Yocom v. State , 2004 Tex. Crim. App. LEXIS 1834 ( 2004 )

149 S.W.3d 159 (2004)

Matthew Devin YOCOM, Appellant,
v.
The STATE of Texas.

No. PD-0991-04.

Court of Criminal Appeals of Texas.

November 10, 2004.

Brian W. Wice, Houston, for Appellant.

Anne Swenson, Assistant District Attorney, Fort Worth, Matthew Paul, State's Attorney, Austin, for State.

Petition for discretionary review refused.

MEYERS, J., filed a dissenting opinion, in which KEASLER and HERVEY, JJ., join.

I dissent to the Court's failure to grant Appellant's petition for discretionary review in this case. Appellant contends that:

The Court of Appeals erred in holding that Appellant failed to preserve the claim that the trial court erred in refusing to provide Appellant with the opportunity to have the court determine the admissibility of that evidence forming the basis of his motion to suppress before jurors heard this evidence.

The Court of Appeals held that "the specific grounds for Yocom's complaint on appeal are not apparent from the context of his objection at trial ... Yocom provided no basis at trial for why he was entitled to such relief." Yocom v. State, No. 2-03-181-CR, 2004 WL 742888, 1998 Tex.App. LEXIS 3195 (Fort Worth April 8, 2004) (not designated for publication). The record indicates the contrary. Appellant made it quite clear on seven separate occasions that the threshold determination of admissibility was a matter for the trial court and not the jury. The Court of Appeals should have addressed Appellant's argument that the trial court erred in refusing to grant a pretrial motion to suppress outside the jury's presence.

Because the Court of Appeals overruled Appellant's point of error despite conflicting statutes and case law and failed to fully address the issue, we should grant Appellant's petition for discretionary review.