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Timothy Lee Robinson v. State ( 2012 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    _________________________
    No. 06-09-00225-CR
    ______________________________
    TIMOTHY LEE ROBINSON, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 76th Judicial District Court
    Titus County, Texas
    Trial Court No. 16,079
    Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Justice Carter
    MEMORANDUM OPINION
    Timothy Lee Robinson was convicted of possession of less than four hundred grams but
    more than two hundred grams of a controlled substance, to-wit: cocaine, enhanced by a prior
    felony conviction. After receiving an anonymous tip, Officer Cesar Muñoz, a police officer with
    the Mount Pleasant Police Department, observed a vehicle being driven by Robinson make a turn
    without signaling at the intersection of Ninth Street and Margaret Drive. When Muñoz activated
    his overhead lights, Robinson failed to immediately stop and proceeded several blocks along
    Margaret Drive to his residence. Robinson challenged whether Muñoz had reasonable suspicion
    to detain him in a pretrial motion to suppress and relitigated the issue at trial. The State’s sole
    argument in response was that Muñoz had reasonable suspicion to detain Robinson for failure to
    signal a turn. The trial court denied Robinson’s motion. Following the jury’s verdict, Robinson
    appealed.
    In our original opinion, we determined that a fact issue existed concerning whether Ninth
    Street and Margaret Drive merged and deferred to the trial court’s determination of this historical
    fact.   Robinson v. State, No. 06-09-00225-CR, 2011 Tex. App. LEXIS 200 (Tex. App.—
    Texarkana Jan. 13, 2011, pet. granted) (mem. op., not designated for publication) rev’d by No.
    PD-0238-11, 2012 Tex. Crim. App. LEXIS 1221 (Tex. Crim. App. Sept. 19, 2012). Although
    we concluded the trial court did not abuse its discretion in denying the motion to suppress, we
    reversed finding that the fact issue of whether Ninth Street and Margaret Drive merged entitled
    Robinson to a jury instruction. 
    Id. The Texas
    Court of Criminal Appeals disagreed that a fact
    issue existed and concluded that the ―only disagreement in this case was not about the character
    2
    of roadway, but about the legal significance of the character of the roadway.‖ Robinson v. State,
    No. PD-0238-11, 2012 Tex. Crim. App. LEXIS 1221, at *27 (Tex. Crim. App. Sept. 19, 2012).
    Although finding that Robinson was not entitled to a jury instruction, the Texas Court of
    Criminal Appeals, noting our resolution of Robinson’s suppression issue depended on the
    existence of a fact issue, remanded this case back to this Court ―for further consideration of the
    appellant’s first point of error.‖ 
    Id. at *31.
    We now conclude that Robinson failed to preserve for appeal the issue of whether the
    contraband seized in the search was admissible; consequently, the judgment of the trial court is
    affirmed.
    The appellant’s first point of error alleges that the trial court erred in failing to suppress
    all evidence obtained during and subsequent to an illegal traffic stop. In its supplemental brief,
    the State argues that Robinson waived any error in admission of the evidence found as a result of
    the search. This argument is based on defense counsel’s statement that there was ―no objection‖
    to the admissibility of the contraband found during the search. Although the State is normally
    limited to the issues raised in its original brief, we note that preservation of error is systemic and
    we must review error preservation before reversing. Gipson v. State, No. PD-1470-11, 2012
    Tex. Crim. App. LEXIS1548 (Tex. Crim. App. Nov. 14, 2012); Menefee v. State, 
    287 S.W.3d 9
    ,
    18 (Tex. Crim. App. 2009).
    If the defendant affirmatively states that there is ―no objection‖ when previously
    challenged evidence is offered, error is waived. Swain v. State, 
    181 S.W.3d 359
    , 368 (Tex.
    Crim. App. 2005); Graham v. State, 
    96 S.W.3d 658
    , 659–60 (Tex. App.—Texarkana 2003, pet.
    3
    ref’d). Some courts have found a limited exception to the general rule if the record affirmatively
    shows that the trial court did not construe the ―no objection‖ statement as an intentional
    relinquishment of the previous challenge.       In Shedden v. State, a suppression hearing was
    conducted prior to trial, and the trial court denied the motion. When items from the search were
    offered, counsel for the defendant stated there was ―no objection.‖ Later, counsel clarified that
    he did not intend to waive error, and the trial court expressly represented that it considered the
    suppression hearing preserved for appeal. Shedden v. State, 
    268 S.W.3d 717
    , 730 (Tex. App.—
    Corpus Christi 2008, pet. ref’d). Under those circumstances, the appellate court held that the
    trial court did not construe the ―no objection‖ statements as a waiver of the issues.
    In Bouyer v. State, a motion to suppress was filed but not heard before trial. During trial,
    counsel requested a hearing to challenge the admissibility of evidence.             The trial court
    responded, ―[T]here is really no reason not to proceed. If I decide not to allow the evidence, it
    won’t be stated to the jury and they (sic) will not be allowed to consider it.‖ Bouyer v. State, 
    264 S.W.3d 265
    , 268 (Tex. App.—San Antonio 2008, no pet.). The trial proceeded, and as evidence
    from the search was introduced, defense counsel stated, ―[N]o objection.‖ After the State’s
    evidence was introduced, the trial court conducted an evidentiary hearing and denied the motion
    to suppress evidence. The San Antonio court explained that since the issue was raised at trial
    and the trial court agreed to consider the matter at a later time and then held a hearing, the trial
    court ―clearly did not construe Bouyer’s ―no objection‖ as a waiver of his motion to suppress[,]
    notwithstanding the State’s contention that Bouyer had waived the objections.‖ 
    Id. 268–69. 4
           Here, the issue for determination is whether this record affirmatively demonstrates that
    the trial judge did not construe Robinson’s ―no objection‖ statement as a waiver of his
    evidentiary objections. One of the primary reasons to require a timely objection is to give the
    trial judge an opportunity to rule on or even correct previous rulings on the disputed issues. The
    defense is not required to make any announcement when the State’s evidence is offered, and if
    the record previously contains a timely objection and a ruling, that objection is preserved for
    appeal. It is only when a defendant announces that there is ―no objection‖ that waiver of the
    issue occurs.
    Here, a suppression hearing was conducted before trial in an attempt to convince the trial
    court that the search was illegal and to preclude the introduction of evidence gained as a result of
    the search; the trial court denied the motion. But, when the State offered the damning evidence
    (a bag of 294 grams of cocaine), defense counsel stated that there was no objection. Only after
    the State’s case had been completed did counsel request the trial judge to reconsider its ruling on
    the ―traffic stop.‖ Of course, a trial judge may always reconsider a previous ruling, but that
    alone does not convince us that the trial judge here did not construe Robinson’s ―no objection‖
    response as a waiver of his objections to the evidence. Unlike Shedden, the trial court here did
    not expressly state that the suppression issue was preserved for appeal. The trial court had
    already ruled on a suppression motion and did not advise counsel that it would be considered at
    another time as occurred in Bouyer.        The affirmative statement of ―no objection‖ to the
    complained-of-evidence waives error despite a previous pretrial ruling. Estrada v. State, 
    313 S.W.3d 274
    , 302 (Tex. Crim. App. 2005); Jones v. State, 
    833 S.W.2d 118
    , 126 (Tex. Crim. App.
    5
    1992). We find the objection to evidence of the fruits of the search was waived.1 Having
    considered the only remaining issue as directed by the Texas Court of Criminal Appeals, we
    affirm the judgment of the trial court.
    Jack Carter
    Justice
    Date Submitted:            November 20, 2012
    Date Decided:              December 13, 2012
    Do Not Publish
    1
    Even though an affirmative statement of ―no objection‖ waives the right to complain of the admissibility of
    evidence, the defendant may still receive a jury instruction under Article 38.23 of the Texas Code of Criminal
    Procedure if the evidence raises a contested factual issue that is material to the lawfulness of obtaining evidence.
    ―These are two distinct issues: one is a legal question of admissibility for the judge and the other is a question of
    disputed fact for the jury’s consideration and resolution.‖ Holmes v. State, 
    248 S.W.3d 194
    , 196 (Tex. Crim. App.
    2008).
    6