In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-01078-CR
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VINCENT CRAIG CAULEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 879594
O P I N I O NA jury found appellant, Vincent Craig Cauley, guilty of possession of a controlled substance, namely cocaine, weighing more than 4 grams and less than 200 grams, enhanced with two prior felony convictions, and assessed punishment at 25 years’ confinement. In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress evidence. We affirm.
Background
Officer R. C. Price received a burglary in progress call from the Houston Police Department dispatcher. When he arrived at the scene, Officer Price saw that a window had been broken out of apartment 213. Rafeal Valdespino, a man who had been doing repairs in apartment 209, saw Officer Price and directed him to apartment 209. Officer Price walked into apartment 209 where another man had been shampooing the carpet. This man pointed toward the back of the apartment. Officer Price went to the back of the apartment and saw appellant lying on the concrete in the patio area. Appellant’s shirt was unbuttoned, he was rolling around and waving, his right fist was bloody, and he had minor scrapes. Officer Price determined that appellant needed medical treatment and called for an ambulance.
Officer R.R. Ruth arrived at the scene and saw appellant sitting on the concrete floor of the patio. Appellant appeared disoriented and was mumbling incoherently.
Before appellant was loaded into the ambulance, Officer Price patted him down and checked his pockets for weapons and contraband. Officer Price testified that he considered appellant under arrest at this point. Officer Price saw a plastic baggie hanging out of appellant’s pocket and pulled it out. It contained a white powdery substance.
Later tests revealed that the contents of the baggie contained 75.9 percent pure cocaine and weighed 17.5 grams.Analysis
In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress evidence. To preserve error for appeal, appellant was required to make a timely, specific objection at the earliest possible opportunity. Goldberg v. State, 95 S.W.3d 345, 368 (Tex. App.—Houston [1st Dist.] 2002, no pet.)(citing Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995)). Failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. Saldano v. State, 70 S.W.3d 873, 899 (Tex. Crim. App. 2002). This is true even though the error may concern a constitutional right of the defendant. Id.
Officer Ruth testified, without objection, that he saw Officer Price pull a baggie filled with a white substance out of appellant’s pocket. He also testified, without objection, that he took the baggie from Officer Price, that he conducted a field test on the substance, and that the test revealed that the substance was cocaine. He then handed the baggie back to Officer Price. Valdespino also testified, without objection, that he saw the officer take a “little plastic bag, white, from his [appellant’s] pants.”
Later, during Officer Price’s testimony, defense counsel stated that he wanted to make a motion to suppress evidence and requested the opportunity to question Officer Price on voir dire outside the presence of the jury. The trial court refused to dismiss the jury because the jury had already heard several witnesses testify that Officer Price had pulled a baggie containing a white substance out of appellant’s pocket. However, the trial court ruled that defense counsel could develop the evidence showing that the search was illegal. Defense counsel stated that he would develop the evidence on cross-examination.
Officer Price then testified, without objection, that he saw a plastic baggie hanging out of appellant’s left pocket; that he pulled the baggie out of the pocket and that the baggie contained a white powdery substance. Officer Price gave the baggie to Officer Ruth, who in turn conducted a field test on the substance. After cross-examining Officer Price, defense counsel made an oral motion to suppress evidence alleging that the search of appellant’s pocket was illegal. The court denied the motion.
Appellant did not file a pretrial motion to suppress the cocaine or otherwise challenge the search that yielded it, before trial commenced. Consequently, in order to preserve error, it was incumbent upon appellant to object before the court received substantial testimony about the cocaine. Stults v. State, 23 S.W.3d 198, 206 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Defense counsel did not object to the admission of evidence about the cocaine until after Officer Ruth and another witness had made repeated references to the cocaine, giving substantial testimony about it. By failing to object in a timely fashion, appellant failed to preserve error on this point. Id.
Conclusion
We affirm the judgment of the trial court.
Adele Hedges
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).