Opinion filed August 31 , 2016



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 14

- 00 0 83

- CR

__________ JAMES OWEN WINCHESTER , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 1 19th District Court Tom Green County, Texas Trial Court Cause No. B

- 12

- 0120

- SB

M E M O R A N D U M O P I N I O N
James Owen Winchester pleaded not guilty to the murder of Kim Burton

. A fter a trial, the jury found him guilty of murder, 1 found the enhancement paragraph to be true, 2 and assessed punishment at imprisonment for life

. The trial court
sentenced Appellant in accordance with the verdict

. We affirm. 3

1 See T EX

. P ENAL C ODE A NN

. § 19.02( b )(1) ( West 2011 )

.

2 P ENAL § 12.32 (West 2011)
, § 12.42(c)(1) (West Supp. 2016).

3 Under a docket equalization order, the Texas Supreme Court transferred this appeal from the Third Court of Appeals to the Eleventh Court of Appeals. As required under T EX

. R. A PP

. P. 41.3, we will decide this case in a ccordance with the precedent of the Third Court of Appeals.2 I. Issues Presented
In two issues o n appeal, Appellant allege s that the trial court abused its
discretion when it failed to suppress or redact excerpts of two interviews that the
detectives had with Appellant after Burton ’s murder. Although Appellant gave multiple statements during the investigation, only two of them are involved in this appeal. During th ose two i nterview s , the detectives asked Appellant questions that contained deceptive and exaggerated statements as to the evidence that they had
collected that tied him to the mur der. Appellant’s issues on appeal relate to the inclusion of those deceptive and exaggerated statements when the interviews were
admitted into evidence before the jury

. In his first issue , Appellant claims that his due process rights under both the
Constitution of the United States and the constitution of the Sta te of Texas, as well
as Article 1.04 of the Tex as Code of Criminal Procedure, were “ violated by the State’s knowing use of false and misleading evidence and its failure to correct said false and misleading evidence, which was material.” In Appellant’s second issue on appeal, he takes the position that the trial court erred w hen it overruled his objections to those portions of one p articular “recorded statement by Appellant, refusing to suppress those portions by redaction and admitting the exhibit into evidence for publication in testimon y of a witness for the State.” Although there is no challenge to the sufficiency of the evidenc e, we will outline some of the testimony in order to provide context for our resolution of the issues that Appellant urges in this appeal.
II. Evidence at Trial
Burton and Appellant were acquainted as a result of their involvement with illegal drugs

. Appellant was, according to one of his acquaintances ( Andrew Apperson )
, her “methamphetamine dealer
, ” and they were “always pretty much together.” Accordi ng to information that Andrew gave to the police, Andrew, Appellant, and Burton had used drugs togeth er the weekend before Burton was3

mu rdered. Andrew testified that the relationship between Burton and A ppellant was “very strange ” and that Appellant was “e xtremely frustrated” because Burton always ran out of money

. Appellant told Andrew that he was goin g to give Burton a “sleeper,” which is a drug overdose. During one interview, Appellant told the detectives that he had been at
Burton ’s house on t he evening of the murder and that Burton was there at the time. Appellant said that he had gone to Burton ’s house that evening to get items to sell to get money for drugs

. On the night of the murder, Erika Anne Heffner, Burton ’s daughter, called Burton around midnight to alert her to an impending, bad storm

. Two days later, Heffner went to her mother’s house and noticed that her pickup was missing

. Heffner went into the house and noticed a “rampant” smell ; she found her
deceased mother on the couch with a blanket over her.
Burton had blood on her clothes and parts of her body

. T here was also blood
on the bla nket
, couch, walls , furniture, pictures
, carpet, ceiling fan, and in other places

. Burton ’s partially decomposed body showed defensive wounds

. She had multiple bruises and a fractured skull , wrist, and thumb
, and her right ear was gone.
Burton lived for some time before she ultimately died from a blunt force head injury

. T he police recovered a sledgehammer at the scene

. T he only DNA found on the sledgehammer matched Burton ’s DNA ; the coroner testified that the sledgehammer
was used to murder Burton

. Travis Bolwerk , another acquaintance of Appellant, testified that Appellant came to his apartment on the night of the murder; Appellant had blood on his face
and jersey

. Appellant told Bolwerk that he had been in a fight ; he used Bolwerk’s
bathroom to wash off the blood. Ap proximately three days after Burton ’s murder, the police arrested Appellant

on an outstanding arrest warrant for probation violations

. At that time, Appellant
had Burton ’s phone and was wearing the same clothes that he ha d worn on the night4

of the murder. The evidence indicated that Appellant and an acquaintance, Anthony Apperson (Tony), had sold some of Burton ’s property to get drugs. Appellant also had Burton’s pickup and had given it to Tony, who in turn rented the pi ckup to another person for drugs

. Blood stains found in the pickup matched Burton ’s DNA. While in custody, and after Appellant had been read his Miranda 4 warnings by a d etective from the San Angelo Police Department, Appellant waived his rights
and agreed to an interview

. Detective Brian Elkins conducted the interview

. Detective Elkins testif

i ed about how he build s a rapport with a suspect and said that
, in the process
, he may exaggerate information in order to get the truth from that

person

. Appe llant init ially denied that he knew about Burton ’s death, and he later
denied that he had murdered her. He eventually told detectives that he was at the house at the time of the murder, but he claimed that another man, Dwayne Chadwick
, who had been droppe d off at the house by a third man , had argued with Burton and
th at Chadwick had hit her in the head with a sledgehammer and killed her

. Appellant
said that Chadwick then forced him to take Chadwick to a nearby convenience store

. A f t er Chadwick got out of the pickup, Appellant left

. The detectives were never able to determine that Chadwick was involved; they could not place him at the scene
, and the case against Chadwick was dismissed.
On October 4
, 2011, m ore than three year s after the murder,
Detective William Mickey Jones of the San Angelo Police Department and Investigator Paul Dyer, with the district attorney’s office, interviewed Appellant in Joplin, Missouri. They advised Appellant of his Miranda rights
, and Appellant
waived those rights . In this interview, the detective s used the same interview technique s as Detective Elkins and confronted Appellant with his earlier statements about Chadwick. The y exaggerated the information that had been collected and tol d Appellant that they had certain hair, DNA, and blood evidence that proved he had

4 Miranda v. Arizona , 384 U.S. 436 (1966).5

murdered Burton ; they asked him to explain the evidence and tell the truth. Appellant re sponded that he did not kill Burton

. Appellant complains that the questions posed b y the detectives in this interview, as in the first one, included false or misleading evidence that wa s left uncorrected by the State and that those excerpts
either should have been redacted or not admitted

. III. Standard of Review We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Ramos v. State , 245 S.W.3d 410, 417

– 18 (Tex. Crim. App. 2008) ; Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh ’ g).
The trial court’s ruling will be upheld on ap peal if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Ramos , 245
S.W.3d at 418. We will reverse a trial court ’ s ruling only if it is outside the “zone of reasonable disagreement.” Montgomery , 810 S.W.2d at 391.
IV. Discussion and Analysis A. Appellant waived his complaint in his first issue on appeal as it relate s to the first interview

. In the trial court, Appellant’s only objection to the first interview was that it was not voluntarily made. However, on appeal, Appellant complains that his due process rights were violated wh en the State presented false and misleading evidence
th at the State failed to correct. The State argued that Appellant failed to preserve
this issue for appeal as to the first inte r view

. As we explain below, we agree with the State that Appellant failed to preserve the issue for appeal as to the first interview

. In order to preserve a complaint for appellate review, a party must present the trial court with a timely request, object ion, or motion stating the specific grounds for the desired ruling
, if those grounds are not apparent from the context
, and must obtain a ruling. T EX

. R. A PP

. P . 33.1(a); Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Failure to object when there was an opportunity to do so generally waives error. Burt v. State , 396 S.W.3d 574, 577

– 78 (Tex. Crim. App.6

2013). A party must continue to object each time the objectionable evidence is
offered. Fuentes v. State , 991 S.W.2d 267, 273 (Tex. Crim. Ap p. 1999); Ethington v. State , 819 S.W.2d 854, 858

– 59 (Tex. Crim. App. 1991). In addition, w e may only review those issues on appeal that comport with the complaint made before the trial

court. See T EX

. R. A PP

. P . 33.1(a); Pena v. State , 285 S.W.3d 459, 4 64 (Tex. Crim. App. 2009); Wilson , 71 S.W.3d at 349 (citing Thomas v. State , 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)). To determine “whether the complaint on appeal comports with the complaint made at trial,” we must “consider the context in which the complaint was made and the parties’ shared understanding at that time.” Pena , 285
S.W.3d at 464.
As to the first intervie w, t he complaint at trial was that Appellant’s statements were not voluntarily made. Defense counsel did not complain that the questions posed by the detectives contained allegedly false or misleading evidence

. Because

a complaint on appeal must comport with the objection made at trial and because that did not happen in this case, Appellant failed to preserve the complaint for appellate review. See T EX

. R. A PP

. P. 33.1(a); Pena , 285 S.W.3d at 464; Fuller v.
State , 253 S.W.3d 220, 232 (Tex. Crim. App. 200 8); Wilson , 71 S.W.3d at 349

. We overrule Appellant’s first issue on appeal as it pertains to the first interview.
B. The trial court did not abuse its discretion when it admit ted the excerpts from the interview conducted in Joplin. In his first and second issue s on appeal, Appellant asserts that portions of the Joplin interview were inadmissible because the questions asked by the detectives
included false and misleading evidence and the State did not correct the errors

. But Appellant makes no argument on a ppeal that the Joplin interview was not voluntar y. During the Joplin interview, the detectives made statements and asked questions in which they exaggerated the evidence that they had. Appellant argues that the trial

court abused its discretion when it failed to redact th os e portions before it admitted7

the exhibit

. In response, t he State argues that it is perfectly acceptable for police to use interview techniques that involve exaggeration, deception, and confrontation to elicit the truth from a witness or suspect

. We agree with the State that the trial court did not abuse its discretion when it admitted the excerpts of the Joplin interview
because the State did not fabricate or present false or misleading evidence. Police may use deception and “tricker y” as interview techniques. Wilson v.
State , 311 S.W.3d 452, 4 61

– 62 (Tex. Crim. App. 2010)

. “ [ V ]erbal trickery, deception and ‘ outright lies conce rning the existence of evidence’ are acceptable interrogation strategies, but not the use of ‘false, incrimi nating documents.’ ” Id

. at 462 (quoting F RED E. I NBAU ET AL ., C RIMINA L I NTERROGATION AND C ONFESSIONS 217 (4 th ed. 2001)) ; see also Oursbourn v. State
, 259 S.W.3d 159, 182 (Tex. Crim. App. 2008) (lying about the state of the evidence is not “ overreaching ” that implicates due process , as long as the deception or subterfuge used is not one likely

to produce an untrue statement ). “Trickery or deception does not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process.” Creager v. State , 952 S.W.2d 8 52, 856 (Tex. Crim. App. 1997). A “[m]isrepresentation [] made by the police to a suspect during an interrogation is a relevant factor i n assessing whether the suspect’ s confession was
volunt ary, but it is insufficient to render an otherwise voluntary confession
inadmissible.” Green v. State , 934 S.W.2d 92, 99 (Tex. Crim. App. 1996) (citing Frazier v. Cupp , 394 U.S. 731, 739 (1969) )

. We review this issue under the “totality of the circumstances” and will not hold that an otherwise voluntary confession is inadmissible just because police misrepresented facts during an interrogation.
Frazier , 394 U.S. at 739. Appellant complained about the following questions and rhetoric that
Detective Jones posed to him in the Joplin interview: “ Her blood is on you. We know where you were standing when you swung the hammer. We know, James, . . .8

we know, ok? . . . We know the facts. We know what ha ppened in there.” Then
, Detective Jones queried, “Science tells me what happened, ok? But science can’t tell me why it happened.” Detective Jones then said
, “ Her DNA is in Travis’ s sink.
Her hair is in Travis’ s sink

. . . . This was hair that came out because somebody hit
he r in the head with a hammer. We can prove that.” Appellant responded, “I did
not kill her man.”
A comment made by Investigator Dyer w as as follows: “The blood in the sink, along with the hair , h er blood on you r shirt
, not only on the out . . . you had two
shirts on: y ou had a jersey, kind of a knit

- type jersey, and then a white T

- shi r t on under it. ” Investigator Dyer continued, “ Not only is there blood on the outside shirt,
the blood hit the shirt with such forc e that it went through to the w hite T

- shirt.” Later, Detective Jones said that there was “a mountain of evidence that tells us

— that really paints a clear picture of what happened in there.” Then Investigator Dyer
asked
, “How does that much blood get on your hands if you are not swinging the
hammer? How? It’s just physically impossible.” Appellant later responded, “I did
not do that to her. I would not do that. . . . I did not do that.” He later reiterated, “ I didn’ t kill her. ” The jury heard the evidence from Detective Elkins and Detective Jones about their investigation and the deception that they had employed as interview techniques.
T he detectives explained to the jury in detail how they exaggerated each stateme nt that related to the kind and amount of evidence that they had collected in their investigation . But they did not fabricate or manufacture any evidence. They used deception and exaggeration in an attempt to get Appellant to tell them the truth about
wh at had happened . We agree with the State that
, rather than being misled as to the facts, the jury was informed as to investigative techniques

. This is not a case that involves uncorrected perjury or the failure to disclose
evidence favorable to an accused. See
, e.g. , Ex parte Ghahremani , 332 S.W.3d 470,9

477

– 78 (Tex. Crim. App. 2011). The jury heard forensic evidence about the results
of the l ab tests on hair, DNA
, and blood

. The jury heard that Appellant received
Miranda warnings prior to the Joplin interview and that he waived his rights and chose to speak to the detectives. The jury did not hear that the detectives had fabricated documents, fingerprints, DNA reports, or hair test results. In addition, Appellant never confessed to the crime ; he said, “I did not kill her man ,” and “I
didn’ t kill her. ” A ppellant’s argument that the interview questions amounted to false and misleading evidence is unpersuasive because t here was no fabricated evidence
and because Appellant ne ver confessed that he killed Burton but
, instead
, claimed
that someone else did

. After a review of the record and given the totality of the circumstances, we hold that the t rial court did not abuse its discretion w hen it
admitted the Joplin interview

. Insofar as Appellant’s second issue might embrace the initial interview, or in the event that we are in error as to the preservation of matters regarding the f

irst interview, w e also hold that the trial court did not abuse its discretion when it admitted the excerpts of the first interview. We overrule Appellant’s first and second issue s on appeal

. V. This Court ’ s Ruling
We affirm the judgment of the trial court.

MIKE WILLSON August 31, 2016 JUSTICE Do not publish. See T EX

. R. A PP

. P . 47.2(b). Panel consists of: Wright, C.J., Willson, J ., and Bailey, J.