Opinion
No. 05-10-01386-CR
08-30-2012
MICHAEL RAY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed as Modified;
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-61108-V
MEMORANDUM OPINION
Before Justices Morris, Moseley, and Francis
Opinion By Justice Moseley
A jury convicted Michael Ray Johnson of sexual assault of a child. Johnson pleaded true to one enhancement paragraph. The trial court found Johnson had previously been convicted of a felony and assessed punishment at twenty-seven years' imprisonment. We abated this appeal to permit the trial court to make written findings of fact and conclusions of law on its ruling denying Johnson's motion to suppress his recorded interview with police. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). The trial court's findings have been filed in a supplemental clerk's record.
Johnson raises four issues on appeal: (1) the evidence is legally insufficient to support the conviction; (2) the trial court erred by denying his motion to suppress his oral statement; (3) the trial court erred by not making written findings of fact and conclusions of law after finding Johnson's statement was voluntary; and (4) the evidence is legally insufficient to support the allegations in the first enhancement paragraph of the indictment. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We modify the trial court's judgment and affirm the judgment as modified.
This issue is now moot and we need not discuss it further.
Johnson's first issue raises a legal sufficiency challenge. We apply the appropriate legal sufficiency standard of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1763 (U.S. 2012). In a legal sufficiency review, "we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Adames, 353 S.W.3d at 860. This standard "recognizes the trier of fact's role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence." Id. We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
As applicable here, a person commits the offense of sexual assault of a child if he intentionally or knowingly causes penetration of the sexual organ of a child by any means. Tex. Penal Code Ann. § 22.011(a)(2)(A) (West 2011). A child is a person younger than 17 years of age. Id. § 22.011(c). The testimony of the child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (West Supp. 2011).
The complainant, A.M.I., is Johnson's niece and was fourteen at the time of the offense. After her mother died of cancer, A.M.I. moved in with her adult sister, Versie, and Versie's five- year-old daughter. Johnson moved in a short time later. There is evidence in the record that one evening, while Versie was in the bathroom getting ready to go out, A.M.I. told Johnson to ask Versie if she could have a wine cooler to drink. A.M.I. testified she had drunk alcohol two or three times before this. Johnson went to the back of the apartment then returned and told A.M.I. she could have a wine cooler.
A.M.I. asked Johnson to play a drinking game with her to see who could drink an 8-ounce cup of their drink the fastest. Johnson, who was drinking Colt 45, agreed. They drank 8 or 9 cups, then Versie left for the evening. Johnson and A.M.I. were laughing and playing when Versie left. After watching TV for a while, A.M.I. fell asleep on the couch. Sometime later, A.M.I. felt someone's hand inside her panties. It was dark and she could not see at first, but she soon recognized Johnson. She felt his fingers moving back and forth inside her vagina. She was scared and pretended to be asleep. When she moved, Johnson jumped back then left the room. A.M.I. saw him go outside to smoke a cigarette.
Several minutes later, Johnson returned to the couch and again reached in her panties to put his fingers inside her vagina. A.M.I. tried to stop him by holding her legs together, but he forced her thighs apart with his hands. When she told him to stop, he jumped back, and A.M.I. ran to her sister's room and locked the door. After unsuccessfully trying to get her young niece to go with her, A.M.I. climbed out of the bathroom window, ran to a nearby store, and called her sister.
Johnson was arrested later that evening. He was interviewed the next morning by Detective Lisette Rivera. Johnson denied touching A.M.I. inappropriately and said she was lying. He said they played a game of trying to scare each other and that A.M.I. was snoring and he had simply tried to scare her. Johnson told Rivera that he tried to discipline A.M.I. and get her to wear appropriate clothing. He thought she might have made up this story about him because he kept her from "roaming the streets."
Johnson argues that A.M.I. was so lacking in credibility that her testimony is legally insufficient to support the verdict. He asserts she was a troubled, rebellious, and disrespectful child and was intoxicated that evening. He contends she was not as explicit about what happened in her interview the morning after the incident as she was at trial and she resented authority and would get back at anyone for disciplining her.
It is the factfinder's duty "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. We "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326. Here, the jury believed A.M.I.'s testimony rather than Johnson's statements to Rivera that she was lying. The jury's inferences are reasonable considering the combined and cumulative force of all the evidence and we defer to the jury's determination.
Considering all the evidence (including that summarized above) in the light most favorable to the verdict, we conclude a rational trier of fact could have found Johnson guilty of the offense of sexual assault of a child beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. We overrule Johnson's first issue.
In his second issue, Johnson asserts the trial court erred by admitting his recorded interview with police because he did not explicitly state that he waived his statutory rights. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2). The trial court denied Johnson's motion to suppress the video recording of his interview by Rivera.
We review the trial court's ruling admitting or excluding evidence for an abuse of discretion. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of statements made by a defendant during custodial interrogation in a criminal proceeding. See Tex. Code Crim. Proc. Ann. art. 38.22. In general, the defendant before making a statement must be warned of his right to remain silent, that any statement he makes may be used against him in court, that he has the right to have a lawyer present during questioning and to have a lawyer appointed if he is unable to hire one, and that he has the right to terminate the interview at any time. Id. art. 38.22, § 2(a). These statutory warnings are virtually identical to the warnings required by Miranda v. Arizona, 384 U.S. 436, 479 (1966), with the exception of the right to terminate the interview. See Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
Before a recorded oral statement is admissible against the accused, the State must show, among other things, that before the statement but during the recording, the accused was given the statutory warnings and "the accused knowingly, intelligently, and voluntarily wavie[d] any rights set out in the warning." Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2); Leza v. State, 351 S.W.3d 344, 351 (Tex. Crim. App. 2011). We evaluate whether a defendant knowingly, intelligently, and voluntarily waived his statutory and Miranda rights by considering the totality of the circumstances surrounding the interrogation. See Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010).
The trial court found Rivera was credible, she read Johnson the statutory rights, and Johnson understood the nature of his rights and the potential consequences of waiving those rights. Johnson nodded his head in understanding after each right was read and he initialed and signed the warning card without hesitation. Johnson appeared to want to talk to the detective as soon as she informed him that he was under arrest and he was not coerced, threatened, or promised anything during questioning. At no time did he request his attorney be present or to speak with an attorney. Nor did he assert his right to remain silent or ask to terminate the interview. The recording and Rivera's testimony support the trial court's findings.
Johnson does not claim his statement was coerced. Nor does he dispute that the statutory warnings were read to him, he initialed and signed the warning card, and indicated he understood his rights. Johnson's complaint is that the detective never explicitly asked him if he wanted to waive his rights. However, "[t]he question is not whether Appellant 'explicitly' waived his Miranda rights, but whether he did so knowingly, intelligently, and voluntarily." Joseph, 309 S.W.3d at 25. The court of criminal appeals has consistently held that waiver of article 38.22 rights "may be inferred from actions and words of the person interrogated." Leza, 351 S.W.3d at 353 (citing cases). The record indicates Johnson was read his rights and he indicated he understood them. He then willingly participated in the interview and never requested a lawyer or asked to stop the interview.
Based on the totality of the circumstances we cannot conclude the trial court abused its discretion by finding that Johnson knowingly, intelligently, and voluntarily waived his statutory rights under article 38.22. See Leza, 351 S.W.3d at 353 ("it is within a trial court's discretion to rely upon an implied waiver whenever the totality of the circumstances, as reflected by the recording of the oral statement, supports it"). We overrule Johnson's second issue.
In his fourth issue, Johnson contends there is insufficient evidence to support a finding of true on the first enhancement allegation in the indictment. The indictment alleged two prior felony convictions for enhancement purposes. After the jury found Johnson guilty of sexual assault, he withdrew his election to have the jury assess punishment and pleaded not true to the first enhancement paragraph and true to the second paragraph. The trial court accepted these pleas. The State offered as evidence Johnson's written plea of true to the second enhancement paragraph and recommended a sentence of twenty-seven years.
The trial court then pronounced sentence: "I will find, in fact, it's true that you have been previously convicted of a felony offense and I will follow the State and set your sentence at confinement in the Texas Department of Criminal Justice for a period of 27 years." The trial court's docket sheet indicates the trial court found the second enhancement paragraph true and sentenced Johnson to twenty-seven years.
We have the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we overrule Johnson's fourth issue, but we modify the trial court's judgment to read in part: (1) "Plea to 1st Enhancement Paragraph: Not True"; (2) "Findings on 1st Enhancement Paragraph: N/A"; (3) "Plea to 2nd Enhancement Paragraph: True"; and (4) "Findings on 2nd Enhancement Paragraph: True."
As modified, we affirm the trial court's judgment.
JIM MOSELEY
JUSTICE
Do Not Publish
Tex. R. App. P. 47.2(b)
101386F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MICHAEL RAY JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01386-CR
Appeal from the 292nd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09-61108-V).
Opinion delivered by Justice Moseley, Justices Morris and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED in part to state: (1) "Plea to 1st Enhancement Paragraph: Not True"; (2) "Findings on 1st Enhancement Paragraph: N/A"; (3) "Plea to 2nd Enhancement Paragraph: True"; and (4) "Findings on 2nd Enhancement Paragraph: True."
As modified, the judgment is AFFIRMED.
Judgment entered August 30, 2012.
JIM MOSELEY
JUSTICE