Opinion
No. 05-04-01341-CR
Opinion Filed April 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F03-46681-SJ. Affirm.
Before Justices WRIGHT, LANG-MIERS, MAZZANT.
OPINION
On September 2, 2004, a Dallas County jury convicted appellant Carlos Reyes of capital murder and made a deadly weapon finding. See Tex. Pen. Code § 19.03(a)(2). On the same day, the trial court sentenced him to life imprisonment. On appeal, appellant argues that the evidence was legally and factually insufficient to show that he committed aggravated sexual assault, a necessary element in the charged capital murder. He also argues that the trial court erred in denying his motion to suppress the second portion of the statement he gave to police. We affirm.
SUFFICIENCY OF THE EVIDENCE
In his second and third issues, appellant argues that the evidence is legally and factually insufficient to prove an essential element of the offense of capital murder, "committing or attempting to commit . . . aggravated sexual assault." Tex. Pen. Code § 19.03(a)(2). He argues that although the State proved that appellant committed the offense of murder and that the appellant and the victim had sex, there was no evidence that appellant sexually assaulted the victim during the course of the murder. He argues that appellant picked up the victim, a prostitute, for the purpose of having sex and that it is probable the fight and murder occurred after consensual sex when appellant and the victim were discussing money matters. Pertinent Facts In the following written statement to police, appellant confessed:I found a woman on St. Augustine. I paid her to have sex, but an accident caused us problems. She took out a knife and we began to fight. I was drunk. I took the knife away from her. I hit her two times, and we had sex once lying down, another time face down. She stayed in the street.
I didn't hear anything else about her, but the truth is that I was just defending myself and now I find myself in this problem. That is the whole truth. Forgive me for what happened, but I did it in self-defense, and she stayed there on the side of the road. Thank you for your attention.
When we fought, I stabbed her with the knife six wounds more or less all over her body. Before we fought, we had sex. But after fighting, we did it again.[Sic et passim]. Shortly after the murder, appellant confessed to his minister's wife that he had killed someone and that her body was in the woods behind the church. She told her husband, and he called the police to report the murder. He also told the police where appellant could be found. Police searched the woods and park area behind the church and discovered the victim's nude body in those woods. Police saw puncture wounds on her chest, as well as puncture wounds on her hands and arms consistent with defense wounds. Part of her throat had been slashed, and her skin showed bruising and other damage. Medical examiner Joni McClain testified that the victim suffered thirty-seven separate sharp force injuries to the body, including stab wounds, incised wounds, and six separate sharp force injuries to the neck. The palm of her right hand bore incised wounds consistent with defensive wounds. McClain determined that the victim bled to death. She testified that the victim could have continued moving or fighting after she was wounded. McClain also conducted a sexual assault examination and toxicology tests. Although there were no injuries to the vaginal or anal area, McClain testified that a person can be sexually assaulted and not show injury. Criminalist David Davenport determined that the sperm recovered from the victim's vagina contained appellant's DNA. Toxicology results revealed that the victim had recently ingested antihistamines, marijuana, and cocaine. Detective Camarillo testified that he drove to the address where he believed the appellant could be located, found him in a back room, and gave him Miranda warnings. Appellant waived those rights and told the detective that he did not know anything about a homicide. The detective noticed that appellant had a bruise and scratches on his face and forearms. After he transported appellant to the police department and during the book-in procedure, appellant started crying and told him that he had "done something wrong." Detective Bustos testified that he inspected appellant's hands and chest and noticed small scratches on his hands, broader fingernail-like scratches on his chest, a significant cut on his left ear, and a "raised part" on his right forehead. Appellant indicated that he received these injuries from the victim. Appellant did not have any stab wounds. Standards of Review When reviewing challenges to the sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001). Viewing the evidence in the light most favorable to the verdict, we determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). Under either review, the jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We defer to the fact finder's determinations of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Applicable Law Penal code section 19.03(a)(2) provides that a person commits capital murder if he "intentionally commits the murder in the course of committing or attempting to commit . . . aggravated sexual assault." A person commits aggravated sexual assault under penal code section 22.021(a)(1)(A)(i), (2)(A)(i) if he intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means without that person's consent and if the person causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode or uses or exhibits a deadly weapon in the course of the same criminal episode. Analysis Viewing the evidence in a light favorable to the verdict, the jury could have found that appellant alone had control of the knife and had sex with the victim at least once after he stabbed her multiple times and likely while she was bleeding to death. Furthermore, it could have found that the victim was trying to defend herself and actively fought off appellant by scratching his arms and chest. Appellant then left the victim, fatally injured, in a remote area where she was unlikely to reach or receive medical help. As the State argues, regardless of whether the victim was a prostitute, she would not likely have consented to sex with appellant at least the second time under these circumstances. We conclude that the jury could have found the elements of the offense beyond a reasonable doubt, that the evidence is legally sufficient to support the element of "intentionally commits the murder in the course of committing or attempting to commit . . . aggravated sexual assault," and that the evidence is legally sufficient to support the verdict. See Martinez v. State, 129 S.W.3d 101, 105 (Tex.Crim.App. 2004) (holding evidence legally sufficient to support element of aggravated sexual assault when jury could have concluded that appellant wielded a knife during sexual encounter with a prostitute and at some point slashed her throat, killing her). Viewing the evidence in a light neutral to the verdict, the evidence shows that appellant took the victim, possibly a prostitute, to a remote location. He admitted that they were fighting with the knife before they ever had sex. He also admitted that he stabbed her at least six times before they had sex a second time. Her blouse was badly torn. Over the course of the encounter, the victim suffered thirty-seven sharp force injuries, including injuries to her hands consistent with defensive wounds. The medical examiner testified that the victim's genital area was not injured but also testified that a person can be sexually assaulted and not have any visible injury. Although appellant also had scratches on his arms and chest consistent with defensive wounds, he did not have any stab wounds. DNA results showed appellant's sperm in the victim's vagina. The evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence, that the victim was a prostitute and therefore consented to both sexual encounters, so strong that the State could not have met its burden of proof beyond a reasonable doubt. See Martinez, 129 S.W.3d at 106 (holding evidence factually sufficient to support element of aggravated sexual assault based on testimony from jail house snitch and appellant's inconsistent confessions and despite allegedly contrary evidence that damning testimony came from incredible source and that victim was a prostitute). We overrule appellant's second and third issues.
MOTION TO SUPPRESS
In his first issue, appellant argues that the trial court erred in denying his motion to suppress the second part of his statement in violation of article 38.21. He argues that Deputy Chavez (1) improperly persuaded appellant to add to his statement by suggesting what he should write and (2) improperly induced him to add to his statement by claiming appellant's statement would "help" him. Hearing on the Motion to Suppress Dallas Sheriff's Deputy Mario Chavez testified that on May 25, 2003, the Seagoville Police Department contacted the Dallas Sheriff's Department asking for someone who spoke Spanish. Chavez met appellant in a Seagoville police department interview room. He read appellant his Miranda warnings in Spanish. Appellant indicated that he understood them and signed a card bearing the Miranda warnings in Spanish. Throughout the interview, appellant did not ask for a lawyer, ask to stop the interview process, or otherwise invoke his Miranda rights. He spoke freely and voluntarily. Chavez testified that he did not make any promises, coerce or threaten appellant, or deny appellant any necessities like bathroom, food, or water. Chavez spoke with appellant for two or three hours. At some point, appellant asked to write down his version of the events. The paper Chavez provided him bore the Miranda warnings in English, and Chavez explained to appellant in Spanish that they were the same warnings that Chavez had already given him. Appellant again indicated that he understood his rights and was willing to waive them and write his statement. Chavez did not make any promises in exchange for the statement, tell him what to write, or suggest a particular word or phrasing. Appellant spent thirty to forty-five minutes writing the first part of the statement. That part of the statement concludes with "[t]hank you for your attention." Appellant concedes that this part of the statement is voluntary. When he finished the first part of his statement, Chavez reminded appellant that the statement was his statement of what happened. Chavez told appellant that he needed to write everything that happened in his own words. On cross-examination, Chavez testified that after appellant wrote the first part of his statement, he asked appellant why he had not written that he hit the victim with a knife. Then Chavez added, "[Y]ou didn't put in there how many times?" and "[Y]ou need to put more in there about what happened." Chavez also told appellant that his statement was to "help him." Some time elapsed before appellant wrote the second part of his statement. Standard of Review We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). But we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Id. Applicable Law The trial court may admit the statement of an accused if he made it freely and voluntarily and without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). A confession is involuntary and therefore inadmissible if circumstances show that police overwhelmed the defendant's will by coercion; police may not obtain a statement "by the influence of hope or fear, applied by a third person to the prisoner's mind." Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App. 1997). In other words, a statement is involuntary if the record reflects "official, coercive conduct of such a nature" that any statement the police thereby obtain is "unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995). A confession may also be involuntary if police obtain it pursuant to a promise. The court of criminal appeals has determined that for a promise to render a confession invalid under article 38.21, "the promise must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully." Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App. 2004); see also Henderson v. State, 962 S.W.2d 544, 564 (Tex.Crim.App. 1997). A reviewing court will determine whether a confession is voluntary based on an examination of the totality of the surrounding circumstances. Green v. State, 934 S.W.2d 92, 99 (Tex.Crim.App. 1996). Analysis Appellant cites two exchanges on cross-examination that he believes constitute evidence of coercion or a promise. As evidence of coercion, appellant cites:Q [Defense counsel]: What did you say right there?
A [Detective Chavez]: I asked him why he didn't put in his statement he hit her with a knife?
Q: Okay. So you are asking him why he didn't put certain things in there, correct?
A: I didn't tell him to put it in. I asked him.
Q: Would it be fair to say you were telling him that you would like that in there?
A: No, I'm asking him why he didn't put it. I'm not telling him to put it in. I asked him, yes.As evidence of a promise, appellant cites:
Q [Defense counsel]: Is it correct to say that right there you're telling him, "but you didn't put in there how many times"?
A [Detective Chavez]: That's correct.
Q: Is it fair to say you're telling him that he should put in it [sic] his statement right there?
A: I just told him this statement is to help him is what I just told him.
Q: You also told him that he should put it in his statement.
A: Yes, sir.Neither of these exchanges show that appellant's confession was involuntary. In the first exchange, Chavez testified that he asked appellant why he had not included in his statement an admission that he hit the victim with a knife. Chavez's remark does not suggest that he was coercing appellant or overbearing appellant's will to include the admission. And appellant has not cited any authority that prohibits an officer from commenting that the suspect has failed to include in his statement information regarding details of the crime. In the second exchange, Chavez testified only that he told appellant that putting more information in the written statement would "help" him. Chavez did not promise any positive benefit of such an influential nature that it would cause appellant to speak untruthfully, and his remark is not an improper inducement. See Johnson v. State, 68 S.W.3d 644, 654 (Tex.Crim.App. 2002) (holding that officer's representation that defendant's cooperation would be conveyed to court not promise inducing confession); Roberts v. State, 545 S.W.2d 157, 161 (Tex.Crim.App. 1977) (holding that husband's confession that drugs belonged to him, not wife, not involuntary even though it resulted in wife's release from jail; trial court could have concluded statement was self-motivated and voluntary because defendant wanted innocent wife freed); Espinosa v. State, 899 S.W.2d 359, 362-64 (Tex.App.-Hous. [14th Dist.] 1995, pet. ref'd) (holding defendant's statement voluntary despite officer's telling appellant, "Go ahead and tell us what happened. Everything will be better for you. You will get less time"). We conclude that, based on a totality of the circumstances, appellant's statement was not involuntary. We overrule appellant's first issue.