Opinion issued December 28, 2012




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-11-00987-CR
                         ———————————
                ALBERT DEWAYNE BEASLEY, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 56th District Court
                        Galveston County, Texas
                    Trial Court Case No. 10-CR-2663



                        MEMORANDUM OPINION

     A jury convicted appellant, Albert Dewayne Beasley, of the first-degree

felony offense of aggravated robbery and, after finding the allegations in an
enhancement paragraph true, assessed punishment at fifty years’ confinement.1 In

one issue, appellant contends that the State failed to preserve evidence of his

videotaped confession, in violation of Code of Criminal Procedure article 38.22,

which requires a videotaped recording of a defendant’s statement to be preserved

until the conviction is final and all appeals are exhausted.

      We affirm.

                                    Background

      The complainant, Gary Billiot, owned and operated an automotive shop in

Texas City. Appellant occasionally worked at the shop by washing cars and

assisting with Billiot’s upholstery work. On August 25, 2010, appellant and a man

named Romeo were working with Billiot at the shop. At the end of the day, Billiot

locked up the shop, but he intended to stay for a while longer to work on

upholstering some car seats. Appellant asked Billiot if there was a way for him to

make any extra money, and Billiot responded that appellant could help upholster

the seats. Appellant and Romeo then briefly left to get some beers.

      When appellant and Romeo returned, Billiot was working on the seats.

Romeo eventually left the shop, and appellant remained with Billiot. They were

the only two people in the shop that evening. Billiot told appellant that he was

going to trace a pattern and then appellant could “take over” work on the seat.


1
      See TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2011).
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When Billiot turned back to the work bench, something hard hit him in the head.

Billiot remembered ending up outside, where he spoke with his cousin who had

stopped by the shop, and waking up in the hospital.           Billiot had had over a

thousand dollars in cash on him on the day of the incident.

      After he was arrested, appellant gave two written confessions and a

videotaped confession. In these confessions, appellant admitted to hitting Billiot

with something, probably a pipe, taking the money that Billiot had on him, and

running away. Appellant’s descriptions of the events that transpired at the shop in

his confessions were consistent with Billiot’s testimony at trial.

      The trial court entered a discovery order requiring the State to produce

(1) all statements by appellant pursuant to Code of Criminal Procedure article

38.22 and all written statements made by appellant in connection with this offense

and (2) any exculpatory or mitigating evidence within the possession, custody, or

control of the State.     The discovery order required the parties to complete

discovery by the date of the pre-trial conference—March 11, 2011—and imposed

upon the State a continuing duty to supplement.

      Appellant moved to suppress his written confessions, arguing that they were

not voluntary because he was intoxicated at the time that he made the statements.

At the February 24, 2011 suppression hearing, Texas City Police Department

Officer D. Matheson testified that no videotaped confession existed. Defense

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counsel asked Officer Matheson why he did not record appellant’s confession, and

Matheson responded, “We don’t have a room that’s dedicated solely for video. We

have eight detectives and I didn’t video.” Defense counsel asked whether officers

sometimes videotape interviews, and Officer Matheson responded that some

interviews are recorded. When asked why one interview would be video-recorded

and another one would not be video-recorded, Matheson replied, “The vast

majority are written statements. We have no dedicated video room where there’s a

video set up, availability of equipment.”

         The trial court denied appellant’s motion to suppress the written confessions.

The trial court issued findings of fact and conclusions of law, and it ultimately

concluded that the written confessions were made voluntarily.

         At trial, the State introduced both of appellant’s written confessions, as well

as a videotaped confession. Defense counsel stated on the record that he received a

copy of the video in May or June 2011, approximately four or five months before

trial.    Defense counsel re-urged the previous motion to suppress the written

confessions and objected to the admission of the videotaped confession on the

basis that this confession was also not made voluntarily. Defense counsel noted

that Officer Matheson had testified at the suppression hearing that no videotaped

confession existed, but counsel did not argue at trial that the State had wrongfully

withheld evidence in violation of the trial court’s discovery order, nor did he argue

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that the State failed to preserve the videotaped confession. The court, “knowing

that the video statement has been presented with a sufficient amount of time for

everybody to look at,” denied appellant’s motion to suppress the videotaped

confession.2

      Officer Matheson acknowledged that, at the suppression hearing, defense

counsel asked him if he had taken a video statement and he said no. He testified

that he “totally forgot about” the videotaped confession. He stated that, on the

morning of the hearing, he was called out on another matter very early in the

morning, and he asked the records department to pull a copy of his report in

appellant’s case before the hearing, but “[t]hey didn’t pull the actual case file that

had the video in it.” He discovered the videotaped confession in the file several

months before trial when a representative of the district attorney’s office requested

2
      The clerk’s record contains further indications that appellant and his trial counsel
      knew of the videotaped confession several months before trial. Appellant’s trial
      counsel sent appellant a letter dated May 7, 2011, in which he stated, “You
      previously had a hearing on your confession in which you signed two confessions
      of your crime. The video was not available at that time. However, you have now
      had the opportunity to view the confession video. You chose not to watch it in its
      entirety. The court has ruled that the confession is admissible and will be viewed
      by the jury.” Appellant’s original trial counsel moved to withdraw on June 8,
      2011, and he mentioned in his motion that he and appellant were having
      “substantial conflicts as to trial strategy as to defendant’s written and videotaped
      confessions.” Appellant filed a pro se motion to dismiss the prosecution, in which
      he stated that, on May 6, 2011, the district attorney informed him that a videotaped
      confession existed and that he watched the confession with his trial counsel and a
      bailiff at the district attorney’s office. On June 12, 2011, appellant filed a pro se
      motion to suppress the written and the videotaped confessions. Appellant’s
      second appointed attorney also acknowledged the videotaped confession in a
      motion for continuance filed on July 22, 2011.
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the hard copy of the file. The State notified defense counsel at that time, and

appellant and his counsel watched the video at the district attorney’s office.

      The jury convicted appellant of aggravated robbery and, after finding the

allegations in an enhancement paragraph true, it assessed punishment at fifty years’

confinement.

                      Preservation of Videotaped Confession

      In his sole issue, appellant contends that the State erred by failing to

preserve evidence of his videotaped confession in violation of Code of Criminal

Procedure article 38.22. The State contends that this issue is meritless because

(1) the State preserved the videotape, appellant was aware of the videotape and had

an opportunity to view it several months before trial, and the videotape was

actually admitted at trial; and (2) at trial, appellant objected to the admission of the

videotape solely on the basis that his confession was not voluntary, and he did not

object on the grounds that the State failed to preserve the videotape or that the

State wrongfully withheld production of the videotape in violation of the discovery

order. We agree with the State.

      Code of Criminal Procedure article 38.22 provides, “Every electronic

recording of any statement made by an accused during a custodial interrogation

must be preserved until such time as the defendant’s conviction for any offense

relating thereto is final, all direct appeals therefrom are exhausted, or the

                                           6
prosecution of such offenses is barred by law.” TEX. CODE CRIM. PROC. ANN. art.

38.22, § 3(b) (Vernon 2005).

      Here, the State did not violate article 38.22, section 3(b). Id. The State did

not destroy the videotape of appellant’s confession; instead, it did not discover that

the videotaped confession existed until after the trial court had ruled on appellant’s

motion to suppress his written confessions. When it discovered that it had the

videotaped confession in its possession, but had not produced it, it notified defense

counsel, who viewed the videotape with appellant at the district attorney’s office.

At trial, defense counsel acknowledged that he had received a copy of the

videotaped confession several months before trial. The State offered, and the trial

court admitted into evidence, the videotaped confession. Thus, the videotaped

confession has been preserved in accordance with article 38.22, section 3(b).

      To the extent appellant contends that the State violated the trial court’s

discovery order requiring the State to produce all of appellant’s statements and any

mitigating or exculpatory evidence, and therefore that the trial court erroneously

admitted the videotaped confession, we conclude that appellant failed to preserve

this issue for appellate review.     When the State discloses evidence that was

withheld in violation of a discovery order at trial, the defendant’s failure either to

object to the admission of the evidence on this basis or to request a continuance

waives the error “or at least indicates that the delay in receiving the evidence was

                                          7
not truly prejudicial.” See Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App.—

Houston [1st Dist.] 2003) (holding that failure to request continuance waives

complaint that State withheld exculpatory evidence in violation of Brady v.

Maryland),3 aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005); see

also Smith v. State, 314 S.W.3d 576, 586 (Tex. App.—Texarkana 2010, no pet.)

(holding Brady challenge not preserved because trial court never ruled on

complaint); Jones v. State, 234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007,

no pet.) (holding that defendant must request continuance and present Brady

complaint in motion for new trial to preserve complaint for appellate review);

Young v. State, 183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref’d) (“The

failure to request [a continuance] waives any Brady violation, as well as any

violation of a discovery order.”).

      Here, appellant became aware of the videotaped confession approximately

four or five months before trial.        Appellant and his trial counsel had the

opportunity to view this videotape. When the State offered the videotape into

evidence at trial, defense counsel objected solely on the ground that appellant’s

confession was not voluntary.        He did not object on the basis that the State

wrongfully withheld material evidence in violation of the discovery order, nor did

he file a motion for new trial raising this argument. Cf. Kirksey v. State, 132

3
      See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) (requiring that State
      turn over material, favorable evidence to defendant).
                                           8
S.W.3d 49, 54 (Tex. App.—Beaumont 2004, no pet.) (holding complaint preserved

when “colloquy among counsel and the court [made it clear] that all parties

understood that Appellant was objecting to the timeliness of the State’s production

of certain photographs in alleged violation of the pre-trial discovery order”).

Moreover, a defendant’s trial objection must comport with his objection to the

evidence on appeal in order for error to be preserved.       See TEX. R. APP. P.

33.1(a)(1)(A); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (citing

Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)). We therefore

conclude that appellant failed to preserve for appellate review any complaint that

the State violated the discovery order or otherwise wrongfully withheld evidence.

      We overrule appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Do Not Publish. TEX. R. APP. P. 47.2(b).



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