Chance Wade Rosser v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00328-CR
CHANCE WADE ROSSER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. M200801420
MEMORANDUM OPINION
Chance Wade Rosser appeals his conviction for the Class B misdemeanor offense
of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West 2011). In his sole
issue, Rosser contends that “the trial court erred in denying Defendant’s motion to
suppress because the search warrant for Defendant’s blood was not issued by a neutral
and detached magistrate.” We will affirm.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds for the
desired ruling if they are not apparent from the context of the request, objection, or
motion. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining party
must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2).
To preserve a complaint about the illegal seizure of evidence, a defendant must
either file a motion to suppress and obtain a ruling on the motion or timely object when
the State offers the evidence at trial. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1);
Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977); Ratliff v. State, 320 S.W.3d
857, 860-61 (Tex. App.—Fort Worth 2010, pet. ref’d); Thomas v. State, 884 S.W.2d 215,
216-17 (Tex. App.—El Paso 1994, pet. ref’d). If the defendant waits until the State offers
the evidence at trial, the objection to the evidence must be made before a witness gives
substantial testimony about it. See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App.
[Panel Op.] 1980) (explaining that an objection to evidence “must be urged at the
earliest opportunity”); Ratliff, 320 S.W.3d at 261; Angelo v. State, 977 S.W.2d 169, 177
(Tex. App.—Austin 1998, pet. dism’d w.o.j.) (op. on reh’g).
In this case, Rosser filed a Motion to Suppress, a Motion to Suppress Evidence
Seized by Search Warrant, and a First Amended Motion to Suppress Evidence Seized by
Search Warrant. But Rosser’s contention on appeal was not the basis of any of these
motions, nor was it mentioned during the suppression hearing. Furthermore, during
trial, when the State offered evidence of the blood test, Rosser objected based on the
objections/matters raised during the suppression hearing. He did not object to the
evidence based on the contention he now urges on appeal.
Rosser v. State Page 2
The first time Rosser raised the contention he now urges on appeal was at the
hearing on his motion for new trial. Rosser had filed a motion for new trial, stating only
that (1) the trial court erred in denying his motion to suppress and (2) the verdict was
contrary to the law and the evidence. At the hearing on the motion, Rosser then
attempted to “reoffer all of the testimony, exhibits, objections, and arguments of
Counsel from the Suppression Hearing.” This was met with some resistance by the
State, and the trial court denied the motion for new trial. Rosser then asked to make a
“Bill of Exception.” At that time, Rosser, for the first time, argued that the search
warrant for his blood was not issued by a neutral and detached magistrate. At the close
of his argument, he stated, “And that’s all we ever wanted in this Motion for New Trial,
to make sure that that was very, very clear that we’re going after that ground, in
addition to the other grounds that [Rosser’s trial counsel] preserved for appellate
review, Your Honor.” The trial court replied, “Overruled.”
This argument by Rosser was untimely. See TEX. R. APP. P. 33.1(a); TEX. R. EVID.
103(a)(1); Roberts, 545 S.W.2d at 158; Ratliff, 320 S.W.3d at 860-61; Thomas, 884 S.W.2d at
216-17. Furthermore, he offered no legitimate reason to justify his delay in raising the
complaint. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). We thus
conclude that Rosser has failed to preserve his complaint for our review. See Mayfield v.
State, 800 S.W.2d 932, 935-36 (Tex. App.—San Antonio 1990, no pet.). We overrule
Rosser’s sole issue and affirm the trial court’s judgment.
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REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 28, 2011
Do not publish
[CR25]
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