NATHANIEL SHAW, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 1, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01163-CR
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NATHANIEL SHAW, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-82523-V
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O P I N I O N
Before Justices McClung, Lagarde and Ovard
Opinion By Justice Lagarde
        Nathaniel Shaw appeals his conviction by the court for possession of cocaine. FN:1 Punishment, enhanced by prior convictions, was assessed at thirty-three years' imprisonment. Appellant's sole point of error complains that the trial court erred in overruling his motion to suppress. The evidence on the motion was presented during the trial before the court. For reasons articulated below, we overrule appellant's point of error and affirm.
        Dallas Police Officer Alan Butler testified that on May 19, 1988 he was part of a drug task force assigned to execute a search warrant on an apartment suspected of being a retail "crack house." A full tactical squad assaulted the apartment. Officer Butler and his partner, Officer Wilson, secured the rear of the building. Officer Butler stated that as he took his position, he could hear the tactical team yelling "police, police, everybody down." At this time, Officer Butler saw appellant walking hurriedly toward him; appellant was facing away from Officer Butler and looking back over his shoulder. When appellant was approximately twenty feet from Officer Butler, who was in uniform, appellant made visual contact with the officer. Officer Butler testified that upon making visual conduct, appellant tossed away a handkerchief that he had been carrying and continued walking towards the officers. Officer Butler, who had his gun drawn, ordered appellant to the ground. Instead of obeying, appellant continued walking toward the officers. When appellant was close enough to come in physical contact with Officer Butler, the officer pushed him to the ground.
        Upon receiving information that the area had been secured, Officer Butler retrieved the handkerchief and discovered that it contained three clear plastic vials partially filled with what Officer Butler, in his experience, believed was crack cocaine. A field test, made by Officer Wilson, confirmed Officer Butler's suspicions.
        Officer Butler stated that he detained appellant when he ordered appellant to lie on the ground. The officer said that he personally knew that other officers had been previously shot at when executing warrants on crack houses. Sometimes the individuals outside the crack houses had weapons, and Officer Butler's orders were to "take down anyone in the proximity of the apartment for the [tactical] officer's safety."
Officer Butler also stated that prior to this incident he had seen other individuals attempt to quickly rid themselves of illegal drugs by throwing down beer cans or paper bags containing the contraband. He said that individuals commonly threw down contraband to avoid being connected with the contraband.
        Before trial, appellant filed a motion to suppress the crack cocaine evidence, claiming that his federal constitutional rights under the fourth and fourteenth amendments were violated by his warrantless detention and search. The court overruled appellant's motion, and appellant now claims that the denial of his motion was erroneous. On appeal and for the first time, appellant also argues that the evidence is inadmissible because appellant abandoned the handkerchief and its contents as a direct result of police misconduct.
        Our review of the record reveals that appellant failed to preserve his objection regarding the evidence. When the State offered into evidence the three vials of crack, appellant's council specifically stated that he had no objection to their introduction. Appellant's counsel also stated that he had no objection to the laboratory test results on two of the vials. The test results indicated that the vials contained cocaine. Appellant's complaint concerning his motion to suppress was rendered moot when he affirmatively stated "no objection" to the evidence at the trial level. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983).
        Appellant also urges that the evidence resulted from abandonment due to police misconduct. In his pretrial motion to suppress, he argued that the police lacked probable cause to arrest him; therefore, the evidence constituted inadmissible fruit of the poisonous tree. Appellant may not, for the first time on appeal, urge a point of error different from that raised at the trial court level. Nelson v. State, 607 S.W.2d 554, 555 (Tex. Crim. App. [Panel Op.] 1980).
        Additionally, we hold that the police did not engage in misconduct which caused appellant to abandon the handkerchief and its contents. Based on the testimony contained in the record before us, we conclude that, beyond a reasonable doubt, appellant intended to abandon the evidence, and did so voluntarily. Abandonment consists of two components: (1) intent to abandon the property and, (2) a freely made, uncoerced, decision to abandon. Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1988). In resolving abandonment issues, the reviewing court must determine whether an accused voluntarily abandoned independent of police misconduct. Id. Voluntary abandonment stands as an independent act involving a calculated risk. See Salcido v. State, 758 S.W.2d 261, 264 (Tex. Crim. App. 1988). The record reflects that appellant walked quickly away from the area of the raid while looking back over his shoulder. At the moment appellant faced uniformed Officer Butler, he threw away the handkerchief. At this point, Officer Butler had not issued any orders to appellant, although the officer was standing with his gun drawn. Officer Butler testified that he had often seen individuals toss away contraband to avoid being connected to it. These facts offer support to the proposition that appellant threw down the property as part of a calculated risk to avoid connection with any illegality.         The actions of the officers, specifically Officer Butler's, did not involve misconduct. They comprised part of a group of policemen executing a search warrant; their specific assignment was to provide security for the rear portion of the building. Officer Wilson stated that, to his knowledge, officers had been fired on in similar circumstances and individuals outside of crack houses are often armed. His specific assignment was to detain those in proximity of the crack house to insure the safety of fellow officers. The circumstances justified Officer Butler's presence and actions at the time of appellant's abandonment of the evidence. No misconduct occurred; therefore, appellant voluntarily abandoned the evidence and the court correctly admitted it. See Michigan v. Summers, 452 U.S. 692, 701 (1981).
        We hold that the trial court properly refused to grant appellant's motion to suppress. Appellant's conviction is affirmed.
 
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
881163F.U05
        
 
FN:1 Tex. Rev. Civ. Stat. Ann. art 4476-15, § 4.04(a)(b)(Vernon Supp. 1989)
File Date[12-01-89]
File Name[881163F]