                                     NO. 07-03-0014-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                          PANEL A

                                   SEPTEMBER 5, 2003
                              ___________________________


                           BERNABE G. VALDEZ, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE


                          _________________________________

              FROM THE 137 T H DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2002-400129; HONORABLE CECIL PURYEAR, JUDGE

                           _______________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                 MEMORANDUM OPINION


       Following a plea of not guilty, a jury convicted appellant Bernabe G. Valdez of the

offense of burglary of a habitation with intent to commit theft, and the court, finding the five

enhancement paragraphs included in the indictment to be true, sentenced him to 75 years
confinement. Presenting two points of error, appellant requests we reverse his conviction and

remand the case for a new trial. By his first point, appellant contends the trial court erred in

failing to grant his “request to suppress evidence obtained in violation of the proper scope of

an investigative detention.” W ith his second point appellant alleges “the trial court erred in

failing to contemporaneously provide a limiting instruction to the jury regarding the proper use

of [his] prior convictions which were admitted into evidence.” Based upon the rationale set

out below, we affirm.


       On the evening of May 30, 2002, the complainant heard a knock at his front door, and,

upon opening it, observed appellant, who explained his car had broken down and asked if he

could have some water from the outside faucet. The complainant consented, directed

appellant to the hose, and returned to his house. A few minutes later, appellant knocked on

the door and asked if he could obtain more water from the hose. Sometime later, appellant

knocked on the door a third time and requested to use the complainant’s phone because his

car still would not start. The complainant retrieved a cordless phone from his house and

handed it to appellant, who purportedly called a relative to pick him up. Appellant made one

more phone call, then asked if he could have a cup to procure more water from the hose.

The complainant left appellant standing on the porch and walked to the kitchen to retrieve a

cup. As he was removing the cup from the cabinet, the complainant heard the screen door

shut. He turned around and discovered that appellant had disappeared, along with the

cordless phone and the complainant’s wallet, which had been sitting on the coffee table.


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       On June 6, 2002, Kirk Hawkins, an officer with the Lubbock Police Department, made

contact with appellant on an unrelated matter. When Hawkins requested some form of

identification from him, appellant presented a birth certificate. For officer safety, Hawkins then

conducted a pat-down search of appellant and discovered the complainant’s driver’s license

in appellant’s back pocket. After running the license through the law enforcement database,

Hawkins learned the complainant had been the victim of a burglary a week earlier. Because

appellant matched the description of the burglary suspect provided by the complainant,

Hawkins contacted the complainant and requested he review a photo spread. After viewing

the photo spread for “just a couple of seconds,” the complainant identified appellant as the

man who had been at his home the week before.


       At trial, appellant admitted he acquired water from the complainant’s faucet and used

his phone to place a call; however, he denied removing the phone and wallet from the

complainant’s house. Rather, he claimed he came across the complainant’s driver’s license

in a friend’s motel room. Recognizing the person depicted on the license as the individual

who had helped him a few days before, appellant maintained he took the license with the

intent to return it to the complainant. He asserted, however, that he could not remember

where the complainant lived, and the address listed on the license was in San Antonio. Thus,

according to appellant, he had been unsuccessful in returning the license to its owner.




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       W ith his first point of error, appellant challenges the trial court’s denial of his motion

to suppress the complainant’s driver’s license, which he contends was obtained in violation

of the edicts of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant

did not file a written pretrial motion to suppress evidence. However, in a hearing outside the

presence of the jury before the State began its case, the court entertained the testimony of

Hawkins regarding his investigative detention of appellant on June 6, 2002. Following the

testimony, appellant urged the court to suppress any testimony or evidence relating to the

complainant’s driver’s license. Appellant argued that Hawkins exceeded the scope of the

investigative detention, a Terry stop, when he removed the driver’s license from appellant’s

back pocket.     As a result, appellant continued, any subsequent evidence, including

statements by appellant, should be suppressed as fruit of the poisonous tree. The trial court

denied his motion to suppress the driver’s license, but granted it “as to the manner in which

the driver’s license was obtained.” Appellant then requested, and the trial court granted him,

a running objection to any line of questioning regarding the driver’s license. At trial, however,

when the State offered the complainant’s driver’s license into evidence, appellant announced,

“We have no objection, Your Honor.” The license was then admitted into evidence.


       It is well settled that when a pretrial motion to suppress evidence is overruled, the

defendant need not subsequently object at trial to the same evidence in order to preserve

error on appeal. Moraguez v. State, 701 S.W .2d 902, 904 (Tex.Cr.App. 1986). However, if

at trial the defendant states he has “no objection” when the evidence is offered, he waives


                                                4
his admissibility complaint. W elch v. State, 993 S.W .2d 690, 694 (Tex.App.–San Antonio

1999, no pet.); but cf. Taylor v. State, 82 S.W.3d 134, 137 (Tex.App.–San Antonio 2002, no

pet.) (stating “no further objections” impliedly references the pretrial motion to suppress and,

thus, does not waive error). Here, in spite of the running objections he requested and

received at the pretrial hearing, appellant expressly announced he had no objection to the

admission of the driver’s license when it was offered by the State at trial. As a result, he has

presented nothing for our review. Appellant’s first point of error is overruled.


       By his second point, appellant claims the trial court failed to instruct the jury,

simultaneous to the admission of the prior convictions, on the limited purpose for which the

convictions were admitted. W e disagree. Outside the presence of the jury, appellant

objected to the admis sion of the prior convictions on the basis of remoteness. Appellant

requested, in the alternative, that the jury be provided with a contemporaneous limiting

instruction when the convictions were admitted. The court overruled both objections. When

the State attempted to impeach appellant, in the jury’s presence, with evidence of his prior

convictions for five felonies and one misdemeanor theft, appellant again objected to their

admission and, alternatively, requested a contemporaneous limiting instruction. The court

overruled the objection and announced it would deliver that instruction in the court’s charge

instead. The court then told the jury:


       W ith regard to the request for a contemporaneous instruction to the jury, the
       jury will be instructed in the Charge by the Court that these matters are being


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       used for the purpose of impeachment only of the – and for the determination
       of the credibility of the witness at this time.




Thus, while the court purported to overrule appellant’s objection, it, nonetheless, instructed

the jury on the limited purpose for which the jury could consider appellant’s prior convictions.

Thus, appellant received all that he requested, and cannot be heard to complain on appeal.




       Assuming, arguendo, the trial court failed to provide a contemporaneous limiting

instruction, we conclude that error, if any, did not affect appellant’s substantial rights because

it had no substantial or injurious effect or influence in determining the jury’s verdict. See Tex.

R. App. P. 44.2(b); see also King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App. 1997). The

prior convictions were introduced through appellant, the last witness to testify on the last day

of trial. Then, following a short conference outside the presence of the jury, the trial court

charged the jury on the law applicable to the case, including the limited purpose for which the

jury could consider appellant’s prior convictions. Given the short amount of time that passed

from the introduction of the prior convictions to the trial court’s reading of the instructions to

the jury, we conclude the trial court’s error, if any, did not affect a substantial right. Lemmons

v. State, 75 S.W .3d 513, 525 (Tex.App.–San Antonio 2002, pet. ref’d). Appellant’s second

point of error is overruled.


       Accordingly the judgment of the trial court is affirmed.

                                                6
                  Don H. Reavis
                    Justice

Do not publish.




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