Robert Garcia, Jr. v. State ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00053-CR
Robert GARCIA, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR13227
Honorable Frank J. Castro, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: January 22, 2020
AFFIRMED
Appellant Robert Garcia, Jr. appeals his conviction of burglary of a habitation. In his sole
issue on appeal, Garcia contends the trial court erred in admitting his recorded statement in
violation of article 38.22 of the Texas Code of Criminal Procedure. We overrule Garcia’s sole
issue on appeal and, consequently, affirm the trial court’s judgment.
BACKGROUND
On September 7, 2017, Garcia was arrested for the suspected burglary of Josephine
Duckett’s residence. Several items had been stolen from Duckett’s residence including a wooden
04-19-00053-CR
box which held Duckett’s deceased husband’s ashes. While in custody at police headquarters,
Detective Robert Cavazos of the San Antonio Police Department interviewed Garcia. The
interview was video recorded. In the video recording, Garcia confessed to the burglary of
Duckett’s residence. Garcia was indicted on the offense of burglary of a habitation. The
indictment also included a repeat offender enhancement.
Garcia’s recorded statement was admitted at trial. Following a trial by jury, Garcia was
found guilty of burglary of a habitation. The trial court sentenced Garcia to confinement for
seventy-five years. Garcia now appeals, arguing in a single issue that the trial court erred by
admitting his recorded statement in violation of article 38.22 of the Texas Code of Criminal
Procedure.
STANDARD OF REVIEW AND APPLICABLE LAW
A trial court’s ruling on the admissibility of evidence is reviewed under an abuse-of-
discretion standard. Cameron v. State, 988 S.W.2d 835, 844 (Tex. App.—San Antonio 1999, pet.
ref’d) (citing Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (op. on reh’g)).
A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to
guiding rules and principles. Id.
Section 3(a) of article 38.22 of the Texas Code of Criminal Procedure provides specific
rules that govern the admissibility of an accused’s oral statements that are the product of custodial
interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a). An oral statement made as a
result of custodial interrogation is inadmissible against the accused unless: (1) the statement was
recorded electronically; (2) during the recording, but prior to the accused’s statement, the accused
was given the warnings enumerated under article 38.22, section 2(a) and “the accused knowingly,
intelligently, and voluntarily waive[d] any rights set out in the warning[s]; (3) the recording device
was capable of making an accurate recording, the operator was competent, and the recording is
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accurate and has not been altered; (4) all voices on the recording are identified;” and (5) the
accused’s attorney was provided with an accurate copy of the recording. Id. All portions of section
3(a) must be strictly complied with. Woods v. State, 152 S.W.3d 105, 116 (Tex. Crim. App. 2004).
Garcia contends section 3(a) of article 38.22 was not strictly complied with because
Detective Cavazos failed to testify that the recording device was capable of making an accurate
recording, that the operator was competent, and that the recording was accurate and had not been
altered. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(3). Garcia contends Detective
Cavazos also failed to identify all the voices on the recording. See id. § 3(a)(4).
PRESERVATION OF ERROR
As a prerequisite to presenting a complaint for appellate review, the record must show the
complaint was made to the trial court by timely objection. TEX. R. APP. P. 33.1(a)(1). If the
complaint presented on appeal does not comport with the objection made at trial, the complaint is
forfeited, and nothing is preserved for our review. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.
App. 2012).
At trial, Garcia’s counsel objected to the admissibility of a portion of Garcia’s recorded
statement on the basis that “there’s one mention of Mr. Garcia trying to ingest the ashes from the
box, and that has nothing to do with the burglary. And it’s our position that the introduction of it
is to evoke sympathy from the jury and we’d ask to take that one snippet out about him ingesting
the ashes.” The trial court overruled that objection. As Detective Cavazos was testifying to
Garcia’s recorded statement, the State asked Detective Cavazos if there was any reason to doubt
that Garcia’s recorded confession was legitimate. Garcia’s counsel made an objection on the basis
of speculation, which the trial court overruled. Garcia’s counsel made no further objections during
Detective Cavazos’s testimony.
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Nowhere in the record does it show that Garcia’s counsel objected to the admissibility of
Garcia’s recorded statement on the basis that the recording device was incapable of making an
accurate recording, that the operator was incompetent, or that the recording was inaccurate and
had been altered. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (stating that in
order for the objecting party to preserve error, the objecting party must specifically “let the trial
judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the
judge to understand him at a time when the judge is in the proper position to do something about
it”). Nor did Garcia’s counsel object to the admissibility of Garcia’s recorded statement on the
basis that the voices on the recording had not been identified. Because Garcia’s complaint on
appeal does not comport with the objections Garcia’s counsel made at trial, Garcia has forfeited
his sole complaint on appeal. See Clark v. State, 365 S.W.3d at 339. Thus, any alleged error in
the admissibility of Garcia’s recorded statement on the basis of section 3(a) of article 38.22 of the
Texas Code of Criminal Procedure is not preserved for our review. See Parker v. State, No. 02–
12–00348–CR, 2013 WL 2248254, at *2 (Tex. App.—Fort Worth May 23, 2013, pet. ref’d) (mem.
op., not designated for publication) (holding the appellant failed to preserve error when appellant’s
trial counsel failed to make a specific objection on the basis that the voices on the recording had
not been identified). Accordingly, Garcia’s sole issue on appeal is overruled.
CONCLUSION
Having overruled Garcia’s sole issue on appeal, we affirm the trial court’s judgment.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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