Taylor v. State

863 S.W.2d 737, 1993 Tex. Crim. App. LEXIS 158, 1993 WL 413847

• Court: Court of Criminal Appeals of Texas
• Decided: October 20, 1993
• Docket: 510-93
• Status: Published

Opinions

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of unauthorized use of a motor vehicle and punishment was assessed at eight years imprisonment pursuant to a plea agreement. This conviction was affirmed. Taylor v. State, 850 S.W.2d 294 and 850 S.W.2d 594 (Tex.App.—Hou.[lst] 1993).

Appellant appealed the denial of a motion to suppress all evidence seized as a result of his arrest. At the hearing on the motion two officers testified concerning both the circumstances of Appellant’s arrest and police department policies concerning custodial arrests for Class C misdemeanor offenders. At the conclusion of testimony the hearing was continued so that police documents relevant to Appellant’s arrest could be obtained. When the hearing resumed fifty days later defense counsel presented a “Memorandum of Law” which raised several new legal theories as to why Appellant’s arrest was illegal. The trial court admitted the newly-obtained documents into evidence, acknowledged that he had reviewed the Memorandum of Law, and denied the suppression motion after both parties stated they had no further argument.

The Court of Appeals reviewed the legal arguments raised in Appellant’s original motion to suppress, but refused to address the legal arguments raised for the first time in the Memorandum of Law. On original submission the Court of Appeals held that those arguments were not preserved for review because the memorandum was not an objection, or a motion, and nothing in the record indicated the judge had considered it as either. On motion for rehearing the Court of Appeals stated that the memorandum was not sufficient to preserve the legal arguments first raised therein because it was too late.

Rule 52(a) of the Texas Rules of Appellate Procedure provides that:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party’s request, objection or motion.

Appellant here timely presented a motion to suppress evidence seized as a result of his custodial arrest, which he alleged was illegal. After presentation of evidence relevant to this allegation, and prior to a ruling by the trial court, he presented to the trial court the Memorandum of Law which contained additional legal arguments as to why his arrest was illegal. The trial court acknowledged he had reviewed these arguments, and neither the trial judge nor the prosecutor asserted that they were not timely presented. The trial court ruled upon the motion to suppress.

We believe Appellant preserved for appellate review the arguments presented in his Memorandum of Law. Rule 62(a) requires only that an objection be presented to the trial court so as to provide that court with an opportunity to prevent any error. Rhett v. State, 839 S.W.2d 93, 94 (Tex.Cr.App.1992). The trial court was presented with an opportunity to act on the new legal arguments, and his ruling on the motion to suppress necessarily constituted a ruling on the arguments in the memorandum, absent some indication that the trial court had refused to consider them.¹

Accordingly, Appellant’s Petition for Discretionary Review is summarily granted, the judgment of the Court of Appeals is vacated, and this cause is remanded to the Court of Appeals for consideration of any arguments raised on appeal which are in accord with those presented at trial in the Memorandum of Law.

1 . If the record had not affirmatively shown that the trial court had reviewed the memorandum, or had reflected either that he had treated Ae memorandum as untimely or that the State had raised some objection to its consideration a different issue might be presented.