Opinion
No. 2-03-288-CR.
Delivered: April 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 30th District Court of Wichita County.
PANEL B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
OPINION
I. Introduction
A jury found Appellant Marcos Magdeleano Rodriguez guilty of indecency with a child and assessed punishment at twelve years' confinement. Appellate counsel has filed an Anders brief asserting that there are no grounds that could be argued successfully on appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We grant counsel's motion to withdraw and affirm the trial court's judgment.II. Background
On March 25, 2001, Rodriguez stopped by Heather Torrence's home to visit her and her two young sons. Because Rodriguez was the brother of one of Torrence's friends, he often babysat for Torrence's boys while also keeping his sister's children. After visiting with Torrence for a period of time, Rodriguez went into the dining room to draw pictures with Torrence's three-year-old son, C.B. Shortly thereafter, when Torrence entered the dining room to check on Rodriguez and C.B., she observed C.B. standing on a chair with Rodriguez sitting in a chair directly next to the boy. According to Torrence, Rodriguez had his hand "below the navel in the front" on C.B.'s body, and C.B.'s shorts appeared twisted as though they had "just been pulled right back up." Torrence immediately took C.B. to his room and questioned him about what had transpired in the dining room. In response, C.B. told his mother that Rodriguez had touched his "peepee." Thereafter, during the course of a custodial interrogation, Rodriguez admitted in a recorded statement that he had touched C.B.'s penis with his hand for approximately five minutes during the March 25 incident. Rodriguez was subsequently charged with indecency with a child, a second degree felony. See Tex. Penal Code Ann. § 21.11 (Vernon Supp. 2003). Rodriguez pleaded not guilty to the offense. However, after hearing evidence and testimony from both sides, the jury found Rodriguez guilty and assessed his punishment at twelve years' confinement. Rodriguez appealed.III. The Anders Brief
Rodriguez's court-appointed appellate counsel has filed a motion to withdraw. In support of his motion, counsel has filed a detailed brief in which he avers that, in his professional opinion, this appeal is frivolous. Counsel's brief and motion meet the requirements of Anders by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. 386 U.S. 738, 87 S.Ct. 1396; see Mays v. State, 904 S.W.2d 920, 922-23 (Tex. App.-Fort Worth 1995, no pet.). Specifically, in his brief, counsel raises several potential arguments on appeal, but after thoroughly examining each one, he concludes that none of the arguments would be meritorious. We provided Rodriguez with the opportunity to file a pro se brief, but he did not do so. Once counsel fulfills the Anders requirements, we must conduct an independent evaluation of the record to determine whether counsel is correct in determining that the appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim. App. 1991); Mays, 904 S.W.2d at 923. We have conducted an independent review of the record and have determined just that.IV. Independent Review of the Record
A. Pre-trial In the instant case, the indictment tracks the statutory language of the offense for which Rodriguez was convicted. It alleges that the offense occurred before the presentment of the indictment. See Tex. Penal Code Ann. § 21.11(a). The indictment conferred jurisdiction on the trial court and provided Rodriguez with sufficient notice to prepare a defense. See Tex. Const. art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim. App. 1997). Prior to trial, Rodriguez filed a motion to suppress the oral statement given to police after he was taken into custody, complaining that his statement was not freely and voluntarily made. After a hearing, the trial court denied Rodriguez's motion, finding that the statement was voluntary, and therefore, admissible at trial. This court reviews a trial court's denial of a motion to suppress under a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and reviewing de novo the court's application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). At the suppression hearing, Officer William Brett Hart, a Wichita Falls police officer, testified that Rodriguez was fully advised of his rights before giving his statement, and he agreed to waive them. According to Officer Hart, Rodriguez was not threatened or coerced into giving the statement. Officer Hart also testified that during the questioning, Rodriguez was not promised anything in exchange for his statement, and he never requested an attorney or asked that questioning cease. Officer Hart was the only witness who testified at the suppression hearing. Thereafter, Rodriguez argued that his statement was involuntary because he invoked his right to remain silent during the interrogation, he was promised a benefit in exchange for his confession, and he lacked a sufficient "mental functioning level." Specifically, Rodriguez maintained that he invoked his right to remain silent in the following exchange:[OFFICER HART]: You guess? I know it happened. C.B. knows it happened. Heather saw what happened. Now you tell me, did the bad person take over a little bit that . . . that morning? Or did the good person just say, well, I'm going to do it anyway. Which one is it? You don't know or you don't want to answer?
RODRIGUEZ: Don't want to answer.It is well-settled law that law enforcement is permitted to interrogate a suspect in custody until the suspect unambiguously invokes his right to remain silent. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.Crim.App. 1996). Moreover, law enforcement is not required to ask questions to clarify whether a suspect wishes to invoke his right to remain silent. Id. In the instant case, Rodriguez's statement was a direct response to Officer Hart's previous question. Consequently, Rodriguez did not unambiguously invoke his right to remain silent, and Officer Hart did not violate Rodriguez's right by continuing to interrogate him. The record also reflects that Officer Hart never promised Rodriguez any benefit or leniency in order to induce him to confess. During the interrogation, Officer Hart was merely attempting to persuade Rodriguez to tell the truth about what had transpired between him and C.B. See Dykes v. State, 657 S.W.2d 796, 797 (Tex.Crim.App. 1983) (recognizing that confession is not rendered inadmissible by telling suspect that it would be best to tell the truth). Additionally, evidence of mental deficiency alone does not render a confession involuntary. See Penry v. State, 903 S.W.2d 715, 744-46 (Tex.Crim.App.), cert. denied, 516 U.S. 977 (1995). In the instant case, there is no evidence in the record demonstrating that Rodriguez's mental impairment was so severe that he was incapable of understanding the meaning and effect of his confession. See Casias v. State, 452 S.W.2d 483, 488 (Tex.Crim. App. 1970). Therefore, because the record supports the trial court's finding that Rodriguez's oral statement was freely and voluntarily made, the trial court did not abuse its discretion by denying Rodriguez's motion to suppress. See Tex. Code Crim. Proc. Ann. arts. 38.21-.22 (Vernon 1979 Supp. 2004); Dewberry v. State, 4 S.W.3d 735, 747-48 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131 (2000). Further, with the exception of matters related to Rodriguez's motion to suppress, Rodriguez's pretrial motions were either granted, agreed to by the State, or agreed to by Rodriguez and the State at the pretrial hearing. During voir dire, the trial court permitted Rodriguez to ask proper questions of the panel. The trial court also granted all Rodriguez's challenges for cause. However, after the State exercised its peremptory strikes, Rodriguez raised a Batson challenge, claiming that the State struck two Hispanic venire members, Mr. Jimenez and Mr. Hernandez, solely based on their race. After hearing argument from both sides, the trial court denied Rodriguez's Batson challenge as to both Mr. Jimenez and Mr. Hernandez. When reviewing a Batson challenge on appeal, we must determine whether the trial court's decision was "clearly erroneous" by examining the evidence in the light most favorable to the trial court's ruling. Yarborough v. State, 983 S.W.2d 352, 354 (Tex. App.-Fort Worth 1998, no pet.). A ruling is clearly erroneous when, after searching the record, we form a definite and firm conviction that a mistake has been committed. Hill v. State, 827 S.W.2d 860, 865-66 (Tex.Crim.App.), cert. denied, 506 U.S. 905 (1992). The trial court's determination as to whether a defendant carried his burden to prove purposeful discrimination is a finding of fact that must be accorded great deference on appeal. See Chambers v. State, 866 S.W.2d 9, 23 (Tex.Crim.App. 1993), cert. denied, 511 U.S. 1100 (1994). Therefore, we will not disturb the trial court's decision on appeal absent some evidence in the record to rebut the State's race-neutral explanations. Yarborough, 983 S.W.2d at 354. During the Batson hearing, the State advised the trial court that it struck Mr. Jimenez because "he was highly skeptical of police officers and he was chewing gum." Both of the State's aforementioned reasons for striking Mr. Jimenez were facially valid and race-neutral. See Davis v. State, 964 S.W.2d 352, 355 (Tex. App.-Fort Worth 1998, no pet.) (holding challenge based on venire member's statement that prior incident with police left a bad taste in her mouth was race-neutral); Webb v. State, 840 S.W.2d 543, 545-46 (Tex. App.-Dallas 1992, no pet.) (holding challenge based on venire member chewing gum during voir dire was race-neutral). Our review of the record reveals no evidence rebutting the State's race-neutral explanation for striking Mr. Jimenez. Therefore, the trial court's denial of Rodriguez's Batson challenge as to Mr. Jimenez was not clearly erroneous. See Pitte v. State, 102 S.W.3d 786, 791 (Tex. App.-Texarkana 2003, no pet.) (stating that "[w]hen the trial court is offered no evidence in rebuttal of the State's race-neutral explanation, the reviewing court is not in a position to say that it feels a definite and firm conviction that the trial court made a mistake."). The State also explained that it peremptorily challenged Mr. Hernandez because one of the prosecutors saw him raise his hand in response to a question asking, "Is there anyone on the panel who has a friend or family member who was fondled or molested or who yourself was a victim of that?" A venire member's history as a crime victim constitutes a race-neutral reason for exercising a peremptory strike. See Catley v. State, 763 S.W.2d 465, 466-67 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd). Although Rodriguez immediately advised the trial court that he did not observe Mr. Hernandez raise his hand in response to the State's question, he did not attempt to recall Mr. Hernandez to determine whether or not he had actually raised his hand Thereafter, the trial court accepted the State's race-neutral reason for striking Mr. Hernandez and rejected Rodriguez's claim that the reason was merely a pretext for purposeful discrimination. Because the trial court's decision turned largely on an evaluation of credibility and is supported by the record, the denial of Rodriguez's Batson challenge as to Mr. Hernandez was not clearly erroneous. See Ladd v. State, 3 S.W.3d 547, 563 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1070 (2000); Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 926 (1993). Thus, our review of the record reveals that no reversible error occurred prior to trial.