Bouyer v. State
In Bouyer v. State, 264 S.W.3d 265 (Tex. App.--San Antonio 2008, no pet.), a motion to suppress was filed but not heard before trial.
During trial, counsel requested a hearing to challenge the admissibility of evidence. The trial court responded, "There is really no reason not to proceed. If I decide not to allow the evidence, it won't be stated to the jury and they (sic) will not be allowed to consider it."
The trial proceeded, and as evidence from the search was introduced, defense counsel stated, "No objection." After the State's evidence was introduced, the trial court conducted an evidentiary hearing and denied the motion to suppress evidence.
The San Antonio court explained that since the issue was raised at trial and the trial court agreed to consider the matter at a later time and then held a hearing, the trial court "clearly did not construe Bouyer's "no objection" as a waiver of his motion to suppress, notwithstanding the State's contention that Bouyer had waived the objections."Id. 268-69.