MOORE, DONTAE TERRELL v. the State of Texas ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0239-23
DONTAE TERRELL MOORE, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
Per curiam.
OPINION
Appellant filed a pretrial motion to suppress his two videotaped statements on the
ground that the statements were involuntary. The trial court held a hearing and denied the
motion. At trial, when the State began to ask the interviewing detective questions about
the recorded statements, defense counsel said, “Just so the record is clear, we would like a
running objection as to both interviews based on our previous motion.” The court
responded, “All right.” The prosecutor asked a few questions about whether the exhibits
were accurate copies of the original recordings, then offered the exhibits into evidence.
MOORE – 2
Defense counsel stated, “no objections,” and the trial court admitted them into evidence.
On appeal, appellant raised two points of error in which he argued that he had not
voluntarily waived his rights in making the statements. The court of appeals declined to
address his arguments, holding that appellant forfeited any error when defense counsel
stated that he had “no objections” to admission of the statements. Moore v. State, No. 14-
07-00366-CR slip op. at 7 (Tex. App.–Houston [14th Dist.] Aug. 28, 2008)(not designated
for publication).
Appellant filed a petition for discretionary review in 2009, which was dismissed by
this Court as untimely filed. We granted appellant an out-of-time petition in April 2023.
Appellant has now timely filed a petition for discretionary review in which he contends
that the court of appeals erred in refusing to address the merits of his claims. We agree.
“[A]s with error preservation in general, the rule that a later statement of ‘no
objection’ will forfeit earlier-preserved error is context-dependent.” Thomas v. State, 408
S.W.3d 877, 885 (Tex. Crim. App. 2013). A reviewing court should not focus on the “no
objection” statement in isolation, but should consider it within the context of the whole
record. Id. “If the record as a whole plainly demonstrates that the defendant did not intend,
nor did the trial court construe, his ‘no objection’ statement to constitute an abandonment
of a claim of error that he had earlier preserved for appeal, then the appellate court should
not regard the claim as ‘waived,’ but should resolve it on the merits. On the other hand, if
from the record as a whole the appellate court simply cannot tell whether an abandonment
was intended or understood, then, consistent with prior case law, it should regard the ‘no
MOORE – 3
objection’ statement to be a waiver of the earlier-preserved error.” Id. While Thomas was
decided after the court of appeals’ opinion in the instant case, it was based upon general
principles of preservation of error law.
Here, considering the record as a whole, it is obvious that defense counsel did not,
by saying that he had “no objections,” intend to forfeit his earlier objections. In fact, less
than a couple of minutes before, counsel had gone to the trouble of securing a running
objection to his earlier complaints about admissibility of the statements. It is apparent
from the context that defense counsel was merely signaling that he had no further
objections to the recorded statements based upon the prosecutor’s line of questioning
regarding the accuracy and quality of the copies.
The court of appeals erred by viewing in isolation defense counsel’s assertion that
he had “no objections” and holding that appellant forfeited his claims. Appellant is
entitled to have the merits of his claims reviewed. See T EX. R. A PP. P. 47.1 (court of
appeals must issue a written opinion “that addresses every issue raised and necessary to
final disposition of the appeal”).
We grant appellant’s petition for discretionary review, vacate the judgment of the
court of appeals, and remand this case to that court to address appellant’s points of error
three and four.
Delivered July 26, 2023
Do not publish