
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-04-031 CR

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KENNETH JOSEPH WHITE, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 284th District Court
Montgomery County, Texas

Trial Cause No. 03-11-08340-CR




MEMORANDUM OPINION (1)
 A jury found Kenneth Joseph White to be guilty of murder. (2)  After rejecting a
special issue on manslaughter, the jury found White to be a repeat offender and assessed
punishment at fifty years of confinement in the Texas Department of Criminal Justice and
a $5,000 fine.  On appeal, White raises two related issues.  First, he contends the trial
court committed reversible, fundamental error in failing to exclude a custodial videotape
of the defendant.  In the alternative, he argues trial counsel was ineffective in failing to
object to the videotape's admission into evidence.  We affirm.
	The videotape at issue in this appeal depicts the third of three interviews of the
defendant conducted in the course of the investigation of the death of the victim.  The
videotape, State's Exhibit No. 41, was admitted into evidence at trial without objection. (3) 
On appeal, White contends the videotape does not comply with statutory prerequisites that
Miranda warnings be provided to the accused and waived by him during the recording. 
See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2) (Vernon 1979 & Supp.
2005). (4)  The exhibit has been provided to the Court.  Despite the mediocre sound quality
of the recording, the interviewer can plainly be heard providing the warnings listed in
Article 38.22, § 2(a).  White visibly nods and vocalizes in a manner indicating his assent
to waiver of his rights. 

	Because the custodial statement satisfied the prerequisites of the statute, there could
be no error, fundamental or otherwise, in failing to exclude the exhibit on the ground
asserted by White on appeal.  An attorney's failure to object to admissible evidence does
not constitute ineffective assistance.  McFarland v. State, 845 S.W.2d 824, 846 (Tex.
Crim. App. 1992).  Issues one and two are overruled.  The judgment is affirmed.
	AFFIRMED.

							______________________________
								STEVE MCKEITHEN
								       Chief Justice
 
Submitted on March 1, 2005
Opinion Delivered March 9, 2005
Do Not Publish 

Before McKeithen, C.J., Gaultney and Horton, JJ.
1.   Tex. R. App. P. 47.4.
2.  At times, the record refers to the appellant as "Kenny Joe White." 
3.   By agreement, the sound was turned down for an unidentified period during the
publication of the exhibit to the jury. 
4.   See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 
