Texas Stamp

State Prosecuting Attorney's 2017 Annual Report for Judicial Support Agencies, Boards, and Commissions

GIBSON, JOHNTAY

PD-1043-16 11/23/2016

"When the basis for trial counsel's objection to the admission of the appellant's videotaped custodial statement was apparent at trial, the reviewing court should not avoid addressing that apparent issue by holding the appellant's argument on appeal does not comport with counsel's trial objection merely because the apparent issue is more specifically articulated on appeal."

After Gibson was arrested for marijuana possession, he was questioned by another officer because he was a suspect in a capital murder investigation. Gibson was Mirandized and waived his rights. After he gave the officer an alibi and the phone numbers of several people who could verify it, the officer left Gibson in the room for five hours while he attempted to confirm it. When the officer returned, he relayed what he discovered and Gibson implicated himself as the getaway driver.

Gibson moved to suppress the inculpatory statement because he did not properly receive his constitutional and statutory warnings. This was denied. After the officer testified, Gibson argued that appellant gave two statements, not one continuous statement, and was not properly warned before the interview that produced the inculpatory statement. His objection was again overruled.

The court of appeals affirmed. It held that Gibson failed to preserve his complaint because his argument on appeal—the one he made after the officer finished testifying—did not comport with the argument he made in his motion or at the hearing. Gibson argues on petition that the basis for his timely objection "could not have been more apparent" and that the trial court's acknowledgment of an unrecorded bench conference shows it was aware of the basis for his objection.

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