IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0917-08

ANGEL RESENDEZ, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and

WOMACK, KEASLER, HERVEY and COCHRAN, JJ., joined. HOLCOMB, J., filed a

dissenting opinion in which MEYERS and JOHNSON, JJ., joined.

O P I N I O N

The appellant gave a videotaped statement in which he confessed to shooting Amanda

Garza. He later pled guilty to her murder, and the trial court found him guilty and assessed

punishment at ninety-nine years in prison. The Fourteenth Court of Appeals reversed and

remanded, holding that the trial court erred when it denied the appellant’s motion to suppress

the confession because the police had failed to memorialize the appellant’s Miranda

warnings on the videotape as required by Code of Criminal Procedure Article 38.22, Section
Resendez — 2

1

Resendez v. State, 256 S.W.3d 315, 336–37 (Tex. App.—Houston [14th Dist.] 2007); TEX.

CODE CRIM. PROC. art. 38.22, § 3(a)(2); Miranda v. Arizona, 384 U.S. 436 (1966).

2

 TEX. R. APP. P. 66.3(c).

3(a)(2). We granted the State’s petition for discretionary review in order to determine (1) 1

whether the court of appeals was correct in holding that the appellant preserved his Article

38.22 argument for appeal, and (2) whether the appellant was in custody when he gave his

videotaped confession. Because we hold that the appellant did not preserve his Article 2

38.22 argument for appeal, we reverse the court of appeals’s judgment.

BACKGROUND

Videotaped Confession

During the investigation into the murder of Amanda Garza, the appellant gave two

videotaped statements to the police. In the first statement, the appellant alleged that another

man, Steve Perez, had fired the four shots that killed Garza. Before this statement, the police

gave the appellant Miranda warnings. Two days later, the appellant gave a second statement

in which he confessed to firing the first shot at Garza. The police did not give the appellant

Miranda warnings either before or during this second statement.

Motions to Suppress

The appellant filed two motions to suppress his second statement. The first motion,

filed by the appellant’s first attorney in September of 2003, contained both constitutional and

statutory arguments:
Resendez — 3

3

 Emphasis added.

! At the time of any conversations between [the appellant] and law

enforcement officers, [the appellant] was (a) under arrest or (b)

substantially deprived of freedom by the conduct of the law

enforcement officers and the circumstances surrounding the arrest or

deprivation of freedom.

! Any statements made by [the appellant] were involuntary and were

coerced and enticed from [the appellant].

! [The appellant] was deprived of his right to counsel and [he] did not

make an intelligent and knowing waiver of that right.

! The statements made by [the appellant] were tainted by the illegal and

unlawful detention and arrest of [the appellant], in violation of [his]

constitutional rights under the Fifth [sic: Fourth?] and Fourteenth

Amendments of the Constitution of the United States, Article I, Section

9 of the Texas Constitution, and Article 38.23 of the Texas Code of

Criminal Procedure.

! Statements made by [the appellant] were taken without the safeguards

required by and in violation of Article 38.22 of the Code of Criminal

Procedure.3

! The admission of statements by [the appellant] is a violation of [his]

rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments

to the United States Constitution, Article I, Sections 9 and 10 of the

Texas Constitution, and Articles 1.05 and 38.23 of the Texas Code of

Criminal Procedure.

Without having obtained a suppression hearing, the appellant retained new counsel.

And in October of 2004, thirteen months after the filing of the first motion, the appellant’s

new attorney filed a second motion to suppress. This second motion contained only

constitutional arguments:
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4

 Although the appellant included the word “statutes” in this final bullet-point, it appears that

he was referring to the constitutional provisions previously listed. If he intended to refer to any

statutory provisions, he never identified them.

! During the investigation of this case, the [appellant] has given a

statement which the State of Texas intends to use against him. This

statement is a confession [in which the appellant] admits to shooting the

complaining witness without legal justification.

! It is the position of the [appellant] that this confession was elicited in

violation of his rights as guaranteed by the Constitution[ ] of the United

States, under the Fifth Amendment, and the Constitution of the State of

Texas, Article I. Further, [the appellant] argues that this confession

was taken contrary to the manner in which the Criminal Courts have

interpreted those statutes.

4

In November of 2004, shortly after the filing of the second motion, the trial court

conducted a suppression hearing. During the hearing, the appellant argued that his second

videotaped statement was “inadmissable, essentially an involuntary statement given by the

[appellant] not understanding certain rights that had been guaranteed him both under

Miranda and our State Constitution[.]” The appellant never referred directly to Article

38.22. The record of the hearing reveals the following colloquy:

[Appellant’s Counsel]: Again, there’s nothing on [the transcript of the

videotape] which would be reflective of him being read his Miranda warnings

at the beginning, that it’s a verbatim transcript of what he simply said. They

did not Mirandize him on the tape, which they did not do, that’s clear. The

Court’s had an opportunity to review that tape, [the transcript] is not going to

be reflective of any Miranda warnings given thus far.

THE COURT: I understand, counsel. You have made a fine point of law.

Later in the hearing, the State’s counsel said, “We will stipulate nowhere on the videotape
Resendez — 5

5

 TEX. CODE CRIM. PROC. art. 38.22, § 3(a)(2).

6

Resendez v. State, No. 14-05-00098-CR, 2006 Tex. App. LEXIS 10138, at *1 (Tex.

App.—Houston [14th Dist.] Nov. 28, 2006) [hereinafter Resendez I], withdrawn and overruled, 256

S.W.3d 315 (Tex. App.—Houston [14th Dist.] 2007).

of State’s Exhibit No. 2-A is there Mirandized warnings [sic] given to this defendant[.]” The

trial court ultimately denied the motion to suppress.

Court of Appeals

On direct appeal, the appellant argued that the trial court erred in denying his motion

to suppress because “the videotape does not contain a waiver of appellant’s rights under

Miranda and the state confession statute” and because “the videotape does not contain the

warnings required by Article 38.22 of the Code of Criminal Procedure.” Code of Criminal

Procedure Article 38.22, Section 3(a)(2) provides that oral statements made during custodial

interrogation are not admissible as evidence unless “prior to the statement but during the

recording the accused is given the warning in Subsection (a) of Section 2 above and the

accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.”5

The court of appeals issued a published opinion in which it reversed the appellant’s

conviction. The State then filed a motion for rehearing. The court of appeals overruled the 6

motion, but it withdrew its original opinion and issued a substitute opinion in which it again

reversed the appellant’s conviction; it held that, because the appellant was in custody when

he gave his second statement, the absence of Miranda warnings rendered the statement
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7

Resendez v. State, 256 S.W.3d 315, 327 (Tex. App.—Houston [14th Dist.] 2007) [hereinafter

Resendez II].

8

 Resendez II, supra, at 333.

9

Id. at 336–37.

inadmissible as a matter of federal and state constitutional law.7

After the court of appeals issued its substitute opinion, the State filed a second motion

for rehearing in which it argued that it was irrelevant for constitutional purposes whether the

appellant was in custody during the second interview because the Miranda warnings given

during the first interview remained in effect during the second interview two days later. The

appellant responded by reiterating that even if the Miranda warnings remained in effect two

days later, the statement was inadmissible as a matter of state law under Article 38.22,

Section 3(a)(2), because the police did not memorialize any Miranda warnings on the

videotape.

Although the court of appeals did not grant rehearing, it did issue a supplemental

opinion. In the supplemental opinion, the court of appeals concluded that the Miranda

warnings that the police gave to the appellant before his first statement remained in effect

during his second statement, and thus there were no violations of federal or state

constitutional law. But the trial court nevertheless erred in denying the motion to suppress 8

the appellant’s second statement, the court of appeals held, because the police did not record

any Miranda warnings on the videotape, as required by Article 38.22, Section 3(a)(2). The 9
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10

Id. at 335.

11

Id.

12

Id.

13

 TEX. R. APP. P. 33.1(a)(1)(A).

court of appeals rejected the State’s argument that the appellant had not preserved the Article

38.22 claim for appeal, holding that the appellant had invoked the Article 38.22 violation

with sufficient specificity during the suppression hearing. Moreover, the court of appeals 10

held, it was clear that the trial judge and opposing counsel understood that the appellant was

making this statutory argument: 

11

We need not engage in speculation as to whether the court was aware of

appellant’s complaint. The trial court’s statement [that it understood

appellant’s argument] and the prosecutor’s stipulation [that nowhere on the

videotape are there Miranda warnings] indicate they both understood

appellant’s counsel was arguing a violation of the Code due to the absence of

Miranda warnings on the videotape. We find the argument made during the

suppression hearing was sufficient enough to put the trial court on notice

appellant was arguing a violation of Article 38.22, Section 3(a)(2).12

THE LAW

Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint is

not preserved for appeal unless it was made to the trial court “by a timely request, objection

or motion” that “stated the grounds for the ruling that the complaining party sought from the

trial court with sufficient specificity to make the trial court aware of the complaint, unless

the specific grounds were apparent from the context.” Likewise, under Rule 103 of the 13
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14

 TEX. R. EVID. 103(a)(1).

15

Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). 

16

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

17

Reyna v. State, 168 S.W.3d 173, 176-77 (Tex. Crim. App. 2005) (quoting 1 Steven Goode,

Olin Guy Wellborn III & M. Michael Sharlot, TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF

EVIDENCE: CIVIL AND CRIMINAL § 103.2 (2d ed. 1993), at 13–14). 

Texas Rules of Evidence, error may not be predicated upon a ruling which admits or excludes

evidence unless “a timely objection or motion to strike appears of record, stating the specific

ground of objection, if the specific ground was not apparent from the context.”14

The purpose of requiring a specific objection in the trial court is twofold: (1) to inform

the trial judge of the basis of the objection and give him the opportunity to rule on it; (2) to

give opposing counsel the opportunity to respond to the complaint. Although there are no 15

technical considerations or forms of words required to preserve an error for appeal, a party

must be specific enough so as to “let the trial judge know what he wants, why he thinks

himself entitled to it, and do so clearly enough for the judge to understand him at a time when

the trial court is in a proper position to do something about it.” The parties, not the judge, 16

are responsible for the correct application of evidentiary rules; in order to preserve a

complaint for appeal, the complaining party must have done everything necessary to bring

the relevant evidentiary rule and its precise and proper application to the trial court’s

attention.17
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18

Zillender v. State, supra.

19

Lankston v. State, supra; see also Ex parte Little, 887 S.W.2d 62, 66 (Tex. Crim. App. 1994)

(“It is only when the nature of a defendant’s complaint is unclear that we should consider his

objection waived.”).

20

 TEX. CODE CRIM. PROC. art. 38.22, § 3.

But we cannot consider just the specific complaint in question; we must also look at

the context. When the correct ground for exclusion was obvious to the judge and opposing

counsel, no forfeiture results from a general or imprecise objection. But when the context 18

shows that a party failed to effectively communicate his argument, then the error will be

deemed forfeited on appeal.19

ANALYSIS

The Motions to Suppress

Neither of the appellant’s written motions to suppress preserved his Article 38.22

complaint for appeal. In the first motion, the appellant argued that the videotaped statements

“were taken without the safeguards required by and in violation of Article 38.22 of the Code

of Criminal Procedure.” This claim is insufficient in itself to preserve for appeal the specific

argument that police failed to memorialize his Miranda warnings on tape as required by

Article 38.22, Section 3(a)(2). Article 38.22 contains a number of subsections that could

have been applicable to the appellant’s videotaped statement. The appellant’s argument, 20

however, contained little more than a citation to the statute and did not bring the specific
Resendez — 10

21

See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (holding that the

appellant’s argument in his motion to suppress, that “any statements made by [the appellant] were

obtained in violation of his right to counsel and his right against self-incrimination as guaranteed by

U.S. Const. amends. V, VI, and XIV, and Tex. Const. art. I, §§ 10 and 19,” was too global in nature

to preserve for appeal the specific argument that the police had violated the appellant’s right to

counsel under the Fifth and Sixth Amendments by questioning him after he appeared before the

magistrate and requested counsel). 

22

Resendez II, supra, at 335.

23

Id.

violation of Article 38.22 to the trial court’s attention. In any event, the trial court never 21

ruled on the appellant’s first motion to suppress. The appellant’s second motion to suppress,

moreover, did not mention Article 38.22 at all, instead relying exclusively on constitutional

arguments.

The Suppression Hearing

Notwithstanding these deficiencies in the appellant’s motions to suppress, the court

of appeals held that the appellant alerted the trial court to his Article 38.22, Section 3(a)(2)

complaint during the suppression hearing when he asserted that the police “did not Mirandize

him on the tape.” The court of appeals also held that statements by the trial court and 22

opposing counsel indicated that they both “understood appellant’s counsel was arguing a

violation of the Code due to the absence of Miranda warnings on the videotape.” We do 23

not believe that this is an accurate interpretation of either the appellant’s argument or the

statements made by the trial court and opposing counsel.

Three of our more recent cases support the contention that a complaint that could, in
Resendez — 11

24

Keeter v. State, 175 S.W.3d 756, 757 (Tex. Crim. App. 2005).

25

Id. at 759; Brady v. Maryland, 373 U.S. 83 (1963) (holding that suppression of evidence

upon request, where the evidence is favorable to an accused and material to guilt or punishment, is

a violation of the Due Process Clause of the Fourteenth Amendment).

26

Keeter v. State, supra, at 760.

27

Id. at 760–61.

isolation, be read to express more than one legal argument will generally not preserve all

potentially relevant arguments for appeal. Only when there are clear contextual clues

indicating that the party was, in fact, making a particular argument will that argument be

preserved. For example, in Keeter v. State, the appellant filed a motion for new trial in which

he submitted evidence that he argued established his innocence: an affidavit in which the

complaining witness recanted her trial testimony, and an affidavit from the complainant’s

stepmother, the outcry witness, in which she said that she had told the prosecutor before the

trial that she did not believe the complainant’s allegations. The appellant argued that it 24

should have been apparent that he was making a Brady claim because it was “intertwined”

with the recantation evidence. We held, however, that “the factual issues may have been 25

intertwined, but the legal issues were not.” Because the broader context of the motion and 26

hearing suggested that the recantation evidence was offered to support an actual-innocence

argument, and because the appellant did not mention his Brady claim in his motion for new

trial or during the hearing, he did not preserve this argument for appeal.27
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28

Reyna v. State, supra, at 175.

29

Id. at 175–76.

30

Id. at 179.

31

Id. (quoting Clark v. State, 881 S.W.2d 682, 694 (Tex. Crim. App. 1994)).

Similarly, in Reyna v. State, the appellant sought to introduce evidence at trial of a

victim’s prior false accusation, arguing that he was offering the evidence for “credibility”

purposes, not to prove “the truth of the matter asserted” or “to go into her sexuality.” On 28

appeal, he argued that the trial court had erred by excluding this evidence because he was

denied his right to “fully cross examine critical witnesses, including but not limited to the

accusing witness”; the court of appeals resolved this issue in the appellant’s favor, citing two

cases relying on the Confrontation Clause. We held that, while the references to the “truth 29

of the matter asserted” and the victim’s “sexuality” clearly indicated arguments based on the

Rules of Evidence, the reference to “credibility” could have been a reference to either the

Rules of Evidence or the Confrontation Clause. Because the appellant did not “‘clearly 30

articulate’ that the Confrontation Clause demanded admission of the evidence, the trial judge

‘never had the opportunity to rule upon this rationale.’”

31

Finally, in Buchanan v. State, the appellant’s statement at the suppression hearing

closely mimicked the language of Code of Criminal Procedure Article 14.05, which provides
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32

Buchanan v. State, 207 S.W.3d 772, 777 (Tex. Crim. App. 2006); TEX. CODE CRIM. PROC.

art. 14.05.

33

Buchanan v. State, supra, at 777.

34

See Davidson v. State, 25 S.W.3d 183, 186 n.4 (Tex. Crim. App. 2000) (“[Article] 38.22

merely prescribes the various requirements that must be satisfied before a statement made

by an accused as a result of custodial interrogation will be admitted against him/her at trial.

That such requirements are not met does not mean that the statement was necessarily

obtained as a result of any legal or constitutional violation[.]”).

for an officer’s right to enter a residence when making an arrest without a warrant. This 32

Court, however, held that because the appellant’s broader argument centered on

constitutional claims, he had not preserved the Article 14.05 argument for appeal: “trial

counsel’s allusions to ‘consent’ and ‘exigent circumstances’ do not necessarily or exclusively

refer to Chapter 14, so as to make it ‘obvious’ that the appellant was raising it in addition to

his purely constitutional claim.”33

The statutory argument at issue in this case, the violation of Article 38.22, Section

3(a)(2), is legally distinct from the constitutional argument. Even if a suspect is given

Miranda warnings and his constitutional rights have not been violated, an oral confession

may still be inadmissible if the police fail to comply with the purely statutory requirement

that they capture the Miranda warnings on the electronic recording. The words “they did 34

not Mirandize him on the tape,” in isolation, could indicate that the appellant was

complaining that the police had not memorialized his Miranda warnings on videotape as

required by Article 38.22, Section 3(a)(2). In context, however, the record suggests that the
Resendez — 14

appellant was using the absence of videotaped warnings to show that he had not been

Mirandized at all, in violation of his constitutional rights. A review of the transcript of the

suppression hearing reveals that the appellant’s arguments centered on whether or not the

interrogation was custodial and whether the appellant voluntarily waived his rights: “We

would contend that statement should be inadmissible, essentially an involuntary statement

or a statement given by the [appellant] not understanding certain rights that had been

guaranteed him both under Miranda and our State Constitution[.]” He later stated that the

tape “is not going to be reflective of any Miranda warnings given thus far.” Nothing in the

appellant’s argument during the hearing indicates that he was specifically relying on the

statutory requirement that an electronic recording of an oral confession include a recording

of the Miranda warning itself. In light of his clearly and persistently articulated

constitutional argument, and the lack of a statutory reference in his second motion to

suppress, the appellant’s reference to the videotape is most likely part of his argument that

the police had violated his rights under the United States and Texas Constitutions by failing

to Mirandize him at any point during his custodial interrogation. 

After reviewing the record of the hearing, we cannot hold that the trial court and

opposing counsel understood the appellant to be making a claim based on Article 38.22,

Section 3(a)(2). In cases in which we have held that the trial record indicates that the correct

ground for complaint was obvious to the judge and opposing counsel, there have been

statements or actions on the record that clearly indicate what the judge and opposing counsel
Resendez — 15

35

Lankston v. State, supra, at 909.

36

Id.

37

 Ex parte Little, supra, at 66.

understood the argument to be. In Lankston v. State, for example, the appellant’s counsel did

not specifically identify the statutory provision he was relying on. The judge, however, was 35

able to identify the provision: “I just want all the attorneys to stay within the parameters of

38.07. I believe that’s what you’re referring to.” And in Ex parte Little, although the 36

appellant did not explicitly object to a mistrial on the grounds of manifest necessity, we held

that his complaint was obviously clear to the trial court because, following the mistrial, the

judge permitted the parties to present case law on manifest necessity and then granted them

time to prepare for a habeas corpus hearing. In these cases, it was appropriate for the 37

appellate court to reach the merits of the argument because it was clear that the trial court had

understood the argument and had a chance to rule on it as well. 

In the present case, the trial court stated, “I understand, counsel. You have made a fine

point of law.” This only indicates that the judge believed that he understood the appellant’s

argument, not which argument he believed the appellant was making. And the State’s

stipulation, far from being ambiguous, actually points to the constitutional argument: “We

will stipulate nowhere on the videotape of State’s Exhibit No. 2-A is there Mirandized

warnings [sic] given to [the appellant], but [the appellant] in the trial of Esteban Perez . . .
Resendez — 16

admitted that the statement given in 2-A was freely and voluntarily given.” The second half

of this statement indicates that the State was focusing on constitutional issues of

voluntariness, which have nothing to do with the statutory requirement that Miranda

warnings be captured on tape. The trial court did not have a fair opportunity to rule on a

specific Article 38.22 complaint. The State did not have a fair opportunity to oppose such

a complaint. Thus, neither of the two purposes undergirding our rules requiring specificity

in objections—to make sure that the trial judge understands what he is being asked to do, and

that the opposing party has a chance to actually oppose it—is vindicated by allowing the

appellant to raise his specific Article 38.22 complaint on appeal.

It is also worth noting that the circumstances surrounding the filing of the two

suppression motions and the subsequent hearing lend credence to the contention that the

appellant’s counsel was not making a claim based on Article 38.22, Section 3(a)(2), at the

suppression hearing. The first motion to suppress, which contained only a general mention

of Article 38.22, was filed by the appellant’s first attorney over a year before the second

motion to suppress was filed. The second motion to suppress, filed by the appellant’s second

attorney, reproduced two arguments made in the first motion to suppress, but left out the

others, including the reference to Article 38.22. The hearing itself occurred shortly after the

filing of the second motion. It appears that the parties understood that the purpose of the

hearing was to address issues raised in the second motion to suppress.

In the present case, there are no indications on the record to support the contention
Resendez — 17

that the appellant raised a claim based on Article 38.22, Section 3(a)(2), nor is there anything

on the record to support the contention that the trial judge or opposing counsel understood

the appellant to have made this claim.

CONCLUSION

Because we conclude that the appellant did not preserve his Article 38.22 argument

for appeal, we need not reach the State’s second ground upon which we granted review. We

reverse the judgment of the court of appeals and affirm the trial court’s judgment.

Delivered: October 21, 2009

Published