Opinion
No. 09-04-031 CR
Submitted on March 1, 2005.
Opinion Delivered March 9, 2005. DO NOT PUBLISH.
On Appeal from the 284th District Court, Montgomery County, Texas, Trial Cause No. 03-11-08340-CR. Affirmed.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Tex.R.App.P. 47.4.
A jury found Kenneth Joseph White to be guilty of murder. After rejecting a special issue on manslaughter, the jury found White to be a repeat offender and assessed punishment at fifty years of confinement in the Texas Department of Criminal Justice and a $5,000 fine. On appeal, White raises two related issues. First, he contends the trial court committed reversible, fundamental error in failing to exclude a custodial videotape of the defendant. In the alternative, he argues trial counsel was ineffective in failing to object to the videotape's admission into evidence. We affirm. The videotape at issue in this appeal depicts the third of three interviews of the defendant conducted in the course of the investigation of the death of the victim. The videotape, State's Exhibit No. 41, was admitted into evidence at trial without objection. On appeal, White contends the videotape does not comply with statutory prerequisites that Miranda warnings be provided to the accused and waived by him during the recording. See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2) (Vernon 1979 Supp. 2005). The exhibit has been provided to the Court. Despite the mediocre sound quality of the recording, the interviewer can plainly be heard providing the warnings listed in Article 38.22, § 2(a). White visibly nods and vocalizes in a manner indicating his assent to waiver of his rights. Because the custodial statement satisfied the prerequisites of the statute, there could be no error, fundamental or otherwise, in failing to exclude the exhibit on the ground asserted by White on appeal. An attorney's failure to object to admissible evidence does not constitute ineffective assistance. McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992). Issues one and two are overruled. The judgment is affirmed.
At times, the record refers to the appellant as "Kenny Joe White."
By agreement, the sound was turned down for an unidentified period during the publication of the exhibit to the jury.
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).