Roberto Garcia v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00118-CR
Roberto GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court of Bexar County, Texas
Trial Court No. 1999-CR-5739
Honorable Bill M. White, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: July 23, 2003

AFFIRMED

Appellant Roberto Garcia was arrested for his third offense of Driving While Intoxicated. Garcia filed a pre-trial Jackson v. Denno motion as well as a pre-trial motion to suppress, alleging his arrest to be without probable cause and requesting all evidence gathered as the result of this arrest be suppressed. The trial court failed to rule on these motions before trial. Following his jury trial, Garcia was found guilty and sentenced to ten years' imprisonment. He now appeals his conviction, citing three issues. We overrule all three issues and affirm the judgment of the trial court.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his first issue, Garcia argues his initial detention was in violation of the Texas Code of Criminal Procedure, as well as the United States and Texas Constitutions. See Tex. Code Crim. Proc. Ann. 14.01-.03 (Vernon 2003); U.S. Const. am. IV, V; Tex. Const. art. 1, 10. He contends the trial court erred in finding otherwise.

In order to challenge evidence, a defendant may either file a pre-trial motion to suppress evidence or wait until the trial on the merits and object when the allegedly unlawfully obtained evidence is offered. See Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977). This rule also applies to questions regarding probable cause to arrest. Id. Although a trial court has the discretion to hear a motion to suppress before the commencement of trial, it may elect to determine the merits of the motion during trial when a proper objection is lodged. Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988). It is incumbent upon the defendant to properly and timely object at trial when the allegedly unlawfully obtained evidence is offered and to obtain an adverse ruling in order to preserve any error for appellate review. See Calloway, 743 S.W.2d at 649; Roberts, 545 S.W.2d at 158-59.

In the case at hand, the trial court elected to determine the merits of Garcia's motion at trial. Garcia, however, failed to object at the time the complained of evidence was presented. He also failed to obtain a ruling on his motion to suppress until after the State had rested. Garcia, therefore, has neglected to preserve error. See Calloway, 743 S.W.2d at 650 (where trial court refused to consider motion to suppress pre-trial and defendant made no objection when evidence introduced at trial no error was presented). We overrule Garcia's first issue.

2. In his second issue, Garcia claims the evidence obtained as a result of Garcia's detention was obtained in violation of the Texas Code of Criminal Procedure, as well as the United States and Texas Constitutions, and he avers the trial court abused its discretion in allowing the evidence to be admitted. See Tex. Code Crim. Proc. Ann. 38.23; U.S. Const. am. V, IX; Tex. Const. art. I, 10. Specifically, Garcia objects to the admission of testimony regarding the field sobriety tests and to the admission of the videotape of Garcia speaking with the San Antonio police.

Although Garcia filed a pre-trial motion to suppress "all items of evidence and fruits of that (unconstitutional) arrest and search," he did not obtain a ruling on the motion prior to trial. Additionally, Garcia failed to make timely, specific objections, raising the grounds discussed on appeal or to obtain a ruling on several of the objections he did make. See Tex. R. App. P. 33.1(a).

Although Garcia objected to certain pieces of testimony at trial, his trial objections do not match with the issues he raises on appeal. For example, Garcia objected to the admission of the horizontal gaze nystagmus test results, but he objected to the scientific reliability of the test, rather than whether it was obtained in a constitutional manner. Garcia also objected to the introduction of certain statements he made after his field sobriety tests began, often basing his objections on hearsay. These objections, too, fail to comport with the constitutional violations alleged on appeal. Additionally, Garcia failed to obtain a ruling on several of his objections. Finally, Garcia failed to obtain an adverse ruling on the only timely objection made during trial which remotely comports with the issues he raises on appeal. Although Garcia objected to the admission of a video tape on the basis that he was not read his Miranda rights, his request was granted and much of the audio was omitted when the tape was shown to the jury. The court's ruling as to this issue, therefore, was in Garcia's favor and leaves nothing for this Court to review.

When trial objections do not comport with the complaints raised on appeal, nothing is preserved for review. Huerta v. State, 933 S.W.2d 648, 650 (Tex. App.--San Antonio 1996, no pet.) In addition, absent an adverse ruling of the trial court which appears in the record, there is no preservation of error. Tex. R. App. P. 33.1; Darty v. State, 709 S.W.2d 652, 655 (Tex. Crim. App. 1986). The only point at which Garcia specifically argued for the omission of any statements made after his arrest was during the charge conference, near to the close of the State's evidence. He did not request an actual ruling on suppression of all evidence obtained as a result of his arrest until after the State rested its case. This complaint is not timely under Texas Rule of Appellate Procedure 33.1. Because Garcia failed to preserve error, we overrule his second issue.

3. In his third and final issue, Garcia asserts the trial court erred in allowing the prosecutor to improperly comment on his post-arrest silence. As with his other two issues, Garcia has failed to preserve error as to this complaint. Although he objected to the testifying officer's statements regarding his refusal to perform one of the field sobriety tests, Garcia failed to obtain a ruling on his objection, thereby waiving the issue for appeal. Tex. R. App. P. 33.1. As such, we overrule Garcia's third and final issue.

We overrule all three of Garcia's issues and affirm the judgment of the trial court.

Paul W. Green, Justice

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