Affirm and Opinion Filed July 26, 2013




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-00462-CR

                                LINH DIEM LE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 401st Judicial District Court
                                    Collin County, Texas
                            Trial Court Cause No. 401-82150-10

                                          OPINION
                          Before Justices FitzGerald, Francis, and Lewis
                                  Opinion by Justice FitzGerald
       A jury convicted appellant of possession of a controlled substance in an amount less than

one gram. The trial judge assessed punishment at 395 days imprisonment, suspended for three

years’ community supervision. In a single issue on appeal, appellant contends her custodial

statement concerning drug use was inadmissible. Concluding appellant’s argument is without

merit, we affirm the trial court’s judgment.

                                               BACKGROUND

       On April 26th, 2010, Sergeant Thornton of the Plano Police Department was dispatched

to a domestic disturbance call at Appellant’s apartment. Once on the scene, officers entered the

apartment and discovered appellant and a man arguing. After the pair was separated, appellant

gave officers consent to search the apartment.
       During the search, Sergeant Thornton found a loaded handgun and marijuana residue

inside appellant’s purse. Her purse also smelled strongly of marijuana. Baggies normally

associated with the sale of narcotics, a digital scale, and marijuana residue were found in

appellant’s bedroom.

       Sergeant Thornton told appellant to “just go ahead and tell me where it’s at so that I don’t

have to rip everything apart in here.” Appellant responded by walking into her bedroom, opening

a drawer located next to her bed, and removing a small jewelry box. The box contained crack

cocaine and a piece of women’s jewelry. Appellant was placed under arrest.

       At the jail, Teresa Houston, a detention officer, asked appellant a series of standardized

book-in questions, which are asked of every prisoner. One of the questions inquired as to

whether appellant had a drug or alcohol dependency. Appellant responded, “Yes, crack, weed

and coke.”

       At trial, appellant testified the crack did not belong to her because she did not use or sell

cocaine. When the State called Houston in rebuttal to impeach appellant’s testimony, appellant

requested a hearing outside the presence of the jury.

       The State made an offer of proof, during which Houston testified about the book-in

questions. Houston explained that the jail has a standardized list of questions that are asked of

everyone in custody. She further explained that the purpose of the questions is to ensure that

inmates receive appropriate care. Appellant was asked about her drug or alcohol dependency to

ensure the proper supervision, housing, and medical treatment of appellant. Her response placed

the staff on notice to monitor appellant for signs of withdrawal.

       At the conclusion of Houston’s testimony, appellant’s counsel objected that “there is no

statutory basis for it coming into evidence.” The trial court overruled the objection. Later, in the

presence of the jury, appellant’s counsel objected to Houston’s testimony stating, “it violates

                                                –2–
Texas Code of Criminal Procedure Article 38.22 and 38.23.” The trial court overruled the

objection. During closing argument, the State argued that appellant’s contradictory answers

about drug use impeached her credibility. The jury subsequently convicted appellant of

possession of a controlled substance in an amount less than one gram. This appeal followed.

                                              DISCUSSION

       In a single issue, appellant argues that her custodial statement concerning drug use is

inadmissible because she was not given a Miranda warning. The State responds that the issue has

not been preserved for our review. In the alternative, the State argues the book-in question did

not violate Miranda because it reasonably related to a legitimate administrative concern and

because the information elicited was used in rebuttal to impeach appellant.

       We first consider whether the alleged error has been preserved for our review. To

preserve error for appellate review, the complaining party must make a timely, specific objection

in the trial court and obtain a ruling on the objection. TEX. R. APP. P. 33.1(a); Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002); Broxton v. State, 909 S .W.2d 912, 918 (Tex. Crim.

App. 1995). Generally, a party’s objection “must be specific enough so as to ‘let the trial judge

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

to understand him at a time when the trial court is in a proper position to do something about it.’”

Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992)). In addition, appellate arguments must comport with

the objections made at trial. See Gallo v. State, 239 S.W.3d 757, 758 (Tex. Crim. App. 2007).

       Here, appellant’s trial objection does not comport with her complaint on appeal. On

appeal, appellant complains that the testimony violated Miranda. But when appellant first

objected to the testimony, she objected only that there was no statutory basis to allow the

testimony. Subsequently, appellant asserted a statutory objection, claiming that the testimony

                                                –3–
violated articles 38.22 and 38.23 of the code of criminal procedure. The court of criminal appeals

has stated, however, that the violation of article 38.22, a statutory argument, is legally distinct

from the constitutional argument. See Resendez v. State, 306 S.W.3d 308, 315 (Tex. Crim. App.

2009). We see no reason why this would not also apply to article 38.23, which is also a statute.

Therefore, appellant’s issue has not been preserved for our review.

       But even if appellant’s issue had been properly preserved, her argument is without merit.

In Miranda v. Arizona, 384 U.S. 436, 444 (1966) the Supreme Court held that “the prosecution

may not use statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination.” This is because “the coercion inherent in

custodial interrogation blurs the line between voluntary and involuntary statements, and thus

heightens the risk that an individual will not be accorded his privilege under the Fifth

Amendment not to be compelled to incriminate himself.” Id. at 439.

       Under both the federal and state constitutions, however, questioning attendant to an

administrative “booking” procedure does not generally require Miranda warnings. See

Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (holding that officer asking arrestee for his

name, his address, and similar basic information had not triggered Miranda requirements

because such questions “fall within a ‘routine booking question’ exception which exempts from

Miranda's coverage questions to secure the biographical data necessary to complete booking or

pretrial services”) (internal quotation omitted); Cross v. State, 144 S.W.3d 521, 524 n. 5 (Tex.

Crim. App. 2004) (holding that administrative questions do not constitute “interrogation”

because they are not normally expected to elicit incriminating responses).

       In Alford v. State, 358 S.W.3d 647,661 (Tex. Crim. App. 2012) the court of criminal

appeals considered how to assess whether a book-in question falls outside the purview of

                                               –4–
Miranda. The court concluded that to determine whether a book-in question falls outside

Miranda, the court must consider whether, under the totality of the circumstances, a question is

reasonably related to a legitimate administrative concern. Id. To make this determination, the

court objectively weighs all the facts and circumstances surrounding the question. Id. at 660.

       In the present case, Houston testified that the question about drug dependency is asked of

all prisoners, and pertains to the way prisoners are housed and monitored. If a prisoner

acknowledges drug or alcohol dependency, they are housed in a separate area of the jail to be

constantly observed in case the prisoner experiences withdrawal. Therefore, under these

circumstances, we conclude the question about drug dependency was related to the legitimate

administrative concern of monitoring inmates.

       Moreover, the State used appellant’s statement for purposes of impeachment. A

defendant can be impeached with a prior inconsistent statement that would ordinarily be

inadmissible as a Miranda violation. Harris v. New York, 401 U.S. 222, 226 (1971). Therefore,

we conclude the trial court did not err in admitting the statement. Appellant’s sole issue is

overruled. The judgment of the trial court is affirmed.




                                                      KERRY P. FITZGERALD
Do Not Publish                                        JUSTICE
TEX. R. APP. P. 47
120462F.U05




                                                –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

LINH DIEM LE, Appellant                            On Appeal from the 401st Judicial District
                                                   Court, Collin County, Texas
No. 05-12-00462-CR        V.                       Trial Court Cause No. 401-82150-10.
                                                   Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                       Justices Francis and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 26, 2013




                                                   KERRY P. FITZGERALD
                                                   JUSTICE




                                             –6–
