Affirmed; Opinion Filed July 31, 2019.




                                                        In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas
                                               No. 05-18-00882-CR

                                       JULIO OROZCO, Appellant
                                                 V.
                                     THE STATE OF TEXAS, Appellee

                            On Appeal from the 397th Judicial District Court
                                        Grayson County, Texas
                                    Trial Court Cause No. 067259

                                    MEMORANDUM OPINION
               Before Chief Justice Burns, Justice Whitehill, and Justice Partida-Kipness
                                  Opinion by Justice Partida-Kipness

          Appellant, Julio Orozco, was charged by indictment with three counts of invasive visual

recording. A jury convicted Orozco of the offense as alleged in Count 2 of the indictment. 1 The

trial court assessed punishment at eighteen months’ confinement in a state jail. On appeal, Orozco

challenges the trial court’s denial of his motion to suppress contending that the search warrant

affidavit failed to comply with the requirements of article 18.0215(c) of the code of criminal

procedure. We affirm. Because the issues are settled in law, we issue this memorandum opinion.

See TEX. R. APP. P. 47.4.




   1
       At the close of evidence, the State elected to go forward only on the allegations contained in Count 2.
                                         BACKGROUND

       Count 2 of the indictment alleged that on or about December 1, 2015, Orozco, with the

intent to invade the privacy of R.M., and without the effective consent of R.M., recorded by

electronic means a visual image of R.M. in a bathroom. Luisa Mendez, Orozco’s wife, testified

that she found a cell phone that contained videos of her three children in the bathroom in the

vehicle Orozco used for work. Mendez confiscated the phone and turned it over to officers of the

Sherman Police Department. Orozco admitted to his wife that he had placed a cell phone in the

family bathroom. Orozco also admitted to the police that he had placed a recording device in his

family’s bathroom. During trial, the video and photographic evidence extracted from the cell

phone was admitted into evidence over Orozco’s objection.

                                            ANALYSIS

       In his sole issued on appeal, Orozco contends the trial court erred by denying his motion

to suppress the video and photographic evidence extracted from the cell phone. The record shows

that the evidence was extracted from the cell phone pursuant to a search warrant issued by a

magistrate. Orozco argues the search warrant was invalid because the affidavit failed to comply

with the requirements of article 18.0215(c) of the code of criminal procedure since it did not

include any reference to the applicant’s address. See TEX. CODE CRIM. PROC. art. 18.0215(c)(1).

       As an appellate court, we generally review a trial court’s ruling or an objection to its refusal

to rule. See TEX. R. APP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.

2004). “The two main purposes of requiring a specific objection are to inform the trial judge of

the basis of the objection so that he has an opportunity to rule on it and to allow opposing counsel

to remedy the error.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). This is called

preservation of error and “is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d 530,

532 (Tex. Crim. App. 2009) (footnote omitted). To preserve a complaint for our review, a party

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must have presented to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context. See TEX. R. APP. P.

33.1(a)(1). We are not hyper-technical in examination of whether error was preserved, but a

complaint on appeal must comport with the complaint made at trial. See Bekendam v. State, 441

S.W.3d 295, 300 (Tex. Crim. App. 2014). If an issue has not been preserved for appeal, we should

not address it. Clark, 365 S.W.3d at 339. This is because if an appellant fails to preserve a

complaint nothing is presented for our review. See Sterling v. State, 800 S.W.2d 513, 521 (Tex.

Crim. App. 1990) (“Generally, error must be presented at trial with a timely and specific objection,

and any objection at trial which differs from the complaint on appeal preserves nothing for

review.”).

       During the hearing on the motion to suppress, counsel objected as follows:

              THE COURT: All right. What specifically in the affidavit do you feel is
       inadequate?

              [APPELLANT’S COUNSEL]: Your Honor, in – this search warrant was
       executed on February 2, 2016. And on September 1, 2015, five months earlier, a
       new statute had gone into effect. We would ask the Court to take judicial notice of
       CCP Article 18.0215. I have a copy for the Court if you would like?

               THE COURT: I would like, yes, sir.

               [APPELLANT’S COUNSEL]: Your Honor, the highlighted portions there
       will show you the new items in this particular statute. This statute addresses
       specifically access to cellular telephones or wireless communication devices, which
       would be the case here. It required they put in specifically language that said that
       the application must use – must provide the department agency an address of the
       applicant. And further it requires under a “must” that the judicial – that the
       applicant state the judicial district in which either the law enforcement agency that
       holds the phone is located or where the phone is likely to be located. And this –
       the affidavit the State contends contains neither, as far as we can tell.

               THE COURT: What says the State?




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               [PROSECUTOR]: First of all, Your Honor, I would draw your attention to
       paragraph A of the Code, Your Honor, that defense counsel has just handed you,
       18.0215. The State argues 18.0215 doesn’t even apply to the situation, Your Honor,
       because this is – in situations where it’s pursuant to the lawful arrest of the person.
       This was not a case in which the defendant was arrested and then his phone was
       taken from him. This was a situation where the phone was given consensually by
       the defendant’s wife who was in possession of the phone.

               THE COURT: The Court would like to see a copy of the search warrant.

               [PROSECUTOR]: Including the affidavit, Your Honor?

               THE COURT: Yes, ma’am, please.

               Thank you.

               All right. From the movant’s position, what specifically – are you talking
       about the address of the Sherman Police Department? You think that’s –

               [APPELLANT’S COUNSEL]: Your Honor, portions of the address appear
       in the affidavit. And there is no – I mean, it says the street name and it says the city
       of the police department. But specifically the judicial district in which the officer’s
       employed or where the phone will be located is not identified.

               THE COURT: That’s the only question?

               [APPELLANT’S COUNSEL]: Yes, Your Honor.

               THE COURT: All right. The Court having heard the evidence is of the
       opinion that this search warrant and affidavit substantially complies, unless you
       have some case law that indicates that the state judicial district is necessary. I have
       a feeling that’s . . .

               [APPELLANT’S COUNSEL]: No, Your Honor, other than the statute’s
       use of the term “must” indicates a strict compliance.

               THE COURT: I think that’s ambiguous. Are you talking about the district
       court or the administrative district? You know, I don’t see where that – that does
       not – that’s not specific enough to avoid substantial – the doctrine of substantial
       compliance. So the court will, having heard the evidence, made a docket notation
       the Motion to Suppress is overruled.

       Based upon the above exchange between appellant’s counsel and the trial court, counsel’s

objection at trial goes to the failure of the affidavit to include the judicial district in which the

officer is employed. Orozco’s complaint on appeal is that the affidavit “reveals no reference to

the address of the applicant.” At trial, defense counsel did not object on this basis. During the

                                                –4–
hearing on the motion to suppress, counsel initially referenced the language in article 18.0215

requiring the department agency and address of the applicant. However, when the trial court asked

if counsel was talking about the address of the Sherman Police Department, counsel acknowledged

that portions of the address appeared in the affidavit, i.e., the street name and the city where the

police department was located. Counsel then went on to say that what was specifically missing

was the judicial district in which the officer was employed. The trial court then asked if that was

counsel’s only question about the affidavit, to which counsel responded, “Yes, Your Honor.”

When the evidence was offered at trial, counsel merely reurged his pretrial objections. Under these

circumstances, we conclude that Orozco’s complaint on appeal was not preserved for appellate

review because it does not comport with his objection at trial. We overrule Orozco’s sole issue.

                                         CONCLUSION

       We affirm the trial court’s judgment.




                                                   /Robbie Partida-Kipness/
                                                   ROBBIE PARTIDA-KIPNESS
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2
180882F.U05




                                                –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JULIO OROZCO, Appellant                              On Appeal from the 397th Judicial District
                                                      Court, Grayson County, Texas
 No. 05-18-00882-CR         V.                        Trial Court Cause No. 067259.
                                                      Opinion delivered by Justice Partida-
 THE STATE OF TEXAS, Appellee                         Kipness, Chief Justice Burns and Justice
                                                      Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 31st day of July, 2019.




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