                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-12-00065-CR
                             _________________

                   STEPHEN ANDREW DUKE, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

________________________________________________________________________

                   On Appeal from the 128th District Court
                          Orange County, Texas
                        Trial Cause No. A-110343-R
________________________________________________________________________

                         MEMORANDUM OPINION

      In a single issue, appellant, Stephen Andrew Duke, appeals his conviction

for sexual performance by a child and promotion of child pornography. Duke

argues the trial court committed reversible error by denying his motion to suppress

evidence. We affirm the judgment of the trial court.

      Duke was convicted of one count of sexual performance by a child and two

counts of child pornography. See Tex. Penal Code Ann. §§ 43.25, 43.26 (West

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2011 & Supp. 2012). Duke was sentenced to thirty-five years of confinement for

sexual performance by a child and to twenty years confinement on each count of

promotion of child pornography, the sentences to run concurrently. In his sole

issue on appeal, Duke argues the trial court erred in denying his motion to suppress

and admitting a written statement he gave investigating officers. The trial court

held a separate hearing on his motion to suppress where the statement was the

subject of the hearing. At the conclusion of the hearing, the trial court denied the

motion. When the State offered the statement into evidence during the trial,

Duke’s counsel affirmatively stated that he had “[n]o objection” to the admission

of the statement.

      When the trial court overrules a pretrial motion to suppress evidence, a

defendant is not required to subsequently object at trial to the same evidence in

order to preserve error. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App.

1986); Klapesky v. State, 256 S.W.3d 442, 449 (Tex. App.—Austin 2008, pet.

ref’d). However, when a defendant affirmatively asserts during trial that he has

“no objection” to the admission of the complained-of evidence, he waives any

error in the admission of such evidence. Swain v. State, 181 S.W.3d 359, 368

(Tex. Crim. App. 2005); Moraguez, 701 S.W.2d at 904; Klapesky, 256 S.W.3d at



                                         2
449. Because Duke affirmatively stated that he had no objection to the challenged

statement, he waived any error in the admission of that statement.

      However, even if the issue had been preserved for our review, we find

Duke’s arguments on appeal to be without merit. The State presented evidence

from which the trial court could reasonably find that the written statement at issue

was provided by Duke. Duke argues that the statement, in which he admitted to

taking pornographic pictures of the five-year old victim with his cell phone, did not

meet the requirements of article 38.22 of the Texas Code of Criminal Procedure to

be admissible. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West 2005).

However, when a statement does not stem from a custodial interrogation, article

38.22 does not apply. Camarillo v. State, 82 S.W.3d 529, 535 (Tex. App.—Austin

2002, no pet.); Burruss v. State, 20 S.W.3d 179, 183 (Tex. App.—Texarkana 2000,

pet. ref’d.). Article 38.22 expressly states that it does not preclude the admission

of “a statement that does not stem from custodial interrogation, or of a voluntary

statement, whether or not the result of custodial interrogation, that has a bearing

upon the credibility of the accused as a witness, or of any other statement that may

be admissible under law.” Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (West

2005).



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         A person is in custody if, under the circumstances, a reasonable person

would believe that his freedom of movement was restrained to the degree

associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322-25,

114 S. Ct. 1526, 1528-30, 128 L. Ed. 2d 293, 298-99 (1994); see also Dowthitt v.

State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (recognizing four general

situations that may constitute custody for purposes of article 38.22). Duke was not

in custody at the time he gave the challenged statement. Duke did not contest the

officer’s testimony regarding the voluntary nature of the interview, or otherwise

contend that he was not free to leave during the interview.1 Because the statement

was not made as a result of a custodial interrogation, the trial court did not abuse

its discretion by failing to exclude the statement on the grounds that it was taken in

violation of any provision of article 38.22.

         We overrule Duke’s sole issue on appeal and affirm the judgment of the trial

court.


         1
        The evidence presented at the suppression hearing established that Duke
was free to leave at any time during the interview, and that the officer who
interviewed him brought him home after Duke gave his statement. At the
suppression hearing, Duke did not dispute the officer’s testimony regarding the
voluntary nature of the interview. Duke gave the voluntary statement on June 9,
2010, and was not indicted until June 1, 2011.


                                           4
      AFFIRMED.

                                             __________________________
                                                 CHARLES KREGER
                                                      Justice

Submitted on November 26, 2012
Opinion Delivered April 3, 2013
Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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