You Snooze, You Lose.

I've posted about this before, but it is always worth saying again.  If you are going to object to the admission of seized evidence, do not wait too long!  The appellate courts are quick to conclude that you failed to preserve error.  A recent case out of the 2nd District Court of Appeals (Fort Worth), Ratliff v. State, serves as a reminder of this principle.

In Ratliff, the Court instructs:

To preserve error about the illegal seizure of evidence, a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial.  If a defendant waits until the State offers the evidence at trial, the objection to the evidence must be made before a witness gives substantial testimony about it.

Ratliff involved the seizure of drugs and drug paraphernalia.  The defense filed a pretrial motion to suppress, but failed to obtain a ruling prior to trial, opting to wait until the subject arose during trial to object.  The problem was that the trial defense attorney allowed the police officer to testify about the search and the items he seized before making an objection to the actual admission of the exhibits.  A bad strategy says the 2nd Court.

[A]ppellant's failure to object at the time [the detective] specifically described the physical evidence and explained how he found that evidence forfeited any error associated with his objection to the State's later introduction of the evidence.

The Court also included a few examples of similar blunders in other cases.

In Tell v. State, an aggravated robbery case, the defendant attempted at trial to suppress the admission of a ski mask that police officers obtained from his residence without a search warrant or consent. 908 S.W.2d 535 (Tex. App.--Fort Worth 1995, no pet.).  But the defendant allowed a police officer to answer four questions about seizing the ski mask before objecting to the evidence.  On appeal, we concluded that [b]ecause Tell failed to object at the time the ski mask was mentioned and allowed further questions and answers before finally objecting, he waived any error in the admission of the ski mask.

Similarly, in Turner v. State, the defendant contested the trial court's admission of evidence that a detective had seized from his vehicle after his arrest. 642 S.W.2d 216 (Tex. App.--Houston [14th Dist.] 1982, no pet.).  The court of appeals held that the defendant forfeited his objections at trial by allowing the detective to testify “extensively to the arrest and the items found in the search.  The appellant did not object to the testimony but only to the five exhibits.

Moral of the story: Objections must be urged at the earliest possible opportunity.  If you try to wait to object in order to spring a tactical trap on your opponent, you may be actually springing a trap on yourself (and your client).

Keeping a Promise

I'm up to my ears in published cases from the various Texas Courts of Appeals.  Maybe I never should have promised to post about every published case.  Or maybe I shouldn't have taken such a long break when baby #2 came along last month.  Regardless, I promised and now I need to do a bit of housecleaning in order to keep pace with all of the recent published opinions.  Here are a few from last week:

Wilson v. State, Tex. Crim. App. (Delivered  June 9, 2010) - CCA upheld Court of Appeals decision even though the Court of Appeals based its holding on a Penal Code section under which Appellant did not preserve error, but was closely related to the section for which he did preserve error.  To remand the case and end up with the same result, would have been an exercise in futility, so it appears the Court based its ruling more on judicial economy than law.

Rivera v. State, 7th Dist - Amarillo (Delivered June 8, 2010) - Explaining that Appellant had the burden to prove his counsel was ineffective, the Court held that trial defense counsel is not required to make arrangements for the defendant to view and/or listen to electronically recorded evidence prior to his guilty plea.  A good quote from this Per Curiam opinion:

Doing that which may be considered laughable, silly, unintelligent or insulting need not be done for counsel to be effective, and deciding whether to tender witnesses willing to say that appellant can be a good guy when he is not selling drugs and assaulting people seems to fall within that realm.

Griffith v. State, 11th Dist - Eastland (Delivered June 10, 2010) - Court affirmed manslaughter conviction.  Appellant acted recklessly when he drove his vehicle while intoxicated.  A defendant need not be aware of the specific risk of another's death to be guilty of manslaughter.

Steadman v. State, 11th Dist - Eastland (Delivered June 10, 2010) - The Court upheld the ruling of the trial court allowing a police officer to testify that the defendant "neither admitted nor denied" that he committed the offense during pre-arrest/pre-interrogation interview with police.  The Court had to stretch for this opinion, but here's what it came up with:

We hold...that pre-arrest silence of a defendant who has not received any Miranda warnings “is a constitutionally permissible area of inquiry.” We further hold that Steadman‟s pre-arrest/pre-Miranda silence was not the result either of interrogation or of his being compelled to be a witness against himself. Our holding is not to be taken to address those situations that involve comments upon a defendant‟s post-arrest/pre-Miranda silence or those involving silence during interrogation. We issue no holdings in connection with those issues.

Okay, there's a few cases.  I may have to do a couple more posts like this one to catch up.  Please bear with me.