COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

PAUL RAMI REZ , Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-08-00269- CR

Appea l from 120th District Court of El Paso County , Texas (TC # 20080D01417)

O P I N I O N Paul Ramirez appea ls his conviction of possession of m ore than fifty pounds but less than 2,000 pounds of marihuana

. After a jury found Appellant g uilty , the State and Appellant enter ed into

an ag ree ment reg arding punishment. The trial cou rt ac ce pted the ag ree ment and assessed punishment at imprisonment for ten y ear s. We affirm. F ACTUAL SUMMA RY On Marc h 17, 2008, Detec tive J avier Monrea l participa ted in an investiga tion into t h e possession of drug s at an apar tment in El Paso. Detec tives Serg io L opez and J oe Molina, and Canine Offic er Gabby Corral and her dog , Ba rry , also participa ted in the investiga tion. Monrea l planned to conduct a knock-a

nd-t al k i n an eff

ort to make contac t with someone at the apar tment and obtain consent to sear ch. When they arr ived at the apar tment door , Ba

rry immediately aler

ted to the odor of narc otics along the lower door seam. The detec tives knocked but no one answe red at first. The office rs could hear people moving around inside of the apar tment and continued to knock. After a minute or two, Appellant opened the door. Monrea l immediately smel l ed the odor of marihuana

emana ting f

rom inside of t he apartment. Appellant closed the door behind him and beg an talkingwith the office rs.

Monrea l and the other office rs identified themselves and Mo nr e a l a d v is e d A p p e ll a nt that they

wer e investiga

ting a tip that marihuana was in the apar tm en t
. M o n rea l then asked Appellant for consent to sear ch. Appellant ref used. Be cause th e d et ec t i ves could hear other people in the apar tment, Monrea l told Appellant that the dog had aler ted to the odor of marihuana and they wer e g oing to g et a sear ch war

rant. Monrea l also informed Appellant they wer e g oing to do a protec tive

swee p of the residenc e to e nsure that no one in the apar tment had wea

pons or would rema in inside to destroy the drug s. Appellant told Monrea l that a fema le was inside of the apar tment. He also said that his mother lived in the apar tment. The detec tives went inside and while announcing their prese nce walked throug h the apar tment. J osephine Anchondo walked out into the hallway and the office rs escor

ted her outside. After they clea red the apar

tment to deter

mine no one else was there , the detec tives went back outside. They did not conduct any sear ch other than the protec tive swee p. The office rs detained Appellant and Anchondo outside of the apar tment while Detec tives Monrea l

an d M o l i n a left to obtain the sear ch war rant. Whil e they waited for Monrea l to return, Detec ti v e L opez eng ag ed in “small talk” with Appellant and Anchondo to pass the time. L opez purposef ully did not ask Appellant any questio n s re l at ed to the investiga tion. L opez noted there was a “lot of

s i l en ce ” during the wait. At one point, Appellant asked him how long it would take to g et t h e

war rant. L opez r eplied that he did not know for sure but it would be a while. Appellant then said, “Well, what if I g ive y ou permission to do it rig ht now? I t’s rig ht here in the corne r. As soon as y ou walk in, it’s in the closet.” L opez told him they wer e g oing to w ait for the war rant. They waited a total of two and one -half hour s for Monre al to return w ith the warr ant. Monrea l prepa

red a sear ch war

rant aff idavit and prese nted i t t o a mag istrate who found p ro b ab le cause and issued a sear ch war rant. Monrea l returne d to the apar tment with the sear chwar

rant and conducte d the sear ch. They found 213 bundles of marihuana in a closet near the apar tment’s front door. The marihuana weig hed almos t 2 3 0 pounds. After they found the marihuana , the office rs place d Appellant under arr est. During the sear ch, Monrea l found evidenc e linking Appellant’s mother to the apar tment. Monrea l advised Appellant that his mother could also be char g ed with possession. At that point, Appellant claimed exclusive owner ship of the marihuana

. Appellant filed a motion to suppress custodial statements made while they wer e waiting for Monrea l to obtain the sear ch war rant. He al s o soug ht to suppress contra band seized from his residenc e as a result of the statements he made. At the suppression hear ing, the State relied on the

sear ch war

rant to justify the sear ch. The trial court g rante d the motion to su p p re s s a cu s t odial statement by Appellant admitting the marihuana was his, but the court denied the motion to suppress Appellant’s statement informing Detec tive L opez of the marihuana ’s location in the apar tment. The court also fo und that the sear ch war rant aff idavit stated probable cause and was not based on any statement unlawf

ully obtained fr om Appellant. MOTION TO S UP P RESS THE MARIHUANA I n I s s u e One, Appellant raises two arg uments in his challeng e to the t rial court’s denial o f his moti on to suppr ess the evidenc e seized from the r esidenc e. F irst, he complains that the sea rch

war rant aff idavit does not establish probable cause beca use it is based s o l el y o n the canine aler t. Second, he maintains the aff iant misled the mag istrate beca use he failed to mentio n that he had smelled fre shly burned marihuana

. Citi ng Franks v. Delaware , Appellant urg es that the trial court 1 should have invalidated the war rant. The State first responds that Appellant waived these issues by stating a t trial he had no obje ction to the admission of the marihuana

. To prese rve error on appea l, the complaining party must make a ti mely , specific objection

F r a n k s v . D e l a w a r e , 4 3 8 U

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. 2 6 7 4 , 5 7 L

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. 1and obtain a ruling on the objection. T E X .R.A P P . P

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. 1 (a); W ilson v. State , 71 S.W .3d 346, 349 (Tex.Crim.App. 2002). A party must continue to object ever y time inadmissible evidenc e is offe red. Ethington v

. State , 819 S.W .2d 854, 858 (Tex.Crim.App. 1991) ; Gillum v

. State , 888 S.W .2d 281, 285 (Tex.App.--El Paso 1994, pet. ref ’d). Gene rally , once a pretria l motion to suppress is overr uled, the defe ndant is not require d to object to admission of the same evidenc e at trial in order to prese rve

err or for appea l. Livingston v. State , 739 S.W .2d 311, 334 (Tex.Crim.App. 1987). Howeve r, when the objectionable evidenc e is offe red during trial and the defe ndant aff irmatively asser

ts that he has “no objection” to its admission, he wa i v es an y er ror in the admission of the evidenc e despite the pretria l suppression ruling

. Moody v. State , 827 S.W .2d 875, 889 (Tex.Crim.App. 1992) ; Dean v

. State , 749 S.W .2d 80, 83 (Tex.Crim.App. 1988); Traylor v. State , 855 S.W .2d 25, 26 (Tex.App.-El Paso 1993, no pet.). When the State offe red the marihuana into evid en ce at t ri al, Appellant aff irmatively stated, “I have no objection.” Consequently , Appellant’s arg uments are waived. We

overr ule I ssue One.

MOTION TO S UP P RESS AP P ELL ANT’S STATE MENT I n his second issue, Appellant contends that the trial court er re d by not suppressing his

s t at ement reg arding the location of the marihuana in the apar tment. The trial court fo u n d t h at Appellant’s state ment was not the produc t of custodial interrog ation. The trial court is the sole fac tfinder at a suppression hear ing, and it may believe or disbelieve al l or any part of a witness’s testimony

. Amador v. State , 275 S.W .3d 872, 878 (Tex.Crim.A p p . 2009); State v. Ros s , 3 2 S.W .3d 853, 855 (Tex.Crim.App. 2000). Moreove r, at a suppression hear ing, the trial court, like any fac tfinder, may make rea sonable infere nces from the evidenc e prese nted. Ama d

o r , 2 7 5 S.W .3d at 878, State v. Garcia-Cantu , 253 S.W .3d 236, 241 (Tex.Crim.App. 2008).A trial court’s ruling on a motion to suppress, like any ruling on the admission of evidenc e,

is subject to revie w on appea l for abuse of discretion. Amador , 275 S.W .3d at 878. I n other words, the trial court’s ruling will be upheld if it is rea sonably supported by the rec ord and is corr ect under any theory of law applicable to the case . Id

. at 878-79; Ramos v. State , 245 S.W .3 d 4 10, 417-18 (Tex.Crim.App. 2008). I n revie wing a trial court’s ruling on a motion to suppress, appellate courts must view all of the evidenc e in the light most favor able to the trial court ’s ru l ing. State v. Garcia-Cantu , 253 S.W .3d at 241. We are to aff

ord almost total defe renc e to a trial court’s express or implied deter mination of the historical fac ts that the rec ord supports espec ially when the trial court’s fac t f indings are based

on an evalua tion of cre dibilit y and demea nor. State v. Ross , 32 S.W .3d at 856; Guzman v. State , 955 S.W .2d 85, 89 (Tex.Crim.App. 1997). We are to aff ord the same level of defe renc e to a trial court’s ruling on application of law to fac t questions, also known as mix ed questions of law and fac t, if the resolution of those ultimate que stions turns on an evalua tion of cre dibilit y and deme anor. State v. Ross , 32 S.W .3d at 856. We revie w de novo mix ed questions of law and fac t not falling within that cate g ory . Id. Article 38.22 and Mi r a n da do not apply unless the acc used' s statement is the result of custodial i n t er ro g ation. T E X .C O D E C R I M .P R O C .A N N . art. 38.22, § 5 (Ve rnon 2005); Dowthitt v. State , 931 S.W .2d 244, 263 (Tex.Crim.App. 1996)

. Custodial interr og ation occur s when a person in custody is subjected to direc t questioning or its functional equivalent, which occur s when police office rs eng ag e in conduct that they know is likely to elicit an incriminating response . Rhode Island

v. Innis , 446 U.S. 291, 300-01, 100 S.Ct

. 1682, 1689-90, 64 L .Ed.2d 297 (1980). This definition of “interr og ation” focuse s “primar ily upon the perc eptions of the suspect, rathe r than the intent of the police.” Moran v. State , 213 S.W .3d 917, 923 (Tex.Crim.App. 2007), citing Innis , 446 U.S. at 301,100 S.Ct

. 1682 (subjective intent of police office r to obtain incriminating statement not rele vant to

deter mining whether an interrog ation has occurre d). Off- hand remarks, not designed to elicit any kind of response , do not constitute interrog ation. Innis , 446 U.S. at 303, 100 S.Ct . at 1691. Appellant’s statement was not made in response to direc t questioning. To the contra ry , Appellant i n i t i at ed t h is portion of the conver sation by asking how long it would take to obtain a

sear ch warra

nt. When L opez replied he did not know for sure, but it would be a while, Appellant stated: “Well, what if I g ive y ou permission to do it rig ht now? I t’s rig ht here in the corne r. As soon

as y ou walk in, it’s in the closet.” L opez told Appellant they wer e still g oing to wait for the sear ch

war rant. The re is nothing in the rec ord to indicate L opez answer ed Appe llant’s question with any i n t en t t o cause Appellant to make an incriminating statement. J ust as importantly , there is n o evidenc e that L opez’s comment cause d Appellant to make the incrimin at ing statement reg arding Appellant’s knowledg e of the marihuana in his apar tment closet. L opez simply g ave a direc t answe r to the question asked of him. The trial court corr ectly conclude d that Appellant’s statement was not the product of custodial interrog ation or its functional equivalent. We overr ule I ssue Two and aff

irm the judg ment of the trial c ourt.

J une 23, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)