Randy Lee Allen v. State ( 2004 )

Opinion issued November 18, 2004

  In The  

Court of Appeals  

For The

First District of Texas  

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  NOS. 01-03-01051-CR

          01-03-01052-CR

          01-04-00034-CR

          01-04-00035-CR

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RANDY LEE ALLEN, Appellant

V.

THE STATE OF TEXAS, Appellee  

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause Nos. 44,024 (Counts 1, 2, and 3) and 44,025  

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MEMORANDUM OPINION

          Appellant, Randy Lee Allen, pled guilty to three counts of aggravated sexual assault of a child and one count of aggravated kidnapping. Upon appellant’s open plea, the trial court assessed punishment at confinement for 150 years—to be served as 75 years on each of the three counts in cause number 44,024, concurrently, and 75 years on the one count of aggravated kidnapping in cause number 44,025, stacked upon the 75 years in cause number 44,024. In one issue, appellant appeals the trial court’s denial of his motions to suppress in both causes.

          We affirm.

Background

          T      welve-year-old complainant, H.M., was abducted while on her way to church by a man driving a white van with tinted windows and a business name containing the word “wood” painted on the side. The man bound H.M. with tape, trapped her in a box inside the van, and drove her to a hotel room where he sexually assaulted her before leaving her on an isolated road.

          Based upon a description offered by H.M. and a witness near the church, City of Freeport Police telephoned local businesses and appellant’s van was identified. Officers stopped appellant, told him they were conducting a kidnapping investigation, and asked if he would come in for questioning. Appellant agreed and drove his van to the police station, with an officer in the lead and another behind him.

          Along the way, officers decided that appellant should ride in a patrol car, so the caravan pulled to the curb. Testimony conflicts as to whether appellant was searched and handcuffed before getting into the back seat of the cruiser. An officer drove appellant’s van to the station and parked it in the sally port.

          Appellant arrived at the station at around 5:30 p.m. and was questioned until approximately 9:40 p.m. Appellant gave a signed confession and consented to being photographed for a line-up, as well as to allowing police to go to his home to retrieve the shirt he wore during the offense and the box in which he had held H.M. A video was created of appellant’s confession and of his assembly of the box.   

Motion to Suppress

          Appellant filed two motions to suppress “the fruits of his illegal detention and arrest” in each cause. Appellant contends he was placed under custodial arrest without probable cause and was interrogated without being given the warnings required under article 38.22 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2004-2005). In a pre-trial hearing, the court denied both motions. In his sole issue, appellant contends that the trial court erred in denying his motions. The State counters that appellant waived any error regarding the suppression and admission of the evidence.  

          During the trial to the court on each cause, the State offered all exhibits into evidence—including appellant’s written and videotaped confessions—with the stipulation that if the witnesses were called, they would testify substantially to the contents of the exhibits. In cause number 44,024, defense counsel replied, “No objection to any of that, Your Honor; and we agree to so stipulate.” In cause number 44,025, defense counsel replied,

Judge, we are not going to object to that. We’re just going to clarify that some of the evidence you have in that pile applies to one case and some applies to the other, and we will agree the evidence that applies to one case. (sic) We will stipulate to that and not object. All of this happened in three or four hours. State elected to treat it as two cases.

All evidence was admitted and stipulations were accepted by the court.

          Generally, once a pre-trial motion to suppress is overruled, the defendant is not required to object to admission of the same evidence at trial in order to preserve error for appeal. Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987). However, where the objectionable evidence is offered during trial and the defendant affirmatively asserts that he has “no objection” to its admission, he waives any error in the admission of the evidence despite the pre-trial suppression ruling. Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Nhem v. State, 129 S.W.3d 696, 698-99 (Tex. App.—Houston [1st Dist.] 2004, no pet.). In Dean v. State, the Court of Criminal Appeals held that where defense counsel later makes such assertion, it was “compelled to find that this issue has not been preserved for appellate review.” Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988).

          Here, as in Dean, appellant affirmatively stated he had “no objection” to the evidence offered and further agreed to stipulate to its contents. See id. The trial court then admitted the evidence. Thus, as in Dean, appellant has not preserved this issue for appellate review. See id.

          We overrule appellant’s sole issue.  

Conclusion

          We affirm the judgment of the trial court.

                                                         Laura C. Higley 

                                                         Justice

Panel consists of Justices Nuchia, Hanks, and Higley.  

Do not publish. Tex. R. App. P. 47.2(b).