NO. 07-04-0299-CR IN THE COURT OF APPEALS FOR THE SEVENTH JUDICIAL DISTRICT

AT AMARILLO PANEL C AUGUST 18, 2005

__________________________ SAMUEL JACOB DEAN, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

___________________________ FROM THE 286 TH DISTRICT COURT OF HOCKLEY COUNTY NO. 03-08 -5565; HO NORABLE HAROLD PHELAN, JUDGE

__________________________ Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORAND UM OPINION Appella nt, Samuel J acob Dea n, appea ls his co nviction fo r the offense of manslaughter

and sentence of 20 years confine me nt and a $10,000.00 fine. Overruling appella nt’s issu es, we af firm. On August 21, 2003, appellant and Justin Willeby were involved in an altercation at the City of Levelland swimming pool. Du r i ng the altercation, Willeby was struck by appellant

on the temple causing him to fall and strike his head on the concrete pool curtain.1 Further r eference to provisions of the Texas Code of Criminal Procedure will be by referenceto “artic le ___”.

2 “Fist loading” is the process of making the fist harder by placing an item inside the fist. -2- As a result of the injuries sustained in this altercation , Willeb y died. The State , thereafter, indicted appella nt for theoffense of murder. Appellant

filed a pre-trial motion to suppress certain statements made by appellant contending that the statements were rendered inadmissible becausethe state ments wer e the result of custodial interrogation and were obtained before app el lant was properly warned of his ri ghts. See T EXAS C RIM . P ROC
. C ODE A NN . art. 38.22 § 2(a) (Vernon 20 05). 1 Neither party disputes that appellant was in custody at the time he made the conte sted statements, but the State contends that the statemen ts were given spontaneo usly and were notthe resul t of inter rogation . The tri al court advised the parties that it would delay rul ing on the motion until the contested statements were offered at trial. During the trial, the State questioned Detective Albert Garcia about a knife that was recovered from appe llant’s younger b rother. Th e State asked Garcia if appellant made any statements

at the time the knife was d iscovere d. Appell ant re-urg ed his mo tion to suppress, which the Court overruled af ter hearin g arguments of counsel. Garcia then testified that appellant said that he had given the knife to his little brother to hold. Garcia also testified regarding “fist loa ding.” 2 Appellant objected to this testimony contending that expert testimony was required and that Garcia was not qualified. The trial court overruled appellant’s objection and allowed the testimony.-3-

Later in the trial, the State offered the testimony of Officer Cogdell. Cogdell testified thatappellant and his younger brother asked wh y theywere being d etained and they were informed that the police were investigating a possib le aggravated assault involving brass knuckles. Over appellant’s objection, Cogdell testified that appellant then spontaneously admitted hitting Willeby, but denied using brass knuckles. Cogde ll testified that he then asked appella nt if he w

ould ex plain w hat happe ned. According to Cogdell, appellant then, again, admitted hitting Willeby in the face, but den ied using brass knuckles. Byhis app eal, app ellant p resents fo ur issues . Appell ant conte nds the tr ial cour t erred in admitting appellant’s oral statement s made in violati on of arti cle 38.2 2 and theFifth Amen dment to th e United States C onstituti on. Appe llant fur ther conte nds the tr ial cour t erred in admitting Garcia’s “ fis t loading” testimony because the State failed to properly designa te Garcia as an expert witness in vio l ation of article 39.14. Finally, appellant contendsthat Garci a was no t qualifi ed to test ify as an expert o n “fist lo ading.” Appell a nt’s first two issues contend that the trial court erred in admitting three statements

that he m ade to th e police . Appell ant c ontends that thes e statemen ts were made as the result of custodial interrogation and in violation of article 38.22 and his Fift h Amendment rights.
When reviewi ng trial court rulings on motio ns to sup press, ap pellate courts aff ord almosttotal deference to trial court determinations of historical facts an d to decisions involving mixed questions of law and fact if the resolution of those questions depen ds on
an evaluat ion of cr

edibili ty and de meanor. Guzman v. State , 995 S.W.2d 85, 89-4-

(Tex.Crim.App. 1997). Mixed questio n s of law and fact not dependent on evalua tion of credibil ity

and deme an or are reviewed de novo

. Id . The ad missibil ity of ora l stateme nts under article 38.22 con sti tutes a mix ed questi on of law and fact. Romero v. State , 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Accordingly, in the present case, we give appropri ate deference to the trial court’s determination of historical facts, but we review de
novo whether those historical facts e stablish that app ellant’ s statemen ts were the result of custodial interrog ation. See Loserth v . State , 963 S.W.2 d 770, 77 4 (Tex.C rim.App. 1 998). See generally Rhode Island v. Innis , 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L.Ed.2d 297 (1980); Miranda v. Arizona , 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Ata suppression hear ing , the trial judge is the sole and exclu sive trier of fact and judge of the credibility of witnesses and the wei g ht t o be giv en their testimony

. State v. Ross , 32 S.W.3d 853, 855(Tex.Cri m.App. 20 00). If no explic it f indingsof fa ct are made bythe trial court, we will assume that the trial court made implicit findings of fact which a re supported by the re cord and which su pport theconclus ion of th e court. Id

. Appellant’s first two is sues cont end that the admission of his statements violated both article 38.22 and the Fifth Amendment to the United States Constitution because the statements

were the result of custodial interrogation. The State co ncedes, in its appe llate brief, that app ellant was in cus tody whe n he gave each sta teme nt relevant to this issue. Therefore, the pivotal question is whether the statements we re made a s a result of interrogation. Interrogation must reflect an effort to obtain inf ormati on throug h some
measure of compulsion distinct from any c omp ulsive effect inherent in being placed in3 We acknowledge that Garcia’s testimony was somewhat equivo cal on this point,

however, the trial court wa s fre e t o believe Garcia’s testimony that the police did not interroga te appel lant. See Ross , 32 S.W.3d at 855.

4 We note that no evidence was presented that wou ld t end to estab lish that appellant’s statement

s were the result of custodi al interr ogation. Appell ant did n ot testify nor did appellant inquire about the statements when his brother testified. -5- custody. Smith v. S tate , 60 S.W.3d 885, 889 (Tex.App.–Amarillo 2001, no pet.). The record reflects that both Garcia and Cogdell testified that ap pellant made the first two challenged statements spontaneously and not in response to any police questioning. 3 Thus, an implicit finding by the trial court that appellant’s statements were not the result of interrogation is supported by the record and supports the trial court’s denial of appellant’s motion. 4 See Ross , 32 S.W.3d at 855. Since the trial court implicitly found that appellant
was not questioned, we conclude that the evidence doesnot establish that appellant was subjected to an “interrog ation en vironmen t,” see Innis , 446 U.S. at 299, nor that appellant
was compelled to make the stateme nts due to any compulsion beyond the inherent compulsive effect of being placed in custody, see Smith , 60 S.W.3d at 889. Accordingly,
we hold that these statements were volunteered b y appell ant and were not the result of interroga tion.
The record indicates that, prior to appellant making hisfinal statement, Cogdell had read appellant his Miranda warnings. Cogdell testified he t hen asked appellant what happened. Although appellant contends that admission of this third statement constitutes
a constitutional violation of the rule in Miranda and a violation of article 38.22, it is apparent thatthe error, if any, is that this oral statement was admitted without bei ng recorded

. See5 As noted above the record indicates Cogdel l gave the warning s to appe llant be fore

the third statement. There is no evidence that appellan t attempted to invoke his Miranda rights; nor does appellant contend, on appeal, that h e attempted to invoke his rights. Thus, we conclude that appellant’s Miranda rights were not violated. -6- article 38.22 § 3. 5 Assuming, without deciding, that the trial court erred in admitting this statement, our review of the record reveals that admission of appellant’s final oral statement had no or

a slight impact on the jury as it was simply cumulative of a prior oral statem e ntmade by t he appel lant that was not the resul t of custo dial in terrogati on. See Nonn v. S tate , 117 S.W. 3d 874, 8 82-83 (Tex.Crim.A pp.2003)

. Appellant’s t hird issu e argues that the t rial cou rt erred i n admitti ng the ex pert testimony of Garcia concerning “fist loading” becausethe Statefailed to designate Garcia
as an expert and failed to disclose the subject of his expertise in violation of article 39.14.
To preservean issue

for appe llate review, the complaining party must make a timely objection to the trial court that properly states the specific grounds for the desired ruling if theyare not a pparent f rom the co ntext of the reque st, object ion, or mo tion. T EX . R. A P P . P. 33.1(a)(1 ); Butler

v. State , 872 S.W.2d 227, 236 (Tex .Crim.App . 1994). Preservation of
error is a s ystemi c requirement that a first level appellate court should review on its own motion. See Hughes v . State , 878 S.W.2d 142, 151 (Tex.Crim.App. 1992) (o p. on reh ’g); Jones v. State , 942 S.W. 2d 1, 2 (Tex.Crim.App. 1997). The complaint made on appeal must comport with the complaint made in the trial court, Heidelb erg v. State , 144 S.W.3d 535, 537(Tex.Cri m.App. 20 04), or th ere is no thing pre served fo r review. Id

. at 543. See also Euziere v. State , 648 S.W. 2d 700, 7 03-04 (Tex.Crim.A pp. 1983 ).-7-

On appeal, a ppellan t c ontends that Garcia was not identified by the State as a potential expert witness, in contravention of a tr ial court discovery order, and therefore, Garcia sh ould not

have bee n allowed to offer opinion testimony. At trial, appellant’s only objection to Garcia’s expert testimony was that he was not qualified to offer expert opinion testimony regardin g “fist lo ading.” Appellant never objected that Garcia wasnot disclosed
as an expert when his testimony was offered at trial. Failure of appellant to a dvis e the court of the specific

objectio n now co mplained of resul ts in there being nothing preserved for the court

to review on app eal. Heidelb erg , 144 S.W. 3d at 543 ; Euziere , 648 S.W.2d at 703-04. Appellant’s fourth issue contends that Garcia was not qualified to testify as an expe rt
on “fist loading.” We review a tria l court’s decision to admit or exclude evidence for an abuse of discre tion. Weatherre d v. State , 15 S.W. 3d 540, 542 (Tex.Cri m.App. 20 00). A trial court abuses its discretion only when the reviewing court can say with confidencethat
no reasonable perception of the matter under consideration could h ave yielded the decision made by the trial co urt. See Montgomer y v. State , 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g). If the trial court’s decision is correct on any theory of law applicable to the case, the decision wi ll be sustaine d. See Ross , 32 S.W.3d at 855-56. As noted above, preserv ation of error requires a timel y objection be made which specifically ide ntifies
an appro priate legal basis for the objec

tion. Butler , 872 S.W. 2d at 236 . Appell ate arguments

must comport with the objection made at trial. Heidelb erg , 144 S.W.3d at 537.
A ppell antcontends, on appeal, that Garcia’s testimony was neither releva nt nor reliable citing t his court to Texa s Rule of Evi dence 702 and Jackson v . State , 17 S.W.3d6 We acknowledge t hat an ex pert’s qu alificat ions con stitutes p art of thereliabi lity

determination and we will address this specific objection below. In the present context, we refer to reliability to mean proof that the concept of “fist loading” is generally accepted and thatGarcia’s

testimon y was con sistent w ith this generall y accepte d concep t. See Kelly v. State , 824 S.W. 2d 568, 5 73 (Tex. Crim.App . 1992). -8- 6 64, 670 (Tex.Crim.App. 2000). We must, therefore, determine whether appel lant’ s objection communicated to the trial judge what the appellant wanted, identified the specific legal basis for the requested relief, and was clear enough for thejudge to understand the objection at a time when the court was in a position to do som ething a bout it. Butler , 872 S.W.2d at 236. However the record reveals that appe llant never obj e cted to Garcia’s testimony based on relevance or reliability. Appellant’s on ly objection related to Garcia’s qualifications to testif

y about th e concep t o f “fist l oading.” We conclude that appellant’s trial objection to Garcia’s qualificatio ns is di fferent than and will not support appellant’s relevance and reliability issues on appe al. 6 See Heidelb erg , 144 S.W.2d at 543. Appellant

further contends that Garcia was not qualified to offer expert op inion testimony regarding the concept of “fist loading” and, thus, the trial court erred in admitting this testimony. The decision of a trial court to allow expert testimony is reviewed for abuse of discreti on. Weatherred , 5 S.W.3d at 542. Appellant’s contention tha t Garcia was not qualified as an expert in “fist loading” is base d on Garcia’s testimony that he had only five minutes of training in the application of “fist loadi ng.” Howeve r, the record reveals that Garcia had been a police officer for ove r 11 years , had a bachelor’s degree in law enforceme nt, held a Master Peace Officer’s certificate i ssu ed by the State of Texas, had specialized training in hand-to-hand or close combat, and had received speci f ic training regarding the concept of “fi st loadi ng.” See T EX . R. E VID . 7 02. Base d upon th e entire-9-

record and after applying the standard of review for abuse of discretion, we cannot say that the trial court erre d in admi tting Garc ia’s tes timony re garding “fist loa ding.” Having considered all of appellant’s issues, we affirm the judgm ent of thetrial co urt.

Mackey K. Hancock Justice

Do not pu blish.