Stephen Forrest Miller A/K/A Randy Miller v. State

NUMBER 13-03-703-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG STEPHEN FORREST MILLER A/K/A RANDY MILLER, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 105th District Court of Nueces County, Texas. O P I N I O N Before Justices Yañez, Rodriguez, and Garza Opinion by Justice Yañez In two issues, appellant, Stephen Miller, challenges: (1) his conviction for theft; and (2) the trial court’s order that his sentence run consecutively with the sentence imposed for his parole revocation in an earlier offense. We affirm. The record contains the trial court’s certification that the case is not a plea-bargain case, and the defendant has the right to appeal. See Tex. R. App. P. 25.2(a)(2). Background On July 24, 2003, Corpus Christi Police Officer Sean Ostrander, while off duty and driving his personal vehicle on the highway, observed appellant run across several lanes of traffic coming from the direction of a shopping center. Officer Ostrander testified that he noticed appellant carrying something under his arm that appeared to be electronic equipment. He called the police department and requested that police units be sent to the area. He then exited the highway and approached appellant. Officer Ostrander identified himself as a police officer and began questioning appellant. Appellant stated he did not have a receipt for the item he was carrying and that it was given to him by a friend. However, appellant was unable to supply Officer Ostrander with a name or location of the friend. Officer Ostrander flagged down another off-duty officer to assist him, and when the marked unit arrived, the officers detained appellant. They then transported appellant to the shopping center that appellant was seen running from. Paul Juarez, an employee of a store in the shopping center, informed the officers that a few minutes earlier, a man had stolen some merchandise. Juarez identified the item appellant was carrying as that which was stolen, and identified appellant as the perpetrator. Appellant was then arrested and charged. After a bench trial, appellant was found guilty of theft and was sentenced to two years’ imprisonment. Search and Seizure In his first issue, appellant argues that his arrest was illegal under the Fourth Amendment of the United States Constitution, and that evidence, namely testimony, obtained as a fruit of the arrest, should have been suppressed. The State contends that the error urged by appellant was not preserved at trial and not subject to appeal. The failure to preserve error by making a timely request, objection, or motion each time the evidence is offered forfeits the right to complain on appeal. See Tex. R. App. P. 33.1. An objection is timely when it is made before the evidence is admitted, or as soon as the objectionable nature of the evidence becomes apparent. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995); Ethington v. State, 819 S.W.3d 854, 858 (Tex. Crim. App. 1991). Here, appellant forfeited his right to complain by failing to timely object to evidence presented at trial. Appellant did not file a motion to suppress, nor did he object to the evidence when it was offered by the State. Appellant’s only objection for suppressing the evidence was made during closing arguments. We conclude that appellant’s late objection was not timely and that any error was not preserved. See Tex. R. App. P. 33.1; Dinkins, 894 S.W.2d at 355. Appellant’s first issue is overruled. Cumulated Sentence In his second issue, appellant challenges the trial court’s ruling that his sentence run consecutively with a sentence imposed from a prior conviction. In 1992, appellant was convicted for possession of cocaine and received a sentence of twenty-five years’ imprisonment. At the time of the offense in the present case, appellant was on parole for the 1992 offense. After a bench trial, the trial court assessed punishment at two years, and ordered the two-year sentence to commence “when the sentence of twenty-five years confinement imposed in . . . Cause No. 92-CR-0889-E, . . . for possession of cocaine has ceased to operate.” When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2004). The judgment in the second and subsequent conviction may either be that the sentence imposed or suspended shall begin when the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the previous conviction. Id. (emphasis added). Appellant contends that he “fully served” his sentence for his previous conviction because he was on parole and that he did not have an unserved prison sentence pending. As a result, he argues that the trial court had no authority to speculate that his parole would be revoked when ordering consecutive sentences. We disagree. We find Jimenez v. State, 634 S.W.2d 879, 881-82 (Tex. App.–San Antonio 1982, pet. ref’d), analogous to the instant case. There, the trial court ordered the sentence in the case before it to commence when the sentence in the defendant’s previous conviction “ceased to operate.” Id. at 882. Our sister court concluded that “regardless of the outcome of subsequent parole proceedings, the sentence in this case will become effective when the sentence in [the previous case] ceases to operate.” Id.; see Wilson v. State, 854 S.W.2d 270, 273 (Tex. App.–Amarillo 1993, pet. ref’d); Carpenter v. State, 828 S.W.2d 441, 442 (Tex. App.–Austin 1992, no pet.) (pursuant to article 42.08(a), trial court has authority to order cumulation of sentences when defendant is on parole from previous conviction). Like Jimenez, the trial court ordered the sentence imposed in this case to commence when the sentence imposed in appellant’s previous conviction “ceased to operate.” See Jimenez, 634 S.W.3d at 882. Thus, because a trial court has authority to cumulate sentences when a defendant is on parole from a previous conviction, we conclude that the trial court did not err. We overrule appellant’s second issue. Accordingly, the judgment of the trial court is affirmed. LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Opinion delivered and filed this the 26th day of August, 2004.