IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
APRIL 20, 2004
______________________________
CALVIN RAY CASH, APPELLANT
V.
KELLY SUTTON, ADMINISTRATOR, NURSE ABERNATHY, NURSE KAYS, LVN, APPELLEES
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 91,204-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J. (1)
MEMORANDUM OPINIONAppellant Calvin Ray Cash, an inmate proceeding pro se and in forma pauperis, challenges the trial court's order dismissing his claim for alleged violations of his civil rights against appellees Kelly Sutton, Nurse Abernathy, and Nurse Kays, employees of the Neal Unit of the Texas Department of Criminal Justice. We affirm.
Cash filed a complaint against the Neal Unit employees contending they violated his civil rights by withholding medical treatment for hepatitis C and other diseases. The trial court dismissed his claim as frivolous and also added that the "realistic chance of ultimate success is slight pursuant to Section 14.003(b)(1)." See Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon 2002). (2)
Although Cash does not raise a point of error or an issue challenging the trial court's discretion in entering the dismissal order, he inadequately argues the State is obligated to provide medical care to inmates and that failure to do so constitutes cruel and unusual punishment.
Dismissal of a claim under chapter 14 of the Code is reviewed under an abuse of discretion standard. McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536 (Tex.App.-Houston [14th Dist.] 1998, no pet.); see also Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). Abuse of discretion is determined by whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge does not demonstrate that an abuse of discretion has occurred. Id.
We recognize that a governmental entity has an "obligation to provide medical care for those whom it is punishing by incarceration." West v. Atkins, 487 U.S. 42, 56 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988), citing Estelle v. Gamble, 429 U.S. 97, S.Ct. 285, 50 L. Ed. 2d 251 (1976). However, a review of the record supports the trial court's decision to conclude that Cash's claim was frivolous. The record contains numerous complaints from Cash by which he claimed he was denied necessary medication. After being investigated, the complaints were answered either by inter-office communications, grievance responses, or letters indicating that when Cash did not receive his medication it was due to his repeated refusal to follow officers' instructions. One letter notes that medication is dispensed at the "pill window" at the same time as inmates proceed to meals to better monitor traffic in the unit. Cash was advised to follow the rules within the unit as security dictates. See Lilly v. Northrep, 100 S.W.3d 335, 337 (Tex.App.-San Antonio 2002, pet. denied) (holding the trial court did not abuse its discretion in dismissing an inmate's claim as frivolous because the record showed his grievances were addressed and he did receive medical attention and medication). We conclude the trial court did not abuse its discretion in dismissing Cash's civil rights action and overrule his contention.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. The Court discourages trial courts from dismissing suits due to a determination that an inmate has a slight realistic chance of success. Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990).
>, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Accordingly, in the present case, we give appropriate deference to the trial court's determination of historical facts, but we review de novo whether those historical facts establish that appellant's statements were the result of custodial interrogation. See Loserth v. State, 963 S.W.2d 770, 774 (Tex.Crim.App. 1998). See generally Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). If no explicit findings of fact are made by the trial court, we will assume that the trial court made implicit findings of fact which are supported by the record and which support the conclusion of the court. Id.
Appellant's first two issues contend that the admission of his statements violated both article 38.22 and the Fifth Amendment to the United States Constitution because the statements were the result of custodial interrogation. The State concedes, in its appellate brief, that appellant was in custody when he gave each statement relevant to this issue. Therefore, the pivotal question is whether the statements were made as a result of interrogation. Interrogation must reflect an effort to obtain information through some measure of compulsion distinct from any compulsive effect inherent in being placed in custody. Smith v. State, 60 S.W.3d 885, 889 (Tex.App.-Amarillo 2001, no pet.). The record reflects that both Garcia and Cogdell testified that appellant made the first two challenged statements spontaneously and not in response to any police questioning. (3) Thus, an implicit finding by the trial court that appellant's statements were not the result of interrogation is supported by the record and supports the trial court's denial of appellant's motion. (4) See Ross, 32 S.W.3d at 855. Since the trial court implicitly found that appellant was not questioned, we conclude that the evidence does not establish that appellant was subjected to an "interrogation environment," see Innis, 446 U.S. at 299, nor that appellant was compelled to make the statements due to any compulsion beyond the inherent compulsive effect of being placed in custody, see Smith, 60 S.W.3d at 889. Accordingly, we hold that these statements were volunteered by appellant and were not the result of interrogation.
The record indicates that, prior to appellant making his final statement, Cogdell had read appellant his Miranda warnings. Cogdell testified he then asked appellant what happened. Although appellant contends that admission of this third statement constitutes a constitutional violation of the rule in Miranda and a violation of article 38.22, it is apparent that the error, if any, is that this oral statement was admitted without being recorded. See article 38.22 § 3. (5) Assuming, without deciding, that the trial court erred in admitting this statement, our review of the record reveals that admission of appellant's final oral statement had no or a slight impact on the jury as it was simply cumulative of a prior oral statement made by the appellant that was not the result of custodial interrogation. See Nonn v. State, 117 S.W.3d 874, 882-83 (Tex.Crim.App.2003).
Appellant's third issue argues that the trial court erred in admitting the expert testimony of Garcia concerning "fist loading" because the State failed to designate Garcia as an expert and failed to disclose the subject of his expertise in violation of article 39.14.
To preserve an issue for appellate review, the complaining party must make a timely objection to the trial court that properly states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Butler v. State, 872 S.W.2d 227, 236 (Tex.Crim.App. 1994). Preservation of error is a systemic requirement that a first level appellate court should review on its own motion. See Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App. 1992) (op. on reh'g); Jones v. State, 942 S.W.2d 1, 2 (Tex.Crim.App. 1997). The complaint made on appeal must comport with the complaint made in the trial court, Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004), or there is nothing preserved for review. Id. at 543. See also Euziere v. State, 648 S.W.2d 700, 703-04 (Tex.Crim.App. 1983).
On appeal, appellant contends that Garcia was not identified by the State as a potential expert witness, in contravention of a trial court discovery order, and therefore, Garcia should not have been allowed to offer opinion testimony. At trial, appellant's only objection to Garcia's expert testimony was that he was not qualified to offer expert opinion testimony regarding "fist loading." Appellant never objected that Garcia was not disclosed as an expert when his testimony was offered at trial. Failure of appellant to advise the court of the specific objection now complained of results in there being nothing preserved for the court to review on appeal. Heidelberg, 144 S.W.3d at 543; Euziere, 648 S.W.2d at 703-04.
Appellant's fourth issue contends that Garcia was not qualified to testify as an expert on "fist loading." We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). A trial court abuses its discretion only when the reviewing court can say with confidence that no reasonable perception of the matter under consideration could have yielded the decision made by the trial court. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). If the trial court's decision is correct on any theory of law applicable to the case, the decision will be sustained. See Ross, 32 S.W.3d at 855-56. As noted above, preservation of error requires a timely objection be made which specifically identifies an appropriate legal basis for the objection. Butler, 872 S.W.2d at 236. Appellate arguments must comport with the objection made at trial. Heidelberg, 144 S.W.3d at 537.
Appellant contends, on appeal, that Garcia's testimony was neither relevant nor reliable citing this court to Texas Rule of Evidence 702 and Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App. 2000). We must, therefore, determine whether appellant's objection communicated to the trial judge what the appellant wanted, identified the specific legal basis for the requested relief, and was clear enough for the judge to understand the objection at a time when the court was in a position to do something about it. Butler, 872 S.W.2d at 236. However the record reveals that appellant never objected to Garcia's testimony based on relevance or reliability. Appellant's only objection related to Garcia's qualifications to testify about the concept of "fist loading." We conclude that appellant's trial objection to Garcia's qualifications is different than and will not support appellant's relevance and reliability issues on appeal. (6) See Heidelberg, 144 S.W.2d at 543.
Appellant further contends that Garcia was not qualified to offer expert opinion testimony regarding the concept of "fist loading" and, thus, the trial court erred in admitting this testimony. The decision of a trial court to allow expert testimony is reviewed for abuse of discretion. Weatherred, 5 S.W.3d at 542. Appellant's contention that Garcia was not qualified as an expert in "fist loading" is based on Garcia's testimony that he had only five minutes of training in the application of "fist loading." However, the record reveals that Garcia had been a police officer for over 11 years, had a bachelor's degree in law enforcement, held a Master Peace Officer's certificate issued by the State of Texas, had specialized training in hand-to-hand or close combat, and had received specific training regarding the concept of "fist loading." See Tex. R. Evid. 702. Based upon the entire record and after applying the standard of review for abuse of discretion, we cannot say that the trial court erred in admitting Garcia's testimony regarding "fist loading."
Having considered all of appellant's issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
1. Further reference to provisions of the Texas Code of Criminal Procedure will be by reference to "article ___".
2. "Fist loading" is the process of making the fist harder by placing an item inside the fist.
3. We acknowledge that Garcia's testimony was somewhat equivocal on this point, however, the trial court was free to believe Garcia's testimony that the police did not interrogate appellant. See Ross, 32 S.W.3d at 855.
4. We note that no evidence was presented that would tend to establish that appellant's statements were the result of custodial interrogation. Appellant did not testify nor did appellant inquire about the statements when his brother testified.
5. As noted above the record indicates Cogdell gave the warnings to appellant before the third statement. There is no evidence that appellant attempted to invoke his Miranda rights; nor does appellant contend, on appeal, that he attempted to invoke his rights. Thus, we conclude that appellant's Miranda rights were not violated.
6. We acknowledge that an expert's qualifications constitutes part of the reliability determination and we will address this specific objection below. In the present context, we refer to reliability to mean proof that the concept of "fist loading" is generally accepted and that Garcia's testimony was consistent with this generally accepted concept. See Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992).