Opinion
No. 05-04-01626-CR
Opinion issued February 17, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st District Court, Dallas County, Texas, Trial Court Cause No. F02-26339-NU. Affirmed.
Before Justices MOSELEY, O'NEILL, and FITZGERALD.
OPINION
Joel Douglas Newberry appeals his solicitation of a minor conviction. A jury convicted appellant and sentenced him to ten years' confinement. In seven issues, appellant argues the evidence is legally and factually insufficient to support his conviction, the trial court erred in admitting evidence regarding an extraneous offense and in failing to suppress appellant's oral statements, and his oral statements were involuntary. We affirm the trial court's judgment. Bruce Marshall, a detective with the Garland Police Department, testified he worked on internet crimes against children. As part of his duties, Marshall assumed the role of a child on the internet. Marshall would select a name and set up a profile of fictitious personal information, including a photograph of the "child." Marshall's first contact from appellant came via instant message on January 10, 2002. Appellant used the screen name "Hydroponicgreen," and Marshall was using the name "MandyTX." The user profile for "MandyTX" indicated she was a fourteen-year-old girl from Garland, Texas. Marshall also created a profile for "Texas14Chica," a fourteen-year-old girl named Julie Montez. As "Texas14Chica," Marshall was contacted by appellant on October 21, 2002. In the exchange that followed, appellant asked "Texas14Chica" if she wanted to "hook up," asked if anyone else was home, and said he would "just like to fuck" and "eat you out." "Texas14Chica" said she "didn't need no babies" and "14 is way 2 young 2 b a mommy." Appellant repeatedly asked "Texas14Chica" if she wanted "this" and told her he did not want to get her in trouble. "Texas14Chica" said she did not want her mom to find out, and appellant replied that he could go to jail if her mom found out. "Texas14Chica" replied that she would be sent to her grandmother in California if her mom found out, and appellant replied that was "better than jail." Appellant wrote that he used protection and did not "have anything." "Texas14Chica" gave appellant directions to an apartment in Garland and said she would meet him by the mailboxes. "Texas14Chica" gave appellant a phone number to call which rang a phone in Marshall's office. Marshall had a telephone voice transformer attached to the phone that allowed him to alter his voice and sound like a young girl. Appellant said he had "protection" and would "bring them." Appellant went to the apartment complex and called "Texas14Chica" and asked if she was by the mailboxes. "Texas14Chica" told appellant she would come out to meet him. Marshall communicated with police officers near the apartments, and they arrested appellant. After appellant was arrested, a search revealed a condom in appellant's pocket and a cell phone in his truck that showed it had been used to call Marshall. A jury subsequently convicted appellant of solicitation of a minor, and this appeal followed. In his first and second issues, appellant argues the evidence is legally and factually insufficient to support his conviction for solicitation of a minor. Specifically, appellant argues the State failed to prove he attempted to induce an individual he "believed to be a minor." In his third issue, appellant argues the evidence is factually insufficient to support the jury's rejection of his mistake of fact defense because he thought he was dealing with an adult who was just "playing games." When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury 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 is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). Here, the record shows appellant repeatedly contacted "Texas14Chica," who consistently identified herself as a fourteen-year-old girl. Nevertheless, appellant asked "Texas14Chica" if she wanted to "hook up," asked if anyone else was home with her on the day he attempted to meet with her, and said he "just like to fuck" and "eat you out." Appellant repeatedly asked "Texas14Chica" if she wanted "this" and told her he did not want to get her in trouble. Appellant made repeated references to the fact that he could go to jail if anyone found out that he and "Texas14Chica" had "hooked up." Appellant testified he had received a picture from "SweetMollyGurl," who indicated she was fifteen years old. The picture, however, showed an older woman, and appellant thought "she was simply playing games like I had encountered before with other people." Appellant received three photographs from "Texas14Chica," but only two of them were presented at trial. Appellant testified the two pictures appeared to be of different people, and the missing picture was of an "older lady and she was kind of grotesque-looking and wearing a teddie." Appellant thought "possibly it was the same girl or it was just somebody playing games with me." Although appellant admitted saying in his exchange with "Texas14Chica" that she was "just young for me," appellant testified he thought he was dealing with "an adult or a married woman or something that was just playing games and walking me in circles and joking around with me." Although appellant had contact with "Texas14Chica" over a year and a month's time, "Texas14Chica" remained fourteen years old during the entire time. Nevertheless, appellant did not confront her about this discrepancy because he "didn't want to ruin the magic and make her mad and run off again." Having reviewed the record, we conclude the evidence is legally and factually sufficient to show that appellant believed "Texas14Chica" was a minor at the time he attempted to induce her into meeting with him and having sex. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. Although appellant testified he believed "Texas14Chica" was "just playing games," the jury was free to disbelieve this testimony and believe that appellant took seriously the representation that "Texas14Chica" was fourteen years old. See Sharp, 707 S.W.2d at 614. Accordingly, the evidence is factually sufficient to support the jury's rejection of appellant's mistake of fact defense. See Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first, second, and third issues. In his fourth and fifth issues, appellant argues the introduction of extraneous offense testimony concerning his contact with "Sweet15Madeline" was erroneous because the testimony was not relevant or, if relevant, its probative value was substantially outweighed by the danger of unfair prejudice. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). We view the evidence in the light most favorable to the trial judge's ruling. See Corbin v. State, 85 S.W.3d 272, 282 (Tex.Crim.App. 2002). Rule 404(b) disallows evidence of other crimes, wrongs, or acts to prove a person acted in conformity with their character by committing the charged offense. See Tex. R. Evid. 404(b). However, extraneous offense evidence is admissible for other purposes, such as to show motive, intent, plan, or absence of mistake or accident. See id. In determining whether, under rule 403, the probative value of evidence is substantially outweighed by the danger of unfair prejudice, we consider (1) the probative value of the evidence, (2) the potential of the evidence to impress the jury in an irrational and indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000). The last inquiry includes three subparts: (1) whether the proponent has other available evidence to show the fact of consequence that the extraneous misconduct is relevant to show; (2) if so, how strong is that other evidence; and (3) whether the fact of consequence is related to an issue that is in dispute. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). The extraneous contacts with "Sweet15Madeline" are clearly relevant to show that appellant, though he claimed he thought "Texas14Chica" was an adult who was "just playing" with him, repeatedly contacted female children and wanted to "eat [them] out" and "fuck [them]." Thus, the extraneous contacts with "Sweet15Madeline" are relevant to show appellant's knowledge, intent, and lack of mistake. See Tex. R. Evid. 404(b). Further, while the extraneous acts are "prejudicial" in the sense that they show appellant's lack of mistake, we conclude their probative value is not substantially outweighed by the danger of unfair prejudice. See Reese, 33 S.W.3d at 240-41. Accordingly, we conclude the trial court did not abuse its discretion in admitting the extraneous contacts with "Sweet15Madeline" in this case. We overrule appellant's fourth and fifth issues. In his sixth and seventh issues, appellant argues the trial court erred in failing to suppress his oral statements because his statements were involuntary under either the three-prong test applied in Henderson v. State, 962 S.W.2d 544, 564 (Tex.Crim.App. 1997) or the proposed test set out in the dissent in Martinez v. State, 127 S.W.3d 792, 798 (Tex.Crim.App. 2004) (Meyers, J., dissenting). Specifically, appellant argues his statements were made in response to Marshall's promise that appellant could use the telephone if he made a statement. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Under Henderson, for a promise to render a confession invalid under article 38.21 of the code of criminal procedure, it must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that it would cause a defendant to speak untruthfully. Henderson, 962 S.W.2d at 564. The dissent in Martinez proposes that a promise should render a confession involuntary only if it is (1) of some benefit to the accused; (2) positive; (3) made or sanctioned by a person in authority; and (4) likely to influence the accused to make a statement, regardless of its truth or falsity. Martinez, 127 S.W.3d at 798. Here, subsequent to appellant's arrest, Marshall brought appellant into an interrogation room and had appellant read the Miranda warnings out loud and sign a document containing the warnings. The following exchange then took place:
Marshall: If you say you don't want to talk to me, we get up and we go back downstairs okay. Deal? Okay. Uh the next part of it is I have to ask you before you do talk to me, if you are willing to talk to me. If you'll waive your rights and talk to me about what's going on.
Appellant: No I won't waive my rights. I will not waive. I will not waive my rights.
Marshall: You won't waive your rights?
Appellant: No, Sir.
Marshall: Okay. We have nothing left to talk about. Let's getcha (sic) out of here.
Appellant: Can you tell me what the charge is?
Marshall: Uh. The charge is criminal solicitation of a minor.Appellant continued to ask about whether the charge against him was a misdemeanor or a felony, whether he could make bail, and why he was being held. Marshall said appellant would be taken before the judge who would determine what appellant's bond should be, and at that time appellant could "call anybody you want." Appellant asked if he could make a phone call now, and Marshall said he could not. The following exchange then occurred:
Appellant: How can I go to jail and not have a phone call?
Marshall: Well because I have to try to figure out where your computer is, and until I until I figure it out what I plan to do is get a search warrant and look at your AOL account. Examine your email. You know. I'm being up front with ya. Okay? That's what I plan on doing. Okay? Um. Like I say, I think you made a mistake. And we've all made mistakes. But, what I have to decide is, are you an ongoing threat to children or did you make a one time mistake?
Appellant: No I'm not . . .
Marshall: Okay? But see, in order, in order to determine that, I have to talk to you, and if you're not willing to talk to me about it, then I have to then I'm shooting in the dark. I've just gotta kinda go by you know our thirty second conversation and try to determine okay, what kind of guy is Newberry? You know.
Appellant: I'll I'll talk to you, but I mean I just you know I have the right to refuse questions I guess.
Marshall: Yeah.
Appellant: So is there questions you'd like to ask me or?Appellant then cooperated with Marshall's questions concerning his contacts with "Texas14 Chica." We have reviewed the record, and it appears appellant initiated contact with Marshall after he initially refused to waive his rights. Marshall unequivocally stated that appellant could not make a phone call at the time of the interview. As Marshall explained to appellant and later testified at trial, in computer cases Marshall puts a phone hold on suspects so that they cannot call someone and tell them to destroy computer evidence. Under the circumstances of this case, it does not appear that Marshall made a promise that appellant could use the telephone if he gave Marshall a statement. Because Marshall made no positive promise, appellant's statement was not involuntary under either the test in Henderson or the dissent in Martinez. See Henderson, 962 S.W.2d at 564; Martinez, 127 S.W.3d at 798. Accordingly, the trial court did not err in denying appellant's motion to suppress his statements. See Villarreal, 935 S.W.2d at 138. We overrule appellant's sixth and seventh issues. We affirm the trial court's judgment.
A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005).