Garza v. State

• Decision Date: 28 May 2015
• Docket Number: NO. 02-14-00206-CR,02-14-00206-CR
• Citation: Garza v. State, NO. 02-14-00206-CR (Tex. App. May 28, 2015)
• Parties: RAUL VILLEGAS GARZA APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

RAUL VILLEGAS GARZA APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-14-00206-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

May 28, 2015

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. CR12706

MEMORANDUM OPINION¹

Appellant Raul Villegas Garza appeals his conviction of and sentence for tampering with or fabricating evidence. See Tex. Penal Code § 37.09(a)(2) (West Supp. 2014). We modify the judgment and affirm it as modified.

Background Facts

In 2004, Appellant was convicted on four counts of indecency with a child and sentenced to twenty years' confinement for each count, to run concurrently. During his incarceration, Appellant filed six applications for postconviction habeas relief. Appellant's sixth application was filed on February 12, 2013.

When the Hood County District Attorney, Robert Christian, received a copy of the sixth application, he noted that the application contained two affidavits that had not been included in Appellant's previous applications. One, entitled "Affidavit to Recant My False Testimony," was purportedly written by Appellant's ex-wife, Priscilla Sides, formerly known as Priscilla Kindle. The affidavit used the spelling "Priscilla Kendal" and was signed by "Priscilla Kendall." The affidavit stated that Sides had lied on the witness stand during Appellant's trial. The other affidavit was purportedly written by Dr. H. Pat Hezmall and stated that Appellant "has no capacity for sexual arousal."

On March 4, 2013, Robert Young, an investigator for the district attorney of Hood County, interviewed Appellant in prison. Young recorded the interview with both a video camera and an audiotape recorder. He gave Appellant a Miranda warning and asked if he would be willing to answer questions. Appellant agreed to talk. While Young was interviewing Appellant, prison guards removed all of Appellant's files and documents from his cell. The guards brought the documents to the interview room, and Young got Appellant's permission to go through them and discuss them.

Young interviewed Appellant for about an hour and a half, at which time Appellant asked Young to turn off the video recorder. Unaware that he was still being recorded by audiotape, Appellant confessed to making the false affidavits with the help of some other inmates.

Appellant took a break for dinner, and when he returned, Young asked him to complete a written statement regarding his confession. He also asked Appellant to sign a consent form to allow him to take the documents from the prison. At the top of the statement form, Appellant initialed that he understood his rights. The consent form also had his rights listed at the top of the page. Young took all of Appellant's documents except for a copy of a court reporter's record.

Appellant was charged with aggravated perjury and tampering with or fabricating evidence. See id. Before trial, Appellant filed a motion to suppress the tangible evidence removed from his prison cell and all statements he made to law enforcement officers. After a hearing, the trial court denied the motion.

Also prior to trial, Appellant filed a motion to disqualify or recuse Judge Ralph Walton, Jr. from presiding over the case. Judge Walton had represented Appellant against charges of sexual abuse of a child that were unrelated to his 2004 conviction, and Appellant claimed that he intended to call Judge Walton as a witness. Judge Jeff Walker, then presiding for the 8th Administrative Judicial Region, denied this motion after a hearing.

At trial, Priscilla testified that on the date the affidavit was signed, her last name was Sides, not Kindle, that she had never spelled Kindle as "Kendal" or "Kendall," and that she did not sign the affidavit purporting to be from her. The notaries whose stamps were on the questioned affidavits both testified that they did not notarize the affidavits.

A man named John Pizer testified that he had been assisting Appellant with his applications. He testified that he had sent Hezmall the affidavit for him to sign, but that Hezmall had never responded. Pizer stated that he eventually received the signed copy of the Hezmall affidavit and Kendall affidavit in envelopes with no return address. He did not know who mailed them to him. Pizer then filed Appellant's writ for him, using the affidavits as exhibits and signing Appellant's name.

A jury found Appellant not guilty of aggravated perjury, but guilty of tampering with or fabricating evidence, and assessed a punishment of twenty years' confinement. The trial court sentenced Appellant accordingly. Appellant then filed this appeal.

Discussion

1. Motion to suppress

In his first point, Appellant argues that the trial court erred by denying his motion to suppress the evidence removed from his prison cell and the statements he made in his interview with Young. At the hearing on the motion, and again at trial, Appellant argued that he did not consent to the search of his prison cell andthat he was coerced into giving a false confession so that he would be allowed to keep a copy of his trial transcript.

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).

The State argues that Appellant did not have standing to challenge the search of his prison cell. A person has standing to contend that a search or seizure was unreasonable if (1) he has a subjective expectation of privacy in the place or object searched and (2) society is prepared to recognize that expectation as "reasonable" or "legitimate." State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014) (citing Minnesota v. Olson, 495 U.S. 91, 95-97, 110 S. Ct. 1684, 1687-88 (1990); Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004)). The United States Supreme Court has held, "[S]ociety is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply withinthe confines of the prison cell." Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200 (1984). Although Appellant relies heavily on Granville for his standing argument, nothing in that opinion undermines the clear statement in Hudson. See Granville, 423 S.W.3d at 414 & n.56 (distinguishing Hudson). The cases Appellant cites from other jurisdictions are also irrelevant to our analysis. See United States v. Cohen, 796 F.2d 20, 24 (2d Cir. 1986) (holding that pre-trial detainee had an expectation of privacy within his cell sufficient to challenge an investigatory search ordered by a prosecutor); Lowe v. State, 203 Ga. App. 277, 278-79, 416 S.E.2d 750, 752 (1992) (same). Both Cohen and Lowe involve pre-trial detainees, not convicted prisoners as is the case here. See Willis v. Artuz, 301 F.3d 65, 69 (2d Cir. 2002) (distinguishing Cohen on ground that appellant was a convicted prisoner); Lutz v. Collins, No. 04-08-00496-CV, 2009 WL 330958, at *4 (Tex. App.—San Antonio Feb. 11, 2009, pet. denied) (mem. op.) (same). We overrule Appellant's first point as to the search of his prison cell and seizure of the tangible evidence.

As to Appellant's argument that his confession was the result of coercion or duress, we must give deference to the trial court's evaluation of the facts. See Amador, 221 S.W.3d at 673. Appellant testified that he confessed because he had been worn out from the interview. He said,

I'd been there, and I tried to tell him the truth, several times I told him that I didn't do it, that that was not my signature, and he wouldn't believe me, and he just finally wore me down to where I was going to tell him what he wanted to hear.

Appellant claimed that he gave his oral confession so that he could keep his trial transcript. Yet, the entire conversation was audiotaped and having reviewed that tape, we find no promise or coercion by Young prior to Appellant's confession. Appellant later testified that Young promised that Appellant could keep his trial transcript if he provided a written statement. Appellant claimed the promise was made after Young had turned off the recording devices. Young denied that he promised Appellant anything in exchange for his confession. He testified that he left the transcript at Appellant's request and because it was not relevant to his investigation of the doctored applications.

The trial court issued findings that "beyond a reasonable doubt, without regard to the truth or falsity of said audio taped and videotaped oral statement, that the same was freely and voluntarily made and is, as a matter of law and fact, admissible as evidence before the jury in this case." The trial judge believed that Appellant had not been coerced and he was free to make that determination. See Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994) ("The trial judge is sole judge of credibility of witnesses in a pretrial hearing and, absent a showing of abuse of discretion, a trial court's finding on the voluntariness of a confession will not be disturbed."). Nothing in these facts shows that the trial court abused its discretion in denying the motion to suppress the confession. We overrule the remainder of Appellant's first point.

2. Sufficiency of the evidence

In his second point, Appellant argues that the evidence is legally insufficient to support his conviction. In our due-process review of the sufficiency of the evidence to support...