FORD v. STATE (2009)

OPINION

This case concerns a pre-trial suppression hearing in which the trial court relied upon an unsworn police offense report in ruling that the deputy had probable cause to arrest appellant. After the trial court denied his motion to suppress, appellant pled guilty to possession of marihuana. The court of appeals reversed, concluding that the trial court erred in considering the unsworn report; therefore, the State failed to produce any evidence at the suppression hearing to support appellant's arrest.¹ The State claims that (1) the court of appeals overturned the trial court's ruling based on an argument appellant did not make in the trial court; and (2) the trial court may base its pre-trial suppression ruling on an unsworn police report.² Although we hold that appellant preserved this issue for appeal, we agree with the State's second contention that, in a pre-trial motion to suppress hearing, a trial court may rely upon any relevant, reliable, and credible information, even though it may be unsworn hearsay. Therefore, we reverse the judgment of the court of appeals.

I.

Appellant filed a pre-trial motion to suppress evidence concerning his arrest, alleging that Deputy Halcomb searched his truck without a warrant or probable cause. Appellant testified at the hearing for the limited purpose of showing that his arrest was made without a warrant. The prosecutor did not cross-examine appellant, and he offered no live testimony. Instead, the prosecutor offered only Deputy Halcomb's unsigned, undated, and unsworn police report and gave a verbal summary of its contents to support his position that the officer had probable cause to search appellant's truck. Appellant objected to the admission of the report (1) as a violation of the hearsay rule; (2) because there was no sponsoring witness; and (3) as a violation of his right to confrontation under the Sixth Amendment. The prosecutor responded that hearsay is admissible in a suppression hearing; a suppression hearing deals only with preliminary issues; and the confrontation right attaches only at trial.³ The trial judge overruled appellant's objections and admitted the report into evidence. Based upon the information in that report, he denied appellant's motion to suppress. The trial judge made findings of fact and conclusions of law, the most important of which reads,

That the report submitted by Deputy Halcomb and entered into evidence is credible, and the Court accepts as true the submission of his offense report regarding his observations of the defendant and his conversations with the defendant.4

Following the denial of his motion to suppress, appellant pled guilty to possession of less than two ounces of marihuana. The trial judge deferred the adjudication of his guilt and placed him on community supervision for twelve months.

On appeal, appellant argued that the trial judge erred in denying his motion to suppress because the arrest report was inadmissible. The court of appeals agreed, holding that in a suppression hearing, Texas Code of Criminal Procedure article 28.01, § 1(6), permits the trial court to determine the merits of a motion based on the motion itself, upon competing affidavits, or upon live testimony.⁵ The court of appeals concluded that only those three specific methods are permissible:

In this case, the State failed to accompany its proffered documentary evidence with either some form of affidavit or live, sponsoring witness testimony. It is not enough for the State to ignore the requirements of Article 28.01(6), and merely read a police report to the trial court and then tender it-unsigned, undated, and unverified-as was done here.6

Because the arrest report was the only evidence the State offered to establish probable cause to search appellant's truck, the court of appeals concluded that there was no basis for the trial court to deny Appellant's motion to suppress.⁷

II.

First, we address the State's contention that the court of appeals erred by addressing an issue that was neither preserved in the trial court nor raised on appeal. Preservation of error is a systemic requirement on appeal.⁸ If an issue has not been preserved for appeal, neither the court of appeals nor this Court should address the merits of that issue.⁹ Ordinarily, a court of appeals should review preservation of error on its own motion,¹⁰ but if it does not do so expressly, this Court can and should do so when confronted with a preservation question.¹¹

To properly preserve an issue concerning the admission of evidence for appeal, “a party's objection must inform the trial court why or on what basis the otherwise admissible evidence should be excluded.”¹² However, a party need not spout “magic words” or recite a specific statute to make a valid objection. References to a rule, statute, or specific case help to clarify an objection that might otherwise be obscure, but an objection is not defective merely because it does not cite a rule, statute, or specific case.¹³ As this Court stated in Lankston v. State,¹⁴

Straightforward communication in plain English will always suffice․ [A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.15

The objection must merely be sufficiently clear to provide the trial judge and opposing counsel an opportunity to address and, if necessary, correct the purported error.¹⁶ In making this determination, Lankston states that an appellate court should consider the context in which the complaint was made and the parties' understanding of the complaint at the time.¹⁷

The State contends that appellant's objections to the admission of the arrest report at the suppression hearing were to “hearsay, confrontation and the lack of a sponsoring witness.” The State further claims that these are not the arguments on which the court of appeals based its specific holding-the “unpreserved issue that the document was inadmissible because it was unsworn.” The State points out that there are many examples of sworn statements that are hearsay or are not proffered by a competent witness;¹⁸ thus, appellant's objections would have been equally applicable had the report been supported by an affidavit.

Appellant, on the other hand, argues that his objections were specific enough to put the trial judge on notice as to the nature of the complaint. He focuses on the last sentence of his objection: “[T]here's no basis for putting that document into evidence or having any evidence that's not proffered by a competent witness.” Appellant argues that the term “competent witness,” although not identical to “oral testimony” by a live, sponsoring witness as provided in art. 28.01, § 1(6), put the trial judge on notice of his specific objection.

The exchange between appellant's counsel, the prosecutor, and the judge was as follows:

State: We do have Deputy Halcomb's Offense Report showing the reason for the stop.

Appellant: Judge, I would object to it as hearsay. I object to it under Sixth Amendment Confrontation Clause. I object to any evidence.

State: As to the objection-

Judge: You're objecting to State's Exhibit 1 [the offense report]?

Appellant: My objection to any hearsay testimony from the Prosecutor. I object under Crawford. I'll object under the Sixth Amendment of the Constitution of the United States. I'll object under the Texas Constitution as to my right to confront and cross-examine witnesses against my client. Object that there's no basis for putting that document into evidence or having any evidence that's not proffered by a competent witness.

Within this context, the question is whether the trial judge and prosecutor understood that appellant was objecting to resolving the motion to suppress based on hearsay information contained in an offense report made by a non-testifying officer. We think that they did. Under the Lankston test, the plain meaning of appellant's objection is clear: he was objecting to the police report as hearsay, but also to the fact that it was unaccompanied by any “competent” sponsoring witness testimony or affidavit. Although appellant did not specifically cite art. 28.01, § 1(6), it is clear that he was objecting to the trial judge relying on Deputy Halcomb's report because that officer was neither present to testify to the truth of its contents nor had he previously sworn to its truth by affidavit.

The prosecutor obviously understood appellant's objection because she responded appropriately: Hearsay is admissible in a pre-trial suppression hearing; the Confrontation Clause does not apply to a pre-trial suppression hearing; and a suppression hearing deals only with preliminary issues of the admissibility of evidence, not sworn, cross-examined testimony. The trial judge, in admitting the offense report, verbally agreed that the suppression hearing was simply to determine the admissibility of evidence at a later trial. Under these particular circumstances, we conclude that both the trial judge and the prosecutor understood the legal and factual basis for appellant's objection. We overrule the State's first ground for review and conclude that the court of appeals properly addressed the merits of appellant's claim.

III.

We turn now to the State's second ground for review: May a trial judge base his pre-trial suppression ruling on the contents of an unsworn police report? In an appropriate situation, he may.

A hearing on a pre-trial motion to suppress is a specific application of Rule 104(a) of the Texas Rules of Evidence.¹⁹ This rule, based on longstanding common-law principles, explicitly states that a trial judge is not bound by the rules of evidence in resolving questions of admissibility of evidence, regardless of whether those questions are determined in a pre-trial hearing or at some time during trial.²⁰ Both common law principles and Rule 104 provide the trial judge with an important “gatekeeping” role.²¹ They ensure that all evidence admitted at trial is relevant, reliable, and admissible under the pertinent legal principles.²² Although the present case does not deal with expert or scientific evidence, the underlying goal of Rule 104(a) is the same in a motion to suppress evidence: The trial judge makes a legal ruling to admit or exclude evidence based upon the relevance and reliability of the factual information submitted by the parties.²³ The question in this case, then, is whether the trial judge used sufficiently reliable information, in the form of the unsworn offense report, when he ruled upon the merits of appellant's motion to suppress.

The court of appeals's holding turned on its reading of art. 28.01, § 1(6), of the Texas Rules of Criminal Procedure. That rule reads as follows:

(6) Motions to suppress evidence-When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court.

In Hicks v. State,²⁴ we reiterated our “plain language” approach to statutory analysis:

In Boykin v. State [818 S.W.2d 782 (Tex.Crim.App.1991) ], we held that “ ‘[w]here the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.’ ” Therefore, when interpreting a statute, “we ordinarily give effect to that plain meaning.” But we have acknowledged an exception to this rule: “where application of a statute's plain language would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally.” “If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous,” then it is appropriate to seek the aid of extratextual factors to develop a reasonable interpretation of a statute.25

Thus, we must look first to the specific words in art. 28.01 to determine its meaning. The statutory rule states that a motion to suppress “may” be resolved by considering different possible means of acquiring information. The rule does not state that the motion “shall be” or “must be” resolved by these specific means.²⁶ There is no suggestion in the plain language of the rule that this is an exclusive list.²⁷ Instead, the statutory language supports the notion that a motion to suppress is an informal hearing in which the trial judge, in his discretion, may use different types of information, conveyed in different ways, to resolve the contested factual or legal issues.²⁸ The State argues that the structure and language of the statute points to the conclusion that the legislature intended to give the trial court latitude to hold a “non-traditional, informal hearing that need not necessarily include witnesses, testimony, or even formal evidence.”²⁹

Appellant argues that the plain language of the statute lends itself to the narrow construction used by the court of appeals. He cautions that a permissive reading of the statute will render it without any real effect and asks us to conclude that the legislature intended the statute to establish a mandatory, not discretionary, procedure for conducting suppression hearings.

Because the legislature carefully used the term “may” throughout art. 28.01 when it intended discretionary acts and procedures and used the terms “must” or “shall” when it intended mandatory acts or procedure,³⁰ we conclude that the legislature intended to establish a discretionary and informal procedure for the trial court to conduct suppression hearings under art. 28.01, § 1(6). The legislature suggested, but did not require, several different methods to determine the merits of a motion to suppress, including information and facts set out in the motion itself, affidavits, or oral testimony. In sum, under the Boykin “plain language” analysis, we conclude that art. 28.01 means what it says when it uses the permissive term “may”: A trial judge may use his discretion in deciding what type of information he considers appropriate and reliable in making his pre-trial ruling.³¹ We conclude that the trial judge did not abuse his discretion in relying upon an unsworn hearsay document.³² Deputy Halcomb's offense report could have been, but was not required to be, accompanied by an affidavit stating that “this is a true and accurate copy of my offense report.”

Finally, we must determine whether the trial court abused his discretion by relying upon this particular unsworn hearsay document. If the source and content of the hearsay document were unreliable, then the trial court did not adequately perform his “gatekeeper” function. In this case, we conclude that Officer Halcomb's offense report contains sufficient indicia of reliability to serve as the factual basis for the trial court's ruling. The offense report includes appellant's name, correct offense date, and specific information that coincides with the same basic information to which appellant testified at the hearing.³³ Furthermore, it is a criminal offense to file a false police report.³⁴ Although the trial judge was clearly not required to believe the information contained within Deputy Halcomb's report, the document itself is a government record and of a type that a trial judge may consider reliable in a motion to suppress hearing,³⁵ even though it is hearsay and is not admissible at a criminal trial on the merits.³⁶

In United States v. Matlock, the Supreme Court held that in a suppression hearing “the judge should receive the evidence and give it such weight as his judgment and experience counsel.”³⁷ And if there is nothing in the record to “raise serious doubts about the truthfulness of the statements themselves,” then there is “no apparent reason for the judge to distrust the evidence.”³⁸ Several federal cases have also held that a trial court may rely upon unsworn documentary evidence in a motion to suppress hearing.³⁹

Art. 28.01, § 1(6), comports with Matlock. The trial court may conduct the hearing based on motions, affidavits or testimony, but there is nothing in the statute to indicate that it must. It is merely an indication that such hearings are informal and need not be full-blown adversary hearings conducted in accord with the rules of evidence.

Significantly, appellant did not argue that Deputy Halcomb's offense report was, in any way, unauthentic, inaccurate, unreliable, or lacking in credibility. Appellant did not contest the accuracy of the facts within that offense report; he argued only that the report could not be considered without the shepherding wings of a sponsoring witness or affidavit. Had appellant complained about the reliability, accuracy, or sufficiency of the information supporting the trial judge's ultimate ruling on the motion to suppress, this would be a very different case.⁴⁰ The prosecutor was perfectly willing to sponsor Deputy Halcomb's testimony if he arrived in time for the hearing, but the trial judge, hearing no complaint about the accuracy of the report, did not wait. He was prepared to rule on the motion based on the deputy's offense report. Although it is better practice to produce the witness or attach the documentary evidence to an affidavit, art. 28.01, § 1(6), did not create a “best evidence” rule that mandates such a procedure in a motion to suppress hearing. Thus, we cannot say that the trial judge abused his discretion in considering and relying upon Deputy Halcomb's offense report, which he found, in the absence of any objection to its specific contents, to be credible and reliable.⁴¹

The Court of Appeals was mistaken in concluding that art. 28.01, § 1(6), mandates that all information considered by a trial judge must be accompanied by affidavit or testimony. Accordingly, we reverse the judgment of the court of appeals and affirm the trial court's judgment.

Stare decisis compels me to join the majority opinion in this cause. It does not compel me to be particularly sanguine about it.

First, I agree that the court of appeals should have addressed the question of procedural default before reversing the appellant's conviction on the merits. Under these circumstances, I usually prefer to remand a cause to the court of appeals to address that systemic issue in the first instance rather than to address it ourselves on discretionary review in the absence of a lower court ruling. But there is precedent for our doing so for the first time on discretionary review,¹ and doing so in this case allows us to address the more important issue for which we granted review. I therefore join the Court in reaching the preservation issue and concluding that error, if any, was preserved.

I also agree that precedent compels us to conclude that the trial court did not err to rely on the unsworn, unsponsored offense report in this cause. This conclusion flows from the fact that certain provisions of our Texas Rules of Evidence mimic the Federal Rules of Evidence in making questions of the admissibility of evidence the trial court's prerogative to decide, unconstrained by the rules of evidence themselves;² and Texas case law has mimicked federal precedent in construing these provisions to apply to hearings to resolve pretrial motions to suppress evidence.³ While I doubt the abiding wisdom of this regime, I do not doubt the Court's conclusion that it is, in fact, the current state of the law.

It has not always been so. The now-defunct Texas Rules of Criminal Evidence contained provisions, not carried over into our current Texas Rules of Evidence, that expressly applied the Rules in the context of pretrial suppression hearings.⁴ The drafters of the Texas Rules of Criminal Evidence found good reason why they should apply with full force in the context of pretrial suppression hearings in criminal cases. Because motions to suppress an illegally obtained confession or to suppress evidence that is the product of some other illegality that calls into play our state exclusionary rule are “subject to redetermination by the jury, it is logical to require that the [pretrial] judicial determination be based solely upon admissible evidence.”⁵ It does indeed seem somewhat anomalous that current law should permit a trial court to make a pretrial determination with respect to the admissibility of evidence, unconstrained by the formal rules of evidence, while at the same time permitting the jury subsequently to revisit-and perhaps to reverse-that determination at trial, as authorized by Article 38.22, Section 6, or Article 38.23, but subject to the constraints of the formal rules.⁶ In those cases in which the trial court's pretrial ruling on the motion to suppress does not effectively dispose of the case by a guilty plea, and the defendant proceeds to a jury trial, presumably we would want both entities, judge and jury, to have made their respective suppression decisions based upon comparable evidence. Under the current regime, that may not always happen.

There are other reasons to regret the current regime. For example, I do not understand the utility of dispensing with all of the Rules of Evidence for purposes of pretrial motions to suppress. Judge Meyers capably illustrated the potential drawbacks of this baby-with-the-bathwater approach in his dissenting opinion in Granados.⁷ Why could the rulemakers not have fashioned Rule 104(a) in such a way that it excludes only operation of Article VIII (the hearsay provisions),⁸ and, perhaps Rules 403 and 404,⁹ from judicial determinations of the admissibility of evidence-at least in the context of pretrial motions to suppress? Why should the formal rules governing relevance and authenticity, for instance, not apply in this context? It troubles me to say that the rules of evidence make the admissibility of evidence in a pretrial suppression hearing discretionary with the trial court under such an amorphous and unfettered standard as simple “reliability” when so many of the rules of evidence (such as the rules meant to ensure authenticity) are themselves manifestly intended to codify the system's best estimate, hammered out over many decades of decisional law and critical commentary, of how an adjudicatory process can achieve that very thing.

Professors Dix and Dawson, to whose treatise the Court alludes at several points, have also questioned the advisability of our holding in Granados, noting that

hearings on motions to suppress evidence are different than other hearings to determine questions of fact preliminary to admissibility of evidence, in a way that makes application of rules [of evidence] appropriate. Issues regarding the legality of manner in which evidence is obtained are generally more complicated and require more extensive exploration-as a general matter-that [sic] issues presented by other evidentiary questions.

The issues at traditional hearings on motions to suppress implicate matters important for reasons other than their relationship to the truth-determining function of trials. Most obviously, of course, the issues are closely related to the goal of limiting law enforcement conduct. The need to assure fair and accurate resolution of the numerous difficult issues related to this collateral goal argues in favor of applying the rules of evidence.10

Such reservations aside, however, I agree that, after Granados's undoubtedly accurate construction of the Texas Rules of Evidence (whether they represent good policy or not), “there is now nothing to prevent a trial court from deciding the merits of a suppression motion by relying exclusively on an unsworn police report[.]”¹¹ And if, as here, the appellant does not question the accuracy or reliability of the content of that report, and it establishes probable cause,¹² it may prove determinative of the motion to suppress. Because I do not question the correctness of the Court's construction, but only the wisdom of the rules themselves in this regard, I am constrained to join the opinion of the Court.

Appellant's sole issue on his appeal to the court of appeals read as follows:

The Trial Court erred in denying the Motion to Suppress as there was no evidence or insufficient evidence offered by the State of Texas to support the warrantless search of Appellant's vehicle; such alleged evidence being the inadmissible arrest report.

It seems apparent from Appellant's pleadings that his issue embodied the traditional request to courts of appeals when they review the correctness of a suppression hearing: Is the record sufficient to affirm the trial judge's ruling? Whitehead v. State, 130 S.W.3d 866, 872 (Tex.Crim.App.2004). Simply put, it is really only a sufficiency review. Unfortunately for the Appellant, the Rules of Evidence do not apply, and consequently, the Fannin County Police Department's report was admissible. Tex.R. Evid. 104(a).

Therefore, I agree with the majority that a trial judge may base a ruling at a suppression hearing on an unsworn arrest report; the court of appeals's conclusion that the arrest report was improperly admitted is incorrect.¹ Ford v. State, 268 S.W.3d 620, 625 (Tex.App.-Texarkana 2008). However, instead of returning this case to the court of appeals, the majority performs their own sufficiency review, finding the arrest report adequate to raise probable cause for the search. I, however, would remand this case to the court of appeals to determine whether the arrest report, viewed in the light most favorable to the trial court's ruling, supports the trial court's findings of fact.² Keehn v. State, 279 S.W.3d 330, 334 (Tex.Crim.App.2009). In previous cases, when faced with similar suppression-hearing issues, we have allowed courts of appeals the opportunity to remedy flawed analyses by remanding for further proceedings consistent with our holdings. See Montanez v. State, 195 S.W.3d 101 (Tex.Crim.App.2006); Wright v. State, 7 S.W.3d 148 (Tex.Crim.App.1999). If the court of appeals were able to evaluate the evidence presented at the suppression hearing, I believe it would decide that the arrest report does not support the trial court's findings of fact.

Following the hearing on Appellant's motion to suppress, the trial court found “[t]hat Deputy Halcomb's observation of the three open beer cans constituted probable cause to search all areas of defendant's vehicle where an open container of alcohol could be stored under the automobile exception to the warrant requirement.”³ The automobile exception to the Fourth Amendment's warrant requirement allows law enforcement officials to conduct a warrantless search of a vehicle if (1) it is readily mobile and (2) there is probable cause to believe that it contains contraband.⁴ Keehn, 279 S.W.3d at 335. The latter element of the automobile exception is the problem here.

Deputy Halcomb did not have probable cause to believe that Appellant's vehicle contained contraband; rather, he knew with certainty that Appellant's vehicle contained evidence of the open container violation. It is clear from Deputy Halcomb's arrest report that he knew Appellant had violated Texas open container law before commencing the search. Deputy Halcomb was unavailable to testify at the suppression hearing, but his arrest report stated that he stopped Appellant's vehicle for towing a trailer without operational running lights. From outside the vehicle, he saw three opened beer cans in the passenger compartment. At that point, Deputy Halcomb informed Appellant “that the open beer cans were a violation of Texas open container law.” Tex. Penal Code Ann. § 49.031 (Vernon 2003). After that, the deputy searched for “additional alcohol.”

Upon seeing the three opened beer cans, the deputy knew that Appellant had violated Texas Penal Code Section 49.031. Id. And, importantly, there was no need to commence a search for “additional alcohol” because possession of one or more open containers in a single criminal episode is a single offense.⁵ Id. Under Section 49.031, Deputy Halcomb should have issued a written citation and notice to appear; and, if Appellant signed the citation and notice to appear, Appellant should have been released.⁶ Id.

Finally, and most importantly, the majority concludes that the arrest report “contains sufficient indicia of reliability to serve as the factual basis for the trial court's ruling,” but I don't know what this means. Apparently, the majority has done their own sufficiency analysis of all the evidence in relation to the trial court's findings.⁷ But as I previously pointed out, the officer's report fails to bring forth facts setting out reasonable suspicion or probable cause to conduct a search of Appellant's truck. This should be the issue for the court of appeals to resolve on remand.

In conclusion, while I agree with the majority that the trial court was permitted to consider the arrest report, I feel that the court of appeals should now be given the opportunity to review the arrest report and decide whether it supports the trial court's findings of fact.⁸ Therefore, I respectfully dissent.⁹ Because there was no applicable exception authorizing a warrantless search of Appellant's vehicle, I believe the resulting conclusion would be that the trial judge erred in denying the motion to suppress.

COCHRAN, J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON and HOLCOMB, JJ., joined.

KELLER, P.J., KEASLER and HERVEY, JJ., concurred in the result. PRICE, J., filed a concurring opinion in which JOHNSON, J., joined. MEYERS, J., filed a dissenting opinion.