
 









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0917-08


ANGEL RESENDEZ, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY



 Price, J., delivered the opinion of the Court in which Keller, P.J., and
Womack, Keasler, Hervey and Cochran, JJ., joined.  Holcomb, J., filed a
dissenting opinion in which Meyers and Johnson, JJ., joined.

O P I N I O N


	The appellant gave a videotaped statement in which he confessed to shooting Amanda
Garza.  He later pled guilty to her murder, and the trial court found him guilty and assessed
punishment at ninety-nine years in prison.  The Fourteenth Court of Appeals reversed and
remanded, holding that the trial court erred when it denied the appellant's motion to suppress
the confession because the police had failed to memorialize the appellant's Miranda
warnings on the videotape as required by Code of Criminal Procedure Article 38.22, Section
3(a)(2). (1)  We granted the State's petition for discretionary review in order to determine (1)
whether the court of appeals was correct in holding that the appellant preserved his Article
38.22 argument for appeal, and (2) whether the appellant was in custody when he gave his
videotaped confession. (2)  Because we hold that the appellant did not preserve his Article
38.22 argument for appeal, we reverse the court of appeals's judgment.
BACKGROUND
Videotaped Confession
	During the investigation into the murder of Amanda Garza, the appellant gave two
videotaped statements to the police.  In the first statement, the appellant alleged that another
man, Steve Perez, had fired the four shots that killed Garza.  Before this statement, the police
gave the appellant Miranda warnings.  Two days later, the appellant gave a second statement
in which he confessed to firing the first shot at Garza.  The police did not give the appellant
Miranda warnings either before or during this second statement.
Motions to Suppress
	The appellant filed two motions to suppress his second statement.  The first motion,
filed by the appellant's first attorney in September of 2003, contained both constitutional and
statutory arguments:

	At the time of any conversations between [the appellant] and law
enforcement officers, [the appellant] was (a) under arrest or (b)
substantially deprived of freedom by the conduct of the law
enforcement officers and the circumstances surrounding the arrest or
deprivation of freedom.	

 

	Any statements made by [the appellant] were involuntary and were
coerced and enticed from [the appellant].

 

	[The appellant] was deprived of his right to counsel and [he] did not
make an intelligent and knowing waiver of that right.

 

	The statements made by [the appellant] were tainted by the illegal and
unlawful detention and arrest of [the appellant], in violation of [his]
constitutional rights under the Fifth [sic: Fourth?] and Fourteenth
Amendments of the Constitution of the United States, Article I, Section
9 of the Texas Constitution, and Article 38.23 of the Texas Code of
Criminal Procedure.

 

 Statements made by [the appellant] were taken without the safeguards
required by and in violation of Article 38.22 of the Code of Criminal
Procedure. (3)

 

	The admission of statements by [the appellant] is a violation of [his]
rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution, Article I, Sections 9 and 10 of the
Texas Constitution, and Articles 1.05 and 38.23 of the Texas Code of
Criminal Procedure.

 
	Without having obtained a suppression hearing, the appellant retained new counsel. 
And in October of 2004, thirteen months after the filing of the first motion, the appellant's
new attorney filed a second motion to suppress.  This second motion contained only
constitutional arguments:

	During the investigation of this case, the [appellant] has given a
statement which the State of Texas intends to use against him.  This
statement is a confession [in which the appellant] admits to shooting the
complaining witness without legal justification.
 

	It is the position of the [appellant] that this confession was elicited in
violation of his rights as guaranteed by the Constitution[ ] of the United
States, under the Fifth Amendment, and the Constitution of the State of
Texas, Article I.  Further, [the appellant] argues that this confession
was taken contrary to the manner in which the Criminal Courts have
interpreted those statutes. (4)

 
	In November of 2004, shortly after the filing of the second motion, the trial court
conducted a suppression hearing.  During the hearing, the appellant argued that his second
videotaped statement was "inadmissable, essentially an involuntary statement given by the
[appellant] not understanding certain rights that had been guaranteed him both under
Miranda and our State Constitution[.]"  The appellant never referred directly to Article
38.22.  The record of the hearing reveals the following colloquy:
	[Appellant's Counsel]: Again, there's nothing on [the transcript of the
videotape] which would be reflective of him being read his Miranda warnings
at the beginning, that it's a verbatim transcript of what he simply said.  They
did not Mirandize him on the tape, which they did not do, that's clear.  The
Court's had an opportunity to review that tape, [the transcript] is not going to
be reflective of any Miranda warnings given thus far.

	THE COURT: I understand, counsel.  You have made a fine point of law.

Later in the hearing, the State's counsel said, "We will stipulate nowhere on the videotape
of State's Exhibit No. 2-A is there Mirandized warnings [sic] given to this defendant[.]"  The
trial court ultimately denied the motion to suppress.
Court of Appeals
	On direct appeal, the appellant argued that the trial court erred in denying his motion
to suppress because "the videotape does not contain a waiver of appellant's rights under
Miranda and the state confession statute" and because "the videotape does not contain the
warnings required by Article 38.22 of the Code of Criminal Procedure."  Code of Criminal
Procedure Article 38.22, Section 3(a)(2) provides that  oral statements made during custodial
interrogation are not admissible as evidence unless "prior to the statement but during the
recording the accused is given the warning in Subsection (a) of Section 2 above and the
accused knowingly, intelligently, and voluntarily waives any rights set out in the warning." (5)
	The court of appeals issued a published opinion in which it reversed the appellant's
conviction. (6)  The State then filed a motion for rehearing.  The court of appeals overruled the
motion, but it withdrew its original opinion and issued a substitute opinion in which it again
reversed the appellant's conviction; it held that, because the appellant was in custody when
he gave his second statement, the absence of Miranda warnings rendered the statement
inadmissible as a matter of federal and state constitutional law. (7)
	After the court of appeals issued its substitute opinion, the State filed a second motion
for rehearing in which it argued that it was irrelevant for constitutional purposes whether the
appellant was in custody during the second interview because the Miranda warnings given
during the first interview remained in effect during the second interview two days later.  The
appellant responded by reiterating that even if the Miranda warnings remained in effect two
days later, the statement was inadmissible as a matter of state law under Article 38.22,
Section 3(a)(2), because the police did not memorialize any Miranda warnings on the
videotape.
	Although the court of appeals did not grant rehearing, it did issue a supplemental
opinion.  In the supplemental opinion, the court of appeals concluded that the Miranda
warnings that the police gave to the appellant before his first statement remained in effect
during his second statement, and thus there were no violations of federal or state
constitutional law. (8)  But the trial court nevertheless erred in denying the motion to suppress
the appellant's second statement, the court of appeals held, because the police did not record
any Miranda warnings on the videotape, as required by Article 38.22, Section 3(a)(2). (9)  The
court of appeals rejected the State's argument that the appellant had not preserved the Article
38.22 claim for appeal, holding that the appellant had invoked the Article 38.22 violation
with sufficient specificity during the suppression hearing. (10)  Moreover, the court of appeals
held, it was clear that the trial judge and opposing counsel understood that the appellant was
making this statutory argument: (11) 
	We need not engage in speculation as to whether the court was aware of
appellant's complaint.  The trial court's statement [that it understood
appellant's argument] and the prosecutor's stipulation [that nowhere on the
videotape are there Miranda warnings] indicate they both understood
appellant's counsel was arguing a violation of the Code due to the absence of
Miranda warnings on the videotape.  We find the argument made during the
suppression hearing was sufficient enough to put the trial court on notice
appellant was arguing a violation of Article 38.22, Section 3(a)(2). (12)

THE LAW
	Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint is
not preserved for appeal unless it was made to the trial court "by a timely request, objection
or motion" that "stated the grounds for the ruling that the complaining party sought from the
trial court with sufficient specificity to make the trial court aware of the complaint, unless
the specific grounds were apparent from the context." (13)  Likewise, under Rule 103 of the
Texas Rules of Evidence, error may not be predicated upon a ruling which admits or excludes
evidence unless "a timely objection or motion to strike appears of record, stating the specific
ground of objection, if the specific ground was not apparent from the context." (14) 
	The purpose of requiring a specific objection in the trial court is twofold: (1) to inform
the trial judge of the basis of the objection and give him the opportunity to rule on it; (2) to
give opposing counsel the opportunity to respond to the complaint. (15)  Although there are no
technical considerations or forms of words required to preserve an error for appeal, a party
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." (16)  The parties, not the judge,
are responsible for the correct application of evidentiary rules; in order to preserve a
complaint for appeal, the complaining party must have done everything necessary to bring
the relevant evidentiary rule and its precise and proper application to the trial court's
attention. (17)
	But we cannot consider just the specific complaint in question; we must also look at
the context.  When the correct ground for exclusion was obvious to the judge and opposing
counsel, no forfeiture results from a general or imprecise objection. (18)  But when the context
shows that a party failed to effectively communicate his argument, then the error will be
deemed forfeited on appeal. (19) 
ANALYSIS
The Motions to Suppress
	Neither of the appellant's written motions to suppress preserved his Article 38.22
complaint for appeal.  In the first motion, the appellant argued that the videotaped statements
"were taken without the safeguards required by and in violation of Article 38.22 of the Code
of Criminal Procedure."  This claim is insufficient in itself to preserve for appeal the specific
argument that police failed to memorialize his Miranda warnings on tape as required by
Article 38.22, Section 3(a)(2).  Article 38.22 contains a number of subsections that could
have been applicable to the appellant's videotaped statement. (20)  The appellant's argument,
however, contained little more than a citation to the statute and did not bring the specific
violation of Article 38.22 to the trial court's attention. (21)  In any event, the trial court never
ruled on the appellant's first motion to suppress.  The appellant's second motion to suppress,
moreover, did not mention Article 38.22 at all, instead relying exclusively on constitutional
arguments.
The Suppression Hearing
	Notwithstanding these deficiencies in the appellant's motions to suppress, the court
of appeals held that the appellant alerted the trial court to his Article 38.22, Section 3(a)(2)
complaint during the suppression hearing when he asserted that the police "did not Mirandize
him on the tape." (22)  The court of appeals also held that statements by the trial court and
opposing counsel indicated that they both "understood appellant's counsel was arguing a
violation of the Code due to the absence of Miranda warnings on the videotape." (23)  We do
not believe that this is an accurate interpretation of either the appellant's argument or the
statements made by the trial court and opposing counsel.
	Three of our more recent cases support the contention that a complaint that could, in
isolation, be read to express more than one legal argument will generally not preserve all
potentially relevant arguments for appeal.  Only when there are clear contextual clues
indicating that the party was, in fact, making a particular argument will that argument be
preserved.  For example, in Keeter v. State, the appellant filed a motion for new trial in which
he submitted evidence that he argued established his innocence: an affidavit in which the
complaining witness recanted her trial testimony, and an affidavit from the complainant's
stepmother, the outcry witness, in which she said that she had told the prosecutor before the
trial that she did not believe the complainant's allegations. (24)  The appellant argued that it
should have been apparent that he was making a Brady claim because it was "intertwined"
with the recantation evidence. (25)  We held, however, that "the factual issues may have been
intertwined, but the legal issues were not." (26)  Because the broader context of the motion and
hearing suggested that the recantation evidence was offered to support an actual-innocence
argument, and because the appellant did not mention his Brady claim in his motion for new
trial or during the hearing, he did not preserve this argument for appeal. (27) 
 Similarly, in Reyna v. State, the appellant sought to introduce evidence at trial of a
victim's prior false accusation, arguing that he was offering the evidence for "credibility"
purposes, not to prove "the truth of the matter asserted" or "to go into her sexuality." (28)  On
appeal, he argued that the trial court had erred by excluding this evidence because he was
denied his right to "fully cross examine critical witnesses, including but not limited to the
accusing witness"; the court of appeals resolved this issue in the appellant's favor, citing two
cases relying on the Confrontation Clause. (29)  We held that, while the references to the "truth
of the matter asserted" and the victim's "sexuality" clearly indicated arguments based on the
Rules of Evidence, the reference to "credibility" could have been a reference to either the
Rules of Evidence or the Confrontation Clause. (30)  Because the appellant did not "'clearly
articulate' that the Confrontation Clause demanded admission of the evidence, the trial judge
'never had the opportunity to rule upon this rationale.'" (31)

	Finally, in Buchanan v. State, the appellant's statement at the suppression hearing
closely mimicked the language of Code of Criminal Procedure Article 14.05, which provides
for an officer's right to enter a residence when making an arrest without a warrant. (32)  This
Court, however, held that because the appellant's broader argument centered on
constitutional claims, he had not preserved the Article 14.05 argument for appeal: "trial
counsel's allusions to 'consent' and 'exigent circumstances' do not necessarily or exclusively
refer to Chapter 14, so as to make it 'obvious' that the appellant was raising it in addition to
his purely constitutional claim." (33)
	The statutory argument at issue in this case, the violation of Article 38.22, Section
3(a)(2), is legally distinct from the constitutional argument.  Even if a suspect is given
Miranda warnings and his constitutional rights have not been violated, an oral confession
may still be inadmissible if the police fail to comply with the purely statutory requirement
that they capture the Miranda warnings on the electronic recording. (34)  The words "they did
not Mirandize him on the tape," in isolation, could indicate that the appellant was
complaining that the police had not memorialized his Miranda warnings on videotape as
required by Article 38.22, Section 3(a)(2).  In context, however, the record suggests that the
appellant was using the absence of videotaped warnings to show that he had not been
Mirandized at all, in violation of his constitutional rights.  A review of the transcript of the
suppression hearing reveals that the appellant's arguments centered on whether or not the
interrogation was custodial and whether the appellant voluntarily waived his rights: "We
would contend that statement should be inadmissible, essentially an involuntary statement
or a statement given by the [appellant] not understanding certain rights that had been
guaranteed him both under Miranda and our State Constitution[.]"  He later stated that the
tape "is not going to be reflective of any Miranda warnings given thus far."  Nothing in the
appellant's argument during the hearing indicates that he was specifically relying on the
statutory  requirement that an electronic recording of an oral confession include a recording
of the Miranda warning itself.  In light of his clearly and persistently articulated
constitutional argument, and the lack of a statutory reference in his second motion to
suppress, the appellant's reference to the videotape is most likely part of his argument that
the police had violated his rights under the United States and Texas Constitutions by failing
to Mirandize him at any point during his custodial interrogation.  
	After reviewing the record of the hearing, we cannot hold that the trial court and
opposing counsel understood the appellant to be making a claim based on Article 38.22,
Section 3(a)(2).  In cases in which we have held that the trial record indicates that the correct
ground for complaint was obvious to the judge and opposing counsel, there have been
statements or actions on the record that clearly indicate what the judge and opposing counsel
understood the argument to be.  In Lankston v. State, for example, the appellant's counsel did
not specifically identify the statutory provision he was relying on. (35)  The judge, however, was
able to identify the provision: "I just want all the attorneys to stay within the parameters of
38.07. I believe that's what you're referring to." (36)  And in Ex parte Little, although the
appellant did not explicitly object to a mistrial on the grounds of manifest necessity, we held
that his complaint was obviously clear to the trial court because, following the mistrial, the
judge permitted the parties to present case law on manifest necessity and then granted them
time to prepare for a habeas corpus hearing. (37)  In these cases, it was appropriate for the
appellate court to reach the merits of the argument because it was clear that the trial court had
understood the argument and had a chance to rule on it as well. 
	In the present case, the trial court stated, "I understand, counsel. You have made a fine
point of law."  This only indicates that the judge believed that he understood the appellant's
argument, not which argument he believed the appellant was making.  And the State's
stipulation, far from being ambiguous, actually points to the constitutional argument: "We
will stipulate nowhere on the videotape of State's Exhibit No. 2-A is there Mirandized
warnings [sic] given to [the appellant], but [the appellant] in the trial of Esteban Perez . . .
admitted that the statement given in 2-A was freely and voluntarily given."  The second half
of this statement indicates that the State was focusing on constitutional issues of
voluntariness, which have nothing to do with the statutory requirement that Miranda
warnings be captured on tape.  The trial court did not have a fair opportunity to rule on a
specific Article 38.22 complaint.  The State did not have a fair opportunity to oppose such
a complaint.  Thus, neither of the two purposes undergirding our rules requiring specificity
in objections--to make sure that the trial judge understands what he is being asked to do, and
that the opposing party has a chance to actually oppose it--is vindicated by allowing the
appellant to raise his specific Article 38.22 complaint on appeal.
	It is also worth noting that the circumstances surrounding the filing of the two
suppression motions and the subsequent hearing lend credence to the contention that the
appellant's counsel was not making a claim based on Article 38.22, Section 3(a)(2), at the
suppression hearing.  The first motion to suppress, which contained only a general mention
of Article 38.22, was filed by the appellant's first attorney over a year before the second
motion to suppress was filed.  The second motion to suppress, filed by the appellant's second
attorney, reproduced two arguments made in the first motion to suppress, but left out the
others, including the reference to Article 38.22.  The hearing itself occurred shortly after the
filing of the second motion.  It appears that the parties understood that the purpose of the
hearing was to address issues raised in the second motion to suppress.
	In the present case, there are no indications on the record to support the contention
that the appellant raised a claim based on Article 38.22, Section 3(a)(2), nor is there anything
on the record to support the contention that the trial judge or opposing counsel understood
the appellant to have made this claim.
CONCLUSION
 Because we conclude that the appellant did not preserve his Article 38.22 argument
for appeal, we need not reach the State's second ground upon which we granted review.  We
reverse the judgment of the court of appeals and affirm the trial court's judgment. 

Delivered:	October 21, 2009
Published
1. 	 Resendez v. State, 256 S.W.3d 315, 336-37 (Tex. App.--Houston [14th Dist.] 2007); Tex.
Code Crim. Proc. art. 38.22, § 3(a)(2); Miranda v. Arizona, 384 U.S. 436 (1966).
2. 	 Tex. R. App. P. 66.3(c).
3. 	 Emphasis added.
4. 	 Although the appellant included the word "statutes" in this final bullet-point, it appears that
he was referring to the constitutional provisions previously listed.  If he intended to refer to any
statutory provisions, he never identified them.
5. 	 Tex. Code Crim. Proc. art. 38.22, § 3(a)(2).
6. 
 Resendez v. State, No. 14-05-00098-CR, 2006 Tex. App. LEXIS 10138, at *1 (Tex.
App.--Houston [14th Dist.] Nov. 28, 2006) [hereinafter Resendez I], withdrawn and overruled, 256
S.W.3d 315 (Tex. App.--Houston [14th Dist.] 2007).
7. 	 Resendez v. State, 256 S.W.3d 315, 327 (Tex. App.--Houston [14th Dist.] 2007) [hereinafter
Resendez II].
8. 
	 Resendez II, supra, at 333.
9. 
 Id. at 336-37.
10. 
 Id. at 335.
11. 
 Id.
12. 
 Id.
13. 
	 Tex. R. App. P. 33.1(a)(1)(A).
14. 
	 Tex. R. Evid. 103(a)(1).
15. 
 Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). 
16. 
 Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
17. 
 Reyna v. State, 168 S.W.3d 173, 176-77 (Tex. Crim. App. 2005) (quoting 1 Steven Goode,
Olin Guy Wellborn III & M. Michael Sharlot, Texas Practice: Guide to the Texas Rules of
Evidence: Civil and Criminal § 103.2 (2d ed. 1993), at 13-14). 
18. 
 Zillender v. State, supra.
19. 	 Lankston v. State, supra; see also Ex parte Little, 887 S.W.2d 62, 66 (Tex. Crim. App. 1994)
("It is only when the nature of a defendant's complaint is unclear that we should consider his
objection waived.").
20. 
	 Tex. Code Crim. Proc. art. 38.22, § 3.
21. 								 See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (holding that the
appellant's argument in his motion to suppress, that "any statements made by [the appellant] were
obtained in violation of his right to counsel and his right against self-incrimination as guaranteed by
U.S. Const. amends. V, VI, and XIV, and Tex. Const. art. I, §§ 10 and 19," was too global in nature
to preserve for appeal the specific argument that the police had violated the appellant's right to
counsel under the Fifth and Sixth Amendments by questioning him after he appeared before the
magistrate and requested counsel). 
22. 
 Resendez II, supra, at 335.
23. 	 Id.
24. 
 Keeter v. State, 175 S.W.3d 756, 757 (Tex. Crim. App. 2005).
25. 	 Id. at 759; Brady v. Maryland, 373 U.S. 83 (1963) (holding that suppression of evidence
upon request, where the evidence is favorable to an accused and material to guilt or punishment, is
a violation of the Due Process Clause of the Fourteenth Amendment).
26. 
 Keeter v. State, supra, at 760.
27. 	 Id. at 760-61.
28. 	 Reyna v. State, supra, at 175.
29. 	 Id. at 175-76.
30. 	 Id. at 179.
31. 	 Id. (quoting Clark v. State, 881 S.W.2d 682, 694 (Tex. Crim. App. 1994)).
32. 	 Buchanan v. State, 207 S.W.3d 772, 777 (Tex. Crim. App. 2006); Tex. Code Crim. Proc.
art. 14.05.
33. 	 Buchanan v. State, supra, at 777.
34. 
 See Davidson v. State, 25 S.W.3d 183, 186 n.4 (Tex. Crim. App. 2000) ("[Article] 38.22
merely prescribes the various requirements that must be satisfied before a statement made
by an accused as a result of custodial interrogation will be admitted against him/her at trial. 
That such requirements are not met does not mean that the statement was necessarily
obtained as a result of any legal or constitutional violation[.]").
35. 	 Lankston v. State, supra, at 909.
36. 	 Id.
37. 	 Ex parte Little, supra, at 66.
