What should you do if your objection to evidence clearly contrasts with well-established caselaw? Should you make your objection anyway, knowing full-well that it goes against current precedent? If so, do you couch your objection in policy or fairness terms, hoping that the court will simply decide to depart from the current state of the law? Or do you sit back and make no objection at all?
According to the 4th Court of Appeals (San Antonio), you must make any and all objections to the admission of evidence at the trial court (whether the objection follows or contrasts with current precedent). This is not a novel concept as the general rule is well-established, but it becomes much more interesting when you consider a case like Bishop v. State, 04-08-00693-CR. (Sorry link down, will try to post later).
In Bishop, the defendant did not object at trial to the admission of evidence which was seized from his glove compartment as a search incident to arrest. At the time of the search, the defendant was in custody in the backseat of a patrol car and could not gain access to his vehicle. The defendant's counsel did not object at trial because this type of evidence (that seized from a glove compartment as a search incident to arrest) is routinely admitted under the Supreme Court holding in New York v. Belton, 453 U.S. 454 (1981) (holding police may search the passenger compartment of a vehicle, and any containers therein, incident to a recent occupant's lawful arrest) and the Texas Court of Criminal Appeals' holding in State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999). As a result the defendant was convicted at trial.
Between the time of the conviction and appeal, the Supreme Court issued its opinion in U.S. v. Gant, 129 S.Ct. 1710 (2009). In Gant, the Supreme Court limited the scope of vehicle searches incident to a recent occupant's arrest to situations where the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Based on this new caselaw, the defendant argued (for the first time) on appeal that the seach of his vehicle was unlawful under Gant because at the time of the search he was in custody in the backseat of a patrol car.
Rather than recognize the blatant unreasonable search, the 4th Court of Appeals simply punted the issued on procedural grounds by holding that the issue cannot be raised for the first time on appeal. So in essence, what the court is saying is that litigants need to make any and all objections at trial even though they may conflict with well-established caselaw. I would put in the disclaimer that you probably should not make frivolous objections, but if you have an honest, conscientious objection to evidence, even if only based on policy or fairness, make it!
