IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
NOVEMBER 7, 2006
______________________________ALEX M. FLORES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-409540; HONORABLE BRADLEY S. UNDERWOOD, JUDGE _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON ABATEMENT AND REMANDAppellant, Alex Martinez Flores, appeals his conviction for possession of a controlled substance (cocaine) in an amount less than 200 grams but at least four grams and sentence of 30 years incarceration in the Institutional Division of the Texas Department of Criminal Justice. For the reasons stated herein, we abate and remand.
On October 19, 2006, we remanded this matter to the trial court to clarify inconsistent sentencing dates within the judgment. On November 1, 2006, we received a Nunc Pro Tunc Judgment clarifying the sentencing date. According to the first page of the Nunc Pro Tunc Judgment, the "Date Sentence Imposed" is shown to be June 15, 2006. However, concurrent with our receipt of the Supplemental Clerk's Record containing the Nunc Pro Tunc Judgment, this court received volume six of the reporter's record entitled Punishment Hearing. The newly received volume of the reporter's record lists the punishment hearing date as August 24, 2006, which raises a new inconsistency as to date of sentencing. Because the date sentence is imposed in open court is essential in determining the time in which an appeal may be perfected, see Tex. R. App. P. 26.2, we now abate and remand the cause to the trial court for a determination of the date sentence was imposed. We direct the trial court to determine:
- the actual date on which sentence was imposed;
- if the sentencing date in the Nunc Pro Tunc Judgment is incorrect. If so, we direct the trial court to file with the trial court clerk a corrected judgment accurately reflecting the date sentence was imposed; and
- if the date of the sentencing hearing is incorrectly listed in volume six of the reporter's record. If so, we direct the trial court to ensure that the reporter's record accurately reflects the date of the sentencing hearing. Tex. R. App. P. 34.6(e)(2).
The trial court shall cause any supplemental clerk's or reporter's records resulting from our directives above which accurately reflects the date sentence was imposed in open court to be filed with the clerk of this court on or before December 6, 2006.
It is so ordered.
Per Curiam
Do not publish.
an implied overruling of the motion and, absent waiver, preserve the question for appellate review. See Gutierrez v. State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001); Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995).
In considering appellant's appellate contentions, the record reveals the following colloquy when the cocaine was tendered into evidence by the State:
Prosecutor: Your Honor, at this time, we would tender State's Exhibits Five and Five-B.
Defense Counsel: Judge, there hadn't been anything to say that scientifically it is cocaine, but I know that is what they picked up, and I don't object to that. [Emphasis added.]
The general rule is that when a pretrial motion to suppress is overruled, an accused need not subsequently object to the admission of the same evidence at trial in order to preserve error. See Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985), overruled on other grounds by Woods v. State, 956 S.W.2d 33 (1997); McGrew v. State, 523 S.W.2d 679, 681 (Tex. Crim. App. 1975). However, when the accused affirmatively states at trial that he has "no objection" to the admission of the evidence about which complaint is made on appeal, despite the pretrial ruling, he waives any error in the admission of the evidence. See Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921, 113 S. Ct. 1285, 122 L. Ed. 2d 678 (1993); Gearing v. State, 685 S.W.2d at 329; Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983).
Because of appellant's express consent to the admission of the evidence, he has waived his right to appellate review of its admission in this direct appeal. Appellant's issue must be, and is hereby overruled.
Accordingly, the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
2. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).