                                   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




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      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
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


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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

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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.


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       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


                                              5
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.


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         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.




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