Affirmed and Memorandum Opinion filed December 23, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01275-CR
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JOSEPH ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 920,966
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M E M OR A N D U M O P I N I O N
Appellant Joseph Anderson was charged, as a repeat offender, with the felony offense of possession with intent to deliver a controlled substance, cocaine, weighing more than one gram and less than four grams. A jury found him guilty of the lesser included offense of possession of a controlled substance weighing more than one and less than four grams. After finding the two enhancement allegations in the indictment true, the jury assessed punishment at twenty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division, and the trial court sentenced him in accordance with the jury=s assessment. In three issues, appellant challenges the trial court=s denial of his motion to suppress evidence. We affirm.
Factual and Procedural Background
Deputy C.E. Markcray, of the Harris County Constable=s Office Precinct 3, was on patrol in a marked vehicle when he observed a Jeep with only one a driver in it come to a complete stop in a moving lane of traffic. Markcray then observed appellant ride his bicycle toward the Jeep, stop at the passenger=s side of the Jeep, lean into the window, and talk to the driver. Markcray activated the lights on his vehicle and pulled behind the Jeep to make a traffic stop. As Markcray was getting out of his vehicle, appellant tried to back up from the Jeep, and Markcray ordered him to stop. After Markcray spoke with the driver of the Jeep, he walked over to appellant, who had one hand behind his back. Because the area was known for drug transactions, Markcray asked appellant what he had behind his back. Markcray then did a quick patdown and could see appellant had a paper towel in his hand. When Markcray asked appellant what was in the paper towel, appellant replied, AJust my bugars,@ and acted as if he were wiping his nose. Markcray then said, AI=m from Missouri, the show me state.@ Appellant hesitated, then opened the paper towel, and Markcray saw what he believed, based on his knowledge and experience, to be crack cocaine. Markcray placed appellant under arrest and field-tested the substance. The test was positive for cocaine. The cocaine weighed 2.69 grams.
Appellant filed a motion to suppress Aall physical and other evidence@ obtained as a result of an allegedly illegal stop and search. Appellant stated that a pretrial hearing outside the presence of the jury was necessary because of the purely legal nature of the issues and Ato avoid any unwarranted prejudice that would occur if any mention of the illegally seized items was made before the jury that will try the case.@ Appellant, however, did not obtain a hearing. At trial, Markcray testified without objection to finding, seizing, and testing the cocaine; and the forensic chemist testified without objection to testing and weighing the cocaine.[1] Both witnesses were shown State=s Exhibit 1, the cocaine, and they identified it in the presence of the jury.
When the State offered Exhibit 1 at the close of its case, appellant requested to make an argument outside the jury=s presence. Appellant argued his motion to suppress, and the trial court denied the motion and admitted State=s Exhibit 1 into evidence. The State rested.
Appellant testified as the only witness in his defense. He denied Mackcray=s version of events after the stop, stating that the driver threw the paper towel out and Mackcray picked it up from the ground.
Discussion
In three issues appellant contends the trial court erred in denying his motion to suppress because the evidence was obtained in violation of his rights (1) under the Fourth Amendment to the United States Constitution, (2) Article I, section 9 of the Texas Constitution, and (3) Texas Code of Criminal Procedure Article 38.23. We conclude appellant has not preserved his complaints for appellate review.
To preserve a complaint for appellate review, the record must show (1) the appellant made the complaint to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint and (2) the trial court ruled on the request, objection, or motion. Tex. R. App. P. 33.1(a); see Garza v. State, 126 S.W.3d 79, 84B85 (Tex. Crim. App. 2004). Generally, a pretrial motion to suppress evidence which has been overruled will preserve error as to that evidence. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).
If the trial court does not hold a pretrial hearing on a motion to suppress evidence, the defendant must timely object to that evidence at trial to preserve error; the mere filing of the motion is not sufficient. Calloway v. State, 743 S.W.2d 645, 649B50 (Tex. Crim. App. 1988); Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984); Thomas v. State, 884 S.W.2d 215, 216 (Tex. App.CEl Paso 1994, pet. ref=d). In Garza v. State, however, the Court of Criminal Appeals carved a narrow exception to this rule. 126 S.W.3d at 84B85. The court held a defendant preserved error when specific pre-trial comments made by the judge essentially directed the defendant to wait until all evidence was presented before he obtained any ruling from the judge, and it was clear from these comments that any additional attempt to object or to obtain a ruling during the testimony of the officers would have been futile. 126 S.W.3d at 84. The Garza court specifically stated its holding was Anot meant to apply in situations outside the special circumstances@ of the case before the court. Id. at 85.
Other than a brief statement in the suppression motion that a pre-trial hearing was Anecessary,@ the record is devoid of any indication appellant requested a pre-trial hearing. The record also contains no indication the trial court refused to hold one. The present case is therefore distinguishable from Garza, and appellant was required to make a timely objection in the trial court.
To be timely, an objection must be made as soon as the ground for complaint is apparent or should be apparent. Aguilar v. State, 26 S.W.3d 901, 905 (Tex. Crim. App. 2000). AIt is fundamental that a specific objection to inadmissible evidence be urged at the first opportunity in order to be considered timely.@ Id. at 905B06. An objection or motion to suppress is not timely if it is made after the evidence or testimony relating to it is admitted without objection. See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. [Panel Op.] 1980); Thomas, 884 S.W.2d at 216B17; Turner v. State, 642 S.W.2d 216, 217 (Tex. App.CHouston [14th Dist.] 1982, no pet.).
By the time appellant urged his motion to suppress, Markcray had testified without objection to finding, seizing, and testing the cocaine; the forensic chemist had testified without objection to testing and weighing the cocaine, and both witnesses had identified the cocaine in the presence of the jury. Because appellant failed to object at the earliest possible time, he waived any error. Turner, 642 S.W.2d at 217.
We overrule appellant=s three issues and affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed December 23, 2004.
Panel consists of Justices Yates, Edelman, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] When the State asked Markcray whether the substance was called a Acrack cookie@ and whether squares are cut from it, defense counsel objected on the ground Markcray had not been qualified. The trial court sustained the objection.