Kenneth Linicomn v. The State of Texas--Appeal from 3rd District Court of Anderson County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00055-CR

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KENNETH LINICOMN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 3rd Judicial District Court

Anderson County, Texas

Trial Court No. 27486

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Kenneth Linicomn was indicted for the offense of possession of a controlled substance, cocaine, in an amount less than one gram. The indictment alleged two prior felony convictions, and the charged offense was thus punishable as a second degree felony. // Linicomn was tried in November 2004. Before trial, Linicomn moved the trial court to suppress evidence obtained during his arrest and the police investigation. The trial court denied that motion. Following presentation of evidence, the jury could not reach a unanimous decision, and the trial court declared a mistrial. A new trial was held in January 2005, and that jury convicted Linicomn and assessed punishment at twenty years' imprisonment and a $5,000.00 fine. The trial court sentenced Linicomn according to the jury's verdict.

Linicomn complains on appeal that the trial court erred in failing to conduct a rehearing on the motion to suppress which had been denied before his first trial.

Linicomn's appellate argument is that the trial court was obligated to rehear his motion to suppress before the second trial commenced. Linicomn claims the trial court's failure to rehear the suppression issue denied Linicomn his right to a fair trial.

At a pretrial hearing (of the second trial, which resulted in the instant conviction), shortly before the State presented its case-in-chief, the attorneys and the trial court discussed motions (which had been filed as part of the first trial) that "carr[ied] over to this [current] trial." As regards the suppression motion filed before Linicomn's first trial, the following exchange took place:

THE COURT: Are you asking me to take up anything on the motion to suppress now?

[DEFENSE COUNSEL]: If you are willing to reconsider the issue. Judge Evans ruled to allow it in. If you want to reconsider the issue, I will be happy to argue it again, but I was not anticipating doing that.

THE COURT: No. I will honor the other judge's ruling in the matter. The ruling on the motion to suppress, I will defer to Judge Evan's ruling.

To preserve error for appellate review, (1) the complaining party must make a timely objection specifying the grounds for the objection, if the grounds are not apparent from the context; (2) the objection must be made at the earliest possible opportunity; and (3) the complaining party must obtain an adverse ruling from the trial court. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998).

Linicomn made no objection to the trial court's deference to the prior ruling and did not ask the trial court specifically to reconsider the suppression decision made at the previous trial. Based on his statement that he did not "anticipat[e]" arguing or presenting evidence on the issue of suppression, it is evident he did not seriously want the issue revisited. With no explicit objection, the trial court's announcement that he would defer to the previous ruling can certainly not be characterized as a ruling.

Linicomn preserved nothing for appellate review. Accordingly, we overrule his point of error.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: August 26, 2005

Date Decided: September 27, 2005

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