

 









NUMBER 13-03-128-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG




ABEL A. FLORES,                                                             Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.




On appeal from the 36th District Court
of San Patricio County, Texas.




O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Castillo
Opinion by Justice Castillo

         This is an appeal from revocation of Abel Flores's community supervision for
possession of cocaine.
   The trial court sentenced Flores to seven years confinement
in the Institutional Division of the Texas Department of Criminal Justice and assessed
a $1,500 fine and court costs.  In a single issue, Flores challenges the trial court's
revocation of his community supervision based on the fruits of an illegal traffic stop. 
We affirm.   
I.  FACTS AND PROCEDURAL BACKGROUND
         The trial court placed Flores on community supervision in May 2001.  His
conditions of supervision included abstaining from the consumption of alcohol in any
form (Condition 17).  Around 1:45 the morning of January 2, 2003, a patrolling San
Patricio Deputy Sheriff stopped Flores based on:  (1) an anonymous tip reporting an
intoxicated driver in the area; and (2) the deputy's observations of Flores's driving. 
After pulling Flores over, the deputy concluded that Flores was intoxicated and called
for back-up.  The back-up officer arrived and spoke with Flores.  He, too, concluded
that Flores was intoxicated.  He arrested Flores for driving while intoxicated.  Several
days later, Flores admitted to his probation officer that he had six beers before his
arrest.  
         The State filed a motion to revoke alleging, among other violations, that on or
about January 2, 2003, Flores consumed alcohol in violation of Condition 17.  Flores
pleaded "not true" to each of the allegations.  The trial court found that Flores had
violated the terms and conditions of his community supervision and revoked it.  This
appeal ensued.  
II.  PRESERVATION OF ERROR
A.  The Record
         Flores filed a pre-revocation motion to suppress:  (1) all testimony of law
enforcement officers regarding the traffic stop, Flores's arrest, and subsequent events; 
and (2) all oral and written statements Flores made during and after the stop. 
Although it is not clear from the record, the trial court apparently carried the
suppression motion with the revocation hearing.  No written order denying the
suppression motion appears in the record.  However, the parties presented evidence
regarding the traffic stop and argued the legality of the stop at the close of evidence. 
Flores presented case law supporting his position that he had not committed a traffic
offense before being stopped.  The State argued that the deputy was justified in
stopping Flores:  (1) to investigate a possible driving-while-intoxicated offense or;
(2) in fulfillment of the deputy's community caretaking function.  At the close of
argument, the trial court revoked Flores's community supervision but did not expressly
rule on the suppression motion.  Nor did the trial court make any fact findings.   
B.  Waiver Principles
          A motion to suppress is a specialized objection to the admissibility of evidence. 
Morrison v. State, 71 S.W.3d 821, 826 (Tex. App.–Corpus Christi 2002, no pet.)
(citing Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (op. on
reh'g)).  Therefore, a suppression motion must meet the requirements of an objection. 
Morrison, 71 S.W.3d at 826 (citing Mayfield v. State, 800 S.W.2d 932, 935 (Tex.
App.–San Antonio 1990, no pet.)).  It must be timely and sufficiently specific to
inform the trial court of the complaint.  Morrison, 71 S.W.3d at 826 (citing Tex. R.
App. P. 33.1(a)(1)(A); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.
App. 1995)).  The specificity requirement has a dual objective: (1) to inform the trial
court of the basis for the objection; and (2) to provide opposing counsel the
opportunity to cure the objection or supply other testimony.  Morrison, 71 S.W.3d
at 826 (citing Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (per
curiam); Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977) (op. on
reh'g); Callahan v. State, 937 S.W.2d 553, 557 (Tex. App.–Texarkana 1996, no
pet.)). 
         When a trial court overrules a suppression motion before trial, the accused need
not object during trial to the same evidence to preserve error on appeal.  Wilson v.
State, 857 S.W.2d 90, 93 (Tex. App.–Corpus Christi 1993, pet. denied) (citing
Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986)).  However, the
accused waives any error caused by admission of the evidence, despite the pretrial
ruling, by affirmatively asserting during trial "no objection" to admission of the
evidence.  Moraguez, 701 S.W.2d at 904. 
         We assume, without deciding, that Flores's broadly worded suppression motion
sought exclusion of the oral admission Flores made to his probation officer after his
arrest.
  Thus, the issue presented by this case is whether, to preserve error, an
accused must object to admission of evidence subject to a suppression motion during
a unitary proceeding in which the trial court carries the motion with the merits.  
C.  Waiver Analysis 
1.  Unitary Proceeding
         The record reflects that the trial judge was fully aware of the basis on which
Flores asserted that the evidence obtained as a result of the traffic stop should be
suppressed.  See Morrison, 71 S.W.3d at 826.  Flores gave the trial court an
opportunity to rule on the challenge Flores presented.  See id.  We find that the State
was not operating at a disadvantage.  See id.  There was no other evidence that the
State could have offered to prove its case.  See id.  Thus, the State could not cure the
objection or supply other testimony.  See id.   It strikes us as an efficient use of the
court's time and scarce judicial resources to carry a suppression motion with a
revocation proceeding, even if to do so may seem more unorthodox than carrying the
motion with a trial on the merits.  See id.  The procedure employed by the trial court
in this case, in and of itself, should not result in waiver of appellate review of
questions presented to the trial court and argued by the parties.  See id.  In light of the
State and Flores's arguments, it would be fatuous for us to hold that Flores waived his
suppression issue by not obtaining a pre-revocation ruling.  See id.  On this record, we
find that the trial court implicitly overruled Flores's suppression motion when it revoked
his community supervision.  See Tex. R. App. P. 33.1(a)(2)(A); see also Gutierrez v.
State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001).  Therefore, we hold that
the unitary suppression/revocation proceeding in this case allowed for the
preservation of error.  See Morrison, 71 S.W.3d at 826 (citing Gearing v. State,
685 S.W.2d 326, 330 (Tex. Crim. App. 1985) (op. on reh'g), overruled on other
grounds, Woods v. State, 956 S.W.2d 33, 36 n.2, 38 (Tex. Crim. App. 1997)).  We
turn to the record to determine if Flores did preserve his suppression issues during the
unitary proceeding.  
2.  Unobjected Testimony
         Flores's probation officer testified as follows in response to the State's direct
examination:  
Q.Did Mr. Flores make any admissions to you about whether
or not he was in violation of his probation?
 
[DEFENSE COUNSEL]:  Excuse me, Your Honor.  I'm going to
object to that and ask that I take the witness on voir dire before any
further inculpatory statements that Mr. Flores might have been made are
properly admonished.  
 
THE COURT:  All right.  You may.  
 
[PROSECUTOR]:  Well, Judge, I'd like to know what his objection
is before - -
 
[DEFENSE COUNSEL]:  The objection is that any admissions
against interests will be impermissible unless he was Mirandized to the
effect that he was susceptible of being - - of his statement being used
against him in the motion to revoke.  
 
THE COURT:  [Prosecutor].  
 
[PROSECUTOR]:  Well, let me ask - -
 
Q.Was Mr. Flores in custody when he came to visit you at
your - -
 
A.No, he was not.
 
Q.Okay.
 
[PROSECUTOR]:  Miranda would not then apply, Your Honor.  
 
[DEFENSE COUNSEL]:  Excuse me; unless I misunderstood, you said this
was on January the 7th?
 
A.On the 2nd I saw him in custody; on the 7th he saw me in
person in my office.  
 
[DEFENSE COUNSEL]:  Okay.  
 
THE COURT:  So the question was about the 7th.   
 
[DEFENSE COUNSEL]:  Okay.  Not the 2nd.  
 
THE COURT:  Not the 2nd.  This is when he went to her office. 
 
[DEFENSE COUNSEL]:  And - - okay.    
 
THE COURT:  You may answer the question.  Do you remember it?  
 
[PROSECUTOR]:  Thank you, Your Honor.   
 
Q.[BY PROSECUTOR]  What admissions or comments did
Mr. Flores make to you about his being in violation of the terms and
conditions of his probation?
 
Let me ask you these one at a time.  Did you ask him whether or
not he had been drinking alcohol that night?
 
A.Yes.
 
Q.Did he tell you whether or not he had been?
 
A.Yes.
 
Q.What was his response to that question?
 
A.That he drank six beers.  

         Thus, Flores neither objected on the basis of his suppression motion nor
obtained a ruling on the admissibility of his oral statement.  Flores's silence in the face
of introduction of evidence he sought to exclude would have been permitted had the
trial court denied his suppression motion before the revocation hearing.  See Moraguez,
701 S.W.2d at 904; see also Wilson, 857 S.W.2d at 93.  However, the trial court had
not ruled yet on the suppression motion when the State introduced evidence of
Flores's admission to his probation officer.  We conclude, therefore, that the rationale
for permitting an accused to stand silent at trial following a pre-trial denial of a
suppression motion does not apply when:  (1) the trial court has not yet ruled on the
motion; and (2) the State offers evidence the accused seeks to exclude.  We find that
Flores was required to contemporaneously object to evidence he sought to exclude
when it was offered during the unitary suppression/revocation hearing.  He did not. 
See Tex. R. App. P. 33.1(a)(1)(A); see also Calloway v. State, 743 S.W.2d 645, 649
(Tex. Crim. App. 1988) ("While the court is not required to hear any pretrial motion
to suppress evidence the accused retains his right to raise any appropriate objection
at trial.").  We hold that Flores did not preserve error over the trial court's implicit
denial of his suppression motion.  See Wilson, 857 S.W.2d at 94.  
III.  CONCLUSION
         Accordingly, we overrule Flores's sole issue.  Flores's admission to his probation
officer that he had consumed alcohol the night of his arrest supports revocation of his
community supervision.  See Jones v. State, 112 S.W.3d 266, 269 (Tex.
App.–Corpus Christi 2003, no pet.).   We affirm the judgment of the trial court.   
                                                                        ERRLINDA CASTILLO
                                                                        Justice
Publish.
Tex. R. App. P. 47.2(b).

Opinion delivered and filed
this 29th day of January, 2004.
