Summary
In Winegarden v. State, 39 So. 1013, this Court held, "The refusal of bail pending appeal from a conviction for grand larceny of a defendant forty-nine years of age, because of alleged ill-health, consisting of heart disease, asthma, catarrh, and indigestion, was not an abuse of discretion."
Summary of this case from Martin v. Pittman, SheriffOpinion
No. 05-04-01597-CR
Opinion Filed June 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-86453-03. Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Cary A. Winegarden appeals his jury conviction for driving while intoxicated. In a sole issue, he asserts the trial court erred in denying his motion to suppress evidence. Agreeing with the State that Winegarden waived any error, we affirm the trial court's judgment. To preserve error for appellate review, a motion to suppress must be specific and must be ruled upon before substantial testimony is given regarding the allegedly illegally-seized evidence, unless "carried with" trial with instructions from the trial judge that a ruling will occur upon the conclusion of evidence. See Tex. R. App. 33.1(a); Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App. 2004); Coleman v. State, 113 S.W.3d 496, 499-500 (Tex.App.-Houston [1st Dist.] 2003), aff'd, 145 S.W.3d 649 (Tex.Crim.App. 2004); Angelo v. State, 977 S.W.2d 169, 177 (Tex.App.-Austin 1998, pet. ref'd). Here, the record reflects that although Winegarden filed a motion to suppress approximately one month before trial, he did not set it for hearing and did not bring it to the trial judge's attention until after the State had admitted into evidence, by agreement with Winegarden, the videotape of the stop and arrest, had presented the arresting officer's testimony without any objection, and had rested its case-in-chief. By that point, Winegarden's motion was untimely. See Coleman, 113 S.W.3d at 500; Angelo, 977 S.W.2d at 177. Accordingly, we resolve Winegarden's sole issue against him. The trial court's judgment is affirmed.