Herrera v. State, No. 08-01-00152-CR (Tex. App. 2/20/2004)
| Decision Date | 20 February 2004 |
| Docket Number | No. 08-01-00152-CR,08-01-00152-CR |
| Parties | JOSE GILBERTO HERRERA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 120th District Court of El Paso County, Texas, (TC# 20000D04821).
Before Panel No. 2, BARAJAS, C.J., McCLURE and CHEW, JJ.
This is an appeal from jury convictions for two counts of sexual assault of a child and five counts of aggravated sexual assault of a child. The jury assessed punishment at twenty years' imprisonment on the two counts of sexual assault of a child and fifty years' imprisonment on the five counts of aggravated sexual abuse of a child. We affirm the judgment of the trial court.
At Appellant's evidentiary hearing to suppress his confession, Detective Mario Chaides testified that he met Appellant on February 29, 2000, at the Northeast Regional Command Center in El Paso, Texas. On that date, Detective Chaides interviewed Appellant's mother-in-law who complained that Appellant sexually assaulted her granddaughter, S.H., the victim. At about 11:55 p.m., Appellant drove himself and his wife to the command center where he was placed under arrest and was read his Miranda rights by Detective Chaides. Chaides repeated those rights and, one by one, asked if Appellant understood them. Appellant signed a Miranda card indicating that he understood each right.
Appellant was then taken into an interview room where he and Chaides discussed the accusations. At first, Appellant denied that he sexually assaulted S.H. He later recanted in a written statement taken by Chaides. Chaides typed the statement as Appellant dictated to him. Chaides then printed out the statement so Appellant could read it and make any changes he wished. Appellant agreed with the printed statement and signed it at approximately 2:43 a.m. Chaides testified that Appellant never asked for an attorney; if he had done so, he would have stopped the interview. The witness stated that the statement was given voluntarily. Detective Max Zimmerly and Officer Bernie Salinas witnessed Appellant sign the statement. Another detective asked if Appellant wanted to say anything to his daughter and provided Appellant with a pen and paper, although he was not forced to write to his daughter.
Appellant testified that he understood his rights but that he had asked for an attorney on two occasions by saying "what about an attorney?" He testified that Chaides said that he did have a right to an attorney but "he continued on with talking." Appellant testified that he was told that the complaining witness, his daughter, was pregnant and was on the way to the hospital. He reasoned at the time that this would prove his innocence because it would be revealed that he was not the father. Appellant also testified that he was told that his other children would be taken away from his wife as his wife would become a suspect if he remained silent. Appellant also testified that Chaides used his handcuffs in a threatening manner. He testified that he was afforded the opportunity to consult with his wife two or three times during the interview. Also, he testified that he found the presence of Chaides gun and his posture to be threatening.
In turn, Chaides testified that he did not mention anything about the consequences of Appellant's statement with regard to what would happen to the wife or the children or that the wife was under investigation. The detective denied ever mentioning that the complaining witness was pregnant. Chaides testified that he did not have his handcuffs out while he interviewed Appellant.
The court filed findings of fact and conclusions of law. The court found that no threats were made by the detectives with regard to the letter Appellant wrote to the complaining witness. The court further found that Appellant received the appropriate warnings and that Appellant did not invoke his right to an attorney, his right to remain silent, or his right to terminate the interview at any time. It was found that Appellant knowingly, intelligently, and voluntarily waived his rights. Further, the court found that Chaides did not promise any leniency or good result regarding the reunification of his family as a result of providing a statement or giving a letter. Also no force or threats were utilized in obtaining the statement. The court suppressed the letter as not comporting the statutory requisites while allowing its use for possible impeachment purposes.
Trial commenced on March 5, 2001. At trial, the complainant, who was seventeen years old at the time of trial, testified regarding a series of sexual assaults by her father, Appellant, that began when she was approximately seven or eight years old. Defense counsel established that there were positive things in the complainant's life such as school and church activities notwithstanding her assertions that she was being sexually assaulted during this time. She testified that she never told anyone about the sexual incidents because Appellant told her that he would kill her and anyone she told. During cross-examination, the complainant was asked if she told a nurse that she was not sexually active during an examination in 1999. She stated she did not remember the conversation but she did state that she would have been lying to the nurse if she denied being sexually active. She was asked what the term "virgin" meant and she related that was someone who had not had sex. She stated that she had not had sex with anyone prior to February 1999.
The complainant testified that she wrote about the assaults in her diaries or journals. Someone found them and tore them up and she stopped writing journals three or four years prior to trial. She was confronted with a journal she had written a year earlier in 1999, and she admitted having lied about not continuing to write the journals. She read from a journal entry from October 15, 1999 which stated, "Tonight Larry wanted me to come over to his house so we could spend some time together." He was her boyfriend at the time and she admitted that she wrote in the journal, "We had sex" and "I am not a virgin anymore." Defense counsel moved to admit the complainant's three journals and this request was denied. She agreed that she did not write anything in the journals about her father sexually abusing her. When asked, the complainant stated that she did not know that her parents were considering moving the family to Albuquerque.
Outside the presence of the jury, the court ruled that Appellant could cross-examine the complainant concerning the October 15 entry because her understanding of the term "virgin" was important to the defensive theory that she lost here virginity to her boyfriend and therefore was never assaulted by her father. The court ruled that the other entries were not relevant. Appellant then requested to cross-examine the complainant concerning a September 11, 1999 entry where she wrote that the only person she would have sex with was "Ricky." The court denied this request as being a collateral matter not relevant to whether or not her father sexually assaulted her. In front of the jury, the complainant testified fully regarding the October 15 incident.
In Issue No. One, Appellant asserts that the trial court erred in denying his motion to suppress his confession because of his invocation of the right to counsel. Appellant argues that his requesting phrase, "what about a lawyer?" should be held equivalent to "I think I want a lawyer" which was held sufficient enough to invoke a person's right under the Fifth Amendment to invoke the right to counsel in Jones v. State, 742 S.W.2d 398 (Tex. Crim. App. 1987).
We review the trial court's decision on a motion to suppress under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). When there is conflicting evidence about whether a confession was voluntary, the trial court is the sole judge of facts at the suppression hearing, and an appellate court may not disturb any finding supported by the evidence. Dunn v. State, 721 S.W.2d 325, 336 (Tex. Crim. App. 1986). Whether a confession is voluntary is a mixed question of law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). Appellate courts should give almost absolute deference to trial court determinations of historical fact supported by the record, especially when those findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate courts should afford the same amount of deference to trial court rulings on mixed questions of law and fact when the resolution of those ultimate issues turns on an evaluation of credibility and demeanor. Id. However, an appellate court may review de novo mixed questions of law and fact that do not fit within that category. Id. In the instant case, the trial court's ruling at the suppression hearing was based on its evaluation of the credibility and demeanor of Appellant and Chaides. Therefore, we afford almost complete deference to the trial court's ruling. A request for counsel must be unambiguous, meaning the suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him. Id. at 460-61. Whether a suspect has unequivocally requested an attorney depends on whether he expressed a definite desire to speak to someone, and that person be an attorney. Dinkins v. State, 894 S.W.2d 350 (Tex. Crim. App. 1995). Once an accused invokes his right to c...
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