Alonzo B. Moss, III v. State ( 2004 )

MOSS V. STATE NO. 07-04-0330-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 23, 2004

______________________________



ALONZO B. MOSS, III, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 33,504-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

ABATEMENT AND REMAND

Appellant Alonzo B. Moss, III filed this appeal challenging the trial court's order revoking his community supervision and imposing a four-year sentence for aggregated theft. Both the clerk's record and reporter's record have been filed. Attorney Gerald D. McDougal filed appellant's brief on October 12, 2004, and the State's brief is due to be filed on December 13, 2004. Upon suggestion of death of appellant's attorney, we now abate this appeal and remand the cause to the trial court.

Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute this appeal; and

2. whether appellant is indigent and entitled to new appointed counsel.

The trial court shall cause a hearing to be transcribed. Should it be determined that appellant does want to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of new counsel. If new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel. The trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues, and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental record of the hearing shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and supplemental reporter's record with the Clerk of this Court by Friday, January 14, 2005.  

Should new counsel be appointed, the Clerk of the Court is instructed to accept and file any brief or supplemental brief newly appointed counsel desires to file. Absent a motion for extension of time, new counsel's brief(s) shall be due within 30 days after filing of the supplemental clerk's and reporter's records. The State's brief will be due within 60 days following filing of the supplemental clerk's and reporter's records or within 30 days following the filing of new counsel's brief(s), whichever is later. Tex. R. App. P. 38.6(a) & (b).   

It is so ordered.

Per Curiam

Do not publish.

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NO. 07-10-00166-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 4, 2011

WILLIAM LEE BAUM,  

                                                                                         Appellant

v.

THE STATE OF TEXAS, 

                                                                                         Appellee

_____________________________

FROM THE 100TH DISTRICT COURT OF DONLEY COUNTY;

NO. 3669; HONORABLE STUART MESSER, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

            Appellant William Lee Baum was convicted of indecency with a child.  He seeks to overturn that conviction by contending the trial court should have granted his motion to suppress his statement to law enforcement officers. We disagree and affirm the judgment.

            Appellant argues that his statement was involuntary and the result of coercion. A hearing was held on his motion to suppress and the trial court denied it.   At the time the State sought to have the statement admitted into evidence before the jury, appellant stated, “No objection.”  The statement was admitted, and the State then asked to publish it to the jury.  The court granted permission, but before it was published, appellant renewed his objections “made prior to this trial” and urged that the statement be suppressed. The court overruled the objections.

            To preserve error for review, a party must make a timely request, objection or motion.  Tex. R. App. P. 33.1(a)(1).  To be timely, the objection must be made at the earliest opportunity.  Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (stating that an objection is timely if made as soon as the grounds for it become apparent).  Moreover, when a party affirmatively states he has “no objection” when  evidence is offered, any complaint is waived.  Holmes v. State, 248 S.W.3d 194, 196 (Tex. Crim. App. 2008). 

            Here, appellant stated he had no objection when the evidence was first offered.  After it had been admitted and the State sought to publish it to the jury, appellant reiterated the objections promulgated at the suppression hearing. However, at that point, the objections were not timely.   

            Yet, even if the objections were preserved, there would be no error.  According to the record, appellant voluntarily appeared at the sheriff’s office to undergo a polygraph.  He appeared calm to the officer administering the test and received his Miranda warnings. When the test results indicated he was being disingenuous, he informed the interrogator that he was not lying but that he would make a statement.  The interrogation lasted a “couple of hours,” according to appellant, and he was allowed to go on a “bathroom break” during its occurrence.  The interrogator also testified that appellant was told, before making the written statement, that he did not have to provide one and that the choice to do so would be voluntary.  From these indicia, the trial court had factual basis to conclude that appellant’s statement was indeed voluntary.  This is especially so since the record reveals that the trial court’s decision was influenced by “the credibility of the witnesses” who testified; in other words, the trial court could have deigned appellant’s testimony about feeling coerced unbelievable.

            Accordingly, appellant’s issue is overruled and the judgment is affirmed.

                                                                        Brian Quinn

                                                                        Chief Justice     

Do not publish.