                                MEMORANDUM OPINION
                             No. 04-08-00861-CR and 04-08-00862-CR

                                Joe HUERTA a/k/a Joe Louis Huerta,
                                          Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No 11, Bexar County, Texas
                               Trial Court Nos. 238397 and 238399
                         Honorable Jo-Ann S. De Hoyos, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 14, 2009

AFFIRMED

           Appellant Joe Huerta was charged with possession of a prohibited weapon, possession of

a controlled substance, and possession of marijuana. After a contested hearing, the trial court

denied Huerta’s motion to suppress. The jury subsequently convicted Huerta of possession of a

prohibited weapon and possession of marijuana. The trial court assessed punishment, to run

concurrently, at eleven months and twenty-five days in the county jail and 180 days in the county

jail, respectively. On appeal, Huerta asserts the trial court erred in failing to suppress the
                                                                                 04-08-00861-CR; 04-08-00862-CR


illegally seized evidence in violation of his rights under the Fourth and Fourteenth Amendment

to the United States Constitution and Article I, Section 9 of the Texas Constitution. 1 We affirm

the judgment of the trial court.

                                                 BACKGROUND

        On the morning of December 19, 2007, Appellant Joe Huerta was in the parking lot of his

apartment complex when San Antonio Police Officer James Ratcliff, who was on foot patrol,

approached him. Officer Ratcliff had previous contacts with Huerta and knew him prior to the

morning in question. Officer Ratcliff was approximately twenty-five to thirty-five feet away

from Huerta when Officer Ratcliff yelled, “Hey, Joe.”                     According to Officer Ratcliff, he

approached Huerta and shook his hand. However, before Huerta could respond, Officer Ratcliff

grabbed what appeared to be a hand-rolled marijuana joint from behind Huerta’s left ear, smelled

the joint, and concluded it was marijuana.

        Huerta was arrested and during the search incident to arrest, the officers recovered brass

knuckles and six and a half pills of Xanax. Huerta was charged with possession of a prohibited

weapon, possession of a controlled substance, and possession of marijuana. Immediately prior to

trial, Huerta’s motion to suppress the evidence was heard before the trial court. Both Officer

Ratcliff and Huerta testified. The trial court denied the motion to suppress finding that Huerta

“had absolutely no expectation of privacy with a joint over his ear in public view of an

apartment.” This appeal followed.




1
  Both the Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution
protect individuals from unreasonable searches and seizures. See U.S. CONST. amend. IV; TEX. CONST. art. 1, § 9.
Huerta does not claim that the Texas constitutional provision affords him greater protection than its federal
constitutional counterpart. We, therefore, treat them jointly as providing the same protection. See Johnson v. State,
912 S.W.2d 227, 233-34 (Tex. Crim. App. 1995).


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                                             WAIVER

       Huerta asserts the trial court erred in finding that the evidence was not illegally seized. In

response, the State argues the marijuana joint was in plain view to an officer who was standing in

a place where he had a right to be, but even further, the State argues that Huerta waived his right

to appeal. At the conclusion of the hearing on the motion to suppress, the trial court agreed with

defense counsel that whether Officer Ratcliff shook Huerta’s hand was a question of fact, and if

properly raised, a question for the jury. During Officer Ratcliff’s testimony before the jury, the

State offered the marijuana, the brass knuckles, and the Xanax pills. Upon presentation of each

exhibit, Huerta’s attorney replied “no objection.” As a result, the State contends Huerta waived

his objection to the admission of the evidence.

       Ordinarily, by filing a motion to suppress, a defendant preserves his right to complain of

the admission of evidence at trial even if he fails to object when that evidence is introduced at

trial. Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985) rev’d on other grounds,

956 S.W.2d 33 (Tex. Crim. App. 1997). More specifically, the defendant need not subsequently

object at trial to the same evidence in order to preserve error on appeal. Lemons v. State, 135

S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Moraguez v. State, 701

S.W.2d 902, 904 (Tex. Crim. App. 1986)). However, when an accused affirmatively asserts

during trial that he has “no objection” to the admission of the complained of evidence, he waives

any error in the admission of the evidence despite the pretrial ruling. Holmes v. State, 248

S.W.3d 194, 200 (Tex. Crim. App. 2008); Gearing, 685 S.W.2d at 329; Moody v. State, 827

S.W.2d 875, 889 (Tex. Crim. App. 1992) (holding that “[a]ppellant’s response of ‘no objection’

waived his claim to inadmissibility of the challenged evidence.”).




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                                                                    04-08-00861-CR; 04-08-00862-CR


       Our review of the record supports the State’s assertion that not only did Huerta fail to

object to the admission of either the marijuana, the brass knuckles, or the Xanax as each exhibit

was offered into evidence before the jury, but defense counsel affirmatively expressed his lack of

an objection. Although counsel vigorously objected during the motion to suppress that the

evidence was illegally seized in violation of his rights under the Fourth and Fourteenth

Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution,

when the evidence was offered before the jury, defense counsel’s response was “no objection.”

Huerta’s affirmative statement regarding his lack of an objection waived his claim to

inadmissibility of the challenged evidence. See Moody, 827 S.W.2d at 889.

       Because defense counsel specifically stated that Huerta had no objection to the admission

of the State’s evidence, we are compelled to find that this issue has not been preserved for

appellate review. We, therefore, overrule Huerta’s issues on appeal.


                                                Rebecca Simmons, Justice


DO NOT PUBLISH




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