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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 Miranda1 warning before he made 

incriminating statements to the police, Brian Joseph Smith appeals his conviction

for possessing or transporting chemicals that are used to manufacture 

methamphetamine.2 Smith also contends 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). 
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who presided at his trial—a retired district judge—had not received the required 

appointment needed to authorize him to preside over Smith’s trial. We conclude 

that Smith failed to properly preserve his issues for review on appeal. We 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). Based on the argument that the jury was improperly allowed to 

consider Smith’s unwarned statements in reaching a verdict, Smith 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 assumption 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 to 
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get out of the car, searched him, and placed him in handcuffs. Officer Bostwick

then searched Smith’s car for marijuana.

During the search of Smith’s car, Officer Bostwick placed various items 

found in his search on the car’s trunk. Officer Bostwick testified that he believed 

the items he placed on the trunk were used to make methamphetamine. In the 

course of the search, and in response to one of Officer Bostwick’s questions, Smith 

denied that he had any methamphetamine in his car. In explanation of the items 

Officer Bostwick 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 it[.]”

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 asserts

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 asserts 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.
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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, Your 

Honor[,]” and informed the trial court that his Motion to Suppress would be carried 

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

“when all of that comes 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 testified about the stop and about the items he found 

in Smith’s car during the search. Photographs depicting all of the items seized 

during the search were admitted before Smith asked for a ruling on his motion to 

suppress. When the State asked the trial court to admit the videotape of the stop 

into evidence, subject to the parties’ agreed redactions, Smith offered no objection. 

Just 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, the trial court ruled that the objections in 

Smith’s motion to suppress had been waived. Smith made a bill of exception,

addressing only whether Officer Bostwick had probable cause when he stopped 

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

Additionally, during his bill, Smith’s counsel questioned Officer Bostwick about 

the videotape; however, all the questions asked by Smith’s counsel during the 

hearing on the bill concerned 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 were 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 before 
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his trial commenced. Smith concludes that without an order appointing a visiting 

judge in place before the trial commenced, the visiting judge had no authority to 

preside over his trial. The State contends that an earlier unrelated appointment of 

the visiting judge to the 410th District Court extended the visiting judge’s authority 

to act in Smith’s case. The orders appointing the visiting judge that are discussed

by the parties in their briefs are not included in the appellate record. Nevertheless, 

the parties do not dispute that one of the orders authorized the visiting judge to 

preside over the 410th Judicial District beginning the day after the date that 

Smith’s trial commenced. 

The record does not show that Smith objected 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 objecting 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 trial 
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began, he knew that a visiting judge would be presiding over Smith’s trial and that 

he had not investigated whether an order assigning a visiting judge was in place on 

the date the trial started. The trial court overruled Smith’s objection. In overruling 

the objection, the trial court stated that the objection “was not timely made[.]” 

A complaint about a procedural irregularity in a visiting 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 was required to be 

raised before trial). In Wilson, the Court of Criminal Appeals stated that 

challenging an 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 commenced. 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 380.

We overrule Smith’s second issue and affirm the trial court’s judgment.
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AFFIRMED.

___________________________

 HOLLIS HORTON

 Justice

Submitted on June 7, 2013

Opinion Delivered September 4, 2013

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ