Jeremy Chad Braun v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00335-CR
________________________
JEREMY CHAD BRAUN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 23,926-B; Honorable John B. Board, Presiding
May 21, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Jeremy Chad Braun, was convicted following a jury trial of theft of
property (copper wire) having a value of less than $20,0001 and was sentenced to one
year confinement. In a single issue, Appellant asserts the trial court erred by admitting
Appellant’s unrecorded oral statements to law enforcement prior to his arrest. We
affirm.
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See TEX. PENAL CODE ANN. § 31.03(e)(4)(F) (West Supp. 2014). An offense under this section
is a state jail felony.
BACKGROUND
In March 2013, a grand jury returned an indictment that alleged, “on or before
November 9, 2012 . . . [Appellant] did then and there intentionally and knowingly, with
intent to deprive the owner, David Pace, of property, namely: copper, unlawfully
appropriate, by acquiring and otherwise exercising control over, such property which
had a value of less than $20,000, without the effective consent of the owner.” On
October 11, 2013, Appellant filed a Motion to Prohibit the State from Attempting to
Introduce Statements Allegedly Made by the Defendant Without a Prior Hearing on
Admissibility. Appellant’s motion was directed at oral statements made to the police
and was broadly premised on the United States Constitution, Texas Constitution,
articles 38.21, 38.22, and 38.23 of the Texas Code of Criminal Procedure, and the
hearsay rules of the Texas Rules of Evidence.
At a pretrial hearing and at trial, Officer Caleb McCarrell testified that on
November 9, 2012, he observed a white male wearing a black t-shirt inside a fenced-in
construction site late in the evening. He made a second pass and observed two males
outside the fenced-in construction site and identified Appellant as the white male in the
black t-shirt he had earlier observed within the construction site. He identified himself
as a police officer and asked them for identification. He patted them down for safety
reasons2 and discovered a pair of wire cutters and a small flashlight in Appellant’s
pockets. Looking along the fence line, Officer McCarrell saw a white, plastic spool
containing yellow wire. The spool was outside the fence where Appellant was standing.
2
The area was dimly lit and he was riding solo.
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Officer McCarrell then engaged in a conversation with Appellant. Appellant was
not handcuffed and Officer McCarrell testified he was conducting an investigation. In
response to a question asking what the spool was, Appellant said he obtained the spool
out of a trash pile. After Officer McCarrell observed that there were no trash piles in the
vicinity, Appellant motioned toward the construction site and indicated he obtained it
from a trash pile on the south side. Officer McCarrell placed Appellant under arrest, put
him in handcuffs, and asked him no further questions. He released the second
individual.
After Officer McCarrell’s testimony, Appellant’s counsel informed the court that
he wanted to renew his objection to any testimony by Officer McCarrell regarding
statements made by Appellant prior to his arrest. He stated that “[a]lthough the original
Motion was based on that he could’ve been in custody at the time, [he] would now
renew that objection, but make it based on it doesn’t fall within any of the hearsay
objections.” (Emphasis added.) During trial, Appellant’s counsel objected to Officer
McCarrell’s testimony related to Appellant’s statements stating “[y]our Honor, we’ll
object based on hearsay.” The trial court denied Appellant’s motion and overruled his
objection at trial.
A jury found Appellant guilty of theft of copper wire and he was sentenced to one
year confinement. This appeal followed.
ISSUE ONE
Appellant asserts the trial court erred in admitting his answers to Officer
McCarrell’s questions because he was undergoing a custodial interrogation in the
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absence of being “Mirandized” in violation of federal and state law. See generally
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); TEX. CODE
CRIM. PROC. ANN. art. 38.22, § 3 (West Supp. 2014). We find Appellant did not preserve
this error for purposes of appeal.
Preservation of error is a systemic requirement on appeal. Ford v. State, 305
S.W.3d 530, 532 (Tex. Crim. App. 2009). A reviewing court should not address the
merits of an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d
452, 473-74 (Tex. Crim. App. 2010). To preserve a complaint for appellate review, a
party must have presented a specific and timely request, motion, or objection to the trial
court and, further, must have obtained an adverse ruling. TEX. R. APP. P. 33.1(a); Pena
v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). Even constitutional rights may
be waived if the proper objection is not asserted in the trial court. Saldano v. State, 70
S.W.3d 873, 886-87 (Tex. Crim. App. 2002). See Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012). Further, the point of error on appeal must comport with the
objection made at trial. Clark, 365 S.W.3d at 339.
Here, the issue raised by Appellant at the pretrial hearing and later at trial do not
comport with the issue presented on appeal. There is nothing in the record to indicate
that either the judge or the prosecutor understood Appellant’s complaint to be that
Appellant was not provided any constitutional warnings at the time Officer McCarrell
questioned him. Instead, his objections at the pretrial hearing and later at trial were
based on evidentiary rules, specifically hearsay. Presenting one legal theory in the trial
court will not preserve a different legal theory on appeal. See Wilson v. State, 71
S.W.3d 346, 349-50 (Tex. Crim. App. 2002); Wright v. State, 374 S.W.3d 564, 575-76
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(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Accordingly, Appellant’s single issue
is overruled. Clark, 365 S.W.3d at 339-40.
Furthermore, even if Appellant’s complaint was preserved, the record supports
the trial court’s implicit conclusion that Appellant was not in custody at the time the
questioned statements were made and thus, no Miranda warnings were necessary. No
one disputes that Officer McCarrell had sufficient reasonable suspicion to conduct an
investigation into the facts and circumstances surrounding the late evening presence of
individuals at a construction site. Nor does Appellant contend that he was physically
restrained in any other meaningful manner at the time he made the statements in
question. Furthermore, Officer McCarrell’s inquiries were of the kind normally permitted
during the pendency of an investigatory detention of like ilk. Therefore, because
Appellant’s liberty was not unreasonably restrained prior to his making of statements
that tended to connect him to the incriminating copper wire outside the enclosed
construction site, no Miranda warning were required at that time.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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