Opinion
No. 10-04-00055-CR
Opinion delivered and filed January 5, 2005. DO NOT PUBLISH.
Appeal from the 249th District Court, Johnson County, Texas, Trial Court # F36784. Affirmed.
George R. Trimber, Attorney at Law, Ft. Worth, TX, for Appellant/Relator. Dale S. Hanna, Johnson County District Attorney, David W. Vernon, Johnson County Asst. District Attorney, Cleburne, TX, for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Appellant appeals his conviction for three counts of aggravated sexual assault of a child. Act of May 28, 1997, 75th Leg., R.S., ch. 1286, § 2, sec. (a)(1)(B), 1997 Tex. Gen. Laws 4911, 4912 (amended 1999-2003) (current version at TEX. PENAL CODE ANN. § 22.021 (a) (1) (B) (Vernon Supp. 2004-2005)). We will affirm. In Appellant's sole issue, he contends that the trial court erred in admitting Appellant's written and recorded oral statements. We assume without deciding that Appellant preserved his complaint. Appellant argues that deception by the police officer who took Appellant's statements rendered the statements involuntary. Appellant contends that the officer told him that a medical examination of the victim showed that Appellant used a lotion in assaulting her anally, as the victim alleged. According to the officer's trial testimony, he had not yet received the medical examination report when he interrogated Appellant. "Ploys to mislead a suspect . . . that do not rise to the level of compulsion or coercion to speak are not within Miranda's concern." Illinois v. Perkins, 496 U.S. 292, 297 (1990); see Miranda v. Arizona, 384 U.S. 436 (1966). "Trickery or deception does not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process." Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App. 1997). "Of the numerous types of police deception, a misrepresentation relating to an accused's connection to the crime is the least likely to render a confession involuntary." Green v. State, 934 S.W.2d 92, 100 (Tex.Crim.App. 1996); see, e.g., Rodriguez v. State, 934 S.W.2d 881, 890-91 (Tex.App.-Waco 1999, no pet.) (officer falsely told defendant that victim had implicated defendant on victim's deathbed); Mason v. State, 116 S.W.3d 248, 259 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (officer falsely told defendant that medical examination showed penetration of victim). Any deception such as alleged by Appellant directly concerned his connection to the crime, and was not such as to compel a false statement. We overrule Appellant's issue. Having overruled Appellant's sole issue, we affirm.
The clerk's record contains Appellant's Motion to Suppress Electronically Recorded Evidence, but does not contain the Motion to Suppress Defendant's Statement Pursuant to Jackson v. Denno to which the record refers. See Jackson v. Denno, 378 U.S. 368 (1964) (voluntariness of confession). The former motion contends only that Appellant did not voluntarily waive his rights under Texas Code of Criminal Procedure Article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 1979). The reporter's record does not contain a hearing on the motions to suppress, although the record otherwise indicates that the court held a hearing. Appellant's counsel stated that he "d[id]n't object" to the admission of the recorded statement, as redacted; but stated, "I just want to preserve my client's rights on appeal purposes, if necessary, to indicate that we respectfully disagree with the Court's ruling" [sic]. When the State offered the statements before the jury, Appellant's counsel stated: "Your Honor, we renew our objection. We would ask that they not be admitted based on Article 3823 of the Texas Code of Criminal Procedure. And we think it's evident it violates both his 5th and 6th Amendment right to the Constitution of the United States and the Texas Constitution, so we renew our objection we made the other day" [sic]. The only point in the record to which Appellant cites as evidence that the police officer deceived Appellant took place after the trial court had made its written findings and after the court had overruled Appellant's objections before the jury. For these several reasons, it is not clear that Appellant timely presented to the trial court the specific complaint that he presents on appeal, or that Appellant obtained a ruling on that complaint.