                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00205-CR



         WILLIE LEE HARPER, JR., Appellant

                            V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 5th District Court
                  Cass County, Texas
              Trial Court No. 2011F00168




       Before Morriss, C.J., Carter and Moseley, JJ.
            Opinion by Chief Justice Morriss
                                                         OPINION

            Willie Lee Harper, Jr., failed in his pretrial motion to suppress crack cocaine found in his

possession in Cass County during a routine traffic stop. 1 At his subsequent jury trial on two

crack-related charges, 2 each time the State tendered the cocaine or a certain related item into

evidence, Harper’s counsel affirmatively stated that he had “no objection” to the item being

admitted into evidence. 3

            In his sole issue on appeal, Harper argues that the trial court erred in denying his motion

to suppress the crack cocaine. Specifically, Harper argues that the search of his person was

improper because the officer had no “reason to believe that he [wa]s dealing with an armed and

dangerous individual.” Terry v. Ohio, 392 U.S. 1, 27 (1968). Because Harper failed to preserve

his sole issue on appeal, we affirm the trial court’s judgment.

            Generally, to preserve error on appeal after a pretrial motion to suppress evidence is

overruled, the defendant need not later object at trial to the same evidence. Thomas v. State, 408

S.W.3d 877, 881 (Tex. Crim. App. 2013); Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim.

App. 1986). But when a defendant affirmatively asserts during trial that he or she has no

objection to the admission of the complained-of evidence, he or she forfeits any error in the
1
    It is undisputed that the traffic stop was lawful.
2
 The charge addressed in       this appeal alleged that Harper tampered with some of the crack cocaine. The other
charge, handled in appeal      numbered 06-13-00206-CR decided today, alleged that Harper possessed 2.11 grams of
crack cocaine. The jury        found Harper guilty of both offenses. Pursuant to a finding of “true” to the State’s
enhancement allegations,       Harper was sentenced to twenty-five years’ imprisonment on each charge, to run
concurrently.
3
 Among the exhibits, which were admitted after Harper affirmatively stated “no objection” to admitting each, were a
video recording of the encounter, a photograph of crack cocaine Harper had “stomped” into the pavement, a pill
bottle containing other crack cocaine, and the laboratory report establishing the substance as crack cocaine weighing
2.11 grams.

                                                            2
admission of the evidence despite the pretrial ruling unless the “record as a whole plainly

demonstrates that the defendant did not intend, nor did the trial court construe, his ‘no objection’

statement to constitute an abandonment of a claim of error that he had earlier preserved for

appeal.” Thomas, 408 S.W.3d at 885–86 (holding that “if from the record as a whole the

appellate court simply cannot tell whether an abandonment was intended or understood,” an

“affirmative ‘no objection’ statement will, by itself, serve as an unequivocal indication that a

waiver was both intended and understood”); see Estrada v. State, 313 S.W.3d 274, 302 (Tex.

Crim. App. 2005); Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992); Moraguez, 701

S.W.2d at 904.

        Here, the trial court denied Harper’s suppression motion after a full evidentiary pretrial

hearing, and then a jury trial was conducted on the issue of guilt. During his opening statement,

Harper described the damning evidence which he had previously sought to suppress. At the

trial’s commencement, Harper (1) agreed that a controlled substance was found during the

officer’s search, (2) asked the jury to consider whether cocaine was being consumed only for

personal use, 4 and (3) informed the jury that they would see the video recording of the arrest,

which depicted the stomping motion made by Harper after the cocaine fell to the ground. At

trial, Harper affirmatively represented to the court that he had no objection to the admission of

the four items demonstrating his attempt to destroy certain crack cocaine in his possession and

his possession of other crack cocaine.



4
 Counsel stated in opening, “I submit to you that it’s going to be—the evidence is going to show that it was a very
small quantity, about two grams.”
                                                        3
        Harper did not inform the trial court that his acquiescence to the admission of these items

of evidence was subject to the arguments he had previously made in his suppression motion.

The trial court did not state anywhere that it understood the suppression issue to be preserved for

appeal in spite of Harper’s affirmative statement that he had “no objection” to the admission of

the State’s evidence. Our review of the entire record reveals nothing contradicting Harper’s

apparent intention to fully relinquish his previous challenge to the evidence and nothing

inconsistent with the trial court’s acceptance of that full relinquishment. See Robinson v. State,

No. 06-09-00225-CR, 2012 WL 6518935, at *2 (Tex. App.—Texarkana Dec. 13, 2012, no pet.)

(mem. op., not designated for publication). 5 In fact, Harper’s trial tactic of emphasizing the

relatively small amount of cocaine in the pill bottle lends support to such full relinquishment.




5
 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).

                                                       4
         Because defense counsel specifically stated that he had no objection to the admission of

the State’s evidence and because the record does not plainly indicate an intention not to abandon

the claim of error, the issue has not been preserved for review. 6 Consequently, we affirm the

trial court’s judgment. 7

                                                       Josh R. Morriss, III
                                                       Chief Justice

Date Submitted:            August 19, 2014
Date Decided:              August 29, 2014

Publish




6
 Harper argued that the State’s evidence was illegally obtained in his closing argument to the jury, and the issue of
the legality of the search was submitted to the jury. Even though an affirmative statement of “no objection” waives
the right to complain of the admissibility of evidence, the defendant may still receive a jury instruction under Article
38.23 of the Texas Code of Criminal Procedure if the evidence raises a contested factual issue that is material to the
lawfulness of obtaining evidence. TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005); Holmes v. State, 248
S.W.3d 194, 196 (Tex. Crim. App. 2008). The issue involved in a motion to suppress is distinct from the issue
submitted to the jury; “one is a legal question of admissibility for the judge and the other is a question of disputed
fact for the jury’s consideration and resolution.” Holmes, 248 S.W.3d at 196; see Robinson, 2012 WL 6518935, at
*2, n.1. Therefore, Harper’s argument and jury submission did not revive the issue of whether the search was illegal
as a matter of law.
7
 After trial, Harper filed a “Motion for Reconsideration/Motion for New Trial” in an attempt to revive the arguments
made in his suppression motion. A trial judge may always reconsider a previous ruling. However, because Harper’s
motion for reconsideration was overruled by operation of law, it was insufficient to show that the trial judge did not
construe a “no objection” response as a waiver of Harper’s objections to the admission of the evidence. See
Robinson, 2012 WL 6518935, at *2 (distinguishing Bouyer v. State, 264 S.W.3d 265, 268 (Tex. App.—San Antonio
2008, no pet.)).

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