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Click here for the full text of this decision FACTS:The appellant was convicted of possession with intent to distribute cocaine. Police stopped the appellant’s van after he made an illegal left turn, and while checking his driver’s license, they learned he had two outstanding arrest warrants. Upon arresting the appellant, the officers performed an inventory search on the van and discovered what appeared to be drug paraphernalia sitting in an open box in plain view. Shortly thereafter, one of the officers found what appeared to be a diaper wrapped tightly in a plastic bag. Inside the diaper was a white substance, which tested positively as cocaine, weighing 28.75 grams. Prior to trial, the appellant filed a motion to suppress the evidence seized from the van during the inventory inspection, and requested a separate hearing on that motion. The trial court denied the request for a separate hearing, stating: “Now we have a motion for a hearing, motion to suppress outside the presence of the jury. That’s going to be denied for this reason: If I grant your motion, they’re not going to have any evidence, so they would be subject to an instructed verdict because they don’t have any evidence to proceed on, and if I deny your motion, it doesn’t make any difference, the jury gets to hear it all anyway.” Both the state and the appellant concede that the trial judge directed the motion to suppress to be carried with trial. At trial, the officers testified as to the search of appellant’s van, the seizure of drug paraphernalia, and the seizure of two bags of a white substance that tested positively as cocaine. The appellant did not object to that testimony. The appellant also did not object to the chemist’s testimony that the white substance found in the van was cocaine weighing 28.75 grams. Later, when the state attempted to offer into evidence the drug paraphernalia and the cocaine seized during the search, the appellant urged his motion to suppress outside of the jury’s presence and objected on the ground that the officers’ search of the van was outside the scope of a proper inventory search. The trial court denied the motion. On appeal, the court of appeals held that the appellant’s objection, at the time the state offered the actual exhibits, was untimely. The court concluded that appellant had waived error by failing to object at the time the officers and the chemist had testified. HOLDING:Remanded. The appellant contends that the court of appeals’ decision conflicts with two cases, Morrison v. State, 71 S.W.3d 821 (Tex. App. � Corpus Christi 2002, no pet.), and Gearing v. State, 685 S.W.2d 326 (Tex. Crim. App. 1985). The court believes both of these cases are distinguishable from the appellant’s case. The appellant urges that his case is procedurally the same as Gearing, and reads Gearing to mean that when the trial and the hearing on the motion to suppress are conducted in any unitary proceeding, and the court rules on the motion to suppress, error has been preserved. Because Gearing decides the merits of the case without effectively ruling on the preservation of error issue, the court rejects such a broad interpretation. An additional problem with Gearing is that it is unclear whether, if the court indeed found that error was waived, the court decided so because the defendant failed to receive a ruling on the pretrial motion, because the defendant’s attorney stated “no objection” at trial, or because of a combination of both. Relying on Gearing, the appellate court in Morrison admitted its course of conduct was “unorthodox,” but nevertheless held that because it was a “unitary proceeding,” the appellant had preserved error. Gearing and Morrison are procedurally the same. Most importantly, Morrison was also a bench trial. Such an unorthodox course of conduct would not be appropriate in a jury trial such as appellant’s. The case Thomas v. State, 884 S.W.2d 215 (Tex. App. � El Paso 1994, pet. ref’d), is factually similar to the appellant’s case. In Thomas, the defendant was charged with possession of cocaine and filed a pretrial motion to suppress. No pretrial hearing was held, and the motion to suppress was carried with trial. As in the appellant’s case, the defendant did not object until after two policemen had testified about the facts underlying the case, including how they discovered a needle containing cocaine residue. The court ultimately held that because there was no pretrial hearing or ruling, and because the motion to suppress was carried with trial, “the mere filing of the motion to suppress did not preserve error, and [the defendant] was required to make a timely objection at trial in order to do so.” The court continued, stating that “[a]lthough [the defendant] later urged his motion to suppress outside the presence of the jury and objection to the admission of the syringe on the same grounds . . . he failed to object at the earliest opportunity, and by so doing, waived error.” The appellant’s situation differs from the defendant’s situation in Thomas, however, because the judge told appellant’s attorney that he would hear the evidence as it was presented before the jury, commenting that, “[i]f I grant your motion, [the jury is] not going to have any evidence, so they would be subject to an instructed verdict . . . and if I deny your motion [to suppress], it doesn’t make any difference, the jury gets to hear it all anyway.” The judge further stated, “any other ruling that either side wishes to make, then you will be instructed to approach the bench outside the presence of the jury and then we’ll make a determination as to that.” Though the general rule would require appellant to object and obtain a ruling at the earliest opportunity, the specific pre-trial comments made by the judge in this case essentially directed appellant to wait until all the evidence was presented before he obtained any ruling from the judge. From these comments, it is clear that any additional attempt by appellant to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told appellant that he would not rule on the motion until the jury had heard the evidence. The appellant was reasonable to interpret those comments as an instruction to seek a ruling at the conclusion of the state’s presentation of evidence, and not sooner. The court emphasizes that this holding is not meant to apply in situations outside the special circumstances of this case. Here, the motion to suppress dealt with an issue that would have been completely decisive of the case, and the judge told the appellant that he would make no ruling until all the testimony had been presented. The special instructions by the judge were such that appellant preserved error by seeking a ruling after the officers’ and expert’s testimony had been given. The court finds no error by the trial court in denying the instruction as to the legality of the search. OPINION:Meyers, J., delivered the opinion of the Court, in which Keller, P.J., and Price, Johnson, Keasler, Hervey, Holcomb, and Cochran, J.J., joined. Womack, J., concurred in the judgment.

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