Collin Michael Littrell v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

Collin Michael Littrell

Appellant

Vs. No. 11-01-00348-CR - Appeal from Palo Pinto County

State of Texas

Appellee

Memorandum Opinion

The jury convicted Collin Michael Littrell of burglary of a habitation. After he entered pleas of Atrue@ to the two enhancement allegations, the jury assessed his punishment at confinement for life. We affirm.

The Indictment

The indictment charged that, on or about January 12, 2000, appellant entered a habitation in Palo Pinto County without consent and with the intent to commit theft. The indictment also charged that, prior to the commission of that offense, appellant had final convictions for forgery and for burglary of a habitation.

Point of Error

There is no challenge to the sufficiency of the evidence. Appellant presents only one point of error. In that point, he argues that the trial court erred:

[I]n receiving into evidence a written statement from a participant in the alleged offense over appellant=s timely objection.

The Atimely objection@ was that: AThere=s no predicate been laid for how the statement was taken or to who or under what circumstances it was taken.@

Relevant Evidence

The State called only two witnesses before it rested. The first witness was Audrey Czajkowski Bryant. She testified that she and her family lived at 227 Hilltop Road in Mineral Wells on January 12, 2000, when someone broke into their home and took some of their property. She described what she found when she got home that day and how the burglary had affected them. She also said that the police recovered some, but not all, of the property which was stolen.

The second witness was Deputy Sheriff Marc Moon. He identified the confession which appellant made to him on February 11, 2000. The trial court held a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964), and ruled that the confession was admissible. After Deputy Moon proved that appellant had voluntarily made the statement, it was admitted into evidence and read to the jury. There is no appellate complaint as to the use of appellant=s confession. Omitting the statutory warnings, waivers, and signatures, the confession reads as shown:

My full name is Collin Michael Littrell. I live at 4303 Oak Trl Dr. Granbury, TX. I am 25 years of age, having been born 1-2-75.

* * *

About the middle of January [William Johnson and I] were driving on the North side of Mineral Wells and we noticed a nice brick home with the garage door about half-way open I went to the front door and knocked on the door to see if anyone was home, when no one answered the door William went under the garage door and broke into the house....William opened the front door and let me into the house. I went to the Master bedroom closet, and went through the thing in there I took a camcorder that was in the case, I then went to the other bedrooms and took a playstation and Nintendo 64, I kicked open a door to a computer room and took a bottle of Crown Royal, I took some C.D.s out of one of the rooms. William also was also getting property like 2-T.V.s, V.C.R. We put all the property by the front door until we were ready to leave, we also took a Sony C.D. player, I may have took some coins out of the house I do not remember. When we were finished going through the house we put the property in the car and left. We pawned most of the property at pawn shops on Jacksboro Hwy. Some of the property we threw out on the side of the road in Erath Co.

After the State rested, appellant=s trial counsel called William James Johnson as a witness. Johnson testified that he was currently residing in the Comanche County Jail, that he had known appellant for about three years, and that they had been roommates in 1999 and 2000. Appellant=s girlfriend and their daughter also lived with appellant. Johnson testified that he had Apleaded out for 14 years@ on the burglary of Bryant=s home in Palo Pinto County; that appellant was not with him at the time of this burglary; that appellant=s girlfriend was with Johnson at the time of the burglary; that appellant wanted to protect her because she was the mother of his child; and that this was the reason the two of them told Deputy Moon that appellant was with him at the time of the burglary.

During the State=s cross-examination of Johnson, he identified the statement which he gave to Deputy Moon on February 11, 2000. Johnson admitted that he signed the statement, and the district attorney offered that statement as an exhibit. The record then shows the following:

[DEFENSE COUNSEL]: Your Honor, we would object to this. There=s no predicate been laid for how the statement was taken or to who or under what circumstances it was taken.

THE COURT: Okay. I=ll overrule that objection. It=s admitted. (Emphasis added)

Johnson also testified that he and appellant had discussed their statements in the holding cell and that appellant said that Ahe was taking the rap@ instead of his girlfriend. On redirect examination, Johnson told the jury that he was telling the truth and that he had given the false confession to help appellant cover for his girlfriend.

Appellant then took the witness stand and testified that he was not with Johnson when Johnson burglarized the house and that he gave the false confession because he did not want his girlfriend to go to jail. Appellant also testified that he asked Johnson to tell the police that appellant was with him at the time of the burglary and to not tell them about appellant=s girlfriend. Appellant said that he did not want his daughter to grow up without a mom. Appellant testified that, back when he gave the statement, he was just trying to protect A[his] wife or [his] girlfriend, whatever you want to call her.@ Since then, he learned that the State was Atalking about making [him] do half [his] life in prison and that really scares [him].@ Appellant said that he regretted making the false confession. During his cross-examination, he admitted that he had prior convictions for three forgeries and one burglary. Also, he admitted that he was Ajust recently convicted in Hood County@ for eight burglaries and an escape.

Trial Court=s Ruling

Appellant=s objection that there was no predicate laid to show Ahow the statement was taken or to who or under what circumstances@ was properly overruled by the trial court. The statement shows on its face that it was given to Deputy Moon, that all of the required warnings were given, and that the witness had waived his right to remain silent and his right to consult with counsel. Moreover, the prosecutor went over the warnings and waivers during his cross-examination of the witness. The sole point of error is overruled.

Complaint on Appeal

Appellant cites Cofield v. State, 857 S.W.2d 798 (Tex.App. - Corpus Christi 1993), aff=d, 891 S.W.2d 952 (Tex.Cr.App.1994), which discussed TEX.R.EVID. 803(24). The objection in the trial court did not relate to the problem discussed in Cofield. Appellant has not preserved that complaint for appellate review. Ibarra v. State, 11 S.W.3d 189 (Tex.Cr.App.1999), cert. den=d, 531 U.S. 828 (2000); Knox v. State, 934 S.W.2d 678, 687 (Tex.Cr.App.1996).

Even if the issue had been preserved, it would have not shown reversible error under TEX.R.APP.P. 44.2(b) because appellant=s testimony and appellant=s prior inconsistent written statement were both admitted into evidence without objection; they were virtually identical to the witness= testimony and to the witness= prior inconsistent written statement.

This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

March 28, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Wright, J., and

McCall, J., and Dickenson, S.J.[1]

[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.