No. 08-02-00250-CR.
February 12, 2004. DO NOT PUBLISH.
Appeal from the 409th District Court of El Paso County, Texas, (TC# 20000D02956).
Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
DAVID WELLINGTON CHEW, Justice.
Appellant Albert Gary Taylor appeals a conviction and sentence from a guilty verdict on three counts of sexual assault of a child and one count of sexual performance of a child. The jury found Appellant guilty, assessed a punishment of 20 years' confinement, and a $10,000 fine for each count. The trial court ordered that the four twenty-year sentences be served consecutively. Appellant raises four issues on appeal: (1) whether the trial court violated Appellant's right to confront and cross-examine the evidence against him when Appellant's written statement was admitted without requiring the State to offer the statement through a live witness; (2) whether Appellant's written statement was inadmissible hearsay and therefore erroneously admitted at the punishment phase of the trial; (3) whether the trial court erroneously denied Appellant's motion to suppress his written statement because Appellant's request for counsel was disregarded; (4) whether the evidence was legally and factually sufficient to support a conviction of sexual performance of a child. We affirm.
FACTUAL SUMMARY
A federal investigation of the Appellant for the offense of interstate travel for the purpose of engaging in sex with a minor generated the investigation that led to Appellant's arrest and conviction in this case. In January 2000, Appellant made contact over the internet with an individual whom he thought was a fourteen-year-old girl named Ashley. Ashley was really an undercover U.S. Customs Service special agent assigned to the FBI's Innocent Images Task Force posing as a fourteen-year-old girl living in the Washington, D.C. area in a chat room by the name of "Barely Legal F For Older M." Appellant engaged in internet communications of a sexual nature with Ashley and mentioned he had an ex-girlfriend that was fourteen years old. Appellant also sent Ashley two photographs containing child pornography, as well as nude photographs of himself. In February of 2000, Appellant indicated to Ashley that he wanted to visit her in Washington, D.C. to engage in sexual activities with her. Appellant made plans to visit Ashley on March 24, 2000. He bought an airline ticket to fly from El Paso, Texas to Arlington, Virginia on that date. On March 24, 2000, Appellant departed from the El Paso International Airport and arrived at Reagan National Airport, where federal agents observed him approach an undercover agent who looked like a young girl and ask her if she was Ashley. Appellant was then arrested and taken to the airport police station where he was then interviewed by federal agents. During his interview, Appellant signed an "Advice of Rights" form waiving his rights and a "Statement Advice of Rights" form that included a handwritten statement regarding his online activity, his conversations with Ashley, and his intentions of meeting with Ashley for the purpose of engaging in sexual activity with her. While Appellant was being interrogated by the federal agents, agents in El Paso, Texas secured a search warrant for his home. In conducting a search of Appellant's home, agents found among other things, nude photographs of females who appeared to be minors. Some of the photographs appeared to have been taken at Appellant's home; the bedspread and furniture in the pictures matched what was in Appellant's home during the search. Agents also discovered a package addressed to an individual in Minnesota with an El Paso return address containing a female name. The agents provided this information to the El Paso Police Department for further investigation. Upon further investigation, the El Paso Police department learned that the female name on the return address of the package found in Appellant's home was in fact a minor. Appellant met the female victim in this case over the internet. The victim was twelve or thirteen years old at the time. Appellant and the victim engaged in conversations of a sexual nature over the internet. In 1999, on Thanksgiving day, Appellant met with the victim in person for the first time. By this time, the victim was fourteen years old. The victim had provided Appellant with an e-mail containing the directions to her high school. Once Appellant arrived at the victim's high school, she got into his car and Appellant took the victim to his home. On that particular day, Appellant engaged in various forms of sexual activities with the victim. After this initial meeting, Appellant met with the victim on three or four other occasions and had further sexual contact with her. During this time, Appellant also took several nude photographs of the victim. Appellant filed a motion to suppress illegally seized evidence and a motion to suppress the written statement he provided to the federal authorities pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). After holding a hearing on the motions to suppress, the trial court denied Appellant's motions and allowed the evidence to be admitted. Appellant was convicted by a jury trial on three counts of sexual assault of a child and one count of sexual performance of a child. Appellant now brings this appeal. DISCUSSION
Issues One and Two of Appellant's argument center around the trial court's admission at the punishment phase of the trial of Appellant's written statement in which he admits to various extraneous offenses. In Issue One, Appellant argues that the trial court erred in admitting Appellant's written statement at the punishment trial without a live witness because it violated his right to confront and cross-examine the evidence against him. In his second ground for review, the Appellant argues that his written statement was inadmissible hearsay. The State responds that the written statement was admissible as a party-opponent admission. In the alternative, the State also alleges that if it is determined that the written statement was erroneously admitted by the trial court at the punishment trial, that such error was harmless. We find that the trial court did not abuse its discretion in admitting the written statement. The admissibility of an out-of-court statement under the exceptions to the general hearsay exclusion rule is within the trial court's discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003), citing Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995). Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown. Zuliani, 97 S.W.3d at 595, citing Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). An abuse of discretion occurs "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Zuliani, 97 S.W.3d at 595, citing Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). Under TEX.R.EVID. 801(e)(2)(A), a statement is not hearsay if the statement is offered against a party and is his own statement in either an individual or representative capacity. This rule plainly and unequivocally states that a criminal defendant's own statements, when being offered against him, are not hearsay. Trevino v. State, 991 S.W.2d 849, 853 (Tex.Crim.App. 1999). Admissions by party-opponents are admissible precisely because they are being admitted against the party alleged to have made those statements. Bingham v. State, 987 S.W.2d 54, 56-7 (Tex.Crim.App. 1999). Thus, that party cannot complain of an inability to cross-examine him/herself, and since s/he is their author, s/he is estopped from complaining of their untrustworthiness. Bingham, 987 S.W.2d at 57. The written statement at issue was Appellant's own statement being offered against him at the punishment phase of the trial. Therefore, pursuant to TEX.R.EVID. 801(e)(2)(A), we find that Appellant's statement was not hearsay, but was rather admissible as a party-opponent admission. The trial court did not abuse its discretion in allowing the evidence to be presented at trial. We therefore overrule Issues One and Two. In Issue Three, Appellant alleges that the trial court incorrectly denied his motion to suppress his written statement because Appellant's request for counsel was disregarded, violating his Fifth Amendment right to counsel. The State argues that the record does not support the contention that Appellant requested an attorney while being interrogated by the federal agents. The State also argues that even if Appellant did invoke the right to counsel with regards to the photographs found in his home, under Cobb. v. Texas, 532 US. 162, 167, 173-174, 121 S.Ct. 1335, 1340, 1343-44, 149 L.Ed.2d 321 (2001) that invocation did not apply to his interview regarding the federal charges. The standard of review for a trial court's ruling on a motion to suppress evidence is abuse of discretion. Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Therefore, an appellate court must review the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling and must sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villareal, 935 S.W.2d at 138, citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). In reviewing the entire record, we find no evidence that Appellant invoked his right to counsel while being interrogated by the federal agents. At the trial court's motion to suppress hearing, U.S. Postal Inspector Robert Northrup ("Inspector Northrup") testified that prior to speaking to Appellant, he advised Appellant of his Miranda rights. Inspector Northrup also testified that Appellant indicated both verbally and in writing that he understood his rights. When the issue of the photographs found in Appellant's home was raised during the interview, Inspector Northrup testified that Appellant stated that he did not want to discuss the photographs, but that "he would feel more comfortable if he had an attorney to help him with any questioning about that." Even after the issue of the photographs was raised, Appellant never expressed a desire to cease the interview or to speak to an attorney. FBI special agent, Gregory Zack ("Special Agent Zack") was also present when Appellant was arrested and advised of his rights. Special Agent Zack testified that after being advised of his rights, Appellant did not request an attorney. During the entire time that Special Agent Zack was with the Appellant, never once did Appellant indicate that he wanted the interview to stop or that he no longer desired to provide the federal agents with information. Special Agent Zack testified that the only time the issue of an attorney was raised was when Appellant was asked about the photographs, at which point "[Appellant] said he would rather discuss the photographs with an attorney." However, Appellant did not indicate that he wanted the conversation to stop or that he wanted to consult an attorney. While with the federal agents, Appellant also signed an "Advice of Rights" form, as well as a "Statement Advice of Rights" form. Both statements specifically stated that Appellant understood his rights and that he was willing to answer questions without having an attorney present. Inspector Northrup had Appellant read the Advice of Rights form out loud to ensure that Appellant could read and write, and that he understood what he was signing. In reviewing the evidence and all reasonable inferences in the light most favorable to the trial court's ruling, we find that the trial court's ruling on Appellant's motion to suppress is supported by the record. Issue Three is therefore overruled. In Issue Four, Appellant challenges the legal and factual sufficiency of the evidence to support a conviction of sexual performance by a child, specifically, the lack of evidence of lewd exhibition of a child's genitals. In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must consider whether, in reviewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of that offense proven beyond a reasonable doubt. Garay v. State, 954 S.W.2d 59, 66 (Tex.App.-San Antonio 1997, pet. ref'd), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jurors are empowered to "draw reasonable inferences from basic facts to ultimate facts." Garay, 954 S.W.2d at 66, citing Kapuscinski v. State. 878 S.W.2d 248, 249 (Tex.App.-San Antonio 1994, pet. ref'd). The jury, as the trier of fact, assesses the credibility of witnesses and the weight to be given to their testimony. Garay, 954 S.W.2d at 66, citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). The standard of review for an appellate court in deciding a challenge to the factual sufficiency of evidence is whether, after looking at all the evidence, the verdict is "against the great weight of the evidence presented at trial so as to be clearly wrong and unjust." Garay, 954 S.W.2d at 66, citing Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). The evidence is not viewed in the light most favorable to the verdict. Clewis, 922 S.W.2d at 129. In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the jury. Davila v. State, 930 S.W.2d 641, 647 (Tex.App.-El Paso 1996, pet. ref'd). The appellate court must detail the evidence when finding that it is greatly contrary to the verdict. Garay, 954 S.W.2d at 66. A person commits an offense of sexual performance by a child "if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance." Tex.Pen. Code Ann. § 43.25(b) (Vernon Supp. 2004). "Sexual performance" means any performance or part thereof that includes sexual conduct by a child younger than 18 years of age. Tex.Pen. Code Ann. § 43.25(a)(1). "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola." TEX.PEN. CODE ANN. § 43.25(a)(2). The word lewd exhibition is not defined by the Texas Penal Code § 43.25(a)(2). Words that are not statutorily defined are to be given their common, ordinarily, or usual meaning. Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref'd), cert. denied, 531 U.S. 895, 121 S.Ct. 225, 148 L.Ed.2d 160 (2000). Jurors are presumed to know and apply such common and ordinary meanings. Id. at 242. While we have found no Texas case law on point, other appellate courts have relied on federal law to provide guidance as to how to define lewd exhibition. See Alexander v. State, 906 S.W.2d 107, 109-11 (Tex.App.-Dallas 1995, no pet.). The federal statute provides punishment for "any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . sexually explicit conduct. . . ." See 18 U.S.C.A. § 2251 (West 2000). Under federal law, "sexually explicit conduct" includes "lascivious exhibition of the genitals." 18 U.S.C.A. § 2256(2)(E). Although this term varies from the phrase at issue in this case, we note that the federal statute previously defined "sexually explicit conduct" to include a "lewd exhibition of genital." Alexander, 906 S.W.2d at 110. Under federal statute, to determine whether a visual depiction of a child constitutes a lewd or lascivious exhibition of genitals, federal courts consider whether: (1) the focal point of the visual depiction is the child's genitalia; (2) the place or pose of the child in the photograph is sexually suggestive; (3) the chid is depicted in an unnatural pose or inappropriate attire; (4) the child is fully or partially clothed or nude; (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) the visual depiction is intended or designed to elicit as sexual response in the viewer. Alexander, 906 S.W.2d at 110, citing U.S. v. Dost, 636 F. Supp. 828, 832 (S.D.Cal. 1986), aff'd, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987). Federal case law has also provided guidance for the Texas courts in defining the term lewd exhibition of the genitals. See Alexander, 906 S.W.2d at 109-11. Accordingly, when a child is the subject of a photograph, lewdness is not to be considered as a characteristic of the child, but rather a characteristic of the photograph itself. Alexander, 906 S.W.2d at 110. Whether the content of a photograph constitutes a lewd or lascivious exhibition of a child's genitals depends on the intent of the photographer. Id. Appellant argues that the photographs in this case show the complainant nude and that alone does not constitute lewd exhibition of the genitals. In addition, Appellant contends that the State failed to provide testimony indicating that the pictures were intended to be sexual in nature. We disagree. The photographs of the fourteen-year-old complainant were found in Appellant's home. The photographs show the victim fully nude with her breasts and genitals exposed. The complainant testified that when Appellant took the pictures of her, he told her how to lay and move. At trial, Appellant's attorney attempted to show that the complainant had taken the nude photographs herself for the purpose of sending them to another individual, not for the Appellant. During the cross-examination of the complainant, Appellant's attorney asked a series of questions in order to establish that the complainant took the pictures on her own. The complainant denied taking the pictures on her own and stated that she did not know how to operate the equipment. The jury in applying weight to this evidence could have found that complainant did not take pictures. While the Appellant did not testify to taking the photos in question, the jury could have found that the Appellant took the pictures based on the other testimony presented at trial. In viewing the evidence in the light most favorable to the State, we find that the evidence was legally sufficient to sustain the jury's conviction of sexual performance of a child. We also find that the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We conclude that this evidence, when taken together, is legally and factually sufficient to support a conviction of sexual performance with a child. A rational trier of fact could find beyond a reasonable doubt that Appellant intended to engage in sexual performance of a child, namely lewd exhibition of a child's genitals. See Garay, 954 S.W.2d at 66. We therefore overrule Issue Four. Accordingly, we affirm the trial court's judgment.