Thomas, Heather

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1454-12

HEATHER THOMAS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

POTTER COUNTY

PRICE, J., delivered the opinion for a unanimous Court.

OPINION

The appellant was convicted of the second degree felony offense of possession of

marijuana in an amount between fifty and two thousand pounds.1 She initially preserved

error by way of a motion to suppress the evidence, which she claimed had been seized during

the course of an illegally prolonged roadside detention. But when that evidence was later

1

TEX. HEALTH & SAFETY CODE § 481.121(a), (b)(5).

Thomas — 2

proffered by the State during the punishment portion of the unitary proceeding following her

non-negotiated plea of guilty to the charge, her attorney expressly declared that he had “no

objection” to the admission of the evidence. The trial court nevertheless manifested its

understanding that the appellant persisted in her wish to appeal the denial of her pretrial

motion to suppress and expressly granted her permission to do so. The court of appeals

nevertheless refused to reach the merits of her claim, relying upon longstanding precedent

from this Court to hold that her attorney had “waived” the previously preserved objection to

the evidence for purposes of appeal when he declared that he had “no objection” to its

admission.2 We granted the appellant’s petition for discretionary review in order to examine

the propriety of this holding on the particular facts of this case. We will reverse.

FACTS AND PROCEDURAL POSTURE

On March 29, 2009, Texas Department of Public Safety Highway Patrolman Enoi

Phoutthavong stopped the appellant, who was traveling east on Interstate 40 in Potter County.

At a pretrial motion to suppress hearing, Phoutthavong testified that he pulled the appellant

over because she crossed the white fog line several times.3 During the stop, he noticed that

2

Thomas v. State, No. 07-11-00067-CR, 2012 WL 3762479, at *2 (Tex. App.—Amarillo,

delivered Aug. 30, 2012) (not designated for publication).

3

In its written findings of fact and conclusions of law, the trial court would later determine that

these observations gave Phoutthavong authority to detain the appellant for the offense of driving on

an improved shoulder. TEX. TRANSP. CODE § 545.058. Because of its holding that the appellant

waived any objection to the admission of evidence that was a product of the detention, it did not

address the merits of this determination.

Thomas — 3

the appellant was very nervous and that her hands were visibly shaking. The car the

appellant was driving was a one-way rental, and she had very little luggage, further raising

his suspicion. After handing the appellant a warning ticket, Phoutthavong asked permission

to search her trunk, but the appellant refused. Phoutthavong then called for the assistance

of a DPS drug canine unit, detaining the appellant for about five minutes until the canine unit

arrived. Once at the scene, the dog alerted to the presence of drugs in the trunk, and upon

opening the trunk, the officers found 227 pounds of marijuana concealed under a blanket.

The appellant claimed that she was improperly detained to await the arrival of the

canine unit. After hearing testimony, the trial court denied the motion to suppress.4 The next

day, the appellant pled guilty and signed a judicial confession without a sentencing

recommendation. The record contains several documents pertaining to the appellant’s right

to appeal. First, the appellant signed a general plea-admonishment form that included

boilerplate language that stated that she was waiving, among other rights, her right to appeal.

Second, the record contains a separate form document that was specifically dedicated to

waiver of the right to appeal. But the appellant did not sign this dedicated waiver. Finally,

the appellant also signed the trial court’s certification of her right of appeal, pursuant to Rule

25.2, Subsections (a)(2) and (d), of the Texas Rules of Appellate Procedure,5 indicating that,

4

The trial court entered written findings of fact and conclusions of law a week later.

5

TEX. R. APP. P. 25.2(a)(2), (d).

Thomas — 4

because her plea of guilty was not pursuant to a plea bargain, the appellant retained the right

to appeal.

After the appellant was admonished and pled guilty to the indictment in open court,

the trial court found the evidence sufficient to support her guilty plea.6 The trial court then

adjourned for a lunch break. During the punishment portion that commenced after lunch, the

State offered into evidence State’s Exhibits 1 through 9, which were some of the evidence

challenged in the suppression hearing the day before. The appellant’s trial counsel stated:

“I don’t have any objection to that, Your Honor. [The State] has been kind enough to let me

see them before this afternoon and we have no objections.” Exhibit 1 was a laboratory

analysis establishing the substance to be marijuana, and Exhibits 2 through 9 were

photographs of the marijuana. The trial court admitted the exhibits and sentenced the

appellant to 6 and a half years’ confinement in the penitentiary and a fine of $2,500.

Immediately after sentencing the appellant, the trial court informed her of her right to appeal

6

No express mention was made of the appellant’s right to appeal during the plea colloquy.

After the appellant was admonished as to the applicable range of punishment, she pled guilty. The trial

court then inquired whether there had been a plea agreement. Told that there was not, the trial court

went over the fact that, by signing the plea papers, the appellant was waiving various constitutional

rights including her right to a jury trial. But no particular mention was made of the appellant’s right

to appeal. Satisfied that the appellant was waiving her rights knowingly and intelligently, the trial

court informed the appellant that, “based on your plea of guilty and the judicial confession which you

have signed in this matter, I am going to find that the evidence is sufficient to show that you are guilty

of the offense with which you were charged in this matter[.]”

Thomas — 5

both its ruling on her motion to suppress as well as its assessment of her punishment.7 At

that time, the appellant gave oral notice of appeal, to which the trial court responded: “And

I presume the princip[al] issue for appeal is the issue of the Court’s decision on your motion

to suppress?”8 Commenting that his ruling on the motion had been a “close call,” the trial

judge then set bail for appeal.

The court of appeals refused to consider the merits of the appellant’s motion to

suppress, observing that the appellant had affirmatively stated that she did not object to the

admission of evidence previously challenged in the suppression hearing and holding that this

statement waived any error previously preserved.9 In dissent, however, Justice Pirtle urged

7

The trial court told the appellant:

Ms. Thomas, you do have a right of appeal. I think you understood that from

the paperwork that you were presented and the paperwork that you signed, but I need

to admonish you again that you do have that right to appeal in both with respect to the

decisions of this Court regarding prior matters and of course with respect to the

sentence the Court has imposed.

8

The appellant could presumably appeal the denial of her motion to suppress, notwithstanding

the judicial confession accompanying her non-negotiated plea of guilty. See Young v. State, 8 S.W.3d

656, 666-67 & n.32 (Tex. Crim. App. 2000) (“Whether entered with or without an agreed

recommendation of punishment by the State, a valid plea of guilty . . . ‘waives’ or forfeits the right to

appeal a claim of error only when the judgment of guilt was rendered independent of, and is not

supported by, the error. * * * Even though a guilty plea was accompanied by a judicial confession,

a judgment is not independent of a ruling that admitted evidence in error.”).

9

The majority opinion held:

When an accused affirmatively asserts at trial that he has no objection to admission of

the complained-of items of evidence, he waives any error in its admission. See Jones

v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992) (en banc); Dean v. State, 749

Thomas — 6

the majority not to “abandon common sense in favor of mechanical application of that

principle.”10 Justice Pirtle argued that the rule should not be categorically applied, noting

that other courts of appeals have declined to follow it when the trial court makes

representations on the record that make it clear it did not regard the “no objection” statement

to constitute a waiver under the circumstances of the particular case.11 In Justice Pirtle’s

view, it was clear in the instant case that the trial court did not believe it was the appellant’s

S.W.2d 80, 83 (Tex. Crim. App. 1988) (en banc). Appellant’s waiver includes any

pretrial ruling that may have been previously obtained. See Dean, 749 S.W.2d at 83.

Appellant’s objection having been waived, nothing is presented for review.

Thomas, supra, at *2.

10

Id. (Pirtle, J., dissenting).

11

Justice Pirtle observed:

The “no objection” waiver doctrine has been disregarded by appellate courts where the

record fairly indicates that the trial judge was not mislead into believing that the

defense was actually waiving or otherwise abandoning the complaint previously made

to the introduction of that evidence. Bouyer v. State, 264 S.W.3d 265, 268-69 (Tex.

App.—San Antonio 2008, no pet.) (trial court held suppression hearing on issue after

counsel said “no objection”); Shedden v. State, 268 S.W.3d 717, 730 (Tex.

App.—Corpus Christi 2008, pet. ref’d) (trial court “expressly represented to

[defendant’s counsel] that it considered the suppression issue preserved for appeal”).

Accord, See 43A GEORGE E. DIX AND JOHN M. SCHMOLESKY: CRIMINAL

PRACTICE AND PROCEDURE § 53:150 (3d ed. 2011) (stating that application of the

principles of waiver or forfeiture are “open to doubt” where defense counsel’s “no

objection” statement might well have been intended by counsel to mean that the

defense had no objections beyond those already presented and rejected and the trial

court was not mislead into believing that the defense no longer wished to pursue that

objection).

Id. (Pirtle, J., dissenting).

Thomas — 7

intent to waive her right to contest the trial court’s ruling on her pretrial motion to suppress

on appeal and did not regard trial counsel’s “no objection” statement to be a waiver under

the circumstances.12 We granted the appellant’s petition for discretionary review to address

this disagreement among the justices in the court of appeals.13

THE ISSUE

An adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to

preserve error on appeal, and a defendant need not specifically object to the evidence when

it is later offered at trial.14 But he must also take care not to affirmatively indicate that he has

“no objection” to the evidence that he challenged in his pretrial motion to suppress when it

is later offered at trial, for this Court has long held that such an affirmative statement

12

Id. at *3 (Pirtle, J., dissenting).

13

TEX. R. APP. P. 66.3(e).

14

E.g., Powers v. State, 456 S.W.2d 97, 98-99 (Tex. Crim. App. 1970) (per curiam); Graves

v. State, 513 S.W.2d 57, 59 (Tex. Crim. App. 1974); Harryman v. State, 522 S.W.2d 512, 516 (Tex.

Crim. App. 1975); Riojas v. State, 530 S.W.2d 298, 301 (Tex. Crim. App. 1975); Ebarb v. State, 598

S.W.2d 842, 843 (Tex. Crim. App. 1979); Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App.

1986); Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985), overruled on other grounds

by Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997); Garza v. State, 126 S.W.3d 79, 84 (Tex.

Crim. App. 2004). This statement of the law presumes, of course, that the legal basis for suppression

urged on appeal comports with that which was urged as the legal basis for suppression at the trial court

level. See George E. Dix & John M. Schmolesky, 43A TEXAS PRACTICE: CRIMINAL PRACTICE AND

PROCEDURE § 53:38, at 994 (3rd ed. 2011) (noting “the traditional requirement that the complaint or

issue urged on appeal be the same one which was presented with sufficient specificity to the trial

court”).

Thomas — 8

constitutes a “waiver” of the right to raise on appeal the error that was previously preserved.15

Although this waiver principle has come under some criticism, the appellant does not argue

today that we should abolish it—only that we should qualify it, just as several of the lower

appellate courts in Texas have done.16 As Justice Pirtle pointed out in his dissenting opinion

below,17 several courts of appeals have identified circumstances under which they have

deemed it appropriate to deviate from the principle that a statement of “no objection” at trial

will serve to “waive” an earlier-preserved claim of error in failing to grant a motion to

suppress. The appellant maintains that her case presents such circumstances.

15

E.g., Boykin v. State, 504 S.W.2d 855, 857 (Tex. Crim. App. 1974); McGrew v. State, 523

S.W.2d 679, 680-81 (Tex. Crim. App. 1975); Mayberry v. State, 532 S.W.2d 80, 83-84 (Tex. Crim.

App. 1976) (opinion on reh’g); Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983);

Gearing, supra, at 329; Dean v. State, 749 S.W.2d 80, 82-83 (Tex. Crim. App. 1988); Moody v.

State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim.

App. 1992); Norris v. State, 902 S.W.2d 428, 439-40 (Tex. Crim. App. 1995), overruled on other

grounds by Roberts v. State, 273 S.W.3d 322 (Tex. Crim. App. 2008); Swain v. State, 181 S.W.3d

359, 367-68 (Tex. Crim. App. 2005); Estrada v. State, 313 S.W.3d 274, 302 (Tex. Crim. App. 2010).

16

Professors Dix and Schmolesky take the view that “[w]hether the rule as applied makes sense

as either a waiver or forfeiture rule is open to doubt.” George E. Dix & John M. Schmolesky, 43A

TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 53:150, at 1174-75 (3rd ed. 2011). They

argue that, under most circumstances, “defense counsel’s ‘no objection’ statement might well have

been intended by counsel to mean only that the defense had nothing beyond what had already been

presented and rejected.” Id. at 1175. Today the appellant urges us to recognize just such an exception

to the rule. She argues that, while a defense counsel’s naked statement of “no objection” when

evidence is proffered at trial will ordinarily operate to waive an objection previously preserved via an

earlier adverse ruling on a pretrial motion to suppress, this should not invariably be the case; and that

when it is apparent from the record that the trial court understood the “no objection” statement to mean

that the defendant had no additional objection to the evidence beyond that which was rejected pretrial,

the waiver principle should not control, and error is preserved.

17

See notes 10, 11 & 12, ante.

Thomas — 9

Justice Pirtle identified two specific cases. First, in Bouyer v. State, the defendant

filed a motion to suppress evidence obtained by police when they entered his hotel room

without a warrant and, he claimed, without exigent circumstances to excuse its absence.18

But Bouyer failed to request a pretrial hearing on his motion to suppress, and none was

held.19 When the State later offered the evidence at his jury trial, Bouyer reminded the trial

court that he had challenged it in an earlier motion to suppress.20 The trial court expressed

an unconventional preference to defer a hearing on the motion to suppress until after the

evidence was admitted, however, promising to instruct the jury not to consider it should the

evidence later be deemed inadmissible.21 With that understanding, Bouyer stated that he had

“no objection” to the introduction of the evidence, notwithstanding his extant motion to

suppress.22 When the trial court later convened an evidentiary hearing on the motion to

suppress, the State objected to the hearing, arguing that Bouyer had waived his challenge to

the admissibility of the evidence by affirmatively stating he had “no objection” to it when it

18

264 S.W.3d 265, 267 (Tex. App.—San Antonio 2008, no pet.).

19

Id.

20

Id. at 267-68.

21

Id. at 268.

22

Id.

Thomas — 10

was offered into evidence.23 The trial court nevertheless conducted the evidentiary hearing

and denied the motion to suppress on the merits.24 Recognizing that a “no objection”

statement usually will waive preservation of an adverse pretrial ruling, the Fourth Court of

Appeals nevertheless held that Bouyer’s claim was preserved for appeal under the “unique”

circumstances presented.25 “By holding the suppression hearing over the State’s ‘waiver’

objection,” the Bouyer court reasoned, “the trial court clearly did not construe Bouyer’s ‘no

objection’ as a waiver of his motion to suppress.”26

The second case that Justice Pirtle cited was Shedden v. State, from the Thirteenth

Court of Appeals.27 Shedden filed a pretrial motion to suppress evidence that he claimed was

the product of an illegal arrest. The trial court overruled the motion after a pretrial hearing.28

At trial, Shedden declared that he had “no objection” to the evidence he had previously

challenged in the suppression motion, but he later clarified that he had not intended thereby

23

Id.

24

Id.

25

Id.

26

Id. at 268-69.

27

268 S.W.3d 717 (Tex. App.—Corpus Christi 2008, pet. ref’d).

28

Id. at 721-24, 737.

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to waive preservation of his complaint for appeal.29 “The trial court then expressly

represented to Shedden’s counsel that it considered the suppression issue preserved for

appeal.”30 Relying upon Bouyer, and observing that the trial court had not been misled by

the appellant’s “no objection” statement into thinking that he had intended to abandon his

suppression issue for appeal, the court of appeals held that it was preserved and proceeded

to address the merits.31 In the instant cause, we must determine whether such deviations from

the general principle are ever appropriate,32 and, if so, whether Justice Pirtle is correct that

deviation is appropriate on the particular facts of this case.

29

Id. at 730.

30

Id.

31

Id.

32

See also Fierro v. State, 969 S.W.2d 51, 55 (Tex. App.—Austin 1998, no pet.) (“Taking

Fierro’s statements in the context of the entire record, we conclude Fierro did not waive the alleged

error [which was preserved by adverse ruling on a pretrial motion to suppress] by initially uttering in

the presence of the jury that he had ‘no objection’ to the admissibility of the videotape.”). Several

other courts of appeals have recognized, albeit in unpublished opinions, that a relaxation of the “no

objection” waiver rule might be appropriate under some circumstances, as in Bouyer and Shedden, but

they refused to relax it on the particular facts before them. See Robinson v. State, No. 06-09-00225-

CR, 2012 WL 6518935 at *2 (Tex. App.—Texarkana 2012, delivered Dec. 13, 2012) (not designated

for publication) (“Some courts have found a limited exception to the general rule if the record

affirmatively shows that the trial court did not construe the ‘no objection’ statement as an intentional

relinquishment of the previous challenge.”); Maldonado v. State, No. 05-09-00383-CR, 2011 WL

924352 at *2-3 (Tex. App.—Dallas, delivered March 18, 2011) (not designated for publication)

(noting the limited exception but finding no indication in the record that the trial court understood the

“no objection” statement to be anything other than an abandonment of the earlier-preserved error);

Salazar v. State, No. 03-08-00164-CR, 2009 WL 3486411 at *2 (Tex. App.—Austin, delivered Oct.

29, 2009) (not designated for publication) (same).

Thomas — 12

ANALYSIS

Is the Rule Categorical?

The question in this case is not whether error has been preserved. The appellant

obtained an adverse ruling on her pretrial motion to suppress, and nothing more is necessary

to permit her to raise that adverse ruling on direct appeal. Instead, the question is whether,

having once preserved her appellate claim of error in this manner, the appellant took some

affirmative action later that served to forfeit it. Our case law makes it clear that a statement

of “no objection” when the complained-of evidence is eventually proffered at trial—at least,

without more—will signal to the trial court an unambiguous intent to abandon the claim of

error that was earlier preserved for appeal. But what if there is more to the appellate record

than a bare statement of “no objection”? What if that “more” suggests that an abandonment

of the earlier-preserved claim of error was not what trial counsel intended? Should appellate

courts nevertheless invoke the rule that the “no objection” statement constitutes a “waiver”

of error? Error preservation, we have often insisted, is not an inflexible concept.33 We

believe a rule that says carefully preserved error can nonetheless be abandoned for appeal

should not apply mechanically either.

In Lankston v. State, we cautioned:

33

See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (“[T]here are no technical

considerations or form of words to be used. Straightforward communication in plain English will

always suffice.”); Clarke v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008) (quoting Lankston).

Thomas — 13

The standards of procedural default . . . are not to be implemented by splitting

hairs in the appellate courts. As regards specificity [of an objection], all a

party has to do to avoid the forfeiture of a complaint on appeal is to let the trial

judge know what he wants, why he thinks himself entitled to it, and to do so

clearly enough for the judge to understand him at a time when the trial court

is in a proper position to do something about it.34

We have extended this concept even so far as to hold that a party need not state his objection

with specificity in order to preserve error so long as the record otherwise makes it clear that

both the trial court and the opposing party understood the legal basis.35 After all, the reason

that any objection must be specific in the first place is so that the trial court can avoid the

error or provide a timely and appropriate remedy, and the opposing party has an opportunity

to respond and, if necessary, react.36 So long as it appears from an appellate record that these

34

Lankston, supra, at 909.

35

See Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977) (“[W]here the correct

ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general

or imprecise objection.”); Lankston, supra, at 908 (quoting Zillender); Layton v. State, 280 S.W.3d

235, 239 (Tex. Crim. App. 2009) (same); Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App.

2009) (“When the correct ground for exclusion was obvious to the judge and opposing counsel, no

forfeiture results from a general or imprecise objection.”) (citing Zillender); Clark v. State, 365

S.W.3d 333, 339 (Tex. Crim. App. 2012) (same).

36

In Zillender we observed:

The generally acknowledged policies of requiring specific objections are two-

fold. First, a specific objection is required to inform the trial judge of the basis of the

objection and afford him the opportunity to rule on it. [Footnote: A collateral but

important ramification of this function is to provide the trial court with an opportunity

to attempt to cure any harm resulting from the action giving rise to the objection.

Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App. 1972) and cases cited therein.]

Second, a specific objection is required to afford opposing counsel an opportunity to

remove the objection or supply other testimony.

Thomas — 14

policies have been satisfied, it should not matter to the appellate court whether the objecting

party used a particular “form of words”—or any particular words at all, if meaning is

adequately conveyed by context.37

We see no principled reason why appellate courts should not apply the “no objection”

waiver rule with comparable flexibility. Particularly when a defendant has taken pains to file

a pretrial motion to suppress, develop testimony at a hearing, and secure an appealable

adverse ruling, it is unrealistic to presume that he would lightly forego the opportunity to

vindicate his interests on appeal. Moreover, the policies that undergird error preservation

have already been satisfied during the litigation on the motion to suppress. The trial court

was given every opportunity to grant the motion, if appropriate, and the State was notified

that it need not seek out alternative evidence in support of a conviction. No purpose is served

by insisting that earlier-preserved error is abandoned by a later statement of “no objection”

when the record otherwise establishes that no waiver was either intended or understood.

None of this is to say, of course, that a defendant’s bare statement of “no objection”

when the evidence that was the subject of the motion to suppress is subsequently offered at

trial could never signal an intention to abandon earlier-preserved error for appeal, or at least

557 S.W.2d at 517. See also Clark, supra, at 339 (citing Zillender for the proposition that “[t]he two

main purposes of requiring a specific objection are to inform the trial judge of the basis of the objection

so that he has an opportunity to rule on it and to allow opposing counsel to remedy the error”).

37

State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013) (“Rather than focus on the

presence of magic language, a court should examine the record to determine whether the trial court

understood the basis of a defendant’s request.”).

Thomas — 15

mislead a trial judge into believing so.38 Perhaps upon reflection the defendant has assessed

his chances of success on appeal to be negligible given the evidence produced during the

evidentiary hearing; or perhaps, as the State argues, he is satisfied with the punishment he

has negotiated with the prosecutor or that he anticipates the judge or jury will impose. But

neither contingency is likely enough to justify the absolute and unforgiving application of a

rule that any subsequent statement of “no objection” will operate to forfeit a claim of error

that has already been assiduously preserved—regardless of the attendant circumstances.

We therefore hold that, as with error preservation in general, the rule that a later

statement of “no objection” will forfeit earlier-preserved error is context-dependent. By that

we mean that an appellate court should not focus exclusively on the statement itself, in

isolation, but should consider it in the context of the entirety of the record. If the record as

a whole plainly demonstrates that the defendant did not intend, nor did the trial court

construe, his “no objection” statement to constitute an abandonment of a claim of error that

he had earlier preserved for appeal, then the appellate court should not regard the claim as

“waived,” but should resolve it on the merits. On the other hand, if from the record as a

whole the appellate court simply cannot tell whether an abandonment was intended or

understood, then, consistent with prior case law, it should regard the “no objection” statement

38

“[T]he real issue is whether the ‘no objection’ statement creates a significant risk that the trial

judge will be caused to fail to revisit matters resolved earlier by a misperception created by the

statement that the defendant no longer seeks to prevail on the matter.” Dix & Schmolesky, supra, §

53:150, at 1177.

Thomas — 16

to be a waiver of the earlier-preserved error. Under the latter circumstances, the affirmative

“no objection” statement will, by itself, serve as an unequivocal indication that a waiver was

both intended and understood.

Application of the Rule in This Case

The record as a whole in this case plainly demonstrates that neither the appellant nor

the trial court regarded her “no objection” statement as an abandonment of her claim that the

trial court erred to deny her pretrial motion to suppress. At the conclusion of the punishment

hearing, the trial judge went to some length to admonish the appellant of her right to appeal,

even commenting that he presumed that his adverse ruling on her motion to suppress would

constitute the “princip[al]” issue on appeal, and remarking that he regarded that ruling as a

“close call” before setting her appellate bond. Neither the appellant nor the prosecutor took

issue with these remarks. No error-preservation policy would be undermined by allowing

the appellant to appeal the adverse ruling on her pretrial motion to suppress under these

circumstances, since the trial court and both parties obviously expected that she would. We

therefore agree with Justice Pirtle that the court of appeals majority’s categorical application

of the “no objection” waiver rule was inappropriate.39

39

Were we to hold instead that the “no objection” rule should apply categorically to bar appellate

review of the appellant’s motion to suppress, we would have to confront a knotty question with respect

to the scope of that waiver that the court of appeals overlooked. By explicitly declaring that she had

“no objection” to some of the evidence that was the product of the detention she claims was unlawfully

prolonged, did the appellant also necessarily waive her ability to appeal the trial court’s failure to

suppress all other evidence that was a product of that prolonged detention? Can it be said that, when

she abandoned any objection to the lab report and photographs of the marijuana that were contained

Thomas — 17

The Boilerplate Waiver of Appeal

In its brief on discretionary review and during oral argument, the State points to the

appellant’s boilerplate waiver of appeal as some evidence that, when the appellant announced

“no objection” to the evidence at the punishment hearing, she in fact intended to abandon

appellate review of the adverse ruling on her motion to suppress.40 We disagree that, on the

facts of this case, the boilerplate waiver supports a reasonable inference that the appellant

intended, or that the trial court thought she intended, to abandon her motion to suppress

claim. In Willis v. State, the defendant signed a similar boilerplate waiver of appeal as part

in State’s Exhibits 1 through 9, the appellant also evinced an intention to abandon her previous

objection to any other evidence that the State might have proffered had the case proceeded to a trial?

The appellant’s motion to suppress was not limited to challenging the admissibility of “tangible

evidence” of the marijuana. It also expressly challenged the admissibility of “any testimony by the

officers of the Texas Department of Public Safety or any other law enforcement officers or others

concerning such evidence.” May the appellant still argue on appeal that the trial court should have

suppressed any testimony from Officer Phoutthavong about events during the prolonged detention that

might have been necessary to establish a nexus between herself and the drugs—testimony that was

rendered unnecessary by the judicial confession upon which the trial court accepted her guilty plea?

By declaring that the “no objection” waiver rule is not categorical, we render this question academic,

at least for purposes of this case.

40

Appellee’s Brief at 10-11. The State has not argued, either in this Court or in the court of

appeals, that this boilerplate waiver of appeal should prevent the appellant from exercising her right

to appeal altogether. Nor did the court of appeals address this broader question sua sponte. Given this

Court’s precedents, it seems unlikely that the facts of this case would support such an argument in any

event. See Ex parte De Leon, 400 S.W.3d 83, 89-90 (Tex. Crim. App. 2013) (given the evidence in

the record, the boilerplate waiver of appeal “was not a binding element of Applicant’s plea

agreements” and “was not intended to override the trial court’s permission to appeal”); Willis v. State,

121 S.W.3d 400, 403 (Tex. Crim. App. 2003) (“The record demonstrates that the failure to cross out

the language waiving appeal in the plea forms was an oversight.”); Alzarka v. State, 90 S.W.3d 321,

323-24 (Tex. Crim. App. 2002) (“the language about waiving appeal in the plea forms was an

oversight” and “the record . . . rebuts any presumption raised by the terms of the boiler-plate plea form

signed by appellant and reflects that appellant did not waive appeal”).

Thomas — 18

of a negotiated plea bargain, but he nevertheless filed a notice of appeal pursuant to the trial

court’s subsequent permission to do so.41 The State failed to assert any claim on appeal that

Willis’s boilerplate waiver should block his appeal.42 On those facts, we found that “the

language waiving appeal in the plea forms was an oversight.”43 Observing that “the trial

court is in a better position to determine whether the previously executed waiver of appeal

was in fact validly executed[,]” we held that “the trial court’s subsequent handwritten

permission to appeal controls over a defendant’s previous waiver of the right to appeal,

allowing the defendant to appeal despite the boilerplate waiver.”44 Accordingly, we

remanded the cause for consideration of the merits of Willis’s pretrial motion to suppress.45

The record in the instant case presents even less compelling facts than those in Willis

to justify the conclusion that, by signing the boilerplate waiver of appeal, the appellant

manifested any genuine intention to abandon her pretrial suppression claim. Unlike the

defendant in Willis, the appellant here did not even plead guilty as part of a negotiated plea

bargain. She gained nothing in the way of a favorable punishment recommendation by

41

Willis, supra, at 401.

42

Id. at 402.

43

Id. at 403.

44

Id. See also De Leon, supra, at 89.

45

Willis, supra, at 403.

Thomas — 19

abandoning her right to appeal. What is more, she conspicuously failed to sign the separate

dedicated waiver of appeal. Waiver of appeal was not among the matters that the trial court

orally reviewed with her during the course of the plea colloquy.46 Neither party objected later

when the trial court admonished the appellant at the conclusion of the punishment portion

of the proceedings that, in light of the non-negotiated status of her guilty plea, she would be

allowed to appeal any matter including the adverse ruling on her motion to suppress.47 And,

as in Willis, the State neglected to argue to the court of appeals specifically that the

appellant’s signature on the boilerplate waiver of appeal operated to deprive her of her right

to appeal.48 Under these circumstances, we do not regard the appellant’s signature on the

boilerplate waiver of appeal to be anything other than inadvertent—an “oversight”49—and

certainly less than a knowing and voluntary waiver. It obviously did not mislead the trial

court into believing that the appellant intended to waive her right to appeal, much less that

she meant to forfeit the particular complaint she took pains to litigate in her pretrial motion

to suppress.

46

See note 6, ante.

47

See note 8, ante.

48

Willis, supra, at 402.

49

Alzarka, supra, at 324.

Thomas — 20

CONCLUSION

Given the record as a whole, the court of appeals erred to conclude that, by stating that

she had “no objection” to the introduction of certain evidence during the punishment portion

of the proceedings in this case, the appellant “waived” appellate review of the propriety of

the trial court’s ruling on her pretrial motion to suppress. Accordingly, we reverse the

judgment of the court of appeals and remand the cause to that court for further appellate

consideration of her points of error consistent with this opinion.

DELIVERED: September 25, 2013

PUBLISH