No. 05-05-00390-CR
Opinion Filed March 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 21261. Affirm.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
The State indicted appellant for possession of cocaine in an amount of four grams or more but less than two hundred grams, including any adulterants or dilutants, see Tex. Health Safety Code Ann. §§ 481.102 481.115(d) (Vernon 2003 Supp. 2005), enhanced with a prior felony conviction for possession of cocaine. See Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2005). Appellant filed a motion to suppress the cocaine and statements made at the scene, alleging violations of the state and federal constitutions and the code of criminal procedure. The court denied the motion. A jury convicted appellant, found the enhancement paragraph true, and sentenced appellant to sixty-five years' confinement and a $1000 fine. In two issues, appellant contends the trial court erred by denying his motion to suppress. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm.
Background
The trial court held two hearings on appellant's motion to suppress: the first concerned the admissibility of cocaine seized following a pat down, and the second concerned the admissibility of appellant's statements admitting the substance was his and that it was cocaine. At the hearings, the sole witness was Texas Department of Public Safety Trooper Lance Yeager. He testified he stopped appellant for speeding on April 24, 2002, around 8:15 p.m. As he walked to appellant's car, Yeager noticed the windshield was cracked on the driver's side and the inspection sticker belonged to another vehicle. He also noticed there was a passenger in the front seat. Yeager asked appellant to step to the rear of the vehicle, after which he asked appellant for consent to pat him down for Yeager's safety. Appellant consented. During the pat down, Yeager observed a bulge in appellant's front pants pocket and asked what it was. Appellant did not answer. Instead, he removed the object from his pocket, tried to conceal it in his hand, dropped it on the ground, and put his foot over it. Yeager asked appellant to step away from the object. Appellant removed his foot but, instead of leaving the object on the ground for Yeager to pick up, appellant picked it up and looked around as if he were going to run. So Yeager pulled out his can of Mace and told appellant to drop the object on the ground or he would mace him. Appellant complied and dropped the object. Yeager picked up the object and again asked appellant what it was. Appellant said it was crack. Yeager opened the object and saw what appeared to be crack cocaine. Standard of Review
In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). We give almost total deference to a trial court's determination of historical facts and apply a de novo review of the trial court's application of the law to the facts. Estrada, 154 S.W.3d at 607; Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). When the trial court does not file findings of fact, as here, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implied findings of fact to support its ruling, provided those findings are supported by the record. Estrada, 154 S.W.3d at 607 (citing State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000)). We will uphold the trial court's ruling on a motion to suppress if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. Analysis
Appellant argues the trial court should have suppressed the cocaine because Yeager did not have probable cause to search him and the subsequent seizure of the cocaine violated his rights against unreasonable searches and seizures guaranteed by the fourth amendment to the U.S. Constitution. He also argues the court should have suppressed his statement that the object contained crack because he made the statement under duress, in violation of Miranda, the Texas and U.S. Constitutions, and the code of criminal procedure. A. Motion to Suppress Cocaine
Appellant argues Yeager's search was unreasonable under the fourth amendment because Yeager did not have probable cause to pat down appellant; Yeager did not believe the bulge was a weapon and he did not fear for his safety; and appellant was calm, compliant, cooperative, and did not appear to have been drinking. But appellant consented to the pat down. And consent to search is a well-established exception to the constitutional requirement of probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000). Additionally, appellant did not answer when Yeager asked him what the object was. Instead, he removed the object from his pocket and attempted to conceal it in his hand and then dropped it on the ground and attempted to conceal it with his foot. When Yeager asked him to step away from the object, appellant picked it up and acted as though he were going to run. Yeager testified that appellant's behavior was abnormal for a traffic stop and he thought appellant was trying to hide something from him. Yeager described the object as at least the size of a golf ball and wrapped in black electrical tape, but testified he was not sure what it contained and hoped "it wasn't a hand grenade." The evidence showed Yeager was alone, it was evening, and appellant had a passenger in the vehicle that had not been searched. Combine this with appellant's refusal to comply with instructions, furtive movements, apparent contemplation of flight, and the fact appellant was subject to arrest for displaying an inspection sticker issued for another vehicle, see Tex. Transp. Code Ann. §§ 543.001, 548.603 (Vernon 1999), Yeager was justified in retrieving the object to determine whether it contained a weapon. See Stoker v. State, 170 S.W.3d 807, 813 (Tex.App.-Tyler 2005, no pet.) (officer justified in opening cigarette box found during pat down to determine whether it contained weapon); Ramsey v. State, 806 S.W.9d 954, 958 (Tex.App.-Austin 1991, pet. ref'd) (officer justified in searching shaving kit because of late hour, officer alone, appellant's gesture indicated trying to hide kit from officer, kit large enough to contain weapon); see generally Haas v. State, 172 S.W.3d 42 (Tex.App.-Waco 2005, pet. ref'd). Viewing the evidence in the light most favorable to the trial court's ruling, we conclude the pat down and subsequent seizure of the cocaine was lawful. We overrule appellant's first issue. B. Motion to Suppress Statement
After Yeager picked up the object from the ground, he asked appellant what was in it, and appellant said it was crack. In his second issue, appellant argues the trial court should have suppressed this statement because it was made under the threat of being sprayed with Mace. We do not reach the merits of appellant's complaint because we conclude he failed to preserve error for our review on this issue. It is well settled that when a pretrial motion to suppress evidence is overruled, the accused does not need to object when the evidence is offered at trial in order to preserve error on appeal. Wyle v. State, 777 S.W.2d 709, 715 n. 5 (Tex.Crim.App. 1989); Dean v. State, 749 S.W.2d 80, 82-83 (Tex.Crim.App. 1988). However, when the accused affirmatively asserts "no objection" when evidence of the same fact is offered, he waives any error in the admission of the evidence despite the pretrial ruling. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App.), cert. denied, 506 U.S. 839 (1992); Dean, 749 S.W.2d at 82-83; Nicholas v. State, 502 S.W.2d 169, 174-75 (Tex.Crim.App. 1973); Traylor v. State, 855 S.W.2d 25, 26 (Tex.App.-El Paso 1993, no pet.). Here, when the State offered into evidence the laboratory report describing the analysis of the substance as containing 7.90 grams of cocaine, defense counsel expressly stated, "no objection." Consequently, appellant waived error, if any, in the admission of his statement that the object contained crack cocaine. See Dean, 749 S.W.2d at 82-83 (defendant waived complaint fingerprints removed from scene should have been suppressed by stating "no objection" when photograph of fingerprints offered at trial); Traylor, 855 S.W.2d at 26 (defendant waived complaint cocaine should have been suppressed by stating "no objection" when State offered exhibit describing contraband). We overrule appellant's second issue. Conclusion
Having overruled appellant's two issues, we affirm the judgment of the trial court.