Opinion
No. 05-04-00277-CR
Opinion Filed March 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-51697-WU. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
Aaron Benard Kilgore appeals his conviction for possession of cocaine in an amount less than one gram. After the trial court found appellant guilty, it assessed punishment, enhanced by two prior felony convictions, at ten years' confinement. In two points of error, appellant contends (1) the trial court erred by overruling his motion to suppress, and (2) the evidence is factually insufficient to support his conviction. We overrule appellant's points of error and affirm the trial court's judgment. In his first point of error, appellant contends the trial court erred by overruling his motion to suppress. Prior to trial, appellant filed a written motion to suppress claiming the cocaine was obtained after appellant was illegally detained, stopped, and searched. The trial court "carried" the motion to suppress during the trial. The trial court did not make any specific pre-trial comments directing appellant to wait to obtain a ruling. When, however, the State introduced the cocaine, appellant stated he had "no objection" and the cocaine was admitted. It was not until after the close of evidence that the trial court ruled on appellant's motion to suppress. Under these circumstances, we cannot conclude appellant preserved error for our review. See Jones v. State, 833 S.W.2d 118, 126 (Tex.Crim.App. 1992) (affirmative acceptance of previously challenged evidence waives any error in its admission); Thomas v. State, 884 S.W.2d 215, 216-17 (Tex.App.-El Paso 1994, pet. ref'd) (motion to suppress waived where it was "carried," and appellant stated "no objection" to complained-of evidence); cf. Garza v. State, 126 S.W.2d 79, 84-85 (Tex.Crim.App. 2004) (motion to suppress preserved where appellant did not object to evidence because of "special circumstances" where judge told appellant he would make no ruling until after all testimony presented). We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to support his conviction. In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). Resolution of conflicts in the evidence and credibility of the witnesses lies within the fact finder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). We consider all evidence admitted at trial, both proper and improper, in determining the sufficiency of the evidence. See Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). Appellant maintains we must reverse his conviction because the police officers were not credible as evidenced by the "numerous" inconsistencies in the evidence. He specifically points to evidence about whether (1) appellant was on the porch or in the yard when the officers arrived, (2) the police responded to the call at 5:10 a.m. or 5:10 p.m., (3) the lights and siren were on or off, and (4) the officers observed appellant involved in a drug transaction. It is the duty of the trial court, and not this Court, to resolve inconsistencies in the evidence. Further, these inconsistencies are not of a level that would compel this Court to conclude that the State's evidence was so weak that the verdict was clearly wrong and manifestly unjust. The officers explained that the inconsistencies between their testimony and the police report were the result of typographical errors and a preformated form. Officer Michael Joseph Mata testified that he saw appellant on the porch of a known "drug house." As he approached appellant to speak with him, appellant ran inside the vacant house. Mata followed him and saw appellant throw "an orange color pill bottle" which contained crack cocaine. This evidence is sufficient to support the trial court's determination that appellant knowingly possessed cocaine, and none of the minor inconsistencies complained-of by appellant show this conclusion is irrational. After reviewing the evidence in this case, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error. Accordingly, we affirm the trial court's judgment.