Texas Stamp


PD-0228-16 06/29/2016

  1. "Did the State of Texas properly preserve error for lack of notice of a pre-trial hearing pursuant to Tex. Code Crim. Proc. Art 28.01 when in truth they objected merely to the evidentiary character of a pre-trial hearing on a Motion to Suppress?"
  2. "Did the court of appeals err in concluding that Tex. Code Crim. Proc. Art 28.01 requires the Trial Court to provide additional notice to the State of the potential for a pre-trial hearing on a properly filed and served Motion to Suppress beyond an order to appear ready for trial on a certain date?"

Velasquez filed a motion to suppress evidence and requested a hearing prior to her trial for possession of marijuana. The State was served, but the trial court never ruled on the motion or request. After announcements on the day of trial, the trial court said that it would then take up the motion. The State objected to the lack of notice and refused to participate. The trial court granted Velasquez's motion to suppress.

The court of appeals reversed. After deciding that the State's objections were sufficient to raise the issue, the court examined article 28.01. Section 1 says that the trial court "may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State's attorney, to appear before the court at the time and place stated in the court's order for a conference and hearing." The court of appeals held that a hearing cannot occur until the State is directed to appear at a time and place stated in an order. One justice dissented. She agreed that art. 28.01 requires notice but would hold that receipt of the motion plus a firm trial date should have been sufficient given the trial court's discretion to hold a hearing.

Velasquez first argues that the State did not preserve a notice complaint. Instead, "the State was merely objecting to notice of the specific evidentiary nature of the motion to suppress" and the manner in which the trial court was proceeding. On the merits, she argues that a pre-trial hearing under 28.01 is a "discretionary, informal procedure" that grants the trial court wide latitude. Moreover, when a party announces it is ready, it should be ready for all matters before the court, including pending motions to suppress.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724