Daniel Medrano v. State ( 2004 )

NO. 07-02-0506-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MAY 17, 2004
______________________________
DANIEL MEDRANO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-439055; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
In this appeal, appellant Daniel Medrano challenges his conviction of possession
of a controlled substance (cocaine) with intent to deliver in an amount of less than 200
grams but more than four grams and the resulting jury-assessed punishment of 44 years
confinement in the Institutional Division of the Texas Department of Criminal Justice. In
pursuing his appeal, he presents one issue in which he contends that the trial court erred
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
in denying his motion to suppress evidence. Disagreeing that reversal is required, we
affirm the judgment of the trial court.
On December 17, 2001, at approximately 1:00 p.m., Lubbock police stopped a
vehicle as a result of a traffic violation. As the vehicle was pulled over, an Hispanic man
jumped out of the right front passenger seat and fled the scene. Lubbock officers entered
a nearby bar and inquired if anyone had come into the bar within the last few minutes.
Appellant was in that bar and was pointed out by the doorman as a person who had just
entered. Appellant was detained by a back-up officer who obtained his I.D. and ran a
warrant check on him. While they were awaiting the results of the check, the officer who
stopped the vehicle arrived, but was unable to identify appellant as the fugitive. As a result
of the check, appellant was arrested because of an outstanding warrant. He was placed
in a patrol car and transported to the police station. Upon arrival there, appellant was
taken out of the car and, as this was done, the cocaine giving rise to the prosecution was
found. He subsequently gave the confession sought to be suppressed.
Appellant argues that he should have been released when the officer who stopped
the car arrived at the bar and could not identify him as the individual who ran from the car.
He reasons that because of this, “his Terry2 detention became unreasonable and exceeded
the scope [of] intrusion allowed under Terry.” Appellant filed a pretrial motion to suppress
on this basis. Although a hearing was held on the motion, no order expressly overruling
the motion appears in the record. Even so, the trial court’s actions at trial, including the
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
2
admission of the cocaine into evidence is sufficient to constitute an implied overruling of
the motion and, absent waiver, preserve the question for appellate review. See Gutierrez
v. State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001); Rey v. State, 897 S.W.2d 333, 336
(Tex. Crim. App. 1995).
In considering appellant’s appellate contentions, the record reveals the following
colloquy when the cocaine was tendered into evidence by the State:
Prosecutor: Your Honor, at this time, we would tender State’s Exhibits Five
and Five-B.
Defense Counsel: Judge, there hadn’t been anything to say that scientifically
it is cocaine, but I know that is what they picked up, and I don’t object to that.
[Emphasis added.]
The general rule is that when a pretrial motion to suppress is overruled, an accused
need not subsequently object to the admission of the same evidence at trial in order to
preserve error. See Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985),
overruled on other grounds by Woods v. State, 956 S.W.2d 33 (1997); McGrew v. State,
523 S.W.2d 679, 681 (Tex. Crim. App. 1975). However, when the accused affirmatively
states at trial that he has “no objection” to the admission of the evidence about which
complaint is made on appeal, despite the pretrial ruling, he waives any error in the
admission of the evidence. See Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App.
1992), cert. denied, 507 U.S. 921, 113 S. Ct. 1285, 122 L. Ed. 2d 678 (1993); Gearing v.
State, 685 S.W.2d at 329; Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983).
3
Because of appellant’s express consent to the admission of the evidence, he has
waived his right to appellate review of its admission in this direct appeal. Appellant’s issue
must be, and is hereby overruled.
Accordingly, the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
Do not publish.
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