Opinion
NO. 09-11-00434-CR
09-05-2012
WILLIAM ALLEN GILMORE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A-100376-R
MEMORANDUM OPINION
Appellant, William Allen Gilmore, appeals his conviction for possession of a controlled substance. In three issues, Gilmore argues on appeal that the trial court erred in denying his motion to suppress evidence. We affirm the judgment of the trial court.
BACKGROUND
The Orange County Sheriff's Office obtained a warrant to search a residence after an undercover purchase of narcotics was made at the residence. Testimony established that officers believed methamphetamine was being sold in the residence regularly. The warrant gave the officers the authority to search the residence, as well as four individuals believed to be residing there, and "persons unknown." Gilmore was not one of the individuals identified by name in the probable cause affidavit believed to be residing at the residence. As officers approached the residence to execute the warrant, they observed Gilmore on the front porch. Gilmore was ordered to get off the porch and he complied. Officer Joseph Jacobs placed Gilmore on the ground in hand restraints and conducted a pat-down search for safety purposes. Jacobs testified that while performing the pat-down search, he "located a bulge or an object" in Gilmore's pocket. He described the bulge as "a cylinder type . . . kind of a round cylinder shape." Jacobs asked Gilmore what it was and Gilmore replied the object was "his meds." Jacobs removed the object from Gilmore's pocket and observed a "purplish-colored . . . prescription medication bottle[.]" The label had been peeled off the bottle, and Jacobs did not hear any rattling of pills in the bottle. Jacobs opened the pill bottle. Inside the bottle, Jacobs found "clear plastic baggies that contained an off-white, crystal-like residue that [he] believed to be methamphetamines."
The forensic scientist who tested the substance found in the pill bottle testified that it was .28 grams of methamphetamine. The methamphetamine was admitted into evidence, without objection, as State's Exhibit 1. No witnesses were called to testify for the defense. During the charge conference, defense counsel stated as follows:
Your Honor, we have four submissions related to the jury question to suppress the methamphetamine and prescription bottle, based on theThe State responded and argued that Jacobs had the legal right to conduct the initial pat-down and then developed reasonable suspicion and probable cause sufficient to support the search of the pill bottle. The trial court denied defense counsel's proposed submissions to the charge. Thereafter, defense counsel stated that he had a motion to suppress evidence to file with the court regarding whether the search was lawful. The trial court denied the motion to suppress.
failure of the officer to have a warrant to search [Gilmore] and/or a warrant to open that closed container, which was a prescription bottle, which revealed the methamphetamine.
The officer's testimony was the bottle - he could not see through it, so he did not see any contraband, and he believed it was the weight of a bottle that was empty.
Also, the officer's direct testimony was that he did not have a warrant to search [Gilmore], and then on redirect examination, said he felt he had authority to do so.
The warrant is in evidence. There's an issue of fact of whether or not the warrant which was issued to search for the - search that residence included the valid search of [Gilmore] and the closed container.
The jury convicted Gilmore of felony possession of a controlled substance, specifically, methamphetamine in an amount less than one gram. Gilmore was sentenced to eighteen months confinement in state jail. Gilmore argues on appeal that the trial court's denial of his motion to suppress evidence, and its admission into evidence of the methamphetamine seized from Gilmore, violated the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article I, Section 19 of the Texas Constitution, and article 38.22 of the Texas Code of Criminal Procedure.
Article 38.22, cited in Gilmore's appellate brief as a basis of error regarding Gilmore's motion to suppress, is inapplicable to the present case. See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005) (addressing when a written statement by an accused may be used against him).
ANALYSIS
To preserve a complaint for 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); Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App. 2009). A reviewing court should not address the merits of an issue that has not been preserved for review. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (concluding that error preservation is a "systemic" requirement). A defendant may challenge the admissibility of evidence in two ways: (1) he may object to the admission of the evidence when it is offered at trial and request a hearing outside the presence of the jury; or (2) he may file a pretrial motion to suppress the evidence and have it ruled upon before trial. Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). If a defendant waits to object until the State offers the evidence at trial, his objection must be made before substantial testimony is presented to the jury regarding the evidence. Ratliff v. State, 320 S.W.3d 857, 861 (Tex. App.—Fort Worth 2010, pet. ref'd.).
Gilmore did not file a pretrial motion to suppress evidence. At trial, Jacobs testified without objection regarding the search of Gilmore and seizure of the methamphetamine found in the pill bottle. During cross-examination, defense counsel elicited further testimony from Jacobs regarding the search and seizure. When the State offered the methamphetamine into evidence, defense counsel affirmatively stated, "I have no objection." State's Exhibit 1 was admitted, and the State's forensic witness testified without objection that the pill bottle contained methamphetamine weighing .28 grams. At no time before or during the presentation of evidence did Gilmore object to the admissibility of the evidence he contends should have been suppressed. Gilmore did not raise or file his motion to suppress evidence until the jury charge conference, after the presentation of evidence was completed and both parties had rested. Gilmore's motion to suppress evidence was untimely and failed to preserve his issues for review. See Tex. R. App. P. 33.1(a); Holmes, 248 S.W.3d at 200 (concluding "appellant affirmatively waived his right to have the trial judge determine the admissibility of the crack pipe by stating 'No objection' when the State offered that evidence."); see also Ratliff, 320 S.W.3d at 860-62.
Finding Gilmore failed to preserve the only asserted error, we affirm the judgment of the trial court.
AFFIRMED.
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CHARLES KREGER
Justice
Do not publish Before McKeithen, C.J., Gaultney and Kreger, JJ.