                                      NO. 07-11-0067-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL A

                                   AUGUST 30, 2012
                            ______________________________


                             HEATHER THOMAS, APPELLANT

                                                V.

                            THE STATE OF TEXAS, APPELLEE


                          _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 59,706-A; HONORABLE DAN SCHAAP, JUDGE

                           _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                    DISSENTING OPINION


       Immediately following the denial of her motion to suppress, Appellant pleaded

guilty to the offense of possession of marijuana. 1 The trial court accepted her plea and

pronounced her guilty. Because her plea was entered without a recommendation as to

punishment, the trial court then convened a separate punishment hearing. During that

hearing the State offered into evidence the laboratory analysis of the marijuana and


1
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(A), (B)(5) (W EST 2010).
eight related photographs. In response to that offer Appellant’s trial counsel stated, “I

don’t have any objection to that, your Honor. [The prosecutor] has been kind enough to

let me see them before this afternoon and we have no objections.” The majority finds

that counsel’s statement amounted to a waiver of Appellant’s complaints on appeal.

Because I disagree, I respectfully dissent.


       While I agree with the proposition that an appellant may waive error in the

admission of evidence, following the denial of a motion to suppress, when she

affirmatively asserts during trial that she has “no objection” to the admission of that

evidence, Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988), I do not believe we

should abandon common sense in favor of mechanical application of that principle. The

“no objection” waiver doctrine has been disregarded by appellate courts where the

record fairly indicates that the trial judge was not mislead into believing that the defense

was actually waiving or otherwise abandoning the complaint previously made to the

introduction of that evidence. Bouyer v. State, 264 S.W.3d 265, 268-69 (Tex.App.—San

Antonio 2008, no pet.) (trial court held suppression hearing on issue after counsel said

“no objection”); Shedden v. State, 268 S.W.3d 717, 730 (Tex.App.—Corpus Christi

2008, pet. ref’d) (trial court “expressly represented to [defendant’s counsel] that it

considered the suppression issue preserved for appeal”). Accord, See 43A GEORGE E.

DIX   AND   JOHN M. SCHMOLESKY: CRIMINAL PRACTICE      AND   PROCEDURE § 53:150 (3d ed.

2011) (stating that application of the principles of waiver or forfeiture are “open to doubt”

where defense counsel’s “no objection” statement might well have been intended by

counsel to mean that the defense had no objections beyond those already presented




                                              2
and rejected and the trial court was not mislead into believing that the defense no longer

wished to pursue that objection).


       Here, unlike Dean and its progeny, the offer of evidence occurred during the

punishment phase of trial, the issue of guilt having already been decided and

pronounced by the Court. 2 At the conclusion of that hearing the following colloquy

occurred:


       COURT:        Ms. Thomas, you do have a right of appeal. I think you
       understood that from the paperwork that you presented and the paperwork
       that you signed, but I need to admonish you again that you do have that
       right of appeal in both with respect to the decisions of this Court regarding
       prior matters and of course with respect to the sentence the Court
       imposed.

                                           * * * * *

       DEFENSE COUNSEL:                Your Honor, I’ve visited with Ms. Thomas a
       little bit earlier. I believe that she would like to give notice of appeal . . . .

       COURT:        And I presume the principal issue for appeal is the issue of
       the Court’s decision on your Motion to Suppress? I’m not trying to limit
       you in that regard, but I presume that that’s part of the motivation?

       DEFENSE COUNSEL:                  Yes, sir.



       From the record before this Court, it appears clear to me that both the trial court

and counsel believed that Appellant was not waiving her right to contest the trial court’s

suppression ruling.       Accordingly, in the interests of justice, I would not apply the

principle of waiver to the facts of this case. For this reason, I respectfully dissent.


                                                         Patrick A. Pirtle
                                                             Justice
Do not publish.

2
In this regard I note, Appellant seeks to overturn her conviction, not her sentence.

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