Delfina Espinosa Villareal v. The State of Texas--Appeal from 112th District Court of Crockett County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

Appeal from the

112th District Court

of Crockett County, Texas

(TC#2084)

M E M O R A N D U M O P I N I O N

Delfina Espinosa, also known as Delfina Villareal, appeals her conviction for the offense of possession of a controlled substance with the intent to deliver. A jury found Appellant guilty and assessed punishment at fifteen (15) years' confinement in the Texas Department of Criminal Justice Institutional Division. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On December 22, 2000, Sheriff Billy Shane Fenton of the Crockett County Sheriff's Office received information from a reliable, confidential informant that Appellant was in possession of a controlled substance (cocaine) and currency at her residence in Ozona. The informant told Fenton that she had been in Appellant's home within the past twenty-four hours and had observed cocaine. Before swearing out his affidavit, Fenton stated he went by the house to obtain the right verbiage of what the house looked like and where the door was positioned but that he did not see any evidence of criminal activity.

The magistrate issued a search warrant based on Fenton's affidavit. The relevant portion reads as follows:

Affiant was advised by a confidential informant that the said DELFINA VILLAREAL has a quantity of COCAINE and U.S. Currency obtained for the sale of illegal narcotics concealed in her residence described above. Informant further advised Affiant that he had been in the residence with in (sic) the past 24 hours and had personally observed VILLAREAL in possession of the Cocaine and U.S. Currency.

Affiant received the above information from said informant on the 22nd day of December 2000.

Affiant believes that said informant is credible and his information reliable because informant has furnished information to the Affiant concerning drug trafficking in Crockett County, Texas, on several occasions during the past six months and on each and every occasion proved to be reliable, true and correct.

Fenton had been receiving information from the confidential informant for a number of years and specifically with regard to Appellant, for a period of six months. The informant had been used in other cases but never to obtain a search warrant. The initial contact Fenton had with the informant was not in an arrest situation, but rather the informant volunteered to talk about various drug trafficking activities in the county. The informant was not a known drug user and was never paid for her services.

Upon searching Appellant's house, the deputies located the cocaine in the ceiling of the hallway in between the two bedrooms. They located two prescription bottles; one label read Delfina Espinosa and the other Delfina Villareal. One bottle contained seven corner bags of cocaine and the other contained two rock-like substances that turned out to be cocaine. Deputies also found scales, pipes, and other drug paraphernalia, but did not locate the currency. The officers arrested Appellant and she provided a confession.

Appellant filed a pretrial motion to suppress evidence, materials, and statements obtained from her home, which the trial court denied following a hearing. When the State offered the prescription bottles, the drug paraphernalia, and Appellant's statement into evidence at trial, defense counsel replied, "no objection."

II. DISCUSSION

In her sole point of error, Appellant argues that the trial court erred in denying her motion to suppress the evidence seized during the search of her house because the search warrant was issued based on an affidavit containing uncorroborated information received from a confidential informant. We are unable to address the merits of this argument because we find that Appellant has waived any error for review.

To preserve error concerning the admission of evidence for appellate review, Appellant must have presented a timely request, objection, or motion stating the specific grounds thereof unless the grounds were apparent. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). When a pretrial motion to suppress is denied, the accused need not object to the admission at trial. Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988); Traylor v. State, 855 S.W.2d 25, 26 (Tex. App.--El Paso 1993, no pet.). However, when the accused affirmatively asserts that he has "no objection" to the admission of the evidence, he waives any error despite the pretrial ruling. Dean, 749 S.W.2d at 83; Traylor, 855 S.W.2d at 26. Although Appellant initially preserved error at the pretrial motion to suppress, defense counsel affirmatively waived it at trial. See Hardin v. State, 951 S.W.2d 208, 210 (Tex. App.--Houston [14th Dist.] 1997, no pet.)(despite adverse ruling on pretrial motion to suppress, appellant waived error in admission of cocaine by stating he had no objections when the prosecutor offered cocaine into evidence at trial). Appellant's Issue No. One is overruled.

Having overruled Appellant's sole issue on review, we affirm the judgment of the trial court.

June 17, 2004

RICHARD BARAJAS, Chief Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)