COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
RAMOND GOMEZ A/K/A No. 08-12-00044-CR
RAMON GOMEZ, §
Appeal from
Appellant, §
355th District Court
v. §
of Hood County, Texas
THE STATE OF TEXAS, §
(TC # CR12001)
Appellee. §
OPINION
Raymond Gomez, a/k/a Ramon Gomez, appeals from his convictions for one count of
aggravated sexual assault of a child and two counts of indecency with a child by contact. For the
reasons that follow, we modify the judgment for each count to reflect that punishment was
assessed by the trial court, and affirm the judgments as so modified.
FACTUAL SUMMARY
On September 23, 2011, Gay Johnson, an investigator in the criminal investigations
division of the Hood County Sheriff’s office, received an offense report from Deputy Katie
Barton of an aggravated sexual assault of a child. After he received the report, Johnson called
the Child Advocacy Center to set up a forensic interview with the victim. Johnson testified that
he witnessed the forensic interview via a video camera. After the interview, Johnson felt that the
victim needed to be referred to the CARE team at Cook’s Children’s Hospital and he scheduled
an appointment. Johnson received a copy of the report from Cook’s which he described as
consistent with what he observed during the forensic interview.
At that point, Robert Young, an investigator with the District Attorney’s office, became
involved in the case. According to Johnson, Young attempted to follow up the allegations by
making a “controlled phone call.” As Johnson explained, a controlled phone call is “where we
make a phone call to the suspect, and either the victim or the victim’s parent may attempt to talk
to that subject on the phone and see if we can get a confession from the phone call.” The attempt
to get Appellant on the phone was unsuccessful. The officers then asked Appellant’s sister to
show them where he lived, which she did. At the time Johnson and Young initially went to
Appellant’s home they did not have an arrest warrant, but they were in the process of
investigating the allegations of child abuse.
The two officers arrived at the house and knocked on the door. Appellant’s brother,
Frank Gomez, came to the door. Frank told the officers that Appellant was in his bedroom and
then escorted them through the house and to the room. The officers found Appellant in the
bedroom. They informed him that he was not under arrest and that he could ask them to leave at
any time. They talked to Appellant for approximately an hour and then, right before they left,
Young asked Appellant if he would come to the District Attorney’s office so they could finish
the conversation there. Johnson and Young both testified that Appellant agreed to do so.
A few hours later, Appellant’s brother, Frank, drove him to the Hood County District
Attorney’s office for another interview. Before the interview, Investigator Young read Appellant
his Miranda1 warnings. A signed copy acknowledging Appellant was in fact read his Miranda
rights was also admitted into evidence at trial. During the interview, Appellant admitted to
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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sexually abusing AA12 and provided a detailed account of his inappropriate interactions with
her. The interview was recorded.
Shortly before trial, Appellant filed a written motion to suppress his first statement. He
did not move to suppress the second statement. The trial court conducted a hearing outside of
the jury’s presence on the motion. The State agreed that it would not introduce the statement
made at the residence during its case-in-chief and it would approach the bench if the statement
became relevant for some purpose during trial. Appellant’s attorney objected to admission of the
second statement on the ground that it did not identify all of the voices on the recording. The
prosecutor assured the court that the voices on the recording were identifiable and he would lay
the predicate prior to offering the statement into evidence. The court instructed the prosecutor to
lay the predicate at the appropriate time and advised defense counsel that she could object
anytime and the court would rule. Appellant did not make any other objections during the
hearing.
During its case-in-chief, the prosecutor established the predicate for admission of the
second statement, including identification of the voices on the recording, and offered the exhibit
into evidence. Appellant’s counsel objected to the audio recording because all of the voices were
not identified on the recording itself. The trial court overruled the objection and the recording
was played for the jury. AA12 also testified in detail at trial with respect to the sexual abuse.
At the close of evidence and outside of the jury’s presence, the following exchange
occurred between counsel and the trial judge:
THE COURT: Anything for the charge?
[PROSECUTOR FOR THE STATE]: I want an instruction that ‘on or about’
allows the State to prove the offense occurred anytime before the presentment of
the indictment and within the statute of limitations.
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[COUNSEL FOR APPELLANT]: The only other thing that I would like is the
paragraph regarding the fact that [the voices] weren’t -- I know that they
identified them here, but in the statement, they weren’t identified in the audio
itself, that I'd like an instruction that they find that in the statement itself, they
weren't identified.
[PROSECUTOR FOR THE STATE]: I don't think that's the law, Judge, and also
he wasn’t in custody, either.
[COUNSEL FOR APPELLANT]: That’s true.
[PROSECUTOR FOR THE STATE]: So I don't think --
THE COURT: I don't know what you're talking about. I mean, I know what
you’re talking about, but I've never seen an instruction on it or given an
instruction on it, not that I recall.
[COUNSEL FOR APPELLANT]: But other than that, no.
[PROSECUTOR FOR THE STATE]: I'm going to look through my archive and
find that one instruction, because I think that’s important.
THE COURT: Well, okay. Then you get to do this. You need to have that to
Penny first thing in the morning.
[PROSECUTOR FOR THE STATE]: Yes, yes.
THE COURT: Because I've got a charge prepared. 8:15, 8:00 -- it doesn't have
to be 8:00 o'clock, but you need to get it to her obviously long before 9:00,
because they'll be back at 9:00 o'clock.
[PROSECUTOR FOR THE STATE]: Thank you, Your Honor. May we be
excused?
THE COURT: Yes.
The following morning, before the jury was brought in, the trial court asked the parties
for their objections to the charge: THE COURT: The Court has prepared its proposed charge
and will hear any objections or special requested in instructions. Does the State have any?
[PROSECUTOR FOR THE STATE]: No, Your Honor.
THE COURT: Does the defense have any?
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[COUNSEL FOR APPELLANT]: None, Your Honor.
The charge does not include the instruction requested by Appellant. The jury convicted
Appellant of one count of aggravated sexual assault and two counts of indecency with a child.
Appellant pled true to his prior conviction for indecency with a child and the court assessed
Appellant’s punishment at life imprisonment on each count.
THE RECORDED STATEMENT
Appellant presents the following as a single issue on appeal:
The trial court erred when it admitted [Appellant’s] oral statement over objection
from Appellant, without a jury instruction as to whether the requirements of
Article 38.22 had been met, in violation of 38.22, Miranda, and the Fifth
Amendment.
In the argument section of his brief, Appellant argues that (1) the statement is inadmissible
because all of the voices on the recorded statement were not identified on the statement itself; (2)
the trial court failed to conduct a hearing on voluntariness as required by Article 38.22 § 6; and
(3) the trial court did not include in the charge a general Article 38.22, § 7 warnings instruction
(involving warnings given under Article 38.22 § 2 and § 3).
An issue or point of error is multifarious if it embraces more than one specific ground of
error. Mays v. State, 318 S.W.3d 368, 385 (Tex.Crim.App. 2010). By combining independent
grounds together in a single issue, an appellant risks rejection of his arguments. See Wood v.
State, 18 S.W.3d 642, 649 n.6 (Tex.Crim.App. 2000)(refusing to address multifarious grounds).
We will address Appellant’s issues to the extent they are preserved and adequately briefed.
Identification of the Material Voices
In his first sub-issue, Appellant argues that the trial court erred by admitting the second
statement because all of the voices were not identified on the recording itself as required by
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Article 38.22. An appellate court reviews a trial court’s decision to admit evidence for an abuse
of discretion. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). We will not
overturn the trial court’s decision so long as it is correct under any theory of law applicable to the
case and the decision is within the zone of reasonable disagreement. See Ramos, 245 S.W.3d at
418.
Article 38.22 sets forth rules governing the admissibility of an accused’s written and oral
statements that are the product of custodial interrogations. Oursbourn v. State, 259 S.W.3d 159,
171 (Tex.Crim.App. 2008); see TEX.CODE CRIM.PROC.ANN. art. 38.22 (West 2005). Article
38.22 provides that an oral statement of an accused made as a result of custodial interrogation is
inadmissible unless: (1) the statement is recorded electronically; (2) during the recording and
before the accused’s statement, the accused is given the required warnings under Article 15.17;
(3) the recording device is capable of making an accurate record, the operator was competent,
and the recording is accurate; (4) all material voices on the recording are identified; and (5) the
accused’s attorney is provided with an accurate copy of the recording. TEX.CODE CRIM.PROC.
ANN. art. 38.22, § 3(a), (e).
Appellant complains that the trial court erred in admitting the audio recording because it
did not comply with the requirement that all material voices on an electronic recording be
identified. See TEX.CODE CRIM.PROC.ANN. 38.22, § 3(a)(4), (e)(1). Appellant recognizes that
Investigator Young testified at trial as to the voices on the tape, but he contends that the voices
were not identified on the audio recording itself. Appellant preserved this complaint because he
made a timely objection at trial and obtained an adverse ruling. See TEX.R.APP.P. 33.1. He did
not, however, establish that Article 38.22 applied to this statement.
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The requirements of Article 38.22 § 2 and § 3 apply only to statements made “as a result
of custodial interrogation.” [Emphasis added]. See TEX.CODE CRIM.PROC.ANN. art. 38.22.
Appellant bore the initial burden to prove he was in custody when he gave his oral statement to
Investigator Young. See Herrera v. State, 241 S.W.3d 520, 526 (Tex.Crim.App. 2007).
Appellant’s counsel acknowledged during a discussion with the prosecution and the trial court
that Appellant was not in custody at the time he gave the recorded statement. For this reason
alone, Appellant’s first argument is without merit. However, even if Appellant had been in
custody, the State established that all material voices on the recording were identified.
The Court of Criminal Appeals addressed the admissibility of a video-recorded statement
in Lucas v. State, 791 S.W.2d 35 (Tex.Crim.App. 1989) where the defendant argued that the
State had failed to identify all of the voices on a video-recorded statement. Lucas was tried and
convicted of capital murder for the murder-sexual assault of a woman whose nude body was
discovered near Interstate 35 north of Georgetown. Id. at 40. After being arrested in Montague
County on a weapons charge, Lucas confessed to multiple murders. Id. at 41. The Williamson
County Sheriff interviewed Lucas and he admitted picking up a hitchhiker in Oklahoma and
killing her after sexually assaulting her. Id. He dumped the body in a culvert off of I-35. Id.
The Sheriff’s Office subsequently made two video-recorded statements of Lucas, the first at the
crime scene where the body was found and the second at the Sheriff’s Office. Id. at 41-42. In
the crime scene video, Lucas identified a picture of the victim and provided details about the
capital murder. Id. at 42.
Lucas argued on appeal that the crime scene video was erroneously admitted because the
State failed to satisfy the predicate requirement for admission of the video under Article 38.22
§ 3(a)(4) that all voices heard on the tape recording be identified. Id. at 57. He specifically
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complained that the voices of other individuals outside the range of the camera were not
identified prior to admission of the tape. Id. The Court of Criminal Appeals emphasized that the
State presented testimony prior to admission of the video recording identifying the parties who
directly participated in the crime scene video recording. Id. The State also established that there
were other individuals near the scene who did not participate in the taking the statement from
Lucas. Id. The Court of Criminal Appeals distinguished between the speakers who actively
contributed to the video recording and those whose voices are merely in the background and
whose comments did not have any material relevance to the interview. Id. Because all of the
active participants in the crime scene interview were identified at trial, the Court concluded it
could not say that any individual’s voice remained “unidentified” for purposes of Article 38.22,
and it held that the predicate for admission of the statement was satisfied. Id. at 57-58.
Even though Lucas did not involve the precise argument presented by the instant case,
the Court of Criminal Appeals was certainly addressing whether the State had satisfied Article
38.22 § 3(a)(4)’s requirement that all material voices on the recording be identified. The Court
relied on evidence presented at trial when determining whether the State had satisfied this
requirement. We find Lucas persuasive.
A few unpublished opinions have addressed the issue of whether Article 38.22(a)(4)
requires identification to be made on the tape recording itself, or whether identification of voices
by witnesses at trial is sufficient. See Stewart v. State, No. 04-08-00274-CR, 2009 WL 2183397,
at *5 (Tex.App.--San Antonio July 22, 2009, pet. ref’d)(mem. op.)(not designated for
publication); Petry v. State, No. 01-86-00517-CR, 1987 WL 14550, at *2 (Tex.App.--Houston
[1st Dist.] July 23, 1987, no pet.)(not designated for publication). In each of these cases, the
court of appeals held that there is no requirement that the identification be made on the recording
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itself and that identification of the material voices by a witness at trial is sufficient to satisfy the
identification requirement.
Likewise, in Parker v. State, No. 02-12-00348-CR, 2013 WL 2248254, at *2 (Tex.App.--
Fort Worth May 23, 2013, no pet. h.)(mem. op.)(not designated for publication), the appellant
argued that his recorded statements were inadmissible because “all material voices on the
recording were not identified.” Parker, 2013 WL 2248254, at *2. While the court of appeals in
Parker did not directly address the argument because the appellant had not properly preserved
the complaint for appeal, the court cited to Lucas v. State, 791 S.W.2d 35, 57-58 (Tex.Crim.App.
1989) and stated that:
Even if we were to address the merits of the issue, Parker would not be entitled to
relief. [A witness] testified that he had watched the video recording of Parker's
post-warning statements and that the video fairly and accurately depicted what
occurred. Further, [the same witness] was able to identify the voices on the
recording and recounted what was said. This is sufficient to meet the
admissibility requirement of article 38.22, section 3(a)(4).
Parker, 2013 WL 2248254, at *2, citing TEX.R.EVID. 901(a), (b)(5); Lucas, 791 S.W.2d at 57-58
and Falcetta v. State, 991 S.W.2d 295, 298-99 (Tex.App.--Texarkana 1999, pet. ref’d).
Based on the foregoing authority, we conclude that Investigator Young’s trial testimony
identifying all material voices on the recording was sufficient to satisfy the requirement of
Article 38.22 § 3(a)(4). Accordingly, the trial court did not abuse its discretion by overruling
Appellant’s objection and admitting the evidence. Appellant’s first sub-issue is overruled.
Failure to Conduct Hearing to Determine Voluntariness
In his second sub-issue, Appellant complains that the trial court erred by failing to
conduct a hearing outside the presence of the jury to determine the voluntariness of the second
oral statement as required by Article 38.22 § 6. Article 38.22, section 6 provides in pertinent
part as follows:
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In all cases where a question is raised 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. If the statement
has been found to have been voluntarily made and held admissible as a matter of
law and fact by the court in a hearing in the absence of the jury, the court must
enter an order stating its conclusion as to whether or not the statement was
voluntarily made, along with the specific finding of facts upon which the
conclusion was based, which order shall be filed among the papers of the cause.
TEX.CODE CRIM.PROC.ANN. art. 38.22, § 6 (West 2005). Section 6 applies to an accused’s
custodial and non-custodial statements. Oursbourn, 259 S.W.3d at 171; State v. Terrazas, 4
S.W.3d 720, 727 (Tex.Crim.App. 1999).
In his pretrial motion to suppress the first statement, Appellant alleged that the officers’
failure to Mirandize him raised an issue regarding the voluntariness of the statement. During the
hearing, the State informed the court that it would not introduce the first statement during its
case-in-chief. The prosecutor informed the court that Appellant was Mirandized prior to making
the second statement. Appellant made only one objection to admission of the second statement,
that is, the voices of the speakers were not identified on the recording itself.
To preserve an issue for review on appeal, the appellant must show that he made a timely
and specific objection at trial. See TEX.R.APP.P. 33.1. Appellant’s motion to suppress did not
address any aspect of his second statement, including voluntariness or failure to warn. The trial
court conducted a hearing but Appellant restricted his complaint about the second statement to
identification of the voices on the recording. He did not raise any issue regarding voluntariness
of the statement. When the State offered the second statement into evidence, Appellant referred
only to the objection stated during the earlier hearing. We conclude that Appellant failed to
preserve the argument presented in his second sub-issue. See Lucio v. State, 351 S.W.3d 878,
893 (Tex.Crim.App. 2011)(holding that appellant’s objection that not all voices on the recording
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could be identified failed to preserve any voluntariness, lack-of-warning, or illegal-arrest claims
relating to the admissibility of a recorded statement). Appellant’s second sub-issue is overruled.
Jury Instruction
Finally, we turn to Appellant’s contention that the trial court erred by failing to provide a
jury instruction as to whether the requirements of Article 38.22 had been met. We review charge
error using the procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.
1985). The first step is to determine there was error in the charge. Sakil v. State, 287 S.W.3d 23,
25 (Tex.Crim.App. 2009); Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App. 2009). If error
exists, we proceed to the second step which is to determine whether the error was harmful.
Barrios, 283 S.W.3d at 350. If the appellant objected to the charge, reversal is required if there
is some harm. Barrios, 283 S.W.3d at 350. If the error was not objected to, it must be
“fundamental” and requires reversal occurs only if it was so egregious and created such harm
that the defendant “has not had a fair and impartial trial.” Barrios, 283 S.W.3d at 350, quoting
Almanza, 686 S.W.2d at 171.
The Court of Criminal Appeals explained in Oursbourn that there are three types of
instructions that relate to the taking of confessions: (1) a “general” Article 38.22, § 6
voluntariness instruction; (2) a “general” Article 38.22, § 7 warnings instruction (involving
warnings given under § 2 and § 3); and (3) a “specific” Article 38.23(a) exclusionary-rule
instruction. Oursbourn, 259 S.W.3d at 173. The Section 6 “general” instruction asks the jury
whether it believes that the defendant’s confession was voluntary, and instructs the jury to not
consider the confession if the jury finds it was not voluntary. Id. The “general” Section 7
instruction sets out the requirements of Article 38.22, § 2 or § 3 and asks the jury to decide
whether all of those requirements were met. Id. To be entitled to one of these instructions, the
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evidence must raise a “voluntariness” issue, and the defendant should request a jury instruction
that relates to his theory of involuntariness. Id. at 174. If the defendant never presents a
proposed jury instruction or fails to object to the lack of one, any potential error in the charge is
reviewed only for “egregious harm” under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.
1984). Oursbourn, 259 S.W.3d at 174.
At the close of evidence, Appellant’s counsel requested that the court include in the
charge an instruction related to her argument that the voices were not identified on the audio
recording itself. Thus, it appears Appellant was requesting a Section 7 “general” instruction, but
there are no fact issues to be determined by the jury related to the identification of the voices on
the audio recording. The question whether the material voices must be identified on the
recording itself is a question of law which we have decided against Appellant. Consequently, we
conclude that the trial court did not err by failing to include such an instruction in the charge.
Appellant’s third sub-issue is overruled.
We have concluded that the judgments entered in this case need to be modified. The trial
court entered a separate judgment for Counts 1, 2, and 3. Each of these judgments recites that
punishment was assessed by the jury but the reporter’s record and the court’s docket sheet reflect
that the trial court assessment punishment. Accordingly, we modify the judgments for Counts 1,
2, and 3 to reflect that the court assessed punishment. Having overruled each sub-issue
presented in Issue One, we affirm the judgments as so modified.
January 15, 2014
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
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