                        NUMBER 13-16-00356-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JACK GERALD LARKINS A/K/A
JERRY LARKINS A/K/A GERALD
JACK LARKINS A/K/A JACK
GEAROLD LARKINS A/K/A JACK
LARKINS,                                                              Appellant,

                                      v.

THE STATE OF TEXAS,                                                    Appellee.


                 On appeal from the 347th District Court
                       of Nueces County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Contreras and Hinojosa
           Memorandum Opinion by Chief Justice Valdez

      A Nueces County jury found appellant Jack Larkins, a/k/a Jerry Larkins, a/k/a

Gerald Jack Larkins, a/k/a Jack Gerald Larkins, guilty of one count of aggravated
kidnapping and two counts of aggravated sexual assault. See TEX. PENAL CODE ANN.

§§ 20.04, 22.021 (West, Westlaw through 2017 1st C.S.). The trial court sentenced

Larkins to fifty years in prison on the aggravated kidnapping count and eighty years in

prison on the aggravated sexual assault counts. 1 By three issues, Larkins contends that:

(1) the statements he made during a custodial interrogation were admitted in violation of

his Fifth Amendment right against self-incrimination; (2) the trial court failed to apply an

objective standard when it determined that he waived his Miranda rights; and (3) he was

prejudiced and harmed by the trial court’s admission of his custodial interrogation. We

affirm.

                                      I.      BACKGROUND

          Larkins was arrested for aggravated sexual assault and aggravated kidnapping

that allegedly occurred on March 8, 2017. He was taken to the police station and

interrogated. After waiving his Miranda rights, he began to talk about the extent of this

encounter.      At trial, the State admitted a video statement of the interrogation over

Larkins’s objection that he had invoked his right to counsel. The propriety of the trial

court’s ruling is the subject of this appeal.

                                II.    PRESERVATION OF ERROR

          In his first point of error, Larkins contends that he invoked his Fifth Amendment

right to remain silent before he waived his Miranda rights. Larkins also argues that he

eventually waived his Miranda rights because of police “persuasion, promises, and quip




       1 The jury also convicted Larkins of misdemeanor assault and theft, for which the trial court

assessed punishment at 180 days in county jail. See TEX. PENAL CODE ANN. §§ 22.01, 31.03 (West,
Westlaw through 2017 1st C.S.). These counts are not at issue in this appeal.


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[sic] pro quo.” The State contends these issues were not preserved for our review

because Larkins did not raise his objections in the trial court. We agree with the State.

A.     Standard of Review and Applicable Law

        In order for an issue to be preserved on appeal, there must be a timely objection

that specifically states the legal basis for the objection. TEX. R. APP. P. 33.1(a); Rezac v.

State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (en banc). A general or imprecise

objection will not preserve error for appeal unless “the legal basis for the objection is

obvious to the court and to the opposing counsel.” Vasquez v. State, 483 S.W.3d 550,

554 (Tex. Crim. App. 2016) (quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim.

App. 2006) (emphasis in original)). When a complaint on appeal differs from that made

at trial, the error is waived. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993)

(en banc). “An objection stating one legal basis may not be used to support a different

legal theory on appeal.” Rezac, 782 S.W.2d at 870. “Whether a party’s particular

complaint is preserved depends on whether the complaint on appeal comports with the

complaint made at trial.” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009);

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Goff v. State, 931 S.W.2d

537, 551 (Tex. Crim. App. 1996) (en banc); Rios v. State, 263 S.W.3d 1, 5 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d); Flores v. State, 125 S.W.3d 744, 747 (Tex. App.—

Houston [1st Dist.] 2003, no pet.). “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.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).

B.     Discussion



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       On appeal, Larkins contends he invoked his right to remain silent with the following

statements: “I do not want to talk to you,” “I am not interested in anything except my wife,”

“I do not understand.”      Additionally, Larkins contends that the interrogating officer

allegedly promised him information concerning Larkins’s wife in exchange for Larkins’s

written waiver. However, at trial, Larkins objected to the admission of the interrogation

video on the basis that he had invoked his right to counsel, stating:

       . . . [W]e object to the admissibility of that video because [Larkins] did invoke
       his right to counsel. . . . Once he initially said “I want my lawyer,” it has to
       stop. . . . [Officer] shouldn’t be initiating any conversation with him after he
       says, “I want my lawyer.” He should be, Okay. That’s it. We’re leaving. . .
       [O]nce [Larkins] says, “I want my lawyer,” say, “Okay. You want your lawyer.
       [W]e’re out. We’re done.”

In addition, Larkins did not refer to his right to remain silent or the voluntariness of his

confession in any way so as to indicate that he was objecting on that legal basis. See

Vasquez, 483 S.W.3d at 554 (holding that the legal basis for the objection must be

obvious to the court and to opposing counsel).          As a result, the State’s response

concerned whether Larkins had invoked his right to counsel, and the State argued as

follows:

       State:        I disagree with that, Your Honor. [H]ere in this case, the
                     defendant keeps talking on his own, not in response to
                     questioning. He is reinitiating the conversation on his own.
                     And then the Ranger even tells him, after a period of time,
                     “Look, I understand you are asking for a lawyer, but”—
                     basically I’m paraphrasing—“[I]t’s confusing because you are
                     still telling us stuff. So if you want a lawyer, I will give you a
                     lawyer. That’s when the defendant takes it back, which I think
                     the case says, basically, you can take it back. You can
                     reinitiate the conversation.

Thus, Larkins’s arguments on appeal—that his incriminating statements should have

been suppressed because he invoked his right to remain silent and because he was



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promised information in exchange for his statement—are legally distinct from the

argument he made to the trial court that they should have been suppressed because he

requested an attorney. See Resendez, 306 S.W.3d at 312 (holding appellant’s argument

to the trial court that referenced article 38.22 of the Texas Constitution was insufficient to

preserve error for appeal of his specific argument under article 38.22 because “[a]rticle

38.22 contains a number of subsections that could have been applicable to the appellant’s

videotaped statement”); Rezac, 782 S.W.2d at 870 (holding that “[a]n objection stating

one legal basis may not be used to support a different legal theory on appeal”); see also

TEX. CODE CRIM. PROC. ANN. art. 38.22 (West, Westlaw through 2017 1st C.S.).

        Here, because Larkins never argued to the trial court that he invoked his right to

remain silent or that his waiver was not voluntary, the State did not have the opportunity

to oppose those legal bases. See Resendez, 306 S.W.3d at 312. Similarly, the trial court

was never afforded the opportunity to rule, or to refuse to rule, on the issues of whether

Larkins invoked his right to remain silent or the voluntariness of his waiver. 2                        Id.

Accordingly, neither of the two purposes—to make sure that the trial judge understands

what she is being asked to do and that the State has a chance to actually oppose it—is

vindicated by allowing Larkins the opportunity to raise these new arguments on appeal.

Id.

        After reviewing the record, we cannot conclude that Larkins objected to the

admission of his statements on the basis of invoking his right to remain silent or


        2 We note the trial court postponed ruling on Larkins’s invocation of counsel objection until the
parties researched the matter further. However, the trial court failed to rule on the matter and allowed the
State to continue to play the video of the custodial interrogation. See Martinez v. State, 98 S.W.3d 189,
193 (Tex. Crim. App. 2003) (“If, on appeal, a defendant claims the trial judge erred in admitted evidence
offered the by the State, this error must have been preserved by a proper objection and a ruling on that
objection.”). Here, Larkins did not obtain a ruling from the trial court. See TEX. R. APP. P. 33.1.


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voluntariness. Id. at 315. Because his arguments on appeal do not comport with the

objection at trial, we find that his complaint is waived. See TEX. R. APP. P. 33.1(a); Pena,

285 S.W.3d at 464. Having concluded that Larkins failed to preserve error, we overrule

his first point of error. 3 See TEX. R. APP. P. 33.1(a); Resendez, 306 S.W.3d at 312.

                                       II.     CONCLUSION

       We affirm the trial court’s judgment.

                                                              /s/ Rogelio Valdez
                                                              ROGELIO VALDEZ
                                                              Chief Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed this
18th day of October, 2018.




       3 Because we have determined that Larkins did not preserve his complaint for appeal, we do not
address his second and third grounds for review because they are not dispositive. See TEX. R. APP. P.
47.4.

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