REGINALD DONELL RICE, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM and Opinion Filed August 14, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00704-CR
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REGINALD DONELL RICE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-83058-06
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OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Richter
        Reginald Donnell Rice appeals his conviction for possession of cocaine in an amount more than four grams but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). Appellant entered a plea of not guilty before a jury and the jury found him guilty. Appellant elected for the jury to assess punishment and pleaded true to two enhancement counts alleging prior felony convictions. The jury sentenced appellant to life in prison. In two issues, appellant argues the trial court erred by denying his motion to suppress and by refusing to allow appellant to testify on his own behalf during the punishment phase. We affirm.
 
 
Background
 
        The Allen police received a suspicious person call and sent officers Michael Spillman and Shawn Sloan to investigate. Officer Sloan arrived on the scene at about eight-thirty in the morning and found appellant and a woman sitting on a curb in an office park. When officer Sloan inquired about their well-being, appellant mumbled something and appeared disoriented and confused. Upon request, appellant produced his identification, but officer Sloan had to warn him to step back and stand still. Officer Spillman arrived as appellant was moving toward officer Sloan. Because of the manner in which appellant stepped toward officer Sloan, officer Spillman was concerned that appellant might act aggressively. The officers separated appellant from his companion to question them separately. Officer Spillman spoke with appellant.
        Appellant kept his hand in his left pocket, and officer Spillman asked him to remove it. Appellant complied, but then put his hand back in his pocket. Officer Spillman could see that appellant was grasping something in his pocket. Officer Spillman became concerned and ordered appellant to remove his hand from his pocket. Appellant did not initially comply, so officer Spillman grasped appellant's wrist and guided his hand from his pocket. When appellant's hand came out of his pocket, he was holding a bag of marijuana. After appellant's arrest for the marijuana, officer Spillman found cocaine in appellant's possession. The cocaine was in two baggies weighing 1.84 grams and 6.20 grams.
        A week before trial appellant filed a motion to suppress generally alleging the police violated his rights, his warrantless arrest was not justified, and his statements were improperly obtained. The motion sought to suppress appellant's arrest and “any and all tangible evidence seized by law enforcement officers or others in connection with the detention and arrest of [appellant] and any testimony by the Allen Police Department or any other law enforcement officers concerning such evidence.” The motion was not presented to the trial court, and appellant did not seek a ruling on the motion before the State opened its case. At trial, appellant did not object to the admission of the marijuana, the video of the stop, or the introduction or discussion of the laboratory analysis. Appellant did attempt to personally object when the cocaine was offered into evidence, but the court instructed appellant that objections should be made by his attorney. Appellant's attorney did not object. After the State rested, appellant requested that all evidence be suppressed, arguing that Officer Spillman did not have probable cause to pull appellant's hand from his pocket. The trial court denied the motion.
        During the punishment phase of the trial, appellant attempted to voice several personal objections. The trial court informed appellant that objections had to be made by and through his attorney. During a break, the trial court admonished appellant that speaking out was not to his benefit and that objections were to be made by his attorney. Appellant continued to complain about the admission of evidence outside the presence of the jury. The trial court told appellant that his outbursts could not continue and that his attorney needed to handle the case:
 
THE COURT: I need you to sit there and be quiet.
 
 
 
APPELLANT: Can I talk to the jury?
 
 
 
THE COURT: No. You are not allowed to do that unless you are representing yourself and you are not doing that.
 
After the State rested, appellant called only his mother to testify on his behalf.
 
 
Discussion
A. Motion to Suppress        
         In his first issue, appellant argues the trial court erred by denying suppression because Officer Spillman failed to show sufficient individualized suspicion to justify a Terry frisk. See Terry v. Ohio, 392 U.S. 1, 21 (1968). In reviewing a trial court's ruling on a motion to suppress evidence, we apply a standard of review that requires us to give almost total deference to the trial court's determination of historical facts and review de novo the court's application of the law. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). If a defendant seeking to suppress evidence does not litigate the issue pretrial, he must object to the evidence when it is introduced at trial and request a hearing outside the presence of a jury. See Holmes v.. State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). Otherwise, filing a motion to suppress without seeking a ruling is insufficient to preserve error. See Bolinger v. State, 224 S.W.3d 768, 778 (Tex. App.-Eastland 2007, pet. ref'd). The preservation of error through an objection at trial required that the complaint be raised at the time the alleged error occurs through a timely, specific objection. See Tex. R. App. P. 33.1(a)(1); Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). A party waives error in the admission of evidence by failing to object at the time evidence is offered. Williams v. State, 491 S.W.2d 142,143 (Tex.Crim.App.1973).
        Appellant did not seek a ruling on his motion to suppress prior to trial. Therefore, to preserve his complaint for appeal, appellant was required to assert a timely, specific objection to the evidence about which he now complains. During trial, officers Spillman and Sloan both testified without objection about their suspicions concerning appellant and the circumstances leading to the removal of his hand from his pocket and subsequent arrest. The video of the stop, the laboratory analysis, the marijuana, the cocaine, and other evidence was all admitted without timely objection. In fact, appellant affirmatively stated he had “no objection.” Consequently, appellant's request for the trial court to consider suppression after the State closed was not sufficiently timely to preserve any of the issues appellant had already waived. Appellant's first issue is resolved against him.
B. Denial of Right to Testify
        In his second issue, appellant maintains he was denied his fundamental right to testify before the jury. Appellant's argument appears to be based on the fact that the judge refused to allow appellant to make his own objections and silenced appellant's outbursts during trial. Specifically, appellant points to the exchange between appellant and the court where the court declined appellant's request to speak to the jury.
        A criminal defendant has a fundamental right to testify in his own defense. See Johnson v. State, 169 S.W.3d 223, 232 (Tex. Crim. App. 2005). It is counsel's responsibility to inform the defendant of the right to testify, including the fact that the ultimate decision belongs to the defendant. Id. Here, there is no indication counsel attempted to elicit testimony from appellant, or that counsel failed to advise appellant of his right to testify. Appellants' outbursts in the courtroom do not constitute testimony, and he never affirmatively stated he wished to take the stand to testify. Examined in context, the trial court's admonitions to appellant were not a denial of the right to testify, but rather an exercise of the court's power to maintain order in the courtroom. See Gonzales v. State, 2 S.W.3d 600, 607 (Tex. App.-Texarkana 1999, pet. ref'd) (trial judge has inherent power to maintain dignity, order, and decorum essential to orderly court proceedings). On this record, we cannot conclude appellant was denied his right to testify, and overrule appellant's second issue. Having decided all of appellant's issues against him, we affirm the judgment of the trial court.
                                                                  
                                                                  
                                                                  
                                                                  
                                                                  MARTIN RICHTER
                                                                  JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
070704F.U05
 
 
 

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