1 John T. Boyd, Chi ef Justice (R et.), Se venth Co urt of Appeals, si tting by

assignment. NO. 07-00-0285-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E MAY 30, 2003

______________________________ TRAKEITH DUANE MCINTOSH, APPELL ANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 47 TH DISTRIC T COURT O F POTT ER COUNTY; NO. 39924-A; H ONORABLE DAVI D GLEASON, JU DGE

_______________________________ Before JOHNSON, C.J., and REAVIS , J., and BOYD, S.J. 1 MEMORAND UM OPINION Appellant

Trakeith Duane McIntosh app e als from his con viction for aggravated assault with a dead ly w eapon, and i ncarcer ation for sev en years. By seve n issues he asserts that the trial court abused its discretion in failing to suppress ev idence discovered2

by police following appellant’s warrantless arrest and during the subsequent warrantless searc h of appel lant’ s veh icle. We affirm. BACKGROUND On February

5, 1998, appellant’ s girlfr iend, Josetta Williams, was vis iting wit h some friends at an apartment where two of the frien ds lived. During the evening , the group w ent riding in an automobile being driv en by Taniko Ow

ens. One of the occupants of the automobile, in addition to W illiams, was Tonia Sanders. Eventuall y, the gr oup decided to drive to a nightc lub called theAtmosphere. When W illiams and h er friends arr ived in the vicini ty of the Atmosphe re, appellant drove in front of the automobile in whic h they were riding and “cut them off.” Appell ant walked up to the car oc cupied by Williams and her friends, whereupon Williams ex ited the car, went to where appellant’s brown station wag on was stopped, and entered the station wag on. Owens and Sa nders testified to the effect thatafter Williams entered appell ant’s vehi cle, appellant opened the hood of his car, then returned to the automobile in which they w ere located, pointed a black pistol at Owens, and threatened them. Sanders tes tified that appell ant obtained the pi stol from under the hood of his car. On February

6, 1 998, the Amarill o police radi o dispatcher br oadcast a repor

ted drive-by shooting in the Northwest Amarillo area. The shoo ter was repo rted ly d riving a b rown station wagon. Shortly after having heard the dispatch report, Am arillo poli c e sergeant Daniel Montano noted a brown station wagon driving on North Hughes Street in Amarillo

. Monta no activated flashing li ghts in hi s vehicl e and then pulled i n behind the3

station wagon w hen it stopped i n the parking lot of a conven ien ce st ore. Serge ant Montano approached the station wag on with hi s weapon drawn and or dered the occupants out. Appellant and Williams exited the station wagon and were handcuffed. Ba ckup police officers arrived and the station wagon was searched. A loaded black pistol w as located under the hood. Two additional cartri dges for the pistol were located i n the passenger compartment

of the station wagon. The officers di d nothave either a search warrant or an arrest warrant. Appellant

filed a motion to s uppress the ev idence obtained via the se arch of the station wagon. A pre-tria l hearing was held on the moti on. At the hearing , Montano testified that he actuated his emergency vehicle lights because of the police dispatcher’s radio message about a drive- by shooting by someone in a brown station wag on, and because the vehicl e he was stopping was a brown station wag on. Montano further testified thathe asked appellant f or consent to search the vehicle and app ell ant co nsented. Appe llant

testified that M ontano asked for cons ent to search, but that appellant did n o t consent. Appellant did not execute a written consent to se arch the vehicle. The trial court denied the motion to suppress. Appellant pres ents seven i ssues on appeal. The issues urge that his warrantless arrest, the warr

antless searc h of his vehic le and the resul tant s eizu re and admissi on of evidence from the ve hicle sear ch vi olated his rig hts under the Fo urth and Fourte enth Amendments to the United S ta tes Constitu tion, Artic le I, Sections 9, 10 and 19 of the Te xas Constitutio n, and T EX . C RIM . P ROC . C ODE A NN . arts. 1.04, 1 .05, 1.051, 1.06 an d 38.23 (Vernon 1977 & S upp. 2003). He a sserts that t he evidence w hich should have been4

suppressed was Sta te’s Ex hibits No. 1, a pistol; Nos. 3-7, photographs of appellant’s vehicle; No. 8 cartr idges from the pistol; and Nos. 9 and 10, cartr idges from the pas senger compartment

of appellant’s s tat ion wago n. The State responds tha t (1) appellant’s det enti on and arrest were lawful, (2) appellant voluntarily consented to the search of his vehicle, (3) reg ardless of appellant’s consent to search, the police had probable cau se to search the vehicl e and (4) ev en if the trial court erre d in failing to suppress t he evidence, appellant was not harmed. LAW When a pre-tri al motion to suppr ess evidence i s overru led, the accused need not subsequently object to the a dmis sion of t he sa me e viden ce at trial in ord er to pres erve error. See Living ston v. State , 739 S.W .2d 311, 334 (Tex.Crim.App . 1987). If, however, evidence which has

been the subject of a previousl y-over ruled motion to suppress is offered at trial and the defend ant affirmat ively states “no objection,” the error pr eserved by presentation of and overr uling of the motion to suppr ess is waived. See Jones v. State , 833 S.W .2d 118, 126 (Tex.Crim.App . 1992).
I f the record in a criminal case reveals constitutional error that is subject to harm less error review, the court of appeals must reverse the judgment unless the court determines beyond a reasonable doubt that the error did not contri bute to the conv iction or punishment. See T EX . R. A PP . P. 4 4.2(a); Hernandez v . State , 60 S.W.3d 106, 108 (Tex.Cri m.App. 2001). The erroneous admis sion of evidence obtai ned in viol ation of the federal constitut ion is consi dered to be const itutional er ror. See id

.5

An appellant urging harm from a trial court’s err or does not have the burd en to prove harm from the error. See Ova l le v. State , 13 S.W .3d 774, 787 (Tex.Crim.App . 2000). Rather, the appellant i s requir ed only to s uggest, i n light of the record, how prejudice may have occurred. Id . At t ha t point, the re viewi ng court must make its deter mination as to what effect, if any, the er ror had on the j ury v erdict. Id

. In making our determinati on we examine the entire record in a neutral, i mpartial and even-handed manner. See Harri s v. State , 790 S.W.2d 568, 586 (Tex.Cr im.App. 1989). I f pursuant to our ne utral rev iew of the record we determine beyond a reasonable do ubt that the nature of the err or is such that the e rror coul d n ot have affected the j ury, then t he error is harmless; other

wise it is not. Id . at 586-87. ANALYSIS At the time the State offered each of State’s Exhibits 3-7 (photographs of appellan t’s brown station wagon)

and 8, 9 and 10 (cartridges from the pistol found under the hood of appellant’s station wagon and f ou nd inside the pas senger compar tment of the station wag on), appellant’s counsel stated “ No objection.”Such statement r esults in f

ailure t o pres erve error as to the admission o f the exhibits , regardl ess of the corre ctness of the tri al court’s prior

ruling o n a motion to suppr ess. See Jones , 833 S.W.2d at 126. Thus, as to those exhibits, error was not preserved for review, and appellant’s issues as to them are overrule d. As to State’s Ex hibit No. 1, the pistol found under the hood of appell ant’s car dur ing the search, appell ant does not sug gest to us how the record demons trates harm tohim by6

admission of the pistol into evid ence. See Ovalle , 13 S.W.3d at 787. Although appel lant does not have a bur

den of proof to show thathe suffered harm from the alleged error in admitting the pistol i nto evidence, h e has the oblig ation to sugg est, in lig ht of the record, how prejudi ce to him may have occurr ed. Id . He does not do so. Owens and Sanders, tw o longtime ac quainta nces of appellant, testified that appellant

“cut them off” with his vehicle and that appellant then went to the hoo d of his car, approached them with a pistol, poi nted it direc tly at Ow ens and threatened t hem. Neither Owens nor Sanders could positively identi fy State’s Ex hibit No. 1 as the pistol used by appellant, although both stated tha t they were very focused on the pistol and intimidated by it while appellant was making his verbal t hreats and pointi ng the gun at Owens. Their testimony

as to appellant’s having a pistol and pointing it at Owens w as clear, pos itive and unequivoc al. Williams testified for appellant. She could not tes tify whet her appellant t hreatened her friends wi th a pistol , however, because after she en tered appellant’ s station wagon, she had her head dow n between her legs and w

as cryi ng. The finding of the pis tol by the p olice wa s not mentioned in voir dire of the jury panel by either the State or appellant; it was not mentioned by the State i n opening or closing arguments, nor by appel lant in clos ing argument. In rebuttal clos ing arg ument the State briefly mentioned the pistol being found under the hood of appell ant’s car, to buttress the testimony

of Owens and Sande rs, who h ad been accused of testify ing against appel lant to get back at

appellant for hi s treatment of their friend Williams.7

Having reviewed the entire re cord in a neutral manner, we conclude that, bey ond a reasonable doubt, even if the trial court erred in overruling appellant’s motion to suppre ss as to the pistol discovered and seized during the search of appellant’s v ehicle, the adm iss ion of the pistol di d not contribut e to appellant’s convicti on. See T EX . R. A PP . P. 44.2(a); Harris , 790 S.W.2d at 586-87. Appellant’ s seven is sues are ov erruled. CONCLUSION Having overrul ed each o f a ppellant’s i ssues, we affirm the judgment of the trial court.

Phil Johnson Chief Justice Do not publish

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