Opinion
No. 05-04-00813-CR
Opinion Filed March 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 21954.
Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
Thomas Birmingham appeals his conviction for aggravated sexual assault of a child. After the jury found appellant guilty, it assessed punishment at 60 years' confinement. In two points of error, appellant contends the trial court erred by admitting (1) his oral statement; and (2) certain testimony from his daughter's crisis counselor. We overrule appellant's points of error and affirm the trial court's judgment.
In his first point of error, appellant contends the trial court erred by admitting his oral statement because it does not meet the requirements of article 38.22 of the code of criminal procedure. We disagree.
Article 38.22 of the code of criminal procedure provides that no oral statement made as a result of a custodial interrogation shall be admissible against the accused unless an electronic recording is made of the statement, and, prior to the statement, the accused is given the required warnings and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning. . . ." Tex. Code Crim. Proc. Ann. art. 38.22 § 3 (a) (Vernon Supp. Pamph. 2004-05). These protections apply only to statements made as a result of custodial interrogation. Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996). Custodial interrogation occurs when a person in custody is subjected to direct questioning or its functional equivalent, i.e., when police officers engage in conduct which is reasonably likely to elicit an incriminating response. See Roquemore v. State, 60 S.W.3d 862, 868 (Tex.Crim.App. 2001) (citing Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).
Here, it is undisputed that appellant was in custody. That does not end our inquiry, however, because we must also determine if appellant's statement was made in response to interrogation. Officer Jolie Stewart testified that after she arrested appellant, she attempted to interview him, but stopped the interview after he requested an attorney. As she was leaving the interview room, appellant asked if he could have his bond lowered. Stewart told him to speak with the judge about it. Appellant then said, "[I]t's not like I'm a pedophile or anything, it was just my daughter." Thus, appellant's statement was not in response to interrogation by Stewart, but was volunteered by appellant. Because the complained-of statement was a volunteered admission, and not the result of interrogation, the article 38.22 protections do not apply. See Camarillo v. State, 82 S.W.3d 529, 535 (Tex.App.-Austin 2002, no pet.); Lam v. State, 2 S.W.3d 233, 239 (Tex.App.-San Antonio 2000, no pet.). We overrule appellant's first point of error.
In his second point of error, appellant contends Leslie Kuerbitz's testimony improperly bolstered appellant's daughter's testimony. When Kuerbitz, a licensed crisis counselor, testified that she "knew it had occurred," appellant objected that Kuerbitz did not have personal knowledge of the alleged sexual abuse, and the complained-of statement was "irrelevant." After some discussion, Kuerbitz told the trial court that she was referring to "the allegation of sexual abuse." Appellant said, "Okay" and the State continued its questioning. Because appellant received all of the relief he requested, there is nothing for this Court to review. See Dixon v. State, 2 S.W.3d 263, 273 (Tex.Crim.App. 1998).
In any event, after examining the record as a whole, we have a fair assurance that even if the trial court erred by allowing the complained-of statement, the error, if any, did not influence the jury or influenced the jury only slightly. The complained-of testimony was not a direct comment on appellant's daughter's credibility. Appellant's daughter testified at some length and in detail regarding the repeated sexual abuse by appellant. Her testimony was corroborated by appellant's neighbor, who testified that appellant admitted having sex with her, and by appellant's son, who testified he suspected his father was having sex with his sister after he heard them moaning loudly. Finally, the State did not emphasize the complained-of testimony. Thus, even assuming the trial court erred by allowing the testimony, we would not conclude it was reversible error. See Perez v. State, 113 S.W.3d 819, 831 (Tex.App.-Austin 2003, pet. ref'd). We overrule appellant's second point of error.
Accordingly, we affirm the trial court's judgment.