Wicker v. State

• Decision Date: 21 October 1987
• Docket Number: No. 1175-85,1175-85
• Citation: 740 S.W.2d 779
• Parties: Larry Leon WICKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 779

740 S.W.2d 779

Larry Leon WICKER, Appellant, v. The STATE of Texas, Appellee.

No. 1175-85.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 21, 1987.

J. Thomas Sullivan, Dallas, for appellant.

Henry Wade, Dist. Atty. and Gary A. Moore, Elizabeth L. Phifer and Mark Nichols, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

In a trial before the court on a plea of not guilty, appellant was convicted of sexual assault pursuant to V.T.C.A. Penal Code, § 22.011(a)(2)(A). Punishment was assessed at fifteen years confinement in the Texas Department of Corrections. The Court of Appeals for the Fifth Supreme Judicial District affirmed. Wicker v. State, 696 S.W.2d 680 (Tex.App.--Dallas 1985, pet. granted).

Appellant brings three grounds for review. Specifically, appellant contends that his objection as to the voluntariness of his "confession" was properly preserved, that the lower courts erred in concluding that specific findings of fact and conclusions of law as to the voluntariness of appellant's statement were unnecessary prior to the admission of that statement in evidence against appellant in a trial before the court, and that the lower courts misconstrued Article 38.22, § 6, V.A.C.C.P., in that appellant's statutory and constitutional rights were violated by the failure of an employee of the Texas Department of Human Resources to warn appellant that any statement made by appellant could be used against him in a subsequent criminal proceeding. After setting forth the facts in sufficient detail to facilitate our discussion of appellant's grounds for review, we shall address these grounds seriatim.

I.

In March, 1984, the fourteen year old complainant, L.C.P., was living in Balch Springs, near Dallas, with her stepmother, Angela Wicker, hereinafter Wicker, and her father, appellant in this case. Also residing with them were appellant's two sons and appellant's stepmother. Approximately the ninth of March, Wicker and appellant's stepmother left the family residence to go shopping. L.C.P. was instructed to remain on the front porch to supervise her two young brothers. Appellant had been ill with "the flu" that day and had remained home from work.

L.C.P. went inside the house to place a spoon in the sink, and was returning to the front porch when appellant, her father, summoned her to him. Initially she refused the request, informing her father that she had been instructed to supervise her two young brothers. Then L.C.P. approached her father, who was at that time on the couch watching television. Appellant told her to go to his bedroom, and she refused. Appellant then told her to go to her own bedroom and L.C.P. complied. Her trial testimony indicated that appellant "pushed me towards my bedroom."

L.C.P. went to her bedroom and initially sat on the bed and then "laid back" on the bed. Appellant's confession states that he attempted to remove her pants but was unsuccessful, and that L.C.P. then removed her own pants and laid back on her bed. L.C.P.'s trial testimony indicated that appellant removed her pants. Both parties agree that appellant and L.C.P. then engaged in sexual intercourse and that appellant "did not use any force" immediately prior to or during the act. Afterward L.C.P. got dressed and was instructed by appellant not to tell anyone what had occurred.

Later on the same evening, L.C.P. did inform her stepmother, Wicker, of the alleged sexual assault. Wicker discussed the matter at length with appellant, out of L.C.P.'s presence.

On April 2, 1984, a referral, from a source not revealed in the record, was received by the Dallas County Child Welfare in which it was alleged that L.C.P. was being sexually abused by her father, appellant. Pursuant to this referral, Paul Thatiah, a social worker with the Texas Department of Human Resources, interviewed L.C.P. at her school in the presence of her school counselor. Based upon this interview, Thatiah "had to take her into protective custody," pursuant to Tex.Fam.Code Ann. § 17.03(a)(5) (Vernon 1986). Thatiah attempted to contact Wicker by phone but was unsuccessful. On April 4, an assistant district attorney for Dallas County filed cause number 84-373X-305 in the district court for the 305th judicial district. That action is styled "In The Interest of [L.C.P.], a Child," and is entitled "Suit Affecting the Parent-Child Relationship, Petition for Temporary Restraining Order, Emergency Care and For Temporary Managing Conservatorship." See Tex.Fam.Code Ann. §§ 17.02, 17.03 (Vernon 1986). This action was based upon affidavits by Thatiah and L.C.P.

At some point not reflected in the record, Thatiah contacted Wicker by phone and discussed the alleged sexual assault with her. Appellant was out of town at that time, but Wicker contacted him and discussed the situation with Thatiah. Appellant called Thatiah on Sunday, April 8th, to discuss L.C.P.'s allegations. According to Thatiah's description of the call, appellant was "kind of dejected and depressed" and "confessed to me over the phone that he had done it, and said he was sorry and felt that he needed treatment." Wicker, testified that Thatiah "promised" that if appellant would "come in and tell his story," Thatiah "would see that he got treatment and probation, and that if he didn't he would be in serious trouble." Thatiah denied this statement at trial.

On Monday, April 9, appellant went to Thatiah's office and there executed, in his own handwriting, a statement which admitted the sexual assault of L.C.P. in early March. The statement was typed and appellant swore to the statement before a notary public. Prior to making this statement, appellant received no promises or assurances ¹ from Thatiah and appellant received no warning as to his constitutional and statutory rights as set forth in Article 38.22, § 2, V.A.C.C.P. The record is silent as to the means through which this statement eventually found its way to the Dallas County District Attorney, although the original was apparently retained in the files of the Department of Human Resources. Following this meeting, appellant was allowed to leave Thatiah's office and resume his daily affairs until the time of his subsequent arrest for sexual assault.

Appellant's trial counsel examined Thatiah on voir dire concerning the practice followed by local office of the Texas Department of Human Resources in suspected sexual abuse cases, and elicited acknowledgment that those in the office routinely attempt to obtain a statement from the accused or suspected child abuser, and then routinely forward such statements to either the district attorney or the police. Thatiah also indicated that he did not "warn people that whatever they say will be used against them." At the conclusion of this voir dire examination, counsel objected:

"Judge, I'd object to this witness's testimony on the grounds that the statement, whatever statement was taken was not voluntary, there were no Miranda rights given, and that these people function as an arm of the State."

The objection was overruled, and appellant's statement to Thatiah was "admitted for purposes of this hearing," subject to additional constraints not relevant to our discussion. ² No findings of fact or conclusions of law were filed with respect to the voluntariness of this statement.

II.

In his brief to the court of appeals, appellant contended that his trial counsel had raised the issue of voluntariness of the statement by means of the above quoted language and that the trial court erred by not filing findings of fact and conclusions of law as required by Article 38.22, § 6, V.A.C.C.P., supra. The court of appeals responded as follows:

"Appellant recognizes that the statute applies to a jury trial; however, appellant believes there is no reason to apply a different rule in a trial before the court. We disagree.

"Under article 38.22, § 6, the trial court must hold a hearing outside the presence of the jury when the voluntariness of a defendant's statement is in question. We hold there was no need for such a hearing because the appellant was tried before the court and a question as to the voluntariness of appellant's statement was not raised. Since no hearing was necessary, no findings of fact were necessary." ³

Wicker v. State, supra, at 685. Thus the court of appeals appears to have concluded both that no issue was raised as to the voluntariness of appellant's statement to Thatiah, and that if the issue was raised, appellant's statutory rights were not violated as Article 38.22, supra, is inapplicable to a bench trial. In so doing, the lower court erred.

Initially we are at loss to understand the lower court's conclusion that the issue of the voluntariness of appellant's confession was not raised. Appellant's trial counsel lodged the objection above quoted prior to the introduction of the confession, and that objection clearly states in pertinent part that "the statement, whatever statement was taken, was not voluntary." Certainly the objection cannot have been overlooked in a record occupying a scant fifty-six pages of testimony.

This Court has long held that even though the defendant neither testifies, nor offers any evidence on the voluntariness of a statement or confession, a trial objection by counsel is sufficient to raise the issue and it is error for the trial court not to resolve that issue. Harris v. State, 465 S.W.2d 175, 177 (Tex.Cr.App.1971) (repeated trial objections based upon voluntariness); Moore v. State, 505 S.W.2d 887, 889 (Tex.Cr.App.1974) (single trial objection); Reed v. State, 518 S.W.2d 817, 819-20 (Tex.Cr.App.1975) (single trial objection not specifically mentioning "voluntariness"); Page v. State, 614 S.W.2d 819, 820-21 (Tex.Cr.App.1981) (single trial objection, not specifically mentioning "voluntariness," addressed to the absence of judicial...