Daniel Glenn Parker, Jr. A/K/A Daniel G. Parker, Jr. v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00348-CR
DANIEL GLENN PARKER JR. APPELLANT
A/K/A DANIEL G. PARKER JR.
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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Appellant Daniel Glenn Parker Jr. appeals his conviction for possession of
a controlled substance under one gram. In his sole issue, Parker argues that the
trial court abused its discretion by admitting his custodial statement. We overrule
the issue and affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
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See Tex. R. App. P. 47.4.
Acting on information from a confidential informant, two investigators with
the Hood County Sheriff’s Office, Matthew Bales and Ray Miller, stopped Parker
after he left a suspected drug house and committed two minor traffic violations.
Based on the information gleaned from the confidential informant and because
Parker appeared nervous, Bales asked Parker for consent to search his truck.
Parker consented to the search of his truck, but no drugs were found. Bales and
Miller then called for a drug dog to come sniff the truck. When the drug dog
arrived, Bales saw that Parker began “playing with his feet, rubbing his . . . sock,”
and Bales noticed “a piece of black [electrical] tape stuffed in his shoe.” Bales
removed the tape from Parker’s shoe and found two small baggies of
methamphetamine wrapped in a piece of notebook paper. Bales arrested Parker
and read Parker the required warnings. See Tex. Code Crim. Proc. Ann. art.
15.17(a) (West Supp. 2012); Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Parker then stated that he bought the methamphetamine in Fort Worth, that he
usually buys methamphetamine in small packages because he only uses “a gram
at a time,” and that there was “no more” methamphetamine in his truck. Parker
also stated that he needed “rehab” because of his drug problem and that he did
not sell methamphetamine to others.
The trial court found Parker guilty of possession of a controlled substance
under one gram and sentenced him to eighteen years’ confinement. Parker
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appeals and argues that the trial court erred in admitting the video recording 2 of
his post-warning, custodial statements, over his repeated objections, because
they were not made in compliance with article 38.22. See Tex. Code Crim. Proc.
Ann. art. 38.22, § 3 (West 2005). Specifically, Parker contends that the recording
does not include an identification of all the voices heard and that several portions
“were muffled and difficult to understand,” rendering the statements inadmissible
under article 38.22. 3
A trial court’s ruling on admissibility of evidence is reviewed under an
abuse-of-discretion standard. See Cameron v. State, 988 S.W.2d 835, 844 (Tex.
App.—San Antonio 1999, pet. ref’d), cert. denied, 528 U.S. 1166 (2000). See
generally Tex. R. Evid. 104(a). The code of criminal procedure provides specific
rules governing the admissibility of oral statements of an accused. See Tex.
Code Crim. Proc. Ann. art. 38.22, § 3(a); Swann v. State, 750 S.W.2d 386, 387
(Tex. App.—Fort Worth 1988, no pet.). Article 38.22 provides that an oral
statement of an accused is inadmissible unless: (1) the statement is recorded
electronically; (2) during the recording and before the accused’s statement, the
accused is given the required warnings under article 15.17; (3) the recording
2
Although Parker’s statements were recorded on a video tape, Parker,
Bales, and Miller were off camera when Parker made his post-arrest statements.
However, the voices are audible on the video, which was admitted as State’s
Exhibit 1.
3
Parker does not assert in his briefing that his statements were involuntary
or coerced, and the State does not argue that the statements were non-custodial.
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device is capable of making an accurate record, the operator was competent,
and the recording is accurate; (4) all material voices on the recording are
identified; and (5) the accused’s attorney is provided with an accurate copy of the
recording. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a), (e).
Parker argues that his post-warning statements were inadmissible
because all material voices on the recording were not identified. At trial, Parker’s
counsel objected to the admissibility of the recording “without there being some
showing that under the provisions of Article 38.22 that my client was read his
rights, that he waived those rights, and—and voluntarily gave any kind of
statement to these police officers.” Trial counsel made a subsequent objection to
Bales’s testimony concerning Parker’s statement by stating, “I object to any
response given by [Bales] was—would require that my client be Mirandized, Your
Honor, that he waived those rights. . . . [W]e would object to Officer Bales
testifying to hearsay and also taking statements from my client in violation of
[article 38.22] of the Code of Criminal Procedure.” These objections were
overruled.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort
Worth 2012, no pet). We should not address the merits of an issue that has not
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been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim.
App. 2010) (op. on reh’g); Clay, 361 S.W.3d at 765. Preservation of error is a
systemic requirement that this court should review on its own motion. Wilson,
311 S.W.3d at 473–74; Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App.
2009); Clay, 361 S.W.3d at 765.
Nowhere did trial counsel make an objection based on the voices on the
recording not being identified. Counsel’s objection did not alert the trial court to
any claim that the recording was inadmissible for failure to identify the voices on
the recording. Parker, therefore, did not preserve error and, thus, forfeited this
claim. See Tex. R. App. P. 33.1(a)(1). Even if we were to address the merits of
the issue, Parker would not be entitled to relief. Bales testified that he had
watched the video recording of Parker’s post-warning statements and that the
video fairly and accurately depicted what occurred. Further, Bales was able to
identify the voices on the recording and recounted what was said. This is
sufficient to meet the admissibility requirement of article 38.22, section 3(a)(4).
See Tex. R. Evid. 901(a), (b)(5); Lucas v. State, 791 S.W.2d 35, 57–58 (Tex.
Crim. App. 1989); Falcetta v. State, 991 S.W.2d 295, 298–99 (Tex. App.—
Texarkana 1999, pet. ref’d).
Parker next contends that his post-warning statements were erroneously
admitted over objection because parts of the recording were muffled or inaudible.
Although trial counsel mentioned the poor audibility of the recording to the trial
court, his specific objection was not based on that defect. Indeed, trial counsel
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merely stated, “[F]rom my listening of the tape, I didn’t get it all, couldn’t
understand and couldn’t comprehend 95 percent of what was on that tape, which
the court can do what it wishes about that, but we would object to Officer Bales
testifying to hearsay and also taking statements from my client in violation of
[article 38.22] of the Code of Criminal Procedure.” The trial court was not given
an opportunity to address counsel’s argument that crucial portions of the
recording were inaudible because counsel seemed to waive the arguments by
telling the trial court it could “do what it wishes about that.” In short, counsel
failed to “let the trial judge know what he wants.” Layton v. State, 280 S.W.3d
235, 239 (Tex. Crim. App. 2009). As with his other complaint, Parker has failed
to preserve error, which forfeits any error. See Tex. R. App. P. 33.1(a)(1).
But Parker’s argument also fails on the merits. We presume that his
argument goes to the accuracy of the recording. See Tex. Code Crim. Proc.
Ann. art. 38.22, § 3(a)(3). As noted above, Bales testified that the recording was
an accurate depiction of what occurred. We listened to the recording; the
statements Parker complains of were clearly understandable on the recording. 4
See United States v. Sutherland, 656 F.2d 1181, 1200 (5th Cir. 1981)
(“Recordings must be excluded only if the inaudible or unintelligible portions ‘are
4
One can clearly hear on State’s Exhibit 1 Parker being informed of his
Miranda rights. Parker’s subsequent course of conduct is consistent with a
waiver of these rights. See Joseph v. State, 309 S.W.3d 20, 24–26 (Tex. Crim.
App. 2010) (stating totality of circumstances may show voluntary waiver of
rights).
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so substantial as to render the recording as a whole untrustworthy,’ and that
determination is ‘left to the sound discretion of the trial judge.’”) (quoting United
States v. Avila, 443 F.2d 792, 795–96 (5th Cir.), cert. denied, 404 U.S. 944
(1971)), cert. denied, 455 U.S. 949 (1982). We conclude that the recording
complied with article 38.22, section 3(a)(3) and there was no abuse of discretion
in this case. See Falcetta, 991 S.W.2d at 298–99; Minger v. State, No. 11-01-
00107-CR, 11-01-00108-CR, 11-01-00109-CR, 11-01-00110-CR, 11-01-00111-
CR, 2003 WL 190729, at *4 (Tex. App.—Eastland Jan. 16, 2003, no pet.) (not
designated for publication).
We overrule Parker’s issue and affirm the trial court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 23, 2013
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