Michael Paul Lavoie, AKA Michael Rodgers, AKA Michael Mark Rodgers v. State

• Court: Court of Appeals of Texas
• Decided: March 6, 2014
• Docket: 10-13-00171-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00171-CR

MICHAEL PAUL LAVOIE, AKA MICHAEL RODGERS, AKA MICHAEL MARK RODGERS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 18th District Court Johnson County, Texas Trial Court No. F47171

MEMORANDUM OPINION

Michael Paul Lavoie was convicted of aggravated robbery, enhanced by two

prior felony convictions. TEX. PENAL CODE ANN. § 29.03 (West 2011). He was sentenced

to 60 years in prison. Because Lavoie’s issues on appeal either do not comport with the

argument made at trial or are not preserved for our review, the trial court’s judgment is

affirmed. In his first issue, Lavoie contends the trial court erred in denying Lavoie’s motion

to suppress his oral statement because the recording of Lavoie’s statement does not

meet the requirements of article 38.22, section 3(a)(2) and (4) of the Code of Criminal

Procedure. TEX. CRIM. CODE PROC. ANN. art. 38.22, Sec. 3(a)(2), (4) (West Supp. 2013).

Specifically, he complains that a statement was made about a BB gun prior to Lavoie

being warned and that all voices on the DVD recording of Lavoie’s statement were not

identified. However, in his written motion to suppress, although Lavoie complains that

his statement was not taken in compliance with article 38.22, section 3, he does not state

specifically what parts of section 3 were violated. Further, at the hearing which

occurred during the trial, he did not complain that all the voices were not identified,

and he did not complain about, nor did he cross-examine the detective about, any

statements that may have been made prior to the warnings being read. Thus, his

arguments on appeal do not comport with the arguments made at the hearing. See TEX.

R. APP. P. 33.1; Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Petty v.

State, 346 S.W.3d 200, 205 (Tex. App.—Amarillo 2011, no pet.) (arguments on appeal do

not comport with arguments made in motion to suppress). This issue presents nothing

for review, and is overruled.

In his second issue, Lavoie contends the trial court also erred in denying Lavoie’s

motion to suppress his oral statement because his statement was coerced. Specifically,

Lavoie contends his statement was coerced because: 1) the interrogation began at 2:48

Lavoie v. State Page 2 a.m. and ended at 3:26 a.m.; 2) the microphone was covered to conceal it; 3) Lavoie was

not informed he was being recorded; 4) a statement by the investigator about reading

rights one more time alluded to a previous interrogation; 5) the investigator made a

statement about a BB gun before Lavoie was warned of his right to remain silent; and 6)

Lavoie made repeated complaints about being in pain and wanting to lay down and

sleep. Other than the first three complaints, the remaining complaints on appeal

involved portions of the DVD recording that were not played to the jury at the

guilt/innocence phase of the trial. Further, Lavoie specifically stipulated that any

portion of the DVD not played to the jury did not contain evidence of coercion. Thus,

Lavoie’s argument on appeal that these occurrences caused his statement to be coerced

does not comport with the complaint made at the hearing on the motion to suppress,

and present nothing for review. Id.

Additionally, Lavoie made no argument in his motion to suppress or at the

hearing that the start and end time of the interview caused his statement to be coerced.

Thus, this complaint on appeal does not comport and presents nothing for review. Id.

Further, to the extent that Lavoie complained to the trial court about the

investigator’s failure to notify Lavoie that his statement was being recorded and the

concealment of the microphone, there has long been no requirement to notify a

defendant that he is being recorded. See TEX. CODE CRIM. PROC. ANN. art 38.22 (West

Supp. 2013) (amended Acts 1989, 71st Leg., ch. 777 (S.B. 55), §§ 1, 2, effective September

Lavoie v. State Page 3 1, 1989, deleting requirement). The investigator’s subjective reasoning for intentionally

not informing Lavoie of the recording is no longer independently relevant to the

admissibility of Lavoie's oral confession. Moore v. State, 882 S.W.2d 844, 846 (Tex. Crim.

App. 1994).

Accordingly, Lavoie’s second issue is overruled.

In his third issue, Lavoie argues that his sentence of 60 years in prison was

disproportionate, and, therefore, amounts to a cruel and unusual punishment under the

facts of the case. Lavoie, however, never objected to the sentence he received nor did he

file a motion for new trial on the basis that his sentence violated the 8th Amendment to

the United States Constitution or Article I, Section 13 of the Texas Constitution. See U.S.

CONST. amend. VIII; TEX. CONST. art. I, § 13. Accordingly, we find that Lavoie's

complaints were not presented to the trial court and are not preserved for our review.

TEX. R. APP. P. 33.1(a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002);

Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (reviewing court will not

consider errors, even of constitutional magnitude, not called to the trial court's

attention). See also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding

that complaint relating to constitutional prohibition against cruel and unusual

punishment was waived when no objection on this basis was made in trial court).

Because Lavoie’s third issue is not preserved, it is overruled.

Lavoie v. State Page 4 Having overruled each issue on appeal, we affirm the trial court’s judgment.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed March 6, 2014 Do not publish [CRPM]

Lavoie v. State Page 5