Opinion
Nos. 05-04-01226-CR, 05-04-01227-CR
Opinion Filed July 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-40329-Ps F03-41449-VS. Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
Appellant Raul Anthony Cuellar appeals two convictions for aggravated sexual assault of a child under 14. After finding appellant guilty, the jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for twenty-five years on each count and assessed no fine. The trial judge ordered that the terms be served concurrently. In five points of error, appellant contends the evidence is factually insufficient to support his convictions, the trial court erred in admitting two written statements attributed to appellant and overruling appellant's motion for new trial, and appellant received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgments. Appellant and his wife at the time, Deborah Aikman, took in Aikman's niece, A.R., when A.R. was approximately eight years old. A.R. had moved back and forth between her mother and various foster homes before moving in with appellant and Aikman. A.R.'s mother has battled an ongoing drug addiction problem. For approximately four years, A.R. lived with appellant and Aikman when Aikman's bipolar condition forced her into residential treatment. From that point until appellant's arrest, A.R. lived alone with appellant. In October 2003, when A.R. was thirteen years old, she and her sixteen-year-old friend, Misty Kempf, asked appellant if she could spend the night with Misty. A.R. alleges that appellant said, "[I]f you give me a helmet wash, then you can go stay the night." A.R. testified that she understood the term to mean "to give him head," that is, put appellant's penis in her mouth. Misty testified at trial that she heard the comment as well, though the record indicates that her written statement to police given two days after the incident does not make this allegation. At trial, Misty testified that she did not understand what the term meant and A.R. would not explain it. Misty testified that a short while later, A.R. began crying and told Misty what appellant had meant. A.R. told Misty that appellant coerced her on several occasions into performing oral sex on him and, less frequently, allowing appellant to perform oral sex on her. Misty testified that A.R. told her not to tell Misty's mother, Angela Kempf, but she immediately did upon returning home that evening. The following day, Saturday, Angela persuaded appellant to allow A.R. to stay over with Misty in an attempt to get A.R. out of appellant's home. On Sunday, A.R. stayed at the Kempf's house, and Angela called Child Protective Services to report what A.R. had told her. Angela then went to work, and in the afternoon, appellant came looking for A.R. When the two girls did not answer the door for appellant, he began banging on the windows and shouting. The girls called Angela at work, who called the Mesquite Police Department. By the time police were dispatched to the Kempf's residence, appellant had left. A.R. informed the police at that time about her allegations of sexual abuse by appellant. The police later picked him up at the home where appellant and A.R. lived. Appellant was questioned for approximately three hours by Detective Michael Holley of the Sexual Assault Unit of the Mesquite Police Department. Appellant contends that he asked for an attorney eight times during the questioning but was ignored. Detective Holley testified that appellant never asked to see an attorney. The interview was not audio or videotaped; Detective Holley testified that such interviews are never taped by the Mesquite Police Department. At trial, the State produced a Miranda warning card signed by appellant at the beginning of the interview. Detective Holley testified that appellant expressed remorse about the incident during the questioning and "that he was not a monster. Those were his words." However, during the State's rebuttal case, Detective Holley testified, "It's not uncommon for me to bring up the word 'monster' in an interview with a defendant who's accused of a sexual offense. . . . I routinely use that word in an interview. . . ." During the interview, the detective prepared the following written statement for appellant's signature based on his understanding of appellant's oral statements:
One night I came home and I was intoxicated in my room on my bed. I woke up and [A.R.] was sucking my dick. She just got up from sucking my dick. I was embarrassed — I thought it was my wife Debra — when I opened my eyes, I realized it was my daughter [A.R.]. I asked her where she learned this and she said from a couple of guys in Garland with her girlfriend. This happened after a Christmas party last year at our house on Long Creek.When presented with this written statement, appellant declined to sign it and wrote out his own statement:
One night I came home, I was intoxicated. I passed out on my bed. I was dreaming of having sex with my wife Deborah, I woke up and [A.R.] got up. She was sucking on me. I was embarrassed. I asked her what she was doing, she said she had done several guys in Garland, at the apartments, while I was working with her friend Laura.This statement was signed by appellant. Detective Holley and two civilian employees of the police department testified that appellant stated he meant A.R. was sucking on his penis in his written statement. Appellant contends he meant A.R. was sucking on his ear. The signed statement was offered at State's Exhibit #2, and the unsigned statement was offered as State's Exhibit #3. Appellant objected timely to the admission of both statements. The trial judge overruled appellant with respect to State's Exhibit #2, the statement signed by appellant, but initially sustained his objection to State's Exhibit #3, the unsigned statement written by Detective Holley. Later, the trial judge admitted the unsigned statement for purposes of impeaching appellant regarding what appellant meant when he said A.R. had been sucking on him. In five points of error, appellant argues that 1) the evidence is factually insufficient to show appellant committed the offense charged, 2) the trial court erred in admitting the unsigned statement attributed to appellant in violation of Texas Code of Criminal Procedure rule 38.22, 3) the written statement signed by appellant was obtained in violation of appellant's right to counsel, 4) the trial court erred in overruling appellant's motion for a new trial, and 5) appellant did not receive effective assistance of counsel at trial.
Detective Holley claims the statement was taken down verbatim. Appellant disputes that these were his words.
Appellant's brief claims appellant did not receive assistance of counsel at trial. It is clear from the brief that appellant is referring to the effectiveness of the counsel appellant did receive.
Admission of Statements
We first address appellant's second and third points of error because they bear on appellant's first point. In his second point, appellant complains that State's Exhibit #3, the unsigned statement written down by Detective Holley, should have been excluded under Texas Code of Criminal Procedure article 38.22. Article 38.22 states in relevant part that no oral statement of an accused made as a result of custodial interrogation shall be admissible unless an electronic recording of the statement is presented. See Tex. Code Crim. Proc. art. 38.22 § 3(a) (Vernon 1979). There are several exceptions to the rule, including the use of an unrecorded voluntary oral statement to impeach the defendant's trial testimony. Id. at § 5; Lykins v. State, 784 S.W.2d 32, 35-36 (Tex.Crim.App. 1989). Appellant claims that his unsigned statement is not a voluntary statement. While Detective Holley did testify that appellant wanted to revise the statement after he read it, the detective also testified that the statement was written down as it was given by appellant. We conclude that the statement was voluntary. The record in this case clearly reflects that the trial judge only allowed appellant's unsigned statement in to impeach his testimony. Appellant testified that he meant A.R. had been sucking on his ear in his signed statement, and the State offered the unsigned statement to show that appellant meant A.R. had been sucking on his penis. We conclude that the unsigned statement was properly admitted for impeachment purposes in accordance with Texas Code of Criminal Procedure article 38.22, section 5. We overrule appellant's second point. In his third point of error, appellant contends his signed statement should have been excluded because his due process rights were violated when his request to see an attorney was ignored. Appellant alleges that he requested an attorney on eight occasions during his questioning, a fact disputed by Detective Holley. In addition to his Miranda violation claim, appellant also contends that his signed statement should have been excluded because of an alleged deception by Detective Holley, the long period of time appellant was held for questioning, and the fact there was no audio or videotape of the manner in which the statement was taken. Appellant claims Detective Holley deceptively told him he would be released if appellant provided some statement to the police. This claim was also disputed by Detective Holley. In a motion to suppress hearing, the trial court 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). Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. Id. This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record. Id. Furthermore, when the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Id. If the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 855-56. The appellate courts should afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Appellant's contention that he asked for an attorney during questioning is contradicted by testimony from Detective Holley. Likewise, appellant's claim that Detective Holley promised appellant he would be let go if he gave a statement was disputed by the detective. The trial court was in a better position than this Court to assess the credibility of the two witnesses. Accordingly, we do not challenge the trial court's implied findings in favor of the State with respect to those issues. Additionally, we do not find the length of time appellant was questioned to be excessive, and appellant directs us to no authority supporting that contention. Appellant also cites no authority that the interview by Detective Holley should have been taped. Accordingly, any claim appellant may have regarding those issues is waived. See Tex. R. App. Proc. 38.1(h). We cannot say the trial court abused its discretion in allowing the signed statement into evidence. We overrule appellants third point.Factual Sufficiency of the Evidence
In appellant's first point, he contends the evidence was factually insufficient to find him guilty of the offense charged. Appellant complains that there was no corroboration of the testimony of the complainant, no DNA or other type of forensic evidence, no examination by a physician to determine whether the child had been sexually assaulted, and no interview by an expert in child sexual abuse to allow the professionals to evaluate the credibility of the witness. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In this case, the jury heard direct testimony from the complainant, A.R., that appellant coerced her into performing oral sex on him and allowing appellant to perform oral sex on her. They heard testimony that A.R.'s friend, Misty Kempf, heard appellant tell A.R. she would have to give appellant a "helmet wash" in order to spend the night with Misty. They also heard testimony from A.Y., another minor friend of A.R., that appellant made the two girls compare their uncovered breasts for him, touched both of their breasts, asked them to get in the shower together, and asked them to let him perform oral sex on both girls. The jury received appellant's unsigned statement in which he admits to sexual contact with A.R. They also received his signed statement and heard testimony from Detective Holley that the detective believed the statement downplayed appellant's culpability based on the detective's years of experience dealing with sex crimes. Finally, the jury heard appellant attempt to explain that he meant A.R. was sucking on his ear in the signed statement, an explanation the jury could have found to be highly implausible given the context of the statement. This could have hurt appellant's credibility with the jury. Appellant's case amounts to little more than denials of complaining witness's testimony and questioning the police's failure to videotape his questioning. He provides us with no authority that a jury could not find guilt absent the factors he suggests in his brief, as set out above. The record includes documents provided by A.R.'s counselor that suggest A.R. may be a troubled teenager; however, the jury could have inferred from those documents that A.R.'s behavior could be a result of the alleged abuse. We cannot conclude that the evidence is too weak to support the finding of guilt beyond a reasonable doubt or contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's first point.Motion for New Trial
In his fourth point, appellant contends that the trial court erred in not granting his motion for new trial. He claims to be able to provide new evidence that the complainant is not credible. Motions for new trial based upon newly discovered evidence are controlled by Texas Code of Criminal Procedure article 40.001, which provides, "A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Proc. art. 40.001 (Vernon 1979). The Court of Criminal Appeals has consistently interpreted that provision as requiring the satisfaction of a four-part test:(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and,
(4) the new evidence is probably true and will probably bring about a different result on another trial.See Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.Crim.App. 2002). The trial court has discretion to decide whether to grant a new trial based upon newly-discovered evidence, and its ruling will not be reversed absent an abuse of discretion. Id. at 37. The credibility evidence appellant points to as the basis for his motion for new trial consists of testimony provided by various relatives and neighbors who claim to know A.R. and that she has a reputation of dishonesty. Appellant has not shown this evidence to have been unknown or unavailable to appellant at the time of trial. Additionally, the evidence is clearly intended to impeach A.R. We cannot say the trial judge abused his discretion in denying appellant's motion for new trial. We overrule appellant's fourth point.