Shannon Lee Simon v. State

• Court: Court of Appeals of Texas
• Decided: August 28, 2008
• Docket: 14-07-00378-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 28, 2008

Affirmed and Memorandum Opinion filed August 28, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00378-CR

SHANNON LEE SIMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 1075845

M E M O R A N D U M   O P I N I O N

A jury found appellant Shannon Lee Simon guilty of possession of a firearm by a felon as a habitual offender, found two enhancement paragraphs true, and assessed punishment at forty years confinement in the Texas Department of Criminal Justice, Institutional Division.  The trial court sentenced appellant accordingly.  In two issues, appellant contends the trial court erred  by denying his pretrial motion to suppress evidence.  We affirm.

I.  Factual and Procedural Background

On July 7, 2006, Houston Police Department Officers Jason Turrentine, G.N. Duron, and Michael Donato arrived at the Royal Inn Motel in response to a report of a suspicious vehicle.  They saw Anthony Deadrick, whom they knew, in the parking lot standing next to a vehicle.  During their conversation with Deadrick, the officers asked where Deadrick=s common-law wife, Kiki, and four-month-old infant daughter were.  Deadrick responded that Kiki was gone and that he thought the baby was in room 108.

Deadrick initially told Officer Duron that no one was with the baby.  At some point, however, Deadrick became Afidgety@ and said he was not sure whether the baby was alone or with his brother-in-law.  Duron, Donato, and Deadrick went to room 108.  Duron knocked loudly on the door several times.  He stated his sole concern was the baby=s health.  No one answered, and Duron heard no noises from inside.  Deadrick then became worried and started knocking. When there was still no answer, Deadrick obtained a key from the motel office and opened the door.

Deadrick entered, with Duron and Donato following close behind.  They saw the baby on the bed, face-down on the pillow.  Duron was worried and wanted to be sure the baby was still breathing.  As Duron and Donato entered the room, they also saw appellant, lying on the floor in a one-and-a-half foot space between  a wall and the bed.  After Donato determined the baby was breathing and responsive, he  handed the baby to Deadrick, and the officers focused their attention on appellant.^[1]  These events all occurred quite rapidly.

Initially, appellant did not move and appeared unresponsive.  Donato started asking appellant to stand up  or show himself.  Eventually, appellant began to stand, but was disoriented, slow, Asluggish,@ Agroggy,@ and moved in an Aunnatural@ manner.  He also had saliva on his face.  Donato was concerned about appellant=s  physical or mental condition.

As appellant  arose from the floor, the officers saw him move  his right hand in what appeared to be an attempt to  conceal something. At this point Donato feared for his own safety.  Once appellant was standing, the officers saw a handgun under the thin bed sheet on which  he had been lying.  The outline of the handgun was fairly clear under the thin sheet, and the sheet did not completely cover the gun.  Donato removed the bed sheet and  detained appellant.

Appellant was subsequently charged with possession of a firearm by a felon, as a habitual offender.  He filed a pretrial motion to suppress evidence, specifically, the handgun.  He contended that his warrantless arrest was without probable cause and exigent circumstances; consequently, the search incident to the arrest was unlawful.  He also  contended that his consent to search was invalid..  Finally, he requested a pretrial hearing on the motion.^[2]

A hearing was set for November 3, 2006, and the docket sheet contains an entry indicating a hearing was held on that date.  The appellate record contains no reporter=s record of that hearing.

The case was tried before a jury on May 1, 2007.  Officers Turrentine, Duron, and Donato testified for the State.  When the State offered the handgun into evidence, appellant stated he had no objection.  Appellant called no witnesses.  After the State and the defense rested, defense counsel addressed the court:  AJudge, at some point I=m going to need the ruling on my Motion to Suppress.@  The trial court denied the motion.  The jury found the defendant guilty and assessed punishment at forty years confinement.

II.  Issues Presented

In two issues, appellant challenges the trial court=s denial of his motion to suppress evidence.  In his first issue, he argues the State failed to prove the officers= warrantless entry into his room was objectively reasonable under the emergency doctrine.  In his second issue, he argues he was illegally detained when the officers exceeded the purpose and scope of the alleged emergency.  The State responds that appellant has not preserved these issues for appeal because he did not obtain a pre-trial ruling on his motion to suppress and affirmatively stated at trial he had no objection to admission of the handgun.  We agree.

III.  Analysis

A.      Preservation of Error

To preserve error, the record must show that appellant made a timely request, objection, or motion, and that the trial court ruled on it.  Tex. R. App. P. 33.1; see also Nelson v. State, 626 S.W.2d 535, 535B36 (Tex. Crim. App. [Panel Op.] 1981) (concluding that motion to suppress evidence presented, if at all, after State had rested, was untimely and any error in denying motion was not preserved for appeal).  Generally, when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error.  See Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986) (en banc); Mikel v. State, 167 S.W.3d 556, 558 (Tex.App.CHouston [14th Dist.] 2005, no pet.).  But when the defendant affirmatively asserts during trial that he has Ano objection@ to the admission of the evidence at issue, he waives any error in its admission, despite the pretrial ruling.  See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992) (en banc); Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988) (en banc); Moraguez, 701 S.W.2d at 904; Mikel, 167 S.W.3d at 558.

Here, although appellant filed a pretrial motion to suppress evidence, there is nothing in the record to indicate he obtained a ruling on his motion until after the trial court had admitted the handgun into evidence and the State and the defense had rested.^[3]  Moreover, when the trial court asked for objections to admission of the handgun, defense counsel affirmatively stated the defense had no objection.  Thus, appellant has failed to preserve his objection to the trial court=s denial of his motion to suppress the evidence.  See Dean, 749 S.W.2d at 83; Moraguez, 701 S.W.2d at 904; Mikel, 167 S.W.3d at 558.  Accordingly, we overrule appellant=s first and second issues.

IV.  Conclusion

Having overruled appellant=s two issues, we affirm the judgment of the trial court.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed August 28, 2008.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Duron testified, AI think Officer Donato and myself were like in between making sure that the baby was fine, moving the baby around.  We were like >Hey, hey,= you know, trying to see if [appellant] would wake up.  And nothing was happening initially.@

^[2]  Appellant filed multiple pro se motions, including motions to suppress evidence, a motion for written rulings on his motions, and a motion for a pre-trial hearing.

^[3]  See Nelson, 626 S.W.2d at 536; Sims v. State, 833 S.W.2d 281, 284 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d) (holding that appellant failed to preserve error by not presenting and obtaining a ruling on pre-trial motion to suppress until after State rested its case-in-chief).