Opinion
03-22-00764-CR
06-21-2024
James Beavers, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 424TH DISTRICT COURT OF BURNET COUNTY NO. 50163, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Kelly and Theofanis
MEMORANDUM OPINION
Darlene Byrne, Chief Justice
A jury found James Beavers guilty of continuous sexual abuse of a child under the age of 14. See Tex. Penal Code § 21.02(b). The jury assessed sentence at 45 years in prison. On appeal, Beavers complains that the trial court erred by failing to conduct a hearing on the voluntariness of his confession and by omitting an instruction from the charge regarding the voluntariness of his confession. We will affirm the judgment.
We have reviewed the record, but as sufficiency of the evidence is not raised we need not recount at length the evidence of offenses involving a child. We will focus our recitation on those aspects of the record relevant to the issues presented regarding the voluntariness of Beavers's confession.
A then six-year-old child told her grandmother, "James touched me on my private parts and I did not like it." The child lived with her grandmother but visited her mother on alternate weekends. James Beavers stayed in the house where the child's mother lived. After one visit, the child reported that the touching happened while she was in the bathtub. The child later told a forensic interviewer that Beavers tickled her on the part of her body that "she uses to go potty" under her clothes more than once. She reported that it happened in James's room and in the bathtub usually while her mother was cooking or cleaning. The child told the interviewer that Beavers told her not to tell anyone about the touching. When testifying in court at nine years of age, the child did not recognize Beavers in the courtroom and said, "I guess I forgot what he looks like." She testified to events similar to those reported by the investigator except that the child did not in court recall being touched while in the bathtub.
Texas Department of Public Safety special agent Michael Benjamin Carlson testified about his interview of Beavers. Carlson testified that Beavers came to the interview voluntarily. He had Beavers read the written Miranda warnings aloud then sign warnings acknowledging that he understood his rights, including to remain silent. Carlson testified that Beavers never gave the impression of being unwillingly led into something he did not agree to do. Carlson said that people who confess generally are not truthful about the offense at the beginning of the interview and do not confess immediately.
Beavers's interview lasted about four hours including breaks. Carlson testified that Beavers described himself as intelligent and never appeared not to understand what was going on. Carlson said Beavers said he had been sick and had not slept. Carlson testified that, though he used leading questions, he tried to minimize their use when asking about the details of the offense. Carlson said he never yelled, and Beavers testified that Carlson was cordial throughout. Carlson offered him water and mints or gum.
Carlson testified that Beavers contradicted himself during the interview regarding whether he was regularly at the mother's home and whether he was ever alone with the children (the child and her sister). Beavers initially denied the child's allegations, saying the child might lie about the incident because he had disciplined her-though Beavers had said he was not allowed to discipline the children. Beavers eventually admitted to "tickling" the child's vagina three or four times but denied that he penetrated her vagina. He demonstrated during the interview how he moved his hand when he touched her. (The child had demonstrated a hand movement during her testimony.) In response to a question about the "tickling," he said that his washing the child may have been misconstrued as inappropriate. He said he touched her vagina under her clothes in a TV room three or four times and used his hand to show how he went "down the front" of the child's body and under the front waistband. He was stronger in his denials that he had pulled his pants down or showed her his penis. When asked if he was sorry for what happened with the child, Beavers said, "Well, yeah." Beavers also first denied, then admitted once touching the child's younger sister's vagina; he said, "[I]t worked on one, let me try it on the other one." But Carlson said Beavers said he did it only once because "it didn't work" because the younger sister moved away from his hand. He also told Carlson that the child in this case was the only child he has "made that mistake with."
When Carlson left the room during the interview, Beavers said aloud in the empty room, "This just keeps getting worse . . . even though I didn't do anything." Carlson said Beavers knew that the interview was being recorded. Carlson said he returned to the room after Beavers made that utterance, but Beavers did not recant or clarify any of his admissions.
Beavers testified in court that the curtains separating his bed area from the rest of the room did not close completely, so the child's mother could see past them even when they were closed. He said he was not alone with the child. He said he bathed the children when their mother was making dinner or cleaning. He said the baths would last 10 to 15 minutes. He said that the child could mostly bathe herself but needed help with her hair and her back. He used a loofah or washrag, never his hands alone. He said the doors always stayed open through adjoining rooms, so the bathroom was visible through to the kitchen. He said his hand may have slipped when he was tickling her on her sides. He denied touching the child's vagina or showing her his penis. Beavers testified that his description of his method of touching the child during the interview came from his actions with the child's mother and that the child might have imitated his hand movements that she saw him making with her mother when she walked into their bedroom unannounced.
Beavers agreed that he had at the beginning of the interview read his rights that included his Miranda rights and that he did not have to be there and could leave at any time. But Beavers said that during the interview with Carlson, he was nervous and fearful. He did not feel like he could leave because of body language and how the conversation was going. He felt like he was already condemned. He said he felt like he was not going to leave unless he admitted to something he did not do. He said that Carlson's interruptions of his answers made him feel like he had to follow Carlson's story. He said that his statement that he was sorry for what he did was sympathy for the child's experience, not an admission that he had done anything wrong. He said his admission to Carlson about trying to touch the younger child was him "still following [Carlson's] storyline where I'm the bad guy, even though I didn't do anything, but bathe the kids." He said he "just wanted to give him something so he could leave me alone."
DISCUSSION
Beavers complains of two failures to act by the trial court related to the voluntariness of his confession. He asserts that the trial court erred by failing to conduct a hearing on the voluntariness of his confession under Texas Code of Criminal Procedure article 38.22, section 6. He asserts that the trial court erred by omitting an instruction from the charge regarding the voluntariness of his confession under that same article, causing him egregious harm. Because these issues have similar roots, we will discuss them together.
The Court of Criminal Appeals laid out the process for the consideration of voluntariness of a confession under Texas law:
(1) a party notifies the trial judge that there is an issue about the voluntariness of the confession (or the trial judge raises the issue on his own); (2) the trial judge holds a hearing outside the presence of the jury; (3) the trial judge decides whether the confession was voluntary; (4) if the trial judge decides that the confession was voluntary, it will be admitted, and a party may offer evidence before the jury suggesting that the confession was not in fact voluntary; (5) if such evidence is offered before the jury, the trial judge shall give the jury a voluntariness instruction. It is only after the trial judge is notified of the voluntariness issue (or raises it on his own) that a chain of other requirements comes into play, culminating in the defendant's right to a jury instruction.Oursbourn v. State, 259 S.W.3d 159, 175 (Tex. Crim. App. 2008) (footnotes and citations omitted); see also Tex. Code Crim. Proc. art. 38.22, § 6. Voluntariness must be determined by considering the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). A confession must be free and voluntary; it must not be extracted by any sort of threat or violence, obtained by any direct or implied promises, however slight, or acquired by the exertion of any improper influence. Bram v. United States, 168 U.S. 532, 542-43 (1897) (citations omitted); Roberts v. State, 545 S.W.2d 157, 160-61 (Tex. Crim. App. 1977).
The Court of Criminal Appeals compiled examples of fact patterns held to have raised the voluntariness issue under state law. Oursbourn, 259 S.W.3d at 169-70. The analysis can guard against police or governmental overreach and encompass an examination of the defendant's state of mind that can render a confession involuntary if given under duress of hallucinations, illness, medications, or a private threat. Id. at 172; see Tex. Code Crim. Proc. arts. 38.21-.23. Fact scenarios that can raise a state-law claim of involuntariness even though they may not raise a federal constitutional claim include:
(1) the suspect was ill and on medication and that fact may have rendered his confession involuntary; (2) the suspect was mentally retarded and may not have "knowingly, intelligently and voluntarily" waived his rights; (3) the suspect "lacked the mental capacity to understand his rights"; (4) the suspect was intoxicated, and he "did not know what he was signing and thought it was an accident report" . . . .Oursbourn, 259 S.W.3d at 172-73 (footnotes and citations omitted).
In the trial court, Beavers addressed voluntariness of his confession only as the eighth of eighteen issues in his omnibus pretrial motion filed several months before the November 2022 trial. His May 2021 motion included the following: "Defendant requests a hearing outside the presence of the jury prior to the introduction of any statements allegedly made by the Defendant, either orally or in writing, to determine the voluntariness and admissibility of them, and requests disclosure of these statements prior to trial." He filed this same collection of motions on June 29, 2022. There is no indication in the record that Beavers brought this motion to the court's attention otherwise or received a ruling before or during the November 2022 trial. At the hearing immediately preceding jury selection, Beavers brought to the court's attention his motion in limine filed June 29, 2022, regarding mention of prior bad acts or alleged extraneous offenses, a polygraph test, and sexual contact with another child, but did not mention any issue regarding the voluntariness of his confession. He did not file a motion to suppress the interview or confession. In opening statement, Beavers's counsel referred to a "false" confession but did not mention involuntariness. Beavers did not object to admission of the audio recording of the interview that contained his confession; rather, his counsel stated "no objection" when the recording was offered. Beavers, however, argues that he "raised" the issue of voluntariness through his trial testimony and cross examination of law enforcement.
While the Court of Criminal Appeals has held that a trial court had a duty to conduct a hearing on the voluntariness of a statement without a formal request for such a hearing, the circumstances of that case "clearly raised" the issue of voluntariness of the confession. See Figueroa v. State, 473 S.W.2d 202, 204 (Tex. Crim. App. 1971). In that case, police executed a search warrant at Figueroa's home when he was away. Officers arrested appellant and his wife upon their return home and asked him "where the heroin was" and told him that they would find it if he did not give it to them; without having been warned about his rights, Figueroa said to his wife "tell them." Id. at 203. After Figueroa was taken to the police station, his wife surrendered heroin from her person. Id. At the police station, Figueroa made a written confession that he later complained was induced while he was still under the improper influence surrounding his oral confession exacerbated by threats to file charges against his wife and promises to release her if he confessed, plus a continued failure to adequately advise him of his rights. Id. The Court of Criminal Appeals held that, despite the absence of a formal request for a separate hearing on voluntariness, Figueroa's repeated objections to the admission of the confession and the voir dire examination in the jury's presence of the officer who had taken the statement were sufficient to alert the trial court that Figueroa questioned his statement's admissibility on the ground of involuntariness. Id. at 204 n.1. The Court of Criminal Appeals has also held that the trial court can "wait until the defense makes a timely objection at trial before holding the hearing." Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984). Beavers did not conduct a voir dire examination like that in Figueroa or object to the admission of the confession to prompt a hearing as in Ross; to the contrary, Beavers expressly had "no objection" to the admission of the audio recording of the interview in which he confessed.
Further, even if we were to consider Beavers claim on the merits, we would not conclude that his confession was involuntary. The record contains no threat or violence, direct or implied promises, or exertion of any improper influence found to undercut the voluntariness of and impair the admissibility of a confession. See Bram, 168 U.S. at 542-43; Roberts, 545 S.W.2d at 160-61. Beavers came to the interview on his own, read his rights aloud, and was told that he could leave the interview. He was not under arrest and was not handcuffed. Beavers testified that he did not feel like he could leave because of body language and how the conversation was going. He said he felt like he was already condemned. He testified that he felt like he was not going to leave unless he admitted to something he did not do. He said that Carlson's interruptions made him feel like he had to follow Carlson's story. Beavers did not ask to leave, did not try to leave, and was not prevented from leaving. He said that Carlson did not yell at him. There is no indication that Carlson made threats or promises to induce a confession. Though Beavers asserted that he felt compelled to follow Carlson's narrative, he nevertheless did not follow Carlson's alleged narrative on assertions that Beavers showed his penis to the child.
We conclude that the issue of voluntariness of his confession was not "raised" within the meaning of article 38.22, section 6, and that the trial court's duty to hold a hearing was therefore not invoked. Ross, 678 S.W.2d at 493; see Gaston v. State, No. 01-01-00292-CR, 2003 WL 253598, at *4-5 (Tex. App.-Houston [1st Dist.] Feb. 6, 2003, pet. ref'd) (mem. op., not designated for publication) (holding voluntariness not raised). Even if it were raised, the claim that his confession was involuntary fails on the merits. We overrule issue one.
Because Beavers did not request an instruction regarding the voluntariness of his confession and did not object to its absence from the charge, to show error in the trial court's failure to provide the instruction on its own Beavers must show that the instruction is the law applicable to the case and that he was egregiously harmed by its absence. See Oursbourn, 259 S.W.3d at 174-76; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). To warrant an instruction, "the evidence must raise a 'voluntariness' issue." Oursbourn, 259 S.W.3d at 174. "An instruction must be given if a reasonable jury, viewing the totality of the circumstances, could have found that the statement was not voluntarily made." Vasquez v. State, 179 S.W.3d 646, 662 (Tex. App.-Austin 2005), aff'd, 225 S.W.3d 541, 544-45 (Tex. Crim. App. 2007). The voluntariness issue is "law applicable to the case only if the parties actually litigate a Section 6 voluntariness issue before the trial judge." Oursbourn, 259 S.W.3d at 175. In Oursbourn, the Court of Criminal Appeals held that testimony about the defendant's bipolar condition, depression, and manic state at the time of the confession, plus the subsequent judicial declaration that he was incompetent to stand trial raised the issue of voluntariness sufficiently to require submission of a voluntariness instruction to the jury. Id. at 181.
We conclude that the record does not reveal error in the failure to instruct the jury on the voluntariness of Beavers's confession. Beavers's complaints that something about Carlson's body language rendered him unable to resist confessing do not describe the level of coercion found to render confessions involuntary. See Oursbourn, 259 S.W.3d at 172-73. Beavers's claim is belied by his resistance to confessing to other "suggested" criminal acts. Further, the parties did not litigate the voluntariness issue to bring it to the court's attention. Statutes concerning voluntariness of confessions were thus not law applicable to the case, Beavers was not entitled to such an instruction, and the trial court did not err by omitting to instruct the jury on the issue. See id. at 175. We overrule issue two.
CONCLUSION
Having overruled both of Beavers's issues, we affirm the judgment.
Affirmed.