Stephen Andrew Duke v. State ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00065-CR
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STEPHEN ANDREW DUKE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A-110343-R
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MEMORANDUM OPINION
In a single issue, appellant, Stephen Andrew Duke, appeals his conviction
for sexual performance by a child and promotion of child pornography. Duke
argues the trial court committed reversible error by denying his motion to suppress
evidence. We affirm the judgment of the trial court.
Duke was convicted of one count of sexual performance by a child and two
counts of child pornography. See Tex. Penal Code Ann. §§ 43.25, 43.26 (West
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2011 & Supp. 2012). Duke was sentenced to thirty-five years of confinement for
sexual performance by a child and to twenty years confinement on each count of
promotion of child pornography, the sentences to run concurrently. In his sole
issue on appeal, Duke argues the trial court erred in denying his motion to suppress
and admitting a written statement he gave investigating officers. The trial court
held a separate hearing on his motion to suppress where the statement was the
subject of the hearing. At the conclusion of the hearing, the trial court denied the
motion. When the State offered the statement into evidence during the trial,
Duke’s counsel affirmatively stated that he had “[n]o objection” to the admission
of the statement.
When the trial court overrules a pretrial motion to suppress evidence, a
defendant is not required to subsequently object at trial to the same evidence in
order to preserve error. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App.
1986); Klapesky v. State, 256 S.W.3d 442, 449 (Tex. App.—Austin 2008, pet.
ref’d). However, when a defendant affirmatively asserts during trial that he has
“no objection” to the admission of the complained-of evidence, he waives any
error in the admission of such evidence. Swain v. State, 181 S.W.3d 359, 368
(Tex. Crim. App. 2005); Moraguez, 701 S.W.2d at 904; Klapesky, 256 S.W.3d at
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449. Because Duke affirmatively stated that he had no objection to the challenged
statement, he waived any error in the admission of that statement.
However, even if the issue had been preserved for our review, we find
Duke’s arguments on appeal to be without merit. The State presented evidence
from which the trial court could reasonably find that the written statement at issue
was provided by Duke. Duke argues that the statement, in which he admitted to
taking pornographic pictures of the five-year old victim with his cell phone, did not
meet the requirements of article 38.22 of the Texas Code of Criminal Procedure to
be admissible. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West 2005).
However, when a statement does not stem from a custodial interrogation, article
38.22 does not apply. Camarillo v. State, 82 S.W.3d 529, 535 (Tex. App.—Austin
2002, no pet.); Burruss v. State, 20 S.W.3d 179, 183 (Tex. App.—Texarkana 2000,
pet. ref’d.). Article 38.22 expressly states that it does not preclude the admission
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 of any other statement that may
be admissible under law.” Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (West
2005).
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A person is in custody if, under the circumstances, a reasonable person
would believe that his freedom of movement was restrained to the degree
associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322-25,
114 S. Ct. 1526, 1528-30, 128 L. Ed. 2d 293, 298-99 (1994); see also Dowthitt v.
State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (recognizing four general
situations that may constitute custody for purposes of article 38.22). Duke was not
in custody at the time he gave the challenged statement. Duke did not contest the
officer’s testimony regarding the voluntary nature of the interview, or otherwise
contend that he was not free to leave during the interview.1 Because the statement
was not made as a result of a custodial interrogation, the trial court did not abuse
its discretion by failing to exclude the statement on the grounds that it was taken in
violation of any provision of article 38.22.
We overrule Duke’s sole issue on appeal and affirm the judgment of the trial
court.
1
The evidence presented at the suppression hearing established that Duke
was free to leave at any time during the interview, and that the officer who
interviewed him brought him home after Duke gave his statement. At the
suppression hearing, Duke did not dispute the officer’s testimony regarding the
voluntary nature of the interview. Duke gave the voluntary statement on June 9,
2010, and was not indicted until June 1, 2011.
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AFFIRMED.
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CHARLES KREGER
Justice
Submitted on November 26, 2012
Opinion Delivered April 3, 2013
Do not publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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