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Nelson v. State

Court of Criminal Appeals of Texas, Panel No. 1
Dec 9, 1981
626 S.W.2d 535 (Tex. Crim. App. 1981)
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Summary

holding that where written motions to suppress had lain "dormant" without hearing or decision, oral motion to suppress first raised after evidence was admitted was untimely and did not preserve error

Summary of this case from Hardin v. State
See 9 Summaries

Opinion

No. 60997.

December 9, 1981.

Appeal from the Dallas County Criminal Court, No. 5, Tom Price, J.

Mike Aranson, Dallas, for appellant.

Henry Wade, Dist. Atty., and Maridell Templeton and Randy Biddle, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, CLINTON and McCORMICK, JJ.

OPINION

ROBERTS, Judge.

The trial court found the appellant guilty of theft, a class B misdemeanor, and assessed a punishment of sixty days in jail (probated) and a fine of one hundred dollars.

The only ground of error set forth is, "The trial court erred in denying Appellant's motion to suppress evidence." This ground was not preserved for review because the motion to suppress evidence was presented to the trial court untimely, if at all.

The record contains a written "Motion to Suppress and Motion to Dismiss," which both were based on the violation of V.A.C.C.P. Article 18.16. They moved that the allegedly stolen sunglasses be suppressed because of an illegal search and seizure, and that the charge be dismissed because of a due process violation. These motions lay dormant. No pre-trial hearing was held. The sunglasses were admitted into evidence without objection, other than an objection to the chain of custody. Only after the State rested its case did the appellant "urge its motion." The court recessed to study the law. When the trial resumed, the following occurred:

"THE COURT: What was your motion?

"MR. ARANSON: All right, Your Honor, if I may reiterate, at that point, Your Honor, —

"THE COURT: That's your Motion to Dismiss, is that correct?

"MR. ARANSON: Yes, and it's also, Your Honor,-of course, upon the State resting, we reurge our motion on the basis that there's no evidence before the Court that the State complied in any way with Article 18.16 of the Code of Criminal Procedure.

"THE COURT: You're talking about-Well, I'm going to deny the Defendant's Motion to Dismiss.

"MR. ARANSON: All right.

"THE COURT: What says the defense now?

"MR. ARANSON: The defense says that we are ready to proceed, Your Honor. Certainly take exception to the Court's ruling on our motion."

The record indicates that the appellant presented, and obtained a ruling on, only her motion to dismiss-not on her motion to suppress evidence. Even if we could find that the motion to suppress had been presented at the same time, it would have been too late. Thompson v. State, 486 S.W.2d 343, 344 (Tex.Cr.App. 1972). The ground was not preserved for review.

The judgment is affirmed.

Summaries of

Nelson v. State

Court of Criminal Appeals of Texas, Panel No. 1
Dec 9, 1981
626 S.W.2d 535 (Tex. Crim. App. 1981)

holding that where written motions to suppress had lain "dormant" without hearing or decision, oral motion to suppress first raised after evidence was admitted was untimely and did not preserve error

Summary of this case from Hardin v. State

holding that, even if appellant had obtained ruling on motion to suppress evidence obtained by illegal search and seizure, it would have been untimely because motion was first presented after State rested its case

Summary of this case from Connor v. State

holding defendant failed to preserve error when she failed to object to admission of evidence and failed to obtain a ruling on her motion to suppress evidence before that evidence was admitted

Summary of this case from Bell v. State

concluding the defendant's motion to suppress, filed after the parties rested, was untimely and preserved nothing for appellate review

Summary of this case from King v. State

concluding that defendant failed to preserve error on motion to suppress when she failed to raise it until after State had rested its case

Summary of this case from McMurphy v. State

concluding defendant did not timely obtain ruling on motion to suppress until after evidence admitted and failed to preserve error for review

Summary of this case from Sanders v. State

concluding that defendant did not timely obtain a ruling on motion to suppress until after evidence was admitted and failed to preserve error for review

Summary of this case from Pettis v. State

concluding that a motion to suppress evidence that was presented, if at all, after State had rested, was untimely and any error in denying motion was not preserved for appeal

Summary of this case from Young v. State

concluding that motion to suppress evidence presented, if at all, after State had rested, was untimely and any error in denying motion was not preserved for appeal

Summary of this case from Moore v. State
Case details for

Nelson v. State

Case Details

Full title:Peggy Short NELSON, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas, Panel No. 1

Date published: Dec 9, 1981

Citations

626 S.W.2d 535 (Tex. Crim. App. 1981)

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