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Raveiro, Julio Alvarez v. State ( 2005 )


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  • Affirmed and Opinion filed January 13, 2005

    Affirmed and Opinion filed January 13, 2005.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-03-00866-CR

    ____________

     

    JULIO ALVAREZ RAVEIRO , Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 212th District Court

    Galveston County, Texas

    Trial Court Cause No. 02CR0401

     

      

     

    O P I N I O N

    Appellant Julio Alvarez Raveiro was convicted by a jury of murder and, after pleading true to two enhancement paragraphs, was sentenced to seventy-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  Asserting six points of error, appellant contends: (1) the evidence is legally insufficient to sustain the conviction; (2) the evidence is factually insufficient to sustain the conviction; (3) the trial court erred by allowing his statements into evidence in violation of the Vienna Convention; (4) the trial court erred by allowing into evidence a motel registration card that failed to meet the predicate for the business records exception to the hearsay rule; (5) he was denied effective assistance of counsel; and (6) the trial court erred by allowing into evidence his partially inaudible taped statement.  We affirm.

    Background

    On February 25, 2002, police responded to a call reporting a suspicious vehicle. The responding officer discovered the body of Albert Barnes lying in the back seat with his pockets inside out. Barnes had several lacerations on his head but died as result of a close-range gunshot wound to the back of his head. 

    The investigation of the murder led to several suspects.  Two of the suspects, appellant and Delena Kent, voluntarily gave separate interviews to the police after they had received Miranda warnings and waived their rights.  In his first interview, appellant denied any involvement.  In his second interview, appellant claimed two men, Charles Williams (ASnail@) and Tyrone Thomas (AT@), had robbed him and Kent and killed the complainant.  In his third interview, appellant said he brought ASnail@ and AT@ from Wichita Falls to Dickinson to carry out their plan to rob drug dealers.  However, appellant told investigators there was no plan to rob or kill the deceased, but instead, the plan was to rob two Hispanic drug dealers from New York.  He said ASnail@ and AT@ were in a rival gang from that of the victim and that the killing was gang-related.  He said he did not know they were in a rival gang and that he did not participate. 

    However, Kent, who spent the prior week with appellant told a different version of the story.  She told investigators the victim was appellant=s Anumber one@ target to rob.  She witnessed appellant obtain two pistols and some bullets before the murder. Kent agreed that appellant did not shoot or hit the victim.  She said ASnail@ and AT@ beat the victim until he was unconscious and dragged him into the backseat of his own car.  Kent was forced to drive  the victim=s car with ASnail@ and AT.@  According to Kent, appellant got into his own car and led her, ASnail,@ and AT@ to the field where the victim was ultimately shot by ASnail.@  Kent testified that after the victim was shot, appellant drove ASnail@ and AT@ back to his house, told them to Akeep cool,@ and complimented them on a Ajob well done.@  


    Sufficiency of the Evidence   

    In his first and second issues, appellant contends the evidence is legally and factually insufficient  to prove he acted as a party, principal, or conspirator in the robbery and murder. When reviewing the legal sufficiency of the evidence, we view all of the evidence in a light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc).  We consider all of the evidence admitted, both properly and improperly admitted, as well as direct and circumstantial evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001); Owens v. State, 135 S.W.3d 302, 306 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  The jury is the sole judge of the credibility of the witnesses, and chooses whether to believe or disbelieve all or part of a witness=s testimony.  Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  Thus, if there is evidence that establishes guilt beyond a reasonable doubt, and the jury believes that evidence, we are not authorized to reverse the judgement on sufficiency of the evidence grounds.  McGee v. State, 923 S.W.2d 605, 608 (Tex. App.CHouston [1st Dist.] 1995, no pet.) (citing Moreno, 755 S.W.2d at 867).  Additionally, when the trial court=s charge authorizes conviction on several different theories, the verdict will be upheld if the evidence is sufficient on any one of the theories.  Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003).  


    In conducting a factual sufficiency review, we view all the evidence in a neutral light, without favoring either party.  Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000).  We will set aside the verdict only if: (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Roy v. State, Nos. 14-02-00909-CR, 14-02-00910-CR, 2004 WL 1607489, at *4 (Tex. App.CHouston [14th Dist.] July 20, 2004, no pet.).  When reviewing the evidence, we must give appropriate deference to the jury findings in order to avoid intruding on the fact finder=s role as the sole judge of the weight and credibility of the evidence.  Johnson, 23 S.W.3d at 7.  Therefore, unless the record reveals a different result is appropriate, we Amust defer to the jury=s determination concerning what weight to give contradictory testimonial evidence, because resolution often turns on evaluation of credibility and demeanor.@  Id. at 8.

    To establish the offense of murder, the State must prove the defendant (1) intentionally or knowingly caused the death of the individual or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual.  See Tex. Pen. Code Ann. ' 19.02(b)(1)B(2) (Vernon 2003).  A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.  Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003).  A person commits conspiracy if, with intent that a felony be committed, he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense.  Tex. Pen. Code Ann. ' 15.02(a)(1) (Vernon 2003).  In this case, the jury returned a general verdict finding appellant guilty of murder.  It is well-settled that when a general verdict of guilt is returned, and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted, the verdict will be upheld.  McDuff v. State, 939 S.W.2d 607, 615 (Tex. Crim. App. 1997); Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992).     


    Viewing all of the evidence, Delena Kent was present in Wichita Falls when appellant planned and conspired with ASnail@ and AT@ to go back to Dickinson and rob drug dealers. Thereafter, she accompanied appellant and the two men back to Dickinson.  In Dickinson, before the murder, appellant went to a house and picked up a silver gun, acquired a .22 caliber pistol from Kent=s brother, and purchased bullets.  A few nights later, after deciding the complainant was the Anumber one@ target for the group to rob, appellant called him and ordered an ounce of crack cocaine to be delivered to his house.  When the complainant arrived, appellant was waiting in the front yard and ASnail@ and AT@ were hiding behind an abandoned car.  The complainant gave appellant the cocaine.  Appellant believed it was not an ounce, but gave Kent a piece to sample.  When she returned, Kent saw ASnail@ and AT,@ who were both armed with handguns, beating up the complainant in the front yard, checking his pockets, and telling him they knew he had more money.  Kent testified appellant never laid a hand on the complainant, but instead, watched without attempting to stop the beating.  However, her story conflicts as to whether appellant was armed or not. After beating the complainant unconscious, ASnail@ and AT@ dragged the victim to his own car and placed him in the back seat.  ASnail@ and AT@ got in the complainant=s car and forced Kent to drive.  She testified appellant drove in his own car and led them to the edge of a field not far from where he had obtained the silver handgun.  Kent testified appellant pointed and turned his blinker on towards the field when ASnail@ and AT@ told her to turn in.  She did, then stopped the car, jumped out, and ran to appellant=s car, which was waiting at the entrance.  A short time later she heard a gun shot.[1]  ASnail@ and AT@ ran to and entered appellant=s car. Appellant told them Ajob well done@ and Akeep cool,@ and then drove back to his house. 

    Upon their arrival at appellant=s house, appellant poured transmission fluid and soap  on the driveway to clean off the victim=s blood.[2]  Appellant told Kent to help him and to stay close or he would kill her and her brother, the same way he did the complainant.  Thereafter, appellant transported ASnail@ and AT@ to a motel.  The next day, Kent and appellant drove around town because appellant wanted to find out what people were saying about the complainant=s death.

    Investigators searched a local motel room registered to appellant.  There, investigators collected a comforter, pillow case, and shirt, all of which had blood stains.  However, none of the items were tested.  


    During the investigation, appellant gave three interviews concerning his knowledge of the murder.  In his first interview, appellant told investigators he had nothing to do with the murder.  In his second interview, appellant told investigators that ASnail@ and AT@ robbed him and Kent and murdered the complainant. During the third interview, appellant told investigators that he brought ASnail@ and AT@ to Dickinson from Wichita Falls because they had a plan to rob drug dealers, but not the complainant .[3]  He also claimed that after the beating, ASnail@ and AT@ left with the victim while he stayed at his house. However, when investigators falsely told him his tire tracks were found at the crime scene, he changed his story and said he drove around looking for them and found them at the field. However, at this point in the investigation, investigators had not disclosed to appellant or anyone else the exact location of the murder.  

    During his third interview, appellant claimed he was not involved in the murder and that it was gang related.  Appellant said ASnail@ and AT@ were ACrips@ and rivals to complainant=s gang, the ABloods.@  Kent also testified that at some point, appellant told her he lived in ACrip territory.@  The complainant was wearing red on the night of his murder and ASnail@ and AT@ were wearing blue.[4]  Appellant said he didn=t know ASnail@ and AT@ were Crips before the complainant arrived with the drugs.


    At trial, appellant attacked Kent=s credibility.  When Kent testified, she was currently serving a sentence for an unrelated crime, had previous convictions, was a prostitute, and drug addict. Kent smoked crack cocaine minutes before the complainant was beaten and killed.  Appellant impeached Kent about differences in details between her testimony and previous statements she had made to investigators.[5]  Also, while some of Kent=s testimony was consistent with the evidence and appellant=s statements to investigators, some of her statements could not be verified.  Kent testified the conspirators cleaned blood off of themselves in appellant=s sink; however, a P-trap test detected no blood in appellant=s sink.  Similarly, Kent testified ASnail@ and AT@ had blood on them when they entered appellant=s car after ASnail@ shot the victim, but no blood was found on the rear passenger seat or in appellant=s vehicle.             

    The evidence established that appellant entered into an agreement in Wichita Falls with AT@ and ASnail@ to rob drug dealers in Dickinson, and pursuant to that agreement, transported AT@ and ASnail@ to Dickinson.  Appellant called the victim, a drug dealer, to his house, and watched as AT@ and ASnail@ assaulted him.  Appellant led AT@ and ASnail@ to the field where the victim was murdered by a gunshot. The handguns used by AT@ and ASnail@ during the offense were obtained by appellant days before the offense.  After the murder, AT@ and ASnail@ ran to and entered appellant=s vehicle. Appellant told them Ajob well done@ and transported them to his house where he attempted to remove the victim=s blood from his driveway.  Viewing this evidence in a light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt the essential elements necessary to find that appellant was criminally responsible under Texas Penal Code ' 7.02(a)(2) for the murder of Albert Barnes from the testimony describing appellant=s acts of soliciting, encouraging, directing, aiding, attempting to aid, and acting with intent to promote or assist the commission of the murder.  See Cordova v. State, 698 S.W.2d 107, 111B12 (Tex. Crim. App. 1985). Viewing the same evidence in a neutral light, we conclude the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and that the contrary evidence was not strong enough to conclude the reasonable doubt standard could not be met.[6]  The evidence is therefore legally and factually sufficient to support the guilty verdict.  Appellant=s issues one and two are overruled.         

     

    Vienna Convention

    In his third issue, appellant argues the trial court erred by allowing into evidence statements taken in violation of the Vienna Convention.  Specifically, he argues error because he had not been advised prior to making his statements that he had a right to contact and consult with the Cuban consulate.  At trial, outside the jury=s presence, appellant testified he was born in Cuba, had never been granted citizenship by the United States, and was not a naturalized citizen of any country except Cuba.  However, he never told the detective he was not a United States citizen.

    In his brief, appellant acknowledges the holding in Rocha v. State.  In Rocha, the Court of Criminal Appeals held that treaties do not constitute laws for purposes of Article 38.23,[7] Texas Code of Criminal Procedure.  16 S.W.3d 1 (Tex. Crim. App. 2000). However, he states that constitutional issues of due process, equal protection and due course of law under the federal and state constitutions have not been fully litigated.  Appellant does not develop this argument nor present any authority in support of his contention.  See Tex. R. App. P. 38.1(h) (stating A[t]he brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities@); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (holding appellant must cite specific legal authority to support argument); King v. State, 17 S.W.3d 7, 23 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (stating that without supporting citations to relevant legal authority and application of that authority to the facts, conclusory argument is insufficient to preserve error).  Failure to cite authority presents nothing for review.  McFarland v. State, 928 S.W.2d 482, 512 (Tex. Crim. App. 1996), cert denied, 519 U.S. 1119 (1997).  Therefore, appellant=s third issue is overruled. 

     

    Business Records Exception        

    In his fourth issue, appellant argues the trial court erroneously admitted a motel registration card bearing appellant=s name, address, make of car, and licence plate number. The motel registration card was dated February 28, 2002, and indicated two guests were in the party.  During the investigation, the motel room registered to appellant was searched.  The search revealed a gun hidden under the carpet that possibly belonged to the complainant.  When the State attempted to admit the motel registration card, appellant objected on the stated grounds that it was hearsay and the State failed to establish a proper predicate for the admission of the evidence as a business record.[8]  Specifically, appellant argued the State failed to establish that the form was made by someone with personal knowledge, such as a motel employee or representative.       

    We review the trial court=s decision to admit or exclude evidence under an abuse of discretion standard.  Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999); King v. State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997).  The trial court abuses its discretion if it acts without reference to any guiding rules or principles.  Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).


    In King v. State, the Court of Criminal Appeals held a motel receipt met the requirements of Texas Rule of Evidence 803(6) even though the owner could not remember specifically who wrote appellant=s name on the registration card.  953 S.W.2d 266, 270 (Tex. Crim. App. 1997).  Appellant acknowledges this holding but attempts to distinguish one fact. In King, the top portion of the form was filled out by the guest and the bottom portion by a motel employee. In this case, appellant contends that all of the information was placed on the card by appellant, or someone purporting to be him.  He argues that because no entries were made by a motel employee, it failed to meet all the requirements of the exception.  Contrary to appellant=s version of the testimony in this case, the motel owner testified that a clerk adds other information to the card after a guest fills it out.[9]  Therefore, King is not distinguishable as appellant contends.  The motel owner testified (1) he owned the motel; (2) the registration cards are kept in the regular course of business; and (3) the forms were filled out in part by the motel guest and in part by an employee of the motel.  This testimony supports the trial court=s determination that the hotel registration form meets the requirements of Rule 803(6).  See King, 953 S.W.2d at 270.  Appellant=s fourth issue is overruled.

    Ineffective Assistance of Counsel              

    In his fifth issue, appellant contends he was denied effective assistance of counsel because his attorney (1) failed to object to the absence of Miranda warnings on appellant=s  tape recorded statement; (2) failed to preserve error when the State introduced a .22 caliber pistol and photos of it; and (3) failed to preserve error during voir dire when the State asked questions about enhanced punishment. 


    The United States Supreme Court has established a two-prong test to determine whether counsel was ineffective.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  Appellant must prove (1) his trial counsel=s representation was deficient and (2) his trial counsel=s deficient performance was so serious that it prejudiced his defense.  Id. at 686B87; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  To establish deficient performance, appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. Appellant must identify specific acts or omissions of counsel that constitute the alleged ineffective assistance and affirmatively prove that they fell below the professional norm for reasonableness.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) overruled on other grounds by, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998) (citing Strickland, 466 U.S. at 690).  The alleged ineffectiveness must be firmly founded in the record.  Bone, 77 S.W.3d at 835.  If appellant fails to satisfy either prong of the test, we do not need to consider the remaining prong.  Strickland, 466 U.S. at 687.

    Judicial scrutiny of counsel=s performance must be highly deferential, and we indulge a strong presumption that counsel was effective.  Id at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  We presume counsel=s actions were reasonably professional and motivated by sound trial strategy.  Strickland, 466 U.S. at 689 (stating that a fair assessment of attorney performance requires every effort to eliminate the distorting effects of hindsight  and to evaluate the conduct from counsel=s perspective at the time of trial).  Appellant must overcome this presumption by illustrating why trial counsel did what he did.  Belcher v. State, 93 S.W.3d 593, 595 (Tex. App.CHouston [14th Dist.] 2002, pet. dism=d). When evaluating an allegation of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  The fact that another attorney may have acted in a different manner will not be sufficient to prove ineffective assistance, and an error in trial strategy will be considered inadequate only if counsel=s actions lack any plausible basis.  Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.CSan Antonio 2002, no pet.). 


    Generally, the record on direct appeal is not sufficient to establish a claim of ineffective assistance of counsel because a silent record cannot rebut the presumption that counsel=s performance was based on sound or reasonable trial strategy.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  A reviewing court should not second-guess trial counsel=s strategy in hindsight; thus, an affidavit supporting a motion for new trial can be critical to the success of a claim for ineffective assistance.  Storr v. State, 126 S.W.3d 647, 651 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). In the absence of a record explaining trial counsel=s actions, a reviewing court most likely cannot conclude trial counsel=s performance fell below an objective standard of reasonableness unless the conduct was so outrageous that no competent attorney would have engaged in it.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Storr, 126 S.W.3d at 650B51.     

    Appellant filed a motion for a new trial asserting the verdict in the cause is contrary to the law and the evidence and is legally and factually insufficient, but the motion did not include an affidavit from his attorney.  The motion was subsequently denied.  Thus, the record contains no evidence of the reasoning behind trial counsel=s performance.  Therefore, we cannot conclude that counsel=s performance was deficient.  See Jackson, 877 S.W.2d at 771B72; Thompson, 9 S.W.3d at 814 (holding that when the record provides no explanation as to the motivation behind trial counsel=s actions, an appellate court should be hesitant to declare ineffective assistance of counsel).  The appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record.  Jackson, 877 S.W.2d at 771.  Appellant fails to provide this court with any evidence rebutting the presumption that counsel was providing effective assistance.  Thus, appellant has not satisfied his burden on appeal to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy. Because appellant produced no evidence concerning trial counsel=s reasons for choosing the course he did, his fifth issue is overruled.

    Inaudible Portions of Taped Statement

    In his sixth and final issue, appellant argues the trial court erred when it admitted a taped statement of appellant.[10]  At trial, appellant attempted to exclude the tape because: (1) it contained many inaudible portions, apparently as a result of appellant=s heavy accent; (2) the investigator=s responses to appellant=s inaudible answers are the most clear statements; (3) the State should have reduced the tape to a transcript before trial;[11] and (4) the quality of the recording was so poor that it could not be represented as an accurate representation of what took place.[12]

    The admissibility of evidence is within the trial court=s discretion.  Bingham, 987 S.W.2d at 57.  The trial court abuses its discretion if it acts without reference to any guiding rules or principles.  Montgomery, 810 S.W.2d at 380.  The taped statements were properly authenticated under Texas Rule of Evidence 901. The detective participating in the taped conversation testified he was the operator of the recording equipment, it was functioning properly, and that the recording accurately reflected the conversation.  See Tex. R. Evid. 901.  The taped statements are relevant because they contain appellant=s version of the events.  Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than it would be without the evidence.  Tex. R. Evid. 401.  We conclude the trial court did not abuse its discretion.  Appellant=s sixth issue is overruled. 

    We affirm the judgment of the trial court.         

     

    /s/      John S. Anderson

    Justice

     

    Judgment rendered and Opinion filed January 13, 2005.

    Panel consists of Justices Anderson, Hudson, and Frost.

    Do Not Publish C Tex. R. App. P. 47.2(b).


    [1]  The complainant was shot at close range in the back of the head with a .38 caliber handgun, the same caliber as the silver handgun. 

    [2]  Investigators recovered a plastic container of brake fluid in appellant=s car. 

    [3]  Appellant said they planned to set up phony drug deals with two Hispanic men from New York by saying they had 100 kilos of cocaine. When the men came, they were going to rob them of all their money.

    [4]   The Bloods= colors are red and the Crips= are blue.

    [5]  Kent responded by saying that at the beginning, her story was different because she was afraid appellant would kill her and her brother.

    [6]  Our evaluation should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility of the evidence.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Moreover, A[a] decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.@  Id.

    [7]  Article 38.23 provides that A[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.@  Tex. Code Crim. Proc. Ann. Art. 38.23 (Vernon Supp. 2004)

    [8]   Generally, to establish the predicate for a document=s admissibility as a record of a regularly conducted business activity, the proponent must establish: (1) the record was made and kept in the course of a regularly conducted business activity; (2) it was the regular practice of that business activity to make the record; (3) the record was made at or near the time of the event being recorded; and (4) the person making the record or submitting the information had personal knowledge of the events being recorded.  Tex. R. Evid. 803(6).

    [9]  The top portion of the registration card consists of identifying information about the guest, and the bottom portion has the date, daily charge rate of the room, tax, and total charge.  All of the blanks were filled in. 

    [10]  As with his third issue, in briefing his sixth issue appellant fails to cite any relevant authority or apply such relevant authority to the specific facts of this case.  See Tex. R. App. P. 38.1(h); Rhoades, 934 S.W.2d at 119; King, 17 S.W.3d at 23.  Accordingly, appellant=s argument on appeal is waived.      

    [11]  Appellant had a copy of the tapes a year prior to trial without requesting transcription.  

    [12]  The trial court, out of the presence of the jury, listened to a portion of the tape and determined there was nothing wrong with the tape=s quality, or with the recording equipment or operator.  The only problem was understanding appellant because of his accent.  See Tex. Code Crim. Proc. Ann. Art. 38.22, ' 3(a)(3) (Vernon Supp. 2004).