Chance Wade Rosser v. State

• Court: Court of Appeals of Texas
• Decided: September 28, 2011
• Docket: 10-09-00328-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00328-CR

CHANCE WADE ROSSER, Appellant v.

THE STATE OF TEXAS, Appellee

From the County Court at Law No. 1 Johnson County, Texas Trial Court No. M200801420

MEMORANDUM OPINION

Chance Wade Rosser appeals his conviction for the Class B misdemeanor offense

of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West 2011). In his sole

issue, Rosser contends that “the trial court erred in denying Defendant’s motion to

suppress because the search warrant for Defendant’s blood was not issued by a neutral

and detached magistrate.” We will affirm.

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or

motion. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining party

must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2).

To preserve a complaint about the illegal seizure of evidence, a defendant must

either file a motion to suppress and obtain a ruling on the motion or timely object when

the State offers the evidence at trial. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1);

Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977); Ratliff v. State, 320 S.W.3d

857, 860-61 (Tex. App.—Fort Worth 2010, pet. ref’d); Thomas v. State, 884 S.W.2d 215,

216-17 (Tex. App.—El Paso 1994, pet. ref’d). If the defendant waits until the State offers

the evidence at trial, the objection to the evidence must be made before a witness gives

substantial testimony about it. See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App.

[Panel Op.] 1980) (explaining that an objection to evidence “must be urged at the

earliest opportunity”); Ratliff, 320 S.W.3d at 261; Angelo v. State, 977 S.W.2d 169, 177

(Tex. App.—Austin 1998, pet. dism’d w.o.j.) (op. on reh’g).

In this case, Rosser filed a Motion to Suppress, a Motion to Suppress Evidence

Seized by Search Warrant, and a First Amended Motion to Suppress Evidence Seized by

Search Warrant. But Rosser’s contention on appeal was not the basis of any of these

motions, nor was it mentioned during the suppression hearing. Furthermore, during

trial, when the State offered evidence of the blood test, Rosser objected based on the

objections/matters raised during the suppression hearing. He did not object to the

evidence based on the contention he now urges on appeal.

Rosser v. State Page 2 The first time Rosser raised the contention he now urges on appeal was at the

hearing on his motion for new trial. Rosser had filed a motion for new trial, stating only

that (1) the trial court erred in denying his motion to suppress and (2) the verdict was

contrary to the law and the evidence. At the hearing on the motion, Rosser then

attempted to “reoffer all of the testimony, exhibits, objections, and arguments of

Counsel from the Suppression Hearing.” This was met with some resistance by the

State, and the trial court denied the motion for new trial. Rosser then asked to make a

“Bill of Exception.” At that time, Rosser, for the first time, argued that the search

warrant for his blood was not issued by a neutral and detached magistrate. At the close

of his argument, he stated, “And that’s all we ever wanted in this Motion for New Trial,

to make sure that that was very, very clear that we’re going after that ground, in

addition to the other grounds that [Rosser’s trial counsel] preserved for appellate

review, Your Honor.” The trial court replied, “Overruled.”

This argument by Rosser was untimely. See TEX. R. APP. P. 33.1(a); TEX. R. EVID.

103(a)(1); Roberts, 545 S.W.2d at 158; Ratliff, 320 S.W.3d at 860-61; Thomas, 884 S.W.2d at

216-17. Furthermore, he offered no legitimate reason to justify his delay in raising the

complaint. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). We thus

conclude that Rosser has failed to preserve his complaint for our review. See Mayfield v.

State, 800 S.W.2d 932, 935-36 (Tex. App.—San Antonio 1990, no pet.). We overrule

Rosser’s sole issue and affirm the trial court’s judgment.

Rosser v. State Page 3 REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed September 28, 2011 Do not publish [CR25]

Rosser v. State Page 4