Opinion
No. 05-16-00495-CR
03-19-2018
JEFFREY SCOTT HAZLETT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas
Trial Court Cause No. 380-81088-2015
MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Boatright
Opinion by Justice Lang-Miers
Appellant Jeffrey Scott Hazlett was convicted of indecency with a child by sexual contact and sentenced to eleven years imprisonment. Appellant raises two issues on appeal. In his first issue, appellant claims that the trial court abused its discretion by finding that his written statement was voluntary and by limiting his cross-examination of the agent to whom the statement was made during the suppression hearing on that statement. In his second issue, appellant challenges the sufficiency of the evidence to support his conviction. We affirm the trial court's judgment.
Appellant was also charged with, and tried for, continuous sexual abuse of a child. The jury acquitted appellant of that charge.
Background
L.H., a fourteen-year-old child, testified that her father, appellant, had sexually abused her by touching her inappropriately when she was between nine and eleven-years-old, i.e., during the years 2008 - 2011. L.H. made outcry of these allegations against appellant to her mother on February 2, 2015. They reported these allegations to the Allen Police Department the next day. Appellant, when initially questioned by law enforcement officers, denied these allegations. He later orally confessed to some of L.H.'s allegations during an interview with a Secret Service agent which immediately followed a polygraph examination; he had been told by the agent that he had failed that polygraph. Appellant reduced this statement to writing. At trial, however, appellant repudiated his statement. Appellant also denied L.H.'s allegations of sexual abuse saying "I would not have done it."
Admission of Written Statement
In his first issue, appellant claims that the trial court abused its discretion by finding his written statement was voluntary because he contends it was the product of "coercion, trickery, and secret polygraph procedures." Appellant further claims that the trial court abused its discretion by limiting his cross-examination of the agent who conducted the polygraph at the hearing on the motion to suppress to determine the admissibility of the statement.
Standard of Review: Motion to Suppress
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review. Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts, but conduct a de novo review of the trial court's application of the law to those facts. Wilson, 311 S.W.3d at 458. As the sole trier of fact during a suppression hearing, a trial court may believe or disbelieve all or any part of a witness's testimony. Id. We examine the evidence in the light most favorable to the trial court's ruling. Id. A trial court will abuse its discretion only if it refuses to suppress evidence that is obtained in violation of the law and that is inadmissible under TEX. CODE CRIM. PROC. art. 38.23. Id.
Where, as here, the trial court has made express findings of fact, we view the evidence in the light most favorable to those findings and determine whether the evidence supports the fact findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will sustain the trial court's ruling if it is supported by the record and is correct on any theory of law applicable to the case. Id. at 447-48.
A Statement Must Be Voluntary
Article 38.21 of the Texas Code of Criminal Procedure provides that a defendant's statement may be used against him "if it appears that the same was freely and voluntarily made without compulsion or persuasion." See TEX. CODE CRIM. PROC. art. 38.21; Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007). The determination of whether a statement is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. See Delao, 235 S.W.3d at 239; Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997); see also Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991).
A statement may be deemed "involuntary" under three different theories: (1) failure to comply with TEX. CODE CRIM. PROC. art. 38.22 § 6; (2) failure to comply with the dictates of Miranda as codified and expanded in Article 38.22 §§ 2, 3; or (3) failure to comply with due process because the statement was not freely given as a result of coercion, improper influences, or incompetency. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008); Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996). A statement may be deemed involuntary under one, two, or all three of these theories. See Oursbourn, 259 S.W.3d at 169.
The fact that a defendant was given a polygraph prior to making a statement does not render a subsequent statement inadmissible. Fernandez v. State, 172 Tex. Crim. 68, 72, 353 S.W.2d 434, 437 (1962); Webb v. State, 163 Tex. Crim. 392, 291 S.W.2d 331, 334 (1956) (holding that the use of a polygraph as a means of interrogation does not violate an accused's constitutional rights or "render the written confession thereafter made involuntary"). Similarly, the mere fact that a defendant is told he failed a polygraph does not render a resulting statement involuntary. Gomes v. State, 9 S.W.3d 373, 378-79 (Tex. App. - Houston [14th Dist.] 1999, pet. ref'd) (finding a defendant's will was not overborne when the police told her the polygraph results showed she lied when, in fact, they did not); Roe v. State, No. 03-98-00291-CR, 1999 WL 699766, at *3 (Tex. App. - Austin Sept. 10, 1999, no pet.) (not designated for publication) (finding that telling a defendant he was deceptive on a polygraph examination did not, in and of itself, render the "subsequent confession involuntary").
The essential question for the trial court to determine was whether appellant's will was overborne by the circumstances surrounding the making of his statement. Dickerson v. United States, 530 U.S. 428, 434 (2000); Boyett v. State, 485 S.W.3d 581, 596 (Tex. App. - Texarkana 2016, pet. ref'd). The trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the evidence presented at a hearing on the voluntariness of a statement. Delao, 235 S.W.3d at 238; Colvin v. State, 467 S.W.3d 647, 657 (Tex. App. - Texarkana 2015, pet. ref'd).
Pre-Trial Hearing on Motion to Suppress Statement
Prior to the presentation of the State's case, the trial court held a hearing on appellant's motion to suppress to determine the voluntariness of his statement.
At this hearing, Lonnie Falgout, a special agent with the U.S. Secret Service, was the only witness. Falgout is primarily a polygraph examiner for the Secret Service; 80 to 90 percent of his work is polygraphic examination. Falgout provides polygraphic services to local law enforcement agencies upon request. Falgout was asked by Allen Police Detective Joe Anders to help interview appellant.
At the time of the interview, Detective Anders was employed by the Allen Police Department and was the lead detective in this case. At the time of trial, however, Anders was working for the Federal Bureau of Investigation, was not in Texas, and was not available to testify.
The interview was conducted at the Collin County Children's Advocacy Center in Plano, Texas. Before the interview, Falgout reviewed Anders' case notes and investigative notes. He was aware of L.H.'s allegations against appellant.
Falgout first read appellant the Miranda warnings. Although appellant was not in custody or under arrest, Falgout gave appellant the Miranda warnings because "[i]t's required through my agency prior to the polygraph beginning." Appellant voluntarily waived his rights under Miranda and agreed to both the polygraph examination and the interview with Falgout.
Miranda v. Arizona, 384 U.S. 436 (1966); see also TEX. CODE CRIM. PROC. art. 38.22 §2(a).
Falgout testified that he offered appellant the opportunity to have a snack, a beverage, or restroom breaks during the interview. Appellant was not handcuffed or restrained in any way during this interview. Falgout said he would have obtained a lawyer for appellant if he had asked for one, which he did not. Falgout conducted a polygraph examination and then interviewed appellant. Falgout stated that he would have terminated the interview if appellant had said he did not want to talk.
Falgout testified that, during the course of the interview, appellant made a number of oral admissions relating to the allegations against him. At the end of the interview, appellant voluntarily agreed to write a statement. He wrote and signed the statement in Falgout's presence. Appellant was not arrested after he wrote and signed this statement in which he confessed to acts of indecency with L.H. In fact, appellant left the Advocacy Center after he signed his statement and spoke with Detective Anders.
On cross-examination, defense counsel sought to elicit testimony about the polygraph examination that preceded appellant's written statement in an effort to establish that appellant's statement had been coerced and was not a product of his free will. When appellant's counsel began to question Falgout about the actual polygraph procedures, Falgout declined to answer because of the "Touhy regulations:"
See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Q (BY DEFENSE COUNSEL) Okay. Now polygraph examination itself has several parts to it, doesn't it?
A Pursuant to Touhy, I'm not allowed to go into that, sir.
Q I'm sorry?
A Pursuant to the Touhy regulations and the Touhy letters issued by our office of chief counsel, I cannot discuss the polygraph procedures.
Q So you know, but you aren't telling, is that kind of what we're hearing here?
The State objected on grounds that "we have all agreed that the polygraph portion of that interview is not to be mentioned." The trial court sustained that objection. Defense counsel argued that he should be allowed to explore whether the polygraph influenced appellant's statement. The trial court asked defense counsel if he was attempting to establish whether any of the procedures utilized in the polygraph examination may have rendered appellant's written statement involuntary. Defense counsel responded: "Well, I'm certainly inquiring about that...it's got to be pretty coercive when you tell somebody, hey, you flunked, now do you want to talk." The trial court stated that it would permit limited cross-examination: "You can ask questions for that purpose, but let's just stay away from any sorts of testimony that the witness is prohibited from discussing pursuant to any of his rules and regulations of his job."
Prior to trial, appellant filed a motion in limine to prohibit any testimony regarding a polygraph, including "any mention of an invitation for the Defendant to sit for a polygraph, whether or not a polygraph did take place, the purported results of such polygraph, the mention of any after-polygraph interrogation and statements made pursuant to such interrogation." The State agreed, subject to a hearing on the admissibility of the written statement appellant made following the polygraph.
Falgout admitted that he told appellant that appellant had failed the polygraph on the same day that the polygraph was administered. He would not, however, provide specifics as to the procedures he utilized in the polygraph examination, and continued to rely on the "Touhy regulations:"
The polygraph examination was not recorded. Falgout testified that it was the policy of the Secret Service not to record interviews.
Q Is there any interval, or after you see the results and score the results, do you just tell him, tell him or is there a waiting period, or is there anything like that?
A Pursuant to Touhy, I'm not allowed to talk about polygraph testing procedures.
*
Q Next we get to the post test interview; is that right?
A Pursuant to Touhy, I'm not allowed to talk about polygraph testing procedures.
*
Q Tell us about the procedures employed when you were administering the polygraph examination to the Defendant?
A Pursuant to Touhy, I'm not allowed to discuss polygraph testing procedures.
*
Q So we really don't have a way to cross-examine you on that issue, do we?
A Without further guidance from the Office of Chief Counsel and the change in Touhy regulations and what I'm required to follow, I don't know the answer to that, sir.
Q So the answer is yes, we have no way to cross-examine you on that, right?
A I don't understand your question.
Q I'm trying to find out the procedure and how it might have been coercive.
The State objected on grounds that the defense was on an "exploratory mission" and reminded the trial court that it was the defense who had moved to have "the polygraph limined out." Defense counsel responded as follows:
We want to get into it to find out whether or not it was coercive. We know he had to give him Miranda warnings, which if it wasn't custodial, I don't see why they even did that. I want to find out what happened in that polygraph examination so we can show the Court that it affected the voluntariness of his statement.The trial court sustained the State's objection: "I'm not going to compel or attempt to compel the witness to violate regulations he's subject to concerning his employment with the federal government. Sustain the objection. Please move on."
Appellant's counsel continued to question Falgout about the interview and the circumstances surrounding appellant's writing and signing of the statement. Falgout testified that there was nothing coercive about the polygraph. Appellant had voluntarily agreed to the polygraph. Falgout told appellant multiple times that he was free to leave. Appellant was not handcuffed or otherwise physically restrained. Appellant did not appear frightened. Falgout did not force appellant to write a statement. He made no promises or threats to appellant. After the polygraph, and after appellant wrote and signed his statement, he was not arrested but was permitted to leave the Advocacy Center and did so.
The trial court overruled appellant's objection to the admission of his statement stating "I believe it does comply with 38.22."
Limitations on Cross-Examination at the Hearing on the Motion to Suppress
Appellant claims that, because the trial court prevented him from being able to inquire into the polygraph procedures used by Falgout, he was unable to fully conduct meaningful cross-examination at the motion to suppress hearing so that the trial court could properly determine whether his statement was voluntarily made and admissible. The trial court's limitations on appellant's cross-examination of Falgout were premised on Falgout's testimony that the "Touhy regulations" prevented him from answering questions regarding the polygraph procedures absent further guidance from "the office of chief counsel."
In United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), an FBI agent refused to produce certain records called for in a subpoena duces tecum under instructions from his department head, the United States Attorney General. Id. at 463-64. The Supreme Court reversed a contempt of court finding against the agent, holding that federal agency heads are authorized by law to prescribe regulations and that it is appropriate for them to exercise that authority to limit the release of official information. Id. at 468 (citing to 5 U.S.C. § 22). The Court explained as follows: "[w]hen one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious." Id.
The "Touhy regulations" have been codified in the Code of Federal Regulations. See 6 C.F.R. § 5.45. This regulation covers the Department of Homeland Security of which the Secret Service is a part. 6 U.S.C. § 381. This regulation provides, in part, as follows:
Department employees may only produce, disclose, release, comment upon, or testify concerning those matters which were specified in writing and properly approved by the appropriate Department official designated in § 5.44. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The Office of the General Counsel may waive the requirement of this subsection in appropriate circumstances.6 C.F.R. § 5.45(a). A party requesting a waiver from the office of general counsel must "set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought." Id.
The "Touhy regulations" are recognized in Texas. See Alexander v. State, 450 S.W.2d 70, 71-72 (Tex. Crim. App. 1970) (holding that, under Touhy, an FBI agent could lawfully decline to reveal information contained in agency files in response to defendant's subpoena duces tecum); see also Thuesen v. State, No. AP-76,375, 2014 WL 792038 at *37 and fn. 109 (Tex. Crim. App. Feb. 26, 2014) (not designated for publication) (noting that a Veterans Administration employee may only provide testimony or produce records in certain legal proceedings as authorized in accordance with federal regulations and only as authorized by a determining official).
Appellant did not challenge the application of the "Touhy regulations" or try to contradict Falgout's testimony regarding the effect of the regulations on his testimony. And, there is no evidence that appellant sought a waiver from the office of general counsel which may have permitted Falgout to answer his questions concerning the polygraph procedures. Absent evidence to contradict Falgout's testimony, we cannot say that the trial court abused its discretion by refusing to force Falgout to answer appellant's questions regarding the polygraph procedures because of the "Touhy regulations."
Voluntariness of Statement: Findings of Fact
When the trial court makes fact findings on a motion to suppress, an appellate court determines whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. See Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). Unless the trial court abused its discretion by making a fact finding not supported by the record, an appellate court will defer to the trial court's findings and not disturb those findings on appeal. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).
In written findings of fact and conclusions of law, the trial court found and concluded that appellant's written statement was made freely and voluntarily without compulsion or persuasion. Findings pertinent to our resolution of the issues on appeal are as follows:
1. On February 26, 2015, defendant Jeffrey Scott Hazlett was interviewed by United States Secret Service Special Agent Lonnie Falgout at the Collin County Children's Advocacy Center in Plano, Texas, concerning the allegations giving rise to the indictment in this cause.
2. Special Agent Falgout orally provided Hazlett with warnings that were the fully effective equivalent to those set forth in T.C.C.P. Art. 38.22, Sec. 2. (sic)
3. Special Agent Falgout provided Hazlett with a written copy of warnings that were the fully effective equivalent to those set forth in T.C.C.P. Art. 38.22, Sec. 2. (sic)
4. Hazlett initialed the portions of the written warnings acknowledging that he read and understood the warnings and that he voluntarily waived his rights and agreed to answer questions.
5. Hazlett knowingly, intelligently, and voluntarily waived the rights set forth in the warnings provided to him.
6. Hazlett was not handcuffed, and was not under arrest.Appellant did not formally object to these findings, nor does he challenge any particular finding made by the trial court on appeal. And, appellant's claim that the trial court erred by finding his statement was voluntary is not an attack on the court's findings per se, but rather an expansion of his arguments concerning the limitations on his ability to cross-examine Falgout regarding the polygraph procedures. We have already concluded that the trial court did not abuse its discretion by refusing to force Falgout to answer appellant's questions regarding the polygraph procedures. We further conclude that the record supports the trial court's findings and conclusions and that the trial court did not err by admitting the statement into evidence.
7. Hazlett was told he was free to leave at any time.
8. After reading and signing the written warnings, Hazlett provided a written statement to Special Falgout in his own handwriting.
9. Based on the objective circumstances, Hazlett was not in custody at the time he made the written statement.
10. Hazlett's written statement was the result of a lawful, consensual, non-custodial interview.
11. Hazlett's written statement was made freely and voluntarily without compulsion or persuasion.
12. Notwithstanding the above, Hazlett's written statement also met the requirements for a lawful custodial interrogation.
13. Notwithstanding the above, Hazlett's written statement was obtained by a federal law enforcement officer in compliance with the laws of the United States.
14. Hazlett's written statement was voluntarily made as a matter of law and fact.
15. Hazlett's written statement is admissible as a matter of law and fact.
Testimony at Trial on the Merits on the Voluntariness of Statement
Testimony as to the voluntariness of appellant's statement was admitted at the trial on the merits. Appellant made no additional objections to the statement at the time it was offered into evidence and the jury was given no information about the polygraph examination.
Polygraph Evidence Excluded
Evidence about polygraph examinations is not admissible in Texas because the results are considered too unreliable to be probative. Crawford v. State, 617 S.W.2d 925, 930 (Tex. Crim. App. 1980); see Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim. App. 2008); see also United States v. Scheffer, 523 U.S. 303, 311-314 (1998). In this case, the defense did not want any mention of a polygraph to be made before the jury, particularly information that appellant had failed a polygraph. The State agreed to this request.
The trial court ruled that there would be no mention of the polygraph and instructed the attorneys accordingly:
I'm going to declare that the results of a polygraph administration are inadmissible for any purpose. The fact that a polygraph was administered is admissible under very limited circumstances. It is not admissible if it's going to be offered to bolster the State's case, that is, if there's any sort of implication that the Defendant failed the test, it is not admissible. It's also not admissible if there's any implication from the fact that a test was administered, that the Defendant—that the Defendant's theory, his case theory or strategy doesn't hold any water, or that any statements made by him are false. In other words, it can't be used to impeach the Defendant or his defense, but it may otherwise be admissible, just the fact that it was administered, as long as there's no implication about the results.
The trial court also instructed the parties that there would be no questioning about or reference to Falgout's work as a polygraph examiner. The trial court stated that "[a]t the very most" the parties might elicit testimony that Falgout was "engaged to assist in the investigation and leave it at that, as a general matter, but not get into any specifics." The trial court specifically instructed Falgout to make no mention of polygraphs. The jury never heard any evidence that appellant had been given a polygraph examination before he wrote his statement or that appellant had failed that polygraph.
Testimony Regarding the Statement
The jury heard that Falgout was a special agent with the Secret Service. At times he would assist state or local law enforcement agencies with investigations. On February 26, 2015, Detective Joe Anders contacted him and asked him to assist with an interview of appellant at the Collin County Children's Advocacy Center in Plano, Texas.
Appellant arrived at the Advocacy Center voluntarily. Falgout let appellant know that he was free to leave at any time, even though Falgout gave appellant the Miranda warnings. Appellant acknowledged receipt of the Miranda warnings and then voluntarily agreed to waive his rights and speak to the agent. Falgout let appellant know there would be an opportunity for food, water and bathroom breaks.
Falgout had appellant read back a portion of the warnings to him aloud: "I have read the statement of my rights, and it has been read to me and I understand what my rights are. I voluntarily waive my rights, and I am willing to answer questions at this time."
Falgout went over L.H.'s allegations with appellant, which appellant initially denied. Appellant later changed his story and admitted the allegations. Falgout asked appellant to write a statement of what they had discussed. Falgout did not force appellant to write a statement and he did not tell appellant what to write. He did not threaten appellant or promise appellant anything. He had appellant read the statement back to him aloud before appellant signed the statement.
Falgout said he followed all policies and procedures that he was required to follow by both the Allen Police Department and the Secret Service. A recording was not made of this interview. Appellant left the advocacy center once the interviews were concluded and he had both written and signed his statement.
Appellant testified that Falgout coerced him into writing the statement and told him what to write. He said he spent more than four hours in a room alone with Falgout and that Falgout gave him the dates of the offenses to write down, as well as the number of offenses. Appellant wrote what Falgout told him to write because "there was a lot of intimidation and tension in that room at the time." A "large percent" of what he wrote in the statement was dictated to him by Falgout. He was required to read back what he wrote "after every two lines." And, appellant denied ever abusing or inappropriately touching his daughter, L.H. He denied ever inappropriately touching his daughter when he was drunk or when he was angry with his ex-wife.
Re-called to the stand to rebut appellant's testimony, Falgout denied telling appellant what to write. He said he never told appellant that he had to write a statement and never dictated any words to appellant.
The jury was charged that a statement of an accused may be considered against the accused only if the statement was freely and voluntarily made without compulsion or persuasion. As a result, the jury could consider appellant's statement only if the jury agreed that the State proved, beyond a reasonable doubt, that appellant made the statement freely and voluntarily without compulsion or persuasion and the jury was free to disregard the statement if the jury found it to be involuntary.
We presume that a jury followed its instructions and, if it did consider appellant's statement, did so only after finding that the statement was voluntarily made. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). While this presumption is rebuttable, appellant has not pointed to any evidence that the jury, if it relied on his statement for its finding of guilt, failed to follow the trial court's instructions. In light of the trial court's proper instructions regarding the necessity of finding a statement voluntary before it could be considered, and appellant's failure to rebut the presumption that the jury followed those instructions, we presume that if the jury considered appellant's statement at all the jury found that the statement was voluntarily made.
Conclusion
The trial court's findings that appellant's written statement was voluntary are supported by the record. Consequently, the trial court did not abuse its discretion by determining the statement was admissible. We overrule appellant's first issue.
Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence to support his conviction for indecency with a child. Specifically, appellant, who denied ever abusing L.H. at trial, claims that no offense occurred. Appellant argues that L.H., who was a troubled child, fabricated the allegations against him.
Standard of Review
When determining whether the evidence is sufficient to support a criminal conviction, we apply the well-established standards set forth in Jackson v. Virginia, 443 U.S. 307, 316 (1979). Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to the verdict and determine whether a rational jury could have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 313; Brooks, 323 S.W.3d at 899. The jury, as the factfinder, may make reasonable inferences from the evidence presented at trial in determining appellant's guilt. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). When there is conflicting evidence, we presume the factfinder resolved those conflicts in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326; see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also defer to the trier of fact's determinations of a witness's credibility and the weight to be given their testimony. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding against the rare occurrence when a factfinder does not act rationally. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (citing to and relying on Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009)).
We apply the same standard to direct and circumstantial evidence. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of a defendant, and circumstantial evidence alone can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13. Each fact need not point directly and independently to appellant's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.
Offense of Indecency with a Child
The offense of indecency with a child occurs when a person engages in sexual contact with a child younger than 17 years of age or causes the child to engage in sexual contact. TEX. PENAL CODE § 21.11(a)(1). Section 21.11(c) defines "sexual contact" to include "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child," or "any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person," if committed with the intent to arouse or gratify the sexual desire of any person. Id., §§ 21.11(c)(1), (c)(2). The element of intent may be inferred from the actor's conduct, his remarks, and all of the surrounding circumstances. Ranson v. State, 707 S.W.2d 96, 97 (Tex. Crim. App. 1986); Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App. - Fort Worth 2010, pet. ref'd).
Complainant's Testimony Sufficient
The testimony of a complainant, even if that complainant is a child, is sufficient, standing alone, to support a conviction for indecency with a child. Moore v. State, 397 S.W.3d 751, 754 (Tex. App. - San Antonio, 2013, no pet.); Connell v. State, 233 S.W.3d 460, 466 (Tex. App. - Fort Worth 2007, no pet.); see also Bazanes, 310 S.W.3d at 40.
L.H., who was 14 years old and in the ninth grade at the time of trial, testified to all the elements of the charged offense of which appellant was convicted. Appellant is her father. She lived with both parents until their divorce when she was 10 or 11 years old. She testified that one night before the divorce, in 2008, she was sitting with her parents on the couch watching a movie. Her mother had fallen asleep, and her father "drank a lot of alcohol" that evening. L.H. knew when appellant had been drinking because he smelled like alcohol and he "wouldn't be nice." L.H. was "cuddling" next to appellant on the couch when appellant touched her breasts, her "bottom area," and her "vagina area." L.H. testified that the touching was over her clothes, "[j]ust squeezing, and rubbing." Appellant did not say anything; L.H. got up and told appellant that she needed to go to bed. She testified that she "didn't understand what had happened." A few weeks later L.H. asked D why he did it; he said he did not remember.
L.H. also testified that "what happened on the couch" occurred again, at least three times a week, "for months," when she was between the ages of nine and eleven. Appellant progressed to touching her underneath her clothing. She testified to other places in the home where the touching occurred and explained that she was "really scared" and "didn't know what to do."
Appellant attempts to discredit L.H.'s testimony with evidence showing that L.H. was a "troubled young woman" which he argues could have caused "some doubt" in the jury's mind as to her credibility. The jury heard evidence that L.H. had struggled with depression since elementary school. She was a "cutter" who would use sharp instruments to cut her arms. She slept a lot. L.H. had been in counseling on multiple occasions and had been prescribed anti-depressant medication. In August of 2014, she had threatened suicide and was hospitalized, first for stabilization and subsequently for inpatient treatment, intensive therapy, and counseling. L.H.'s mother, however, testified that her daughter's mental issues and acting out all occurred after the alleged acts of abuse by appellant but before her outcry. The jury could have reasonably concluded that L.H.'s mental issues all occurred after the abuse had ended and that her memory of those events was not a product of her mental health or the fabrication of a troubled mind.
Appellant also claims that L.H. had been "proven" to tell "false stories before." Appellant refers to a report L.H. made, first to her mother and then to the Allen Police, that a man had approached her while she was walking home from school and told her that if she didn't do sexual favors for him he would kill her. L.H. was later shown a line-up, but could not identify the man. There were no witnesses to this incident, but two other girls had made similar reports. The police investigated, but no one was ever arrested. Although the perpetrator was never identified or caught, there was no evidence that L.H.'s report was false. The jury could have rejected appellant's suggestion that L.H. fabricated this report. And, even if the jury doubted that report, the jury could still have found L.H. credible with respect to the allegations she made against appellant.
Appellant's arguments are nothing more than an attack on L.H's credibility. The jury was free to resolve those credibility issues in favor of the prosecution. The jury's verdict is rational under the facts of this case and we defer to that determination.
Appellant's Written Statement
At trial, appellant read his written statement to the jury:
Between 2008 to 2010 under the influence of a large amount of alcohol, I touched [L.H.'s] breast under the shirt, [on] two to four occasions. I did this out of
frustration due to the problems with my marriage and finding out my wife was having an affair. During that same time, I put my hand on [L.H.'s] vagina on two to four occasions on top of the clothes and with my hand in a circular motion. I did this again out of frustrations for the marriage. I know what I was doing at the time was very wrong and sorry for what I did. During my initial interview with Detective Anders, I lied about the situation because I did not want to believe that I would have done this to my daughter.Appellant claims that, without this statement in which he confesses to the offense, no rational jury would have found him guilty. We do not agree.
We have already concluded that the trial court did not abuse its discretion by admitting appellant's written statement into evidence and it was properly before the jury. And, as noted in our resolution of appellant's first issue, in order to consider the statement the jury would first have to have found that the statement was voluntarily made.
Additionally, when considering the sufficiency of the evidence to support a jury's determination, we consider all evidence before the jury, including evidence that was improperly admitted. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (when conducting legal sufficiency review, appellate court considers all evidence in trial record, whether admissible or inadmissible); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same). Even if appellant's statement had been improperly admitted, we may still consider it in determining whether there is sufficient evidence to support the jury's finding of guilt.
Appellant, in his written statement, admits to two complete acts of indecency with a child: touching L.H.'s breast under her shirt on two to four occasions and putting his hand on L.H.'s vagina on two to four occasions on top of her clothes and moving his hand in a circular direction. TEX. PENAL CODE §§ 21.11(c)(1), (c)(2). L.H. corroborated his statement, testifying that appellant groped her breast and touched her vaginal area while they watched television. Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000) (noting that "an extrajudicial confession of wrongdoing, standing alone, is not enough to support a conviction" but requires some form of corroboration); Gibson v. State, No. 05-02-01771-CR, 2004 WL 772414, at *3 (Tex. App. - Dallas April 13, 2004, pet. ref'd)(not designated for publication) (testimony from a child complainant that she "felt someone touching her" was legally sufficient to corroborate a defendant's "extrajudicial confession" that he touched the child in a prohibited manner). Appellant's written statement in which he confessed to the offense, corroborated by L.H.'s testimony, supports his conviction.
Other Evidence of Guilt
Outcry
The outcry in this case was delayed by several years. L.H. testified that appellant stopped abusing her in 2011 when she was eleven year old. She told no one until she made outcry to her mother on February 2, 2015. Appellant stresses that L.H. had "been in therapy for years and talked to police before and had never made any claim of sexual abuse." He also focuses on the fact that L.H. made outcry of these allegations to her mother shortly after getting in trouble for having sex with her boyfriend in one of the school bathrooms.
L.H. testified as to the reason for the delayed outcry. She initially thought if she told her mother that she would get into trouble. She never told any of her counselors or the police prior to making outcry because the abuse had stopped and she "felt like it didn't matter anymore." She finally told her mother because it was affecting her emotional and mental state; "I felt that I wouldn't get better emotionally and mentally if I didn't talk about what had happened."
Dan Powers, the Senior Vice President and Clinical Director for the Children's Advocacy Center of Collin County, testified that it was common for children to wait to disclose sexual abuse; "children tell when they're ready to tell." In his opinion, delayed outcry has no significance in distinguishing between the truth and a lie regarding a sexual abuse allegation.
Appellant's claims with respect to the outcry are credibility issues which were for the jury to resolve. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The jury heard all the evidence concerning L.H.'s mental health, the reasons for the delayed outcry, and the fact that, upon making outcry, L.H. and her mother reported the allegations to the police the next day. By returning a verdict of guilty, the jury necessarily resolved these credibility issues in the State's favor. We will not disturb that finding.
Flight
On March 15, 2015, Shane Martinez, a deputy with the Yoakum County Sheriff's Office, was dispatched to check on a suspicious person, subsequently identified as appellant, walking on a desolate road in "the middle of nowhere." It was unusual for any person, other than an oil field worker or ranch hand, to be seen walking in that area.
Yoakum County is located in far western Texas about five or six miles from Denver City and about twelve miles from the New Mexico border.
Appellant told Martinez that he was headed to Roswell, New Mexico. He had run out of gas and was trying to get to the next city to purchase gas. Appellant did not have a driver's license or any cash on him; he said he had left his wallet in his vehicle, which made no sense to Martinez.
Appellant was dressed very nicely. He had a black bag with a blanket and some personal items such as clothes and toiletries. Appellant also had a four-way tire iron used to change flats which he said was for his protection.
When asked, appellant gave Martinez his correct name and date of birth. When Martinez contacted his dispatcher, he learned that there was a warrant for appellant's arrest in Collin County; the warrant was dated March 10, 2015, five days earlier. Martinez arrested appellant on this warrant.
Appellant recognized that this evidence did not look good, but denied that he was attempting to flee. He testified that he was driving to clear his head and intended to return to Collin County to turn himself in. Appellant testified that he did not know a warrant had issued, but he knew one was forthcoming. Contradictorily, appellant also testified that he had a "feeling" a warrant had been issued for his arrest, though he did not know the date the warrant issued. He thought he did actually run out of gas and, when he realized he had left his wallet in the car, was walking away from his car hoping to encounter someone who could take him back to his car.
Flight reflects consciousness of guilt, which a jury can consider. Clayton, 235 S.W.3d at 780 (stating that a "factfinder may draw an inference of guilt from the circumstance of flight"); Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (same). A rational jury could have concluded that appellant's presence in Yoakum County constituted evidence that he was attempting to flee the state to avoid prosecution and inferred his guilt from this flight.
Conclusion
The jury considered the evidence, judged the credibility of the witnesses, and found appellant guilty of indecency with a child. The evidence was sufficient to permit a rational jury to find all the elements of that offense beyond a reasonable doubt. We overrule appellant's second issue.
Conclusion
We overrule appellant's issues and affirm.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47.2(b) 160495F.U05
JUDGMENT
On Appeal from the 380th Judicial District Court, Collin County, Texas
Trial Court Cause No. 380-81088-2015.
Opinion delivered by Justice Lang-Miers. Justices Brown and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19th day of March, 2018.