NO. 07-06-0152-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C FEBRUARY

16, 2007

______________________________ BRUCE GLENN GIBSON, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 2 1ST DIS TRICT CO URT OF BAS TROP COU NTY; NO. 11,849; HON ORABLE JOHN L. PLACKE, JU DGE

_______________________________ Before QUINN, C.J., and HANCOCK and PIRT LE, JJ.
MEMORA NDUM OPIN ION
Followi ng a plea of not gui lty, appel lant Bruce Gl enn Gibson was conv icted of sexual assault and sentenced to eight and a half years confine ment. By four issues, he contends the trial cour

t erred by

(1) admitti ng his v ideotaped statement i nto evidence w hen the State failed to provi de him with a copy of the s tatement at least t w enty d ays prior

to trial, (2)2

admitting his oral s tatements into ev idence that were not electr onically recorded, ( 3) admitting his vid eotaped statement into evidence w hen he di d not knowin gly, inte llige ntly, and voluntarily

waive his rig hts, and (4) s ubmitting an erroneous application paragraph in the jur y cha rge. We affirm. Appellant was indicted on two counts of aggravated sexual assault of a child after the sixteen-year-old victim a lleged he r epeatedly force d her to engag e in vari ous sex acts while threatening her with a gun. The victim alleged the assa ult oc curred in appellant’s bedroom at a house where he l ived w ith his mother . Appellant w as arrested, and pursuant to a search warrant, investi gators col lected several items from appellan t’s bedroom which
were submitted to a crime lab fo r analysis; however, no biological evidence was obtai ned. Investigators also failed to locate any evidence pertaining to appellant’s use of a gun. Followi ng the search, Officer Greg Ste wart a nd Detective Lonny Ric hardson quest ioned appel lanton videotape at the Smithvi lle Police Department. During the inte rrogat ion , appellant

refused counsel and made various statem ents that were admitted into evidence athis jury

trial. At the conclusi on of trial, the jury conv icted appellant of the lesser inc luded offense of sexual assaul t.
We begin by addressing appellant’s first and thir d issues, by

which he contends the tri al court erred in admitting his videotaped statem ent into evidence. Prior to trial , appellant’s counsel filed a motion to suppres s any statement s appellan t mad e in the presence of law enforcement of ficers. Citing artic le 3 8.22 of the Code of Crimi nal1 Sec. 3. (a) No or al or sig n language s tatement of an accused made as a result of custodial interrog ation shall beadmissibl e against the accused in a cr iminal proceed ing unless: (1) an electroni c recording , which may include motion picture, v ideo tape, or other visual r ecording, i s made of the statement; (2) prior to th e statement but duri ng the recor ding the accused is given the warni ng in Subs ecti on (a ) of S ecti on 2 a bove and t he ac cuse d kno wingly, inte lligentl y, and voluntar ily waives any rights set out in the warnin g; (3) the recording device w as capable of making an accurate r ecording, t he operator was competent, and the recordi ng is accu rate and has not be en altered; (4) all v oices on the r

ecording ar

e identified; and (5) not later than the 20th day beforethe date of the pr oce eding, the attorney representi ng the d efend ant i s pr ovi ded w ith a tr ue, compl ete, and a ccur ate copy of a l l recording s of the defendant made under th is articl e. Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2005). 3 Procedure, the motion alleged, amon g other things, that appella nt did n ot “kn owingl y, inte llige ntly, and voluntarily” w aive his rights prior to making the videotaped s tatementand the St ate fail ed to furnish him with a copy of his statem ent twenty days prior to trial. 1 Followi ng a brief hear ing, the tr ial court den ied appellant’ s motion.
Att rial, t he State moved to admit the vi deotape of appellant’s interrog ation into evidence through Officer Stewar t. Without inquiry from the trial court, counsel for appellant immediatel yr eplied, “No objection, Your Honor”; whereupon th e court recei ved the videot ape into evide nce. The S tate then proc eed ed to ask Of fice r Ste wart se ve ra l questions concerning t he interrog ation. When the State requested pe rmission to publish2 Counsel did not renew his complaint in t he motion to suppr ess that the State failed to furnish him with a copy of the videotape prior to trial. 4 the videotape to the jury, appe llant’s coun sel objected t hat it should no t be published because appellant’s s tatements were not v oluntary an d he never

intelligently or knowingly waived his statutory rights. 2 The court noted counsel’s objec tion and al lowed t he jury to view the videotape.
When a pretrial motion to suppres s evidence is overrul ed, a d efendant need not subsequently object at tr ial to the same e videnc e in order to preserve error for appeal. Moraguez

v. State , 701 S.W.2d 902, 904 (Tex.Cri m.App 1986). However, if the defendant affirmatively sta tes he ha s “n o obj ecti on” to th e adm iss ion of t he evidenc e at trial, he waives his rig ht to complain of the error on appeal despite the pr etrial rul ing. Id. ; Strauss v. State , 121 S.W.3d 486, 490 (Tex.App.–Amari llo 2003, pet. r ef’d). Here, although couns el objected to t he publication of the videotape, he did so after he expressl y stated that he had “no objection”to the admissi on of the videotape into evidence. W ithout a limiting instruction, the videotape was in evidence and could be used for all purposes

. See Hamm ock v. State , 46 S.W.3d 889, 892 (Tex.Crim.App. 20 01). Conseq uently , appellant is precluded from chal lenging on appeal either its admissi on or publication. See Strauss, 121 S.W.3d at 490. Appellant’s issues one and t hree present nothing for re view and are overruled.5

By his second i ssue, appellant alleges that certain test imony prov ided by Dete ctive Richardson contai ned oral statements made by appella nt which were inadmissible because the statements were not recor ded. Describi ng a conve rsation that hehad with appellant in the vest ibule after leav ing the inte rrogation room, Detectiv e Richardson said:
I continued totape the conversation usi ng my pocket recorder. On the way to the ja il Gi bson ke pt rep eating how [ the v icti m] came onto hi m. Wh ile I was alone in the ves tibule wi th Gibson he tol d me that he did have sex ual intercourse and anal inter course wi th [the vic

ti m] and that she did perfo rm oral se x on him . Gibson was unsure as tohow many times. The pocket recorder had used up the available time an d did not r ecor d the last part

of the convers ation.
Richardson provided t his testimony by reading from his offense report af ter appellant’s counsel ques tione d him on cross-ex amination reg arding a r eference in the report that he had used a pocket recorder to record appel lant’s interrogation. Richardson acknowledg ed that he used the poc ket recorder but testified ther

e was nothing on the recorder that was “ different or in addi tion to” the statements on the v ideotape show n to the jury. In response to the question ing, the State pleaded that, under Rules of Evidence 106 and 107, Richard son should a lso be a llowed to testify to other matters in the of fense report. Specificall y, the State sought to int roduce ap pellant’s statements in the offense report that were not recorded. Appellant’s counsel objected to the reques t c laiming that the rule of optional completeness w as not applicabl e and t hat the statements ha d to be recorded to be admissible. Despite counsel’s ob jections, the trial court permitted the jury6

to hear the testi mony. After r eading the sta tements into evidence, Richardson confirmed that they were not captured on videotape or by the pocke t recorder.
Article 38.22 precludesthe admission of or al statements by

the accused, made in respon se to cus todi al int erro gatio n, th at ar e not elec tron icall y or visu ally re cord ed. T ex. Code Crim. Proc . Ann. art. 38.22, § 3( a)(1) (Vernon 2005). Without deciding whethe r the statements in question were made in response to cu stodial interrogation, w e agree with the State’s contention that a ny error by the tri al court was harmless becaus e the s ame evidence w

as already

before the jury

in the form of appellan t’s vide otaped statement.
An error that is not of consti tutional dimensi on at trial i s harmless and will b e disregar ded if the error did not

affect the substantial rights of the defendant. Tex. R . App. P. 44.2(b); King v. State , 953 S.W .2d 266, 271 (Tex.Crim .App. 1997) . The erroneous admission of evidence doesnot affect a sub stant ial rig ht "if the appellate court, after examining th e record as a whole, has fair assurance that the error did not influence the jury, or had but a sl ight effect." Johnson v. State , 967 S.W.2 d 4 10, 417 (Tex.C rim.App. 1998).
He re, t he videotape corroborates t he State’s conten tion that the subs tance of appellant’s statements to Richardson in the vestibule was the s ame as the substance of statements on videotape. Wh ile appellant never admitted on videotape to engaging in anal sex, he repeatedly

states that

the victi m came on to him and that he engaged in oral and vaginal sex w ith the vi ctim. Appella nt admitted on v ideotape to hav ing sexual contact w ith7

the victim. Therefore, we hold that any error in t he admission of the s ame evide nc e through Richardson’s testimony w as harmless. See Tex. R. App. P. 44.2(b). Appellant’s second point is

overrul ed. Byhis f ourth issue, appellant alle ges the jur y charg e was err

oneous because the paragraph in the cha rge pertai ning to the l esser incl uded offense of sexual ass ault was titled “Application paragraph-Lesser included o ffense.” Appe llant claims that, because this paragraph was theonly parag raph in the char ge that was preceded by a title, the trial court impermissibly instructed t he jury how to “decide appel lant’s fate.” Appellant concedes that trial couns el did not make a specific objec tion to the char

ge on the record.
When an er ror has not been preserv ed by a timel y objecti on, we must find "eg regiousharm" to sustai n a revers al. Almanz a v. State , 686 S.W.2d 157, 17 1 (Tex.Crim.App. 1984). Al ma nza defines egregious harm as errors which affect "the very basis of the case," depri ve the defendant of a "valuable rig ht," or "vitall y affect a def ensi ve theory." Id. at172 (citati ons omitted); Hutch v. State , 922 S.W.2d 166, 171 (Tex.Crim.App. 1996). The degree of harm may be determi ned in lig ht of the entire j ury char ge, the state of the evidence, including the c onte sted issue s and the we ight o f th e pro bati ve evidence, the arguments of couns el, and any ot her relevant information in the recor d. Al ma nza , 686 S.W.2d at 171.3 Nor does he explain how he was harmed by the jury ’s decisio n to find him gui lty of the lesser i ncluded offense. 8 Here, appell ant does not all ege the court ’s chargeis lacki ng in substance or t hat it co ntai ns a s ubst anti ve mis stat eme nt of law. 3 Moreover , he offers no support for hi s contention thatthe paragra ph title cause d the jury to disreg ard the remaining p aragraphs in the c har ge. We generally as sume that the jur y follows the trial court’s i nstructions as given, and will not reverse in the absence of evidence th at the jury

was actual ly confused by the charge. Williams v. State , 937 S.W.2d 479, 490 (Tex.Cri m.App. 1996). Thus, we
are not persuaded that the inclusi on of the title in the charge caused egregious h arm to appellant such a s that contemplated in Al ma nza . Appellant’s fourth issue i s overru led. Accordingl y, the tri al court’s judgment is a ffirmed.

Patrick A. Pirtle Justice Do not publish

.