Aparicio, Mario Astul v. State

• Court: Court of Appeals of Texas
• Decided: October 12, 2004
• Docket: 14-03-01213-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 12, 2004

Affirmed and Memorandum Opinion filed October 12, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-01213-CR

MARIO ASTUL APARICIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 940,948

M E M O R A N D U M   O P I N I O N

A jury found appellant, Mario Aparicio, guilty of murder and sentenced him to life imprisonment.  In his sole issue, he contends the trial court erred in denying his motion to suppress his oral statement.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

According to the State=s evidence, appellant shot and killed David Rendon at Rendon=s home.  Appellant was arrested the same day after being pursued by police.  At police headquarters, appellant gave an oral videotaped statement.  In the statement, appellant asserted that Rendon had robbed him of about $2,500, and appellant went to Rendon=s home to confront him about the robbery.

II.  Discussion

In his sole issue, appellant argues that the trial court erred in denying his pretrial motion to suppress because his oral confession does not meet the requirements for admissibility under Article 38.22 of the Texas Code of Criminal Procedure.^[1]  In the videotaped statement, there are about sixty instances where the spoken words are not audible.  Appellant, therefore, contends that the statement was inadmissible because the device used to record the statement was not capable of making an accurate recording, the recording was not accurate, and the operator of the device was not competent.  See Tex. Code Crim. Proc. Ann. art. 38.22 ' 3(a)(3) (Vernon Supp. 2004).  We will not consider appellant=s contentions, however, because he has failed to preserve the issue for our review.          

When a pretrial motion to suppress evidence is denied, the accused need not object to the same evidence again at trial to preserve error.  Ebarb v. State, 598 S.W.2d 842, 843 (Tex. Crim. App. 1980); Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985), overruled on other grounds, Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997).  However, when an accused affirmatively states during trial that he has Ano objection@ to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pretrial ruling.  Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988) (emphasis added); Gearing, 685 S.W.2d at 329. 

In this case, appellant initially preserved error through the trial court=s ruling on the pretrial motion to suppress.  However, when the State introduced the videotaped statement at trial, appellant expressly stated, ANo objections, your Honor.  I=ve seen it.@^[2]  Additionally, when the State introduced a transcript of the statement into evidence, appellant stated, AYour Honor, I=ve read it from page 1 through 24, and I have no objections, your Honor.@^[3]  Appellant=s affirmative acceptance of both the videotaped statement, and the transcript of the statement, waived any error in their admission.

Furthermore, there is another reason why appellant has waived his right to complain about the admissibility of the statement under Article 38.22, Section 3(a)(3).  A motion to suppress is nothing more than a specialized objection to the admission of evidence.  See Martinez v. State, 17 S.W.3d 677, 682B83 (Tex. Crim. App. 2000).  An objection to the admission of evidence must be specific and the grounds for the objection must be clearly expressed in order to preserve error.  Tex. R. App. P. 33.1(a); Villareal v. State, 811 S.W.2d 212, 217 (Tex. App.CHouston [14th Dist.] 1991, no pet.).  If the objection in the trial court differs from the complaint made on appeal, the defendant has failed to preserve error for review.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). 

At the motion to suppress hearing, appellant argued only that the statement was inadmissible because it appeared that appellant was Ahalf asleep, just sitting there pretty slouched over, leaning back in the chair@ and Awasn=t all there and didn=t really seem to know what was going on@ at the time he made the statement.  Appellant did not contend, either in his written motion to suppress or at the suppression hearing, that his statement was inadmissible because the device used to record the statement was not capable of making an accurate recording, the recording was not accurate, and the operator of the device was not competent.  See Tex. Code Crim. Proc. Ann. art. 38.22 ' 3(a)(3).^[4]  Because the argument raised on appeal does not comport with the objection made to the trial court, appellant has failed to preserve the issue for appellate review.

Accordingly, we overrule appellant=s sole issue.  The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 12, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The relevant part of article 38.22 provides: ANo 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 . . . the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered.@  Tex. Code Crim. Proc. Ann. art. 38.22 ' 3(a)(3) (Vernon Supp. 2004).

^[2]  Following a bench discussion off the record, the State re-offered the videotaped statement into evidence, and appellant once again responded, ANo objections, your Honor.@

^[3]  In the videotaped statement, appellant and the officers conducting the interview are speaking in Spanish.  Accordingly, a transcript of the statement, translated into English, was given to each juror so that she could follow along as the statement was read aloud in court. 

^[4]  In his written motion to suppress, appellant urged that his statement be suppressed Abased upon the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, Article I, sections 9, 10, and 19 of the Texas Constitution and Article 15.01, 38.21, 38.22, and 38.23, V.A.C.C.P., as well as the requirements set out in Jackson v. Denno, 378 U.S. 368, as well as the doctrine of the fruit of the poison tree of Wong Sun v. U.S., 371 U.S. 471 (1963).@  Despite appellant=s reference to Article 38.22, he did not alert the trial court to the alleged errors of which he now complains.  Accordingly, appellant=s mere reference to Article 38.22 is not sufficient to preserve error on appeal.  See Tex. R. App. P. 33.1(a); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (appellate court reviewing a trial=s court ruling on the admission of evidence must do so in light of the arguments before the trial court at the time it ruled).