CEVERO GONGORE CASTILLO, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 6, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01331-CR
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CEVERO GONGORE CASTILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 282nd District Court
Dallas County, Texas
Trial Court Cause No. F88-93472-S
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O P I N I O N
Before Chief Justice Enoch and Justices Baker and Onion FN:1
Opinion By Justice Onion
        This is an appeal from a conviction for unlawful possession of amphetamine. Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 4.041(a)(b) (Vernon Supp. 1989). After finding the appellant, Cevero Gongore Castillo, guilty of the primary offense, the jury found the allegation of a prior felony conviction for enhancement of punishment to be true, and assessed the punishment at confinement in the Department of Corrections for twenty (20) years.
        On appeal appellant raises a single point of error. He contends the "trial court erred in failing to suppress evidence that was the product of a [sic] illegal warrantless search." He argues that the in-jail search, while he was a pretrial detainee, was conducted without warrant and probable cause and was in violation of the fourth amendment to the United States Constitution, and article I, section 9 of the Texas Constitution.
        Although represented by counsel, appellant filed a pro-se "Trial Motions" instrument prior to trial. Included as the last paragraph in the instrument was the following:
13
Suppression of Evidence
                The Defendant requests the court to suppress any and all evidence, including any confession purportedly made by the Defendant, if the court finds the same to have been obtained in any manner which violates the constitution and laws of the United States or of the State of Texas.
This broadly-based motion, which did not expressly refer to any search or seizure, was not presented to the court, and no action was taken on said motion prior to trial.
        The trial record reflects that appellant was arrested on December 1, 1987, on two unidentified charges and placed in the Grand Prairie City Jail after being subjected to a pat-down search. The following day Officer Thomas Coppeck received information from another inmate that appellant was in possession of narcotics. Coppeck searched the jail cell and then appellant. Underneath the inner lining of one of appellant's shoes he discovered a small packet containing a yellowish substance. A chemist testified that a subsequent analysis of the substance in question revealed that it was 0.23 grams of amphetamine. At this point in the State's case-in-chief the State offered the substance (State's Exhibit No. 1) into evidence and appellant's counsel stated: "Your Honor - we have no objection -."
        When the State rested its case, the court announced: "Let's rule on the motions." The court then began to rule on a number of appellant's pre-trial motions regarding discovery, arraignment, grand jury minutes, etc. In the process, the court simply and summarily stated: "Motion to suppress is denied." No effort was made to inform the court that the suppression motion was based on a claim of an illegal search and seizure. No request for a hearing was made, no evidence was offered, no authority was cited and no argument was advanced.
        Now for the first time on appeal, appellant claims that the trial court should have suppressed evidence of the finding of amphetamine because the same was illegally obtained as a result of a warrantless search for which there was no probable cause. Appellant does not challenge the validity of his original arrest or the legality of his incarceration at the time of the jail search.
        There are a number of reasons why the point of error is without merit and should be overruled. Article 28.01 of the Texas Code of Criminal Procedure, which provides for pretrial hearings on motions to suppress, is not a mandatory statute but one directed to the court's discretion. Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988). Even if a pretrial motion to suppress is called to the attention of the trial court, no error is presented if the trial court, in its discretion, declines to hear the same. Swanson v. State, 447 S.W.2d 942, 943 (Tex. Crim. App. 1969); Bosley v. State, 414 S.W.2d 468, 470 (Tex. Crim. App.), cert. denied, 389 U.S. 876 (1967). The accused, however, retains his right to raise any appropriate objection at the trial on the merits. Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977); Writt v. State, 541 S.W.2d 424, 425 (Tex. Crim. App. 1976); Swanson, 447 S.W.2d at 943.
        In the instant case the suppression motion was not called to the trial court's attention and no action was taken prior to trial. At trial when the fruits of the search were offered, appellant's counsel expressly stated, "no objection." In Calloway, the defendant failed to preserve error where, after the trial court stated it would not consider the pretrial motion to suppress, the defendant failed to object at trial to the introduction of evidence obtained during the search. Further, a defendant's explicit trial statement that he has "no objection" waives any error in the admission of evidence despite an earlier adverse ruling on a motion to suppress which ruling would have preserved error, if any. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985); Harris v. State, 656 S.W.2d 481, 487 (Tex. Crim. App. 1983).
        Still further, a motion to suppress is nothing more than a specialized objection to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981). A motion to suppress must thus meet the requirements of an objection. A general objection is not sufficient to apprise the trial court of the complaint urged and presents nothing for review. Vela v. State, 516 S.W.2d 176, 178 (Tex. Crim. App. 1974). See also Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103; Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App.), cert. denied, 109 S. Ct. 328 (1988).
        The instant motion to suppress, not even suggesting that one of the bases therefor was an illegal search and seizure, was nothing more than a general objection and presents nothing for review. Fierro v. State, 706 S.W.2d 310, 318 (Tex. Crim. App. 1986); Little, 758 S.W.2d at 551.
        What should also be clear from the above is that the claim now advanced on appeal was never presented to the trial court below. It is elementary that an appellant may not rely upon an objection on appeal which he has not raised in the trial court. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); Paster v. State, 701 S.W.2d 843, 846 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986); Pizzalato v. State, 513 S.W.2d 566, 569 (Tex. Crim. App. 1974); Sierra v. State, 482 S.W.2d 259, 264 (Tex. Crim. App. 1972); see also Watkins v. State, 741 S.W.2d 546, 551 (Tex. App.--Dallas 1987, pet. ref'd); Pringle v. State, 732 S.W.2d 363, 370 (Tex. App.--Dallas 1987, pet. ref'd).
        If appellant's complaint on appeal (that the jail search was without warrant or probable cause) had been preserved for appeal, it would be without merit given the facts and circumstances of the case. There was no fourth amendment violation as now alleged by appellant. See Hudson v. Palmer, 468 U.S. 517 (1984); Bell v. Wolfish, 441 U.S. 520, 546 (1979). Jail and prison officials are not bound by warrant and probable cause requirements though a prisoner retains some fourth amendment rights. United States v. Lilly, 576 F.2d 1240, 1244 (5th Cir. 1978). See generally Illinois v. Lafayette, 462 U.S. 640 (1983). The relevant facts and circumstances will vary from case to case, but the test of reasonableness under the fourth amendment was met in the instant case. See Bell v. Wolfish, 441 U.S. at 559-60. See also Marquez v. State, 725 S.W.2d 217, 234 (Tex. Crim. App. 1987); Russell v. State, 665 S.W.2d 771, 778 (Tex. Crim. App. 1983); Deal v. State, 508 S.W.2d 355, 357 (Tex. Crim. App. 1974); Chambers v. State, 508 S.W.2d 348, 354 (Tex. Crim. App. 1974). This was not an inventory search at the jail house or booking desk following the initial arrest. See United States v. Edwards, 415 U.S. 800, 803-04 (1974); Illinois v. Lafayette, 462 U.S. at 643-645; Stewart v. State, 611 S.W.2d 434, 438 (Tex. Crim. App. 1981); Nash v. State, 682 S.W.2d 338, 339 (Tex. App.--Dallas 1984, no pet.).
        We find no fourth amendment violation and find no reason why article I, section 9 of the Texas Constitution would call for a different result. See Nash v. State, 682 S.W.2d at 338 (The appellant in Nash, while being jailed on an unrelated offense, was found to be in possession of cocaine, his motion to suppress evidence was denied and on appeal, it was held that the evidene was not the result of an unlawful seizure).
        The judgment is affirmed.
 
 
                                                          
                                                          JOHN F. ONION, JR.
                                                          PRESIDING JUDGE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 90
 
881331.U05
 
FN:1 The Honorable John F. Onion, Jr., Presiding Judge, Retired, Court of Criminal Appeals, sitting by assignment.
File Date[11-06-89]
File Name[881331]