Adrian Gomez v. State ( 2019 )

Opinion issued December 19, 2019.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00774-CR
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ADRIAN GOMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1405348
MEMORANDUM OPINION
Adrian Gomez was convicted of murder and sentenced to confinement for
life. See TEX. PENAL CODE § 19.02. In a single issue, Gomez contends that the trial
court abused its discretion in denying his motion to suppress his custodial
statement. Because Gomez’s argument on appeal does not comport with the
objection he made at trial, we hold that Gomez failed to preserve error for appellate
review. Therefore, we affirm.
Background
In the fall of 2013, Gomez attempted to rob a taco truck in Harris County,
Texas. During the altercation, Gomez shot and killed the truck’s owner. Gomez
fled the scene and was later apprehended in Madison County, Texas, where he
made his initial appearance before a local magistrate.
At the initial appearance, the magistrate informed Gomez that he had been
charged with capital murder and provided him with a statutory magistrate’s
warning. See TEX. CODE CRIM. PROC. art. 15.17. The magistrate read each warning
from a magistrate’s warning form. She went through the warnings on the form line
by line, checking each after Gomez stated that he understood it. The magistrate
checked the line on the form indicating that Gomez requested that he be appointed
an attorney and noted in handwriting that Gomez would make the request “at
Harris Co.” Gomez reviewed and signed the form.
Gomez was then transported back to Harris County, where he was
interrogated by a police officer investigating the shooting. Before the interrogation
began, the officer read Gomez a statutory interrogation warning. See id. art. 38.22,
§§ 2–3. Gomez then waived his rights and confessed to the murder.
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Before trial, Gomez moved to suppress his custodial statement, arguing that
the statement violated Code of Criminal Procedure, article 38.22, because the
interrogation was initiated and conducted after he had already requested that he be
appointed counsel at his initial appearance. See id. art. 38.22, §§ 2(a)(3), (b),
3(a)(2). Gomez asserted that by requesting counsel at his initial appearance, he
invoked his right to have a lawyer present to advise him before and during any
custodial interrogation. See id. art. 38.22, § 2(a)(3). And, as a result, Gomez
claimed, the waiver he made before his interrogation—and outside the presence of
counsel—was involuntary.
The State responded that Gomez’s motion rested on caselaw that had been
abrogated by the United States Supreme Court in Montejo v. Louisiana, 556 U.S.
778 (2009). Under existing law, the State explained, Gomez’s request for counsel
at his initial appearance did not constitute an invocation of his right to counsel at
future custodial interrogations initiated by the police. See Pecina v. State, 361
S.W.3d 68, 78 (Tex. Crim. App. 2012) (“Distilled to its essence, Montejo means
that a defendant’s invocation of his right to counsel at his Article 15.17 hearing
says nothing about his possible invocation of his right to counsel during later
police-initiated custodial interrogation.”); Williams v. State, 531 S.W.3d 902, 915
(Tex. App.—Houston [14th Dist.] 2017) (“Under Montejo, appellant’s request for
counsel at an arraignment has no effect on the invocation of his right to counsel
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during later police-initiated custodial interrogation.”), aff’d, 585 S.W.3d 478 (Tex.
Crim. App. 2019). The trial court agreed, found that Gomez knowingly,
intelligently, and voluntarily waived his rights, and denied the motion.
The case then proceeded to trial. The jury convicted Gomez of murder, and
the trial court sentenced Gomez to confinement for life.
Gomez appeals.
Preservation of Error
In his sole issue, Gomez argues that the trial court abused its discretion in
denying his motion to suppress his custodial statement because the magistrate
failed to comply with Code of Criminal Procedure, article 15.17, at Gomez’s initial
appearance, thereby rendering his subsequent custodial statement involuntary and
thus inadmissible.
Under Texas law, the term “initial appearance” is used to describe the
proceeding at which an arrestee is first brought before a magistrate. See Pecina,
361 S.W.3d at 77. It is governed by Code of Criminal Procedure, article 15.17.
Article 15.17 begins by providing that the arresting officer “shall without
unnecessary delay . . . take the person arrested . . . before some magistrate” to
make his initial appearance. TEX. CODE CRIM. PROC. art. 15.17(a). Article 15.17
then sets forth the duties of the magistrate at the initial appearance and
immediately afterward. Id. These duties primarily consist in providing the arrestee
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with a detailed set of warnings, many of which are similar to those that an officer is
required to provide before a custodial interrogation under article 38.22. Compare
id., with id. art. 38.22, §§ 2(a), 3(a)(2).
In addition to providing these warnings, article 15.17 imposes various other
duties on the magistrate, some of which are without analogue under article 38.22.
As relevant here, article 15.17 provides that the magistrate “shall allow the person
arrested reasonable time and opportunity to consult counsel.” Id. art. 15.17(a).
Gomez construes this part of article 15.17 as requiring the magistrate to allow the
arrestee reasonable time and opportunity to consult with an attorney at the initial
appearance. Gomez argues that the magistrate violated this part of article 15.17 by
failing to offer Gomez the opportunity to speak with an attorney in Madison
County before the police transported him back to Harris County.
The State responds that Gomez failed to preserve this complaint for
consideration on appeal. We agree.
To preserve a complaint for appellate review, the complaining party must
normally make a timely and specific objection and obtain a ruling from the trial
court. TEX. R. APP. P. 33.1(a); Bekendam v. State, 441 S.W.3d 295, 300 (Tex.
Crim. App. 2014). Although we are not “hyper-technical” in determining whether
error was preserved, “the point of error on appeal must comport with the objection
made at trial.” Bekendam, 441 S.W.3d at 300. Thus, “[a]n objection stating one
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legal theory [at trial] may not be used to support a different legal theory on
appeal.” Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting
Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)).
Here, Gomez’s argument on appeal does not comport with the objection
made at trial. At trial, Gomez argued that he invoked his right to counsel at his
initial appearance and that the investigating officer therefore violated article 38.22
when he later conducted a custodial interrogation outside the presence of Gomez’s
counsel. On appeal, by contrast, Gomez argues that the magistrate violated article
15.17 by failing to allow Gomez reasonable time and opportunity to consult
counsel in Madison County before the police transported him back to Harris
County.
Thus, Gomez’s legal theory on appeal is different from his legal theory at
trial. The two theories are based on different laws (article 15.17 and article 38.22)
imposing duties on different parties (the magistrate and the investigating officer) at
different proceedings (the initial appearance and the custodial interrogation).
Assuming without deciding that Gomez has correctly construed and applied
article 15.17, we hold that Gomez has failed to preserve his complaint for appellate
review. See, e.g., Mbugua v. State, 312 S.W.3d 657, 666–67 (Tex. App.—Houston
[1st Dist.] 2009, pet. ref’d) (holding that defendant did not preserve complaint
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regarding admissibility of custodial statement in part because complaint on appeal
did not comport with grounds argued in motion to suppress).
Gomez contends that the admission of his custodial statement constituted
fundamental error that can be considered by this Court even without an objection
raised in the trial court. We disagree.
It is well-established that complaints regarding the improper admission of
evidence, such as a defendant’s custodial statement, must be objected to at trial to
be preserved for consideration on appeal. See Saldano v. State, 70 S.W.3d 873, 890
(Tex. Crim. App. 2002) (“Because the appellant did not object to the admission of
the testimony of which he now complains, the question he seeks to present has not
been preserved for review on appeal.”); Martinez v. State, 22 S.W.3d 504, 507
(Tex. Crim. App. 2000) (“To preserve error regarding the admission of evidence, a
defendant must lodge a timely and specific objection . . . to give the trial court . . .
the opportunity to correct the error . . . .”); Mbugua, 312 S.W.3d at 666–
67 (holding that defendant did not preserve complaint regarding admissibility of
custodial statement because complaint on appeal did not comport with grounds
argued in motion to suppress).
We overrule Gomez’s sole issue.
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Conclusion
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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