Larry Joe Valadez v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Larry Joe Valadez

Appellant

Vs.                   No. 11-04-00129-CR -- Appeal from Taylor County

State of Texas

Appellee

Larry Joe Valadez, appellant, appeals his conviction by a jury of the offense of aggravated assault with a deadly weapon.  The jury assessed his punishment at ten years in the Texas Department of Criminal Justice, Institutional Division.  He contends in a single point of error that the trial court erred in admitting his confession because it was rendered involuntary when the interrogator told him that the statement could be used for or against him.  We affirm.

Appellant filed a motion to suppress, alleging that his statement was taken while he was physically and mentally incapable of voluntarily and knowingly waiving his right and alleging that the statement was taken in violation of the protective measures adopted in the Texas Code of Criminal Procedure allowing for the questioning of suspects by the government.  The trial court denied appellant=s motion.

Generally, the trial court=s denial of a motion to suppress is reviewed for abuse of discretion.  Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App.1999).  Thomas Valdez, the Abilene police detective who obtained appellant=s statement, testified that, when warning suspects, he reads the Miranda^[1] warning directly from the form.  He indicated that, when he read each one of the rights to him, appellant had no questions and understood and voluntarily waived his rights.  On cross-examination, Detective Valdez testified that he told appellant that he had the right to a lawyer and the right to remain silent and that anything he said could be used for or against him at trial.  The pertinent part of the Miranda warning located on the top of each page of appellant=s statement was, AI have the right to remain silent and not make any statement at all, and that any statement I make may be used against me at my trial.@  Counsel for appellant made no argument on the motion.  Counsel, therefore, never suggested to the trial court, either in his motion or in his argument on the motion, that appellant=s statement was involuntary because appellant was told that his statement could be used for or against him at trial.

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. TEX.R.APP.P. 33.1(a)(1)(A). Appellant=s motion did not state the grounds he now seeks to present with sufficient specificity to make the trial court aware of the complaint, and the specific grounds are not apparent from the context. Consequently, nothing is presented for review.

Even if appellant had properly preserved this error for appeal, we note that a trial court does not abuse its discretion in resolving factual discrepancies in the testimony, such as whether the officer administering warnings read the correct warning from the warning form or told the defendant that the warning could be used for or against him.  Dinkins v. State, 894 S.W.2d 330, 348-49 (Tex.Cr.App.1995).  Inasmuch as Detective Valdez=s testimony was self-contradicting with respect to which warning he gave, the trial court did not abuse its discretion by resolving that factual discrepancy.  See id.

Appellant relies on the opinions in Sterling v. State, 800 S.W.2d 513 (Tex.Cr.App.1990), cert. den=d, 501 U.S. 1213 (1991), and Dunn v. State, 721 S.W.2d 325 (Tex.Cr.App.1986). We hold that both of these cases are distinguishable because in each case the evidence that the defendant was advised that the statement could be used for or against him was uncontradicted. Sterling v. State, supra at 518-19; Dunn v. State, supra at 341-42.  We overrule appellant=s sole point of error.

The judgment is affirmed.

PER CURIAM

August 18, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, J., and

McCall, J., and Hill, J.^[2]

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^[1]Miranda v. Arizona, 384 U.S. 436 (1966).

^[2]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.