                                          NO. 07-03-0318-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                        APRIL 16, 2004
                               ______________________________

                                         RODNEY B. ADAMS,

                                                                   Appellant

                                                      v.

                                       THE STATE OF TEXAS,

                                                    Appellee
                            _________________________________

       FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;

                 NO. 2002-480,548; HON. L.B. (RUSTY) LADD, PRESIDING
                          _______________________________

                                    Memorandum Opinion
                              _______________________________

Before QUINN and CAMPBELL, JJ., and BOYD, S.J.1

        Appellant Rodney B. Adams appeals his conviction for driving while intoxicated. Via

two issues, he contends the trial court erred in denying his motion to suppress without a

hearing. Doing so purportedly constituted 1) an abuse of discretion under article 28.01(6)

of the Texas Code of Criminal Procedure and 2) a violation of his due process rights. We

affirm the judgment.


        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
       It is settled that

       as a prerequisite to presenting a complaint for appellate review, the record
       must show that . . . the complaint was made to the trial court by a timely
       request, objection, or motion . . . stat[ing] the grounds for the ruling that the
       complaining party sought . . . with sufficient specificity to make the trial court
       aware of the complaint . . . [and] the trial court . . . ruled on the request,
       objection, or motion . . . or refused to rule . . . .”

TEX . R. APP. P. 33.1(a). This rule has been held applicable not only to claims involving

allegations of denied due process, e.g. Henderson v. State, 962 S.W.2d 544, 558 (Tex.

Crim. App. 1997) (wherein the appellant contended that she was denied due process

because her attorney lied to her), but also to those involving the failure by a trial court to

conduct a hearing. See e.g. Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App.

1999) (involving the failure to conduct a punishment hearing); Nirschl v. State, 923 S.W.2d

218, 219 (Tex. App.–Amarillo 1996, pet. ref’d) (involving the same). Indeed, requiring the

appellant to first broach the matter with the trial court seems only reasonable. This is so,

as described in Nirschl, because it stands “in the best position to expeditiously avoid

potential or cure actual error at trial.” Nirschl v. State, 923 S.W.2d at 219. Thus, it should

“be accorded a chance to rectify the situation.” Id.

       Here, nothing in the record before us illustrates that appellant complained, in any

way, to the trial court about its failure to hold a hearing. Nor does appellant assert that he

was denied opportunity to complain or assert his due process allegation. Rather, the

record simply depicts that after the motion was denied, appellant and the State entered into

a plea bargain resulting in his conviction and a 180 day sentence. Given the state of the

record, the mandate of Rule 33.1(a), and the reasonable policy behind allowing trial courts


                                               2
first opportunity to avoid or correct purported error, we hold that any complaint appellant

had about the lack of a hearing and its ramifications was not preserved for our review.

      The issue is overruled, and the judgment is affirmed.



                                                 Brian Quinn
                                                   Justice

Publish.




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