Reversed and Remanded and Majority and Dissenting Opinions filed
December 23, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00096-CR

                          JOSE VASQUEZ, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1333231


                  DISSENTING OPINION
      Under precedent from the Court of Criminal Appeals, when a defendant
moves to suppress a statement made after receiving Miranda warnings because the
statement was made as part of an alleged “question first, warn later” interrogation
technique used by the police to circumvent the defendant’s Miranda protections,
the State has the burden of proving that the police did not deliberately employ such
a technique. But, under preservation-of-error principles, the State does not have
this burden of proof unless the defendant timely presents to the trial court a
complaint that the police deliberately employed a “question first, warn later”
interrogation technique. In the case under review, the first time appellant arguably
raised this complaint was during closing argument at the suppression hearing after
the State had presented its evidence and rested. Because appellant did not timely
raise this complaint, it does not provide a basis for reversing the trial court’s
judgment.

The State’s burden of proof regarding an alleged “question first, warn later”
interrogation technique
          As noted in the majority opinion, in Martinez v. State, the Court of Criminal
Appeals held that the State has the burden of proving that the police did not
deliberately employ an alleged “question first, warn later” interrogation technique
to circumvent the defendant’s Miranda protections.1                       Four dissenting judges
thought that the burden should be on the defendant to present a sufficient record
showing that the police did not deliberately employ an alleged “question first, warn
later” interrogation technique.2             One concurring judge stated that he had not
decided whether the State had the burden found by the majority but that the court
did not need to address this issue to resolve the case.3 Though this statement
indicated that only four judges on the high court concluded that the State had the
burden of proof, the concurring judge joined the court’s opinion, in which the court
held that the State has the burden of proving that the police did not deliberately
employ an alleged “question first, warn later” interrogation technique.4 Therefore,

1
    Martinez v. State, 272 S.W.3d 615, 623–24 (Tex. Crim. App. 2008).
2
    Id. at 631 (Hervey, J., dissenting, joined by Keller, P.J., Meyers, and Keasler, JJ.).
3
    Id. at 627–29 (Price, J., concurring).
4
  See id. at 623–24 (Johnson, J., joined by Price, Womack, Holcomb, and Cochran); id. at 629
(Price, J., concurring).

                                                    2
the conclusion that the State has the burden of proof was contained in an opinion
joined by five judges, and thus constitutes a binding precedent of the Court of
Criminal Appeals.5

The requirement that appellant timely present to the trial court a complaint that
the police deliberately employed a “question first, warn later” interrogation
technique
          To preserve a complaint for appellate review, a party must present to the
trial court a timely request, objection, or motion stating the specific grounds for the
ruling desired.6 The appellate complaint must comport with a specific complaint
that appellant timely lodged at trial.7 A complaint in which the party states one
legal theory may not be used to support a different legal theory on appeal. 8 Even
constitutional errors may be waived by failure to timely complain in the trial
court.9
          It violates “ordinary notions of procedural default” for an appellate court to
reverse a trial court’s decision on a legal theory not timely presented to the trial
court by the complaining party.10 Texas Rule of Appellate Procedure 33.1
encompasses the concept of “party responsibility,” meaning that appellant, as the
complaining party, had the responsibility to clearly convey to the trial court the
particular complaint that he now raises on appeal, including “the precise and
proper application of the law as well as the underlying rationale.”11 To avoid
forfeiting an appellate complaint, the complaining party must “‘let the trial judge
5
    See Reynolds v. State, 4 S.W.3d 13, 15–16 (Tex. Crim. App. 1999).
6
    See Tex. R. App. P. 33.1(a).
7
    See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
8
    See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
9
    See id.
10
     See Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002).
11
     See Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009).

                                                 3
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.’”12 This requirement allows the trial court or the opposing
party the opportunity to remove the basis for the objection or to correct the alleged
error.13 A trial court’s decision will not be reversed on a theory upon which the
non-appealing party did not have an opportunity to develop a complete factual
record.14
          Under the Martinez precedent, when a defendant moves to suppress a
statement made after receiving Miranda warnings because the statement was made
as part of an alleged “question first, warn later” interrogation technique used by the
police to circumvent the defendant’s Miranda protections, the State has the burden
of proving that the police did not deliberately employ such a technique.15 But,
under preservation-of-error principles, this burden does not arise unless the
defendant first timely presents to the trial court a complaint that the police
deliberately employed a “question first, warn later” interrogation technique.16

Appellant’s failure to timely present to the trial court a complaint that the police
deliberately employed a “question first, warn later” interrogation technique
          On remand, the State asserts for the first time that appellant failed to
preserve error in the trial court. In neither of his written motions to suppress did

12
     Id. at 464 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
13
     Id. at 464.
14
     See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122.
15
     See Martinez, 272 S.W.3d at 623–24.
16
  See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122. See also United States v. Ollie,
442 F.3d 1135, 1142–43 (8th Cir. 2006) (stating that “when a defendant moves to suppress a
post-warning statement that he contends was given as part of a question-first interrogation, the
prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide
warnings at the outset of questioning was not part of a deliberate attempt to circumvent
Miranda”).

                                                 4
appellant complain that the police deliberately employed a “question first, warn
later” interrogation technique. After the close of the evidence at the suppression
hearing and during closing argument at that hearing, appellant’s primary argument
was that the videotaped confession should be suppressed because all of the voices
on the recording were not identified. At the end of his closing argument, appellant
made the following additional argument:

          And my next approach . . . is I’m contending this is a two-step
          interview. . . . And once they got him to say what they wanted him to
          say, they took him in and videoed him and gave his Miranda warning
          and he told the story again. And I’m suggesting under the existing
          case law, that’s illegal and the statement should be suppressed.
          Presuming for the sake of argument that these statements clearly conveyed
to the trial court the particular complaint that appellant now raises on appeal and
that appellant’s counsel’s words, as quoted above, were sufficient to voice this
complaint, the objection was not timely because it was asserted for the first time at
the end of closing argument after the close of the evidence at the hearing.17
Lodging the complaint at this time did not allow the trial court or the State the
opportunity to remove the basis for the objection or to correct the alleged error.18
This failure to timely raise the complaint denied the State an opportunity to
develop a complete record and to prove that the police did not deliberately employ
a “question first, warn later” interrogation technique.19 Immediately after appellant
made these statements during closing argument, the trial court ruled on appellant’s
motion to suppress, granting it in part and denying it in part.

          In ruling on this motion, the trial court did not indicate any awareness that it

17
     See Pena at 464.
18
     See id.
19
     See id.

                                              5
was ruling on a complaint based on the alleged use of a “question first, warn later”
interrogation technique. The majority relies in part on the trial court’s findings of
fact regarding such a technique, made long after the trial of this case under an
abatement order of this court, as instructed by the Court of Criminal Appeals.20
Because these findings were made at the instance of the Court of Criminal
Appeals, they do not indicate that the trial court intended, when it ruled on the
motion to suppress, to rule on a complaint based on an alleged use of a “question
first, warn later” interrogation technique.21 Even presuming the trial court was
aware of such a complaint, it is apparent from the record the State did not have a
reasonable opportunity to present evidence in response to this complaint because
the complaint came after the close of the evidence at the suppression hearing. The
untimeliness of the complaint is fatal to error preservation.

          The State did not raise its preservation-of-error argument in its original
briefing in this court. Nor did this court address preservation of error in its opinion
on original submission. Nonetheless, lack of error preservation may be raised on
remand from the Court of Criminal Appeals, even though the high court did not
address preservation of error in its opinion.22 If the complaint was not preserved
for appellate review, it is waived.23


20
     See Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013).
21
  The majority also relies upon the failure of the trial court to make a finding that it was unaware
of a Seibert challenge by appellant at the time of the suppression hearing. But, the trial court was
not instructed in this court’s abatement order to make any findings regarding preservation of
error or regarding its awareness of a Seibert challenge at the time of the suppression hearing.
22
   See, e.g., Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (holding that appellant
failed to preserve error in the trial court as to an appellate complaint, even though the Court of
Criminal Appeals previously had vacated the court of appeals’s judgment and remanded to the
intermediate court based on a procedural issue regarding the same appellate complaint, without
addressing preservation of error).
23
     See id. at 463–64.

                                                 6
         Because appellant did not timely raise the “question first, warn later”
complaint, he failed to preserve error in the trial court, and this court may not
                                                                     24
reverse the trial court’s judgment based on this complaint.               Accordingly, this
court should overrule appellant’s sole issue and affirm the trial court’s judgment.
Because the court does not do so, I respectfully dissent.




                                             /s/       Kem Thompson Frost
                                                       Chief Justice


Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
(Jamison, J., majority).
Publish — TEX. R. APP. P. 47.2(b).




24
     See Pena, 285 S.W.3d at 463–64; Hailey, 87 S.W.3d at 122.

                                                   7
