Randy Wayne Gibbs v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2008
• Docket: 12-07-00238-CR
• Status: Published

Opinion

                                                NO. 12-07-00238-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RANDY WAYNE GIBBS,    §                      APPEAL FROM THE 294TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

            Randy Wayne Gibbs appeals his conviction of possession of a chemical precursor with intent to manufacture methamphetamine, for which he was sentenced to imprisonment for sixty-five years.  In one issue, Appellant argues that the trial court erred in denying his motion to suppress evidence.  We affirm.

Background

            Appellant was charged by indictment with possession of the chemical precursor pseudoephedrine with intent to unlawfully manufacture methamphetamine¹ and pleaded “not guilty.”  Thereafter, Appellant filed a motion to suppress,²

 arguing that evidence was seized as a result of an unlawful detention and an unlawful search that was not supported by reasonable suspicion.  Following an evidentiary hearing, the trial court denied Appellant’s motion to suppress.³

            The matter proceeded to jury trial.  At trial, the State offered twenty-four exhibits comprising items seized from Appellant’s vehicle.  In each of three instances when such evidence was offered, Appellant expressly stated that he had “no objection” to the admissibility of such evidence.  Ultimately, the jury found Appellant guilty as charged.  Following a trial on punishment, the jury found the enhancement paragraphs in the indictment to be “true” and assessed Appellant’s punishment at imprisonment for sixty-five years and a fine of ten thousand dollars.  The trial court sentenced Appellant accordingly, and this appeal followed.

Waiver of Denial of Motion to Suppress

            In his sole issue, Appellant argues that the trial court erred in denying his motion to suppress evidence.  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); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g).  When a pretrial motion to suppress is denied, the accused need not object to the admission at trial.  Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).  However, when an accused affirmatively asserts during trial that he has “no objection” to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pretrial ruling.  See Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988).

            In the instant case, Appellant initially preserved error at the pretrial suppression hearing. However, at trial, when the State offered exhibits 1 through 24, which comprised the evidence seized from Appellant’s car, Appellant specifically stated that he had “no objection” to admission of such exhibits. Consequently, we hold that by his statement that he had “no objection” to the exhibits which were the subject of his pretrial motion to suppress, Appellant affirmatively waived any error.  See Dean, 749 S.W.2d at 83 (holding that issue had not been preserved for appellate review because defense counsel specifically stated that defense had no objection to admission of fingerprint evidence); McGrew v. State, 523 S.W.2d 679, 681 (Tex. Crim. App. 1975) (holding that appellant waived review of admissibility of items seized during warrantless search of trunk because, after losing at suppression hearing, defense counsel expressly stated “we don’t have any objections” when the State offered the same evidence at trial); Hardin v. State, 951 S.W.2d 208, 210 (Tex. App.– Houston [14th Dist.] 1997, no pet.) (despite adverse ruling on pretrial motion to suppress, appellant waived error in admission of cocaine by stating he had no objections when prosecutor offered cocaine into evidence at trial); see also Workman v. State, No. 02-06-00351-CR, 2007 WL 2792790, at *2 (Tex. App.–Fort Worth Sept. 27, 2007, no pet.) (mem. op., not designated for publication).  Appellant’s sole issue is overruled.

Disposition

            Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered January 31, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ See Tex. Health & Safety Code Ann. § 481.124(a), (b)(3) (Vernon Supp. 2007).

² Appellant’s motion was filed under a prior indictment and was considered by agreement of the parties under the indictment in the instant case, which contained enhancement paragraphs.

³ In support of his statement that the trial court denied his motion to suppress, Appellant cites to a volume of the reporter’s record that is not part of the record on appeal.  However, the parties do not dispute that the trial court denied Appellant’s motion to suppress.