Martinez v. State

• Decision Date: 11 December 2002
• Docket Number: No. 344-02.,344-02.
• Citation: 91 S.W.3d 331
• Parties: Cerjio MARTINEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 331

91 S.W.3d 331

Cerjio MARTINEZ, Appellant, v. The STATE of Texas.

No. 344-02.

Court of Criminal Appeals of Texas.

December 11, 2002.

COPYRIGHT MATERIAL OMITTED

John P. Mobbs, El Paso, for Appellant.

Jeffrey L. Van Horn, First Assistant State's Attorney, Matthew Paul, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined.

The State indicted appellee, Cerjio Martinez, for aggravated perjury based upon the allegedly false content of his written "Sworn Statement to the Grand Jury." The trial court granted appellee's motion to suppress that statement because the State did not orally warn Mr. Martinez of his rights under article 20.17 of the Code of Criminal Procedure.¹ The State appealed the suppression order, and the court of appeals affirmed.² We granted review³ and hold that the court of appeals correctly declined to consider the State's argument, that article 20.17 did not apply, because the State never made this argument in the trial court. Nevertheless, we reverse and remand because the State's noncompliance with article 20.17, specifically its failure to orally inform Mr. Martinez of his Miranda rights, does not warrant the suppression of his written sworn statement that forms the basis of a perjury prosecution.

I.

In June 2000, the El Paso Times and local television channel KVIA reported that they had obtained a document that had been allegedly leaked to them by a confidential informant within the El Paso Police Department. The police department, later joined by the Texas Rangers, launched a criminal investigation into the matter. Mr. Martinez, a Deputy Chief of Police, eventually became a suspect. Texas Ranger Calvin J. "Buster" Collins and Lieutenant David Norman of the El Paso Police Department interviewed Mr. Martinez at police department headquarters. Mr. Martinez denied having any involvement in the leak. Lieutenant Norman later transcribed the handwritten notes he had taken during the interview into a formal "Sworn Statement to the Grand Jury."

Lieutenant Norman took the written statement to Mr. Martinez' home. Mr. Martinez read the statement and expressed concern that the officers had not previously advised him of the article 20.17 warnings, which were written on the front page of the statement. Lieutenant Norman responded that Mr. Martinez did not have to sign the statement, but that the officers were trying to save him "a trip to the grand jury." Mr. Martinez then read and edited the statement and agreed to sign a revised version before a notary. Lieutenant Norman typed the appropriate changes and later met Mr. Martinez at Mail Boxes Etc., where Mr. Martinez signed the statement and swore to its truthfulness before a notary. The State subsequently indicted Mr. Martinez for aggravated perjury, alleging that he falsely swore that he had not released any information to the media.⁴

The parties agree that Mr. Martinez was not given the oral warnings required under Article 20.17 for "an accused or suspected person who is subpoenaed to appear before the grand jury." The parties also agree that Mr. Martinez was not actually subpoenaed to appear before the grand jury and that he did not personally appear.

Mr. Martinez filed two motions to suppress his sworn statement. One characterized the document as a "grand jury" statement, subject to suppression for a failure to comply with article 20.17. The other motion characterized it as an involuntary written statement resulting from custodial interrogation and therefore subject to suppression for a failure to comply with article 38.22. At a hearing on these motions, the State argued that: 1) the document was a noncustodial grand jury statement, not an article 38.22 custodial confession; 2) the face of the statement, which contained the written article 20.17 warnings, showed substantial compliance with that law:⁵ and 3) even if the officers had not substantially complied with article 20.17, that failure did not immunize any perjury within the sworn statement.

The trial court, in its oral ruling, ordered the statement suppressed based on the State's failure to comply with article 20.17. The court also noted that the custodial interrogation cases cited by Mr. Martinez were "not directly on point." Nevertheless, the trial court signed two written orders: one granting Mr. Martinez' "Jackson v. Denno" motion⁶ to suppress the document, and one granting his motion to suppress the "grand jury statement."

The State appealed both suppression orders, and, for the first time, argued that article 20.17 was inapplicable because Mr. Martinez was never actually subpoenaed to appear before the grand jury. The State also argued, as it had in the trial court, that it had substantially complied with article 20.17. Finally, the State again argued that any noncompliance with article 20.17 did not require the court to suppress Mr. Martinez' sworn statement in a perjury prosecution.

The court of appeals found that the State had waived its argument that article 20.17 was inapplicable because it failed to raise that argument in the trial court.⁷ The court of appeals next agreed with the trial court that article 20.17 had not been substantially complied with, because "Article 20.17(c) requires that the warnings must be given orally" and "the State concedes that there were no oral warnings."⁸ Turning to the question of exclusion, the court held that the State's concession, that it failed to inform Mr. Martinez that he was a suspect before he gave testimony to the grand jury, warranted suppression under article 38.23 because the State essentially "obtain[ed] evidence through illegal means."⁹

II.

Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are "judge-protecting" rules of error preservation. The basic principle of both rules is that of "party responsibility."¹⁰ Thus, the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence "must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question."¹¹ As this Court has stated:

We have previously recognized two general policies for requiring specific objections. "First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony." Stated more broadly, objections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party is excused from the requirement of objecting, the results are the opposite.¹²

And so it is that appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised. As this Court stated in State v. Mercado,¹³ under Rule 33.1, the issue is not whether the appealing party is the State or the defendant or whether the trial court's ruling is legally "correct" in every sense, but whether the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal.¹⁴ This "raise it or waive it" forfeiture rule applies equally to goose and gander, State and defendant.

The State forthrightly acknowledges that it never brought the inapplicability of Article 20.17 to the trial court's attention. On appeal, the State seeks to surmount this obstacle by advancing a rather circular argument; the State essentially argues that it did not have to tell the trial judge that Article 20.17 was inapplicable to the defendant's written statement because that article is inapplicable. The record reveals, however, that the issue squarely before the trial judge concerned the content, scope, and applicability of article 20.17, and the content, scope, and applicability of the article 38.22 confession statute. In the trial court, the State articulately argued that the confession statute was inapplicable because Mr. Martinez was never in custody. Any and every legal or factual theory that the State wished to present about article 20.17 was likewise open for consideration by the trial judge, including its inapplicability. It simply cannot be said that the trial court could not or would not have considered the possible inapplicability of article 20.17, had that argument been brought to its attention. Nor can it be said that article 20.17 was so clearly inapplicable that this fact was obvious to all in the courtroom,¹⁵ and the State does not contend otherwise.

The "raise-it-or-waive-it" forfeiture rule applies here. We agree with the court of appeals that the State may not argue for the first time on appeal that article 20.17 did not apply to Mr. Martinez' statement and that, therefore, the trial court abused its discretion in suppressing the statement. The trial court cannot be held to have abused its discretion merely by ruling on the only theories of law presented to it.

Therefore, we reject the State's first two grounds for review. But that does not end our consideration, because the State did argue, in the trial court, that any noncompliance with article 20.17 in the taking of a written "Sworn Statement to the Grand Jury" does not protect or immunize allegedly perjurious statements within that document.

III.

We turn to the State's third ground for review: Is a person who allegedly commits perjury in making a statement to the grand jury entitled to suppress that sworn...