Danny Paul Martin v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00290-CR

Danny Paul Martin,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # F36430

MEMORANDUM Opinion

      This is an appeal of a conviction for felony driving while intoxicated.  See Tex. Penal Code Ann. §§ 49.04(a)-(b), 49.09(b) (Vernon 2003).  We will affirm.

      In Appellant’s first issue, he contends that the trial court erred in admitting a 911 recording.  Appellant argues that the State produced the tape less than a week before trial in violation of the court’s discovery order.  See Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon Supp. 2004).  The State contended that the tape came into its possession half an hour before the State offered it.  By failing to request a continuance, Appellant forfeited the complaint or rendered harmless any error.  See Tex. R. App. P. 33.1(a), 44.2(b); Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994) (undisclosed witness); Taylor v. State, 93 S.W.3d 487, 502 (Tex. App.—Texarkana 2002, no pet.) (discovery order); TCA Bldg. Co. v. N.W. Res. Co., 922 S.W.2d 629, 637 (Tex. App.—Waco 1996, writ denied) (supplemental evidence).  On appeal, Appellant also argues that the tape was not relevant, was not authenticated, and deprived him of the confrontation of potential witnesses pursuant to the Texas Code of Criminal Procedure.  See Tex. R. Evid. 401-402, 901(a); Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977).  By not presenting these objections in the trial court, Appellant forfeited them.  See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a).  Appellant’s first issue is overruled.

      In Appellant’s second issue, he contends that the trial court erred in overruling Appellant’s motion to suppress evidence. Appellant argues that the officers did not have reasonable suspicion to stop him.  The officers testified that they observed Appellant fail to stop and remain stopped behind the white line at an intersection, and thus had probable cause to stop Appellant.  See Tex. Transp. Code Ann. § 544.007(d) (Vernon Supp. 2004).  They had probable cause to stop him.  See Whren v. United States, 517 U.S. 806, 818 (1996); Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002).  Appellant’s second issue is overruled.

      Having overruled Appellant’s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed October 20, 2004

Do not publish

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