In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00240-CR ______________________________
FRANCISCO MENDOZA BARRON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 34826-A
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Francisco Mendoza Barron's car was stopped by officers who saw it swerving on the road. While Barron was being questioned by the officers and being asked to perform various tests for intoxication, but before he was arrested, Barron asked twice for an attorney. The entire encounter was videotaped. In a single issue on appeal, (1) Barron contends the trial court erred in allowing the jury to hear the audio portions of the videotape where he requested counsel. Because the alleged error was not preserved for our review, we affirm the trial court's judgment.
The disputed videotape was made at the scene of the arrest from a camera inside the police car. This in-car camera recorded both the field-sobriety testing and the eventual arrest. It shows Barron refusing to perform certain field-sobriety tests. It also shows Barron resisting arrest and, after being secured inside the patrol car, kicking the in-car camera. At two different times, Barron mentioned an attorney. The first time, while doing the walk-and-turn tests, Barron asked if he could talk to his lawyer, and several minutes later, he unequivocally stated, "I want a lawyer." He had not been formally arrested at either time.
At the pretrial hearing on his motion to restrict the videotape, the parties described the contents of the videotape to the trial court. The State conceded that Barron "was attempting to invoke his right to counsel." The court granted Barron's motion to suppress in part, ruling that the audio portion of the videotape would be muted after the invocation of counsel.
On the morning of trial, after voir dire had been completed and the jury selected, the State asked the court to reconsider its earlier ruling. The parties again described the events on the videotape, focusing on the differences in the invocations of counsel. (2) The court ruled that the videotape would not be muted on the first mention of counsel, or during Barron's later unequivocal request for counsel. The court ruled that the audio would be muted immediately following the unequivocal request for counsel until Barron was placed inside the patrol car, at which point the audio would be restored.
Before a matter is preserved for our review, it must be presented to the trial court. Tex. R. App. P. 33.1. This matter was initially presented to the trial court in a pretrial hearing. It is well settled that, when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Brown v. State, 183 S.W.3d 728, 741 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd).
The problem with preservation of error, here, is that, when the videotape was introduced and then played to the jury, Barron's counsel affirmatively stated that he had no objection to its admission. When a defendant affirmatively asserts during trial he or she has "no objection" to the admission of the complained-of evidence, any error in the admission of the evidence is waived, despite any pretrial ruling. Moraguez, 701 S.W.2d at 904; accord Tex. Dep't of Transp. v. Pate, 170 S.W.3d 840, 850 (Tex. App.--Texarkana 2005, pet. denied); Sands v. State, 64 S.W.3d 488, 491 (Tex. App.--Texarkana 2001, no pet.).
Because the complained-of matter has not been preserved for our review, we overrule the sole contention of error.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 8, 2007
Date Decided: January 24, 2008
Do Not Publish
1. A jury convicted Barron of driving while intoxicated (DWI), third offense, a third-degree felony. See Tex. Penal Code Ann. § 49.04 (Vernon 2003), § 49.09(b) (Vernon Supp. 2007). The jury assessed punishment at five years' confinement and a fine of $3,000.00.
2. The State disputed that the earliest mention of counsel was an unequivocal request for counsel. See Davis v. United States, 512 U.S. 452, 459 (1994); Smith v. State, 779 S.W.2d 417, 425-26 (Tex. Crim. App. 1989). The State conceded that at least one of Barron's statements constituted an unequivocal request for counsel.