      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-03-00028-CR



                               Nathaniel Drew Carter, III, Appellant

                                                    v.

                                    The State of Texas, Appellee




                FROM THE CRIMINAL DISTRICT COURT OF DALLAS COUNTY
            NO. F-0273284-IH, HONORABLE JANICE L. WARDER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 Appellant Nathaniel Drew Carter, III, appeals his conviction for burglary of a

building. See Tex. Pen. Code Ann. § 38.02 (West 2003). The jury found appellant guilty, found the

allegations as to two prior felony convictions to be “true,” and assessed punishment at twenty years’

imprisonment.


                                            Points of Error

                 Appellant advances three points of error. First, appellant contends that the trial court

erred by misstating the applicable parole law to the jury panel during voir dire examination. Second,

appellant claims that the trial court erred in overruling his objection to the admission of his custodial

statement made without the benefit of Miranda1 warnings. Third, appellant urges that the trial court


        1
            See Miranda v. Arizona, 384 U.S. 436 (1966).
erred in overruling his objections to the admission of his custodial statement “and other testimony

about the unattended children.” We will affirm the conviction.


                                          Background

               Appellant does not challenge the legal or factual sufficiency of the evidence to

support his conviction. A brief recitation of the facts will place the points of error in proper

perspective.

               The burglary occurred at 306 Satinwood in Dallas County on August 28, 2002,

between noon and one o’clock in the afternoon. Mary Velasquez testified that she was home at the

time in question when her sister-in-law, Alicia Velasquez, “called” her to come to Alicia’s house

across the street because someone was trying to break into a house nearby. Mary went to Alicia’s

home and saw a man climb into a window of a house across the alley from Alicia’s home. The man

was dressed in a white T-shirt and gray shorts. Mary telephoned 911 and reported what she had seen.

She did not see anyone leave the house until the police arrived five minutes later. Mary observed

the police take custody of the man when he climbed out of the window. She did not get a good look

at the man’s face, but she thought that he was the same person who entered the house.

               Alicia Velasquez corroborated Mary’s version. She had seen a man trying to open

a window of the house and called Mary. She later saw the man entering the house through the

window and observed the police taking the man out of the house through the same window. Alicia

believed that the man was the same individual who entered the house earlier but she did not get a

good look at his face.




                                                2
               Dallas Police Officer Kurt Manasco testified that he and his partner, Officer Maloney,

arrived about one o’clock in the afternoon at the 306 Satinwood address. He saw a back window

with a broken pane. While waiting for a back-up team, Manasco saw appellant in the back window

with socks on his hands. Manasco ordered appellant out of the house and he and his partner helped

appellant out of the window. Appellant was handcuffed. In addition to the socks, appellant was

found to be in possession of a screwdriver and plastic gloves in his pockets. Appellant told the

officers no one else was in the house. He gave his home address as 413 South St. Augustine Street.

Appellant was placed in the squad car as the officers awaited a search team to determine if anyone

else was in the house.

               Officer Donald Randle testified that he arrived at the scene, climbed through the

window earlier described, and opened a door for the other officers. The search revealed no other

individuals in the house. Randle saw, however, a drill, a chainsaw, and a television set stacked near

the broken window.

               Jerry Inzer testified that he lived in Austin and owned the house in question at 306

Satinwood in Dallas. He related that he was in the process of remodeling the house and using it to

store materials for himself and his parents. He had not given appellant or anyone else permission

to break and enter his house. Inzer had seen appellant at the residence next door, and had waved at

him several times, but did not know his name. After the Dallas Police notified him on August 28,

2002, about the burglary, Inzer came to Dallas a day or two later. He found the glass broken in the

back window, and discovered that a chainsaw, a drill and other things had been moved near the back

window. Inzer described the house as being locked and secured at all times.




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                                      Parole Law Instruction

               In his first point of error, appellant argues that the trial court erred by misstating the

parole law to the jury panel during voir dire examination in response to a prospective juror’s

question. There was no objection to the trial court’s answer. Nothing was preserved for review. See

Tex. R. App. P. 33.1. Any error was waived. See Rhoades v. State, 984 S.W.2d 113, 119 (Tex.

Crim. App. 1996); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

               If any argument for preservation of error may be made, we observe that the indictment

alleged the primary offense of burglary of a building, a state jail felony, enhanced by allegations of

two prior felony convictions to a second degree felony. See Tex. Pen. Code Ann. § 12.42(a)(2)

(West Supp. 2004). The punishment range for a second degree felony is not more than twenty years

nor less than two years’ imprisonment. In addition, a fine may be imposed not to exceed $10,000.

See Tex. Pen. Code Ann. § 12.33 (West 2003). The punishment for the primary offense, a state jail

felony, is not more than two years nor less than 180 days in a state jail. In addition, a fine may be

imposed not to exceed $10,000. See Tex. Pen. Code Ann. § 12.35 (West 2003).

               During the voir dire examination, a discussion arose concerning the possible range

of punishment. It appears every effort was made to state the proper range of punishment without

reference to the prior convictions alleged for enhancement of punishment. One prospective juror

asked the trial court: “If you did give a person 20 years what is he susceptible of serving?” The

State points out that the trial court’s response was legally correct and limited to the question asked.

We do not understand appellant to disagree. Appellant’s contention raised on appeal is only that the

trial court should have gone further and instructed the jury that parole was not applicable to a



                                                   4
conviction for a state jail felony. Appellant cites Best v. State, 118 S.W.3d 857, 866 (Tex.

App.—Fort Worth 2003, no pet.). Best does hold that a person convicted of a state jail felony is not

entitled to parole or good time credit. Id. at 866 (citing Tex. Gov’t Code Ann. § 508.141(a) (West

1998) and Tex. Code Crim. Proc. Ann. art. 42.12, § 15(h)(i) (West Supp. 2004)). Appellant

acknowledges that he has been unable to find any case law that would require a trial court to instruct

the jury that parole is inapplicable to state jail felony sentences. Best, however, points out that article

37.07 of the Texas Code of Criminal Procedure2 is silent on the matter, and because the legislature

has not specified that juries be informed that parole or good time credits do not apply to state jail

felonies, such instruction is not required. Id. Appellant’s first point of error was not preserved for

review. Under any circumstances, however, it is without merit.


                                     Oral Custodial Statements

                 In his second point, appellant claims that the trial court erred in overruling his

objections to the introduction of his oral custodial statements made without benefit of the Miranda

warnings. Prior to his testimony, Officer Kurt Manasco was taken on voir dire examination in the

jurors’ absence first by the prosecutor and then by the defense counsel as to the oral statements made

to him by appellant. Manasco testified that after appellant was taken into custody, he was




        2
            See Tex. Code Crim. Proc. Ann. art. 37.07 (West Supp. 2004).

                                                    5
handcuffed and placed in the squad car. The officer related that he and his partner were going to take

appellant to the Southeast Investigative Division to be interviewed by detectives. Manasco stated

that patrol officers do not generally ask questions of a defendant except on safety issues. He had not

given the Miranda warnings to appellant at the time. Manasco revealed that they waited at the scene

for the arrival of a search team. During this interval, Manasco began to fill out a booking slip. At

this point, appellant asked with what offense he was being charged. Manasco replied, “Burglary.”

Appellant then volunteered that he knew the owner of the house, was “friends with him.” Appellant

kept repeating that he did not burglarize the house. After an interval, appellant stated that he heard

someone breaking into the house and he went to investigate. Manasco testified that none of the

statements appellant made were the result of custodial interrogation or questioning by the police.

               On the voir dire examination, appellant objected to all statements made by him when

he had not been “Mirandized” or given “his 38.22 warnings.” The trial court overruled the

objections. “Volunteered statements of any kind are not barred by the Fifth Amendment and their

admissibility is not affected by our holding today.” Miranda v. Arizona, 384 U.S. 438, 478 (1966)

(emphasis added); see also Rhode Island v. Innis, 446 U.S. 591, 300 (1980); Jones v. State, 795

S.W.2d 171, 176 (Tex. Crim. App. 1990); Walker v. State, 470 S.W.2d 669, 671 (Tex. Crim. App.

1971); Jefferson v. State, 974 S.W.2d 887, 890-91 (Tex. App.—Austin 1998, no pet.).

               Article 38.22, section 5 of the Code of Criminal Procedure provides:


            Nothing in this article precludes the admission of a statement made by the
       accused in open court at his trial, before a grand jury, or at an examining trial in
       compliance with Articles 16.03 and 16.04 of this code, or of a statement that is the
       res gestae of the arrest or of the offense, or of a statement that does not stem from
       custodial interrogation, or of a voluntary statement, whether or not the result of

                                                  6
       custodial interrogation, that has a bearing upon the credibility of the accused as a
       witness, or of any other statement that may be admissible under law.


Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (West Supp. 2004) (emphasis added).

               Appellant was in custody at the time of the statements, but the evidence is

uncontested that he was not subject to express questioning or the functional equivalent of

interrogation. Appellant initiated the conversation with the officer regarding the charge on which

he was being held and subsequently volunteered the statements implying that he had the owner’s

permission to be on the premises and that he was only investigating a possible “break-in.” The trial

court did not err in overruling the objections and did not abuse its discretion in admitting the

evidence.

                                     Another Oral Statement

               In his third point of error, appellant complains of the admission, over objection, of

another unwarned custodial statement “and other testimony about the unattended children.”

               In the same voir dire examination referred to in our previous discussion, Officer

Manasco testified that as they started to leave the scene to take appellant to the detectives for an

interview, appellant made another oral statement. Appellant asked the officers to “wait a minute.”

Appellant then added: “I’ve got—there are three kids I’ve been keeping in the house next door.”

Manasco testified that other officers searched the house next door to the burglarized house and found

three children there and had them taken to CPS [Child Protective Services].

               Appellant’s statement was admissible for the reasons stated in our disposition of point

of error two. It was not an unwarned custodial statement barred by Miranda and article 38.22.



                                                 7
Appellant volunteered the statement. It was not elicited by questioning. Appellant’s initial argument

is without merit.

               Appellant also objected to the admission of appellant’s statement about babysitting

three children as being in violation of Rules 402, 403 and 404(b) of the Texas Rules of Evidence.

Appellant claimed that the evidence was not relevant and was inadmissible. Tex. R. Evid. 402. The

trial court overruled the objection noting that the evidence was relevant because the babysitting gave

appellant an opportunity on the day in question to observe the house next door and know it was

unoccupied. The evidence showed that appellant could have been aware of the opportunity for

burglary.

               The trial court also overruled appellant’s Rule 403 objection. Tex. R. Evid. 403.

Under this rule, relevant evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice. Rule 403 requires the exclusion of evidence only where there

exists a clear disparity between the degree of prejudice of the offered evidence and its probative

value. Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001). The rule favors the admission

of relevant evidence and carries a presumption that relevant evidence will be more probative than

prejudicial. Id.; Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). The fact that

appellant left the children unattended while engaged in burglary next door was prejudicial, but to his

credit, the statement also displayed his concern for the welfare of the children. The statement

contained relevant evidence of probative value, which was not substantially outweighed by the

danger of unfair prejudice. At the guilt/innocence stage of the trial, the ages of the children and




                                                  8
surrounding circumstances were not presented.3 The evidence offered was brief and not emphasized

by the State.

                Appellant also objected to the admission of appellant’s statement on the basis of Rule

404(b). Tex. R. Evid. 404(b). Appellant argued that under the rule, evidence of other crimes,

wrongs, or acts is not admissible to prove the character of the person in order to show action in

conformity therewith. The trial court did not believe the statement revealed an extraneous offense

or bad act. The objection was overruled. The State points out that evidence of other crimes, wrongs,

or acts are expressly admissible under Rule 404(b) as proof of “opportunity” and that the trial court’s

ruling was correct. We agree.

                We conclude that the trial court did not abuse its discretion in admitting appellant’s

statement about the three children. The trial court’s ruling was within the zone of reasonable

disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

                In this point of error, appellant also expressly complains of the admission of “other

testimony about the unattended children.” Appellant makes brief reference to Officer Manasco’s

testimony that other officers found three children in the house and had them taken to “CPS.”

Appellant does not point out where he objected to this “other” testimony. Our examination of the

record fails to uncover any objection. Appellant failed to preserve error as to this particular matter.

Tex. R. App. P. 33.1. The third point of error is overruled.




       3
          At the penalty stage of the trial, appellant testified for the first time. He related that the
children were his two, three, and five-year-old nieces. He also told the jury that he was guilty of
criminal trespass, not burglary.

                                                   9
              The judgment is affirmed.




                                            John F. Onion, Jr., Justice

Before Chief Justice Law, Justices Patterson and Onion*

Affirmed

Filed: April 15, 2004

Do Not Publish




*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).



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