
NO. 07-00-0285-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E
 
MAY 30, 2003

______________________________


TRAKEITH DUANE MCINTOSH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 39924-A; HONORABLE DAVID GLEASON, JUDGE
 
_______________________________

Before JOHNSON, C.J., and REAVIS, J., and BOYD, S.J. (1)
MEMORANDUM OPINION
	Appellant Trakeith Duane McIntosh appeals from his conviction for aggravated
assault with a deadly weapon, and incarceration for seven years.  By seven issues he
asserts that the trial court abused its discretion in failing to suppress evidence discovered
by police following appellant's warrantless arrest and during the subsequent warrantless
search of appellant's vehicle.  We affirm.
BACKGROUND
	On February 5, 1998, appellant's girlfriend, Josetta Williams, was visiting with some
friends at an apartment where two of the friends lived.  During the evening, the group went
riding in an automobile being driven by Taniko Owens.  One of the occupants of the
automobile, in addition to Williams, was Tonia Sanders.  Eventually, the group decided to
drive to a nightclub called the Atmosphere.  When Williams and her friends arrived in the
vicinity of the Atmosphere, appellant drove in front of the automobile in which they were
riding and "cut them off."  Appellant walked up to the car occupied by Williams and her
friends, whereupon Williams exited the car, went to where appellant's brown station wagon
was stopped, and entered the station wagon.  Owens and Sanders testified to the effect
that after Williams entered appellant's vehicle, appellant opened the hood of his car, then
returned to the automobile in which they were located, pointed a black pistol at Owens, and
threatened them.  Sanders testified that appellant obtained the pistol from under the hood
of his car.  
	On February 6, 1998, the Amarillo police radio dispatcher broadcast a reported
drive-by shooting in the Northwest Amarillo area.  The shooter was reportedly driving a
brown station wagon.  Shortly after having heard the dispatch report, Amarillo police
sergeant Daniel Montano noted a brown station wagon driving on North Hughes Street in
Amarillo.  Montano activated flashing lights in his vehicle and then pulled in behind the
station wagon when it stopped in the parking lot of a convenience store.  Sergeant
Montano approached the station wagon with his weapon drawn and ordered the occupants
out.  Appellant and Williams exited the station wagon and were handcuffed.  Backup police
officers arrived and the station wagon was searched.  A loaded black pistol was located
under the hood.  Two additional cartridges for the pistol were located in the passenger
compartment of the station wagon.  The officers did not have either a search warrant or an
arrest warrant.
	Appellant filed a motion to suppress the evidence obtained via the search of the
station wagon.  A pre-trial hearing was held on the motion.  At the hearing, Montano
testified that he actuated his emergency vehicle lights because of the police dispatcher's
radio message about a drive-by shooting by someone in a brown station wagon, and
because the vehicle he was stopping was a brown station wagon.  Montano further testified
that he asked appellant for consent to search the vehicle and appellant consented. 
Appellant testified that Montano asked for consent to search, but that appellant did not
consent.  Appellant did not execute a written consent to search the vehicle.  The trial court
denied the motion to suppress.  
	Appellant presents seven issues on appeal.  The issues urge that his warrantless
arrest, the warrantless search of his vehicle and the resultant seizure and admission of
evidence from the vehicle search violated his rights under the Fourth and Fourteenth
Amendments to the United States Constitution, Article I, Sections 9, 10 and 19 of the
Texas Constitution, and Tex. Crim. Proc. Code Ann. arts. 1.04, 1.05, 1.051, 1.06 and
38.23 (Vernon 1977 & Supp. 2003).  He asserts that the evidence which should have been
suppressed was State's Exhibits No. 1, a pistol; Nos. 3-7, photographs of appellant's
vehicle; No. 8 cartridges from the pistol; and Nos. 9 and 10, cartridges from the passenger
compartment of appellant's station wagon.  The State responds that (1) appellant's
detention and arrest were lawful, (2) appellant voluntarily consented to the search of his
vehicle, (3) regardless of appellant's consent to search, the police had probable cause to
search the vehicle and (4) even if the trial court erred in failing to suppress the evidence,
appellant was not harmed.   
LAW
	When a pre-trial motion to suppress evidence is overruled, the accused need not
subsequently object to the admission of the same evidence at trial in order to preserve
error.  See Livingston v. State, 739 S.W.2d 311, 334 (Tex.Crim.App. 1987).  If, however,
evidence which has been the subject of a previously-overruled motion to suppress is
offered at trial and the defendant affirmatively states "no objection," the error preserved by
presentation of and overruling of the motion to suppress is waived.  See Jones v. State,
833 S.W.2d 118, 126 (Tex.Crim.App. 1992).
 If the record in a criminal case reveals constitutional error that is subject to harmless
error review, the court of appeals must reverse the judgment unless the court determines
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.  See Tex. R. App. P. 44.2(a); Hernandez v. State, 60 S.W.3d 106, 108
(Tex.Crim.App. 2001).  The erroneous admission of evidence obtained in violation of the
federal constitution is considered to be constitutional error.  See id.  
	An appellant urging harm from a trial court's error does not have the burden to prove
harm from the error.  See Ovalle v. State, 13 S.W.3d 774, 787 (Tex.Crim.App. 2000). 
Rather, the appellant is required only to suggest, in light of the record, how prejudice may
have occurred.  Id.  At that point, the reviewing court must make its determination as to
what effect, if any, the error had on the jury verdict.  Id.  In making our determination we
examine the entire record in a neutral, impartial and even-handed manner.  See Harris v.
State, 790 S.W.2d 568, 586 (Tex.Crim.App. 1989).  If pursuant to our neutral review of the
record we determine beyond a reasonable doubt that the nature of the error is such that
the error could not have affected the jury, then the error is harmless; otherwise it is not. 
Id. at 586-87.   
ANALYSIS
	At the time the State offered each of State's Exhibits 3-7 (photographs of appellant's
brown station wagon) and 8, 9 and 10 (cartridges from the pistol found under the hood of
appellant's station wagon and found inside the passenger compartment of the station
wagon), appellant's counsel stated "No objection."  Such statement results in failure to
preserve error as to the admission of the exhibits, regardless of the correctness of the trial
court's prior ruling on a motion to suppress.  See Jones, 833 S.W.2d at 126.  Thus, as to
those exhibits, error was not preserved for review, and appellant's issues as to them are
overruled.   
	As to State's Exhibit No. 1, the pistol found under the hood of appellant's car during
the search, appellant does not suggest to us how the record demonstrates harm to him by
admission of the pistol into evidence.  See Ovalle, 13 S.W.3d at 787.  Although appellant
does not have a burden of proof to show that he suffered harm from the alleged error in
admitting the pistol into evidence, he has the obligation to suggest, in light of the record,
how prejudice to him may have occurred.  Id.  He does not do so.  
	Owens and Sanders, two longtime acquaintances of appellant, testified that
appellant "cut them off" with his vehicle and that appellant then went to the hood of his car,
approached them with a pistol, pointed it directly at Owens and threatened them.  Neither
Owens nor Sanders could positively identify State's Exhibit No. 1 as the pistol used by
appellant, although both stated that they were very focused on the pistol and intimidated
by it while appellant was making his verbal threats and pointing the gun at Owens.  Their
testimony as to appellant's having a pistol and pointing it at Owens was clear, positive and
unequivocal. 
	Williams testified for appellant.  She could not testify whether appellant threatened
her friends with a pistol, however, because after she entered appellant's station wagon,
she had her head down between her legs and was crying.  
	The finding of the pistol by the police was not mentioned in voir dire of the jury panel
by either the State or appellant; it was not mentioned by the State in opening or closing
arguments, nor by appellant in closing argument.  In rebuttal closing argument the State
briefly mentioned the pistol being found under the hood of appellant's car, to buttress the
testimony of Owens and Sanders, who had been accused of testifying against appellant
to get back at appellant for his treatment of their friend Williams. 
	Having reviewed the entire record in a neutral manner, we conclude that, beyond
a reasonable doubt, even if the trial court erred in overruling appellant's motion to suppress
as to the pistol discovered and seized during the search of appellant's vehicle, the
admission of the pistol did not contribute to appellant's conviction.  See Tex. R. App. P.
44.2(a); Harris, 790 S.W.2d at 586-87.  Appellant's seven issues are overruled.
CONCLUSION
	Having overruled each of appellant's issues, we affirm the judgment of the trial
court.  

								Phil Johnson
								Chief Justice


Do not publish.  
 
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
