                                    NO. 12-16-00333-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

TOMMY JAMES COPELAND,                              §      APPEAL FROM THE
APPELLANT

V.                                                 §      COUNTY COURT AT LAW

THE STATE OF TEXAS,
APPELLEE                                           §      VAN ZANDT COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Tommy James Copeland appeals his conviction for driving while intoxicated. In a single
issue, Appellant contends the trial court erred when it failed to conduct a hearing under Article
38.22 of the Texas Code of Criminal Procedure. We affirm.


                                            BACKGROUND
       On February 9, 2014, Officer Nick Haley of the Grand Saline Police Department
responded to a call of a possible intoxicated driver. When he arrived on the scene, Officer Haley
found two vehicles stopped on State Highway 80. Officer Haley first met with Mr. Casillas.
Following the conversation, Officer Haley believed Mr. Casillas to be intoxicated and asked
dispatch to send additional law enforcement to his location.
       Officer Haley then spoke with Appellant, who had originally called and complained that
Casillas was driving while intoxicated. While speaking with Appellant, Officer Haley observed
that Appellant smelled of alcohol and had slurred speech. Officer Haley instructed Appellant to
exit his vehicle and sit on the tailgate while they waited for a trooper to arrive.
       When Texas State Trooper Matthew Skinner arrived on scene, he began questioning
Appellant. As part of his investigation, Trooper Skinner asked Appellant several questions and
recorded the answers on a form entitled “DWI Interview with Legal Warnings.” Appellant
refused to sign the form. At trial, the State offered the interview into evidence. Appellant
objected and stated that the exhibit violated Article 38.22 because Appellant did not sign it. The
trial court overruled his objection.
       The jury found Appellant “guilty” of DWI as charged in the information and sentenced
him to thirty days confinement and a $1,000 fine. The trial court suspended the sentence and
placed Appellant on community supervision for one year. This appeal followed.


                                       ARTICLE 38.22 HEARING
       In his sole issue, Appellant contends the trial court erred in failing to conduct a hearing on
the voluntariness of the statements in Trooper Skinner’s interview form.
Standard of Review and Applicable Law
       An accused’s statement may be used in evidence if it was freely and voluntarily made
without compulsion or persuasion. TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005). The
defendant may claim that a statement was not freely and voluntarily made and thus may not be
used as evidence under (1) Article 38.22, section 6 (general voluntariness); (2) Miranda as
expanded in Article 38.22, sections 2 and 3 (the Texas confession statute); or (3) the Due Process
Clause. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). Claims of
involuntariness under Article 38.22 can be, but need not be, predicated on police overreaching,
and they can involve sweeping inquiries into the defendant’s state of mind. Id. at 172. Article
38.22 is aimed at protecting suspects from police overreaching, but may also be construed as
protecting people from themselves because the focus is on whether the defendant’s statement was
voluntary. Id.
       When a question is raised as to the voluntariness of a defendant’s statements, the trial
court must make an independent finding in the absence of the jury as to whether the statement was
made under voluntary conditions. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6 (West Supp. 2016).
If the trial court finds that the statement was voluntary and holds it admissible as a matter of law
and fact, it must enter an order stating its conclusion as to whether the statement was voluntarily
made, along with the specific findings of fact upon which the conclusion was based. Id.
       “Voluntariness is decided by considering the totality of the circumstances under which the
statement was obtained.” Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). “The
ultimate question is whether the suspect’s will was overborne.” Id. Circumstances relevant to



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determining whether a defendant’s will has been overborne include the length of detention,
incommunicado or prolonged interrogation, denying family access to a defendant, refusing a
defendant’s request to telephone a lawyer or family, and physical brutality. See Armstrong v.
State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985); see also Bell v. State, 169 S.W.3d 384, 391
(Tex. App.—Fort Worth 2005, pet. ref’d).
Analysis
       In his sole issue, Appellant contends the trial court was required to conduct a hearing
outside of the presence of the jury when he objected to the admissibility of the interview form.
       Under Article 38.22, the trial court is required to make an independent finding as to
whether a defendant’s statement was made under voluntary conditions when such a question is
raised. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6. However, the court’s duty to hold a hearing
under Article 38.22 is triggered only when the accused raises a timely objection to the
introduction of the statement as evidence. Ross v. State, 678 S.W.2d 491, 492-93 (Tex. Crim.
App. 1984). Generally, in order to preserve an appellate complaint about an alleged trial error, a
party must have made the complaint known to the trial court by a timely request, 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, unless the specific
grounds were apparent from the context.” TEX. R. APP. P. 33.1(a). And an appellant may not raise
an issue on appeal that does not comport with his objection at trial. Swain v. State, 181 S.W.3d
359, 367 (Tex. Crim. App. 2005).
       At trial, when the State asked Trooper Skinner about recording his questions posed to
Appellant, defense counsel objected, “Your Honor, I’m going to object to him going into this
particular matter. It’s a clear violation of Article 38.22.” He further explained, “Your Honor, in
this situation, any statement my client made must be reduced to writing, and it wasn’t done so.”
When the State expressed its intent to offer the interview form into evidence, Appellant stated:


       Your Honor, Article 38.22 is clear. It’s got to be in writing, signed by the accused or makes his
       mark. In this particular document, he didn’t sign it and he didn’t make his mark; therefore, it’s not
       admissible.


The trial court overruled the objection. Subsequently, counsel objected as follows:




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         Your Honor, I would object to the document because, again, it doesn’t comport with Article 38.22
         specifically. It’s not signed by the accused or made his mark. And under Article 38.22 of the Code
         of Criminal Procedure, that’s a clear requirement on any statement that is written or -- unless it’s
         recorded, and he has no recorded statement here.


         Accordingly, the record does not show that Appellant objected to admissibility of the
interview form on the basis that it contained Appellant’s involuntary statements. Rather, the sole
basis of Appellant’s objection was that the document was unsigned. Where an appellant makes an
objection in the trial court to the admissibility of a confession different from the one on appeal, no
error is preserved. Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988). Moreover,
Article 38.22 expressly states that the trial court must make independent findings “where a
question is raised as to the voluntariness of a statement of an accused[.]” TEX. CODE CRIM. PROC.
ANN. art. 38.22 § 6 (emphasis added). The court of criminal appeals has held that a trial court
does not err by failing to make findings of fact and conclusions of law on the issue of
voluntariness when the appellant never specifically raised the issue. See Lindley v. State, 635
S.W.2d 541, 544 (Tex. Crim. App. 1982); see also Hartfield v. State, 28 S.W.3d 69, 72 (Tex.
App.—Texarkana 2000, pet. ref’d) (section six of Article 38.22 only applies when voluntariness is
an issue before the trial court, whereas the appellant’s “contention was only that he did not have
the opportunity to read his oral statement and that in and of itself does not challenge the
voluntariness of the statement[]”). Because Appellant did not object to the voluntary nature of the
statements at trial, the trial court’s duty to conduct an Article 38.22 hearing and make independent
findings was not triggered, and Appellant has not preserved the issue of voluntariness for appeal.
See Swain, 181 S.W.3d at 367; see also Little, 758 S.W.2d at 564; Ross, 678 S.W.2d at 492-93;
Lindley, 635 S.W.2d at 544; Hartfield, 28 S.W.3d at 72; TEX. R. APP. P. 33.1(a). We overrule
Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                         JAMES T. WORTHEN
                                                                            Chief Justice

Opinion delivered September 20, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

                                              (DO NOT PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 20, 2017


                                         NO. 12-16-00333-CR


                                  TOMMY JAMES COPELAND,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the County Court at Law
                        of Van Zandt County, Texas (Tr.Ct.No. 2014-00524)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
