Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 369TH JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS
PER CURIAM ORDER
issues, Edward Caballero appeals his conviction for unlawful
possession of a firearm by a felon. In his second and third
issues, Appellant contends that the trial court failed to
make findings of fact and conclusions of law related to
Appellant's objections to the State's Exhibits 13 and
14. He argues that such findings of fact and conclusions of
law are required by Article 38.22, section 6, of the Texas
Code of Criminal Procedure. The State asserts that Appellant
failed to specifically object to the voluntariness of the
challenged statements or present any evidence on the
issue. The State further argues that the trial
court's failure to file findings of fact and conclusions
of law is harmless error.
second issue addresses State's Exhibit 13, which is a
recording of a telephone conversation between Christian
Clements and Appellant's wife. Appellant is heard in the
the State offered Exhibit 13 into evidence, Appellant
objected that the exhibit violated Texas Rule of Evidence
803(8)(A)(ii) and (iii). Appellant further objected that the
State failed to lay the proper predicate as there was no
showing that (1) the recording device was capable of taking
testimony, (2) the operator of the device was competent, and
(3) the recording was authentic. The trial court heard
argument from the State and Appellant on the issue. The trial
court then recessed the case until the following morning so
that both sides could conduct further research on the issue.
next morning, the trial court heard additional argument
regarding the admissibility of Exhibit 13. Appellant again
asserted objections to the State's Exhibit 13, stating
"Your Honor, one of the main objections is that it's
clearly hearsay and not subject - it denies my client's
Sixth Amendment right to confrontation." The trial court
overruled Appellant's objections.
the jury present, the State then reoffered Exhibit 13.
Appellant renewed his previous objections.
on the record before us, we agree with the State that
Appellant never objected to the voluntariness of his
statements found in Exhibit 13. Because Appellant never
raised a question as to the voluntariness of his statements
contained in Exhibit 13, the trial court had no obligation to
conduct a hearing or provide findings of fact and conclusions
of law as to Exhibit 13. See Tex. Code Crim. Proc.
Ann. art. 38.22, § 6 (West Supp. 2015). Thus, issue two
is not preserved for appellate review.
third issue addresses Exhibit 14. Ryan Toliver, an
investigator with the Anderson County Sheriff's Office,
conducted a custodial interview of Appellant. State's
Exhibit 14 is a recording of that interview.
trial, Appellant filed a "motion to suppress
statements." In his motion, Appellant asserted that any
statements that he made to law enforcement officers were
involuntary, coerced, and enticed. We have no record of a
hearing or a ruling on Appellant's motion to suppress.
the State offered Toliver's recording into evidence,
Appellant objected that there was no showing that he waived
his Miranda rights. Appellant subsequently clarified
his objection, "Judge, again, just to make sure, the
Court is clear my objection has to do with the fact that
there's nothing on the recording that indicates that
[Appellant] knowingly, intelligently, and voluntarily waived
his rights as set out in that warning." The trial court
overruled Appellant's objection.
his testimony, Toliver agreed that Appellant acknowledged
understanding his Miranda rights. He testified that
Appellant never said that he did not want to talk and never
requested to have an attorney present.
disagree with the State that Appellant failed to object to
the voluntariness of his statements contained in Exhibit 14.
To the contrary, the record demonstrates that Appellant
challenged the voluntariness of his statements to Toliver.
See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim.
App. 2004) (When the voluntariness of a statement is
challenged, the trial court must "make written fact
findings and conclusions of law as to whether the challenged
statement was made voluntarily."); see also Leza v.
State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011) (State
has burden to establish voluntariness of a waiver of
Miranda rights). Accordingly, issue three is
preserved for our review.
the filing of findings and conclusions, the code of criminal
procedure contains the following provision:
In all cases where a question is raised as to the
voluntariness of a statement of an accused, the court must
make an independent finding in the absence of the jury as to
whether the statement was made under voluntary conditions. If
the statement has been found to have been voluntarily made
and held admissible as a matter of law and fact by the court
in a hearing in the absence of the jury, the court must enter
an order stating its conclusion as to whether or not the
statement was voluntarily made, along with the specific
finding of facts upon which the conclusion was based, which
order shall be filed among the papers of the cause. …
In any case where a motion to suppress the statement has been
filed and evidence has been submitted to the court on this
issue, the court within its discretion may reconsider such
evidence in his finding that the statement was voluntarily
made and the same evidence submitted to the court at the
hearing on the motion to suppress shall be made a part of the
record the same ...