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Luckenbach v. State

Court of Appeals of Texas, Fourteenth District

February 22, 2018

LANCE MITCHELL LUCKENBACH, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the County Criminal Court at Law No. 10 Harris County, Texas Trial Court Cause No. 1935781

          ORDER

          PER CURIAM.

         Appellant Lance Mitchell Luckenbach has filed a motion for en banc reconsideration of this court's opinion. The court denies appellant's motion for en banc reconsideration.

         CONCURRING OPINION ON DENIAL OF EN BANC RECONSIDERATION

          Kem Thompson Frost Chief Justice.

         Appellant Lance Mitchell Luckenbach asks the court to grant en banc reconsideration and to reverse his driving-while-intoxicated conviction on a ground he did not raise in the trial court or before the panel that decided the appeal. Because appellant failed to preserve error on the only ground raised in his rehearing motion, [1]this case does not satisfy the exacting standard for en banc review, and the en banc court properly denies appellant's motion.

         The Unpreserved Complaint

         Appellant urges the en banc court to reverse his driving-while-intoxicated conviction on the ground that the trial court erred in determining that the magistrate who issued the search warrant had a substantial basis for finding probable cause that appellant operated the motor vehicle that went the wrong way down a one-way street. This court cannot reverse the conviction unless appellant preserved error in the trial court as to this ground.[2]

         The preservation-of-error doctrine, as expressed in Texas Rule of Appellate Procedure 33.1, encompasses the concept of "party responsibility, " meaning appellant had the duty of "clearly conveying" to the trial judge a complaint that the search-warrant affidavit did not give the magistrate a substantial basis for finding probable cause that appellant operated the motor vehicle that traveled the wrong way on a one-way street just after midnight on November 1, 2013 (the "Operator Complaint"). [3] Under Court of Criminal Appeals precedent, discharging this duty meant communicating to the trial court the Operator Complaint, including the precise and proper application of the law and the underlying rationale, by a timely request, motion, or objection stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of it, unless the specific grounds were apparent from the context.[4] And, to preserve error, appellant had to get an adverse ruling on the Operator Complaint.[5]

         The Court of Criminal Appeals points to two purposes, both rooted in fairness and efficiency, for requiring a timely, specific complaint: (1) to inform the judge of the basis of the objection and so afford the judge an opportunity to rule on it, and (2) to give the opposing side a chance to respond to the complaint.[6] A general or imprecise complaint will not preserve error for appeal unless it is clear from the record that the legal basis for the complaint was obvious to the court and opposing counsel.[7] A complaint that, in isolation, could be read to express more than one legal argument generally will not preserve all potentially relevant arguments for appeal; only when clear contextual clues show that the party, in fact, was making a particular argument will that argument be preserved.[8] In assessing preservation, appellate courts focus on clarity, timing, and specificity.

         Error preservation does not require a hyper-technical or formalistic use of words or phrases; plain English suffices.[9] To avoid forfeiting a complaint on appeal, the party must "let the trial judge know what he wants, why he thinks he is entitled to it, and [] do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it."[10] In deciding preservation, this court does not consider arguments in isolation; rather, the court looks at the context and the parties' shared understanding at that time.[11] What a party says about what the party is presenting is often the best evidence of the party's complaint.

         Assessing Preservation of Error for the Operator Complaint

         The context shows that appellant failed to communicate the Operator Complaint to the trial court, so the law deems the alleged error forfeited, and this court may not reverse appellant's conviction based on the Operator Complaint.[12]

         What Appellant Told the Trial Court

         A person commits the offense of driving while intoxicated "if the person is intoxicated while operating a motor vehicle in a public place."[13] Appellant filed a written motion to suppress the evidence gathered as a result of the blood draw. In the motion appellant effectively complained that the search-warrant affidavit was conclusory and did not set forth sufficient facts to give the magistrate a substantial basis for finding probable cause that appellant was intoxicated. Appellant argued that information within the four corners of the affidavit did not support the affiant's conclusion that appellant was intoxicated based on alcohol consumption. In the motion, appellant asserted that, although the affiant said he based his conclusions on appellant's actions, "the only 'action' that the affiant mentions about [appellant] is the fact that he was observed traveling the wrong way on a one-way street." According to appellant, "beyond this infraction, no other details are provided as to this violation such as whether the direction of travel for that road was clearly marked, whether the street was well lit, for how long [appellant] was traveling in that direction, or at what speed." Thus, in his motion to suppress, appellant told the court that the affidavit mentions appellant's action in traveling the wrong way on a one-way street, and appellant characterizes this action as both an "infraction" and a "violation." Being a passenger in a motor vehicle that is going the wrong way on a one-way street is not an infraction or a violation. But operating a motor vehicle going the wrong way on a one-way street is both an infraction and a violation of the law, which is the reason Officer Mitchell initiated a traffic stop of this vehicle and made contact with appellant.

         In his written motion, appellant conveyed to the trial court that the affiant stated appellant was seen operating a motor vehicle traveling the wrong way on a one-way street. Notably absent from appellant's motion is any mention of the Operator Complaint:

• Appellant did not assert that the affiant failed to set forth sufficient facts establishing probable cause that appellant was operating the motor vehicle.
• Appellant did not argue that the magistrate could not reasonably have inferred from the affiant's statements that appellant was driving the vehicle.
• Appellant did not convey to the trial judge any complaint that the affidavit did not give the magistrate a substantial basis for finding probable cause that appellant operated the motor vehicle Officer Mitchell stopped for going the wrong way on a one-way street.[14]

         Appellant did not expand his argument at the suppression hearing but instead continued to limit the scope of his motion to probable cause of intoxication. Appellant ...


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