Opinion
No. 05-06-01416-CR
Opinion Filed December 18, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-36417-KSV.
Before Justices MORRIS, WRIGHT, and MOSELEY. Opinion By Justice WRIGHT.
MEMORANDUM OPINION
Jose Jimenez appeals his conviction for possession with intent to deliver 400 grams or more of methamphetamine. After finding appellant guilty, the jury assessed punishment at eighteen years' confinement and a $400 fine. In three issues, appellant contends the trial court erred by (1) admitting his oral and written statements into evidence, and (2) failing to make written findings of fact and conclusions of law regarding the voluntariness of his statements. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the trial court erred by admitting Special Agent Kenny Adames's testimony that appellant told him "on two occasions that he knew the drugs were in the truck." According to appellant, his oral statement should not have been admitted into evidence because it was made while he was in custody and it was not electronically recorded. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (Vernon 2005) (prohibiting use of oral statement made as result of custodial interrogation unless electronic recording is made of statement, Miranda warnings are given, and accused knowingly, intelligently, and voluntarily waives rights). To preserve this complaint for our review, appellant was required to make a timely and specific objection, followed by an adverse ruling. See Tex. R. App. P. 33.1(a); Little v. State, 758 S.W.2d 551, 564 (Tex.Crim.App. 1988); Reed v. State, 227 S.W.3d 111, 117 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd); Hall v. State, 124 S.W.3d 246, 248 (Tex.App.-San Antonio 2003, no pet.). Here, appellant did not object to Adames's testimony during direct examination. It was not until recross-examination that defense counsel, outside the presence of the jury, stated "this is probably my bad because I was a little confused as to how the testimony came about, but now I realize I probably should have objected and I'm going to object now on the basis that under I think it's-under the Code of Criminal Procedure, if a defendant is in custodial interrogation, nonetheless even after he's been Mirandized, those statements have to be recorded somehow . . . Now I missed that objection. I'm objecting to it now." Because appellant did not timely raise his complaint with the trial court, appellant has failed to preserve error for our review. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred by admitting his written statement into evidence because it was not signed. Again, we disagree. A written statement made by an accused as a result of custodial interrogation is not admissible as evidence in a criminal proceeding unless it is shown on the face of the statement that the accused was given the warnings contained in article 38.22 section 2. See Tex. Code Crim. Proc. Ann. art. 38.22, § (2) (Vernon 2005). A "written statement" is a statement "signed by the accused or a statement made by the accused in his own handwriting or, if the accused is unable to write, a statement bearing his mark, when the mark has been witnessed by a person other than a police officer." Tex. Code Crim. Proc. Ann. art. 38.22, § (1) (Vernon 2005). In this case, appellant objected to the written statement because it was not signed. Adames testified he saw appellant write the statement and "write the little Xs with little Js to make sure that nothing else would be added" to the statement. After determining the complained-of statement was written by appellant and had his mark, the trial court overruled appellant's objection to the lack of a signature. Because appellant wrote the complained-of statement, it meets the statutory requirements of article 38.22 section 1. To the extent appellant contends an "unsigned written confession is per se involuntary and inadmissible," we cannot agree. Article 38.22 specifically provides for the admission of an unsigned, handwritten statement providing the required warnings are shown on the face of the document. It follows then, that an unsigned written confession is not per se involuntary. We overrule appellant's second issue. In his third issue, appellant contends the trial court erred by failing to make the written findings regarding voluntariness required by article 38.22 section 6. Again, we disagree. The Texas Code of Criminal Procedure requires a trial court to enter written findings of fact and conclusions of law that specifically support its conclusion that a defendant's statements were voluntary. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005). However, when as here, the record shows that an appellant failed to specifically object to the admissibility of a statement as being involuntary and did not present any evidence on the issue, the trial court need not make findings of fact and conclusions of law pursuant to article 38.22 section 6. See Lindley v. State, 635 S.W.2d 541, 544-45 (Tex.Crim.App. [Panel Op.] 1982); Miller v. State, 635 S.W.2d 269, 273-74 (Tex.App.-Dallas 1984, pet. ref'd); Braddock v. State, 5 S.W.3d 748, 753 (Tex.App.-Texarkana 1999, no pet.); Jones v. State, 859 S.W.2d 537, 541 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). At trial, appellant's untimely objection to admission of his oral statement was that it was unrecorded. He objected to the written statement because it was not signed. Appellant did not specifically object to the voluntariness of either statement. Thus, the trial court was not required to make findings of fact and conclusions of law regarding the voluntariness of the statements. We overrule appellant's third issue. Accordingly, we affirm the trial court's judgment.