IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 2, 2006
______________________________
ANTHONY RAY MONTOYA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 41,316-D & NO. 41,317-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINIONAppellant Anthony Ray Montoya was convicted of possession of a controlled substance and assessed a six year sentence and a $2,000 fine, suspended for ten years, in cause number 41,316-D. He was also convicted of possession of marihuana and assessed a six year sentence, suspended for ten years, in cause number 41,317-D. A hearing was held on the State's motions to revoke community supervision for violations of the conditions thereof. Appellant's plea of true to the State's allegations resulted in the trial court revoking community supervision and imposing the original sentence of six years confinement. In presenting this appeal, counsel has filed an Anders (1) brief in support of a motion to withdraw. We grant counsel's motion and affirm.
In support of his motion to withdraw, counsel certifies he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous. Counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978). Counsel has also shown that he sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se response if he desired to do so. The Clerk of this Court has also advised appellant by letter of his right to file a response to counsel's brief. Appellant filed a response; however, the State did not favor us with a brief.
We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds. After reviewing the record, counsel's brief, and appellant's pro se response, we agree with counsel that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005).
Accordingly, counsel's motion to withdraw is granted and the trial court's judgments are affirmed.
Don H. Reavis
Justice
Do not publish.
1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
pect, Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983); Minnick v. Mississippi, 498 U.S. 146, 153, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990), and responses to further interrogation are inadmissible. Jones v. State, 742 S.W.2d 398, 404 (Tex.Crim.App. 1987). He further cites Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), for the proposition that his refusal to make a written statement without counsel was an invocation of his right to counsel sufficient to preclude further questioning. The State relies on the Court's more recent opinion in Connecticut v. Barrett, 479 U.S. 523, 107 S. Ct. 829, 93 L. Ed. 2d 920 (1987), that a virtually identical limited waiver of rights did not require exclusion of the defendant's oral statement. Id. at 529.
In Barrett, the defendant agreed to speak with police but "indicated he would not make a written statement outside the presence of counsel." Id. at 525. Officers twice attempted to record his oral statement but were unsuccessful. An officer ultimately wrote down his recollection of the statements. Id. at 526. The court found the limitation Barrett placed on the waiver of his right to remain silent indicated an understanding of his rights. Id. It also characterized his request for counsel as limited and held the officers did not violate the limited invocation of his right to counsel. Id. at 529. Appellant acknowledges the holding in Barrett is contrary to his position but cites Justice Stevens' dissenting opinion that the majority opinion failed to provide basis for distinguishing its holding from that in Edwards v. Arizona. Id. at 536 (Stevens, J., dissenting).
Appellant's oral statement to officer Thomas was admissible under the holding in Barrett. 479 U.S. at 529. To the degree there is any conflict between Barrett and Edwards v. Arizona, we are bound by the Court's more recent holding.
Appellant suggests Article I, Section 10 of the Texas Constitution provides greater protection than the federal constitution under Barrett. Review of Texas case law leads to the conclusion that is not the case. See Hernandez v. State, 988 S.W.2d 770, 772-73 (Tex.Crim.App. 1999) (comparing Article I, Section 10 and Sixth Amendment); Hernandez v. State, 726 S.W.2d 53, 56 (Tex.Crim.App. 1986) (same); Ex parte Shorthouse, 640 S.W.2d 924, 928 (Tex.Crim.App. 1982) (same, Fifth Amendment).
With regard to admission of the written statement obtained by detective Landrum, the State concedes the statement was obtained in violation of appellant's right to counsel. See Barrett, 479 U.S. at 928. The State concludes the written statement was not admissible under Barrett, but any error was harmless. We find the complaint concerning its admission was not preserved for review. When a pretrial motion to suppress is overruled, no objection to the evidence is required at trial to preserve complaint for appellate review. Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App. 1986); Graham v. State, 96 S.W.3d 658, 659 (Tex.App.-Texarkana 2003, pet. ref'd). However, when the accused affirmatively asserts during trial he has "no objection" to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the pre-trial ruling. Graham, 96 S.W.3d at 660. Here appellant stated he had "no objection" when the written statement was introduced in evidence. Any error in admitting the statement was waived. Id.
We overrule appellant's sole issue and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
1. 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2. The officer's report does not appear in the record but during the suppression hearing defense counsel read the following passage as a question predicate: "Calip told me he did not want to write anything down on paper without talking to a lawyer first."
3. Appellant does not challenge the trial court's resolution of the conflicting evidence on whether his written statement was coerced.