Affirmed and Memorandum Opinion filed March 2, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00272-CR
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DEMETRUSE LEONARD SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 899,576
M E M O R A N D U M O P I N I O N
The jury found appellant guilty of possession of cocaine with intent to deliver and the trial court assessed punishment at twenty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant contends the trial court erred in denying his motion to suppress because (1) the search affidavit failed to state probable cause and (2) the officers executing the warrant failed to comply with the knock-and-announce rule. We affirm.
FACTUAL BACKGROUND
On January 16, a search warrant for an apartment was requested based on information from a confidential informant. Once the warrant was issued, officers executed it by using a battering ram to gain entry to the apartment. Appellant was arrested along with three others. Officers seized a pistol and approximately 16 grams of marijuana, 1,500 grams of powder cocaine, and 52 grams of Acrack@ cocaine. Based on the seizure of the cocaine, appellant was convicted of possession of cocaine with intent to deliver.
ANALYSIS
Appellant contends the trial court erred in denying his motion to suppress because (1) the search affidavit failed to state probable cause and (2) the officers executing the warrant failed to comply with the knock-and-announce rule. Appellant filed a pretrial motion to suppress and the trial court apparently carried the motion until trial. The trial court held a hearing and overruled the motion to suppress after both parties had rested.
To preserve a complaint for appellate review, the record must show that the complaint was made by a timely request, objection, or motion, and that the trial court ruled on the request, objection, or motion. Tex. R. App. P. 33.1(a). 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, 649 (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). To be timely, the complaint Amust 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).
Because appellant did not obtain a ruling on his motion to suppress before the evidence was presented, he was required to object to that evidence at trial. By the time appellant requested a running objection to the items seized, a deputy had already testified without objection that the pistol, marijuana, and several bags containing powder and crack cocaine were found in the apartment. Because appellant failed to object at the earliest possible time, he waived any error. Both of appellant=s issues are overruled.
The judgment of the trial court is affirmed.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed March 2, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).