1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

________________ __ _

NO. 09
- 11
- 00606
- CR

________________ __ _ BRIAN JOSEPH SMITH , Appellant
V. THE STATE OF TEXAS , Appellee

__________________________________________________________________ On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 11
- 03
- 02808 CR

__________________________________________________________________ MEMORANDUM OPINION Arguing that he did not receive a Miranda 1 warning before he made incriminating statements to the police, Brian Joseph Smith appeals his conviction for possessing or transporting chemicals that are use d to manufacture methamphetamine. 2 Smith also co ntends that when the trial commenced, the judge

1 Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 See Tex. Health & Safety Code Ann. § 481.124 (West 2010).2 w ho presided at his trial

— a retired district judge

—had not received the required appointment need ed to authorize him to preside over Smith’s trial

. We conclude
that Smith failed to properly preserve his issues for review on appeal. W e affirm the trial court’s judgment. Unwarned Statements In his first issue, Smith argues the trial court erroneously admitted several unwarned oral statements that he made to the police while the police searched his

car . See Miranda v. Arizona , 384 U.S. 436, 444 , 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (requiring that a suspect be warned prior to being subjected to a custodial interrogation)

. B ased on the argument that the jury w as improperly allowed to consider Smith’s unwarned statements in reaching a verdict , Smit h contends that he is entitled to receive a new trial.
The record in the trial court reflects that after stopping Smith for a traffic violation, noticing the smell of marijuana coming from Smith’s car, requesting another officer to assist based on the ass umption that drugs were in Smith’s car, and citing Smith for failing to come to a complete stop at a stop sign , Officer Thomas Bostwick asked Smith “if he had anything illegal in the vehicle

. ” When Smith admitted that he had a “ joint ” in the car, Officer Bostwick asked Smith to3 get out of the car , searched hi m, and placed him in handcuffs

. Officer Bostwick then search ed Smith’s car for m arijuana

. D uring the search of Smith’s car, Officer Bostwick placed various items found in his search on the ca r’s trunk

. Officer Bostwick testified that he believed the it e ms he placed on the trunk were used to mak e methamphetamine . In the course of the search, and in response to one of Officer Bostwick’s question s , Smith denied that he had any methamphetamine in his car. In explanation of the items Officer Bost w ick found in searching his car , Smith told the officers present during the stop that he was “being paid to collect the pseudoephedrine [,] and that he knew his friend was going to cook methamphetamine with i t [.] ” Smith filed a pre

- trial motion to suppress, but Smith did not claim that all of the statements he made to police during the search should be suppressed because he was not given a Miranda warning. Instead, Smith’s motion to suppress assert s that the police did not have probable cause to stop his car because he came to a complete stop at the stop sign . Smith ’s pre

- trial motion also assert s that Officer Bostwick’s “initial question to [Smith] of whether there was anything inside the vehicle was inculpatory in nature and therefore [ Miranda ] Warnings should have been given by the Officer prior to the question.” The trial court did not rule on Smith’s motion prior to trial.4 On the day Smith’s trial began, before voir dire, the trial court asked the parties if anything else needed to be resolved ; Smith’s counsel replied, “No, Y our Honor[,]” and informed the trial court that his Motion to Suppres s would be carried

“ along with the jury trial.” The court asked Smith’s counsel to notify the court

“ when all of that co m es up so we can send the jury out[.]” Smith’s counsel also advised the court that the videotape was not long, and that “[i]t’s just a question of the stop.” During the trial, and before Smith asked the trial court to rule on his motion to suppress, Officer Bostwick testif ied about the stop and about the items he found in Smith’s car during the search

. P hotographs depicting all of the items seized during the search were admitted before Smith asked for a ruling on his motion to
suppress . W hen t he State asked the trial court to admit the video tape of the stop into evidence, subject to the parties’ agreed redactions , Smith offered no objection

. J ust before the jury saw the videotape, Smith asked the trial court to hear his motion to suppress. Noting that all of the evidence had already been admitted, and that Smith ’s motion was not timely, t he trial court ruled that the objections in Smith’s motion to suppress had been waived . Smith made a bill of exception , address ing only whether Officer Bostwick had probable cause when he stopped Smith’s car

. During the hearing on Smith’s bill, t he trial court viewed the video ,5 without sound , to address Smith’s claim that he did not run the stop sign

. Additionally, d uring his bill, Smith’s counsel questioned Officer Bostwick about the video tape; however , all the questions asked by Smith’s counsel during the hearing on the bill co ncern ed why Officer Bostwick decided to stop Smith’s car

. On appeal, Smith contends that he should have received a Miranda warning before being asked about the items that Officer Bostwick removed from his car

. However, the testimony about the statements that Smith made after he was stopped were all admitted during Smith’s trial without objection

. During trial, Smith never objected that the statements he made to the police during the search were
inadmissible ; instead, his objection addressed whether police had probable cause to stop Smith’s car

. We conclude that Smith’s complaints about the trial court’s decision to admit testimony regarding his statements that he made to the police after he was stopped w ere not timely presented to the trial court

. We hold that Smith’s complaints about the admission of his statements to the police were not properly preserved for our review on appeal. See Tex. R. App. P. 33.1 (a)

. Authority of Visiting Judge
In his second issue, Smith argues that the order assigning a visiting judge to preside over his trial was not signed by the presiding administrative judge before6 his trial commenced . Smith concludes that without an order appointing a vis i ting judge in place before the trial commenced, the visiting judge had no auth ority to preside over his trial

. The State contends that an earlier unrelated appointment of the visiting judge to the 410th District Court extend ed the visiting judge ’s authority

to act in Smith’s case

. T he order s appointing the visiting judge that are discuss ed by the parties in their briefs are not included in the appellate record

. Nevertheless, the parties do not dispute that one of the order s authorized the visiting judge to preside over the 410 th Judicial District beginning the day after the date th at Smith’s trial commenced

. The record does not show that Smith object ed to the presiding visiting judge before the trial commenced. Instead, the record shows that Smith first objected that the visiting judge was acting without authority during the punishment phase of the
trial

. When Smith objected, Smith’s counsel specifically stated that Smith did not object to the visiting judge’s qualifications and that he was not claiming that the visiting judge had not taken the required oath. Thus, in objectin g to the visiting judge, Smith did not argue that the visiting judge was constitutionally or statutorily either unqualified or disqualified from presiding over his trial. Instead, Smith’s complaint concerns a procedural irregularity regarding the dates of the visiting judge’s appointment. Also, Smith’s counsel acknowledged that , before the trial7 began , he knew that a visiting judge would be presiding over Smith’s trial and that he had not investigate d whether an order assigning a visiting judge was in place on the date the trial started

. The trial court overruled Smith’s objection. In o verruling the objection, the trial court stat ed that the objection “ was not timely made[.]”
A complaint about a procedural irregularity in a vis i ting judge’s appointment is subject to the doctrine of waiver. See Wilson v. State , 977 S.W.2d 379 , 380 (Tex. Crim. App. 1998) (holding that the procedural irregularity that occurred when a visiting judge presided over a trial after his appointment ended w as required to be raised before trial). In Wilson , the Court of Criminal Appeals stated that challenging a n otherwise qualified judge due to a procedural irregularity requires the defendant to lodge an objection before trial; “ if he does not, he may not object later or for the first time on appeal.” Id. The record shows that Smith knew that the visiting judge would be presiding over his case and that he did not object that an order memorializing the assignment did not appear of record when the trial com menced

. We hold that by failing to object before trial commenced about the procedural irregularity concerning the date of the visiting judge’s appointment , Smith failed to preserve his complaint for our review on appeal. See Tex. R. App. 33.1; see also Wilson , 977 S.W.2d at 38 0

. W e overrule Smith’s second issue and affirm the trial court’s judgment.8 AFFIRMED.

___________________________ HOLLIS HORTON Justice Submitted on June 7, 2013 Opinion Delivered September 4, 2013 Do Not Publish Before Gaultney , Kreger, and Horton, JJ