Rodriguez v. State

• Decision Date: 23 January 1997
• Docket Number: No. 03-95-00034-CR,03-95-00034-CR
• Citation: 939 S.W.2d 211
• Parties: Hector RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 211

939 S.W.2d 211

Hector RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00034-CR.

Court of Appeals of Texas,

Austin.

Jan. 23, 1997.

Rehearing Overruled Feb. 27, 1997.

Carlos E. Cardenas, Abraham, Santiesteban & Cardenas, P.C., Austin, for Appellant.

Ronald Earle, District Attorney, C. Bryan Case, Jr., Assistant District Attorney, Austin, for Appellee.

Before CARROLL, C.J., and KIDD and ONION, ^* JJ.

ON MOTION FOR REHEARING

ONION, Justice (Retired).

Our opinion on original submission is hereby withdrawn and the following is substituted in lieu thereof. ¹

Appellant Hector Rodriguez was indicted for the offense of indecency with a child by exposure, a third degree felony. Tex. Penal Code Ann. § 21.11(a)(2) (West 1994). ² Rejecting appellant's plea of not guilty, the jury found appellant guilty. At the penalty stage of the trial, the trial court deferred the adjudication of guilt and placed appellant on "community supervision" for five years subject to certain conditions.

Appellant advances two points of error. First, he urges that the trial court erred in overruling his pretrial motion to suppress the statement that he gave to police officers. Second, appellant challenges the sufficiency of the evidence to show that the eleven-year-old complainant was not his spouse as alleged in the indictment. In its cross-appeal, the State contends that the trial court erred in deferring adjudication of guilt after the jury had returned its verdict of guilty.

FACTS

The complainant, A.H., was eleven years old at the time of the alleged offense and thirteen years old when she testified at the trial on the merits. A.H. testified that on July 16, 1993, she lived with her mother and older sister in an apartment complex. They lived next to appellant's apartment on the second floor and shared a common balcony. A.H. revealed that at about 8:00 p.m. on July 16th she was sweeping the balcony when appellant appeared nude on the balcony and remained there during the five to ten minutes that she continued to sweep. A.H. reentered her apartment, got something to drink, and watched television for a while. When she returned to the balcony to finish sweeping, appellant reappeared nude and "doing his stuff." Later, A.H. confided to her mother what she had seen. Her mother discussed the matter with a police officer friend from church and later contacted the police department.

A.H.'s mother testified that earlier on the morning of July 16th, as she was leaving for work, she encountered appellant standing in a doorway without a shirt. She was unable The State introduced appellant's statement given to police officers which was more exculpatory than inculpatory. It stated that appellant's newspaper was delivered every morning by being thrown on the balcony and appellant often retrieved the newspaper while wearing pajama pants. On occasion he wore only a towel wrapped around his waist which sometimes fell off when he turned to reenter his apartment.

to determine if he was totally nude. From the parking lot a few minutes later, she observed appellant standing nude on the common balcony. She drove around and returned to the parking lot. Appellant had disappeared from the balcony. She then continued on her way to her place of employment without taking any action.

FAILURE TO SUPPRESS APPELLANT'S STATEMENT

In his first point of error, appellant claims that the trial court erred in failing to suppress his statement or confession because it was not shown that he had "knowingly, intelligently and voluntarily waived his privilege against self-incrimination and his right to remain silent and terminate the interview." Appellant filed a motion to suppress his statement and relied upon the Fifth Amendment to the United States Constitution, Article I, section 10 of the Texas Constitution and article 38.22 of the Texas Code of Criminal Procedure. He also claimed that the statement, improperly obtained during an interrogation, was inadmissible under article 38.23 of the Texas Code of Criminal Procedure. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex.Code Crim.Proc.Ann. art. 38.22 (West 1979), art. 38.23 (West Supp.1997).

The trial court conducted a hearing on the motion to suppress. See Tex.Code Crim.Proc.Ann. art. 28.01(6) (West 1989); see also Tex.Code Crim.Proc.Ann. art. 38.22 (West 1979); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The record reflects that on July 26, 1993, Austin Police Sergeant Cathy Ellison of the Child Abuse Unit contacted appellant by telephone. She told him that she was conducting an investigation involving him and would like to schedule an appointment to talk to him. Appellant agreed, but called back several times to reschedule the appointment. On the afternoon of July 27, 1993, appellant arrived at the office of the Child Abuse Unit at 7901 Cameron Road. Ellison escorted appellant to the office of Sergeant Michael Shane. Appellant was told that he was not under arrest and was free to leave at any time. He was informed that he was a suspect in an ongoing investigation concerning whether he had exposed himself to a child at the apartment complex where he lived. When told that he did not have to talk to the officers, appellant stated that he wanted to stay and "straighten this out." The Miranda ³ warnings were read to appellant twice. He stated that he understood his rights and signed a written statement acknowledging that he had been given the warnings. Thereafter, appellant gave and signed the written statement. The statement on its face contained the Miranda warnings and a statement by appellant that he understood his rights including the right to terminate the interview at any time, and that he had "knowingly, intentionally and voluntarily" waived his right to be silent and his right to have a lawyer present to advise him. In the statement, appellant acknowledged that he had read the statement and that it was true and correct and that he had freely and voluntarily given the statement without any threats or promises having been made to him.

Sergeants Ellison and Shane testified that no force had been used against appellant. After the statement was given, Officer Ellison drove appellant to his place of employment. An arrest warrant was not issued until August 19, 1993. It was executed on August 23, 1993, almost a month after the interview.

Appellant testified that a friend drove him to the Cameron Road office and that he had talked to the officers who were not in uniform. He could not remember whether they were carrying guns. Appellant admitted that he was not placed under arrest, that the In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial court may accept or reject any or all of a witness's testimony or evidence offered. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993). In reviewing the trial court's decision, an appellate court does not engage in its own factual review; it determines only whether the record supports the trial court's findings. Romero, 800 S.W.2d at 543. The appellate court is not at liberty to disturb supported findings of fact absent an abuse of discretion. Etheridge v. State, 903 S.W.2d 1, 15 (Tex.Crim.App.1994); Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991). The appellate court shall not defer merely to the trial court's findings regarding the historical facts but also to the trial court's conclusions regarding the legal significance of those facts. DuBose v. State, 915 S.W.2d 493, 497 (Tex.Crim.App.1996); State v. Carter, 915 S.W.2d 501, 504 (Tex.Crim.App.1996). The appellate court will normally address only the question of whether the trial court improperly applied the law to the facts. Romero, 800 S.W.2d at 543. If the trial court's decision is correct on any theory of the law applicable to the case, it will be sustained even though the trial court may have given the wrong reason for its ruling. Id.; Calloway v. State, 743 S.W.2d 645, 651-52 (Tex.Crim.App.1988).

officers did not place their hands on him, and that he was told and knew that he was free to leave at any time. Later he stated that when the officers accused him of a crime he recalled his boss's admonishment not to answer questions if accused. He started to leave, but he was told by the male officer that he would be arrested if he did. He recalled that certain warnings were given to him but even when he stated that he did not completely understand, the interrogation continued. According to appellant, the male officer was very "forceful," not physically, but in his mannerisms. He stated that the officer put words in his mouth and told him that the words in the statement meant the same things as he had related to the officer. Appellant stated that he had read and signed the statement but did so out of fear that he would be arrested. The officers' testimony contradicted appellant's testimony on every point. At the conclusion of the suppression hearing, the trial court overruled the motion and entered findings of fact and conclusions of law finding that the statement had been freely and voluntarily given and was admissible in evidence.

We must determine from the facts whether the trial court abused it discretion. First, we determine whether appellant was in custody and subject to custodial interrogation so as to invoke the authorities he cited and upon which he relies.

CUSTODY AND CUSTODIAL INTERROGATION

If an investigation is not at an accusatorial or custodial stage, a person's Fifth Amendment rights have not yet come into play and the voluntariness of those rights is not implicated. Melton v. State, 790 S.W.2d 322, 326 (Tex.Crim.App.1990); Garza v. State, 915 S.W.2d 204, 211 (Tex.App.--Corpus Christi 1996, pet. filed). Voluntariness is an issue only if the confession was obtained...