Jimmie Jones, Jr. v. The State of Texas--Appeal from 384th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JIMMIE JONES, JR., )

) No. 08-03-00360-CR

Appellant, )

) Appeal from the

v. )

) 384th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D01951)

)

O P I N I O N

This is an appeal from a conviction for the felony offense of possession of cocaine. The trial court found Appellant guilty and assessed a punishment of 5 years= confinement. On appeal, Appellant challenges the trial court=s denial of his motion to suppress the evidence seized. We affirm.

At the motion to suppress hearing, El Paso Police Officer Fernando Ontiveros testified that on the night of February 12, 2003, he and his partner Officer Guevara were on duty traveling southbound on Dyer Street when they noticed a black Hyundai Santa Fe in the parking lot of the Colonia Motel. Officer Ontiveros stated that he recognized the vehicle as belonging to the mother of Michael Smith, a wanted subject. They drove into the parking lot to conduct a license check on the vehicle, and they verified that it did in fact belong to Alma Thompson, Mr. Smith=s mother. Officer Ontiveros testified that once they verified the owner of the vehicle, they went to talk to the clerk at the front desk to find out who was using the vehicle. The front desk clerk advised them that the person who owned the vehicle was in room 116 and she proceeded to show them a register card which named Alma Thompson as the person who rented the room. Officer Ontiveros testified that at this point, he believed Ms. Thompson had rented the room for Mr. Smith and that he could possibly be in the room at that time. Officer Ontiveros gave the front desk clerk a description of Mr. Smith and she stated that she believed she had seen somebody matching that description inside the room. Then as Officer Ontiveros and his partner were walking towards room 116, they noticed Ms. Thompson driving away but they did not see Mr. Smith in the vehicle.

When they reached the room, Officer Ontiveros testified that he knocked several times and did not get an immediate answer, but he could hear some noise coming from inside the room. Shortly thereafter, the Appellant partially opened the door and the officers explained to him that they were looking for Mr. Smith and asked if anybody else was inside the room. Appellant stated that there was no one else inside the room, but Officer Ontiveros testified that he could see a person inside the room sitting on a chair near a table, but could not identify the person. Officer Ontiveros testified that the Appellant gave consent for him and his partner to enter the room and search for Mr. Smith. According to his testimony, the Appellant opened the door and stepped to the side. Officer Ontiveros further testified that he did not push the Appellant to the side to enter the room. On cross-examination, Officer Ontiveros stated that he carried consent-to-search forms in his vehicle, but that he did not ask the Appellant to sign one since he had provided verbal consent.

As soon as he entered the room, Officer Ontiveros saw a female sitting in a chair near the table. He then proceeded to the back of the motel room and noticed that the bathroom door was closed, leading him to believe that Mr. Smith was hiding in there. He checked the door knob to see if it was locked and upon seeing that it was not, he opened the door. He testified that the only person in the bathroom was a man sitting on the toilet as if attempting to hide. He testified that he is able to recognize Mr. Smith by sight, and that he was not present in the hotel room. As Officer Ontiveros walked out of the bathroom, he looked down towards the bed and observed in plain view a plastic baggy containing a green leafy substance which he believed to be marijuana. Then believing Mr. Smith could be hiding under the bed, he looked underneath the bed and saw a plastic tray containing what appeared to be several little white yellowish rock like substances which he believed to be crack cocaine.

After this, all the individuals in the motel room were handcuffed and everyone was placed under arrest; Officer Ontiveros and his partner then proceeded to conduct a search of the room. Officer Ontiveros testified that his partner found more crack cocaine between the mattresses and in the night stand. He then requested a canine unit to do a further search of the room which resulted in the uncovering of some money. Officer Ontiveros testified that he asked the Appellant who the narcotics belonged to and that he admitted to being the owner of the marijuana, but claimed that he did not own the cocaine. He also stated that the money belonged to him and that it was his income tax return.

The Appellant also testified at the motion to suppress hearing. He testified that when the police knocked at the door, he was in the bathroom washing his face and brushing his teeth. When he went to open the door, Officer Ontiveros asked him if Mr. Smith was there, and he stated that he was not. He was then asked who was inside the room and he stated that other than himself, a person by the name of Victor and Victor=s wife. He testified that the officer immediately shoved him out of the way, went inside the room and started opening drawers. He then asked the officer what he was doing and told him that he was not allowed to do that, but the officer simply responded by telling him to sit down and shut up. He testified that the officer looked under the bed and pulled out a tray containing marijuana and cocaine. He testified that he told the officers that the drugs were not his and that he did not know who they belonged to. He testified that the officers never asked him to sign a consent form and that he never consented to them entering the room. On cross-examination, he testified that he did not know Mr. Smith. At the conclusion of the motion to suppress hearing, the trial court stated that it was taking the matter under advisement. At the beginning of the trial on the merits, the trial court stated that it was denying Appellant=s motion to suppress. Upon hearing the evidence at the trial, the trial judge found Appellant guilty of possession of cocaine and assessed a punishment of five years= confinement. Appellant now timely brings this appeal.

In his sole point of error, Appellant asserts that the trial court abused its discretion in denying his motion to suppress evidence obtained as a result of the warrantless search of the hotel room. Specifically, Appellant contends that the warrantless search of the hotel room was unreasonable because it was made without the Appellant=s consent in violation of the Fourth Amendment of the U.S. Constitution, and Article I, section 9, of the Texas Constitution.

In order to preserve a complaint concerning the admission of evidence for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling he desired of the court, unless the specific grounds were apparent from the context. 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). It is well settled that when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988); Gearing v. State, 685 S.W.2d 326, 329 (Tex.Crim.App. 1985), overruled on other grounds, Woods v. State, 956 S.W.2d 33 (Tex.Crim.App. 1997); Traylor v.State, 855 S.W.2d 25, 26 (Tex.App. -El Paso 1993, no pet.). However, when the defendant affirmatively asserts during trial that he has Ano objection@ to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the adverse pretrial ruling. Dean, 749 S.W.2d at 83; Gearing, 685 S.W.2d at 329; Traylor, 855 S.W.2d at 26.

In this case, Appellant filed a Motion to Suppress the evidence seized from the search of the hotel room. After holding a motion to suppress hearing, the trial judge did not make a ruling, but rather stated that it was taking the motion under advisement. At the beginning of the trial, the trial judge stated that he was denying the motion to suppress the evidence.[1] Before any witnesses were called, the Appellant=s attorney stated that he was stipulating to the drugs. Once the hearing was underway, during the direct examination of Officer Ontiveros, the State moved to admit State=s Exhibits One and Two, which were identified by Officer Ontiveros as the marijuana and cocaine, respectively, that had been found in Appellant=s hotel room. Appellant=s attorney affirmatively stated the he had no objection to the evidence. As such, although Appellant initially preserved error, Appellant=s counsel affirmatively waived it at trial. See Welch v. State, 993 S.W.2d 690, 694 (Tex.App.- San Antonio 1999, no pet.); Hardin v. State, 951 S.W.2d 208, 210 (Tex.App.--Houston [14th Dist.] 1997, no pet.). Therefore, Appellant=s Issue One is overruled.

Accordingly, we affirm the trial court=s judgment.

December 16, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

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

(Do Not Publish)

[1] Specifically, the trial court made the following statements:

I do remember the motion to suppress evidence that was filed in this case, and as I recall I denied the motion to suppress the evidence. . . . I did not suppress the evidence so the evidence is coming in.