Appellee=s Second Motion for Rehearing Overruled.  Reversed and Remanded and Supplemental Majority Opinion and Dissenting Opinion on Motion for Rehearing filed May 29, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-05-00098-CR

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ANGEL RESENDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 960399

D I S S E N T I N G   O P I N I O N   O N   M O T I O N   F O R 

R E H E A R I N G 

On August 30, 2007, this court issued a substitute majority opinion in which it reversed and remanded this case for a new trial, and I filed a concurring opinion.  The State filed a second motion for rehearing requesting this court to reconsider its substitute opinion.  Today the court overrules the State=s second motion for rehearing and issues a supplemental majority opinion to address matters raised in the second motion.  I agree with sections A and B.1 of the supplemental majority opinion, in which the court exercises its discretion to consider the arguments in the State=s second motion and in which the court agrees with the State that appellant=s second statement was not obtained in violation of Miranda.  But I part company with the majority in section B.2, in which the court concludes that the trial court reversibly erred by denying appellant=s motion to suppress on the ground that appellant=s second statement was inadmissible based on a failure to comply with article 38.22, section 3(a)(2) of the Texas Code of Criminal Procedure.  Because appellant never asked the trial court to suppress his statement on this basis, appellant failed to preserve error.  This court should grant the State=s second motion for rehearing, withdraw the prior opinion, and affirm the trial court=s judgment.

                     Article 38.22 of the Texas Code of Criminal Procedure

Article 38.22 of the Texas Code of Criminal Procedure deals with various subjects.  See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2006).  Under section 2(a), a written statement made by an accused as a result of custodial interrogation is not admissible as evidence in any criminal proceeding unless it is shown on the face of the statement that the accused received certain warnings. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 2(a).  Under section 2(a), no written statement made by an accused as a result of custodial interrogation is admissible as evidence  in any criminal proceeding unless it is shown on the face of the statement that the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warnings prescribed by section 2(a). See Tex. Code Crim. Proc. Ann. art. 38.22, ' 2(a).  Under section 3(a), no oral or sign-language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless (1) an electronic recording, which may include motion picture, videotape, or other visual recording, is made of the statement; (2) prior to the statement but during the recording the accused is given the warnings provided in article 38.22, section 2(a) and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning; (3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered; (4) all voices on the recording are identified; and (5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under article 38.22.  See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a).  Under section 3(b), every electronic recording of any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant=s conviction for any offense relating thereto is final, all direct appeals therefrom are exhausted, or the prosecution of such offenses is barred by law.  See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(b).  Under section 6, there are various procedural requirements regarding determinations by the trial court and jury as to the voluntariness of a statement by the accused.  See Tex. Code Crim. Proc. Ann. art. 38.22, ' 6.  Under section 8, notwithstanding the other provisions of article 38.22, a statement by an accused made as a result of a custodial interrogation is admissible against the accused in a Texas criminal proceeding if (1) the statement was obtained in another state and was obtained in compliance with the laws of that state; or (2) the statement was obtained by a federal law enforcement officer in this state or another state and was obtained in compliance with the laws of the United States.  See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(b).  Out of all these parts and subparts of article 38.22, the only aspect at issue in this case is section 3(a)(2)=s prohibition against using an oral statement of an accused made as a result of custodial interrogation if the accused was not given the warnings in article 38.22, section 2(a) prior to the statement but during the recording.  See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a)(2).

                                  Appellant=s First Motion to Suppress

On September 19, 2003, appellant filed a motion to suppress (hereinafter AFirst Motion@), in which he made the following arguments:

!       When appellant had any conversations with law enforcement officers, he was under arrest.

!       Any statements made by appellant were involuntary and were coerced  from appellant.

!       Appellant was deprived of his right to counsel and did not make an intelligent and knowing waiver of that right.

!       Appellant=s statements were tainted by the illegal and unlawful arrest of appellant, in violation of his rights under the United States Constitution, the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure.

!       AStatements made by [appellant] were taken without the safeguards required by and in violation of Article 38.22 of the Code of Criminal Procedure.@

!       The admission of statements by appellant is a violation of appellant=s rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, the Texas Constitution, and articles 1.05 and 38.23 of the Texas Code of Criminal Procedure.

                               Appellant=s Second Motion to Suppress

Without having obtained a hearing or ruling on the First Motion, appellant retained new counsel, and that counsel was substituted as appellant=s counsel of record in January 2004.  More than thirteen months after filing the First Motion and without ever having obtained a hearing on that motion, on October 29, 2004, appellant=s new counsel filed a second motion to suppress (hereinafter ASecond Motion@), in which he made the following arguments:

!       Appellant gave a statement to police that the State intends to use against him.  This statement is a confession that appellant shot the complainant without legal justification.

!       This confession was elicited in violation of appellant=s rights under the Fifth Amendment of the United States Constitution, and article I of the Texas Constitution.  AFurther, [appellant] argues that this confession was taken contrary to the manner in which the Criminal Courts have interpreted those statutes.@

                                                     The Hearing

Ten days after appellant filed the Second Motion, on November 8, 2004, the trial court conducted a hearing (the AHearing@).  At the beginning of the Hearing, the trial court stated that the hearing was on appellant=s AMotion to Suppress the Confession.@  Appellant=s counsel then argued the following points:

!       On September 2, 2003, after failing a polygraph test, police officers interrogated appellant without making a recording.  During this unrecorded interrogation appellant confessed to shooting the complainant.

!       After appellant made this confession, the officers started a videotaped interrogation without administering Miranda warnings.

!       Once appellant confessed prior to the videotaped interrogation, the interrogation of appellant became custodial.  Therefore, appellant asked the trial court to suppress the September 2, 2003 videotaped statement  because it was (1) involuntary and (2) given by appellant without Aunderstanding certain rights that had been guaranteed him both under Miranda [sic] and our State Constitution.@

!       There is nothing in the transcript of appellant=s September 2 videotaped statement that reflects appellant was read his Miranda warnings at the beginning of his statement.  The officers did not give appellant Miranda warnings on the videotape.

Failure To Preserve Error

Appellant did not preserve error in the First Motion as to section 3(a)(2).

In the First Motion, appellant asserted globally that the admission of appellant=s statements would be a violation of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.  Appellant also stated that his statements were taken in violation of article 38.22.  Given the many different sections and requirements of article 38.22, this assertion is also global and unspecific.  In the First Motion, appellant did not assert that any statement was inadmissible based on the officers= failure to give the section 2(a) warnings at the beginning of the videotape.  The global assertions in the First Motion are not sufficient to preserve error on an argument that appellant=s September 2, 2003 statement (hereinafter AStatement@) should be suppressed because the officers violated article 38.22, section 3(a)(2).  See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (holding that global statements that appellant=s Fifth Amendment rights were violated and that officers did not comply with article 38.22 did not preserve error as to argument that his Fifth Amendment rights were violated by continued interrogation after he allegedly requested counsel); see also Olson v. State, No. 14-06-00338-CR, 2007 WL 1745837, at *1 (Tex. App.CHouston [14th Dist.] June 19, 2007, no pet.) (holding that motion in which defendant asserted that statements should be suppressed under article 38.22 did not preserve error as to arguments that statements should be suppressed under federal and state constitutions) (not designated for publication); Aparicio v. State, No. 14-03-01213-CR, 2004 WL 2283584, at *2 (Tex. App.CHouston [14th Dist.] Oct. 12, 2004, no pet.) (holding that motion to suppress in which defendant globally asserted that statement should be suppressed under article 38.22 did not preserve error as to argument that statement was inadmissible under article 38.22, section 3(a)(3)) (not designated for publication). 

Appellant did not preserve error in the Second Motion as to section 3(a)(2).

There is no language whatsoever in the Second Motion that arguably would preserve error as to an argument that appellant=s Statement should be suppressed because the officers violated article 38.22, section 3(a)(2). 

Appellant did not assert his section 3(a)(2) argument at the Hearing.

At the Hearing, there was no mention of any part of article 38.22.  Appellant=s counsel did not assert that the Statement should be suppressed because the officers violated article 38.22, section 3(a)(2).  Although appellant=s counsel did assert that the officers did not read appellant his Miranda warnings at the beginning of the Statement or on any part of the videotape of the Statement, this assertion was consistent with counsel=s argument that the officers violated the Fifth Amendment by failing to give appellant Miranda warnings at the beginning of his videotaped statement, given that the interrogation allegedly had become custodial when, just before the videotaped statement, appellant admitted to shooting the complainant.  Because appellant failed to complain at the Hearing about any alleged failure to follow section 3(a)(2), appellant did not preserve error at this hearing.  See Swain, 181 S.W.3d at 365.^[1]

                                                      Conclusion

Appellant did not preserve error as to any argument that the Statement should be suppressed because the officers violated article 38.22, section 3(a)(2).  For the reasons stated in sections A and B.1 of the supplemental majority opinion, the trial court did not abuse its discretion by implicitly determining that the Statement was not obtained in violation of the Fifth Amendment under the Miranda decision and its progeny.  This court should grant the State=s second motion for rehearing and affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Supplemental Majority Opinion and Dissenting Opinion on Motion for Rehearing filed May 29, 2008.

Panel consists of Justices Anderson, Frost, and Senior Justice Edelman.^* (Anderson, J., majority).

Publish C Tex. R. App. P. 47.2(b).