Ronald Dean Rogers v. State ( 2006 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00083-CR

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RONALD DEAN ROGERS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 368th Judicial District Court

Williamson County, Texas

Trial Court No. 04-150-K368

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          A jury found Ronald Dean Rogers guilty of the offense of possession of a controlled substance. Finding two enhancement paragraphs true, the jury assessed punishment at life imprisonment. Rogers appeals. We affirm because Rogers is prohibited on appeal from challenging the admission into evidence of the controlled substance seized during his arrest.

          Round Rock police officers initiated a traffic stop on a vehicle in which Rogers was a passenger. During the stop, the officers learned that Rogers had two outstanding warrants for his arrest. The officers arrested Rogers. During the search incident to that arrest, the officers found three plastic bags which contained an aggregate amount of 3.38 grams of methamphetamine.

          On appeal, Rogers challenges the admission of the physical evidence seized subsequent to his arrest. He also contends the trial court erred by failing to instruct the jury regarding whether the evidence was seized in violation of Article 38.23 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). We overrule these contentions because Rogers failed to preserve these issues for our review.

          Before the trial began, the trial court held a hearing on Rogers' motion to suppress the evidence obtained during his arrest. The trial court ruled and excluded some evidence but allowed the State to introduce the physical evidence, namely the bags containing methamphetamine, seized during the arrest. The motion to suppress alone preserved error regarding the admission of the physical evidence. Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). However, when the evidence was actually being offered into evidence by the State during trial, Rogers' counsel stated, "No objection."

          Even after vigorously objecting to specific evidence, when the evidence is actually offered into evidence and counsel states, "No objection," this waives the challenge of the admissibility of the challenged evidence. Id. There is no requirement for counsel to renew the objection once the motion to suppress has been overruled; however, if counsel does state, "No objection" when the evidence is actually offered, this waives the objection. Id.; Brossette v. State, 99 S.W.3d 277 (Tex. App.—Texarkana 2003, pet. ref'd, untimely filed). Further, because Rogers waived the right to complain about the admission of the methamphetamine, the trial court did not err in refusing to instruct the jury under Article 38.23. Jackson v. State, 888 S.W.2d 912, 914 (Tex. App.—Houston [1st Dist.] 1994, no pet.).

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      June 6, 2006

Date Decided:         June 30, 2006

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