Opinion issued December 19, 2019.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00774-CR
                           ———————————
                         ADRIAN GOMEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Case No. 1405348


                         MEMORANDUM OPINION

      Adrian Gomez was convicted of murder and sentenced to confinement for

life. See TEX. PENAL CODE § 19.02. In a single issue, Gomez contends that the trial

court abused its discretion in denying his motion to suppress his custodial

statement. Because Gomez’s argument on appeal does not comport with the
objection he made at trial, we hold that Gomez failed to preserve error for appellate

review. Therefore, we affirm.

                                   Background

      In the fall of 2013, Gomez attempted to rob a taco truck in Harris County,

Texas. During the altercation, Gomez shot and killed the truck’s owner. Gomez

fled the scene and was later apprehended in Madison County, Texas, where he

made his initial appearance before a local magistrate.

      At the initial appearance, the magistrate informed Gomez that he had been

charged with capital murder and provided him with a statutory magistrate’s

warning. See TEX. CODE CRIM. PROC. art. 15.17. The magistrate read each warning

from a magistrate’s warning form. She went through the warnings on the form line

by line, checking each after Gomez stated that he understood it. The magistrate

checked the line on the form indicating that Gomez requested that he be appointed

an attorney and noted in handwriting that Gomez would make the request “at

Harris Co.” Gomez reviewed and signed the form.

      Gomez was then transported back to Harris County, where he was

interrogated by a police officer investigating the shooting. Before the interrogation

began, the officer read Gomez a statutory interrogation warning. See id. art. 38.22,

§§ 2–3. Gomez then waived his rights and confessed to the murder.




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      Before trial, Gomez moved to suppress his custodial statement, arguing that

the statement violated Code of Criminal Procedure, article 38.22, because the

interrogation was initiated and conducted after he had already requested that he be

appointed counsel at his initial appearance. See id. art. 38.22, §§ 2(a)(3), (b),

3(a)(2). Gomez asserted that by requesting counsel at his initial appearance, he

invoked his right to have a lawyer present to advise him before and during any

custodial interrogation. See id. art. 38.22, § 2(a)(3). And, as a result, Gomez

claimed, the waiver he made before his interrogation—and outside the presence of

counsel—was involuntary.

      The State responded that Gomez’s motion rested on caselaw that had been

abrogated by the United States Supreme Court in Montejo v. Louisiana, 556 U.S.

778 (2009). Under existing law, the State explained, Gomez’s request for counsel

at his initial appearance did not constitute an invocation of his right to counsel at

future custodial interrogations initiated by the police. See Pecina v. State, 361

S.W.3d 68, 78 (Tex. Crim. App. 2012) (“Distilled to its essence, Montejo means

that a defendant’s invocation of his right to counsel at his Article 15.17 hearing

says nothing about his possible invocation of his right to counsel during later

police-initiated custodial interrogation.”); Williams v. State, 531 S.W.3d 902, 915

(Tex. App.—Houston [14th Dist.] 2017) (“Under Montejo, appellant’s request for

counsel at an arraignment has no effect on the invocation of his right to counsel


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during later police-initiated custodial interrogation.”), aff’d, 585 S.W.3d 478 (Tex.

Crim. App. 2019). The trial court agreed, found that Gomez knowingly,

intelligently, and voluntarily waived his rights, and denied the motion.

      The case then proceeded to trial. The jury convicted Gomez of murder, and

the trial court sentenced Gomez to confinement for life.

      Gomez appeals.

                              Preservation of Error

      In his sole issue, Gomez argues that the trial court abused its discretion in

denying his motion to suppress his custodial statement because the magistrate

failed to comply with Code of Criminal Procedure, article 15.17, at Gomez’s initial

appearance, thereby rendering his subsequent custodial statement involuntary and

thus inadmissible.

      Under Texas law, the term “initial appearance” is used to describe the

proceeding at which an arrestee is first brought before a magistrate. See Pecina,

361 S.W.3d at 77. It is governed by Code of Criminal Procedure, article 15.17.

      Article 15.17 begins by providing that the arresting officer “shall without

unnecessary delay . . . take the person arrested . . . before some magistrate” to

make his initial appearance. TEX. CODE CRIM. PROC. art. 15.17(a). Article 15.17

then sets forth the duties of the magistrate at the initial appearance and

immediately afterward. Id. These duties primarily consist in providing the arrestee


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with a detailed set of warnings, many of which are similar to those that an officer is

required to provide before a custodial interrogation under article 38.22. Compare

id., with id. art. 38.22, §§ 2(a), 3(a)(2).

       In addition to providing these warnings, article 15.17 imposes various other

duties on the magistrate, some of which are without analogue under article 38.22.

As relevant here, article 15.17 provides that the magistrate “shall allow the person

arrested reasonable time and opportunity to consult counsel.” Id. art. 15.17(a).

Gomez construes this part of article 15.17 as requiring the magistrate to allow the

arrestee reasonable time and opportunity to consult with an attorney at the initial

appearance. Gomez argues that the magistrate violated this part of article 15.17 by

failing to offer Gomez the opportunity to speak with an attorney in Madison

County before the police transported him back to Harris County.

       The State responds that Gomez failed to preserve this complaint for

consideration on appeal. We agree.

       To preserve a complaint for appellate review, the complaining party must

normally make a timely and specific objection and obtain a ruling from the trial

court. TEX. R. APP. P. 33.1(a); Bekendam v. State, 441 S.W.3d 295, 300 (Tex.

Crim. App. 2014). Although we are not “hyper-technical” in determining whether

error was preserved, “the point of error on appeal must comport with the objection

made at trial.” Bekendam, 441 S.W.3d at 300. Thus, “[a]n objection stating one


                                              5
legal theory [at trial] may not be used to support a different legal theory on

appeal.” Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting

Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)).

      Here, Gomez’s argument on appeal does not comport with the objection

made at trial. At trial, Gomez argued that he invoked his right to counsel at his

initial appearance and that the investigating officer therefore violated article 38.22

when he later conducted a custodial interrogation outside the presence of Gomez’s

counsel. On appeal, by contrast, Gomez argues that the magistrate violated article

15.17 by failing to allow Gomez reasonable time and opportunity to consult

counsel in Madison County before the police transported him back to Harris

County.

      Thus, Gomez’s legal theory on appeal is different from his legal theory at

trial. The two theories are based on different laws (article 15.17 and article 38.22)

imposing duties on different parties (the magistrate and the investigating officer) at

different proceedings (the initial appearance and the custodial interrogation).

      Assuming without deciding that Gomez has correctly construed and applied

article 15.17, we hold that Gomez has failed to preserve his complaint for appellate

review. See, e.g., Mbugua v. State, 312 S.W.3d 657, 666–67 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d) (holding that defendant did not preserve complaint




                                          6
regarding admissibility of custodial statement in part because complaint on appeal

did not comport with grounds argued in motion to suppress).

      Gomez contends that the admission of his custodial statement constituted

fundamental error that can be considered by this Court even without an objection

raised in the trial court. We disagree.

      It is well-established that complaints regarding the improper admission of

evidence, such as a defendant’s custodial statement, must be objected to at trial to

be preserved for consideration on appeal. See Saldano v. State, 70 S.W.3d 873, 890

(Tex. Crim. App. 2002) (“Because the appellant did not object to the admission of

the testimony of which he now complains, the question he seeks to present has not

been preserved for review on appeal.”); Martinez v. State, 22 S.W.3d 504, 507

(Tex. Crim. App. 2000) (“To preserve error regarding the admission of evidence, a

defendant must lodge a timely and specific objection . . . to give the trial court . . .

the opportunity to correct the error . . . .”); Mbugua, 312 S.W.3d at 666–

67 (holding that defendant did not preserve complaint regarding admissibility of

custodial statement because complaint on appeal did not comport with grounds

argued in motion to suppress).

      We overrule Gomez’s sole issue.




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                                   Conclusion

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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