JAMES LEO SCANLON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 14, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01491-CR
............................
JAMES LEO SCANLON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the County Court at Law
Collin County, Texas
Trial Court Cause No. 1-1179-87
.................................................................
O P I N I O N
Before Justices Whitham, Rowe, and Whittington
Opinion By Justice Rowe
                A jury convicted James Leo Scanlon of the offense of driving while intoxicated and assessed punishment at sixty days' confinement probated for a period of two years and a $500 fine. In one point of error, appellant contends that the trial court erred in denying his motion to suppress evidence. We disagree and affirm the judgment of the trial court.
        Appellant filed his motion to suppress on the day of the pretrial hearing, which was also the day of the trial. By law, motions to suppress which are not raised or filed seven days before a pretrial hearing will not be allowed to be raised or filed thereafter, except by permission of the court for good cause shown. Tex. Code Crim. Proc. Ann. art. 28.01, §§ 1(6) and 2 (Vernon 1989). Nevertheless, appellant relies on an alleged ambiguity created by the trial court's pretrial order, which states: "All matters set forth in Article 28.01 . . . should be presented at the pretrial hearing . . . ." Appellant asserts that the language used in the order authorized the filing of pretrial motions on the day of the pretrial hearing.
        At the pretrial hearing, the State objected to consideration of the motion to suppress because it was untimely filed and because the State was therefore unprepared to argue the motion on the merits. Appellant referred to the language of the court's pretrial order, but the trial court did not agree with appellant's interpretation of the order, stating that the order referred to presentation of pretrial matters as opposed to filing of pretrial matters. We agree with the trial court's assessment of the contents of the pretrial order. Article 28.01 pertains to pretrial matters. As one would expect it to do, the order unambiguously specifies that all pretrial matters are to be presented at the pretrial hearing. The order says nothing about the filing of such matters; consequently, the filing deadline of article 28.01 is not altered in any way.
        A pretrial motion to suppress filed on the day of trial is untimely filed, and a trial court does not err in denying such motion. Writt v. State, 541 S.W.2d 424, 425-26 (Tex. Crim. App. 1976). A pretrial motion that is not filed seven days before a pretrial hearing is untimely and will not be heard absent a showing of good cause. Hendricks v. State, 727 S.W.2d 816, 818 (Tex. App.--Fort Worth 1987, no pet.). We determine that the apparent misunderstanding of the pretrial order by appellant's counsel does not constitute good cause. As noted, we have determined that the order is unambiguous. Appellant's erroneous interpretation is in clear conflict with article 28.01, which is the applicable law. Moreover, the prosecutor objected that he was not apprised of the motion to suppress until the pretrial hearing and requested a continuance of seven days if the court decided to consider the motion.
        We hold that the trial court did not err in denying appellant's untimely filed motion to suppress. See Writt, 541 S.W.2d at 425-26; Hendricks, 727 S.W.2d at 818; Tex. Code Crim. Proc. Ann. art. 28.01 (Vernon 1989). We overrule appellant's sole point of error.
        We affirm the judgment of the trial court.
 
 
 
                                                          
                                                          GORDON ROWE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
881491F.U05
 
 
 
File Date[12-14-89]
File Name[881491F]