Daniel Brassard v. The State of Texas--Appeal from 54th District Court of McLennan County

NO. 10-89-257-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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DANIEL BRASSARD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From the 54th Judicial District Court

McLennan County, Texas

Trial Court # 89-496-C

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O P I N I O N

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Appellant was found guilty by a jury of the felony offense possession of a controlled substance, specifically Lysergic Acid Diethylamide (LSD). See Tex. Health & Safety Code Ann. 481.115(a), (b) (Vernon 1991). He now appeals and we will affirm the judgment.

In the first of Appellant's four points he complains that the trial court erred in failing to grant his motion to suppress illegally obtained evidence. Appellant's motion attempted to suppress evidence seized during a search of the glove compartment of his car where he was sleeping when officers from the Waco Police Department encountered him. During pre-trial, the court conditionally granted the motion to suppress and instructed the State to approach the bench before offering any evidence which was objected to in Appellant's motion to suppress. The State agreed to do as instructed. Appellant then argued that he wanted to get the testimony regarding the suppression motion on the record to the court and not to the jury. This request was denied by the trial judge. Since article 28.01 is not mandatory but is left to the court's discretion the question of whether to hold a hearing on a pretrial motion to suppress falls within the trial court's discretion. See Tex. Code Crim. Proc. Ann. art. 28.01 (Vernon 1989); Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988); Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977). The court may choose to determine whether to suppress the evidence complained of during the trial on the merits when a proper objection is lodged. Calloway, 743 S.W.2d at 649. Even upon motion for a pretrial suppression hearing, no error is presented if the trial court declines to hear the matter. Id. The accused has not been denied any right since he is still able to raise any appropriate objection at trial. Id.

At trial, the State started introducing evidence which was obtained during the search without approaching the bench. Appellant's attorney did object, but only on the grounds that the State was not trying to introduce the substance as LSD. This objection was sustained. Later, the State called a chemist to identify the substance as LSD. Here Appellant did not object. Because Appellant failed to object at trial, there is nothing preserved for review on appeal. See Tex. R. App. P. 52(a). Appellant's first point is overruled.

By way of point two, Appellant complains that the trial court erred in admitting prejudicial hearsay testimony. This testimony was given by Officer McCall who assisted in the arrest of Appellant. McCall's testimony is as follows:

[OFFICER McCALL]: It was real windy, and I couldn't hear what [Appellant] was saying, but Officer Crochet was talking to [Appellant], and was asking questions, and then he had [Appellant] step out of the car. I don't know what he was asking before, and he told me to watch [Appellant] while [Officer Crochet] went around and looked in the glove box. [Officer Crochet] said that [Appellant] had given him permission to look in the glove box.

[APPELLANT'S ATTORNEY]: Your Honor, I would like to object to that as being hearsay.

THE COURT: Overrule the objection.

However, when the Appellant's attorney took Officer McCall on cross-examination, she allowed the same hearsay statements in without objection. The statement of facts reads as follows:

[APPELLANT'S ATTORNEY]: Did you start to search the car, or who actually searched the car?

[OFFICER McCALL]: We didn't even -- he went around -- he told me that the guy said he could look in the glove box, so he was going to look in the glove box. That is when he came back around and said that he had found this, and placed him under arrest.

[APPELLANT'S ATTORNEY]: You really didn't get to be privy to any of that?

[OFFICER McCALL]: No.

The testimony complained of was admitted twice, and it is well-established that an error in admission of evidence is waived where the same evidence comes in elsewhere without objection. See Butler v. State, 769 S.W.2d 234, 241 (Tex. Crim. App. 1989). Defense counsel must object each and every time allegedly inadmissible evidence is offered. Id. All other hearsay statements Appellant complains of were not objected to at trial and therefore preserve nothing for review. See Tex. R. App. P. 52(a).

In Appellant's third point, he complains that the trial court erred in not including his requested instruction to the jury in the charge. The refused instruction was filed with the clerk of the court; however, Appellant never had the instruction certified by the judge as is required by article 36.17 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.17 (Vernon 1981). Without certification by the judge nothing is preserved for appellate review. See Love v. State, 646 S.W.2d 487, 488 (Tex.App. Amarillo 1982, pet. ref'd.). Appellant's point is overruled.

In Appellant's final point, he argues the trial court erred in failing to respond to his special requested charge and instruction defining possession. We do not find the requested charge in the transcript or the statement of facts. There is also no record of a ruling on this requested instruction; therefore, nothing is preserved for our review. See Tex. R. App. P. 52(a). The point is overruled and we affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion filed and delivered July 11, 1991

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