Michael Swain v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-175-CR MICHAEL SWAIN, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 42,168, HONORABLE DERWOOD JOHNSON, JUDGE PRESIDING This appeal is taken from a conviction for possession with intent to deliver a controlled substance, to wit: cocaine in the amount of less than twenty-eight grams. After the jury found appellant guilty of the primary offense, it found that appellant was the same person previously convicted of four felony offenses as alleged in the enhancement paragraphs of the indictment. The jury assessed appellant's punishment at forty years' imprisonment. Appellant advances two points of error. First, appellant complains that the trial court erred in overruling the motion to suppress evidence seized as a result of appellant's unlawful detention and warrantless arrest in violation of article I, section 9 of the Texas Constitution. Second, appellant contends the trial court erred in overruling appellant's motion for the court to reconsider the motion to suppress evidence. At trial, after the motions to suppress evidence and to reconsider were overruled, the following occurred when the cocaine (subject matter of the motion to suppress) was offered into evidence: Mr. Bledsoe [prosecutor]: Your Honor, at this time the State would move admission of State's exhibit one, one-A and one-B. I'd tender them to Mr. McDurmitt for any objections he may have. Mr. McDurmitt [defense counsel]: No objection to State's exhibit one-A and one-B, Your Honor. Mr. Bledsoe: They are admitted. Mr. Bledsoe: As well as State's one? Mr. McDurmitt: No objection. The Court: They are 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. Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987). However, when the accused affirmatively asserts during trial that he has "no objection" to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985); see also Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988); Sanders v. State, 855 S.W.2d 151, 153 (Tex. App.--Houston [14th Dist.] 1993, no pet.); Gonzales v. State, 743 S.W.2d 718, 720 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd). The affirmative acceptance of previously challenged evidence waives any error in its admission. Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992); Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). Appellant waived any error by expressly stating "no objection" when the cocaine was offered into evidence at trial despite the pretrial rulings. Appellant is not now in a position to complain on appeal about the trial court's rulings on the motion to suppress evidence and the subsequent motion to reconsider. Points of error one and two are overruled. The judgment is affirmed. John F. Onion, Jr., Justice Before Justices Kidd, B. A. Smith and Onion* Affirmed Filed: April 6, 1994 Do Not Publish * Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).