                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00281-CR

CRAIG ALAN ZMOLIK,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                          From the 40th District Court
                              Ellis County, Texas
                            Trial Court No. 33636CR


                         MEMORANDUM OPINION


      Craig Zmolik appeals from a conviction for the offense of possession of a

controlled substance more than four grams but less than 200 grams. TEX. HEALTH &

SAFETY CODE ANN. § 481.115 (Vernon 2003). After a jury trial, and based on a finding of

true to the enhancement paragraph, Zmolik was sentenced to confinement for eighteen

(18) years in the Texas Department of Criminal Justice – Institutional Division. Zmolik

complains that the trial court erred in denying his motion to suppress a search, in

denying his motion for mistrial, and in the admission of evidence. Because we find that

the initial search did not violate the Fourth Amendment, that the complaint regarding
the mistrial was not properly preserved, and that the objection to the admission of

evidence was waived, we affirm the judgment.

Motion to Suppress Evidence

        Zmolik filed a motion to suppress the evidence that was seized from the

apartment where he was located and arrested. He complains that the search was

actually conducted prior to the issuance of a search warrant without justification and

therefore was an unlawful search and seizure.

Standard of Review

        “In reviewing a trial court’s ruling on a motion to suppress, an appellate court

must view the evidence in the light most favorable to the trial court’s ruling.” State v.

Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review a trial court’s ruling on a

motion to suppress under a bifurcated standard. See Wiede v. State, 214 S.W.3d 17, 25

(Tex. Crim. App. 2007). We review de novo the legal determinations of detention,

reasonable suspicion, and probable cause under the Fourth Amendment while granting

great deference to a trial court’s factual findings. State v. Sheppard, 271 S.W.3d 281, 286-

87 (Tex. Crim. App. 2008). The trial court’s evidentiary ruling “will be upheld on

appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v.

State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).

The Facts

        At approximately 8:15 a.m., police arrived at an apartment where they arrested

Zmolik pursuant to an arrest warrant for an armed robbery. The police conducted a

sweep of the residence and observed items that appeared to be stolen in plain view in a

Zmolik v. State                                                                       Page 2
back bedroom. One officer left the residence and went to get a search warrant, which

was signed at 11:00 a.m. Another officer remained inside the apartment with the

primary occupant of the apartment, Zmolik’s girlfriend. According to the officers and

Zmolik’s girlfriend, no further search was conducted of the apartment until the officer

returned with the search warrant. At that time, the officers seized many items of

property, including two safes. They also discovered a crack pipe in the back bedroom.

        Zmolik later opened the safes at the police department and a plastic bag filled

with methamphetamine was located inside one of them. He filed a motion to suppress

the methamphetamine based on an unlawful search and seizure.

Burden of Proof

        As the movant in a pretrial motion to suppress based on the Fourth Amendment,

Zmolik initially had the burden of producing evidence that defeats the presumption of

proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009);

Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986).         This burden is met by

establishing that a search or seizure occurred without a warrant. Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005); Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim.

App. 2002); Russell, 717 S.W.2d at 9. At this point, the burden shifts to the State to prove

that the search or seizure was reasonable without a warrant under the totality of the

circumstances. Russell, 717 S.W.2d at 9.

        The State contends that the only search that took place was after the search

warrant was procured. However, the first search was the sweep that took place when

Zmolik was arrested. See Maryland v. Buie, 494 U.S. 325, 336, 110 S. Ct. 1093, 108 L. Ed.

Zmolik v. State                                                                       Page 3
2d 276 (1990). It is undisputed that there was no warrant for that search. Thus, the

burden shifted to the State to establish that the first search was reasonable.

Unlawful Search

        The Fourth Amendment to the United States Constitution only protects against

unreasonable searches and seizures and is measured in terms of a balance between the

individual’s privacy interest and the promotion of a legitimate governmental interest.

Maryland v. Buie, 494 U.S. 325, 328, 331, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990).

        Incident to an arrest, officers may, as a precautionary measure “and without

probable cause or reasonable suspicion, look in closets and other spaces immediately

adjoining the place of arrest from which an attack could be immediately launched.”

Buie, 494 U.S. at 334. Zmolik testified at the hearing that from where he was sitting on

the floor of the apartment after he had been arrested he could see the police officers

down the hallway in the bedroom where the safes were located. As such, it would be a

reasonable inference to find that the back bedroom was adjacent to the area where

Zmolik was arrested and was an area from which an attack could be immediately

launched. See Buie, 494 U.S. at 334. Therefore, the trial court did not err by determining

that the officers’ actions by entering the bedroom were reasonable and by denying

Zmolik’s motion to suppress. We overrule issue one.

Mistrial

        Zmolik complains that the trial court erred by not granting a mistrial after

sustaining an objection in part regarding testimony as to the arrest warrant being issued

for the charge of aggravated robbery. Upon the State’s question as to why the officer

Zmolik v. State                                                                        Page 4
was going to arrest Zmolik at the apartment, the officer answered: “For aggravated

robbery.    Detective Hopson obtained a warrant for his arrest.”        Another question

regarding the warrant being lawful was asked and answered prior to the objection

being lodged by Zmolik. The State contends that the objection was not made timely

and was therefore waived. We agree.

        A timely objection must be made in order to preserve an error in the admission

of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). The objection

should be made as soon as the ground for objection becomes apparent. Id. If a question

clearly calls for an objectionable response, the objection should be made before the

witness responds to the question.      Id. If the objection is not made until after the

objectionable question has been asked and answered, and no legitimate reason can be

shown to justify the delay, the objection is untimely; error is waived. Id.

        The question asked by the State was clearly seeking a response as to the reason

why Zmolik was to be arrested, and that response would have a high potential for the

witness to give an objectionable response. The objection should have been lodged even

before the officer’s answer. However, Zmolik did not lodge his objection until after the

objectionable response and a subsequent question had been asked and answered. This

is not a timely objection. Any complaint regarding the admission of this evidence is

therefore, waived, and the trial court did not err in denying Zmolik’s request for

mistrial. See TEX. R. APP. P. 33.1. We overrule Zmolik’s issue two.




Zmolik v. State                                                                    Page 5
Erroneous Admission of Evidence

        Zmolik complains that the trial court erred in admitting three exhibits into

evidence based on an improper foundation and lack of chain of custody. However, he

offers no authorities or any argument in support of this contention. Therefore, this

issue is waived. See TEX. R. APP. P. 38.1(h). We overrule issue three.

Conclusion

        We find that the trial court did not err in denying Zmolik’s motion to suppress

evidence. We find that any errors surrounding the denial of a mistrial or the admission

of evidence were waived. We affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed March 10, 2010
Do not publish
[CR25]




Zmolik v. State                                                                  Page 6
