Romero v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW MILLER, Judge.

This petition presents us with an interlocutory appeal. Appellant was indicted for the offense of murder. V.T.C.A. Penal Code Sec. 19.02(a)(1). By pre-trial motion to suppress, appellant challenged the admissibility of certain oral statements he made to police officers on July 20, 1987, concerning the stabbing death of Jose Lomeli. After a hearing in which both appellant and the State presented evidence, the trial judge entered an order granting appellant’s motion. The State appealed that ruling. See Art. 44.01(a)(5), V.A.C.C.P. The court of appeals reversed the ruling of the trial judge and held appellant’s oral statements were admissible under Art. 38.22, Sec. 3(c), V.A.C.C.P.

State v. Romero, 763 S.W.2d 536 (Tex.App.—El Paso 1988). Appellant petitioned this Court for review, raising two grounds, to wit: the court of appeals erred in reversing on the ground that the statements were admissible under Art. 38.22, Sec. 3(c); and the court of appeals erred in reversing on the basis of Art. 38.22, Sec. 3(c) because that ground was never presented to the trial court. We granted the petition on both grounds, and will reverse the judgment of the court of appeals. [*541] A hearing on appellant’s motion to suppress began on January 7, 1988, and it was concluded on January 19, 1988. Appellant contended in his motion that his oral statements to police should be suppressed because they were not obtained in compliance with Art. 38.22 since the statements were not recorded. [1]