                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-19-00053-CR

                                         Robert GARCIA, Jr.,
                                              Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 399th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2017CR13227
                              Honorable Frank J. Castro, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 22, 2020

AFFIRMED

           Appellant Robert Garcia, Jr. appeals his conviction of burglary of a habitation. In his sole

issue on appeal, Garcia contends the trial court erred in admitting his recorded statement in

violation of article 38.22 of the Texas Code of Criminal Procedure. We overrule Garcia’s sole

issue on appeal and, consequently, affirm the trial court’s judgment.

                                             BACKGROUND

           On September 7, 2017, Garcia was arrested for the suspected burglary of Josephine

Duckett’s residence. Several items had been stolen from Duckett’s residence including a wooden
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box which held Duckett’s deceased husband’s ashes. While in custody at police headquarters,

Detective Robert Cavazos of the San Antonio Police Department interviewed Garcia. The

interview was video recorded. In the video recording, Garcia confessed to the burglary of

Duckett’s residence. Garcia was indicted on the offense of burglary of a habitation. The

indictment also included a repeat offender enhancement.

       Garcia’s recorded statement was admitted at trial. Following a trial by jury, Garcia was

found guilty of burglary of a habitation. The trial court sentenced Garcia to confinement for

seventy-five years. Garcia now appeals, arguing in a single issue that the trial court erred by

admitting his recorded statement in violation of article 38.22 of the Texas Code of Criminal

Procedure.

                          STANDARD OF REVIEW AND APPLICABLE LAW

       A trial court’s ruling on the admissibility of evidence is reviewed under an abuse-of-

discretion standard. Cameron v. State, 988 S.W.2d 835, 844 (Tex. App.—San Antonio 1999, pet.

ref’d) (citing Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (op. on reh’g)).

A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to

guiding rules and principles. Id.

       Section 3(a) of article 38.22 of the Texas Code of Criminal Procedure provides specific

rules that govern the admissibility of an accused’s oral statements that are the product of custodial

interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a). An oral statement made as a

result of custodial interrogation is inadmissible against the accused unless: (1) the statement was

recorded electronically; (2) during the recording, but prior to the accused’s statement, the accused

was given the warnings enumerated under article 38.22, section 2(a) and “the accused knowingly,

intelligently, and voluntarily waive[d] any rights set out in the warning[s]; (3) the recording device

was capable of making an accurate recording, the operator was competent, and the recording is


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accurate and has not been altered; (4) all voices on the recording are identified;” and (5) the

accused’s attorney was provided with an accurate copy of the recording. Id. All portions of section

3(a) must be strictly complied with. Woods v. State, 152 S.W.3d 105, 116 (Tex. Crim. App. 2004).

       Garcia contends section 3(a) of article 38.22 was not strictly complied with because

Detective Cavazos failed to testify that the recording device was capable of making an accurate

recording, that the operator was competent, and that the recording was accurate and had not been

altered. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(3). Garcia contends Detective

Cavazos also failed to identify all the voices on the recording. See id. § 3(a)(4).

                                    PRESERVATION OF ERROR

       As a prerequisite to presenting a complaint for appellate review, the record must show the

complaint was made to the trial court by timely objection. TEX. R. APP. P. 33.1(a)(1). If the

complaint presented on appeal does not comport with the objection made at trial, the complaint is

forfeited, and nothing is preserved for our review. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012).

       At trial, Garcia’s counsel objected to the admissibility of a portion of Garcia’s recorded

statement on the basis that “there’s one mention of Mr. Garcia trying to ingest the ashes from the

box, and that has nothing to do with the burglary. And it’s our position that the introduction of it

is to evoke sympathy from the jury and we’d ask to take that one snippet out about him ingesting

the ashes.” The trial court overruled that objection. As Detective Cavazos was testifying to

Garcia’s recorded statement, the State asked Detective Cavazos if there was any reason to doubt

that Garcia’s recorded confession was legitimate. Garcia’s counsel made an objection on the basis

of speculation, which the trial court overruled. Garcia’s counsel made no further objections during

Detective Cavazos’s testimony.




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       Nowhere in the record does it show that Garcia’s counsel objected to the admissibility of

Garcia’s recorded statement on the basis that the recording device was incapable of making an

accurate recording, that the operator was incompetent, or that the recording was inaccurate and

had been altered. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (stating that in

order for the objecting party to preserve error, the objecting party must specifically “let the trial

judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the

judge to understand him at a time when the judge is in the proper position to do something about

it”). Nor did Garcia’s counsel object to the admissibility of Garcia’s recorded statement on the

basis that the voices on the recording had not been identified. Because Garcia’s complaint on

appeal does not comport with the objections Garcia’s counsel made at trial, Garcia has forfeited

his sole complaint on appeal. See Clark v. State, 365 S.W.3d at 339. Thus, any alleged error in

the admissibility of Garcia’s recorded statement on the basis of section 3(a) of article 38.22 of the

Texas Code of Criminal Procedure is not preserved for our review. See Parker v. State, No. 02–

12–00348–CR, 2013 WL 2248254, at *2 (Tex. App.—Fort Worth May 23, 2013, pet. ref’d) (mem.

op., not designated for publication) (holding the appellant failed to preserve error when appellant’s

trial counsel failed to make a specific objection on the basis that the voices on the recording had

not been identified). Accordingly, Garcia’s sole issue on appeal is overruled.

                                           CONCLUSION

       Having overruled Garcia’s sole issue on appeal, we affirm the trial court’s judgment.

                                                  Rebeca C. Martinez, Justice

DO NOT PUBLISH




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