NO. 07-03-0014-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 5, 2003
___________________________
BERNABE G. VALDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137 T H DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-400129; HONORABLE CECIL PURYEAR, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, a jury convicted appellant Bernabe G. Valdez of the
offense of burglary of a habitation with intent to commit theft, and the court, finding the five
enhancement paragraphs included in the indictment to be true, sentenced him to 75 years
confinement. Presenting two points of error, appellant requests we reverse his conviction and
remand the case for a new trial. By his first point, appellant contends the trial court erred in
failing to grant his “request to suppress evidence obtained in violation of the proper scope of
an investigative detention.” W ith his second point appellant alleges “the trial court erred in
failing to contemporaneously provide a limiting instruction to the jury regarding the proper use
of [his] prior convictions which were admitted into evidence.” Based upon the rationale set
out below, we affirm.
On the evening of May 30, 2002, the complainant heard a knock at his front door, and,
upon opening it, observed appellant, who explained his car had broken down and asked if he
could have some water from the outside faucet. The complainant consented, directed
appellant to the hose, and returned to his house. A few minutes later, appellant knocked on
the door and asked if he could obtain more water from the hose. Sometime later, appellant
knocked on the door a third time and requested to use the complainant’s phone because his
car still would not start. The complainant retrieved a cordless phone from his house and
handed it to appellant, who purportedly called a relative to pick him up. Appellant made one
more phone call, then asked if he could have a cup to procure more water from the hose.
The complainant left appellant standing on the porch and walked to the kitchen to retrieve a
cup. As he was removing the cup from the cabinet, the complainant heard the screen door
shut. He turned around and discovered that appellant had disappeared, along with the
cordless phone and the complainant’s wallet, which had been sitting on the coffee table.
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On June 6, 2002, Kirk Hawkins, an officer with the Lubbock Police Department, made
contact with appellant on an unrelated matter. When Hawkins requested some form of
identification from him, appellant presented a birth certificate. For officer safety, Hawkins then
conducted a pat-down search of appellant and discovered the complainant’s driver’s license
in appellant’s back pocket. After running the license through the law enforcement database,
Hawkins learned the complainant had been the victim of a burglary a week earlier. Because
appellant matched the description of the burglary suspect provided by the complainant,
Hawkins contacted the complainant and requested he review a photo spread. After viewing
the photo spread for “just a couple of seconds,” the complainant identified appellant as the
man who had been at his home the week before.
At trial, appellant admitted he acquired water from the complainant’s faucet and used
his phone to place a call; however, he denied removing the phone and wallet from the
complainant’s house. Rather, he claimed he came across the complainant’s driver’s license
in a friend’s motel room. Recognizing the person depicted on the license as the individual
who had helped him a few days before, appellant maintained he took the license with the
intent to return it to the complainant. He asserted, however, that he could not remember
where the complainant lived, and the address listed on the license was in San Antonio. Thus,
according to appellant, he had been unsuccessful in returning the license to its owner.
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W ith his first point of error, appellant challenges the trial court’s denial of his motion
to suppress the complainant’s driver’s license, which he contends was obtained in violation
of the edicts of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant
did not file a written pretrial motion to suppress evidence. However, in a hearing outside the
presence of the jury before the State began its case, the court entertained the testimony of
Hawkins regarding his investigative detention of appellant on June 6, 2002. Following the
testimony, appellant urged the court to suppress any testimony or evidence relating to the
complainant’s driver’s license. Appellant argued that Hawkins exceeded the scope of the
investigative detention, a Terry stop, when he removed the driver’s license from appellant’s
back pocket. As a result, appellant continued, any subsequent evidence, including
statements by appellant, should be suppressed as fruit of the poisonous tree. The trial court
denied his motion to suppress the driver’s license, but granted it “as to the manner in which
the driver’s license was obtained.” Appellant then requested, and the trial court granted him,
a running objection to any line of questioning regarding the driver’s license. At trial, however,
when the State offered the complainant’s driver’s license into evidence, appellant announced,
“We have no objection, Your Honor.” The license was then admitted into evidence.
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.Cr.App. 1986). However, if
at trial the defendant states he has “no objection” when the evidence is offered, he waives
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his admissibility complaint. W elch v. State, 993 S.W .2d 690, 694 (Tex.App.–San Antonio
1999, no pet.); but cf. Taylor v. State, 82 S.W.3d 134, 137 (Tex.App.–San Antonio 2002, no
pet.) (stating “no further objections” impliedly references the pretrial motion to suppress and,
thus, does not waive error). Here, in spite of the running objections he requested and
received at the pretrial hearing, appellant expressly announced he had no objection to the
admission of the driver’s license when it was offered by the State at trial. As a result, he has
presented nothing for our review. Appellant’s first point of error is overruled.
By his second point, appellant claims the trial court failed to instruct the jury,
simultaneous to the admission of the prior convictions, on the limited purpose for which the
convictions were admitted. W e disagree. Outside the presence of the jury, appellant
objected to the admis sion of the prior convictions on the basis of remoteness. Appellant
requested, in the alternative, that the jury be provided with a contemporaneous limiting
instruction when the convictions were admitted. The court overruled both objections. When
the State attempted to impeach appellant, in the jury’s presence, with evidence of his prior
convictions for five felonies and one misdemeanor theft, appellant again objected to their
admission and, alternatively, requested a contemporaneous limiting instruction. The court
overruled the objection and announced it would deliver that instruction in the court’s charge
instead. The court then told the jury:
W ith regard to the request for a contemporaneous instruction to the jury, the
jury will be instructed in the Charge by the Court that these matters are being
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used for the purpose of impeachment only of the – and for the determination
of the credibility of the witness at this time.
Thus, while the court purported to overrule appellant’s objection, it, nonetheless, instructed
the jury on the limited purpose for which the jury could consider appellant’s prior convictions.
Thus, appellant received all that he requested, and cannot be heard to complain on appeal.
Assuming, arguendo, the trial court failed to provide a contemporaneous limiting
instruction, we conclude that error, if any, did not affect appellant’s substantial rights because
it had no substantial or injurious effect or influence in determining the jury’s verdict. See Tex.
R. App. P. 44.2(b); see also King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App. 1997). The
prior convictions were introduced through appellant, the last witness to testify on the last day
of trial. Then, following a short conference outside the presence of the jury, the trial court
charged the jury on the law applicable to the case, including the limited purpose for which the
jury could consider appellant’s prior convictions. Given the short amount of time that passed
from the introduction of the prior convictions to the trial court’s reading of the instructions to
the jury, we conclude the trial court’s error, if any, did not affect a substantial right. Lemmons
v. State, 75 S.W .3d 513, 525 (Tex.App.–San Antonio 2002, pet. ref’d). Appellant’s second
point of error is overruled.
Accordingly the judgment of the trial court is affirmed.
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Don H. Reavis
Justice
Do not publish.
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