Opinion issued June 16, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00429-CR

NO. 01-10-00430-CR

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BOB NICHOLS NORFLEET, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

MEMORANDUM  OPINION

          Following a joint trial on two separate indictments, a jury found appellant guilty in each case of the offense of aggravated assault.[1]  Because each indictment alleged that appellant had caused the complainant serious bodily injury by using a deadly weapon, namely, a motor vehicle, the trial court included an affirmative deadly-weapon finding in each judgment of conviction.  

Appellant elected to the have the trial court assess punishment.  Appellant had two prior convictions for felony offenses.  In accordance with the habitual offender statute, the trial court sentenced appellant to 40 years in prison for each offense, with the sentences to run concurrently.[2]  Appealing each judgment of conviction, appellant raises one identical issue in each appeal complaining that the trial court improperly allowed the admission of testimony that the trial court had previously ruled should not be elicited. 

We affirm the judgment in each appellate cause.

Background

          On the morning of September 14, 2009, several high school students were boarding their school bus when appellant, driving a Dodge Magnum, swerved around the bus and struck three of the children.  Two of the children, M.G. and S.A., sustained broken bones and other serious bodily injuries.  A number of witnesses, who had either witnessed the incident or had seen the Dodge Magnum in the area, helped the police determine that Kimberly Means, appellant’s girlfriend, owned the vehicle.  After speaking with Means, appellant became the focus of the investigation.

          The police later arrested appellant at Means’s apartment.  The police informed appellant of his statutory rights, after which appellant stated that he did not want to speak to the police until he could talk to an attorney.  Appellant was handcuffed and placed in the back of a patrol car. 

After the police spoke to her, Means got in the back of the patrol car with appellant to talk to him.  During the conversation, appellant made incriminating statements to Means.  Appellant disclosed to Means the location where he had secreted the Dodge Magnum, which was later found with damage consistent with hitting the children. 

Unknown to appellant, the patrol car was equipped with a video recording device, and his statements to Means were recorded.  Before trial, appellant filed a written motion to suppress the video of his recorded statement obtained in the patrol car.  Appellant asserted that Means was acting as an agent for the police when he spoke to her in the back of the police car.  Appellant pointed out that he had invoked his right to counsel.  He asserted that the recorded statement was taken in violation of his constitutional rights to counsel and against self-incrimination. 

Appellant’s motion to suppress remained pending when trial began.  Appellant orally urged his motion to suppress at trial.  On the second day of trial, the trial court orally ruled that no mention could be made that the patrol car in which appellant was placed after his arrest had a recording device.  Appellant’s motion to suppress remained pending.

On the third day of trial, the following exchange occurred between the prosecutor and State’s witness, Deputy W. Harrah:

Q:  Briefly I want to talk to you about your patrol car.  Is it a marked

vehicle?

A:  Yes.

Q:  And does it have the lights and all the fancy things that police cars

have?

A:  Yes.

Q:  Is your car also equipped with a video camera?

A:  Yes.

Q:  Is that video camera capable of accurately recording things?

A:  Yes.

Q:  And was it working properly on that day?

A:  Yes.

Q:  And is it possible to record the activity with the video recorder in

your actual vehicle?

A:  Yes.

The defense did not object that the testimony violated the trial court’s ruling from the day before that the recording device not be mentioned.  The next day the defense re-urged its motion to suppress and presented argument to the trial court in support of the motion.  The defense did not point out or object that Deputy Harrah’s testimony the day before had mentioned the recording device in violation of the trial court’s earlier oral ruling that the device not be mentioned. 

On the fifth day of trial, the trial court granted appellant’s motion to suppress the videotaped statement from the patrol car.  In supporting of its ruling, the trial court determined:

Given the testimony of this last witness that Ms. Means requested to be allowed to speak with the defendant and given the fact that the police were aware that her purpose for doing so was to visit with him about the whereabouts of the vehicle, knowing that the defendant had already exercised his right to remain silent, knowing, at least from the Court’s review, that there was a recording device operating, at least it appeared to the Court, from the time that Mr. Norfleet was placed in the back seat of the patrol car—and I don’t think the police are permitted to circumvent a right to remain silent to put a witness inside the vehicle, whether they did so through an agency relationship or not, and record that statement and be allowed to use at a later time.  And so, the Motion to Suppress is granted.

Pursuant to the trial court’s ruling, the videotape was not admitted into evidence. 

The jury found appellant guilty of two offenses of aggravated assault with a deadly weapon as charged in the indictments.  The trial court sentenced appellant to 40 years in prison for each offense with the sentences to run concurrently.  These appeals followed. 

No Preservation of Appellate Complaint

In each appeal, appellant raises one point of error complaining of Deputy Harrah’s testimony regarding the patrol car’s recording device.  Appellant argues that the trial court erred when it allowed the State to question Deputy Harrah about the recording device in the presence of the jury because the trial court had previously ruled that no mention should be made of the recording device, pending the ruling on appellant’s motion to suppress.  Appellant further asserts as follows:

. . . Appellant’s motion to suppress was granted but only after the trial court allowed the state to lay the foundation of an audio and video statement . . . .  The jury was allowed to hear of the presence of an audio and video statement the Appellant made with Mrs. Means in the back of the police car.  The defense properly objected to the introduction of this audio and video statement.  The trial court ruled that there would be no mention of the presence of an audio and video statement made by Mr. Norfleet and Mrs. Means until after the defense’s motion to suppress was ruled upon, however the trial court then allowed the state to lay the foundation of this audio and video tape in the presence of the jury which the Appellant believes tainted the jury’s opinion of the defendant’s guilt.  After hearing that an audio and video statement was made in the back of the patrol car by Mr. Norfleet and Mrs. Means, the jury reasonably believed that this was a confession that was being kept from the jury.

          We agree with the State that appellant has not preserved his complaint for appellate review because he failed to raise any objection in the trial court regarding Deputy Harrah’s testimony concerning the patrol car’s recording device.  In many respects, the trial court’s ruling, made pending its ruling on the motion to suppress, was akin to an order granting a motion in limine.  See Thierry v. State, 288 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (explaining that “[a] motion in limine is a method of raising objection to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury argument, or other means” and is “by its nature, subject to reconsideration by the court throughout the course of the trial”).  Similar to the ruling at issue here, a ruling on a motion in limine does not purport to be one on the merits but one regarding the administration of the trial.  Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d).

As the Court of Criminal Appeals explained, “The violation of a motion in limine may entitle a party to relief, but any remedies available with regard to such a violation are with the trial court.  If its order has been violated, the trial court may apply the sanctions of contempt or take other appropriate action.”  Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972).  Thus, “‘[f]or error to be preserved with regard to the subject matter of [a] motion in limine, it is absolutely necessary that an objection be made at the time when the subject is raised during the trial.’”  Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994) (quoting Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985)).

          In short, to preserve an issue for appellate review, a timely and specific objection is required.  Layton v. State, 280 S.W.3d 235, 238–40 (Tex. Crim. App. 2009); see also Tex. R. App. P. 33.1(a) (requiring timely and specific objection stating grounds with sufficient clarity to advise trial court of basis for complaint); Tex. R. Evid. 103(a)(1) (requiring party to timely object when evidence is admitted).  Only two exceptions apply to the contemporaneous-objection requirement, and neither is applicable here.  First, a party may obtain a “running objection” to the evidence.  See Ford v. State, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996); Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991).  Here, the record does not reflect that appellant made or obtained a running objection to the admission of the evidence of which he now complains.  

The second exception is provided by Rule of Evidence 103: “When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.”  Tex. R. Evid. 103(a)(1).  Thus, Rule 103(a)(1) contemplates a situation in which a trial court has overruled a party’s objection and has admitted the complained-of evidence; that is, when a party obtains an adverse ruling on a motion to exclude or suppress evidence.  See, e.g., Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim. App. 2003).  Rule 103(a)(1) does not excuse a party from objecting when, as here, evidence is admitted in alleged violation of an earlier ruling by the court.  See Tex. R. Evid. 103(a)(1).  We conclude that appellant waived any error regarding the admission of Deputy Harrah’s testimony concerning the recording device in the patrol car because appellant failed to object to the testimony in the trial court on the ground that he now raises on appeal.  See Tex. R. App. P. 33.1(a).

We overrule appellant’s sole point of error in each appeal.

Conclusion

          We affirm the judgments of the trial court.

Laura Carter Higley

                                                                   Justice

Panel consists of Justices Higley, Brown, Halbach.[3]

Do not publish.   Tex. R. App. P. 47.2(b).