Tigner v. State

MeCORMICK, Presiding Judge,

dissenting.

I respectfully dissent to the majority’s disposition of appellant’s first point of error.

The obvious purpose of Article 38.22, Section 3(a)(5), V.A.C.C.P., is to provide the attorney representing the defendant enough time to review the “copy” of the electronically recorded statement in order to adequately prepare for trial or any pretrial hearings. See Article 1.26, V.A.C.C.P., (provisions of the Code of Criminal Procedure shall be liberally construed so as to attain the objects intended by the Legislature); see also Tigner v. State, 928 S.W.2d 540 (Tex.Cr.App. 1996) (purpose of the twenty day requirement is to provide defense counsel with adequate time to prepare possible challenges to the admissibility or credibility of recorded statements offered by the State). Obviously this purpose was achieved in this case as appellant has failed to show or even allege any prejudice to his right to a fair trial from the State’s alleged noncompliance with Article 38.22, Section 3(a)(5). The spirit and underlying purpose of the law has been satisfied here. I believe the majority would even agree with most, if not all, of this.

The majority concludes the meaning of “proceeding” in Article 38.22, Section 3(a)(5), is ambiguous. I disagree. Article 38.22, Section 3(a)(5), provides:

“No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless[:] not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.” (Emphasis Supplied).

The State argues, and I agree, that the term “proceeding” refers to “criminal proceeding.” Read this way, it is clear the Legislature intended “criminal proceeding” to refer only to those phases of a criminal prosecution at which an electronically recorded oral statement “shall be admissible against the accused.” Since an electronically recorded oral statement is not admissible against an accused during voir dire, then voir dire is not a “criminal proceeding” for purposes of Article 38.22, Section 3(a)(5). See also Article 36.01(a)(6), V.AC.C.P., (setting out that part of the proceeding during which an electronically recorded statement is “admissible against an accused”). This is what the “plain” language of Article 38.22, Section 3(a)(5), means. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Cr.App.1991).

In addition, under Article 36.01(a), Y.A.C.C.P., a criminal prosecution does not become a “proceeding” until the jury has been empaneled and jeopardy attaches. See also McElwee v. State, 589 S.W.2d 455, 457 (Tex.Cr.App.1979). A jury is empaneled and jeopardy attaches after the completion of voir dire. Based on the foregoing, I would hold voir dire is not part of a “criminal proceeding” for purposes of Article 38.22, Section 3(a)(5). Therefore, the State timely produced appellant’s electronically recorded *550 statement and the trial court did not err to admit the statement into evidence.

I also would hold appellant waived any appellate complaints about the admission of the statement on the basis of the State’s noncompliance with Article 38.22, Section 3(a)(5). The record in this case reflects appellant objected at the January 28, 1994, suppression hearing to the admissibility of the electronically recorded statement on the basis of the State’s noncompliance with the twenty day requirement in Article 38.22, Section 3(a)(5). However, appellant did not insist at this hearing that his right under Article 38.22, Section 3(a)(5), to enough time to review the statement was being violated. See Tex.RApp.Proc. 52(a) (to preserve a complaint for appellate review, a party must state the specific grounds for the ruling he desires the court to make); Article 1.26; Marin v. State, 851 S.W.2d 275, 279 (Tex.Cr. App.1993) (most rights are waived if not insisted upon by the party to whom they belong). He made no claim he needed more time to prepare for the suppression hearing or for trial. And, he never requested a continuance of the suppression hearing or a trial continuance so he could have more time to review the statement. He objected to the admissibility of the statement at trial solely on the basis of the State’s noncompliance with Article 38.22, Section 3(a)(5).

Since the purpose of Article 38.22, Section 3(a)(5), is to provide a defendant with enough time to review the statement, then the defendant should object that he has not had enough time to review the statement, if the basis of his objection is the State’s noncompliance with Article 38.22, Section 3(a)(5). See Article 1.26, V.A.C.C.P., (provisions of the Code of Criminal Procedure shall be liberally construed so as to attain the objects intended by the Legislature). In light of the purpose of Article 38.22, Section 3(a)(5), I would hold appellant’s objection to the admissibility of the statement solely because of the State’s noncompliance with Article 38.22, Section 3(a)(5), preserved nothing for review. See Tex.R.App.Proc. 52(a).

More importantly, appellant also did not object at the January 28, 1994, suppression hearing to the trial court’s deferring a ruling until trial on appellant’s suppression-hearing objection to the admissibility of the statement. However, appellant now complains on appeal that his statement was inadmissible at trial because the trial court did not require the State to provide appellant with a copy of the statement in a timely manner. But, had appellant timely pursued his suppression-hearing objection to a ruling, then the trial court would have had an opportunity to make a ruling requiring the State to remove the basis of appellant’s objection to the statement by the time the State offered it into evidence at trial. Cf. Norris v. State, 902 S.W.2d 428, 446 (Tex.Cr.App.1995). Therefore, on this record, I would hold appellant’s failure to object to the trial court’s refusal at the.suppression hearing to rule on his objection to the admissibility of the statement waived any appellate complaints about the admissibility of the statement on the basis of the State’s noncompliance with Article 38.22, Section 3(a)(5). See Tex.RApp.Proc. 52(a) (if the trial court refuses to rule on an objection, an objection to the court’s refusal to rule is sufficient to preserve the complaint); Cf. Norris, 902 S.W.2d at 446 .

I respectfully dissent.

MEYERS and KELLER, JJ., join this dissent.