                                  IN THE
                          TENTH COURT OF APPEALS

                                No. 10-09-00116-CR

GLEN RAY KELLY,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 18th District Court
                             Johnson County, Texas
                              Trial Court No. F41868


                          MEMORANDUM OPINION


      Glen Ray Kelly was convicted of the felony offense of driving while intoxicated,

enhanced, and sentenced to 40 years in prison. TEX. PENAL CODE ANN. § 49.09(b) (West

Supp. 2010). We affirm.

                                       COMPORT

      In one issue, Kelly contends the trial court erred in failing to exclude a statement

he made on video concerning his right to counsel while the arresting officer was

reading to Kelly the statutory warning about submitting or refusing to submit to a

breath test analysis. See TEX. TRANSP. CODE ANN. §§ 724.015, 724.061 (West Pamp. 2010
& West 1999). The State asserts that the argument made under this issue does not

comport with the argument made at trial regarding the admissibility of the statement.

We agree.

        An objection at trial that does not comport with the complaint on appeal presents

nothing for review.     Chambers v. State, 903 S.W.2d 21, 32 (Tex. Crim. App. 1995).

Further, an objection stating one legal theory may not be used to support a different

legal theory on appeal. Id. However, this appeal does not present a typical “does not

comport” issue. There is no simple one line objection or theory proposed at trial that is

so obviously different from what is argued on appeal. So that the parties understand

why we agree that the arguments do not comport, we will explain what we believe the

trial court understood the argument to be at trial and why it is different than the

argument raised on appeal.

Arguments Made

        Immediately prior to the start of the trial, after the jury had been selected, the

trial court heard an oral motion to suppress or objection to the admissibility of the audio

portion of a video recording of Kelly in the intoxilyzer room. Before playing the video,

the trial court requested a one minute summary of Kelly’s objection and the State’s

proposed response so the trial court could understand the general parameters of the

parties’ legal positions as a frame of reference as the trial court was watching the video.

        Kelly’s counsel began his summary by noting that within the 15 minute video, he

counted at least six times where Kelly requested an attorney or stated that he would not

do anything or sign anything without an attorney. He further noted that within the first

Kelly v. State                                                                        Page 2
few minutes of the video, Kelly asks for an attorney. After reciting a laundry list of

potentially applicable protections, counsel then argued that the entire audio portion

should not be admissible because of Kelly’s request for an attorney. Although Kelly’s

counsel agreed that the law is clear that Kelly did not have the right to counsel to advise

him whether or not to take a breath test, he argued that article 38.22 of the Texas Code

of Criminal Procedure required any oral statements made by a defendant to be

recorded and required a defendant to be given the warnings set out in the article. See

TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005). Counsel stated that article 38.22

required Kelly to be given the statutory warnings and required Kelly to voluntarily

waive those rights before any part of the oral statement could be used. He contended

Kelly was never advised of his rights as required by article 38.22 and that he never

waived his rights as required for the State to be able to use his statements. Therefore,

counsel argued, due to the violation of article 38.22, the entire audio portion of the

video was not admissible because it was harmful for Kelly to exercise his Fifth

Amendment privilege in front of a jury and because it would chill the exercise of this

right to permit it.

        The State responded, notwithstanding Kelly’s recognition that the right to an

attorney had not attached, that Kelly’s Sixth Amendment right did not attach at the time

the video was made because the filing of the complaint is the trigger to the Sixth

Amendment right. The State also argued that Kelly did not have the protections under

the Fifth Amendment regarding the contents of the audio of both the field sobriety test

and the request for the breath test. The State informed the trial court that the Third

Kelly v. State                                                                       Page 3
Court of Appeals had examined both the Fifth Amendment right and the protection of

Article 1 Section 10 of the Texas Constitution and found that the Texas Constitution did

not provide any broader protections than the Fifth Amendment. The State further

argued that the request for a breath test is not interrogation which is a requirement

under the Fifth Amendment protection against self-incrimination as well as Article 1,

Section 10. Also, the State continued, a defendant’s refusal to give a breath sample is

not an act of coercion. The State argued that the protections under article 38.22 did not

apply because the video of Kelly in the interrogation room was not considered

interrogation and article 38.22 required both custody and interrogation.         The State

contended that interrogation is not a part of the breath test refusal because the refusal is

not testimonial, coerced, or interrogation. Therefore, the State’s position was that the

audio portion relating to the refusal and any request for an attorney during the breath

test request was not subject to suppression because the protections under the Sixth

Amendment and the Fifth Amendment did not apply.

        The parties then clarified that the scope of the motion being decided was

specifically limited to the audio portion of the videotape.

        The trial court then summarized his understanding of the issue as follows: “So

it’s your understanding that although he was in custody, it was not a formal

interrogation and therefore 38.22 wouldn’t apply?” The videotape was then played

three times in front of the trial court, interspersed with descriptions of the video and

discussions of the application of several cases. This discussion covered ten pages in the

reporter’s record. After this discussion, the trial court granted Kelly’s motion, in part,

Kelly v. State                                                                        Page 4
suppressing most of the audio portion of the tape, but allowed the audio portion to be

played until and including Kelly’s statement, “You can have my license.”

        Once the trial court made its ruling, Kelly’s counsel placed on the record his

formal objection to the admission of the remaining audio portion of the videotape. That

objection, in its entirety, is as follows:

               Now comes the Defendant, Glen Ray Kelly, who objects to the
        Court’s ruling at the outset of the tape within the first four or five seconds
        the Defendant says “I’m not doing nothing without an attorney.” 38.22
        states that he has a right to have an attorney present during any
        questioning and that he must knowingly, intelligently and voluntarily
        waive his rights as set out. The Defendant complains on the Court’s
        ruling in that the Defendant asserted his right to have an attorney. He did
        not in any fashion ever waive the right to have an attorney. So under
        38.22 the statement should not be used. The fact of a refusal is admissible,
        that’s been Texas law, does not conflict with deleting audio, the fact that
        an attorney is not provided for to advise on the decision does not support
        the use of the video that Miranda versus Arizona is the most important
        right in it has a chilling effect on the Defendant in exercise of a right
        because within the first four seconds he says “I’m not doing nothing
        without an attorney.” Thank you, Judge.

The parties and the trial court then further discussed exactly what would be admitted

and where the audio portion would be turned off. After the clarification, the trial court

reaffirmed its ruling.

Statutory Warnings

        Article 38.22 provides in part:

        Sec. 2. No written statement made by an accused as a result of custodial
        interrogation is admissible as evidence against him in any criminal
        proceeding unless it is shown on the face of the statement that:
                (a) the accused, prior to making the statement, either received from
        a magistrate the warning provided in Article 15.17 of this code or received
        from the person to whom the statement is made a warning that:


Kelly v. State                                                                           Page 5
               (1) he has the right to remain silent and not make any statement at
        all and that any statement he makes may be used against him at his trial;
               (2) any statement he makes may be used as evidence against him in
        court;
               (3) he has the right to have a lawyer present to advise him prior to
        and during any questioning;
               (4) if he is unable to employ a lawyer, he has the right to have a
        lawyer appointed to advise him prior to and during any questioning; and
               (5) he has the right to terminate the interview at any time; and
               (b) the accused, prior to and during the making of the statement,
        knowingly, intelligently, and voluntarily waived the rights set out in the
        warning prescribed by Subsection (a) of this section.

        Sec. 3. (a) No 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:
                                             ***
               (2) prior to the statement but during the recording the accused is
        given the warning in Subsection (a) of Section 2 above and the accused
        knowingly, intelligently, and voluntarily waives any rights set out in the
        warning; …

TEX. CODE CRIM. PROC. ANN. art. 38.22, secs. 2, 3 (West 2005).

        Article 38.22 is a procedural evidentiary rule that governs admissibility of an

accused’s statement. Thai Ngoc Nguyen v. State, 292 S.W.3d 671, 676 (Tex. Crim. App.

2009). It prescribes the various requirements that must be satisfied before a statement

made by an accused as a result of custodial interrogation will be admitted against

him/her at trial. Id. at 676-677. Like Miranda, the warnings set out by article 38.22 are

intended to safeguard a person's privilege against self-incrimination during custodial

interrogation. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009); Herrera v.

State, 241 S.W.3d 520, 525-26 (Tex. Crim. App. 2007). See Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).



Kelly v. State                                                                         Page 6
Comparison of Arguments

        Kelly’s objection at trial, in context, can only be fairly characterized as an

objection that all of Kelly’s statements, specifically including his repeated invocation of

his right to counsel, but not limited to those statements, recorded on the videotape were

recorded without complying with article 38.22 and the admission would therefore be in

violation of article 38.22. (“So under 38.22 the statement should not be used.”). The

argument presented in his brief, however, is in no way about an alleged violation of

article 38.22 and having a statement not taken in compliance with it admitted into

evidence. Rather, the complaint on appeal is that the trial court erred in admitting the

audio portion of the tape, specifically the audio portions where Kelly was invoking his

right to counsel. Kelly’s conclusion on appeal succinctly states his argument as follows:

“The jury should never have been permitted to hear Appellant make his request, lest

they erroneously assume that ‘only guilty people refuse to talk to the police.’” We

pause to note that no one asserted at trial the issue in this case is about the invocation of

his right to remain silent, as the quote at the end of the conclusion in Kelly’s brief

implies. Rather, the question as presented to, and as understood by, the trial court was

whether the statement was taken in violation of article 38.22 and therefore should not

have been admitted. Indeed, the objection at trial was almost without regard to the

content of the statement. Whereas, the issue as briefed is only about a portion of the




Kelly v. State                                                                         Page 7
statement; that is, it is solely about those portions of the statement wherein Kelly

asserted a right to counsel.1

                                              CONCLUSION

        Thus, the argument presented on appeal does not comport with the objection at

trial, and therefore, nothing is presented for review. Kelly’s sole issue is overruled.

        The trial court’s judgment is affirmed.



                                                  TOM GRAY
                                                  Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 16, 2011
Do not publish
[CRPM]




1 We also agree with the State that because the audio portion of the videotape informs the jury of Kelly’s
level of impairment close in time to his operation of a motor vehicle, the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. See Griffith v. State,
55 S.W.3d 598 (Tex. Crim. App. 2001). And, no limiting instruction was requested.

Kelly v. State                                                                                        Page 8
