Robert Taylor Williams v. State

Affirmed and Opinion filed June 11, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00017-CR

ROBERT TAYLOR WILLIAMS, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1225261

OPINION
Appellant Robert Taylor Williams appeals his conviction for murder,
asserting that the trial court erred in overruling his motions to suppress an in-court
identification and his custodial statement and in making certain other evidentiary
rulings. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by indictment with the felony offense of murder to
which he pleaded, “not guilty.” The indictment contained an enhancement
paragraph, alleging a prior felony conviction.

Appellant filed a motion to suppress a witness’s in-court identification of
him. Appellant also filed several other motions to suppress, all of which related to
recorded statements he made to officers during custodial interrogation. After
holding hearings on these matters, the trial court denied all of these motions.

The State presented evidence that appellant and the complainant were
walking along some railroad tracks when they got into an argument; appellant
pulled a revolver from the waistband of his pants and shot the complainant three
times. Although the complainant fell to his knees, appellant shot the complainant
three more times and fled from the scene, where the complainant eventually died.
As appellant fled from the scene, he passed within an arm’s length distance of a
woman who had observed the entire incident as she walked her dogs near the
railroad tracks. Another witness, who was walking from a nearby store, also saw
the shooting. A third witness claimed to have seen appellant running from the
direction where gunshots were heard. After talking to these witnesses, responding
law enforcement officers developed appellant as a suspect.

An investigating officer compiled a photo array, containing appellant’s
photo along with five others. One of the witnesses who had seen the shooting
knew the complainant and positively identified appellant as the shooter from the
photo array; this witness also identified appellant in court as the shooter. The other
eyewitness, who was walking her dogs when she saw the events unfold, failed to
make a positive identification, claiming to be too scared of retaliation if she
identified the shooter. The third witness positively identified appellant’s photo
from the array, indicating the man in the selected photo was the person she saw
running from the direction on the railroad tracks where she heard gunshots.

2
 Eventually, officers obtained an arrest warrant for appellant in connection
with the shooting. Appellant contacted an investigating officer several times by
voicemail, indicating his desire to speak with the officer and “clear his name.”
Appellant agreed to go with officers to the police station to give a statement.

An officer conducted a recorded custodial interview with appellant.
Although appellant raised a number of objections to the admission of the statement
into evidence, the trial court overruled those objections. The redacted recorded
statement was played in open court.

The jury found appellant guilty as charged and found the enhancement
paragraph to be true. Appellant was sentenced to fifty years’ confinement.

DENIAL OF MOTION TO SUPPRESS

In appellant’s first and fourth issues, appellant challenges the trial court’s
denial of two of his motions to suppress. We review a trial court’s ruling on a
motion to suppress under a bifurcated standard of review. Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). At a suppression hearing, the trial court is
the sole finder of fact and is free to believe or disbelieve any or all of the evidence
presented. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We
give almost total deference to the trial court’s determination of historical facts,
especially when the trial court’s fact findings are based on an evaluation of
credibility and demeanor. Guzman, 955 S.W.2d at 89. We afford the same amount
of deference to the trial court’s application of the law to facts if the resolution of
those ultimate questions turns on an evaluation of credibility and demeanor. Id.
We review de novo the trial court’s application of the law to facts if resolution of
those ultimate questions does not turn on an evaluation of credibility and
demeanor. Id. When, as in this case, there are no written findings of fact in the
record, we uphold the trial court’s ruling on any theory of law applicable to the
3
case and presume the trial court made implicit findings of fact in support of its
ruling so long as those findings are supported by the record. State v. Ross, 32
S.W.3d 853, 855–56 (Tex. Crim. App. 2000). If supported by the record, a trial
court’s ruling on a motion to suppress will not be overturned. Mount v. State, 217
S.W.3d 716, 724 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

In-Court Identification

In his first issue, appellant asserts the trial court erred in denying his motion
to suppress witness Molly Gomez’s in-court identification of him. Appellant
asserts the use of the photo array was impermissibly suggestive. An in-court
identification is inadmissible if it has been tainted by an impermissibly suggestive
pre-trial identification. Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App.
1999).

The record of the hearing on the motion reflects that Gomez saw appellant
shoot the complainant during an argument; Gomez claimed to have had no
difficulty getting a good look at him as he fled the scene, passing by her within an
arm’s reach. At the pre-trial hearing, Gomez identified appellant in the courtroom
as the person she saw shoot the complainant. According to the record, Officer
Waters compiled a photo array containing six photos, including appellant’s photo
in position two. Gomez met with the officer at the police station to view the photo
array on the day of the shooting. Although Gomez claimed to have recognized
appellant’s photo in the photo array, she declined to identify him as the shooter
because she did not know if he had been apprehended and she was scared that he
or others would return in retaliation and harm her. Instead, she picked a photo in
position three as the shooter. Officer Waters testified that Gomez visibly vacillated
between the photos in positions two and three and appeared upset by the
identification process. It is undisputed that Officer Waters, believing Gomez’s

4
identification to be tainted, then told her that appellant was a suspect and indicated
that appellant’s photo was in position two in the photo array. As reflected in the
record of the suppression hearing, Gomez admitted to the officer that she knew the
shooter’s photo was in position two but that she was too afraid to identify him as
the shooter. Several days after the incident, Officer Waters showed Gomez the
same photo array at Gomez’s house, along with a single photo of appellant; Gomez
did not identify anyone from the photo array, again admitting to the officer that she
was too scared to make an identification. Gomez testified that the officer had no
influence in helping her identify appellant in court at the pre-trial hearing; she
claimed to have based her identification of appellant on what she observed on the
day of the shooting. According to the record at the suppression hearing, the State
informed the trial court that it did not intend to ask Gomez to make an in-court
identification of appellant unless the defense opened the door to such testimony.
The trial court overruled appellant’s motion.

At trial, Gomez was not asked to make an in-court identification of
appellant. She described for the jury the events that she saw and the shooter’s
appearance and clothing, at times, referring to appellant as “the defendant” and
testifying that she saw “the defendant” shoot the complainant. The record does not
reflect that appellant asserted any objection to Gomez’s references to appellant as
“the defendant” until after the State had finished its direct examination of Gomez.
Just before cross-examination of Gomez, appellant complained of Gomez’s
references to appellant as “the defendant” and sought to cross-examine Gomez
about the tainted pre-trial identification procedure involving the photo array
asserting, “I’m not saying that’s in any way a violation of your ruling last week. I
understand you’ve denied my motion to suppress in-court identification.” In
response, the State claimed, “To respond for the record, we intentionally did not

5
ask this witness to identify [appellant] in court. We did not try to elicit that
response to that, so the record is clear, so at this time we will object and say that
his request is untimely.” The trial court did not rule on the request. On cross-
examination, Gomez testified to Officer Waters’s identifying appellant’s photo in
position two of the photo array.

In her testimony, Gomez referred to appellant as “the defendant” who shot
the complainant. On appeal, appellant characterizes this testimony as an in-court
identification that should have been suppressed because it was tainted by
impermissibly suggestive pre-trial procedures. But Gomez was not asked to make,
and did not make, an in-court identification of appellant at trial; appellant admits as
much on appeal. See, e.g., Doby v. State, 455 S.W.2d 278, 280–81 (Tex. Crim.
App. 1970) (overruling complaint that witnesses made in-court identifications of
an accused when the record reflected that they were unable to positively identify
the accused in a pre-trial photo identification procedure and that the witnesses did
not identify appellant in the courtroom in their testimony even though they were
permitted to testify to similarities between appellant and one of the robbers). But
even if we presume, without deciding, that Gomez’s references to appellant as the
defendant constitute an in-court identification and that the pretrial procedures were
unduly suggestive and tainted Gomez’s identification, there has been no harmful
error. Appellant’s presence at the scene of the murder with the complainant was
undisputed and another witness, whose in-court identification appellant does not
challenge on appeal, positively identified appellant in court as the person who shot
the complainant. See Williams v. State, 477 S.W.2d 885, 888 (Tex. Crim. App.
1972) (concluding that even if pretrial identification procedures had been unduly
suggestive any error in admission of in-court identification was harmless when
other witnesses identified the accused as the robber). We overrule appellant’s first

6
issue.

Appellant’s Custodial Statement

In a fourth issue, appellant asserts the trial court erred in denying his motion
to suppress admission of his recorded, custodial statement, claiming that it was not
voluntary. As reflected in the record of the suppression hearing, appellant
contacted Officer Waters more than once by telephone in an attempt to speak with
officers about the incident and “clear his name.” The recorded statement and the
record of the suppression hearing reflects that Officer Waters admonished
appellant of his statutory and Miranda warnings by reading the warnings from a
card, and appellant indicated his understanding of each of the warnings. Even
though appellant was unaware that the officer sought and obtained a warrant for his
arrest, it is undisputed that appellant was in custody at the time Officer Waters
gave him these admonishments. Then the following exchange transpired during
the recorded statement:

[Appellant]: Why is it saying I need a lawyer?
[Officer]: That’s just part of the warning.
[Appellant]: Do I need a lawyer present for this?
[Officer]: No, you don’t need a lawyer present. It’s just telling you
that you have the opportunity. It’s your Miranda warning and you
have the option. Okay?
[Appellant]: Okay.
[Officer]: So, at the end of this, you are waiving the rights in order to
intentionally, knowingly, and voluntarily continue with the interview?
[Appellant]: Yes.
[Officer]: Right, you are waiving those rights as I read them to you?
[Appellant]: Yes.
As reflected in the recorded statement, appellant spoke with the officer for over
two hours before invoking his right to an attorney.
7
 The statement of an accused may be admitted into evidence against the
accused if the statement was freely and voluntarily made without compulsion or
persuasion. See Tex. Code Crim. Proc. Ann. Art. 38.21 (West 2012). Article
38.22 of the Texas Code of Criminal Procedure, entitled “When Statements May
Be Used,” provides that no oral statement of an accused made as a result of
custodial interrogation shall be admissible against an accused in a criminal
proceeding unless (1) the statement was recorded, and (2) prior to the statement but
during the recording, the accused was warned of his rights and knowingly,
intelligently, and voluntarily waived those rights. Tex. Code Crim. Proc. Ann. Art.
38.22, § 3(a) (West 2012); Joseph v. State, 309 S.W.3d 20, 23–24 (Tex. Crim.
App. 2010). An accused must be given the following warnings:

(1) [H]e has the right to remain silent and not make any statement at
all and that any statement he makes may be used against him at his
trial;
(2) any statement he makes may be used as evidence against him in
court;
(3) he has the right to have a lawyer present to advise him prior to and
during any questioning
(4) if he is unable to employ a lawyer, he has the right to have a
lawyer appointed to advise him prior to and during any questioning;
and
(5) he has the right to terminate the interview at any time[.]
Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2). Article 38.22 contains two
distinct elements relating to a statement’s admissibility: (1) the accused’s receipt
of the prescribed warnings, and (2) the accused’s knowing, intelligent, and
voluntary waiver of the rights set out in the warnings. See Tex. Code Crim. Proc.
Ann. art. 38.22, §§ 2(a), 3(a)(2); Joseph, 309 S.W.3d at 24.

Appellant does not contend that he was not warned of his rights. Appellant
does not suggest that the question, “Do I need a lawyer present for this,” is an
8
unequivocal assertion of his Miranda rights, amounting to an invocation of his
right to counsel. Rather, appellant’s chief complaint is the officer’s statement,
“No, you don’t need a lawyer.” According to appellant, the officer’s statement
was not a clarification of the warnings, but rather an affirmative additional
statement that appellant did not need a lawyer, which vitiated the validity of the
warnings set forth in article 38.22 of the Texas Code of Criminal Procedure and
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Appellant argued at the suppression hearing that, as a result of the officer’s
statement, any waiver of his rights was involuntary. On appeal, he asks this court
to view the officer’s statement in light of appellant’s fifth-grade education.

The State has the burden of showing, by a preponderance of the evidence,
that an accused knowingly, intelligently, and voluntarily waived his statutory and
Miranda rights. See Joseph, 309 S.W.3d at 24. In the context of either a written or
oral confession, a waiver of rights may be inferred from the actions and words of
the person being interrogated based on the totality of the circumstances
surrounding the interrogation, including an accused’s experience, background and
conduct. See id. at 24–25. In viewing whether an accused voluntarily relinquishes
his rights, we consider whether the statement was a product of a free and deliberate
choice rather than one born of intimidation, coercion, or deception. See id. at 25.
We also consider whether an accused’s waiver was made with full awareness of
the nature of the right being abandoned and the consequences of the decision to
relinquish the right. See id.

Contrary to appellant’s contentions that this issue is a matter of first
impression in Texas, at least one other case has dealt with an issue in which an
accused asked the interrogating officer about the necessity of having a lawyer
present for questioning. See State v. Panetti, 891 S.W.2d 281, 282 (Tex. App.—

9
San Antonio 1994, pet. ref’d) (involving an accused who asked, “Should I be
answering these questions without my lawyer, or does it matter, or I mean I—I
give up, anyway,” before agreeing to continue with the custodial interview). When
an accused makes an equivocal request for counsel, there is no requirement that an
interrogating officer cease the questioning or confine the questions to clarifying an
accused’s ambiguous statements regarding counsel. See Davis v. U.S., 512 U.S.
452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994); see also Panetti, 891
S.W.2d at 283–84 (ruling that even if the defendant’s question about having an
attorney present during questioning amounted to an equivocal request for counsel,
the officer’s continued questioning was constitutionally permissible).
Accordingly, an interview may continue until an accused clearly and
unambiguously invokes a right to counsel. See Davis, 512 U.S. at 459–60, 114 S.
Ct. at 2355; see also Panetti, 891 S.W.2d at 284 (concluding that because the
accused did not clearly invoke his right to counsel, an officer who did not cease
questioning or limit the questions to the subject of having legal counsel present
and, instead reminded the accused about the statutory and constitutional rights,
acted appropriately and the motion to suppress the accused’s statement should have
been denied).

It is undisputed that Officer Waters read appellant the correct statutory and
constitutional warnings from a card and that appellant indicated his understanding
of each of those rights. We conclude that appellant’s query, “Do I need a lawyer
present for this,” is an equivocal request for counsel. Cf. Panetti, 891 S.W.2d at
283 (declining to consider whether an accused’s question, “Should I be answering
these questions without my lawyer, or does it matter, or I mean I—I give up,
anyway,” amounted to an equivocal request for counsel). When appellant asked
about counsel, Officer Waters reminded appellant that it was part of the statutory

10
warnings, told appellant that counsel did not need to be present for appellant to
answer the questions,1 informed appellant that was simply an option afforded to
him, and then twice asked appellant if he intended to knowingly, voluntarily, and
intelligently waive his rights and continue the interview. On one of these
occasions, the officer specifically asked whether appellant knowingly, voluntarily,
and intelligently waived the rights as they were read to him, and on both occasions,
appellant agreed and continued with the interview. See Panetti, 891 S.W.2d at 284
(involving an officer who reminded the accused about the right to stop the
questioning and then asked if the interview could continue). The officer’s
statements do not render appellant’s recorded custodial statement inadmissible.
See id.

The totality of the circumstances surrounding the interrogation shows that
appellant’s waiver was voluntary in that it resulted from a free and deliberate
choice without intimidation, coercion, or deception. Although appellant testified at
the hearing that he was not aware of the arrest warrant when he gave his statement,
the record reflects that appellant attempted to contact Officer Waters more than
once and left the officer a voicemail message stating that he wished to speak with
the officer and “clear his name.” Appellant willingly cooperated with officers,
accompanied them to the police station, and participated in the interview that lasted
over two hours. Appellant then requested an attorney, but at no time prior to that

1
Even if we were to presume for the sake of argument that the officer’s remarks
amounted to an additional remark on or a misrepresentation of appellant’s statutory and
constitutional rights, an interrogating officer’s misrepresentation or remark is simply one more
relevant factor under the totality of circumstances in considering voluntariness; alone, it is
insufficient to render an otherwise voluntary confession inadmissible. See Creager v. State, 952
S.W.2d 852, 855 (Tex. Crim. App. 1997) (involving an interrogating officer’s remarks about
speaking with officers that were alleged to have led an accused to believe that confessing would
help his case, and which the accused claimed to have affected the voluntariness of his statement);
Green v. State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996) (involving a misrepresentation as to
the accused’s connection to the charged offense).

11
point did he ask to halt the interview. During the process, appellant was offered
food and drinks. The record shows no evidence of coercion, intimidation,
misconduct, or impropriety by the officers. Rather, the lack of intimidation and
coercion can be seen during the interview when appellant felt comfortable enough
to joke with officers as they re-entered the room; he made no attempt to leave or
ask questions. See Joseph, 309 S.W.3d at 24.

The totality of the circumstances also reflects that appellant’s waiver was
made with full awareness of both the nature and the rights being abandoned and
the consequences of his decision. See id. According to the record, appellant was
thirty-six years old at the time of the statement. He attended school through the
fifth grade. Appellant claimed to have been intoxicated on a narcotic when he
gave the recorded statement.2 Intoxication, alone, does not render a statement
involuntary. See Oursbourn v. State, 259 S.W.3d 159, 173 (Tex. Crim. App.
2008). The record also reflects that appellant has a lengthy background with the
criminal-justice system, involving felony convictions for unauthorized use of a
motor vehicle and possession of a controlled substance, for which he was
sentenced to confinement, in addition to numerous misdemeanor convictions. In
spite of appellant’s limited education, other factors, such as appellant’s age and
prior experience in the criminal-justice system, weigh in favor of the trial court’s
finding that appellant’s statement was voluntary and admissible. See Green, 934
S.W.2d at 100 (concluding that, when considering the accused’s criminal
background, a statement was voluntary even though interrogating officer made a
misrepresentation about the accused’s connection to crime). We conclude that
under the totality of the circumstances, appellant knowingly, voluntarily, and

2
Although the record of the suppression hearing reflects that appellant claimed to have
been intoxicated at the time he gave his custodial statement, appellant does not assert on appeal
that his intoxication affected the voluntariness of his statement.

12
intelligently waived his statutory and constitutional rights when he gave his
custodial statement to the officers. See Panetti, 891 S.W.2d at 284. The trial court
properly denied appellant’s motion to suppress. See id. Appellant’s fourth issue is
overruled.

EVIDENTIARY RULINGS

In three issues, appellant complains about various evidentiary rulings during
trial. A trial court’s ruling to admit or exclude evidence is reviewed under an
abuse-of-discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim.
App. 2007). We will uphold the trial court’s decision to admit this evidence if the
decision was within the zone of reasonable disagreement. See id. We do not
reverse the trial court’s ruling on the sole basis that we disagree with the decision.
See id.

Allegedly Improper Opinion Testimony

In his second issue, appellant asserts the trial court erred in overruling his
objection to Anthony Adams’s testimony. Adams, who knew both appellant and
the complainant, described an incident in which he saw appellant with a firearm in
the week before the shooting. Adams testified that he saw appellant and the
complainant together on the morning of the shooting, and later learned that the
complainant had died. Adams testified that he was arrested on unrelated charges
several days following the shooting. While in custody, Adams spoke with Officer
Waters, who believed that Adams knew the whereabouts of the firearm used in the
charged offense. While in confinement following his arrest, Adams saw appellant,
who inquired why Adams was in jail. Adams testified to his conversation with
appellant:

[Prosecutor]: Now, can you tell this jury what [appellant] said to you?
[Witness]: Said several things to me. Asked me what I was doing in
13
 jail. I told him, you know, what I’m doing here: “You got me here.”
[Prosecutor]: Why did you tell him he got you there?
[Witness]: because I—I automatically assumed—once Mr. Waters
started messing with me about the gun, I automatically assumed he
killed [the complainant].
Appellant objected to the testimony and asserted such testimony was not
within Adams’s personal knowledge. When the State responded that Adams could
offer opinion testimony, appellant responded that the testimony still lacked
personal knowledge.

Appellant contends that Adams’s testimony was inadmissible under Texas
Rules of Evidence 602. This rule, entitled “Lack of Personal Knowledge,”
provides in pertinent part, “A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter.” Tex. R. Evid. 602. We also construe appellant’s objection at trial,
in response to the State’s argument that Adams may offer an opinion, to
encompass a complaint about Adams’s opinion testimony lacking personal
knowledge. Texas Rule of Evidence 701, entitled, “Opinion Testimony by Lay
Witness,” provides, “[i]f the witness is not testifying as an expert, the witness’s
testimony in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness’s testimony or the determination of
a fact in issue.” Tex. R. Evid. 701; see Fairow v. State, 943 S.W.2d 895, 898 (Tex.
Crim. App. 1997). A witness may testify to his perceptions of events that the
witness personally observed or experienced. See Fairow, 943 S.W.2d at 898.
Perceptions include a witness’s interpretation of information acquired through his
or her senses or experiences at the time of the event. See Osbourn v. State, 92
S.W.3d 531, 535 (Tex. Crim. App. 2002). Such testimony can include opinions,

14
beliefs, or inferences as long as they are drawn from the witness’s own experiences
or observations. Id.

Adams testified to seeing appellant with a firearm one week before the
shooting and then testified to his conversation with Officer Waters regarding the
whereabouts of the same firearm following the commission of the charged offense.
Adams testified that a search warrant for the firearm was executed on his home,
but that officers did not recover the weapon. When Adams testified that he
assumed he was in jail because of the shooting, he referred to a conversation with
Officer Waters about the firearm. All of this testimony was within Adams’s
personal knowledge, rationally based on his perception of the events and
experiences, and is helpful to a clear understanding of Adams’s testimony. See
Tex. R. Evid. 602; Tex. R. Evid. 701; Fairow, 943 S.W.2d at 898. Likewise, this
testimony was, in effect, Adams’s opinion or belief as to why he was confined, and
it is reasonably likely that the jury understood that the opinion was based on
Adams encountering appellant with the firearm before the shooting, seeing
appellant with the complainant on the day of the shooting, learning that the
complainant died, having a search warrant for the firearm executed on Adams’s
home, and then being questioned by Officer Waters about the same firearm used in
the commission of the charged offense. See Tex. R. Evid. 701; see Fairow, 943
S.W.2d at 899 (providing that a witness may possess personal knowledge of the
facts from which an opinion regarding the events may be drawn). Because the
testimony is reflective of Adams’s personal knowledge and his perceptions of the
events as he experienced them, the trial court did not err in overruling appellant’s
objection. See Fairow, 943 S.W.2d at 898 (providing that if personal knowledge is
not established, the trial court should exclude the testimony).

Appellant also seems to assert that the trial court’s admission of Adams’s

15
testimony is not supported by Texas Rule of Evidence 702 and offends notions of
due process. But, appellant has failed to preserve error on these complaints. To
preserve a complaint for appellate review, a party must present to the trial court a
timely request, objection, or motion stating the specific grounds for the ruling
desired. Tex. R. App. P. 33.1(a). The appellate complaint must comport with the
specific objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002). An objection stating one legal theory may not be used to support a
different legal theory on appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex.
Crim. App. 1995). Even constitutional errors may be waived by failure to object at
trial. Id. The record does not reflect, and appellant does not cite anywhere in the
record, that he asserted an objection to Adams’s testimony as improper expert-
opinion testimony under Rule of Evidence 702. Likewise, the record does not
reflect that appellant asserted an objection to the testimony as violating his due-
process rights. Because appellant’s arguments on appeal do not comport with the
objections raised in the trial court, he has failed to preserve these arguments for
appellate review. See Tex. R. App. P. 33.1(a). Appellant’s second issue is
overruled.

Allegedly Admissible Hearsay Testimony

In his third issue, appellant contends the trial court erred in sustaining the
State’s hearsay objection to Adams’s testimony concerning the written statement
he gave to Officer Waters. Apparently, Adams’s written statement contained other
statements made by appellant to Adams about how appellant obtained the firearm.
Appellant sought to cross-examine Adams about the written statement, posing the
following question: “Do you recall telling Officer Waters in your statement how
you knew [appellant] got the gun, and he got it from Big Jim McCrae?” The State
objected to the question, asserting that it called for inadmissible hearsay.

16
Appellant asserted that the testimony was admissible as an admission of a party
opponent under Texas Rule of Evidence 801(e)(2), an exception to the hearsay
rule. The trial court ruled that any testimony related to statements made by
appellant that are reflected in Adam’s written statement to investigators is
inadmissible hearsay.

Appellant contends that the question posed did not elicit hearsay. Generally,
hearsay is not admissible except as provided by statute or the Texas Rules of
Evidence. Tex. R. Evid. 802. Hearsay is generally considered a statement, other
than one made by the declarant while testifying at a trial or a hearing, offered into
evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d).

Texas Rule of Evidence 801(e)(2) provides that a statement is not hearsay if
it is offered against a party and is a party’s own statement. Tex. R. Evid.
801(e)(2)(A). The testimony appellant attempted to elicit from Adams
encompassed appellant’s own statements to Adams, which Adams then passed on
to Waters in a written statement. A party’s own statements, when offered against
him, are not hearsay and are admissible. See Trevino v. State, 991 S.W.2d 849,
853 (Tex. Crim. App. 1999); Tex. R. Evid. 801(e)(2). The only requirements for
admissibility of an admission of a party opponent under Rule 801(e)(2)(A) is that
the admission is the party’s own statement and that it is offered against him.
Trevino, 991 S.W.2d at 853. Because appellant sought to offer his own out-of-
court statements through Adams, appellant is the offering party. See Tex. R. Evid.
801(e)(2)(A). Therefore, the testimony appellant sought to elicit is not offered
against him, and does not fit within the hearsay exception contained in Rule
801(e)(2). See id.

To the extent appellant acknowledges that the question attempted to elicit
hearsay, appellant contends that he should have been entitled to introduce the

17
remainder of his written statement under Texas Rule of Evidence 107, entitled,
“Rule of Optional Completeness.” The record does not reflect, and appellant has
not cited the record for support, that appellant asserted any objection pursuant to
Rule 107 at trial. See Tex. R. App. P. 33.1(a)(1)(A); Tovar v. State, 221 S.W.3d
185, 189–90 (Tex. App.—Houston [1st Dist.] 2006, no pet.). To preserve a
complaint for appellate review, a party must present to the trial court a timely
request, objection, or motion stating the specific grounds for the ruling desired.
Tex. R. App. P. 33.1(a). Accordingly, because appellant did not present Rule 107
as a specific ground for the ruling he desired at trial and now challenges on appeal,
he has failed to preserve error on this complaint. See Tex. R. App. P.
33.1(a)(1)(A); Tovar, 221 S.W.3d at 189–90.

Likewise, although appellant asserts on appeal that the statement was
admissible as impeachment testimony under Texas Rule of Evidence 613,
appellant failed to obtain a ruling from the trial court on his brief reference that the
testimony was admissible as impeachment. See Tex. R. App. P. 33.1(a)(1)(A)
(requiring a party to obtain a ruling from the trial court on an objection). Finally,
although appellant obtained an adverse ruling from the trial court to his objection
that he was denied due process and an opportunity to confront witnesses pursuant
to the Texas and United States Constitutions, appellant has not provided any
argument, analysis, or citation to legal authority attacking the trial court’s ruling on
these grounds or supporting this complaint on appeal. See Tex. R. App. P. 38.1(i);
Hughes v. State, 962 S.W.2d 689, 694 (Tex. App.—Houston [1st Dist.] 1998, pet.
ref’d). By failing to adequately brief this basis for the trial court’s ruling, appellant
has not demonstrated that the trial court abused its discretion in denying the
admission of Adams’s testimony on these constitutional grounds. See Tex. R.
App. P. 38.1(i). Appellant’s third issue is overruled.

18
 Custodial Statement

In his fifth issue, appellant asserts the trial court erred in overruling his
objections to portions of his custodial statement, namely statements by Officer
Waters that allegedly contained inadmissible hearsay, inadmissible opinion
testimony, or false statements. The record reflects that appellant raised a number
of objections to admission of the appellant’s recorded, redacted3 custodial
statement with Officer Waters, identifying the exact place in the recorded
statement where the objectionable statements were found. Notably, however,
appellant asserted no objections that fell after the time marked by two hours,
twenty-seven minutes and thirteen seconds (“the 2:27:13 mark”) on the recorded
statement. The trial court overruled all of appellant’s objections.

When the exhibit was offered into evidence, the parties disagreed about the
exact place in the recording where appellant invoked his right to counsel and where
the statement should be stopped. The record reflects the following statements by
defense counsel:

Okay. I want to make sure the record reflects that I wanted it to stop a
couple of minutes before then. So my objections that I made, the
seventy objections I made to the statement, including all the hearsay
of the detective and that sort of thing are basically waived by me. I
just want to state for the record, at this point trial strategy has
changed, that until the point he invokes his right to a lawyer, which I
believe occurs at two hours, twenty-seven minutes, thirteen seconds,
somewhere thereabout, with the language I read.
So I am not waiving after that any of the objections I made earlier to
the hearsay, the improper identification, the improper credibility
opinion of the officer, and that sort of thing. And that would basically
include everything from two hours, twenty-seven minutes thirteen
seconds through the end of the tape where the State wants it to stop.
3
By agreement of the parties, some parts of the recorded statement already were redacted
to omit reference to appellant’s criminal background.

19
 So I want to make perfectly clear, I’m not waiving those objections,
but I am everything prior to the point in time that I’m talking about.
The trial court noted the objections. The redacted statement was admitted
into evidence, played for the jury, and stopped a couple of minutes after appellant
wanted the statement to be stopped. When the statement was played for the jury,
appellant objected to the place where he requested the recording to be stopped, and
the trial court overruled the objection. No other objections were lodged while the
jury viewed the statement.

Appellant has not preserved error regarding his appellate complaint.
Although he made reference to an estimated seventy objections to parts of the
recorded statement, he abandoned those objections and affirmatively waived them;
all of those objections involved statements that had occurred before the 2:27:13
mark on the recorded statement. When a party creates an impression that he is
abandoning an objection, the initial objection is insufficient to preserve error for
appeal. See Purtell v. State, 761 S.W.2d 360, 366 (Tex. Crim. App. 1988). The
record does not reflect, and appellant has not cited in his appellate brief, any other
evidentiary objections that he asserted to the custodial statement beyond the
2:27:13 mark on the recorded statement. See Tex. R. App. P. 33.1(a).
Accordingly, appellant failed to preserve error. Appellant’s fifth issue is
overruled.

20
 The trial court’s judgment is affirmed.

/s/ Kem Thompson Frost
Justice

Panel consists of Justices Frost, Brown, and Busby.
Publish — TEX. R. APP. P. 47.2(b).

21