I often have a hard time quickly explaining to my non-lawyer friends exactly how the appeals system is stacked against criminal defendants. Fortunately today’s case, Barnes vs. State, crystallizes how the constitutional rights of defendants are effectively waived through nonsense technicalities. It’s a Kaufman County Drug case, appealed to the 5th District in Dallas.
Barnes filed a motion to suppress claiming the police investigation was unconstitutional. Specifically, Barnes sought to exclude statements made during the investigation. This motion was denied (as are most motions to suppress).
There was a trial on the case, and the State offered a video containing some of the evidence Barnes had earlier sought to suppress. Barne’s attorney said he had “no objection” to the video, and why should he? He already objected pre trial and had a hearing on the issue. It should be obvious to all that he had challenged this evidence, lost, and did not have to challenge this evidence again. Check out the perfect catch-22 our appellate courts have crafted to rob defendants of their right to appeal.
At trial, when the State sought to introduce the videotape of the traffic stop containing his statements into evidence, appellant’s counsel affirmatively stated, “No objection.” When the drugs found in the car were offered into evidence, defense counsel also stated “No objection.” And when the State offered the written analysis of the drugs into evidence, defense counsel again stated “No objection.” When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object to the admission of the same evidence at trial in order to preserve error, but if the defendant affirmatively states that he has “no objection” to the evidence, he waives any error in its admission. Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008).
When the State hands you evidence in trial you have to say something or the judge will just stare at you and wonder if you are paying attention. So the rule is you are not required to object again but you if you say “no objection” then you waive all the issues you already argued pre trial. You can’t stand there in silence, so you really do have to object again even though case law says you don’t have to.
The practical function of this system is to uphold convictions and deny defendants the right to hold the State accountable for Constitutional violations. No attorney has a pre trial suppression hearing only to waive all complaints at trial. We’ve created this legal fiction because it allows our appellate to ignore consitutional violations. Rather than give the defendant his day in appellate court, we tell him he really wanted that unconstitional evidence used against him. Hogwash.
So remember, even though you are not required to object, you really are. Object every chance you get, to everything you can think of.