Ranson v. State , 1986 Tex. Crim. App. LEXIS 1226 ( 1986 )

MILLER, Judge,

dissenting.

Although I agree with the majority’s treatment of appellant’s first ground of error, I strongly disagree with the handling of appellant’s second ground of error. Appellant contends that the trial court erred in allowing the State to read into evidence parts of an in-custody oral confession purportedly made by appellant without proof that appellant was properly warned. I would hold that: the State effectively introduced the statement by reading large portions of it; the State did not demonstrate that appellant received the warnings required by law, nor did it lay the proper predicate for admission of the statement; appellant did indeed preserve error regarding the admission of the statement; and the trial court’s error in allowing the statement to be read cannot reasonably be characterized as “harmless.”

During direct examination, appellant denied committing the offense. He attempted to show that his wife, Donna, who was the mother of the victim, originated the charges against him because of their marital problems. The State, during cross-examination, attempted to impeach appellant by questioning him regarding the lengthy tape-recorded statement he allegedly made on the night of his arrest. Defense counsel promptly objected to this line of questioning and asked that the jury be removed. This objection was overruled. Claiming that the proper predicate for admissibility had not been laid, defense counsel continued to object to any references to this “statement” and finally asked for, and received, a running objection. (This sequence is set out in the majority opinion, slip op. pp. 98-99.) He later objected to the use of the statement on the grounds that the State failed to prove that, prior to the taking of the oral statement, appellant had received any warnings of his rights or waived those rights as mandated by Art. 38.22, Y.A.C.C.P.

The State does not contest appellant’s position that the statement was made as a result of custodial interrogation, but claims that no attempt was made to admit the unsigned confession into evidence. This contention flies in the face of reality. The State did not, in fact, actually introduce as an exhibit the tape recording of the statement or the transcript made from the tape recording. Nor did any State’s witness actually testify that the appellant made the statement. Instead, the prosecutor read sometimes lengthy passages from the transcript made of this statement and then asked appellant, “did you tell me that?” or, “do you recall telling me that?” Although appellant occasionally testified that he remembered making some of the statements, he generally testified that he was intoxicated at the time and could “not recall” whether he made the particular statements. For example, the following excerpts illustrate a few of the more succinct questions asked of the appellant:

“Q. [BY PROSECUTOR] Okay, sir. Do you recall making the statement T never wanted to have sexual intercourse with a girl, that never entered my mind. Really, I never got any sexual pleasure out of it, and I think I can truthfully say that with K_, it was not intended to be pleasure. What I started out to do with K_, kind of [got] out of shape with arguing and misunderstanding, where it got blowed up to where I threatened Donna, if she didn’t.’ Do you recall making that statement?

A. Part of it.

Q. Okay. Do you recall, when I asked you the question, ‘What did you do in reference to K_?’ Do you recall answering, T kissed on her vagina and let it go at that.’ Do you recall saying that?

A. I do not. No, ma’am.”

This method of questioning interjected into evidence a large portion of the oral statement of appellant. The statement was thereby introduced just as if the prosecutor had the instrument marked and introduced into evidence as an exhibit. Huff v. State, 576 S.W.2d 645 (Tex.Cr.App.1979). The majority apparently recognizes this conclusion, although the issue is not discussed.

The next inquiry is whether the statement was properly admitted, and again the majority does not fully dispose of the issue. The State argues that the statement was properly admissible for impeachment purposes under the provisions of Art. 38.22, § 5, V.A.C.C.P., (1979).

Article 38.22, V.A.C.C.P., (1979), provided in pertinent part:¹

“Sec. 3. (a) An oral or sign language statement of an accused made as a result of custodial interrogation is admissible against the accused in a criminal proceeding for the purpose of impeachment only and when:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is told that a recording is being made;

(3) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Sec. 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(4) the recording device was capable of making an accurate recording, that the operator was competent, and that the recording is accurate and has not been altered;

(5) the statement is witnessed by at least two persons; and

(6) all voices on the recording are identified.

Sec. 5. Nothing in this article precludes the admission of a statement made by the accused in open court at his trial, before a grand jury, or at an examining trial in compliance with Art. 16.03 and 16.04 of this code, or of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or any other statement that may be admissible under law.” [Emphasis supplied.]

Contrary to the state’s contention that Section 5 permitted the introduction of the statement without the warnings required by Section 3, we held in Alfaro v. State, 638 S.W.2d 891 (Tex.Cr.App.1982) that Section 3 controls over Section 5:

“An oral statement made by the accused as a result of custodial interrogation during the effective dates of that statute (August 29, 1977 through August 31, 1981) is admissible only for impeachment purposes and only when the statement is shown to comply with the six specific requirements contained in Section 3.” Alfaro, supra at 900.

Appellant’s trial occurred during the applicable period discussed in Alfaro, supra. His statement, effectively admitted into evidence, was only admissible subject to satisfaction of the six requirements set out in Art. 38.22, § 3, V.A.C.C.P., (1979), as quoted supra. As discussed below, the State failed to show that all six requirements were met, the trial court thus erred in allowing the statement to be read, and the majority fails to demonstrate that the trial court did not so err.

At this point, I address two issues that are discussed by the majority: whether appellant properly preserved error, and whether any error in admitting the statement was harmless. Both issues require close examination of the record.

As the majority points out, defense counsel did not make any objection regarding the failure to give warnings until well after the prosecutor began to cross-examine appellant by reading his recorded statement back to him. However, defense counsel did object to the reading (introduction) of the statement at the first opportunity, urging grounds that the trial court should have sustained. It was only after the trial court erroneously overruled those objections that, at the first opportunity after it became apparent that the warnings may not have been given, appellant's attorney made the appropriate objection brought forward on appeal. Defense counsel’s initial objections to the cross-examination are shown in the sequence set out in the majority opinion, slip op. pp. 98-99. Rather than repeat that portion of the transcript, I set out the relevant objections made by defense counsel during the sequence quoted in full by the majority:

“[T]he State has failed to lay the proper predicate in regard to the care, custody and control of that particular tape, how it was reduced to writing, and how it became a typewritten report. She was talking about a tape recording, and now she has got a written report from it.

We don’t have the slightest idea where that report came from.

The State had the opportunity, when they put on their case in chief, to put on someone to testify, if in fact, these papers are accurate. We have no idea of their authenticity.

[T]hey should have put on somebody to prove up ... the authenticity of the tape, who took the tape, where the tape was kept, how it was stored, who transcribed the tape, if in fact, it was transcribed, and whether or not there was a tape in the first place.”

After all objections were overruled, the prosecutor went on to read long portions of appellant’s statement into the record, beginning with his account of bringing his two wives together, and asking appellant if he remembered making those portions of the statement. Defense counsel successfully had the prosecutor instructed to make her questions more explicit, then had his objection to her reading long statements sustained, and again had her instructed to be more explicit, with a running bill of exceptions to the form of her questions.

The most damaging portions of the statement followed. Appellant was asked if he recalled telling the prosecutor that he told his wife, “I want you to have sex with my son.” Appellant responded that his wife had had sex with his son, but not at his urging, so that his previous statement was a lie. Then he was asked about arguing with his second wife over her having sex with K— B_This led to questioning specifically about the offense in issue. Appellant was asked if he remembered saying, in reference to K_B_, “I kissed her on the vagina and let it go at that.” He was asked if he remembered saying, “there were three or four incidents with [K_ B_], all total,” and if he remembered saying, “most of the time, just caressing her body, and sometimes I would kiss on her, but I think only twice that I kissed her on her vagina.” Appellant was also asked about statements he made indicating that he insisted that his second wife caress K_ B_, and about statements indicating that his first wife witnessed him forcing his second wife to have sex with his teenage son.

After a few more questions dealing with inconsistencies in his story about breaking up with his second wife, appellant was asked about the conditions surrounding the making of the statement. He indicated that he could not remember how long the taking of the statement lasted, that he had been drinking beer and vodka all day long, and the following:

“Q. [BY PROSECUTOR]: Okay, sir. Now, do you recall that, prior to making that statement, Mr. Ran-son, I warned you of various rights that you had under the law?

A. You may have.

Q. You don’t remember that?

A. No, ma’am. Not all of them.

Q. You don’t remember all of them?

A. No, ma’am.”

Defense counsel objected after the next question was asked, on the grounds that the State had not shown that the necessary warnings were given. The prosecutor argued (contrary to Alfaro, supra) that any time a witness makes prior inconsistent statements, they are admissible for purposes of impeachment. The defense objection was overruled and defense counsel obtained a running bill of exceptions based on the failure to give warnings.

Appellant’s second ground of error is based on this objection and ruling, which the majority finds was too late to preserve error. The majority fails to recognize that defense counsel’s initial objections to the reading of the statement, set out above, should also have been sustained. The objections adequately informed the trial court that another of the six requirements for admissibility under Art. 38.22, § 3(a), V.A. C.C.P., was not met. Part (4) of Art. 38.22, § 3(a), supra, requires a showing that:

“the recording device was capable of making an accurate recording, that the operator was competent, and that the recording is accurate and has not been altered.”

Alfaro, supra, clearly makes this a requirement of admissibility for impeachment purposes, just as a showing of warnings and a waiver of rights is required. It is apparent from the record, as set out by the majority, that the prosecutor thought that the only prerequisites for admissibility were those for “plain vanilla” prior inconsistent statements: mentioning the time and place at which, and the person to whom, it is suggested that the statements were made. See 25 Tex.Jur.3d § 3381 (1983) and cases cited therein. Under Alfa-ro, supra, the trial court erroneously agreed with the prosecutor and allowed the reading of the statement over defense counsel’s objections.

Ex parte Bagley, 509 S.W.2d 332 (Tex. Cr.App.1974), is relied upon by the majority to demonstrate that appellant failed to preserve error by objecting in time. In Bag-ley, supra, defense counsel failed to make any objection regarding involuntariness or the failure to warn, and failed to make any other objection that would have preserved error. Numerous other cases can be found where the failure to make any sustainable objection to the admission of a defendant’s statement was held to have waived error. See, e.g., Holmes v. State, 493 S.W.2d 795 (Tex.Cr.App.1973); Larocca v. State, 479 S.W.2d 669 (Tex.Cr.App.1972); Reese v. State, 404 S.W.2d 320 (Tex.Cr.App.1966); Macias v. State, 386 S.W.2d 534 (Tex.Cr.App.1965). Still other “waived error” cases can be found where the proper objection was made but was not made at the first opportunity; i.e., was not made as soon as the grounds of objection became apparent. Sierra v. State, 482 S.W.2d 259 (Tex.Cr.App.1972); See generally, 15 Tex. Digest 2d, Criminal Law, Key # 693 (West 1983).

In the instant case, much of the complained of testimony came in before the sustainable objection regarding the failure to warn, but after defense counsel’s sustainable objections regarding the failure to prove the proper predicate. This presents a rather unique situation in the area of preservation of error. As set out in the majority opinion, the defense began objecting at the beginning of the introduction of the evidence. The initial general objection was followed, before any of the evidence was disclosed to the jury, with a specific objection; and as the evidence was gradually disclosed the defense periodically urged (at pages 224, 226, 230 and 246 to 248 of the record) different specific grounds for objection, which I have highlighted, supra. As pointed out earlier the evidence should have been excluded for each of the reasons advanced by the defense via specific objection. Every objection was erroneously overruled. Thus the appellant preserved error in the trial court by timely objection. There can be no question of that.

Assuming the majority would agree, they would respond that appellant has failed to preserve error on appeal, since he does not complain of the statement’s admission over his initial objections (improper 38.22 § 3(4) predicate) but rather complains for the reason espoused in his later (the majority says untimely) objection (improper 38.22 § 3(3) predicate). It is well established that the grounds of an objection at trial must be the same as the grounds urged on appeal or nothing is preserved for review. See Vanderbilt v. State, 629 S.W.2d 709, 721 (Tex.Cr.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1981), and cases cited therein. In this case, however, appellant’s brief was due and timely filed with this court eighteen months before we handed down Alfaro, supra, the first case that gave him notice that his initial objection was grounds for reversal. To fault him for not raising grounds that are not yet recognized grounds for reversal is a unique method of upholding this particular conviction, but fundamentally unfair.

The premise of the contemporaneous objection rule is that a trial judge must be alerted immediately when the objectionable nature of the evidence becomes manifest. Here the defense counsel did so as each ground became apparent (e.g., objecting to improper warnings as soon as the appellant testified he didn’t remember receiving warnings). The rule that trial and appellate grounds must be the same likewise is premised on the notion that the trial judge was told of the specific reason that the evidence was improper and on the notion that it is wrong to fault a trial judge’s ruling for any reason that was not pointed out to him during the contemporaneous objection. On appeal appellant urged the only trial objection ground that caselaw classed as reversible error, and pointed out that he had objected generally and specifically from the first proffer of the erroneously admitted evidence. To deny his complaint because after his brief was filed caselaw for the first time classed his other trial objection grounds as reversible error serves no purpose behind the contemporaneous objection rule or the rule that trial grounds and appellate grounds must be the same. We should therefore decline to do so. Pending analysis of harm, appellant’s second ground of error should be sustained.

The majority opinion would hold that error, if any, was harmless, under the standard of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) and Vanderbilt, supra at 724. This test, as the majority correctly states, is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Conversely:

“If we conclude ‘that the “minds of an average jury” would not have found the State’s case significantly less persuasive had the testimony now at issue been excluded, we need not reverse. Schneble v. Florida, supra (emphasis added).” Vanderbilt, supra at 724.

As the above summary of the impeachment sequence demonstrates, some enormously damaging evidence was read to the jury. The State’s entire case prior to the impeachment was the testimony of K_ B_The majority holds that her testimony was sufficient to overrule appellant’s first ground of error, and I agree. However, her testimony did not constitute such an overwhelming amount of evidence against appellant that I would conclude that had appellant’s own incriminating statement been excluded, the average jury would not have found the State’s case significantly less persuasive. In other words, there is a reasonable (even substantial, in this case) probability that the evidence complained of might have contributed to the conviction.

Vanderbilt, supra, cited by the majority as an example of harmless error, is easily distinguished on its facts. There the complained of evidence was hearsay: specifically, a firearms identification expert’s oral testimony concerning information from a computer that showed the fatal bullet came from a Smith & Wesson revolver. We held that, even if the jury accepted the expert’s opinion as fact, his statement that there were “literally millions” of Smith & Wesson revolvers rendered the testimony harmless beyond a reasonable doubt. Id. at 725.

The statements read to the jury in the instant case specifically admitted the crime in question, and mentioned other incidents of arguably coercive and perverted conduct. I find this case more closely analogous to McCrory v. State, 643 S.W.2d 725 (Tex.Cr.App.1982), where an oral statement was admitted although the defendant received no warnings. We held that because the statement was the only conclusive evidence of guilt, its admission could not be considered harmless beyond a reasonable doubt. Although appellant’s statement was not the only evidence in the case before us, in view of the hotly contested issues and direct defense testimony controverting that of the State, the statement’s probable negative impact on the jury cannot realistically be denied. Considering further the nature of the statement, and that appellant received the maximum penalty for this offense, I fail to understand how the majority concludes that the inadmissible evidence was harmless beyond a reasonable doubt. See Stone v. State, 612 S.W.2d 542 (Tex.Cr.App.1981); Newberry v. State, 552 S.W.2d 457 (Tex.Cr.App.1977).

In summary, the majority fails to adequately or realistically discuss and dispose of the issues raised by appellant’s second ground of error. I therefore respectfully dissent.

TEAGUE, J., joins.

1 . Article 38.22, V.A.C.C.P., was significantly amended in 1981, after the trial in this cause.