                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                  §
 AARON DERAY HOUSTON,                                             No. 08-07-00047-CR
                                                  §
                        Appellant,                                    Appeal from
                                                  §
 v.                                                               282nd District Court
                                                  §
 THE STATE OF TEXAS,                                            of Dallas County, Texas
                                                  §
                        Appellee.                                (TC # F-0560986-WS)
                                                  §

                                           OPINION

       Aaron Deray Houston appeals his conviction of possession with intent to deliver more than

four but less than 200 grams of cocaine, enhanced with a prior felony conviction. Following the

jury’s finding of guilt, the trial court found the enhancement paragraph true and assessed Appellant’s

punishment at imprisonment for twenty years. We affirm.

                                     FACTUAL SUMMARY

       On the afternoon of December 28, 2005, two Dallas police officers, Kurt Kresta and Terrell

McNeal, were on routine patrol in a high crime/high drug traffic area. The officers observed

Appellant hand something to another individual but they could not see the object. Appellant saw

the officers watching him and turned his back to them. The officers drove around the block and

returned to the area. They saw Appellant wave down a white car and approach the window. As the

officers pulled into the parking lot to speak with Appellant, the white car drove away and Appellant

began walking away from the officers toward a group of people standing near a parked car. The

officers exited their vehicle and McNeal conversed with the group while Kresta spoke with

Appellant. Appellant denied that he had been speaking with anyone when the officers first saw him.
Kresta asked Appellant whether he had any weapons on his person. Appellant said he did not and

told Kresta he could search him. During the pat-down search, a small bag of crack cocaine fell from

Appellant’s pants and Appellant attempted to hide it with his foot. Kresta placed Appellant under

arrest. While transporting Appellant to jail, he asked the officers whether they were really going to

put him in jail for “one rock.” He also asked what charge the officers were filing against him and

Kresta told him possession of cocaine. Appellant replied, “I don’t smoke dope, I sell it.” At the jail,

detention officers performed a strip search and found numerous baggies of crack cocaine hidden in

Appellant’s sleeves and genital area.

                      ADMISSIBILITY OF THE ORAL STATEMENTS

       In his sole point of error, Appellant contends that the trial court abused its discretion by

overruling his objection to the admissibility of Appellant’s oral statements made to the officers. He

argues that his statements were not made freely and voluntarily because Appellant was in custody

at the time he made the statements. The State responds that Appellant did not preserve error.

                                        Preservation of Error

       As a prerequisite to presenting a complaint for appellate review, the record must show that

the complaint 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. TEX .R.APP .P. 33.1. Appellant did not file a pretrial motion to suppress the

statements. Instead, he filed a pretrial motion requesting a sub rosa hearing to determine the

admissibility of any oral or written statements but he did not state any particular grounds for

exclusion of the statements. The trial court granted the motion. During Kresta’s testimony at trial,

the trial court conducted a hearing outside the presence of the jury to determine the admissibility of
the oral statements. At the conclusion of the hearing, Appellant objected that his statements were

not voluntary. The trial court found that the statements were not made in response to custodial

interrogation and were voluntary. The court overruled Appellant’s objection. We find that

Appellant preserved his complaint regarding the voluntariness of the oral statements by making a

timely and specific objection which the trial court overruled.

                                 Voluntariness of the Statements

       An accused’s statement is admissible if the accused made it freely and voluntarily and

without compulsion or persuasion. TEX .CODE.CRIM . PROC. ANN . art. 38.21 (Vernon 2005). When

deciding whether a statement was voluntary, we consider the totality of the circumstances in which

the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App. 1997). A

confession is involuntary if circumstances show that the defendant’s will was “overborne” by police

coercion. Creager, 952 S.W.2d at 856. The defendant’s will may be “overborne” if the record

shows that there was “official, coercive conduct of such a nature” that a statement from the

defendant was “unlikely to have been the product of an essentially free and unconstrained choice by

its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995).

       In all cases where a question is raised as to the voluntariness of a statement of an accused,

the court must make an independent finding in the absence of the jury as to whether the statement

was made under voluntary conditions. TEX .CODE CRIM .PROC.ANN . art. 38.22, § 6 (Vernon 2005).

However, Article 38.22, § 6 applies only to written and recorded oral statements made by the

accused during custodial interrogation. TEX .CODE CRIM .PROC.ANN . art. 38.22, § 6; Holberg v.

State, 38 S.W.3d 137, 141 (Tex.Crim.App. 2000); Dowthitt v. State, 931 S.W.2d 244, 258

(Tex.Crim.App. 1996); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.--El Paso 1995, no pet.).

Article 38.22, § 5 specifically exempts statements which do not “stem from custodial interrogation.”
TEX .CODE CRIM .PROC.ANN . art. 38.22, § 5. “Interrogation” refers not only to express questioning,

but also to any words or actions on the part of the police that the police should know are reasonably

likely to elicit an incriminating response from the suspect. See Rhode Island v. Innis, 446 U.S. 291,

300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980).

       Although Appellant was in custody, his oral statements were not the product of express

questioning or its functional equivalent. See id. at 300-01, 100 S.Ct. at 1689-90. Further, there is

no evidence that Appellant made the statements only after his will was overborne by official,

coercive conduct. To the contrary, the record reflects that Appellant freely engaged in conversation

with the police officers and voluntarily made the statements without the necessity of any questioning,

much less coercion, on the part of the police. The trial court did not abuse its discretion in finding

that Appellant’s statements were voluntary and admissible. We overrule Appellant’s sole point and

affirm the judgment of the trial court.


April 23, 2009
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating

(Do Not Publish)
