Thomas v. State
| Citation | 408 S.W.3d 877 |
| Decision Date | 25 September 2013 |
| Docket Number | No. PD–1454–12.,PD–1454–12. |
| Parties | Heather THOMAS, Appellant v. The STATE of Texas. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
OPINION TEXT STARTS HERE
John Bennett, Attorney at Law, Amarillo, TX, for Appellant.
Richard Martindale, Assistant District Attorney, Amarillo, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.
The appellant was convicted of the second degree felony offense of possession of marijuana in an amount between fifty and two thousand pounds. 1 She initially preserved error by way of a motion to suppress the evidence, which she claimed had been seized during the course of an illegallyprolonged roadside detention. But when that evidence was later proffered by the State during the punishment portion of the unitary proceeding following her non-negotiated plea of guilty to the charge, her attorney expressly declared that he had “no objection” to the admission of the evidence. The trial court nevertheless manifested its understanding that the appellant persisted in her wish to appeal the denial of her pretrial motion to suppress and expressly granted her permission to do so. The court of appeals nevertheless refused to reach the merits of her claim, relying upon longstanding precedent from this Court to hold that her attorney had “waived” the previously preserved objection to the evidence for purposes of appeal when he declared that he had “no objection” to its admission.2 We granted the appellant's petition for discretionary review in order to examine the propriety of this holding on the particular facts of this case. We will reverse.
On March 29, 2009, Texas Department of Public Safety Highway Patrolman Enoi Phoutthavong stopped the appellant, who was traveling east on Interstate 40 in Potter County. At a pretrial motion to suppress hearing, Phoutthavong testified that he pulled the appellant over because she crossed the white fog line several times.3 During the stop, he noticed that the appellant was very nervous and that her hands were visibly shaking. The car the appellant was driving was a one-way rental, and she had very little luggage, further raising his suspicion. After handing the appellant a warning ticket, Phoutthavong asked permission to search her trunk, but the appellant refused. Phoutthavong then called for the assistance of a DPS drug canine unit, detaining the appellant for about five minutes until the canine unit arrived. Once at the scene, the dog alerted to the presence of drugs in the trunk, and upon opening the trunk, the officers found 227 pounds of marijuana concealed under a blanket.
The appellant claimed that she was improperly detained to await the arrival of the canine unit. After hearing testimony, the trial court denied the motion to suppress.4 The next day, the appellant pled guilty and signed a judicial confession without a sentencing recommendation. The record contains several documents pertaining to the appellant's right to appeal. First, the appellant signed a general plea-admonishment form that included boilerplate language that stated that she was waiving, among other rights, her right to appeal. Second, the record contains a separate form document that was specifically dedicated to waiver of the right to appeal. But the appellant did not sign this dedicated waiver. Finally, the appellant also signed the trial court's certification of her right of appeal, pursuant to Rule 25.2, Subsections (a)(2) and (d), of the Texas Rules of Appellate Procedure,5 indicating that, because her plea of guilty was not pursuant to a plea bargain, the appellant retained the right to appeal.
After the appellant was admonished and pled guilty to the indictment in open court, the trial court found the evidence sufficient to support her guilty plea.6 The trial court then adjourned for a lunch break. During the punishment portion that commenced after lunch, the State offered into evidence State's Exhibits 1 through 9, which were some of the evidence challenged in the suppression hearing the day before. The appellant's trial counsel stated: Exhibit 1 was a laboratory analysis establishing the substance to be marijuana, and Exhibits 2 through 9 were photographs of the marijuana. The trial court admitted the exhibits and sentenced the appellant to 6 and a half years' confinement in the penitentiary and a fine of $2,500. Immediately after sentencing the appellant, the trial court informed her of her right to appeal both its ruling on her motion to suppress as well as its assessment of her punishment.7 At that time, the appellant gave oral notice of appeal, to which the trial court responded: “And I presume the princip[al] issue for appeal is the issue of the Court's decision on your motion to suppress?” 8 Commenting that his ruling on the motion had been a “close call,” the trial judge then set bail for appeal.
The court of appeals refused to consider the merits of the appellant's motion to suppress, observing that the appellant had affirmatively stated that she did not object to the admission of evidence previously challenged in the suppression hearing and holding that this statement waived any error previously preserved.9 In dissent, however, Justice Pirtle urged the majority not to “abandon common sense in favor of mechanical application of that principle.” 10 Justice Pirtle argued that the rule should not be categorically applied, noting that other courts of appeals have declined to follow it when the trial court makes representations on the record that make it clear it did not regard the “no objection” statement to constitute a waiver under the circumstances of the particular case.11 In Justice Pirtle's view, it was clear in the instant case that the trial court did not believe it was the appellant's intent to waive her right to contest the trial court's ruling on her pretrial motion to suppress on appeal and did not regard trial counsel's “no objection” statement to be a waiver under the circumstances. 12 We granted the appellant's petition for discretionary review to address this disagreement among the justices in the court of appeals.13
An adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to preserve error on appeal, and a defendant need not specifically object to the evidence when it is later offered at trial. 14 But he must also take care not to affirmatively indicate that he has “no objection” to the evidence that he challenged in his pretrial motion to suppress when it is later offered at trial, for this Court has long held that such an affirmative statement constitutes a “waiver” of the right to raise on appeal the error that was previouslypreserved.15 Although this waiver principle has come under some criticism, the appellant does not argue today that we should abolish it—only that we should qualify it, just as several of the lower appellate courts in Texas have done.16 As Justice Pirtle pointed out in his dissenting opinion below,17 several courts of appeals have identified circumstances under which they have deemed it appropriate to deviate from the principle that a statement of “no objection” at trial will serve to “waive” an earlier-preserved claim of error in failing to grant a motion to suppress. The appellant maintains that her case presents such circumstances.
Justice Pirtle identified two specific cases. First, in Bouyer v. State, the defendant filed a motion to suppress evidence obtained by police when they entered his hotel room without a warrant and, he claimed, without exigent circumstances to excuse its absence.18 But Bouyer failed to request a pretrial hearing on his motion to suppress, and none was held. 19 When the State later offered the evidence at his jury trial, Bouyer reminded the trial court that he had challenged it in an earlier motion to suppress.20 The trial court expressed an unconventional preference to defer a hearing on the motion to suppress until after the evidence was admitted, however, promising to instruct the jury not to consider it should the evidence later be deemed inadmissible.21 With that understanding, Bouyer stated that he had “no objection” to the introduction of the evidence, notwithstanding his extant motion to suppress.22 When the trial court later convened an evidentiary hearing on the motion to suppress, the State objected to the hearing, arguing that Bouyer had waived his challenge to the admissibility of the evidence by affirmatively stating he had “no objection” to it when it was offeredinto evidence.23 The trial court nevertheless conducted the evidentiary hearing and denied the motion to suppress on the merits.24 Recognizing that a “no objection” statement usually will waive preservation of an adverse pretrial ruling, the Fourth Court of Appeals nevertheless held that Bouyer's claim was preserved for appeal under the “unique” circumstances presented.25 “By holding the suppression hearing over the State's ‘waiver’ objection,” the Bouyer court reasoned, “the trial court clearly did not construe Bouyer's ‘no objection’ as a waiver of his motion to suppress.” 26
The second case that Justice Pirtle cited was Shedden v. State, from the Thirteenth Court of Appeals.27 Shedden filed a pretrial motion to suppress evidence that he claimed was the product of an illegal arrest. The trial court overruled the motion after a pretrial hearing.28 At trial, Shedden declared that he had “no objection” to the evidence he had previously challenged in the suppression motion, but he later clarified that he had not intended thereby to waive preservation of his complaint for appeal.29 “The trial court then expressly represented to Shedden's counsel that it considered the suppression issue preserved for appeal.” 30 Relying upon Bouyer, and observing that...
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