Derrick Gutierrez v. State

• Court: Court of Appeals of Texas
• Decided: January 4, 2011
• Docket: 07-07-00298-CR
• Status: Published

Opinion

NO. 07-10-00166-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 4, 2011

WILLIAM LEE BAUM,

Appellant v.

THE STATE OF TEXAS,

Appellee _____________________________

FROM THE 100TH DISTRICT COURT OF DONLEY COUNTY;

NO. 3669; HONORABLE STUART MESSER, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant William Lee Baum was convicted of indecency with a child. He seeks

to overturn that conviction by contending the trial court should have granted his motion

to suppress his statement to law enforcement officers. We disagree and affirm the

judgment.

Appellant argues that his statement was involuntary and the result of coercion. A

hearing was held on his motion to suppress and the trial court denied it. At the time the

State sought to have the statement admitted into evidence before the jury, appellant stated, “No objection.” The statement was admitted, and the State then asked to

publish it to the jury. The court granted permission, but before it was published,

appellant renewed his objections “made prior to this trial” and urged that the statement

be suppressed. The court overruled the objections.

To preserve error for review, a party must make a timely request, objection or

motion. TEX. R. APP. P. 33.1(a)(1). To be timely, the objection must be made at the

earliest opportunity. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006)

(stating that an objection is timely if made as soon as the grounds for it become

apparent). Moreover, when a party affirmatively states he has “no objection” when

evidence is offered, any complaint is waived. Holmes v. State, 248 S.W.3d 194, 196

(Tex. Crim. App. 2008).

Here, appellant stated he had no objection when the evidence was first offered.

After it had been admitted and the State sought to publish it to the jury, appellant

reiterated the objections promulgated at the suppression hearing. However, at that

point, the objections were not timely.

Yet, even if the objections were preserved, there would be no error. According to

the record, appellant voluntarily appeared at the sheriff’s office to undergo a polygraph.

He appeared calm to the officer administering the test and received his Miranda

warnings. When the test results indicated he was being disingenuous, he informed the

interrogator that he was not lying but that he would make a statement. The

interrogation lasted a “couple of hours,” according to appellant, and he was allowed to

go on a “bathroom break” during its occurrence. The interrogator also testified that

appellant was told, before making the written statement, that he did not have to provide

2 one and that the choice to do so would be voluntary. From these indicia, the trial court

had factual basis to conclude that appellant’s statement was indeed voluntary. This is

especially so since the record reveals that the trial court’s decision was influenced by

“the credibility of the witnesses” who testified; in other words, the trial court could have

deigned appellant’s testimony about feeling coerced unbelievable.

Accordingly, appellant’s issue is overruled and the judgment is affirmed.

Brian Quinn Chief Justice

Do not publish.