Morrison v. State

• Decision Date: 21 February 2002
• Docket Number: No. 13-00-620-CR.,13-00-620-CR.
• Parties: Donald Lee MORRISON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

71 S.W.3d 821

Donald Lee MORRISON, Appellant, v. The STATE of Texas, Appellee.

No. 13-00-620-CR.

Court of Appeals of Texas, Corpus Christi.

February 21, 2002.

Stephen C. Taylor, Galveston, for appellant.

B. Warren Goodson, Jr., Asst. Crim. Dist. Atty., Michael J. Guarino, Crim. Dist. Atty., Galveston, for state.

Before Justices YAÑEZ, RODRIGUEZ, and BAIRD.¹

OPINION

Opinion by Justice BAIRD (Assigned).

Appellant was charged by indictment with the offense of possession of a controlled substance, namely cocaine. The indictment also alleged two prior felony convictions for the purpose of enhancing the range of punishment. The trial judge found appellant guilty of the charged offense. Appellant pled true to the enhancement allegations, and punishment was assessed at two years confinement in the Texas Department of Criminal Justice— Institutional Division. Appellant raises a single point of error. We affirm.

I. Preservation of Error.

Appellant contends the trial judge erred in denying the motion to suppress the contraband alleged in the indictment. The State counters that this point of error is not preserved for our review. Some background is necessary to put the preservation issue in context.

Appellant's case was initially scheduled for a jury trial. However, appellant waived his right to trial by jury, and elected to have the trial judge determine the issue of guilt. Prior to commencement of the trial, counsel for appellant reminded the judge that appellant's motion to suppress was pending and asked the judge to consider that motion "at the same time the trial proceeds." The judge agreed.

The State's presentation of its case in chief was brief, consisting of only two witnesses. The first witness was the arresting officer who described the seizure of the alleged cocaine. The second witness was the chemist who analyzed the substance and determined it was, in fact, cocaine. The State then moved to introduce the cocaine into evidence, and defense counsel stated "no objection." The trial judge admitted the evidence.

When the State subsequently rested, both sides argued the merits of the motion to suppress. After lengthy and spirited arguments, the trial judge found the vehicle in which appellant was a passenger had been legally stopped and that appellant voluntarily abandoned the contraband upon seeing the arresting officer. The trial judge concluded the suppression issue by stating: "I'm going to deny the motion to suppress." Appellant then put on his case in chief and after resting, sought to re-urge the motion to suppress. The State objected, stating: "Your Honor, I believe that the Court has previously decided this issue, and we would urge the Court not to relitigate that matter. We believe the motion to suppress was denied appropriately." The trial judge briefly responded by commenting upon a matter related solely to the suppression motion. The trial judge then instructed both sides to argue the issue of guilt.

As a general rule, article 28.01 prescribes the pretrial motion practice for criminal cases.² Tex.Code Crim. Proc. Ann. art. 28.01 (Vernon 1989). However, the terms of article 28.01 are not mandatory, and the question of whether to hold a hearing on a pretrial motion to suppress evidence rests within the sound discretion of the trial judge. Calloway v. State, 743 S.W.2d 645, 649 (Tex.Crim.App.1988); State v. Reed, 888 S.W.2d 117, 119 (Tex. App.-San Antonio 1994, no pet.); Montalvo v. State, 846 S.W.2d 133, 137 (Tex.App.-Austin 1993, no pet.).

The State's preservation argument is based on the line of cases holding that "[w]hen 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." Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App.1988). Typically, the defendants in those cases filed pretrial motions to suppress evidence which were overruled prior to trial. Id. at 82-83. At trial, when the State subsequently offered the complained of evidence, the defendants affirmatively stated that they had no objection. Id. The Dean Court held this constituted an affirmative waiver of the defendant's right to assert on appeal that the trial judge erred by overruling the motion to suppress. Id. However, in the instant case, the trial judge did not hold a pretrial hearing on the suppression issue, but rather agreed to carry the motion with the trial. Therefore, there was no pretrial ruling in the instant case.³

The case of Gearing v. State, 685 S.W.2d 326 (Tex.Crim.App.1985), overruled on other grounds, Woods v. State, 956 S.W.2d 33 (Tex.Crim.App.1997), is factually indistinguishable from the instant case. In Gearing, the defendant filed a pre-trial motion to suppress. The trial judge suggested it be "carried along" with the jury trial, and ruled upon when the issue was raised. Defense counsel agreed. Subsequently, the defendant waived trial by jury. At the bench trial when the evidence was offered defense counsel expressly stated, "No objection." After the conclusion of all the testimony, the trial judge permitted argument on the motion to suppress and overruled the motion. Id. at 329. Despite the State's argument that the issue was not preserved for appellate review, the Court of Criminal Appeals reached the merits of the suppression issue. In addressing the question of preservation, the Court stated: "In the instant case the appellant failed to obtain a pre-trial ruling on the said motion, and stated `no objection' at trial upon offer of the pistol. It would appear he waived the error, if any, unless it can be argued that in permitting counsel to argue the pre-trial motion after trial and ruling upon the same, the court in an unorthodox manner allowed the preservation of error, if any. Be that as it may, no error in our opinion is presented upon consideration of the merits." Id. at 329-30 (emphasis supplied).

Similarly, in the instant case, the motion to suppress was carried along with the bench trial, and the trial judge permitted the parties to argue the motion after the evidence was admitted and the State rested its case in chief. The trial judge specifically overruled the motion. Later when appellant sought to reurge the motion, the State argued the matter should not be relitigated because the trial judge had correctly denied the motion in the first instance. The record is clear that both parties and the trial judge were operating under an agreement that the motion to suppress would be carried along with the trial and that the motion would be argued when the State rested it case in chief.

A motion to suppress is nothing more than a specialized objection to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App. 1981). Therefore, it must meet the requirements of an objection. Mayfield v. State, 800 S.W.2d 932, 935 (Tex.App.-San Antonio 1990, no pet.). An objection must be timely made with sufficient specificity to make the trial court aware of the complaint. Tex.R.App. P. 33.1(a)(1)(A); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.App.1995). The specificity requirement has a dual objective: (1) to inform the trial judge of the basis for the objection; and (2) to provide opposing counsel the opportunity to remove the objection or supply other testimony. Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App.1990); Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977); Callahan v. State, 937 S.W.2d 553, 557 (Tex.App.-Texarkana 1996, no pet.). As to the first objective, the trial judge was fully aware of the basis upon which appellant believed the contraband should be suppressed, and the trial judge was afforded an opportunity to rule on the objection/motion when the State rested. Moreover, the State was in no way operating at a disadvantage because there was no other evidence which the State could have offered to prove its case in chief. Therefore, the State did not have the capacity to "remove the objection or supply other testimony."

While the instant course of conduct may seem "unorthodox," it strikes us as an efficient use of the court's time and scarce judicial resources, and should not serve as a means to waive appellate review of an issue which the parties ultimately argued and the trial judge ruled upon. Indeed, it would be fatuous for us to now hold this issue was not preserved in light of those arguments and ruling. Therefore, we hold that the unitary proceeding in the instant case allowed for the preservation of error. Gearing, 685 S.W.2d at 330. Accordingly, the issue has been preserved for our review, and as the Court of Criminal Appeals did in Gearing, we will address the merits of appellant's sole point of error.

II. Factual Summary.

On February 19, 2000, at approximately 11:30 a.m., Galveston County Sheriff's Officer Brad Golden was traveling northbound on 12th Street, a two lane road in a residential area of Bacliff. Golden saw a vehicle "stopped in the roadway." The vehicle was in the right/northbound lane facing north, which Golden stated was the proper side of the roadway. Golden stated there were no other vehicles between his patrol car and the stopped vehicle, and the stopped vehicle was not obstructing traffic. He also testified that "there was plenty of room" for other vehicles to proceed in the southbound lane, but a vehicle traveling northbound would have to use the southbound lane to pass. Golden stated the stopped vehicle created a hazardous condition because of the inability of vehicles to pass the stopped vehicle if another vehicle was coming southbound, and if children chose to play around the vehicle. However, he admitted that neither of these conditions were present when he saw the stopped vehicle.

As Golden drove nearer, he saw appellant enter the passenger side of the vehicle which then proceeded northbound on 12th Street. Golden testified the driver was not wearing a seatbelt....