Hazlett v. State
| Decision Date | 19 March 2018 |
| Docket Number | No. 05-16-00495-CR,05-16-00495-CR |
| Parties | JEFFREY SCOTT HAZLETT, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 380th Judicial District Court Collin County, Texas
Before Justices Lang-Miers, Brown, and Boatright
Opinion by Justice Lang-Miers
Appellant Jeffrey Scott Hazlett was convicted of indecency with a child by sexual contact and sentenced to eleven years imprisonment.1 Appellant raises two issues on appeal. In his first issue, appellant claims that the trial court abused its discretion by finding that his written statement was voluntary and by limiting his cross-examination of the agent to whom the statement was made during the suppression hearing on that statement. In his second issue, appellant challenges the sufficiency of the evidence to support his conviction. We affirm the trial court's judgment.
L.H., a fourteen-year-old child, testified that her father, appellant, had sexually abused her by touching her inappropriately when she was between nine and eleven-years-old, i.e., during the years 2008 - 2011. L.H. made outcry of these allegations against appellant to her mother on February 2, 2015. They reported these allegations to the Allen Police Department the next day. Appellant, when initially questioned by law enforcement officers, denied these allegations. He later orally confessed to some of L.H.'s allegations during an interview with a Secret Service agent which immediately followed a polygraph examination; he had been told by the agent that he had failed that polygraph. Appellant reduced this statement to writing. At trial, however, appellant repudiated his statement. Appellant also denied L.H.'s allegations of sexual abuse saying "I would not have done it."
In his first issue, appellant claims that the trial court abused its discretion by finding his written statement was voluntary because he contends it was the product of "coercion, trickery, and secret polygraph procedures." Appellant further claims that the trial court abused its discretion by limiting his cross-examination of the agent who conducted the polygraph at the hearing on the motion to suppress to determine the admissibility of the statement.
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review. Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts, but conduct a de novo review of the trial court's application of the law to those facts. Wilson, 311 S.W.3d at 458. As the sole trier of fact during a suppressionhearing, a trial court may believe or disbelieve all or any part of a witness's testimony. Id. We examine the evidence in the light most favorable to the trial court's ruling. Id. A trial court will abuse its discretion only if it refuses to suppress evidence that is obtained in violation of the law and that is inadmissible under TEX. CODE CRIM. PROC. art. 38.23. Id.
Where, as here, the trial court has made express findings of fact, we view the evidence in the light most favorable to those findings and determine whether the evidence supports the fact findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will sustain the trial court's ruling if it is supported by the record and is correct on any theory of law applicable to the case. Id. at 447-48.
Article 38.21 of the Texas Code of Criminal Procedure provides that a defendant's statement may be used against him "if it appears that the same was freely and voluntarily made without compulsion or persuasion." See TEX. CODE CRIM. PROC. art. 38.21; Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007). The determination of whether a statement is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. See Delao, 235 S.W.3d at 239; Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997); see also Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991).
A statement may be deemed "involuntary" under three different theories: (1) failure to comply with TEX. CODE CRIM. PROC. art. 38.22 § 6; (2) failure to comply with the dictates of Miranda as codified and expanded in Article 38.22 §§ 2, 3; or (3) failure to comply with due process because the statement was not freely given as a result of coercion, improper influences, or incompetency. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008); Wolfe v.State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996). A statement may be deemed involuntary under one, two, or all three of these theories. See Oursbourn, 259 S.W.3d at 169.
The fact that a defendant was given a polygraph prior to making a statement does not render a subsequent statement inadmissible. Fernandez v. State, 172 Tex. Crim. 68, 72, 353 S.W.2d 434, 437 (1962); Webb v. State, 163 Tex. Crim. 392, 291 S.W.2d 331, 334 (1956) (). Similarly, the mere fact that a defendant is told he failed a polygraph does not render a resulting statement involuntary. Gomes v. State, 9 S.W.3d 373, 378-79 (Tex. App. - Houston [14th Dist.] 1999, pet. ref'd) (); Roe v. State, No. 03-98-00291-CR, 1999 WL 699766, at *3 (Tex. App. - Austin Sept. 10, 1999, no pet.) (not designated for publication) ( that telling a defendant he was deceptive on a polygraph examination did not, in and of itself, render the "subsequent confession involuntary").
The essential question for the trial court to determine was whether appellant's will was overborne by the circumstances surrounding the making of his statement. Dickerson v. United States, 530 U.S. 428, 434 (2000); Boyett v. State, 485 S.W.3d 581, 596 (Tex. App. - Texarkana 2016, pet. ref'd). The trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the evidence presented at a hearing on the voluntariness of a statement. Delao, 235 S.W.3d at 238; Colvin v. State, 467 S.W.3d 647, 657 (Tex. App. - Texarkana 2015, pet. ref'd).
Prior to the presentation of the State's case, the trial court held a hearing on appellant's motion to suppress to determine the voluntariness of his statement.
At this hearing, Lonnie Falgout, a special agent with the U.S. Secret Service, was the only witness. Falgout is primarily a polygraph examiner for the Secret Service; 80 to 90 percent of his work is polygraphic examination. Falgout provides polygraphic services to local law enforcement agencies upon request. Falgout was asked by Allen Police Detective Joe Anders2 to help interview appellant.
The interview was conducted at the Collin County Children's Advocacy Center in Plano, Texas. Before the interview, Falgout reviewed Anders' case notes and investigative notes. He was aware of L.H.'s allegations against appellant.
Falgout first read appellant the Miranda3 warnings. Although appellant was not in custody or under arrest, Falgout gave appellant the Miranda warnings because "[i]t's required through my agency prior to the polygraph beginning." Appellant voluntarily waived his rights under Miranda and agreed to both the polygraph examination and the interview with Falgout.
Falgout testified that he offered appellant the opportunity to have a snack, a beverage, or restroom breaks during the interview. Appellant was not handcuffed or restrained in any way during this interview. Falgout said he would have obtained a lawyer for appellant if he had asked for one, which he did not. Falgout conducted a polygraph examination and then interviewed appellant. Falgout stated that he would have terminated the interview if appellant had said he did not want to talk.
Falgout testified that, during the course of the interview, appellant made a number of oral admissions relating to the allegations against him. At the end of the interview, appellant voluntarily agreed to write a statement. He wrote and signed the statement in Falgout's presence. Appellant was not arrested after he wrote and signed this statement in which he confessed to acts of indecency with L.H. In fact, appellant left the Advocacy Center after he signed his statement and spoke with Detective Anders.
On cross-examination, defense counsel sought to elicit testimony about the polygraph examination that preceded appellant's written statement in an effort to establish that appellant's statement had been coerced and was not a product of his free will. When appellant's counsel began to question Falgout about the actual polygraph procedures, Falgout declined to answer because of the "Touhy regulations:"4
The State objected on grounds that "we have all agreed that the polygraph portion of thatinterview is not to be mentioned."5 The trial court sustained that objection. Defense counsel argued that he should be allowed to explore whether the polygraph influenced appellant's statement. The trial court asked defense counsel if he was attempting to establish whether any of the procedures utilized in the polygraph examination may have rendered appellant's written statement...
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