IN THE TENTH COURT OF APPEALS
No. 10-09-00281-CR
CRAIG ALAN ZMOLIK, Appellant v.
THE STATE OF TEXAS, Appellee
From the 40th District Court Ellis County, Texas Trial Court No. 33636CR
MEMORANDUM OPINION
Craig Zmolik appeals from a conviction for the offense of possession of a
controlled substance more than four grams but less than 200 grams. TEX. HEALTH &
SAFETY CODE ANN. § 481.115 (Vernon 2003). After a jury trial, and based on a finding of
true to the enhancement paragraph, Zmolik was sentenced to confinement for eighteen
(18) years in the Texas Department of Criminal Justice – Institutional Division. Zmolik
complains that the trial court erred in denying his motion to suppress a search, in
denying his motion for mistrial, and in the admission of evidence. Because we find that
the initial search did not violate the Fourth Amendment, that the complaint regarding the mistrial was not properly preserved, and that the objection to the admission of
evidence was waived, we affirm the judgment.
Motion to Suppress Evidence
Zmolik filed a motion to suppress the evidence that was seized from the
apartment where he was located and arrested. He complains that the search was
actually conducted prior to the issuance of a search warrant without justification and
therefore was an unlawful search and seizure.
Standard of Review
“In reviewing a trial court’s ruling on a motion to suppress, an appellate court
must view the evidence in the light most favorable to the trial court’s ruling.” State v.
Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review a trial court’s ruling on a
motion to suppress under a bifurcated standard. See Wiede v. State, 214 S.W.3d 17, 25
(Tex. Crim. App. 2007). We review de novo the legal determinations of detention,
reasonable suspicion, and probable cause under the Fourth Amendment while granting
great deference to a trial court’s factual findings. State v. Sheppard, 271 S.W.3d 281, 286-
87 (Tex. Crim. App. 2008). The trial court’s evidentiary ruling “will be upheld on
appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v.
State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
The Facts
At approximately 8:15 a.m., police arrived at an apartment where they arrested
Zmolik pursuant to an arrest warrant for an armed robbery. The police conducted a
sweep of the residence and observed items that appeared to be stolen in plain view in a
Zmolik v. State Page 2 back bedroom. One officer left the residence and went to get a search warrant, which
was signed at 11:00 a.m. Another officer remained inside the apartment with the
primary occupant of the apartment, Zmolik’s girlfriend. According to the officers and
Zmolik’s girlfriend, no further search was conducted of the apartment until the officer
returned with the search warrant. At that time, the officers seized many items of
property, including two safes. They also discovered a crack pipe in the back bedroom.
Zmolik later opened the safes at the police department and a plastic bag filled
with methamphetamine was located inside one of them. He filed a motion to suppress
the methamphetamine based on an unlawful search and seizure.
Burden of Proof
As the movant in a pretrial motion to suppress based on the Fourth Amendment,
Zmolik initially had the burden of producing evidence that defeats the presumption of
proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009);
Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). This burden is met by
establishing that a search or seizure occurred without a warrant. Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005); Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim.
App. 2002); Russell, 717 S.W.2d at 9. At this point, the burden shifts to the State to prove
that the search or seizure was reasonable without a warrant under the totality of the
circumstances. Russell, 717 S.W.2d at 9.
The State contends that the only search that took place was after the search
warrant was procured. However, the first search was the sweep that took place when
Zmolik was arrested. See Maryland v. Buie, 494 U.S. 325, 336, 110 S. Ct. 1093, 108 L. Ed.
Zmolik v. State Page 3 2d 276 (1990). It is undisputed that there was no warrant for that search. Thus, the
burden shifted to the State to establish that the first search was reasonable.
Unlawful Search
The Fourth Amendment to the United States Constitution only protects against
unreasonable searches and seizures and is measured in terms of a balance between the
individual’s privacy interest and the promotion of a legitimate governmental interest.
Maryland v. Buie, 494 U.S. 325, 328, 331, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990).
Incident to an arrest, officers may, as a precautionary measure “and without
probable cause or reasonable suspicion, look in closets and other spaces immediately
adjoining the place of arrest from which an attack could be immediately launched.”
Buie, 494 U.S. at 334. Zmolik testified at the hearing that from where he was sitting on
the floor of the apartment after he had been arrested he could see the police officers
down the hallway in the bedroom where the safes were located. As such, it would be a
reasonable inference to find that the back bedroom was adjacent to the area where
Zmolik was arrested and was an area from which an attack could be immediately
launched. See Buie, 494 U.S. at 334. Therefore, the trial court did not err by determining
that the officers’ actions by entering the bedroom were reasonable and by denying
Zmolik’s motion to suppress. We overrule issue one.
Mistrial
Zmolik complains that the trial court erred by not granting a mistrial after
sustaining an objection in part regarding testimony as to the arrest warrant being issued
for the charge of aggravated robbery. Upon the State’s question as to why the officer
Zmolik v. State Page 4 was going to arrest Zmolik at the apartment, the officer answered: “For aggravated
robbery. Detective Hopson obtained a warrant for his arrest.” Another question
regarding the warrant being lawful was asked and answered prior to the objection
being lodged by Zmolik. The State contends that the objection was not made timely
and was therefore waived. We agree.
A timely objection must be made in order to preserve an error in the admission
of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). The objection
should be made as soon as the ground for objection becomes apparent. Id. If a question
clearly calls for an objectionable response, the objection should be made before the
witness responds to the question. Id.
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IN THE TENTH COURT OF APPEALS
No. 10-09-00281-CR
CRAIG ALAN ZMOLIK, Appellant v.
THE STATE OF TEXAS, Appellee
From the 40th District Court Ellis County, Texas Trial Court No. 33636CR
MEMORANDUM OPINION
Craig Zmolik appeals from a conviction for the offense of possession of a
controlled substance more than four grams but less than 200 grams. TEX. HEALTH &
SAFETY CODE ANN. § 481.115 (Vernon 2003). After a jury trial, and based on a finding of
true to the enhancement paragraph, Zmolik was sentenced to confinement for eighteen
(18) years in the Texas Department of Criminal Justice – Institutional Division. Zmolik
complains that the trial court erred in denying his motion to suppress a search, in
denying his motion for mistrial, and in the admission of evidence. Because we find that
the initial search did not violate the Fourth Amendment, that the complaint regarding the mistrial was not properly preserved, and that the objection to the admission of
evidence was waived, we affirm the judgment.
Motion to Suppress Evidence
Zmolik filed a motion to suppress the evidence that was seized from the
apartment where he was located and arrested. He complains that the search was
actually conducted prior to the issuance of a search warrant without justification and
therefore was an unlawful search and seizure.
Standard of Review
“In reviewing a trial court’s ruling on a motion to suppress, an appellate court
must view the evidence in the light most favorable to the trial court’s ruling.” State v.
Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review a trial court’s ruling on a
motion to suppress under a bifurcated standard. See Wiede v. State, 214 S.W.3d 17, 25
(Tex. Crim. App. 2007). We review de novo the legal determinations of detention,
reasonable suspicion, and probable cause under the Fourth Amendment while granting
great deference to a trial court’s factual findings. State v. Sheppard, 271 S.W.3d 281, 286-
87 (Tex. Crim. App. 2008). The trial court’s evidentiary ruling “will be upheld on
appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v.
State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
The Facts
At approximately 8:15 a.m., police arrived at an apartment where they arrested
Zmolik pursuant to an arrest warrant for an armed robbery. The police conducted a
sweep of the residence and observed items that appeared to be stolen in plain view in a
Zmolik v. State Page 2 back bedroom. One officer left the residence and went to get a search warrant, which
was signed at 11:00 a.m. Another officer remained inside the apartment with the
primary occupant of the apartment, Zmolik’s girlfriend. According to the officers and
Zmolik’s girlfriend, no further search was conducted of the apartment until the officer
returned with the search warrant. At that time, the officers seized many items of
property, including two safes. They also discovered a crack pipe in the back bedroom.
Zmolik later opened the safes at the police department and a plastic bag filled
with methamphetamine was located inside one of them. He filed a motion to suppress
the methamphetamine based on an unlawful search and seizure.
Burden of Proof
As the movant in a pretrial motion to suppress based on the Fourth Amendment,
Zmolik initially had the burden of producing evidence that defeats the presumption of
proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009);
Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). This burden is met by
establishing that a search or seizure occurred without a warrant. Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005); Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim.
App. 2002); Russell, 717 S.W.2d at 9. At this point, the burden shifts to the State to prove
that the search or seizure was reasonable without a warrant under the totality of the
circumstances. Russell, 717 S.W.2d at 9.
The State contends that the only search that took place was after the search
warrant was procured. However, the first search was the sweep that took place when
Zmolik was arrested. See Maryland v. Buie, 494 U.S. 325, 336, 110 S. Ct. 1093, 108 L. Ed.
Zmolik v. State Page 3 2d 276 (1990). It is undisputed that there was no warrant for that search. Thus, the
burden shifted to the State to establish that the first search was reasonable.
Unlawful Search
The Fourth Amendment to the United States Constitution only protects against
unreasonable searches and seizures and is measured in terms of a balance between the
individual’s privacy interest and the promotion of a legitimate governmental interest.
Maryland v. Buie, 494 U.S. 325, 328, 331, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990).
Incident to an arrest, officers may, as a precautionary measure “and without
probable cause or reasonable suspicion, look in closets and other spaces immediately
adjoining the place of arrest from which an attack could be immediately launched.”
Buie, 494 U.S. at 334. Zmolik testified at the hearing that from where he was sitting on
the floor of the apartment after he had been arrested he could see the police officers
down the hallway in the bedroom where the safes were located. As such, it would be a
reasonable inference to find that the back bedroom was adjacent to the area where
Zmolik was arrested and was an area from which an attack could be immediately
launched. See Buie, 494 U.S. at 334. Therefore, the trial court did not err by determining
that the officers’ actions by entering the bedroom were reasonable and by denying
Zmolik’s motion to suppress. We overrule issue one.
Mistrial
Zmolik complains that the trial court erred by not granting a mistrial after
sustaining an objection in part regarding testimony as to the arrest warrant being issued
for the charge of aggravated robbery. Upon the State’s question as to why the officer
Zmolik v. State Page 4 was going to arrest Zmolik at the apartment, the officer answered: “For aggravated
robbery. Detective Hopson obtained a warrant for his arrest.” Another question
regarding the warrant being lawful was asked and answered prior to the objection
being lodged by Zmolik. The State contends that the objection was not made timely
and was therefore waived. We agree.
A timely objection must be made in order to preserve an error in the admission
of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). The objection
should be made as soon as the ground for objection becomes apparent. Id. If a question
clearly calls for an objectionable response, the objection should be made before the
witness responds to the question. Id. If the objection is not made until after the
objectionable question has been asked and answered, and no legitimate reason can be
shown to justify the delay, the objection is untimely; error is waived. Id.
The question asked by the State was clearly seeking a response as to the reason
why Zmolik was to be arrested, and that response would have a high potential for the
witness to give an objectionable response. The objection should have been lodged even
before the officer’s answer. However, Zmolik did not lodge his objection until after the
objectionable response and a subsequent question had been asked and answered. This
is not a timely objection. Any complaint regarding the admission of this evidence is
therefore, waived, and the trial court did not err in denying Zmolik’s request for
mistrial. See TEX. R. APP. P. 33.1. We overrule Zmolik’s issue two.
Zmolik v. State Page 5 Erroneous Admission of Evidence
Zmolik complains that the trial court erred in admitting three exhibits into
evidence based on an improper foundation and lack of chain of custody. However, he
offers no authorities or any argument in support of this contention. Therefore, this
issue is waived. See TEX. R. APP. P. 38.1(h). We overrule issue three.
Conclusion
We find that the trial court did not err in denying Zmolik’s motion to suppress
evidence. We find that any errors surrounding the denial of a mistrial or the admission
of evidence were waived. We affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed March 10, 2010 Do not publish [CR25]
Zmolik v. State Page 6