                                         NO. 07-09-0105-CR

                                   IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                                PANEL A

                                         JANUARY 20, 2010

                              ______________________________


                           LUIS ALBERTO JARAMILLO, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                            _________________________________

               FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 57,842-D; HONORABLE DON EMERSON, JUDGE

                             _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                     MEMORANDUM OPINION


        Following a plea of not guilty, Appellant, Luis Alberto Jaramillo, was convicted of

possession of one gram or less of methamphetamine,1 enhanced, and sentenced to



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        Although Appellant was indicted for possessing four gram s or m ore but less than two hundred gram s
of m etham phetam ine; he was convicted of the lesser included offense of possessing one gram or less.
seven years confinement. Presenting a sole issue, Appellant maintains the stop of his

vehicle was unreasonable. We affirm.


                                Factual Background


      On May 5, 2008, law enforcement had been attempting to serve a grand jury

subpoena on an Asian female named Cindy Sivilaisane.          Although not personally

familiar with Ms. Sivilaisane, Officer Robert Woodward, who had been conducting

surveillance on her residence, observed an Asian female depart that residence and

enter a vehicle with two male occupants. Woodward testified that although he did not

observe the driver of the vehicle commit any traffic offenses or engage in any other

criminal activity, he nevertheless stopped the vehicle and asked for permission to

search the vehicle. After consent to search the vehicle was given by the driver, but

before the search occurred, Officer Ross Renner arrived as backup. Renner testified

that he determined the Asian female was not the person he and Woodward had been

attempting to locate to serve the subpoena. Despite Officer Renner’s knowledge, all

three occupants were asked to exit the vehicle and the search continued.


      According to the evidence, during the search of the vehicle, a syringe was found

on the floorboard of the right passenger seat where Appellant had been seated. The

officers also found two different CD cases. One case, discovered underneath the front

seat, contained a plastic baggie with marihuana and a baggie with methamphetamine.



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A second case, which was found behind the front seat, contained two digital scales and

several spoons.


      Originally, the Asian female had given officers a false name on account of an

outstanding warrant. After almost one hour, the officers were able to determine her true

identity. They spoke with her and the driver of the vehicle. At that point, she became

cooperative and told Officer Renner “off the record” that the contraband found in the

vehicle belonged to Appellant.       Despite Appellant’s denial of knowledge of the

contraband found in the vehicle, he was handcuffed and arrested.          Appellant was

searched at the jail by Officer Johnny Bermea, who found .13 grams of

methamphetamine in the change pocket of Appellant’s jeans.


      By a sole issue, Appellant maintains the trial court should have granted his oral

motion to suppress the methamphetamine because the stop of the vehicle was

unreasonable. The State maintains, among other assertions, that Appellant waived his

complaint for appellate review.


                                  Preservation of Error


      During a bench trial, Officer Bermea testified that as is customary, he did a

thorough search at the jail. During that search, he found a small plastic resealable bag

(State’s Exhibit 8) containing residue that was possibly methamphetamine (State’s

Exhibit 9) in the coin pocket of Appellant’s jeans. When the State moved to introduce

the exhibits, Appellant orally moved to suppress the evidence as being illegally seized in
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violation of article 38.23 of the Texas Code of Criminal Procedure. The trial court

overruled Appellant’s motion and received both exhibits.


       An employee of the Texas Department of Public Safety who tested the substance

contained in Exhibit 9 testified it contained .13 grams of methamphetamine. Appellant

objected to its admission until the chain of custody could be established. The trial court

sustained the objection.


       Officer William Lang, the property technician for the Amarillo Police Department

testified to the chain of custody of State’s Exhibit 9. When the prosecutor asked that

Exhibit 9 be admitted into evidence, defense counsel stated, “Now that the chain is

established, we would have no objection to 9.” By affirmatively stating he had “no

objection to 9,” Appellant waived his right to complain on appeal that the evidence was,

as a matter of law, illegally obtained. See Holmes v. State, 248 S.W.3d 194, 196

(Tex.Crim.App. 2008) (when a defendant affirmatively states he has “no objection” to

the admission of the evidence during trial, he waives the right to complain on appeal

despite the trial court’s ruling on the motion to suppress). See also Strauss v. State,

121 S.W.3d 486, 490 (Tex.Crim.App. 2003, pet. ref’d). Having failed to preserve error,

Appellant’s sole issue is overruled.




                                       Conclusion


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      Accordingly, the trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice



Do not publish.




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