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

         _________________________

              No. 06-09-00225-CR
        ______________________________


      TIMOTHY LEE ROBINSON, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 76th Judicial District Court
                Titus County, Texas
              Trial Court No. 16,079




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

        Timothy Lee Robinson was convicted of possession of less than four hundred grams but

more than two hundred grams of a controlled substance, to-wit: cocaine, enhanced by a prior

felony conviction. After receiving an anonymous tip, Officer Cesar Muñoz, a police officer with

the Mount Pleasant Police Department, observed a vehicle being driven by Robinson make a turn

without signaling at the intersection of Ninth Street and Margaret Drive. When Muñoz activated

his overhead lights, Robinson failed to immediately stop and proceeded several blocks along

Margaret Drive to his residence. Robinson challenged whether Muñoz had reasonable suspicion

to detain him in a pretrial motion to suppress and relitigated the issue at trial. The State’s sole

argument in response was that Muñoz had reasonable suspicion to detain Robinson for failure to

signal a turn. The trial court denied Robinson’s motion. Following the jury’s verdict, Robinson

appealed.

        In our original opinion, we determined that a fact issue existed concerning whether Ninth

Street and Margaret Drive merged and deferred to the trial court’s determination of this historical

fact.   Robinson v. State, No. 06-09-00225-CR, 2011 Tex. App. LEXIS 200 (Tex. App.—

Texarkana Jan. 13, 2011, pet. granted) (mem. op., not designated for publication) rev’d by No.

PD-0238-11, 2012 Tex. Crim. App. LEXIS 1221 (Tex. Crim. App. Sept. 19, 2012). Although

we concluded the trial court did not abuse its discretion in denying the motion to suppress, we

reversed finding that the fact issue of whether Ninth Street and Margaret Drive merged entitled

Robinson to a jury instruction. Id. The Texas Court of Criminal Appeals disagreed that a fact

issue existed and concluded that the ―only disagreement in this case was not about the character

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of roadway, but about the legal significance of the character of the roadway.‖ Robinson v. State,

No. PD-0238-11, 2012 Tex. Crim. App. LEXIS 1221, at *27 (Tex. Crim. App. Sept. 19, 2012).

Although finding that Robinson was not entitled to a jury instruction, the Texas Court of

Criminal Appeals, noting our resolution of Robinson’s suppression issue depended on the

existence of a fact issue, remanded this case back to this Court ―for further consideration of the

appellant’s first point of error.‖ Id. at *31.

        We now conclude that Robinson failed to preserve for appeal the issue of whether the

contraband seized in the search was admissible; consequently, the judgment of the trial court is

affirmed.

        The appellant’s first point of error alleges that the trial court erred in failing to suppress

all evidence obtained during and subsequent to an illegal traffic stop. In its supplemental brief,

the State argues that Robinson waived any error in admission of the evidence found as a result of

the search. This argument is based on defense counsel’s statement that there was ―no objection‖

to the admissibility of the contraband found during the search. Although the State is normally

limited to the issues raised in its original brief, we note that preservation of error is systemic and

we must review error preservation before reversing. Gipson v. State, No. PD-1470-11, 2012

Tex. Crim. App. LEXIS1548 (Tex. Crim. App. Nov. 14, 2012); Menefee v. State, 287 S.W.3d 9,

18 (Tex. Crim. App. 2009).

        If the defendant affirmatively states that there is ―no objection‖ when previously

challenged evidence is offered, error is waived. Swain v. State, 181 S.W.3d 359, 368 (Tex.

Crim. App. 2005); Graham v. State, 96 S.W.3d 658, 659–60 (Tex. App.—Texarkana 2003, pet.

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ref’d). Some courts have found a limited exception to the general rule if the record affirmatively

shows that the trial court did not construe the ―no objection‖ statement as an intentional

relinquishment of the previous challenge.       In Shedden v. State, a suppression hearing was

conducted prior to trial, and the trial court denied the motion. When items from the search were

offered, counsel for the defendant stated there was ―no objection.‖ Later, counsel clarified that

he did not intend to waive error, and the trial court expressly represented that it considered the

suppression hearing preserved for appeal. Shedden v. State, 268 S.W.3d 717, 730 (Tex. App.—

Corpus Christi 2008, pet. ref’d). Under those circumstances, the appellate court held that the

trial court did not construe the ―no objection‖ statements as a waiver of the issues.

       In Bouyer v. State, a motion to suppress was filed but not heard before trial. During trial,

counsel requested a hearing to challenge the admissibility of evidence.             The trial court

responded, ―[T]here is really no reason not to proceed. If I decide not to allow the evidence, it

won’t be stated to the jury and they (sic) will not be allowed to consider it.‖ Bouyer v. State, 264

S.W.3d 265, 268 (Tex. App.—San Antonio 2008, no pet.). The trial proceeded, and as evidence

from the search was introduced, defense counsel stated, ―[N]o objection.‖ After the State’s

evidence was introduced, the trial court conducted an evidentiary hearing and denied the motion

to suppress evidence. The San Antonio court explained that since the issue was raised at trial

and the trial court agreed to consider the matter at a later time and then held a hearing, the trial

court ―clearly did not construe Bouyer’s ―no objection‖ as a waiver of his motion to suppress[,]

notwithstanding the State’s contention that Bouyer had waived the objections.‖ Id. 268–69.



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       Here, the issue for determination is whether this record affirmatively demonstrates that

the trial judge did not construe Robinson’s ―no objection‖ statement as a waiver of his

evidentiary objections. One of the primary reasons to require a timely objection is to give the

trial judge an opportunity to rule on or even correct previous rulings on the disputed issues. The

defense is not required to make any announcement when the State’s evidence is offered, and if

the record previously contains a timely objection and a ruling, that objection is preserved for

appeal. It is only when a defendant announces that there is ―no objection‖ that waiver of the

issue occurs.

       Here, a suppression hearing was conducted before trial in an attempt to convince the trial

court that the search was illegal and to preclude the introduction of evidence gained as a result of

the search; the trial court denied the motion. But, when the State offered the damning evidence

(a bag of 294 grams of cocaine), defense counsel stated that there was no objection. Only after

the State’s case had been completed did counsel request the trial judge to reconsider its ruling on

the ―traffic stop.‖ Of course, a trial judge may always reconsider a previous ruling, but that

alone does not convince us that the trial judge here did not construe Robinson’s ―no objection‖

response as a waiver of his objections to the evidence. Unlike Shedden, the trial court here did

not expressly state that the suppression issue was preserved for appeal. The trial court had

already ruled on a suppression motion and did not advise counsel that it would be considered at

another time as occurred in Bouyer.        The affirmative statement of ―no objection‖ to the

complained-of-evidence waives error despite a previous pretrial ruling. 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.

                                                 5
1992). We find the objection to evidence of the fruits of the search was waived.1 Having

considered the only remaining issue as directed by the Texas Court of Criminal Appeals, we

affirm the judgment of the trial court.



                                                               Jack Carter
                                                               Justice

Date Submitted:            November 20, 2012
Date Decided:              December 13, 2012

Do Not Publish




1
 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.
―These are two distinct issues: 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 v. State, 248 S.W.3d 194, 196 (Tex. Crim. App.
2008).

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