NUMBER 13-16-00356-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JACK GERALD LARKINS A/K/A JERRY LARKINS A/K/A GERALD JACK LARKINS A/K/A JACK GEAROLD LARKINS A/K/A JACK LARKINS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Contreras and Hinojosa Memorandum Opinion by Chief Justice Valdez
A Nueces County jury found appellant Jack Larkins, a/k/a Jerry Larkins, a/k/a
Gerald Jack Larkins, a/k/a Jack Gerald Larkins, guilty of one count of aggravated kidnapping and two counts of aggravated sexual assault. See TEX. PENAL CODE ANN.
§§ 20.04, 22.021 (West, Westlaw through 2017 1st C.S.). The trial court sentenced
Larkins to fifty years in prison on the aggravated kidnapping count and eighty years in
prison on the aggravated sexual assault counts. 1 By three issues, Larkins contends that:
(1) the statements he made during a custodial interrogation were admitted in violation of
his Fifth Amendment right against self-incrimination; (2) the trial court failed to apply an
objective standard when it determined that he waived his Miranda rights; and (3) he was
prejudiced and harmed by the trial court’s admission of his custodial interrogation. We
affirm.
I. BACKGROUND
Larkins was arrested for aggravated sexual assault and aggravated kidnapping
that allegedly occurred on March 8, 2017. He was taken to the police station and
interrogated. After waiving his Miranda rights, he began to talk about the extent of this
encounter. At trial, the State admitted a video statement of the interrogation over
Larkins’s objection that he had invoked his right to counsel. The propriety of the trial
court’s ruling is the subject of this appeal.
II. PRESERVATION OF ERROR
In his first point of error, Larkins contends that he invoked his Fifth Amendment
right to remain silent before he waived his Miranda rights. Larkins also argues that he
eventually waived his Miranda rights because of police “persuasion, promises, and quip
1 The jury also convicted Larkins of misdemeanor assault and theft, for which the trial court
assessed punishment at 180 days in county jail. See TEX. PENAL CODE ANN. §§ 22.01, 31.03 (West, Westlaw through 2017 1st C.S.). These counts are not at issue in this appeal.
2 [sic] pro quo.” The State contends these issues were not preserved for our review
because Larkins did not raise his objections in the trial court. We agree with the State.
A. Standard of Review and Applicable Law
In order for an issue to be preserved on appeal, there must be a timely objection
that specifically states the legal basis for the objection. TEX. R. APP. P. 33.1(a); Rezac v.
State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (en banc). A general or imprecise
objection will not preserve error for appeal unless “the legal basis for the objection is
obvious to the court and to the opposing counsel.” Vasquez v. State, 483 S.W.3d 550,
554 (Tex. Crim. App. 2016) (quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim.
App. 2006) (emphasis in original)). When a complaint on appeal differs from that made
at trial, the error is waived. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993)
(en banc). “An objection stating one legal basis may not be used to support a different
legal theory on appeal.” Rezac, 782 S.W.2d at 870. “Whether a party’s particular
complaint is preserved depends on whether the complaint on appeal comports with the
complaint made at trial.” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009);
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Goff v. State, 931 S.W.2d
537, 551 (Tex. Crim. App. 1996) (en banc); Rios v. State, 263 S.W.3d 1, 5 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d); Flores v. State, 125 S.W.3d 744, 747 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). “The purpose of requiring a specific objection in the
trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him
the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to
the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).
B. Discussion
3 On appeal, Larkins contends he invoked his right to remain silent with the following
statements: “I do not want to talk to you,” “I am not interested in anything except my wife,”
“I do not understand.” Additionally, Larkins contends that the interrogating officer
allegedly promised him information concerning Larkins’s wife in exchange for Larkins’s
written waiver. However, at trial, Larkins objected to the admission of the interrogation
video on the basis that he had invoked his right to counsel, stating:
. . . [W]e object to the admissibility of that video because [Larkins] did invoke his right to counsel. . . . Once he initially said “I want my lawyer,” it has to stop. . . . [Officer] shouldn’t be initiating any conversation with him after he says, “I want my lawyer.” He should be, Okay. That’s it. We’re leaving. . . [O]nce [Larkins] says, “I want my lawyer,” say, “Okay. You want your lawyer. [W]e’re out. We’re done.”
In addition, Larkins did not refer to his right to remain silent or the voluntariness of his
confession in any way so as to indicate that he was objecting on that legal basis. See
Vasquez, 483 S.W.3d at 554 (holding that the legal basis for the objection must be
obvious to the court and to opposing counsel). As a result, the State’s response
concerned whether Larkins had invoked his right to counsel, and the State argued as
follows:
State: I disagree with that, Your Honor. [H]ere in this case, the defendant keeps talking on his own, not in response to questioning. He is reinitiating the conversation on his own. And then the Ranger even tells him, after a period of time, “Look, I understand you are asking for a lawyer, but”— basically I’m paraphrasing—“[I]t’s confusing because you are still telling us stuff. So if you want a lawyer, I will give you a lawyer. That’s when the defendant takes it back, which I think the case says, basically, you can take it back. You can reinitiate the conversation.
Thus, Larkins’s arguments on appeal—that his incriminating statements should have
been suppressed because he invoked his right to remain silent and because he was
4 promised information in exchange for his statement—are legally distinct from the
argument he made to the trial court that they should have been suppressed because he
requested an attorney. See Resendez, 306 S.W.3d at 312 (holding appellant’s argument
to the trial court that referenced article 38.22 of the Texas Constitution was insufficient to
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NUMBER 13-16-00356-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JACK GERALD LARKINS A/K/A JERRY LARKINS A/K/A GERALD JACK LARKINS A/K/A JACK GEAROLD LARKINS A/K/A JACK LARKINS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Contreras and Hinojosa Memorandum Opinion by Chief Justice Valdez
A Nueces County jury found appellant Jack Larkins, a/k/a Jerry Larkins, a/k/a
Gerald Jack Larkins, a/k/a Jack Gerald Larkins, guilty of one count of aggravated kidnapping and two counts of aggravated sexual assault. See TEX. PENAL CODE ANN.
§§ 20.04, 22.021 (West, Westlaw through 2017 1st C.S.). The trial court sentenced
Larkins to fifty years in prison on the aggravated kidnapping count and eighty years in
prison on the aggravated sexual assault counts. 1 By three issues, Larkins contends that:
(1) the statements he made during a custodial interrogation were admitted in violation of
his Fifth Amendment right against self-incrimination; (2) the trial court failed to apply an
objective standard when it determined that he waived his Miranda rights; and (3) he was
prejudiced and harmed by the trial court’s admission of his custodial interrogation. We
affirm.
I. BACKGROUND
Larkins was arrested for aggravated sexual assault and aggravated kidnapping
that allegedly occurred on March 8, 2017. He was taken to the police station and
interrogated. After waiving his Miranda rights, he began to talk about the extent of this
encounter. At trial, the State admitted a video statement of the interrogation over
Larkins’s objection that he had invoked his right to counsel. The propriety of the trial
court’s ruling is the subject of this appeal.
II. PRESERVATION OF ERROR
In his first point of error, Larkins contends that he invoked his Fifth Amendment
right to remain silent before he waived his Miranda rights. Larkins also argues that he
eventually waived his Miranda rights because of police “persuasion, promises, and quip
1 The jury also convicted Larkins of misdemeanor assault and theft, for which the trial court
assessed punishment at 180 days in county jail. See TEX. PENAL CODE ANN. §§ 22.01, 31.03 (West, Westlaw through 2017 1st C.S.). These counts are not at issue in this appeal.
2 [sic] pro quo.” The State contends these issues were not preserved for our review
because Larkins did not raise his objections in the trial court. We agree with the State.
A. Standard of Review and Applicable Law
In order for an issue to be preserved on appeal, there must be a timely objection
that specifically states the legal basis for the objection. TEX. R. APP. P. 33.1(a); Rezac v.
State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (en banc). A general or imprecise
objection will not preserve error for appeal unless “the legal basis for the objection is
obvious to the court and to the opposing counsel.” Vasquez v. State, 483 S.W.3d 550,
554 (Tex. Crim. App. 2016) (quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim.
App. 2006) (emphasis in original)). When a complaint on appeal differs from that made
at trial, the error is waived. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993)
(en banc). “An objection stating one legal basis may not be used to support a different
legal theory on appeal.” Rezac, 782 S.W.2d at 870. “Whether a party’s particular
complaint is preserved depends on whether the complaint on appeal comports with the
complaint made at trial.” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009);
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Goff v. State, 931 S.W.2d
537, 551 (Tex. Crim. App. 1996) (en banc); Rios v. State, 263 S.W.3d 1, 5 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d); Flores v. State, 125 S.W.3d 744, 747 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). “The purpose of requiring a specific objection in the
trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him
the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to
the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).
B. Discussion
3 On appeal, Larkins contends he invoked his right to remain silent with the following
statements: “I do not want to talk to you,” “I am not interested in anything except my wife,”
“I do not understand.” Additionally, Larkins contends that the interrogating officer
allegedly promised him information concerning Larkins’s wife in exchange for Larkins’s
written waiver. However, at trial, Larkins objected to the admission of the interrogation
video on the basis that he had invoked his right to counsel, stating:
. . . [W]e object to the admissibility of that video because [Larkins] did invoke his right to counsel. . . . Once he initially said “I want my lawyer,” it has to stop. . . . [Officer] shouldn’t be initiating any conversation with him after he says, “I want my lawyer.” He should be, Okay. That’s it. We’re leaving. . . [O]nce [Larkins] says, “I want my lawyer,” say, “Okay. You want your lawyer. [W]e’re out. We’re done.”
In addition, Larkins did not refer to his right to remain silent or the voluntariness of his
confession in any way so as to indicate that he was objecting on that legal basis. See
Vasquez, 483 S.W.3d at 554 (holding that the legal basis for the objection must be
obvious to the court and to opposing counsel). As a result, the State’s response
concerned whether Larkins had invoked his right to counsel, and the State argued as
follows:
State: I disagree with that, Your Honor. [H]ere in this case, the defendant keeps talking on his own, not in response to questioning. He is reinitiating the conversation on his own. And then the Ranger even tells him, after a period of time, “Look, I understand you are asking for a lawyer, but”— basically I’m paraphrasing—“[I]t’s confusing because you are still telling us stuff. So if you want a lawyer, I will give you a lawyer. That’s when the defendant takes it back, which I think the case says, basically, you can take it back. You can reinitiate the conversation.
Thus, Larkins’s arguments on appeal—that his incriminating statements should have
been suppressed because he invoked his right to remain silent and because he was
4 promised information in exchange for his statement—are legally distinct from the
argument he made to the trial court that they should have been suppressed because he
requested an attorney. See Resendez, 306 S.W.3d at 312 (holding appellant’s argument
to the trial court that referenced article 38.22 of the Texas Constitution was insufficient to
preserve error for appeal of his specific argument under article 38.22 because “[a]rticle
38.22 contains a number of subsections that could have been applicable to the appellant’s
videotaped statement”); Rezac, 782 S.W.2d at 870 (holding that “[a]n objection stating
one legal basis may not be used to support a different legal theory on appeal”); see also
TEX. CODE CRIM. PROC. ANN. art. 38.22 (West, Westlaw through 2017 1st C.S.).
Here, because Larkins never argued to the trial court that he invoked his right to
remain silent or that his waiver was not voluntary, the State did not have the opportunity
to oppose those legal bases. See Resendez, 306 S.W.3d at 312. Similarly, the trial court
was never afforded the opportunity to rule, or to refuse to rule, on the issues of whether
Larkins invoked his right to remain silent or the voluntariness of his waiver. 2 Id.
Accordingly, neither of the two purposes—to make sure that the trial judge understands
what she is being asked to do and that the State has a chance to actually oppose it—is
vindicated by allowing Larkins the opportunity to raise these new arguments on appeal.
Id.
After reviewing the record, we cannot conclude that Larkins objected to the
admission of his statements on the basis of invoking his right to remain silent or
2 We note the trial court postponed ruling on Larkins’s invocation of counsel objection until the parties researched the matter further. However, the trial court failed to rule on the matter and allowed the State to continue to play the video of the custodial interrogation. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (“If, on appeal, a defendant claims the trial judge erred in admitted evidence offered the by the State, this error must have been preserved by a proper objection and a ruling on that objection.”). Here, Larkins did not obtain a ruling from the trial court. See TEX. R. APP. P. 33.1.
5 voluntariness. Id. at 315. Because his arguments on appeal do not comport with the
objection at trial, we find that his complaint is waived. See TEX. R. APP. P. 33.1(a); Pena,
285 S.W.3d at 464. Having concluded that Larkins failed to preserve error, we overrule
his first point of error. 3 See TEX. R. APP. P. 33.1(a); Resendez, 306 S.W.3d at 312.
II. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed this 18th day of October, 2018.
3 Because we have determined that Larkins did not preserve his complaint for appeal, we do not address his second and third grounds for review because they are not dispositive. See TEX. R. APP. P. 47.4.