Perkins v. State

• Decision Date: 25 October 1989
• Docket Number: No. 05-88-01034-CR,05-88-01034-CR
• Parties: David Eugene PERKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 918

779 S.W.2d 918

David Eugene PERKINS, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-01034-CR.

Court of Appeals of Texas Dallas.

Oct. 25, 1989.

Donald R. McDermitt, Plano, for appellant.

Tom O'Connell, Randall A. Blake, McKinney, for appellee.

Before HOWELL, ROWE and KINKEADE, JJ.

OPINION

ROWE, Justice.

David Eugene Perkins appeals his conviction for aggravated sexual assault. Appellant was found guilty in a bench trial, and his punishment was assessed at twenty years' confinement. In seven points of error, appellant contends that (1) certain oral and written statements which he made should have been suppressed, (2) a videotaped interview of the minor complainant was improperly admitted, (3) evidence was insufficient to corroborate an extrajudicial confession, (4) evidence was insufficient to prove the date of the alleged offense, (5) his motion for instructed verdict was improperly overruled, (6) findings of fact and conclusions of law concerning the voluntariness of his confessions were not properly entered, and (7) testimony concerning his competency and sanity was improperly admitted. We disagree with appellant's contentions and affirm his conviction.

Because several of appellant's points of error directly or indirectly attack the finding of guilt for the reason that support for such finding cannot be predicated upon disclosures in either of two extrajudicial confessions, we first consider what the record shows about the history of those confessions and other pertinent facts. In examining the record, we view the evidence in the light most favorable to the verdict. See Lopez v. State, 630 S.W.2d 936, 940 (Tex.Crim.App. [Panel Op.] 1982). We are also bound by the rule that, in a suppression hearing, the trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness's testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984); Waller v. State, 648 S.W.2d 308, 311 (Tex.Crim.App.1983) (op. on reh'g). We cannot disturb the trial court's findings regarding admissibility of a confession if they are supported by the record; if they are so supported, our only inquiry is whether the trial court properly applied the law to the facts. Burdine v. State, 719 S.W.2d 309, 318 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Johnson v. State, 698 S.W.2d 154, 159 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986).

The complainant in this case was a female child who was eight years old at the time of the offense and nine years old at the time of trial. She is appellant's niece on his brother's side. Appellant has another niece named Emily who is the daughter of his sister. Appellant lived for a while with his sister in Denton County, Texas, and later lived with his brother in Collin County, Texas. Appellant sometimes stayed with his parents while they lived in Collin County at 1011 Brown Street, Wylie, Texas.

The last count of the indictment in question charged that on or about November 7, 1987, in Collin County, appellant did "intentionally and knowingly cause contact with the female sexual organ of [the complainant], a child then younger than fourteen (14) years of age and not the spouse of the defendant by means of the defendant's mouth...." Appellant was also under indictment for aggravated sexual assault of Emily and for indecency with a child involving Emily. The three causes were tried together.

On December 29, 1987, Ed Snead, a detective in the Wylie Police Department, was told by the father of Emily that his daughter had been sexually abused by appellant. Snead referred the matter to Wanda Gaskin of the Department of Human Services (DHS) for investigation. On December 30, Gaskin conducted videotaped interviews of Emily and the complainant. Gaskin also questioned the parents of both nieces. Both nieces reported sexual contact with appellant. The complainant stated in her videotaped interview that appellant had penetrated her vagina with his finger and with his tongue. After the interviews, Gaskin telephoned appellant and asked him to come see her the next day to talk about the family's disclosures. On December 31, while at the DHS office, appellant wrote down a ten line "Voluntary Statement (Not Under Arrest)" detailing acts of sexual abuse against Emily. He ended his account by reporting that "[the complainant] was far less involved and shared very little at all of the same companionship." Gaskin immediately reported the results of her interviews to Snead, who prepared a probable cause affidavit the same day concerning appellant's assaults against Emily. On January 5, 1988, Snead presented this affidavit to a magistrate and obtained a warrant for appellant's arrest. Snead alerted David Waldschmidt, a criminal investigator in the Collin County sheriff's office, about this outstanding warrant.

While appellant was present, Gaskin also talked by phone with Waldschmidt on December 31 about appellant's sexual abuse of his nieces. While Gaskin and Waldschmidt were talking, appellant agreed to go see Waldschmidt. On January 5, he visited Waldschmidt. After being given standard written and oral MIRANDA ¹ warnings, appellant gave a more detailed statement (which was reduced to writing) about his sexual activity with both Emily and the complainant, specifying that much of it occurred while he lived with his parents at 1011 Brown Street in Wylie. As to the complainant, he confessed that "[w]hile on Brown St[.,] I performed oral sex to [the complainant] and penetrated her vagina with my finger simulating intercourse." After taking this confession, Waldschmidt arrested appellant pursuant to the outstanding warrant.

After a jury had determined that appellant was competent to stand trial, appellant filed a motion to suppress his oral and written statements. Because appellant waived a jury trial for the remaining proceedings, the trial judge heard the evidence on this motion at the same time that he heard the evidence on guilt. After hearing testimony from Gaskin, Snead, and Waldschmidt, the trial judge concluded that the statement given to Waldschmidt was a product of custodial interrogation and was voluntarily made by appellant after appropriate warnings as to the consequences had been given. Accordingly, the motion to suppress was overruled. The trial court granted appellant's motion for instructed verdict in the two causes involving Emily. Appellant's motion for an instructed verdict in the case involving the complainant was overruled, and appellant was found guilty as charged in the last count of the indictment.

In his first point of error, appellant contends that the trial court erred in denying his motion to suppress oral and written statements made by him to Gaskin and Waldschmidt. Appellant's argument concerning suppression of the two confessions focuses on his interview with Gaskin. He contends that Gaskin was an agent of law enforcement who was obliged to give him the constitutionally required Miranda warnings. See Cates v. State, 776 S.W.2d 170, 172-74 (Tex.Crim.App.1989). Although Gaskin gave some warnings, these are characterized as being far from a functional equivalent of Miranda warnings sufficient to validate the first confession. Appellant further maintains that the second confession given to Waldschmidt was inadmissible as "fruit of the poisonous tree." He argues that it would be reasonable to assume that once he had "told all," it then mattered little, if any, if he made further statements. Appellant contends that his second confession was therefore not freely and voluntarily given.

We determine that we need not decide whether the first confession was improperly admitted unless we first conclude that the second confession was indeed "fruit of the poisonous tree." We note that appellant was convicted only of aggravated sexual assault of the complainant, and only the second confession contained detailed information regarding sexual activity with the complainant. We assume for the purposes of this discussion that Gaskin did plant a poisonous tree; however, unless the confession to Waldschmidt was the fruit of that tree, it suffers no infirmity requiring its exclusion.

Under the "fruit of the poisonous tree" doctrine, evidence derived directly or indirectly from illegal governmental activity is excluded as trial evidence. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963); Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). However, not all evidence is "fruit of the poisonous tree" even if it would not have come to light but for the illegal activity. Allegedly tainted evidence is admissible if the connection between the illegal activity and the means through which a confession was secured has become so attenuated as to dissipate the taint. Thus, the question arises as to whether, assuming the existence of the primary illegality, the evidence allegedly tainted has been obtained by exploitation of that illegality or, instead, by means sufficiently distinguishable so as to be purged of the primary taint. See Wong Sun, 371 U.S. at 487-88, 491, 83 S.Ct. at 417, 419; Starkey v. State, 704 S.W.2d 805, 810 (Tex.App.--Dallas 1985, pet. ref'd, untimely filed). To be admissible, statements made by an accused must be sufficiently an act of free will so as to purge the primary taint. Whether the taint has been purged must be determined from the facts of each case. The relevant factors to be considered include the temporal proximity of the illegal activity and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. See Brown v. Illinois, 422 U.S. 590, 602, 603-04, 95 S.Ct. 2254, 2261, 2261-62, 45 L.Ed.2d 416 (1975); Wicker v. State, 667 S.W.2d 137, 141 (Tex.Cr...