Scenario: DWI interview questions are done and answered on video prior to Miranda warnings. No dispute as to 38.22 violation. But when offering the video into evidence, Defense does not object. Entire video is viewed by jury. Defense counsel cross-examines officer using answers provided by interview questions, including that Defendant has the flu and took medicine, for exculpatory inferences.

After cross-examination, judge brings up 38.22 issue sua sponte and wants to declare a mistrial. Defense counsel now, only after issue is brought up by judge, states that he does not want those questions admitted. Defense counsel had a generic Motion to Suppress Motion on file that was running with trial but never heard. Are we out of luck or was this objection waived?

Our argument is that we cannot anticipate defense tactics and know whether they think the answers are exculpatory.

Some cases that may help persuade your judge not to call a mistrial if there is not an appealable issue:

Knox v. State 722 SW2d 793--Defendant's video was entered with no objection, and played up to the point where he invoked right to counsel. Defense then objected but trial court said not timely obj. Appellate court said that was close enough to be timely because the objection was made when the problem became readily apparent. You could argue that in your case, defense let the jury see all of it, with no clue, so they would not have an issue on appeal.

Not dead on, but maybe a place to start researching....