COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00314-CR
COLT J. WALKER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. Introduction
Appellant Colt J. Walker appeals the judgment adjudicating his guilt for the
offense of aggravated assault with a deadly weapon. Appellant pleaded guilty to
the offense in 2006, and the trial court deferred adjudication and placed him on
ten years’ community supervision. In 2010, the State filed a petition to proceed
to adjudication, alleging that Appellant had committed the new offense of delivery
of a controlled substance in violation of the terms of his community supervision.
1
See Tex. R. App. P. 47.4.
Appellant pleaded not true to the allegation in the petition. The trial court
conducted an evidentiary hearing, found the allegation in the petition true, and
sentenced Appellant to eight years’ confinement. Appellant contends in one
point that the trial court abused its discretion by admitting his oral statement into
evidence because the oral statement was not taken in compliance with code of
criminal procedure article 38.22, section 3 2 and that there is otherwise no
evidence that he violated the terms of his community supervision. We affirm.
II. Background
Parker County Sheriff’s Office Investigator Ann Hollis testified at the
adjudication hearing that she learned in September 2009 that a woman named
Janelle Smith wanted to sell some hydrocodone pills. Investigator Hollis then
arranged for Smith to call Parker County Sheriff’s Office Investigator Kevin
Hilliard, who was working undercover. Smith contacted Investigator Hilliard, and
they arranged to meet in a Fort Worth grocery store parking lot for Smith to sell
pills to Investigator Hilliard.
Investigator Hilliard testified that Smith arrived at the meeting place in an
Isuzu vehicle. However, Smith was the passenger, and Appellant was driving.
Appellant parked the Isuzu next to Investigator Hilliard’s truck, and Smith exited
the Isuzu and entered the passenger door of Investigator Hilliard’s truck. After
Smith and Investigator Hilliard negotiated a price for the pills and completed the
2
See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (West 2005).
2
drug transaction, Smith exited the truck, Investigator Hilliard gave the bust signal
to his backup officers, and Smith was arrested.
Appellant was also removed from the Isuzu, handcuffed, and questioned
by two different officers. Investigator Montenez, one of the backup officers,
interviewed Appellant first and recorded the interview on a hand-held recorder.
Investigator Montenez read Appellant his Miranda rights, and the recording
contains that exchange. Investigator Hilliard was interviewing Smith while
Investigator Montenez interviewed Appellant, but Investigator Hilliard testified
that he was “in the area” and “heard bits and pieces” of Appellant’s interview by
Investigator Montenez.
Investigator Hilliard also interviewed Appellant, and Investigator Hilliard
recorded his interview of Appellant on a different recording device than the one
used by Investigator Montenez. The recording of Investigator Hilliard’s interview
does not contain any Miranda warnings. Between the two interviews,
Investigators Montenez and Hilliard discussed Appellant’s statements to
Investigator Montenez. Appellant told Investigator Hilliard during the second
interview that Smith was his aunt, that he was there to provide security for Smith
while she sold pills to someone neither of them knew, and that he knew thirty
minutes before the transaction that Smith was intending to sell pills.
When the State offered the recorded interview by Investigator Hilliard into
evidence, Appellant objected and argued among other things that the recording
of Hilliard’s interview did not satisfy the requirements of code of criminal
procedure article 38.22. Appellant did not, however, object to any of Investigator
3
Hilliard’s testimony about what Appellant told him during the recorded interview,
including his admissions that he knew about the drug transaction thirty minutes
before it occurred and that he was there to provide security for Smith.
Appellant testified during the hearing and denied that he knew Smith was
going to the grocery store to sell drugs. He testified that Smith called him before
he got off work, that she was upset about a fight with her husband, and that she
talked about needing to find a new place to live. Appellant also testified that he
agreed to drive Smith to meet her friend because of how upset she was. He
testified that he would not have gone had he known why Smith actually wanted to
go to the grocery store.
Appellant testified that he remembered Investigator Montenez reading him
his Miranda rights, that he told Investigator Montenez that he did not have
anything to do with Smith’s drug transaction, and that there was “a little bit of a
gap” between his interviews by Investigators Montenez and Hilliard. Appellant
agreed that he admitted to Investigator Hilliard that he knew Smith’s purpose in
going to the grocery store to meet her friend, but he testified that he did so only
because Investigator Hilliard told him he could go home if he did. Appellant
testified that he would not have otherwise said so and reiterated that he did not
know Smith’s reason for going to the grocery store.
III. Discussion
Appellant contends in his sole point that the trial court abused its discretion
by admitting the oral statement he gave to Investigator Hilliard because the
statement does not comply with code of criminal procedure article 38.22, section
4
3. Specifically, Appellant contends that the recorded statement taken by
Investigator Hilliard does not independently meet article 38.22, section 3’s
requirements because it does not also contain the required statutory warnings.
The State responds that Appellant failed to preserve this complaint for review
because he did not object to Investigator Hilliard’s testimony about the
incriminating statements Appellant made in the recorded statement.
A trial court’s erroneous admission of evidence will not require reversal
when other such evidence was received without objection, either before or after
the complained-of ruling. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App.
2004); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Error
concerning the admission of an exhibit is harmless when there is no objection to
testimony describing the content or substance of the objected-to exhibit. See
Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999) (overruling
issue concerning admission of trial exhibit because sponsoring witness testified
about the information contained in the exhibit without objection), cert. denied, 528
U.S. 1082 (2000); see also Bradley v. State, Nos. 14-08-00038-CR, 14-08-
00039-CR, 2008 WL 4647289, at *4 (Tex. App.—Houston [14th Dist.] Oct. 21,
2008, pet. ref’d) (mem. op., not designated for publication) (holding relevance
objection to trial exhibits not preserved for appeal because testifying officer
testified without objection about each of the exhibits); Aranda v. State, No. 13-03-
00302-CR, 2004 WL 5357628, at *2 (Tex. App.—Corpus Christi Nov. 18, 2004,
no pet.) (mem. op., not designated for publication) (holding any error in
5
admission of hearsay exhibit harmless because same information subsequently
introduced without objection).
Here, Appellant appropriately objected when the State offered into
evidence the recorded interview by Investigator Hilliard, arguing that the
recording was not admissible under code of criminal procedure article 38.22
because the recording did not contain the statutorily required warnings.
However, Appellant did not object when Investigator Hilliard testified about the
statements Appellant made to him, which are contained in the recording.
Because Appellant did not object to Investigator Hilliard’s testimony about the
content contained in the recorded statement, any alleged error in the admission
of the recorded statement is harmless. See, e.g., Chamberlain, 998 S.W.2d at
235. We therefore overrule Appellant’s sole point.
IV. Conclusion
Having overruled Appellant’s sole point, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 26, 2012
6