LONNIE EARL BISOR, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as modified; Opinion issued March 22, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00816-CR
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LONNIE EARL BISOR, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-01745-VM
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OPINION
Before Justices Lang, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Lonnie Earl Bisor appeals his conviction for theft of property valued from $20,000 to $100,000   See Footnote 1 . In two issues, he claims the trial court improperly admitted an oral statement during the punishment phase of the trial and imposed an illegal punishment. As modified, we affirm the trial court's judgment.
Appellant's oral statement
        In his first issue, appellant argues the trial court's admission of an oral statement during the punishment phase of the trial violated the Fifth Amendment and article 38.22 § 3(a) of the Texas Code of Criminal Procedure.   See Footnote 2  The State claims any error was waived and, in the alternative, that the statement was not made during custodial interrogation.
        Background
        Appellant was convicted of unlawfully appropriating a container belonging to Jianxun Shan, the owner of Sun L. Group, Inc., a seller of motorcycles and all-terrain vehicles, on October 27, 2004. The container held 132 “motorized vehicles” with a “base value” of $23,760.
        During the punishment phase of the trial, the State presented evidence showing that appellant had eight prior convictions, five of which were for theft of property. The jury also heard testimony concerning a theft that occurred after appellant had been released on bond for the instant offense.         Appellant testified that after being released on bond for the instant offense he talked to Lonnie Cole, a detective with the auto theft division of the Dallas County Sheriff's Department. Cole told him that if he “gave him two persons,” appellant would receive probation for the instant offense. While he was out on bond for the instant offense, appellant was arrested for participating in a container theft from the Steve Silver Company, a furniture wholesaler.
        Miachelle Gentry, an employee of the Steve Silver Company, testified that on February 7, 2005, she received a telephone call from the Garland Police informing her they had recovered a container and chassis that had been stolen from the Steve Silver Company. The contents of the container included 155 pieces of furniture with a “fair market value” of $19,977.10.
        Appellant admitted his involvement in the subsequent container theft, but claimed he was working for Cole as an undercover informant. Appellant also claimed he ran from the police before being arrested because Cole told him that if he got caught, he was “on [his] own.” Appellant further alleged that Cole visited him at the jail on February 7, 2005, shortly after he was arrested, and “backed out of the deal.”
        Cole testified that appellant worked for him as a confidential informant following an introduction by the Flower Mound Police Department. Appellant was chosen as a confidential informant because he had information about a theft ring Cole was investigating. Cole denied that appellant was involved in a “sanctioned event or some type of sting operation” when he participated in the theft from the Steve Silver Company on February 7, 2005. Cole said he first learned of the theft on February 7 when he was notified by detectives from the Dallas Police Department that appellant was involved in the theft and had been arrested.
        When the prosecutor asked Cole about his visit to the jail on February 7, defense counsel objected and the jury was excused. Outside of the jury's presence, Cole testified that he visited appellant in jail and expressed his disappointment with appellant, and appellant “indicated he was sorry that he let me down.” Cole denied the theft from the Steve Silver Company was a “sanctioned deal” or that appellant was working as an undercover confidential informant on February 7, 2005. Cole did not read appellant his Miranda rights before talking to him at the jail because appellant “wasn't a target of any investigation that we were conducting.” He was not talking to appellant about the subsequent container theft and Cole “didn't really have any concern about that case, period.” The reason for Cole's visit to the jail was to advise appellant he was being “deactivated” as a confidential informant because appellant had violated his informant contract. Cole agreed that appellant's statement could be interpreted as an admission of guilt to the container theft from the Steve Silver Company.
        At the close of this testimony, appellant objected, “I think custodial interrogation, so I'm going to object to it. It's not Mirandized, and it's about the offense so I would object to it being-that portion being put in front of the jury.” The prosecutor replied that appellant's statement was being offered as a rebuttal to appellant's claim he was acting as a confidential informant during the second container theft. He also claimed the statement went “directly to the issue of whether [appellant] was telling the truth.” The trial court overruled appellant's objection, concluding the statement was admissible “for rebuttal purposes and prior inconsistent statements from this defendant.”
        When the jury returned to the courtroom, Cole testified that he visited appellant at the jail and told him he was disappointed to learn appellant had committed another offense. Appellant “acknowledged that he was sorry, [and that] he let me down.” Cole denied the theft was “some type of sanctioned deal where” appellant had been given a “green light” to commit a crime or that appellant was working as a confidential informant when the theft occurred.
        Preservation
        The State argues appellant failed to preserve error because his trial objection does not comport with the complaint on appeal. The State notes that appellant objected at trial based on Miranda v. Arizona, 384 U.S. 436 (1966), but his argument on appeal concerns an alleged violation of article 38.22 of the Texas Code of Criminal Procedure; therefore, appellant's trial objection does not comport with the complaint on appeal.
        On appeal, appellant invokes article 38.22 and the Fifth Amendment, arguing his statement to Cole was improperly admitted because he was subjected to custodial interrogation and he was not given the required statutory and constitutional warnings. To preserve a complaint under article 38.22 of the code of criminal procedure, however, the defendant must specifically invoke that article in his trial objection. See Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); Greenwood v. State, 948 S.W.2d 542, 549-50 (Tex. App.-Fort Worth 1997, no pet.).         In this case, defense counsel did not argue the statement was inadmissible because it did not comply with article 38.22 § 3 of the Texas Code of Criminal Procedure. Nor is there any indication he raised this argument in a pretrial motion to suppress. Only on appeal does appellant argue the statement was inadmissible based on article 38.22 § 3. Therefore, we agree with the State that appellant failed to preserve error on this issue. See Thomas, 723 S.W.2d at 700; Greenwood, 948 S.W.2d at 550.
        We do not agree, however, that appellant waived his Fifth Amendment objection. Defense counsel argued that appellant's statement to Cole should be excluded because it was the product of custodial interrogation and appellant was not given Miranda warnings before making the statement. We believe defense counsel's trial objection was sufficient to preserve error on the Fifth Amendment portion of appellant's claim. See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). We therefore address the merits of appellant's Fifth Amendment argument.
        Standard of Review
        The decision to admit or exclude evidence is within the sound discretion of the trial court and is reviewed for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990) (op. on reh'g). The trial court will be reversed only when its decision lies outside the zone of reasonable disagreement. See Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g).
        Applicable Law
        The Supreme Court has defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. If a statement made by an accused does not stem from custodial interrogation, it is admissible. Roquemore v. State , 60 S.W.3d 862, 868 (Tex. Crim. App. 2001).
        Interrogation is not limited to questions; any words or actions by police may be considered interrogation if the police “should have known [they] were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 302 (1980). The term “incriminating response” refers to any response the prosecution may seek to introduce at trial. Id. at 301 n.5. Where the comments of the police are “designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.” Id. at 301 n.7. We do not look at the statements made by the police in a vacuum; we construe those statements in light of the circumstances of the interaction between the police and the accused on each particular occasion. See Morris v. State, 897 S.W.2d 528, 532 (Tex. App.-El Paso 1995, no pet.). Statements volunteered by the accused are admissible. Miranda , 384 U.S. at 478 .
        Not all interactions between the police and a suspect in custody will constitute “interrogation.” See Jones v. State , 795 S.W.2d 171, 174 (Tex. Crim. App. 1990); Camarillo v. State, 82 S.W.3d 529, 535 (Tex. App.-Austin 2002, no pet.). In Jones , the court of criminal appeals discussed those types of questions that will not be found to constitute interrogation: “Routine inquiries, questions incident to booking, broad general questions such as 'what happened' upon arrival at the scene of a crime, and questions mandated by public safety concerns, e.g., 'where did you hide the weapon' when the weapon has just been hidden in the immediate vicinity” are not interrogation. Jones, 795 S.W.2d at 174 n.3. Offhand remarks not designed to elicit any kind of response do not constitute interrogation. Camarillo, 82 S.W.3d at 535; see also Innis, 446 U.S. at 302-03 (police officers are not accountable for the unforeseeable results of their words or actions).
        Analysis
        In this case, there is no question appellant was in custody when he made the statement; the only issue is whether there was an “interrogation.” See Lam v. State, 25 S.W.3d 233, 239-40 (Tex. App.-San Antonio 2000, no pet.) (fact that appellant was in custody does not show the statement stemmed from custodial interrogation). The record is equally clear that appellant's statement to Cole was not a product of direct questioning. Cole testified he was not interrogating appellant about the second container theft or any other theft when he visited appellant at the jail on February 7, 2005. Cole said he had no interest in the container theft and appellant was not the target of any investigation. His only reason for visiting appellant at the jail was to inform appellant that he was being “deactivated” as a confidential informant because he had violated his confidential informant agreement. The exchange between Cole and appellant occurred because of a routine inquiry following appellant's arrest. Appellant's statement was not the product of custodial interrogation or its functional equivalent. From the record, the trial court could have concluded appellant's statement to Cole was voluntary and not the result of questioning that Cole had reason to know would elicit an incriminating response. We overrule appellant's first issue.
 
Reformation of Judgment
        In his second issue, appellant contends the trial court's judgment shows he was assessed a punishment in excess of what is allowed by law for a third degree felony offense. He requests either a new punishment hearing or reformation of the judgment to reflect the jury's verdict. The State argues the judgment should be reformed to reflect that appellant pleaded not true to the allegations in the enhancement paragraphs and the jury found those allegations to be true.
        Appellant was charged by indictment with the theft of property valued from $20,000 to $100,000, a third degree felony. See Tex. Penal Code Ann. § 31.03(e)(5) (Vernon Supp. 2006). The indictment also contained two enhancement paragraphs alleging appellant was previously convicted of felony theft offenses in 1992 and 1996. Appellant entered pleas of not true to the allegations in the enhancement paragraphs. Because he was previously convicted of two felony offenses and the second felony conviction was for an offense that occurred after the first felony conviction became final, the punishment range was twenty-five to ninety-nine years or life in prison. See id. § 12.42(d). The judgment incorrectly states that no plea was made to the enhancement paragraphs and no findings were made on the enhancement paragraphs. According to the record, however, appellant entered pleas of not true to the enhancement paragraphs and the jury found the allegations in the enhancement paragraphs to be true.
        “This court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and the nature of the case may require.” Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd) (reforming judgment on State's cross-point to add deadly weapon finding), modified on other grounds by Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.-Dallas 1994, pet. ref'd). We therefore modify the trial court's judgment in this case to reflect that appellant entered pleas of not true to the enhancement paragraphs and the jury found the allegations in both enhancement paragraphs to be true. See Tex. R. App. P. 43.2(b). We overrule appellant's second issue.
        As modified, we affirm the trial court's judgment.
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060816F.U05
 
Footnote 1 See Tex. Penal Code Ann. § 31.03(e)(5) (Vernon Supp. 2006).
Footnote 2 Article 38.22 § 3 of the Texas Code of Criminal Procedure prohibits the admission of unrecorded oral statements “made as a result of custodial interrogation” unless certain procedural requirements are met. See Tex. Code Crim. Proc. Ann. art. 38.22 § 3 (Vernon 2005). Section five states that nothing in article 38.22 precludes the admission “of a statement that does not stem from custodial interrogation” or of a voluntary statement. Id. art. 38.22 § 5.