
                           NO. 07-09-0217-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                             JULY 27, 2010




                           RANDY WAYNE COOK,


                                 Appellant
                                   v.


                          THE STATE OF TEXAS,


                                 Appellee
                     _____________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

            NO. 14,972-B; HONORABLE JOHN B. BOARD, PRESIDING



                           Memorandum Opinion



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      Randy Wayne Cook appeals his conviction  for  aggravated   sexual
assault  of  a child and contends  that  he  should  have  received  an
instruction under art. 38.22 §6  of  the  Code  of  Criminal  Procedure
(regarding the voluntariness  of  his  statement).    We  disagree  and
affirm the judgment.
      Setting of Issue
      Appellant was accused of an offense  against  his  own  daughter.
During  trial,  recordings  of  two  telephone  conversations   between
appellant and the victim were played to the  jury.   A  police  officer
and a representative of Child Protective Services  (CPS)  were  present
during those  conversations.    Appellant  objected  at  trial  to  the
admission of the recordings because they were  made  at  a  CPS  office
which he asserted was an arm of the State and thus he should have  been
given Miranda warnings.   On appeal, he complains that he was  entitled
to an instruction to the jury pursuant to art. 38.22 §6 of the Code  of
Criminal Procedure.
      Resolution of Issue
      The Code of Criminal Procedure provides that in all cases where a
question is “raised as to  the  voluntariness  of  a  statement  of  an
accused,”  and  the  court  makes  an  independent  finding  that   the
statement was made  under  voluntary  conditions,  the  jury  shall  be
instructed “that unless [it] believes beyond a  reasonable  doubt  that
the statement was voluntarily made, the jury shall  not  consider  such
statement for any  purpose  nor  any  evidence  obtained  as  a  result
thereof.”  Tex. Code Crim. Proc. Ann. art. 38.22 §6 (Vernon 2005).   No
such instruction was requested by appellant.  Nor did he use the  words
“involuntary” or “voluntary” in any of  his  objections.   And,  except
for his mention of the need for Miranda warnings, nothing was  said  at
trial about the voluntariness or involuntariness of the statement.
      And, assuming arguendo that the mere allusion to the  absence  of
Miranda warnings is enough to place a trial judge on  notice  that  the
accused is questioning the voluntariness of his  statement,  the  basis
underlying the claim at bar  differs  from  that  mentioned  at  trial.
Here, appellant does not assert  that  his  statement  was  involuntary
because he was not Mirandized before  inculpating  himself  during  the
phone calls.[1]  Rather, he attacks the means by which  the  statements
were  obtained.   That  is,  he  posits  that   his   statements   were
involuntary because they emanated from a “ruse put into effect” by  the
State and the “overreaching” in which the State engaged.  That  alleged
“ruse”  and  “overreaching”  involved  his  belief   that   the   phone
conversations with his daughter were private when  she  and  the  State
knew they were being recorded.
      It is the defendant’s responsibility to delineate the  nature  of
his involuntariness claim.  Oursbourn v. State,  259  S.W.3d  159,  174
(Tex. Crim. App. 2008).  Moreover, we cannot “overturn a trial  court’s
decision on a legal theory not presented to the trial court.”   Vasquez
v. State, 225 S.W.3d 541, 543 (Tex. Crim. App. 2007).  Since the  legal
theory uttered here was not  asserted  below,  the  issue  was  waived.
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.  1995)  (stating
that an issue is waived when the complaint on appeal does  not  comport
with that made during trial).
      The judgment of the trial court is affirmed.

                                        Per Curiam

Do not publish.
-----------------------
      [1]This may be so because authority indicates that  participating
in a phone call is  not  tantamount  to  custodial  interrogation,  see
Jones v. State, No. 05-96-01415-CR, 1998 Tex. App.  Lexis  1241  at  *6
(Tex. App.–Dallas February 26, 1998, no pet.)  (finding  the  defendant
was not in custody when he returned the phone call of a  detective  and
responded to his questions since the defendant could have hung  up  and
refused to speak  to  the  officer),  and  art.  38.22  §3  applies  to
custodial interrogations.  Mermella v. State, No.  07-08-0419-CR,  2010
Tex. App. Lexis 4552 at *13-14 (Tex. App.–Amarillo June  16,  2010,  no
pet. h.).



