Appellee=s Second Motion for Rehearing Overruled. Reversed and Remanded and Supplemental Majority Opinion and Dissenting Opinion on Motion for Rehearing filed May 29, 2008.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-00098-CR
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ANGEL RESENDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 960399
S U P P L E M E N T A L M A J O R I T Y O P I N I O N O N M O T I O N F O R
R E H E A R I N G
On August 30, 2007, this court issued a substitute opinion in which it reversed and remanded the case for a new trial. On October 15, 2007, the State filed a second motion for rehearing requesting this court to reconsider its substitute opinion. We overrule the State=s second motion for rehearing, but we issue this supplemental opinion to address matters raised by the State.
In its second motion for rehearing, the State argues even assuming appellant was in custody during the second interview, the lack of Miranda warnings did not render appellant=s confession inadmissible because Officer McDaniel advised appellant of his rights before he made appellant=s first videotaped statement two days earlier. According to the State, it is irrelevant whether appellant was in custody because the warnings appellant received during the first interview were still in effect during the second interview. The State, however, admits it did not bring forth this argument on appeal or in its first motion for rehearing.
A. Can the Court Consider a New Argument on Rehearing?
Before addressing the merits, we must first determine whether we can consider a new argument raised in a motion for rehearing. The Court of Criminal Appeals has determined if a party raises a new ground for the first time on a motion for rehearing, the decision of whether to consider the new matter is Aleft to the sound discretion of the appellate court.@ Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App. 1990). The Court has held there are times when Aas justice requires@ or Ain the interest of justice@ an appellate court may consider a motion for rehearing to decide an issue not presented in the original briefs. Hughes v. State, 878 S.W.2d 142, 151 (Tex. Crim. App. 1990) (citing Boyle v. State, 820 S.W.2d 122, 141 (Tex. Crim. App. 1991) (op. on reh=g); Rochelle, 791 S.W.2d at 121). Accordingly, we exercise our discretion and will consider the State=s new argument Ain the interest of justice.@
In appellant=s response, he argues the State waived this new argument because it failed to raise this issue during the suppression hearing. We disagree with appellant. When the State prevails at the suppression hearing, the court of appeals is obligated to uphold the trial court=s ruling on a motion to suppress if that ruling is supported by the record and is correct under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000). Essentially, when the State wins a motion to suppress and the defendant appeals the decision, the State may bring forth new theories of law applicable to the case which were not raised in the suppression hearing. See Armendariz, 123 S.W.3d at 404B05 (reversing the appellate court and determining the trial court could have reasonably denied appellant=s motion to suppress given the record and the applicable law even though the State failed to bring forth the arguments at the suppression hearing); State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998) (A[W]hen the prosecution wins on the motion to suppress, the government cannot be faulted for not insisting upon an inquiry into yet another basis upon which it might defeat the suppression motion.@).
Appellant cites to State v. Mercado and State v. Steelman in support of his argument that issues not argued at the suppression hearing are deemed waived on appeal; however, appellant fails to recognize both Mercado and Steelman stand for the proposition that when the State loses the suppression hearing and appeals the decision, the State may not bring forth new points of error. See State v. Steelman, 93 S.W.3d 102, 105B07 (Tex. Crim. App. 2002); Mercado, 972 S.W.2d at 77B78. In this case, the State won the suppression hearing and the defendant appealed, therefore, Mercado and Steelman do not apply.
Appellant also cites to this court=s decision in Barocio v. State as support. In Barocio, the trial court denied the defendant=s motion to suppress, the defendant appealed the decision, the State attempted to raise a new argument to support the denial, and this court, in a plurality opinion, held the State=s new argument was waived. Barocio v. State, 117 S.W.3d 19, 26 (Tex. App.CHouston [14th Dist.] 2003) (plurality op.), rev=d on other grounds, 158 S.W.3d 498 (Tex. Crim. App. 2005). However, the clear import of Armendariz is that the State, in the wake of a trial court=s denial of a motion to suppress, retains the right to supplement its arguments on appeal supporting the trial court=s ruling on the motion. See Armendariz, 123 S.W.3d at 404B05. This rule is inapplicable only when the State is not the prevailing party on the motion to suppress. See Steelman, 93 S.W.3d at 105B07; Mercado, 972 S.W.2d at 77B78. Thus, Barocio conflicts with the rule in Armendariz and incorrectly applies the law. Furthermore, Barocio is a one-judge plurality opinion, which has no precedential value, and is not binding authority on this court. See Chavez v. State, 9 S.W.3d 817, 833 (Tex. Crim. App. 2000) (stating a plurality opinion is not binding precedent). Accordingly, we find the State did not waive its argument by failing to raise it during the suppression hearing.
B. Were the Warnings Given to Appellant During the First Interview Still in Effect During the Second Interview?
The State concedes it did not read appellant his Miranda rights before conducting the second interview; however, it now argues this lack of Miranda warnings did not render appellant=s confession inadmissible because Officer McDaniel advised appellant of his Miranda rights before he made appellant=s first videotaped statement two days earlier. We will analyze this argument under both constitutional principles and the Texas Code of Criminal Procedure (Athe Code@).
1. United States and Texas Constitutional Principles
a. Applicable Law
The safeguards established in Miranda come into play when a person in custody is subjected to either express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297 (1980). The State, however, cites two Texas Court of Criminal Appeals cases for the proposition that when a suspect provides two statements that are separated by the passage of time and Miranda warnings were provided before the first statement, the mere passage of time does not automatically vitiate the prior warnings. See Jones v. State, 119 S.W.3d 766, 773B74 n.13 (Tex. Crim. App. 2003); Ex parte Bagley, 509 S.W.2d 332, 337B38 (Tex. Crim. App. 1974).
In Ex parte Bagley, the arresting officer, a magistrate, and the assistant district attorney warned the defendant. Ex parte Bagley, 509 S.W.2d at 335. Subsequent warnings were given before a polygraph exam and before the complained of statement. Id. During the polygraph examination, the defendant expressed his desire to make a statement, so the assistant district attorney again warned the defendant, and the defendant=s statement was reduced to writing. Id. This statement, however, was not the confession introduced into evidence. Id. at 336. Upon completion of the written statement, the defendant returned to his jail cell. Id. Later that evening, the assistant district attorney questioned the defendant again. Id. Before taking a second statement, the assistant district attorney again warned the defendant but in general terms. Id. at 336B37. The two then went over the defendant=s previous statement and determined it needed corrections. Id. at 336. This resulting confession was the confession introduced at trial. Id. On appeal, the defendant claimed the confession introduced at trial was void because at the time he made it he had not been warned of his right to have an attorney present during the interrogation. Id. at 334.
Ultimately, the Court decided the warnings given to the defendant immediately preceding his second statement were adequate, but the Court also found the warnings given six to eight hours earlier during his first statement would have satisfied the dictates of Miranda. Id. at 337. As support, the Court cited federal circuit court cases for the proposition that Miranda warnings were not automatically extinguished by the mere passage of time, and in some cases Miranda warnings were still effective for statements given two or three days later. See id. (citing United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970); United States v. Springer, 460 F.2d 1344 (7th Cir. 1972); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968)).
In Jones v. State, while being questioned by the State on two different occasions, the defendant made two statements regarding the murder of Berthena Bryant. Jones, 119 S.W.3d at 771. The detective read the defendant his Miranda rights before each of these statements. Id. Nine or ten days later, the defendant gave a statement to a Texas Ranger implicating himself in two extraneous murders. Id. The Texas Ranger did not read the defendant his rights until after he made his statement. Id. at 772. On appeal, the defendant argued the Texas Ranger=s failure to inform the defendant of his rights before making his statement violated his Fifth Amendment rights protected by Miranda. Id.
In Jones, the Court held the statement was inadmissible because the defendant was not properly warned. Id. at 776. Presiding Judge Keller, however, wrote a concurring opinion in which she provided a comprehensive study of case law from numerous jurisdictions illustrating the effectiveness of Miranda warnings and their ability to remain in effect for purposes of interviews conducted days after the administration of the warnings. Id. at 794B801 (Keller, P.J., concurring). The majority opinion recognized Judge Keller=s analysis and stated A[i]t is true that the >mere passage of time= does not, by itself [vitiate] prior Miranda warnings.@ Id. at 774 n.13. The majority also stated A[t]he cases cited by the concurrence are very appropriate to, and might well be dispositive of, this issue had the interrogation been by [the same officer] about [the same murder].@ Id. This language supports the conclusion if appellant had made a subsequent, unwarned statement to the same officer regarding the same offense, the earlier Miranda warnings would have remained in effect. See id.
The Fort Worth Court of Appeals accepted this concept in Miller v. State, 196 S.W.3d 256, 266 (Tex. App.CFort Worth 2006, pet. ref=d). In Miller, officers arrested the defendant on September 11, 2003, and that same day, the defendant gave a statement after being read his Miranda rights. Id. at 262. The next day, the defendant once again received his Miranda warnings and agreed to become a confidential informant. Id. at 263. On September 16, the police had a meeting with the defendant and learned the defendant had violated the terms of their agreement. Id. The officers subsequently obtained a search warrant for the defendant=s home. Id. After the defendant showed the officers the location of the drugs and money, they informed the defendant of his Miranda rights. Id. On appeal, the defendant argued the officers obtained his confession in violation of Miranda. Id. at 262.
The court of appeals, relying on Jones, Ex parte Bagley, and other federal court cases, concluded A[a]lthough Appellant was not given his Miranda rights during the meeting on September 16, 2003, he met with the same officer who had read his Miranda rights only four days earlier. The questioning on both occasions dealt with the same subjectBAppellant acting as a confidential informant. There was no need for the officers to give additional Miranda rights before [the officer] conducted further discussions with Appellant regarding his roll as a confidential informant.@ Id. at 266B67.
After reviewing the relevant case law, we believe a number of factors should be considered when trying to determine whether previous Miranda warnings are still in effect for subsequent, unwarned statements. These factors include: (1) the passage of time; (2) whether the subsequent interrogation was conducted by the same officer; (3) whether the subsequent interrogation involved the same crime; (4) whether the officer reminded the defendant of the previous warnings; and (5) whether the officer engaged in actions that diluted the efficacy of the warnings. See Ex parte Bagley, 509 S.W.2d at 336B37; Jones, 119 S.W.3d at 774 n.13, 794B801 (Keller, P.J., concurring); Miller, 196 S.W.3d at 266B67; see also Hopkins, 433 F.2d at 1045.
In the current case, appellant gave his first videotaped statement on August 31, 2003. Prior to this first videotaped statement, Officer McDaniel read appellant his Miranda warnings. After the first statement, appellant agreed to stage a recorded phone conversation with Perez, his co-defendant. Police then became suspicious of appellant=s involvement because Perez implicated appellant in the shooting. On September 2, appellant agreed to take a polygraph test, which he failed. At this point, he was questioned and videotaped a second time by Officers McDaniel and Moreno, and he eventually confessed to shooting Garza. During the second videotaped statement, the officers did not read appellant his Miranda warnings.
In applying the above factors, the passage of two days is not too long to render the warnings ineffective. See Miller, 196 S.W.3d at 266B67 (holding the passage of four days was not too long). Additionally, the second interview was conducted by the same officer[1] about the same offense. Further, there is no evidence in the record to suggest the officer engaged in actions that diluted the efficacy of the warnings. While it is true the officer did not remind appellant of the previous warnings, we do not think this factor alone is enough to render the statement inadmissible.[2] Accordingly, we hold appellant=s second statement was not obtained in violation of Miranda.
2. Texas Code of Criminal Procedure
Under Texas law, the Code provides additional rules, beyond the requirements of Miranda, for the admission of an oral confession. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a) (Vernon 2005). In its motion for rehearing, the State recognizes the cases cited in the previous section may only apply to cases involving Miranda warnings rather than the warnings required by article 38.22 of the Code since article 38.22 requires the warnings to appear on the recording itself. As a result, the State argues appellant failed to preserve error regarding his rights under the Code. Thus, we must first determine whether appellant waived his rights under article 38.22, and then, if necessary, decide if a prior warning remains in effect for a second oral statement for purposes of article 38.22.
a. Did Appellant Waive His Rights Under Article 38.22?
The State argues appellant waived his rights under the Code because appellant never cited article 38.22 in his suppression motion and because appellant failed to argue it at the suppression hearing. We disagree with the State. The record reflects appellant=s first attorney filed a motion to suppress (hereinafter Athe First Motion@) in which he argued appellant=s rights under the Fifth and Fourteenth Amendments of the United States Constitution, Article 1, Section 9 of the Texas Constitution, and articles 38.22 and 38.23 of the Code were violated. Approximately one year later, appellant obtained a second attorney who filed a second motion to suppress (hereinafter Athe Second Motion@), but the Second Motion did not mention a violation of appellant=s rights under the Code. The trial court, however, held only one suppression hearing, and the record is unclear whether the trial court ruled on the First Motion, the Second Motion, or both. Nothing in the record suggests appellant=s first motion was withdrawn or amended, so presumably the trial court considered both motions.[3]
Furthermore, assuming the trial court only considered the Second Motion, the fact the Second Motion does not mention article 38.22 does not automatically mean appellant waived his rights under the Code. Appellate Rule 33.1(a)(1)(A) provides that error is preserved if the Acomplaint was made to the trial court by a timely request, objection, or motion@ that states the grounds Awith sufficient specificity to make the trial court aware of the complaint.@ Tex. R. App. P. 33.1(a)(1)(A); Mata v. State, 46 S.W.3d 902, 908(Tex. Crim. App. 2001). Therefore, if appellant made the trial court aware of his complaint during the suppression hearing, he sufficiently preserved error, despite his failure to include the argument in the Second Motion. See Mata, 46 S.W.3d at 907B08 (holding appellant preserved error even though his written motion for suppression failed to argue the expert=s testimony should be suppressed because appellant argued, during the suppression hearing, the expert=s testimony should be suppressed, and he argued with sufficient specificity to apprise the trial court of his complaint).
After reviewing the record, we conclude that, during the suppression hearing, appellant=s counsel argued the officer violated appellant=s rights under article 38.22, section 3(a)(2) with sufficient specificity to make the trial court aware of his complaint. See Tex. R. App. P. 33.1(a)(1)(A). The record reflects the following argument made by appellant=s counsel:
Again, there=s nothing on State=s Exhibit No. 2-A [the transcript of appellant=s second videotaped statement] which would be reflective of him being read his Miranda warnings at the beginning, that it=s a verbatim transcript of what he simply said. They did not Mirandize him on the tape, which they did not do, that=s clear. The Court=s had an opportunity to review that tape, State=s Exhibit No. 2-A is not going to be reflective of any Miranda warnings given thus far. (Emphasis added)
Immediately after this statement by appellant=s counsel, the court stated AI understand, counsel. You have made a fine point of law.@ Additionally, during the hearing, the prosecutor stated A[w]e will stipulate nowhere on the videotape of State=s Exhibit No. 2-A is there Mirandized [sic] warnings given to this defendant.@ We need not engage in speculation as to whether the court was aware of appellant=s complaint. The trial court=s statement and the prosecutor=s stipulation indicate they both understood appellant=s counsel was arguing a violation of the Code due to the absence of Miranda warnings on the videotape. We find the argument made during the suppression hearing was sufficient enough to put the trial court on notice appellant was arguing a violation of article 38.22, section 3(a)(2). See Tex. R. App. P. 33.1(a)(1)(A).[4] Accordingly, appellant did not waive his rights under the Code.
b. Did the State Violate Article 38.22, Section 3(a)(2)?
Since we find appellant sufficiently preserved this argument for appeal, we must next determine whether the Miranda warnings provided before appellant=s first videotaped statement were still in effect during appellant=s second videotaped statement, satisfying the requirements of article 38.22.
Article 38.22, section 3(a)(2) states no oral statement of an accused shall be admissible unless Aprior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 . . . and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.@ Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a)(2) (emphasis added). Further, section 3(e) requires the Acourts of this state shall strictly construe Subsection (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state.@ Id. ' 3(e); see Davidson v. State, 25 S.W.3d 183, 185 (Tex. Crim. App. 2000) (noting by its plain language section 3(e) requires strict compliance with section 3(a)).[5]
The Fort Worth Court of Appeals addressed a situation very similar to the current case. In Hargrove v. State, the defendant made three statements while in custody. Hargrove v. State, 162 S.W.3d 313, 316 (Tex. App.CFort Worth 2005, pet. ref=d). The defendant=s initial interview was videotaped, and the officer advised the defendant of his Miranda rights on the tape. Id. The defendant denied any criminal involvement in his first statement. Id. at 317. The defendant was subsequently charged and taken in front of a magistrate who read him his Miranda rights again. Id. While being escorted back to the jail, the defendant requested to speak to the officer. Id. The officer interviewed the defendant a second time on videotape, and the defendant admitted involvement. Id. On the videotape, the officer stated Ayou=ve just had your rights read,@ but he did not actually read the defendant his rights on the videotape. Id. at 323. On appeal, the defendant argued the second statement was inadmissible because it violated article 38.22, section 3(a)(2). Id. at 322B23. The court of appeals held since the section was not strictly complied with, the defendant=s oral confession was inadmissible, and the trial court abused its discretion in admitting the second oral statement. Id. at 323.
We agree with the Fort Worth court. Because the officer failed to give appellant his warnings on the videotape in violation of article 38.22, section 3(a)(2), he failed to comply with the strict requirements mandated by article 38.22, section 3(e). See Tex. Code. Crim. Proc. Ann. art. 38.22, '' 3(a)(2), 3(e). The trial court thus abused its discretion in admitting appellant=s second oral statement. See Hargrove, 162 S.W.3d at 323. To be sure, we are in no way changing the analysis in our substitute opinion filed August 30, 2007 regarding whether appellant was in custody. While we have determined appellant=s second statement did not violate appellant=s constitutional rights under Miranda, we still conclude the trial court erred. Because the interrogation of appellant was custodial from the point after which appellant admitted he shot the complainant, the trial court erred in denying appellant=s motion to suppress as to this part of appellant=s second statement based on the officers= failure to comply with the statutory requirements of article 38.22, section 3(a)(2). See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a) (stating no oral statement of an accused made as a result of Acustodial interrogation@ is admissible unless certain statutory requirements are followed).
c. Was the Violation Harmless?
Having found appellant=s statement was inadmissible under the Code, we must determine whether allowing its admission caused harm. The protection of article 38.22 has no constitutional ramifications. See Noon v. State, 117 S.W.3d 874, 880B81 (Tex. Crim. App. 2003). Rather, it is a Aprocedural evidentiary@ rule that Amerely prescribes the various requirements that must be satisfied before a statement made by an accused as a result of custodial interrogation will be admitted against him/her at trial.@ Id. at 880. Thus, as long as Miranda is satisfied, the admission of a statement that does not comply with article 38.22 is a nonconstitutional error that will not result in a reversal of the judgment unless the record demonstrates the erroneously admitted statement Ahad a substantial or injurious [effect] on the jury verdict.@ See id. at 881.
In this case, however, appellant plead guilty after the trial court denied his motion to suppress. The Court of Criminal Appeals has stated appellate courts are not to speculate as to an appellant=s reasons for pleading guilty or as to whether appellant would have pleaded guilty if a motion to suppress were granted. See McKenna v. State, 780 S.W.2d 797,799B800 (Tex. Crim. App. 1989); Kraft v. State, 762 S.W.2d 612, 613B15 (Tex. Crim. App. 1988). As long as the evidence that should have been suppressed Awould in any measure inculpate the accused,@ this court must presume the trial court=s denial of appellant=s motion to suppress influenced appellant=s decision to plead guilty and is reversible error. See McKenna, 780 S.W.2d at 799B800; Kraft, 762 S.W.2d at 613B15. Because some of the statements made by appellant after the interrogation became custodial were Ain any measure@ inculpatory, we presume the trial court=s erroneous denial of appellant=s motion to suppress influenced appellant=s decision to plead guilty, thus, having a substantial or injurious effect on appellant=s rights. See Fischer v. State, 207 S.W.3d 846, 860B61 (Tex. App.CHouston [14th Dist.] 2006), aff=d, No. 0043-07, 2008 WL 141850, at *1 (Tex. Crim. App. Jan. 16, 2008) (finding the defendant=s substantial rights were affected because he plead guilty after the improper denial of his motion to suppress). Therefore, the error is reversible.
Conclusion
Having considered the State=s arguments in its second motion for rehearing, we overrule its motion, but we issue this supplemental opinion to address new matters raised by the State. The disposition in our previous opinion remains the same; we reverse the trial court=s judgment and remand for a new trial consistent with our opinion issued August 30, 2007 and this supplemental majority opinion.
/s/ John S. Anderson
Justice
Judgment rendered and Supplemental Majority Opinion and Dissenting Opinion on Motion for Rehearing filed May 29, 2008.
Panel consists of Justices Anderson, Frost, and Senior Justice Edelman*. (Frost, J., dissenting)
Publish C Tex. R. App. P. 47.2(b).
[1] Although Officer Moreno was present during the second interview, Officer McDaniel was the one who questioned appellant.
[2] Officer McDaniel did remind appellant that they had spoken with each other previously.
[3] The dissent argues if the trial court did consider the First Motion, the First Motion failed to preserve error because appellant=s general assertion that his statements were taken in violation of article 38.22 was too global and unspecific. The dissent claims appellant=s general assertion was not specific enough to make the trial court aware of his argument that the statements were inadmissible based on the officers= failure to give the warnings on the videotape. The dissent cites three cases supporting this proposition; however, we find each case distinguishable from this case.
In Swain v. State, appellant=s motion to suppress generally asserted his statements were inadmissible under article 38.23, among other federal and state constitutional provisions. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). During the suppression hearing, appellant failed to complain about being questioned after asserting his right to counsel, and instead he simply objected that his statements were inadmissible under articles 38.22, 14.03, and 14.06. Id. On appeal, however, appellant specifically argued his statement were taken in violation of his right to counsel. Id. The court found the global statements made in his motion and during his suppression hearing were not sufficiently specific to preserve his argument on appeal. Id. Here, however, as discussed below, appellant alerted the trial court during the suppression hearing of his specific argument regarding article 38.22.
In Olson v. State, appellant made an oral motion to suppress arguing his statements were inadmissible under article 38.22. Olson v. State, No. 14-06-00338-CR, 2007 WL 1745837, at *1 (Tex. App.CHouston [14th Dist.] June 19, 2007, no pet.) (mem. op., not designated for publication). However, on appeal, appellant based his arguments on the federal and state constitutions. Id. This court held appellant=s objection at trial did not comport with his objection on appeal, so he failed to preserve error. Id. The dissent is not arguing appellant=s trial objection does not comport with his complaint on appeal; therefore, this case is not applicable.
In Aparicio v. State, appellant=s written motion to suppress generally alleged his statements should be suppressed based on violations of article 38.22. Aparicio v. State, No. 14-03-01213-CR, 2004 WL 2283584, at *2 (Tex. App.CHouston [14th Dist.] Oct. 12, 2004, no pet.) (mem. op., not designated for publication). However, during the suppression hearing appellant argued only that appellant appeared Ahalf asleep@ and Adidn=t really seem to know what was going on.@ Id. Then, on appeal, appellant tried to argue his statements were inadmissible under article 38.22, section 3(a)(3) because the device used to record the statement was not capable of making an accurate recording, the recording was not accurate, and the operator of the device was not competent. Id. at *1B*2. This court found appellant=s argument raised on appeal did not comport with his objection made to the trial court, thus appellant failed to preserve the issue for review. Id. at *2. In a footnote, this court stated Adespite appellant=s reference to Article 38.22, he did not alert the trial court to the alleged errors of which he now complains. Accordingly, appellant=s mere reference to Article 38.22 is not sufficient to preserve error on appeal.@ Id. at *2 n.4. In this case, despite appellant=s general reference to article 38.22 in the First Motion, as discussed below, he alerted the trial court to his specific complaint regarding article 38.22; therefore, his complaint was sufficient to preserve error.
The dissent argues, in the alterative, even if the statements in the First Motion were sufficient to preserve error, the trial court did not rule on the First Motion. But, as stated, the record is unclear whether the trial court ruled on the First Motion, the Second Motion, or both. The dissent supports its position by arguing appellant=s counsel=s arguments during the hearing were all within the scope of the Second Motion; however, this is incorrect. As explained below, appellant=s attorney made an argument during the hearing regarding the lack of Miranda warnings on the videotape, which is an argument within the scope of the First Motion. Further, the dissent claims the trial court=s statement that it denied Ayour Motion to Suppress Mr. Resendez=s statement@ is an indication the trial court denied the Second Motion filed by appellant=s new counsel rather than his former counsel. We do not agree the word Ayour@ completely precludes the possibility the trial court considered the First Motion as well.
[4] We find it worth noting the State=s initial appellate brief never raised the issue of waiver and, in fact, the State argued why the officers were not required to advise appellant of his rights under either Miranda or the Code. The State did not bring forth its waiver argument until its second motion for rehearing.
[5] The two exceptions which do not require strict compliance are not applicable in this situation. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(e)(1)B(2).
* Senior Justice Richard H. Edelman sitting by assignment.