Trung Luu (a house owned by his father, Hong Luu) after suspecting Trung of package-related activity. Trung was not present.
- Officers testified Hong consented (oral and written) to a search, they searched most of the house except a locked bedroom Hong said belonged to Trung, and a drug dog alerted at Trung’s bedroom door.
- Officers obtained a warrant (female officer left to get it), drilled out the lock with a drill Hong provided, and found hydroponic marijuana, cocaine residue, scales, and paraphernalia in Trung’s bedroom.
- Hong testified differently: he said police were already inside when he returned, he didn’t recall being asked to consent, he was asked later to sign forms, and he asked police not to break Trung’s door (but gave a drill when asked).
- Trung moved pretrial to suppress but the court did not hold a pretrial hearing; during trial much search evidence was admitted with inconsistent and sometimes no objections; the court denied the suppression motion after trial and the jury convicted.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Luu) | Held |
|---|---|---|---|
| 1) Validity of search: probable cause & Hong's consent | Officers had consent from Hong and canine alert plus later warrant supported search of bedroom | Hong did not voluntarily consent; no probable cause to search house or locked bedroom | Overruled — error not preserved; evidence admitted without timely objection and suppression ruling came too late |
| 2) Preservation of suppression claim | N/A (procedural) | Trial judge failed to hold pretrial hearing but State’s witnesses were allowed to testify without timely objection | Court: Defendant failed to make timely, specific objections or obtain running objection; thus issues waived |
| 3) Judicial bias/assistance to prosecutor | Judge’s comments were within trial management and sometimes favored defendant | Judge (a former prosecutor) improperly assisted State and was biased, denying fair trial | Overruled — record shows no judicial impropriety or such degree of antagonism/favoritism to make fair judgment impossible |
| 4) Officer qualification to identify hydroponic marijuana | Officers had sufficient familiarity to identify hydroponic marijuana by odor/appearance | Officers were not qualified to opine hydroponic classification | Overruled — defendant failed to preserve objection; many identifications were admitted without timely objection and no adverse ruling was secured |
Key Cases Cited
- Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995) (timely, specific objection required to preserve complaint)
- Ross v. State, 678 S.W.2d 491 (Tex. Crim. App. 1984) (no pretrial hearing means objections must be made when evidence is offered)
- Garza v. State, 126 S.W.3d 79 (Tex. Crim. App. 2004) (pretrial suppression hearing preserves error without further objection)
- Valle v. State, 109 S.W.3d 500 (Tex. Crim. App. 2003) (must object each time inadmissible evidence offered or obtain running objection)
- Sanders v. State, 387 S.W.3d 680 (Tex. App.—Texarkana 2012) (ruling on suppression after contested testimony may be untimely and does not preserve error)
- Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006) (standard for judicial impartiality/due process)
- Dockstader v. State, 233 S.W.3d 98 (Tex. App.—Houston [14th Dist.] 2007) (judge must not act as an advocate; bias requires high degree of favoritism/antagonism)