Kevin Curry v. The State of Texas--Appeal from 147th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-94-011-CR
KEVIN CURRY,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0933186, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM

The district court found appellant guilty of possessing cocaine and assessed punishment at imprisonment for four years. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, 481.115, 1989 Tex. Gen. Laws 2230, 2936 (Tex. Health & Safety Code Ann. 481.115, since amended). Appellant brings forward five points of error in which he contends that the cocaine was seized in violation of the United States and Texas constitutions and was therefore inadmissible. U.S. Const. amend. IV; Tex. Const. art. I, 9, 10; Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 1994).

The court did not rule on appellant's motion to suppress evidence before trial and it is agreed by the parties that the motion was carried to trial for determination. At the conclusion of the State's questioning of the seizing officer, the cocaine was offered in evidence. Appellant's counsel stated, "No objection." The cocaine was then admitted.

When a pretrial motion to suppress evidence is overruled, the accused need not subsequently object to the admission of the same evidence at trial in order to preserve error. But if the accused affirmatively states during trial that he has no objection to the admission of the evidence, he waives any error in the admission of the evidence despite the pretrial ruling. James v. State, 772 S.W.2d 84, 97 (Tex. Crim. App. 1989). The Court of Criminal Appeals has indicated that the same rule applies when a motion to suppress is carried to trial. Gearing v. State, 685 S.W.2d 329-30 (Tex. Crim. App. 1985). We hold that the contentions made in appellant's motion to suppress were waived when he stated at trial that he had no objection to the admission of the challenged evidence. As a consequence, appellant's points of error were not preserved for review. Points of error one through five are overruled.

The judgment of conviction is affirmed.

 

Before Chief Justice Carroll, Justices Jones and Kidd; Chief Justice Carroll Not Participating

Affirmed

Filed: November 2, 1994

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