NO. 07-09-0105-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 20, 2010
______________________________
LUIS ALBERTO JARAMILLO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 57,842-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, Appellant, Luis Alberto Jaramillo, was convicted of
possession of one gram or less of methamphetamine,1 enhanced, and sentenced to
1
Although Appellant was indicted for possessing four gram s or m ore but less than two hundred gram s
of m etham phetam ine; he was convicted of the lesser included offense of possessing one gram or less.
seven years confinement. Presenting a sole issue, Appellant maintains the stop of his
vehicle was unreasonable. We affirm.
Factual Background
On May 5, 2008, law enforcement had been attempting to serve a grand jury
subpoena on an Asian female named Cindy Sivilaisane. Although not personally
familiar with Ms. Sivilaisane, Officer Robert Woodward, who had been conducting
surveillance on her residence, observed an Asian female depart that residence and
enter a vehicle with two male occupants. Woodward testified that although he did not
observe the driver of the vehicle commit any traffic offenses or engage in any other
criminal activity, he nevertheless stopped the vehicle and asked for permission to
search the vehicle. After consent to search the vehicle was given by the driver, but
before the search occurred, Officer Ross Renner arrived as backup. Renner testified
that he determined the Asian female was not the person he and Woodward had been
attempting to locate to serve the subpoena. Despite Officer Renner’s knowledge, all
three occupants were asked to exit the vehicle and the search continued.
According to the evidence, during the search of the vehicle, a syringe was found
on the floorboard of the right passenger seat where Appellant had been seated. The
officers also found two different CD cases. One case, discovered underneath the front
seat, contained a plastic baggie with marihuana and a baggie with methamphetamine.
2
A second case, which was found behind the front seat, contained two digital scales and
several spoons.
Originally, the Asian female had given officers a false name on account of an
outstanding warrant. After almost one hour, the officers were able to determine her true
identity. They spoke with her and the driver of the vehicle. At that point, she became
cooperative and told Officer Renner “off the record” that the contraband found in the
vehicle belonged to Appellant. Despite Appellant’s denial of knowledge of the
contraband found in the vehicle, he was handcuffed and arrested. Appellant was
searched at the jail by Officer Johnny Bermea, who found .13 grams of
methamphetamine in the change pocket of Appellant’s jeans.
By a sole issue, Appellant maintains the trial court should have granted his oral
motion to suppress the methamphetamine because the stop of the vehicle was
unreasonable. The State maintains, among other assertions, that Appellant waived his
complaint for appellate review.
Preservation of Error
During a bench trial, Officer Bermea testified that as is customary, he did a
thorough search at the jail. During that search, he found a small plastic resealable bag
(State’s Exhibit 8) containing residue that was possibly methamphetamine (State’s
Exhibit 9) in the coin pocket of Appellant’s jeans. When the State moved to introduce
the exhibits, Appellant orally moved to suppress the evidence as being illegally seized in
3
violation of article 38.23 of the Texas Code of Criminal Procedure. The trial court
overruled Appellant’s motion and received both exhibits.
An employee of the Texas Department of Public Safety who tested the substance
contained in Exhibit 9 testified it contained .13 grams of methamphetamine. Appellant
objected to its admission until the chain of custody could be established. The trial court
sustained the objection.
Officer William Lang, the property technician for the Amarillo Police Department
testified to the chain of custody of State’s Exhibit 9. When the prosecutor asked that
Exhibit 9 be admitted into evidence, defense counsel stated, “Now that the chain is
established, we would have no objection to 9.” By affirmatively stating he had “no
objection to 9,” Appellant waived his right to complain on appeal that the evidence was,
as a matter of law, illegally obtained. See Holmes v. State, 248 S.W.3d 194, 196
(Tex.Crim.App. 2008) (when a defendant affirmatively states he has “no objection” to
the admission of the evidence during trial, he waives the right to complain on appeal
despite the trial court’s ruling on the motion to suppress). See also Strauss v. State,
121 S.W.3d 486, 490 (Tex.Crim.App. 2003, pet. ref’d). Having failed to preserve error,
Appellant’s sole issue is overruled.
Conclusion
4
Accordingly, the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
5