Affirmed and Memorandum Opinion filed May 7, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00371-CR


                  ANTHONY RAHMON SUTTON, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 180th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1320076


                  MEMORANDUM OPINION

      Appellant, Anthony Rahmon Sutton, appeals his conviction for possession
of a firearm by a felon. In two issues, appellant contends the trial court erred by
admitting appellant’s oral statements to police officers. We affirm.

                                 I. BACKGROUND

      Appellant was convicted in 2004 for the felony offense of aggravated
kidnapping and served a five-year sentence. On September 14, 2011, Bellaire
Police Sergeant Jeffrey Cotton stopped a car driven by appellant for a traffic
violation. Sergeant Cotton discovered appellant had a felony warrant. While
Sergeant Cotton was attempting to handcuff appellant, he fled on foot through an
adjacent neighborhood. After an extensive chase, which other officers joined,
Sergeant Cotton apprehended appellant. Sergeant Cotton returned to appellant’s
car, where another officer was guarding appellant’s two passengers. Sergeant
Cotton found a shotgun and an automatic rifle in an open case on the back seat.
All three occupants were taken to the police station.

      Shortly after appellant was booked, Corporal Christopher Barber handed
Sergeant Cotton three .38 caliber bullets which were found by children in the
neighborhood where appellant fled. Sergeant Cotton asked appellant about the
location of the gun. At first, appellant denied any knowledge of a gun. Sergeant
Cotton mentioned some children could find the gun and get hurt. Appellant then
described the general location where he threw a black revolver over a fence during
the chase. Sergeant Cotton asked where appellant obtained the revolver. He
replied, ―from a homeboy in [his] neighborhood.‖ Sergeant Cotton asked why
appellant had a shotgun and an automatic rifle in the car, considering his criminal
record. Appellant replied, ―I’m holding them for someone.‖ The officers searched
the area described by appellant and found a black .38 revolver.

      A jury found appellant guilty of possession of a firearm by a felon. The trial
court assessed punishment at six years’ confinement.

                                II. ANALYSIS

      In two issues, appellant contends the trial court erred by admitting (1) the
revolver, and (2) appellant’s statements regarding the revolver and the guns found
in his car. Appellant contends admission of this evidence violated his rights under
the Fifth Amendment to the United States Constitution, as recognized in Miranda
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v. Arizona, 384 U.S. 436, 478–79 (1966), and Texas Code of Criminal Procedure
article 38.22 because officers did not read appellant the warnings required under
Miranda or article 38.22.

A.    Appellant’s Statements

      We will first address appellant’s second issue concerning admission of his
oral statements. In Miranda, the United States Supreme Court held that the Fifth
Amendment to the United States Constitution prohibits use of an accused’s oral
statement made as result of custodial interrogation unless he is given certain
warnings and knowingly, intelligently, and voluntarily waives the rights set out in
the warnings. 384 U.S. 436, 478–79. Article 38.22, section 3(a) provides that no
oral statement of an accused made as a result of custodial interrogation shall be
admissible against him in a criminal proceeding unless (1) an electronic recording
meeting certain requirements is made of the statement, (2) ―prior to the statement
but during the recording the accused is given‖ certain warnings, and (3) the
accused ―knowingly, intelligently, and voluntarily waives the rights set out in the
warnings.‖ Tex. Code Crim. Proc. Ann. art. 38.22, §3(a) (West 2005). The
statutory warnings are virtually identical to the Miranda warnings plus one
additional warning. See id.; see also Herrera v. State, 241 S.W.3d 520, 526 (Tex.
Crim. App. 2007).

      It is undisputed appellant was in custody when he made the statements at
issue, officers did not give appellant the Miranda or statutory warnings, and the
statements were not recorded. However, appellant failed to preserve error on
either of his arguments because they do not comport with his objection at trial. See
Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002).



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       After voir dire, but before presentation of evidence, appellant objected
outside the jury’s presence that the statements did not comply with article 38.22,
section 3(a) because he was not given the requisite warnings and the statements
were not recorded. The State argued the statements were admissible under article
38.22, section 3(c), which provides,

       Subsection (a) of this section shall not apply to any statement which
       contains assertions of facts or circumstances that are found to be true
       and which conduce to establish the guilt of the accused, such as the
       finding of secreted or stolen property or the instrument with which he
       states the offense was committed.

Tex. Code Crim. Proc. Ann. art. 38.22 §3(c).                 Under this exception, ―oral
statements asserting facts or circumstances establishing the guilt of the accused are
admissible if, at the time they were made, they contained assertions unknown by
law enforcement but later corroborated.‖ Woods v. State, 152 S.W.3d 105, 117
(Tex. Crim. App. 2004). Appellant argued section 3(c) was not satisfied because
the location of the gun in the neighborhood was ―not totally unknown‖ to the
officers when appellant made his statements, considering they had recovered the
bullets.    The trial overruled the objection, remarking the statements were
admissible under section 3(c).

       On appeal, appellant does not urge the ground for his article 38.22 objection
presented at trial; he acknowledges the officers admitted they likely would not
have found the revolver absent appellant’s statement describing the location of the
revolver and asserting he threw it over a fence during the chase.1 Instead, appellant
now argues section 3(c) does not apply when officers have failed to give Miranda
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         Appellant does not expressly acknowledge that his additional assertions—he obtained
the revolver from a ―homeboy‖ and he was holding the shotgun and automatic rifle for
someone—were statements defined under subsection 3(c). However, ―if such an oral statement
contains even a single assertion of fact found to be true and conducive to establishing the
defendant’s guilt, then the statement is admissible in its entirety.‖ Woods, 152 S.W.3d at 117.

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or statutory warnings. We will address separately his Miranda/constitutional and
article 38.22 arguments because they constitute distinct complaints, each requiring
an appropriate objection. See Resendez v. State, 306 S.W.3d 308, 315 (Tex. Crim.
App. 2009).

      1.      Miranda/Constitutional Argument

      Appellant cites authority recognizing section 3(c) does not prescribe an
exception to the requirements of Miranda. See, e.g., Perillo v. State, 758 S.W.2d
567, 575 (Tex. Crim. App. 1988).        Nevertheless, appellant did not present a
Miranda/constitutional objection at trial. We acknowledge appellant’s counsel
asserted at one point that appellant was ―not Mirandized.‖          However, when
considered in context, counsel used the term ―Mirandized‖ as a generic reference
to the statutory warnings (as similar to the constitutionally-mandated Miranda
warnings) and made clear he was raising only an article 38.22 objection. See
Resendez, 306 S.W.3d at 313 (stating appellate court ―cannot consider just the
specific complaint in question‖ but ―must also look at the context‖ when
determining whether party preserved error).

      Specifically, at the hearing outside the jury’s presence, appellant made two
objections: (1) the article 38.22 complaint; and (2) an assertion the State did not
provide timely notice the statements led to recovery of the revolver (a contention
not reiterated on appeal). The trial court remarked, ―Let’s take those one at a time.
So your first objection would be that it doesn’t fit within the exception to
38.22(3)(c) --.‖ Appellant’s counsel responded, ―Yes.‖ Appellant argued only that
the particular facts did not satisfy the section 3(c) definition as though the
exception would apply if it were satisfied. Appellant never argued section 3(c)
was inapplicable because he was raising a Miranda/constitutional complaint.



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      After overruling the article 38.22 objection, the trial court allowed appellant
an extra day for preparation before the State could offer the statements in light of
appellant’s notice objection. Therefore, during direct examination of Sergeant
Cotton that day, the State did not mention the statements. The next day, appellant
re-urged his notice objection. Appellant’s counsel made clear his first objection
the previous day was based solely on article 38.22: ―I raised two issues initially.
The first one, of course, is being it didn’t comply with Article 38.22 Subsection
3(a).‖ In fact, counsel then argued, relative to his second objection, that if he had
been provided proper notice, he might have raised ―Miranda issues, Fifth
Amendment issues, whether there is other issues in regards to Subsection 38.22 or
38.23 . . . and, more importantly, whether or not it should be suppressed.‖ See
Tex. Code Crim. Proc. Ann. Art. 38.23(a) (West 2005) (―No evidence obtained by
an officer or other person in violation of any provisions of the Constitution or laws
of the State of Texas, or of the Constitution or laws of the United States of
America, shall be admitted in evidence against the accused on the trial of any
criminal   case.‖).     Thus,   appellant       represented   he   had   not   made   a
Miranda/constitutional objection the previous day. Alternatively, to the extent
appellant’s isolated reference the previous day to not being ―Mirandized‖ can be
construed as a Miranda/constitutional objection, he abandoned the objection by
representing the next day he was making no such complaint.
      The purpose of requiring a specific objection at trial is twofold: (1) to inform
the trial court of the basis of the objection and give it the opportunity to rule; and
(2) to give opposing counsel the opportunity to respond to the complaint.
Resendez, 306 S.W.3d at 312. To preserve error for appeal, a party must be
sufficiently specific to ―let the trial judge know what he wants, why he thinks
himself entitled to it, and do so clearly enough for the judge to understand him at a
time when the trial court is in a proper position to do something about it.‖ Id. at
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313. On the second day that the objections were discussed, Sergeant Cotton had
not yet testified regarding appellant’s statements. Thus, despite having overruled
the article 38.22 objection, the trial court was still in a position ―to do something
about it‖ if appellant had also made a Miranda/constitutional objection. Appellant
did not provide the trial court an opportunity to consider that section 3(c) would
not apply to a Miranda violation or the State an opportunity to argue a recognized
Miranda exception might apply. Accordingly, appellant failed to preserve error on
his Miranda/constitutional complaint. See Olson v. State, No. 14–06–00338–CR,
2007 WL 1745837, at *1 (Tex. App.—Houston [14th Dist.] June 19, 2007, no pet.)
(mem. op., not designated for publication) (holding motion in which defendant
asserted statement should be suppressed under article 38.22 did not preserve
appellate argument statement should be suppressed under federal and state
constitutions).

      2.     Article 38.22 Argument

      With respect to his article 38.22 argument, appellant suggests section 3(c)
applies only to the statutory requirement that an oral statement be recorded and not
to the requirement that a defendant be given the statutory warnings. Appellant also
failed to raise this contention at trial. His entire article 38.22 objection hinged on
his contention that section 3(c) was not satisfied under the facts of this case as
though it would provide an exception to the statutory-warnings requirement if it
were satisfied.

      Regardless, section 3(c) expressly prescribes an exception to the entire
section 3(a), which contains the requirement that the warnings be provided and
recorded. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c) (―Subsection (a) of
this section shall not apply to any statement [satisfying section 3(c)]‖); id. § 3(a).
Appellant relies on the following statement from the Court of Criminal Appeals in

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Perillo, which has subsequently been cited again by that court and other courts of
appeals: ―Miranda warnings must precede a statement offered under Article 38.22,
§ 3(c).‖ Perillo, 758 S.W.2d at 575; see also, e.g., Robertson v. State, 871 S.W.2d
701, 714 (Tex. Crim. App. 1993). However, considered in context, the Perillo
court articulated that the above-quoted statement applies when a Miranda
complaint is presented and section 3(c) is an exception to the statutory-warnings
requirement when no Miranda complaint is presented. See Perillo, 758 S.W.2d at
575. Specifically, after the above-quoted statement, the court continued, ―Nor does
appellant assert that Miranda has been transgressed. Because § 3(c) expressly
exempts confessions otherwise admissible under its terms from the statutorily
required warnings, we cannot conclude that Article 38.22, supra, has been
violated.‖ Id. (emphasis in original); see also Ex parte Stansbery, 702 S.W.2d 643,
647 (Tex. Crim. App. 1986) (op. on rehearing) (―In these circumstances, Section
3(c) exempts applicant’s oral statement from the warning requirements‖ of section
3(a)). Accordingly, the trial court did not abuse its discretion by determining
appellant’s statements were admissible under section 3(c) and overruling his article
38.22 objection. We overrule appellant’s second issue.

B.    The Revolver

      In his first issue, appellant contends the trial court erred by admitting the
revolver into evidence during trial. Appellant also failed to preserve error on this
complaint. At the hearings outside the jury’s presence, appellant’s objected to
admission of his oral statements regarding the revolver but not to admission of the
revolver itself. Additionally, appellant asserted ―no objection‖ when the State
offered the revolver during trial. Therefore, even if his objection outside the jury’s
presence may be construed as encompassing admission of the revolver, his
subsequent assertion waived any such complaint.          See Gearing v. State, 685

                                          8
S.W.2d 326, 329 (Tex. Crim. App. 1985), overruled on other grounds by Woods v.
State, 956 S.W.2d 33 (Tex. Crim. App. 1997). We overrule appellant’s first issue.

      We affirm the trial court’s judgment.


                                      /s/       John Donovan
                                                Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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