                                  NO. 07-09-00158-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                     APRIL 23, 2010


                          MEGAN CRITTENDEN, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


           FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

                NO. 2008-450,254; HONORABLE DRUE FARMER, JUDGE


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


                               MEMORANDUM OPINION


       Appellant, Megan Crittenden, was convicted of driving while intoxicated (DWI)1

and sentenced to 90 days confinement in the Lubbock County Jail. Appellant appeals,

contending that the trial court committed reversible error by not conducting a hearing

outside the presence of the jury regarding the voluntariness of her confession. Further,

appellant alleges that the trial court committed reversible error by failing to grant a jury




       1
           See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003).
instruction pursuant to article 38.23(a) of the Texas Code of Criminal Procedure.2 We

affirm.


                            Factual and Procedural Background


          Appellant was arrested for the offense of DWI on March 24, 2006, while driving

her car on the Texas Tech University campus. According to Officer Wainscott of the

Texas Tech University Police Department, he first observed appellant driving at a speed

faster than the posted speed limit, but was unable to verify his observation by radar or

by pacing appellant’s car.       Wainscott followed appellant’s car for a short distance.

During this time, Wainscott testified, he observed the car weave within its lane of travel

and ultimately pull up to a stop sign, where it failed to come to a complete stop before

proceeding.      At this moment, Wainscott activated his emergency lights and pulled

appellant over.


          Wainscott proceeded to question appellant and, as a result of the questioning,

determined she had been consuming alcoholic beverages. After asking appellant to exit

the car, Wainscott proceeded to administer a number of field sobriety tests. Based

upon her performance in completing the field sobriety tests, Wainscott decided to arrest

appellant for DWI. Appellant was asked to give a breath specimen for testing purposes

and agreed. After appellant was transported to the Lubbock County Jail, an intoxilyzer

test was administered to appellant. The record reflects that the result of the test was

above the legal limit at .109.


          2
          Further reference to the Texas Code of Criminal Procedure will be by reference
to “art. ___” or “article ____.”
                                              2
       After being charged with the DWI, appellant and trial counsel initially reached an

agreement with the State that appellant would enter a pre-trial diversion program.

According to the record, appellant applied for pre-trial diversion on August 30, 2006.

Appellant was accepted into the program, and the program contained a number of

terms and conditions. Among those were that she avoid the use or possession of

alcohol or alcoholic beverages for 24 months.           Additionally, she was not to go to

restaurants and bars that had, as their primary source of income, the sale of alcohol or

alcoholic beverages.     The pre-trial diversion program also required that appellant

acknowledge and waive her constitutional rights and sign a judicial confession.

Appellant’s application further acknowledged that, should she fail to complete the

pretrial diversion program, the charges would be refiled and the judicial confession

could be used against her.       Appellant agreed to the terms and, subsequently, on

December 21, 2007, appellant’s charges were dismissed.


       On April 25, 2008, appellant was arrested for a subsequent offense. As a result

of this arrest, the original DWI charges were refiled and the case tried.        That trial

resulted in appellant’s conviction for DWI and sentence of 90 days in the Lubbock

County Jail. Appellant, by two issues, attacks the judgment of conviction. We disagree

with appellant and affirm the trial court’s judgment.


                         Trial Court’s Failure to Hold Hearing on
                         Voluntariness of Appellant’s Confession


       Appellant’s first issue contends that the trial court committed reversible error

because it failed to conduct a hearing outside the jury’s presence about the


                                             3
voluntariness of appellant’s confession. See art. 38.22, § 6. The confession at issue is

the judicial confession contained in appellant’s application for pre-trial diversion.


Preservation of Error


       Prior to reaching the merits of appellant’s contention, we must consider whether

appellant has properly preserved this issue for appeal. We must take this preliminary

step for two reasons. First, the statute requires the hearing which appellant contends

was lacking only in cases “where a question is raised as to the voluntariness of a

statement of an accused . . . .” Id. Therefore, if the issue of voluntariness is not brought

to the trial court’s attention, there is no requirement for a hearing. Secondly, the courts

in Texas recognize that “preservation of error is a systemic requirement that must be

reviewed by the courts of appeals regardless of whether the issue is raised by the

parties.” Haley v. Smith, 173 S.W.3d 510, 515 (Tex.Crim.App. 2005). While, here, the

issue of preservation has been raised by the State, Haley simply reinforces the

requirement and the reason for the requirement of preservation.            According to our

appellate rules, in order to preserve a complaint for appellate review, an appellant must

have made a timely objection or motion that “stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the trial

court aware of the complaint. See TEX. R. APP. P. 33.1(a)(1)(A).


       Appellant points out that there are three ways in which a defendant can raise the

issue of voluntariness of a confession in order to trigger the requirements of article

38.22, section 6. An explicit request for a hearing on the matter can be made. See

McNeill v. State, 650 S.W.2d 405, 407 (Tex.Crim.App. 1983). Or, an appellant can

                                              4
make an explicit objection on the grounds of voluntariness of the confession. See

Wicker v. State, 740 S.W.2d 779, 782 (Tex.Crim.App. 1987). Finally, an appellant can,

through objections, motions, or the evidence presented, draw the attention of the trial

court to a factual scenario that presents the question of whether the statement was

made voluntarily.     See Reed v. State, 518 S.W.2d 817, 820 (Tex.Crim.App. 1975)

(concluding that the context of the objection made, based on the custody of the

defendant and the fact that the defendant was not taken before a magistrate for judicial

warnings, spoke to the issue of voluntariness); see also Page v. State, 614 S.W.2d 819,

819-20 (Tex.Crim.App. 1981) (equating the issue of mental competency of appellant to

waive his rights while confessing to a challenge as to the voluntariness of the

confession). With this background, we begin to look at the precise objections appellant

made to the use of the confession.


       First, appellant contends that there was a pre-trial motion that requested a

hearing be held outside the presence of the jury regarding the admissibility of

appellant’s prior statements. To state the obvious, an appellant’s statement could be

inadmissible for any number of reasons. In this case, a review of the motion reveals

that it is a boiler-plate motion that lists every possible objection that a similarly situated

appellant could make to the admission of a statement. Specifically, paragraph III of the

motion states that:


       This request is based on the Fifth, Sixth and Fourteenth Amendments to
       the United States Constitution, Article I, Section 10 and 19 of the Texas
       constitution, and Articles 1.04, 1.05, 1.051(a), 38.21, 38.22, and 38.23 of
       the Texas Code of Criminal Procedure.



                                              5
At the pre-trial hearing, the issue of the motion was discussed; however, nowhere in the

discussion did the subject of voluntariness of appellant’s confession ever appear. In

fact, the record reveals that the subject of appellant’s confession was not even

mentioned during the hearing; rather, appellant’s counsel seemed focused on possible

oral statements of appellant’s that might appear on the in-car video of the arresting

officer. Under these facts, we cannot say that an issue regarding the voluntariness of

the confession was raised. See art. 38.22, § 6.


        Turning our attention to the objections made at the time the State was offering

appellant’s confession, we see that trial counsel lodged three separate objections. First,

trial counsel objected that the introduction of the confession violated Rules 408 and 410

of the Texas Rules of Evidence. See TEX. R. EVID. 408, 410.3 Rule 408 deals with

compromise and offers to compromise. Nothing in Rule 408 mentions, alludes to, or

could be considered to encompass the voluntariness of a confession. Rule 410 deals

with inadmissibility of pleas, plea discussions, and related statements.        While it is

correct that Rule 410 has an application in criminal law, it is directed at the use of

statements made during unsuccessful plea negotiations.          See Bowie v. State, 135

S.W.3d 55, 60-61 (Tex.Crim.App. 2004).            Nothing in Rule 410 is directed at the

voluntariness of an appellant’s statement.        Therefore, we can be assured that trial

counsel’s initial objection did not put the trial court on notice that appellant was seeking

to contest the voluntariness of her confession.




        3
            Further reference to the Texas Rules of Evidence will be by reference to “Rule
___.”
                                              6
      Trial counsel next objected to the use of the confession based upon the

contractual nature of the pre-trial diversion agreement. According to this theory, since

the State could withdraw the pre-trial diversion agreement unilaterally, the contract is

not only unilateral in nature but is also an illusory contract. Thus, according to the

appellant, the contract is an illegal contract. Because no evidence obtained in violation

of the provisions of the laws of the State of Texas is admissible at trial under the

provisions of article 38.23, appellant reasons that the confession is not admissible.

Without regard to whether article 38.23 even applies in this contractual arena, the point

is that nothing in this objection mentions or alludes to the voluntariness of appellant’s

confession.   Again, the trial court was not put on notice that voluntariness of the

confession was at issue.


      Finally, the third objection lodged at trial was that the use of the confession was

simply a “backdoor-way of getting [appellant] to testify.”   By this objection, appellant

contends that the use of the confession by the State was simply a way to force

appellant to testify in derogation of her Fifth Amendment rights. Whether this theory of

appellant’s is correct is of no moment, for the question is: Does this objection place the

trial court on notice that appellant contends that the confession was involuntarily made?

The answer is no.


      Having reviewed the pre-trial motion and all three objections lodged at trial, we

conclude that appellant did not make an objection that “stated the grounds for the ruling

that the complaining party sought from the trial court with sufficient specificity to make

the trial court aware of the complaint.” See TEX. R. APP. P. 33.1(a)(1)(A). Accordingly,

                                            7
appellant’s issue preserves nothing for review regarding the voluntariness of the

confession. Wilson v. State, 71 S.W.3d 346, 350 (Tex.Crim.App. 2002) (citing Thomas

v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986)).             Appellant’s first issue is

overruled.


                                 Article 38.23 Instruction


       Appellant next contends that the trial court committed reversible error when it

refused a request to instruct the jury pursuant to article 38.23. The standard of review

for jury charge error is set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.

1984) (op. on reh’g), and reaffirmed in Middleton v. State, 125 S.W.3d 450, 453

(Tex.Crim.App. 2003). We first determine if error exists in the court’s charge. Id. (citing

Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996)). If we find charge error,

then we analyze the error for harm with the type of harm analysis we employ dependent

on whether the error was preserved. Id. Under Almanza, for preserved error, we must

reverse if we conclude the defendant suffered "some harm." Almanza, 686 S.W.2d at

171. If error was not properly preserved, we will reverse only if the record establishes,

as a result of the court’s error, the defendant suffered "egregious harm." Id.


                                            Analysis


      To determine if there has been error, we turn to the seminal case of Madden v.

State, 242 S.W.3d 504, 510 (Tex.Crim.App. 2007).             There, the Court of Criminal

Appeals set forth three requirements to obtain a charge pursuant to article 38.23,


      (1) The evidence heard by the jury must raise an issue of fact;

                                            8
      (2) The evidence on that fact must be affirmatively contested; and

      (3) That contested factual issue must be material to the lawfulness of the
      challenged conduct in obtaining the evidence.
Id.


      Appellant’s argument centers around Wainscott’s testimony that appellant failed

to come to a complete stop at the stop sign immediately before he initiated the traffic

stop. At the trial, the State introduced the video taken by Wainscott’s in-car video

camera. Upon showing the same to the jury, Wainscott pointed to the fact that, if you

watched the rear tires of appellant’s vehicle, you could see that they never came to a

complete stop. Appellant’s trial counsel vigorously cross-examined Wainscott about this

issue. However, Wainscott’s testimony never changed. Trial counsel also argued that,

on the video, you could hear appellant state that she knew the officer was back there

and, therefore, did come to a complete stop. However, our review of the video does not

lead to that conclusion. Appellant did start making a statement about knowing the

officer was behind her. However, she never finished the statement, and she cannot be

heard saying affirmatively that she stopped at the stop sign. We are therefore left with a

situation that is much like that discussed in Oursbourn v. State, 259 S.W.3d 159, 177

(Tex.Crim.App. 2008), where the Court of Criminal Appeals said that the factual dispute

necessary for a jury instruction, pursuant to article 38.23, “can be raised only by

affirmative evidence, not by mere cross-examination questions or argument.” The court

in Oursbourn went on to point out a hypothetical that made the court’s position even

clearer. The court said:




                                            9
       For example, the officer in our hypothetical may deny, on cross-
       examination, that he held a gun to the defendant’s head to extract the
       confession. The implication by counsel, that the officer did perform that
       act, does not, by itself, raise a disputed fact issue. But if the defendant (or
       some other witness) testifies that the officer held a gun to his head, then a
       disputed fact issue exists. And the jury must resolve that disputed fact
       issue.

Id. Just as the court in Oursbourn, we do not have a disputed fact issue raised by

affirmative evidence. See Madden, 242 S.W.3d at 510. All we have is the cross-

examination of the officer and the argument of counsel. See Oursbourn, 259 S.W.3d at

177.   Accordingly, the trial court did not err in denying the requested instruction

pursuant to article 38.23. Appellant’s second issue is overruled.

                                         Conclusion


       Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                                         Mackey K. Hancock
                                                              Justice




Do not publish.


Pirtle, J., concurring in result only.




                                             10
