Opinion
Nos. 10-05-00379-CR, 10-05-00380-CR
Opinion delivered and filed July 26, 2006. DO NOT PUBLISH.
Appeal from the 400th District Court, Fort Bend County, Texas, Trial Court No. 40740 and 40739. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Upole appeals his convictions for aggravated sexual assault. See TEX. PENAL CODE ANN. § 22.021(a) (Vernon Supp. 2005). We affirm. In Upole's sole issue, he contends that the trial court erred in overruling Upole's objection to evidence of Upole's recorded oral statement. Upole argues that the statement was involuntary "because it was induced by false representations by the state's investigating officer." (Br. at 4.) "No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. "[T]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will. . . ." Missouri v. Seibert, 542 U.S. 600, 607 (2004) (quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)); see U.S. CONST. amend. V. "The use in a state criminal trial of a defendant's confession obtained by coercion — whether physical or mental — is forbidden by the Fourteenth Amendment." Payne v. Arkansas, 356 U.S. 560, 561 (1958). "[T]he voluntariness of a statement is often said to depend on whether 'the defendant's will was overborne.'" Yarborough v. Alvarado, 541 U.S. 652, 667 (2004) (quoting Lynumn v. Illinois, 372 U.S. 528, 534 (1963)). "[V]oluntariness is evaluated by examining the 'totality of circumstances' surrounding the 'making and signing of the challenged confession.'" Mayle v. Felix, 125 S. Ct. 2562, 2573 (2005) (quoting Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). "An appellate court reviews a trial court's decision to admit or exclude evidence under an abuse of discretion standard." Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App. 2006); accord Wilkerson v. State, 173 S.W.3d 521, 524 (Tex.Crim.App. 2005) (statement); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). "If the trial court's decision was within the bounds of reasonable disagreement, the appellate court should not disturb its ruling." Shuffield at 793; accord Montgomery at 391. "Misrepresentations made by the police to a suspect during an interrogation is a relevant factor in assessing whether the suspect's confession was voluntary, but it is insufficient to render an otherwise voluntary confession inadmissible." Green v. State, 934 S.W.2d 92, 99 (Tex.Crim.App. 1996); see Frazier v. Cupp, 394 U.S. 731, 739 (1969). "Of the numerous types of police deception, a misrepresentation relating to an accused's connection to the crime is the least likely to render a confession involuntary." Green at 100. Upole contends only that an investigating detective made misrepresentations and that those misrepresentations induced Upole's confession. If the detective made misrepresentations, they are insufficient to render Upole's confession inadmissible. In any case, the trial court did not abuse its discretion. In support of his argument, Upole points only to the following testimony on his cross-examination of the detective concerning the interview:
Q So, it would be a misstatement by you that there was evidence of vaginal penetration of the vagina of both girls?
A At the time, the information I had, yes.(3 R.R. 247.) The record does not clearly show that the detective made any misrepresentations. On cross-examination by Upole, the detective testified as follows:
Q Detective, do you have your narrative report dated 8-25-2004?
A Yes, sir.
. . .
Q. . . . Would you read that to the jury, "I then asked [Upole] that"?
. . .
A. . . . "I then asked [Upole] that the test during the exam showed that both girls had been penetrated, which was called digital penetration."
Q Now, at that point, you had indicated to him that you had a test and that exam of the girls would show that both girls had been penetrated. Isn't it true that those tests did not show that?
A From the S[exual]A[ssault]N[urse]E[xaminer] exam?
Q Isn't it true that when you said that, what you're telling him is the test from the examination of both girls showed that both girls had been penetrated? It says that in the report, correct?
A Correct.
Q And at that time you knew that those examinations did not show that both of the girls had been penetrated, correct?
A The information I had showed that they had been penetrated.
Q What information did you have?
A The SANE exam.
Q The which exam?
A The exam from the SANE nurse.
Q Okay. And where had they been penetrated in that examination? From the best of your recollection, where were they penetrated?
A In the vagina.
Q In the vagina, okay. Would it surprise you to know that the witness who just testified indicated that that younger girl had a normal vaginal examination?
A No, sir, I did not know that.(3 R.R. 244-45.) The sexual assault examination forensic reports state that each victim's female sexual organ had been penetrated. (State's Exs. 3-4.) The trial court would not have abused its discretion in finding no misrepresentation. The trial court did not abuse its discretion in overruling Upole's objection. We overrule Upole's issue. Having overruled Upole's sole issue, we affirm.