                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-13-00335-CR
                                 ________________________

                            JEREMY CHAD BRAUN, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 181st District Court
                                      Randall County, Texas
                  Trial Court No. 23,926-B; Honorable John B. Board, Presiding


                                           May 21, 2015

                               MEMORANDUM OPINION
                     Before CAMPBELL and HANCOCK and PIRTLE, JJ.


          Appellant, Jeremy Chad Braun, was convicted following a jury trial of theft of

property (copper wire) having a value of less than $20,0001 and was sentenced to one

year confinement. In a single issue, Appellant asserts the trial court erred by admitting

Appellant’s unrecorded oral statements to law enforcement prior to his arrest. We

affirm.

          1
           See TEX. PENAL CODE ANN. § 31.03(e)(4)(F) (West Supp. 2014). An offense under this section
is a state jail felony.
                                             BACKGROUND


      In March 2013, a grand jury returned an indictment that alleged, “on or before

November 9, 2012 . . . [Appellant] did then and there intentionally and knowingly, with

intent to deprive the owner, David Pace, of property, namely: copper, unlawfully

appropriate, by acquiring and otherwise exercising control over, such property which

had a value of less than $20,000, without the effective consent of the owner.” On

October 11, 2013, Appellant filed a Motion to Prohibit the State from Attempting to

Introduce Statements Allegedly Made by the Defendant Without a Prior Hearing on

Admissibility. Appellant’s motion was directed at oral statements made to the police

and was broadly premised on the United States Constitution, Texas Constitution,

articles 38.21, 38.22, and 38.23 of the Texas Code of Criminal Procedure, and the

hearsay rules of the Texas Rules of Evidence.


      At a pretrial hearing and at trial, Officer Caleb McCarrell testified that on

November 9, 2012, he observed a white male wearing a black t-shirt inside a fenced-in

construction site late in the evening. He made a second pass and observed two males

outside the fenced-in construction site and identified Appellant as the white male in the

black t-shirt he had earlier observed within the construction site. He identified himself

as a police officer and asked them for identification. He patted them down for safety

reasons2 and discovered a pair of wire cutters and a small flashlight in Appellant’s

pockets. Looking along the fence line, Officer McCarrell saw a white, plastic spool

containing yellow wire. The spool was outside the fence where Appellant was standing.




      2
          The area was dimly lit and he was riding solo.
                                                     2
       Officer McCarrell then engaged in a conversation with Appellant. Appellant was

not handcuffed and Officer McCarrell testified he was conducting an investigation. In

response to a question asking what the spool was, Appellant said he obtained the spool

out of a trash pile. After Officer McCarrell observed that there were no trash piles in the

vicinity, Appellant motioned toward the construction site and indicated he obtained it

from a trash pile on the south side. Officer McCarrell placed Appellant under arrest, put

him in handcuffs, and asked him no further questions.           He released the second

individual.


       After Officer McCarrell’s testimony, Appellant’s counsel informed the court that

he wanted to renew his objection to any testimony by Officer McCarrell regarding

statements made by Appellant prior to his arrest. He stated that “[a]lthough the original

Motion was based on that he could’ve been in custody at the time, [he] would now

renew that objection, but make it based on it doesn’t fall within any of the hearsay

objections.” (Emphasis added.) During trial, Appellant’s counsel objected to Officer

McCarrell’s testimony related to Appellant’s statements stating “[y]our Honor, we’ll

object based on hearsay.” The trial court denied Appellant’s motion and overruled his

objection at trial.


       A jury found Appellant guilty of theft of copper wire and he was sentenced to one

year confinement. This appeal followed.


                                        ISSUE ONE


       Appellant asserts the trial court erred in admitting his answers to Officer

McCarrell’s questions because he was undergoing a custodial interrogation in the


                                            3
absence of being “Mirandized” in violation of federal and state law.         See generally

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966); TEX. CODE

CRIM. PROC. ANN. art. 38.22, § 3 (West Supp. 2014). We find Appellant did not preserve

this error for purposes of appeal.


       Preservation of error is a systemic requirement on appeal. Ford v. State, 305

S.W.3d 530, 532 (Tex. Crim. App. 2009). A reviewing court should not address the

merits of an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d

452, 473-74 (Tex. Crim. App. 2010). To preserve a complaint for appellate review, a

party must have presented a specific and timely request, motion, or objection to the trial

court and, further, must have obtained an adverse ruling. TEX. R. APP. P. 33.1(a); Pena

v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). Even constitutional rights may

be waived if the proper objection is not asserted in the trial court. Saldano v. State, 70

S.W.3d 873, 886-87 (Tex. Crim. App. 2002). See Clark v. State, 365 S.W.3d 333, 339

(Tex. Crim. App. 2012). Further, the point of error on appeal must comport with the

objection made at trial. Clark, 365 S.W.3d at 339.


       Here, the issue raised by Appellant at the pretrial hearing and later at trial do not

comport with the issue presented on appeal. There is nothing in the record to indicate

that either the judge or the prosecutor understood Appellant’s complaint to be that

Appellant was not provided any constitutional warnings at the time Officer McCarrell

questioned him. Instead, his objections at the pretrial hearing and later at trial were

based on evidentiary rules, specifically hearsay. Presenting one legal theory in the trial

court will not preserve a different legal theory on appeal.      See Wilson v. State, 71

S.W.3d 346, 349-50 (Tex. Crim. App. 2002); Wright v. State, 374 S.W.3d 564, 575-76

                                             4
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Accordingly, Appellant’s single issue

is overruled. Clark, 365 S.W.3d at 339-40.


      Furthermore, even if Appellant’s complaint was preserved, the record supports

the trial court’s implicit conclusion that Appellant was not in custody at the time the

questioned statements were made and thus, no Miranda warnings were necessary. No

one disputes that Officer McCarrell had sufficient reasonable suspicion to conduct an

investigation into the facts and circumstances surrounding the late evening presence of

individuals at a construction site. Nor does Appellant contend that he was physically

restrained in any other meaningful manner at the time he made the statements in

question. Furthermore, Officer McCarrell’s inquiries were of the kind normally permitted

during the pendency of an investigatory detention of like ilk.       Therefore, because

Appellant’s liberty was not unreasonably restrained prior to his making of statements

that tended to connect him to the incriminating copper wire outside the enclosed

construction site, no Miranda warning were required at that time.


                                      CONCLUSION


      The trial court’s judgment is affirmed.




                                                 Patrick A. Pirtle
                                                    Justice


Do not publish.




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