Bertram Crosby v. The State of Texas--Appeal from 159th District Court of Angelina County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-05-020 CR
NO. 09-05-021 CR
____________________
BERTRAM CROSBY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th District Court
Angelina County, Texas
Trial Cause Nos. 24,538, 24,539
MEMORANDUM OPINION

Bertram Crosby was convicted by a jury of three counts of aggravated sexual assault of a child younger than fourteen years of age. See Tex. Pen. Code Ann. 22.021(a)(1)(A)(ii), (iii), (2)(B) (Vernon Supp. 2005). Crosby was sentenced by the jury to twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division, on each count, to run concurrently. Crosby appeals raising three points of error.

In his first issue, Crosby contends the trial court erred by overruling defense counsel's objection to the admission of the statement made by Crosby to Officer Stubblefield during a custodial interrogation. Crosby testified on his own behalf during the punishment phase of the trial. On cross-examination, Crosby denied the offenses for which he was charged. Once Crosby denied the offenses, the State recalled Officer Stubblefield for impeachment purposes. Officer Stubblefield testified, "Basically, he [Crosby] denied that it was forced sex. What he said was, 'I can't help the girls came on to me.'" Crosby contends evidence of his statement was inadmissible under Article 38.22 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22, 3 (Vernon 2005). That article provides no oral statement of an accused made during a custodial interrogation is admissible against the accused in a criminal proceeding unless various requirements, including Miranda warnings, are met. Tex. Code Crim. Proc. Ann. art. 38.22, 3. While the State contends there were warnings given, the State concedes not all formalities required by article 38.22 were followed when the statement was given. However, that section will not apply to prevent introduction of a defendant's oral, voluntary statement made while in custody when it is introduced for the purpose of impeaching the defendant's trial testimony. Tex. Code Crim. Proc. Ann. art. 38.22, 5 (Vernon 2005); McCoin v. State, 56 S.W.3d 609, 617 (Tex. App.--Texarkana 2001, no pet.) (citing Lykins v. State, 784 S.W.2d 32, 35-36 (Tex. Crim. App. 1989)). Therefore, we overrule issue one.

Crosby next contends the trial court erred by allowing the State to attempt to impeach the credibility of the defendant with his prior statement to Officer Stubblefield as a prior inconsistent statement because appellant's prior statement was not inconsistent with his testimony at trial. On cross-examination during the punishment phase of the trial, the following exchange occurred:

Q. You had sex with those two girls the way they described, didn't you?

A. No, I didn't, sir.

Q. Okay, You deny completely the offenses?

A. Do I deny the offenses?

Q. Yes.

A. Yes, sir. I -

Officer Stubblefield was thereafter recalled to testify as to Crosby's oral statement to him wherein Crosby basically denied that it was forced sex, instead of denying outright the sexual encounters.

During cross-examination, when the State first questioned Crosby about giving a prior oral statement to Officer Stubblefield, defense counsel objected to such questioning on the basis of hearsay and improper predicate. The complaint on appeal must comport with the objection made at trial or nothing is preserved for review. See Wheeler v. State, 79 S.W.3d 82 (Tex. App.--Beaumont 2002, no pet.). Because Crosby's argument on appeal does not comport with his trial objections, the issue is not properly before this court. Tex. R. App. P. 33.1. Further, Officer Stubblefield's testimony was admitted without objection. The general rule is that error regarding improperly admitted evidence is waived if that same evidence is brought in later by the defendant or by the State without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Issue two is overruled.

Finally, Crosby complains the trial court erred by failing to make an inquiry as to the voluntariness of appellant's statement outside the presence of the jury and failed to make written findings of fact and conclusions of law after defense counsel raised the issue of voluntariness. Article 38.22, section 6, of the Texas Code of Criminal Procedure provides that in all cases where a question as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. Tex. Code Crim. Proc. Ann. art. 38.22, 6 (Vernon 2005). However, that provision is not applicable unless a question is raised as to the voluntariness of a statement. See State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999) (citing Romero v. State, 800 S.W.2d 539, 544 n. 7 (Tex. Crim. App.1990)). An objection of improper predicate is insufficient to raise a question as to the voluntariness of a statement. Because Crosby's argument on appeal does not comport with his trial objection, the issue was not preserved for review.

We affirm the judgment of the trial court.

AFFIRMED.

 

________________________________

CHARLES KREGER

Justice

 

Submitted on July 21, 2005

Opinion Delivered August 24, 2005

Do not publish

 

Before McKeithen, C.J., Kreger, and Horton, JJ.