Affirmed and Memorandum Opinion filed February 5, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00101-CR
                              NO. 14-14-00102-CR

                  ADRIAN DESHAWN PATTON, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 75th District Court
                            Liberty County, Texas
                 Trial Court Cause Nos. CR29870 & CR29871

                 MEMORANDUM                      OPINION


      Appellant Adrian Deshawn Patton appeals his convictions for possession of
a controlled substance with intent to deliver and evading arrest or detention with a
previous conviction. Tex. Health & Safety Code Ann. § 481.112 (West, Westlaw
through 2013 3d C.S.); Tex. Penal Code Ann. § 38.04 (West, Westlaw through
2013 3d C.S.). In a single issue appellant contends the trial court applied an
incorrect standard in ruling on his motion to suppress. We affirm. 1

                                      I. BACKGROUND

       Appellant was indicted for possession of cocaine with intent to deliver in
trial court cause number CR29870. He was indicted for evading arrest or detention
with a prior conviction in cause number CR29871. Prior to trial appellant filed a
motion to suppress in cause number CR29870, the possession case. In the written
motion appellant alleged he was arrested without a warrant or probable cause, and
that any tangible evidence seized should be suppressed. Appellant further argued
that his arrest should be suppressed because officers did not have reasonable
suspicion to detain him.

       Prior to trial the trial court held a hearing on appellant’s motion to suppress.
At the beginning of the hearing the trial court pointed out that the motion had only
been filed in the possession case. Appellant expressed the desire to file the motion
in the evading arrest case as well. The trial court consolidated the cases and agreed
to “apply the suppression motion to whatever act, event, or circumstances to which
it may apply.” Appellant’s counsel emphasized that appellant was only attempting
to have his arrest suppressed in the evading arrest charge, and no longer sought
suppression of the cocaine.

       At the suppression hearing Deputy Paul Young of the Liberty County
Sheriff’s Department testified that he was working narcotics law enforcement
when he received a call to respond to an apartment complex. Young was in
uniform and driving a marked patrol car. When Young arrived he saw an

       1
          Appellant initially appealed to the Ninth Court of Appeals. Pursuant to a docket
equalization order, this appeal was transferred to this court. See Tex. Gov’t Code Ann. § 73.001
(West, Westlaw through 2013 3d C.S.). We must decide the case in accordance with the
precedent of the Ninth Court of Appeals in the event there is a conflict with precedent from this
court. See Tex. R. App. P. 41.3.

                                               2
individual that he recognized from previous drug arrests. The individual was sitting
in the driver’s seat of a car. Appellant, who was standing at the window of the car,
saw Young and immediately walked to an apartment door where he tried to gain
entry. Young attempted a consensual encounter with appellant and asked appellant
to stop and talk with him. Rather than stop, appellant ran away. Young testified
that he was suspicious of appellant because the individual who lives in the
apartment, and was driving the car is a known crack dealer.

      As appellant was running away he appeared to be reaching in his right front
pants pocket. After pursuing appellant for approximately 100 yards, Young
detained him. Young discovered half an ounce of cocaine along the path where
appellant had been running. Young testified that although the ground was wet from
recent rain the package of cocaine was dry. Young also recovered $1,400 in cash
from appellant’s person after he was apprehended.

      At the conclusion of the hearing, the trial court asked appellant’s counsel,
“what by this motion to suppress are you seeking to suppress?” Counsel responded,
“The evading of the arrest.” The trial court then ruled as follows:

      That’s an element of the offense. I’m ready to make some findings.
      It’s my opinion that the issue in this case is whether or not Officer
      Young — it’s not whether or not Officer Young had a reasonable
      suspicion to believe that a crime was committed.
      I think the issue in this matter is whether or not Officer Young was in
      a location where he had a right to be as a peace officer and whether or
      not there was a legitimate reason on behalf of Officer Young to ask
      the defendant to approach, to identify, and to have further questions.
      I find that Officer Young was in a place where he had a right to be,
      and based on the circumstances he had a legitimate reason to ask the
      defendant to approach and to answer some questions.
      Now, that is something less than reasonable suspicion. It was just he
      has a justification. I don’t think Officer Young has the right to stop
      anybody on the street and compel them to answer questions, but facts
                                          3
      and circumstances that give rise to a belief that a question is warranted
      is something far less than reasonable suspicion in my opinion.
      Based on those findings I don’t know what it is that I am to suppress
      but I decline to suppress anything and I respectfully overrule and deny
      your motion to suppress.
      After a jury trial, the jury found appellant guilty of evading arrest or
detention with previous conviction, and possession of a controlled substance with
intent to deliver. The jury assessed punishment at 15 years in prison on the
possession conviction, and two years in State Jail for the evading arrest conviction.

                              II. MOTION TO SUPPRESS

      In a single issue appellant contends the trial court applied an incorrect
standard in ruling on the motion to suppress. Appellant argues the trial court
should have suppressed the attempted detention and subsequently discovered
cocaine.

      A. The trial court did not abuse its discretion in denying appellant’s
motion to suppress his arrest.

      At the hearing on the motion to suppress appellant specifically limited the
motion to the evading arrest charge. Appellant argues on appeal that the trial court
erred when it “specifically found that the police lacked reasonable suspicion to
detain Appellant, but still denied Appellant’s request to suppress evidence gained
as a result of that arrest for evading the detention[.]”

      With regard to the evading arrest charge, the State cites Woods v. State, 153
S.W.3d 413 (Tex. Crim. App. 2005), and argues that appellant’s motion to
suppress was an attempt to suppress an element of the offense of evading arrest;
therefore it was an improper attempt to test the sufficiency of the State’s evidence
to prove the alleged offense. In Woods, the defendant was convicted of evading


                                            4
arrest or detention. On appeal, Woods argued that the trial court erred in denying
his pretrial motion to suppress because the arresting officer “had no reasonable
suspicion to detain him.” Id. at 414. In response, the State argued that the officer
had reasonable suspicion to detain the defendant for further investigation as well as
probable cause to arrest the defendant. The Texas Court of Criminal Appeals
concluded that it was unnecessary to address either of the State’s arguments
because, “[b]y asking for the trial judge to suppress the arrest, and the details of his
flight and evasion,” the defendant “was in effect asking the trial judge to rule on
whether the prosecution had proof of an element of the offense,” which is not a
proper use of a motion to suppress. Id. at 415–16.

      We conclude that appellant’s pretrial motion to suppress was not a proper
use of the motion to suppress for the same reason. Therefore, the trial court did not
err in denying the motion to suppress appellant’s detention as that was an element
of the offense of evading arrest or detention.

      B. Appellant waived error with regard to admission of the cocaine.

      Appellant also argues that the cocaine should be suppressed because it was
discovered as a result of the chase and is fruit of the poisonous tree. Appellant did
not preserve this issue for appeal. Although appellant raised suppression of the
cocaine in his written motion to suppress, he specifically excluded the cocaine
during the oral hearing on the motion to suppress. When the cocaine was admitted
at appellant’s subsequent trial, he stated that he had “[n]o objection.”

      An adverse ruling on a pretrial motion to suppress evidence will ordinarily
suffice to preserve error on appeal, and a defendant need not specifically object to
the evidence when it is later offered at trial. See Thomas v. State, 408 S.W.3d 877,
881 (Tex. Crim. App. 2013). Appellant, however, must also take care not to
affirmatively indicate that he has “no objection” to the evidence that he challenged
                                           5
in his pretrial motion to suppress when it is later offered at trial. Id. It has long
been held that such an affirmative statement constitutes waiver of the right to raise
on appeal the error that was previously preserved. See id. at 881–82. Appellant
waived any complaint to the admission of the cocaine at trial.

      We overrule appellant’s sole issue on appeal and affirm the trial court’s
judgment.




                                       /s/       Ken Wise
                                                 Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                             6
