Opinion
No. 05-02-00888-CR No. 05-02-00889-CR
Opinion Filed July 8, 2003. Do Not Publish
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-37586-PN and F01-37585-LN. AFFIRMED
Before Justices WRIGHT, MOSELEY, and FRANCIS.
OPINION
A jury convicted Tommy Ray Harris on two charges of aggravated sexual assault of a child under fourteen and assessed punishment at forty years in prison. In three issues, appellant complains the trial court abused its discretion in (1) admitting his confession, (2) admitting testimony of two witnesses not statutorily qualified as "outcry witnesses," and (3) excluding a portion of a medical report as evidence. We resolve all issues against appellant and affirm. Nine-year-old S.W. testified appellant had lived with her and her mother, Patricia Gail Welke, since S.W. was a baby. When she was about five or six years old, appellant began putting his finger and penis in her vagina. The abuse continued for more than a year and occurred numerous times. On one occasion, appellant's actions caused S.W. to bleed. The abuse occurred at night when S.W.'s mother was at work. S.W. said she told her mother each time, but the abuse continued until S.W. told her babysitter, Christy Byrd. When Byrd heard the allegations, she demanded Welke notify the police. Instead, Byrd said Welke called and warned appellant. Byrd notified the police, who arrested appellant. Appellant gave a written statement apologizing to S.W. "if" he did anything. A medical examination of S.W. showed "past penetrating trauma" to the vagina consistent with "repeated sexual activity." In his first issue, appellant argues his statement to police should have been excluded because it was taken in violation of his statutory and constitutional rights. Specifically, he contends the statement was not voluntary because the interrogating officer promised him a benefit to induce him to confess. In the suppression hearing, Detective James Sears testified appellant was given his Miranda warnings and initialed that he understood his rights. He testified he made no threats or promises. The following colloquy occurred when being cross-examined by defense counsel:
[DEFENSE COUNSEL]: Okay. Did you tell him that if he would write down something for you, you could — he would be released from jail?
[DETECTIVE SEARS]: No.
[DEFENSE COUNSEL]: Okay. Didn't mention anything about any benefit that he would get by cooperating?
[DETECTIVE SEARS]: Any benefit in — no.
[DEFENSE COUNSEL]: In any way you can imagine?
[DETECTIVE SEARS]: No.
[DEFENSE COUNSEL]: It would go better for you, along these lines?
[DETECTIVE SEARS]: If — if he cooperated and gave a statement and everything, that, you know, it wouldn't hurt him in any way that I knew of.At trial, Detective Sears also testified to the following:
[DEFENSE COUNSEL]: And did you tell him that things would go better for him if he gave you a statement?
[DETECTIVE SEARS]: It's not so much that things would go better for him. If he was remorseful in his statement, it would not be, you know — it would probably be better for him in the Court, if he gave a statement.
[DEFENSE COUNSEL]: To that extent, you were telling him that it was in his best interest to sign something or to write out something?
[DETECTIVE SEARS]: It's never put out so much that it's in his best interest to give a statement.
[DEFENSE COUNSEL]: Okay. Well —
[DETECTIVE SEARS]: But it's nice that we — we put it to them — we have this one point of view, and we would like the other point of view in it.On appeal, appellant argues the highlighted statements directly contradict the admonition required by article 38.22 of the Texas Code of Criminal Procedure that "any statement he makes can be used as evidence against him in court." See Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a)(2) (Vernon 1979). Moreover, he argues the officer's remarks constituted "official coercion and improper influence," violating his state and federal constitutional rights to due process and his state and federal constitutional rights not to incriminate himself. See U.S. Const amends. V XIV; Tex. Const. art. I, § 10 19; Before addressing the merits of appellant argument, we first question whether appellant's broad objection at trial preserved the specific complaints he makes on appeal. To preserve a complaint for appellate review, a party must have presented a timely request, objection, or motion that states specific grounds for the desire ruling; otherwise, the complaint is waived. See Tex.R.App.P. 33.1. At the conclusion of the suppression hearing, appellant stated, "Judge, on our Motion to Suppress the statement, we would ask the Judge to suppress it, and that it's not voluntary as shown during the hearing." This is the only oral objection made; our record does not contain a written motion to suppress the statement. At no time, did appellant ever specify why the confession was involuntary. A confession may be deemed "involuntary" under three different theories: (1) failure to comply with article 38.22; (2) failure to comply with the dictates of Miranda v. Arizona, 384 U.S. 436 (1966); or (3) a confession in violation of due process or due course of law because it was not freely given (e.g. coercion, improper influences, incompetency). Wolfe v. State, 917 S.W.2d 270, 282 (Tex.Crim.App. 1996). The detective testified (1) appellant was given the Miranda warnings, (2) appellant indicated he understood those rights, (3) he did not make any promises or threats, (4) appellant appeared to have the normal use of his mental faculties, and (5) appellant willingly and voluntarily gave up his rights and made the statement. Once this testimony was given, we believe appellant had an obligation to allege some specific reason as to why the confession was involuntary. See, e.g., Wolfe, 917 S.W.2d at 282. Otherwise, the trial court is not given an opportunity to consider the myriad complaints an appellant can make on appeal. This is particularly true in this instance, where appellant has raised numerous statutory and constitutional violations, on the very unspecific complaint that the statement is "not voluntary as shown during the hearing." Under these circumstances, we cannot conclude appellant's broad objection was specific enough to direct the trial judge to the complaints he raises on appeal. Cf. Hailey v. State, 87 S.W.3d 118, 121 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 118 (2003) ("[A] trial court's decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record"). But even if we were to conclude appellant's objection preserved review, we would not conclude there was error. Before a promise will render a confession inadmissible, it must be shown that the promise induced the confession. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993); Ramirez v. State, 76 S.W.3d 121, 126 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). In order to induce the confession, the promise must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that a defendant would speak untruthfully in response thereto. Muniz, 851 S.W.2d at 254; Ramirez, 76 S.W.3d at 126. In this case, appellant testified at the suppression hearing that he felt induced to give a statement, not for the reasons alleged on appeal, but because he believed he would be released from jail. Thus, the record does not support his contention that he was induced by the officer's remark that a statement "wouldn't hurt [appellant] in any way that I knew of." Moreover, the officer's remark that "if [appellant] was remorseful in his statement . . . it would probably be better for him in the Court, if he gave a statement" was simply a statement of opinion. See Ramirez, 76 S.W.3d at 126 (concluding detective's statement that "typically juries and the court system sometimes favor people [who] tell the truth" was statement of opinion and not unequivocal promise of leniency). Finally, even if we were to conclude the officer's remarks induced appellant to give a statement, we would not conclude its admission constituted reversible error. Appellant's entire statement, with any misspelling and punctuation error, is as follows:
[S.W.] I don't rember this but if I did this I am sorry I drink to much and don't rember one thing must have or you would noght say this.This statement is not truly a confession, in the sense that appellant unequivocally admitted penetrating S.W.'s vagina with his penis and finger. To the contrary, appellant conditions an apology on "if" something happened. At most, the statement is ambiguous and, in fact, at trial appellant explained his statement that "something must have happened" really meant "like we had a disagreement or something." He never intended it to be an admission of guilt. Because the statement is not an unequivocal admission of guilt, and in view of the other evidence presented, including S.W.'s unequivocal testimony that appellant was her assailant, evidence that S.W.'s mother knew of the abuse and warned appellant when S.W. made an outcry to the babysitter, and the medical report confirming sexual abuse, we cannot conclude the error had a substantial and injurious effect or influence in determining the jury's verdict. See Tex.R.App.P. 44.2(b) (nonconstitutional error must be disregarded unless it affects substantial rights of defendant); see also King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (explaining when substantial right is affected). Moreover, we are convinced beyond a reasonable doubt that the error did not contribute to appellant's conviction. See Tex.R.App.P. 44.2(b) (standard for determining constitutional error). We resolve the first issue against appellant. In his second issue, appellant contends the trial court abused its discretion in allowing Christy Byrd and Allison Medina to testify as "outcry witnesses" in violation of article 38.072 of the Texas Code of Criminal Procedure because evidence showed the child first told her mother. Article 38.072 applies in child sexual abuse cases involving children twelve and under and makes admissible the testimony of the first adult the child tells about the offense. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. Pamph. 2003). The "first person" refers to the first adult who can remember and relate at trial a statement by the child victim that in some discernible manner describes the alleged offense. See Foreman v. State, 995 S.W.2d 854, 859 (Tex.App.-Austin 1999, pet. ref'd). The trial court has broad discretion in determining the proper outcry witness, and its determination will not be disturbed absent an abuse of discretion. Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd). The State designated Byrd as the outcry witness on the charge alleging penetration by finger and Medina, a forensic interviewer with the Dallas Children's Advocacy Center, as the outcry witness as to penetration by penis. Appellant argued the mother was the outcry witness, because S.W. first reported the abuse to her. We agree that S.W. did testify that she repeatedly told her mother, Patricia Gail Welke, about the abuse. Welke, however, testified S.W. never told her that appellant was abusing her — "not one word" and Welke told police she knew nothing about the abuse. Thus, regardless of the reason, Welke could not recall or relate any statement by her daughter about the assaults. Byrd and Medina, however, were the first adults who could recall and testify to statements S.W. made about the two indicted offenses: (1) the digital penetration of S.W.'s vagina and (2) the penile penetration of S.W.'s vagina. Byrd testified S.W. told her appellant had put his finger inside her, hurting her and making her bleed. S.W. told Medina that appellant touched her "privacy" with his "privacy." Under these circumstances, we cannot conclude the trial court erred in allowing Byrd and Medina to testify as the first person to whom S.W. reported the respective offenses. See Foreman, 995 S.W.2d at 859 (concluding trial court did not err in allowing counselor to testify as "first person" in situation where complainant testified she told her mother and stepfather about abuse by uncle, but both testified they had no memory of child telling them of abuse). We resolve the second issue against appellant. In his third issue, appellant complains the trial court abused its discretion in excising a portion of a medical report that mentioned sexual abuse of S.W.'s older sister occurring several years earlier. Redacted from the report was the following:
The grandfather also reported that when pt was around age 3 or 4 she was removed by by [sic] CPS when her older sister was sexually abused by another man mom was seeing or married to a [sic] the time.The court's decision to exclude the excerpt is reviewed for an abuse of discretion. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We look to see whether the court acted without reference to any guiding rules or principles. See Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App. 1993). The mere fact that a trial court may decide a matter within its discretionary authority differently than a reviewing court does not demonstrate such an abuse. See Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex.Crim.App. 1990) (op. on reh'g). Therefore, we will not reverse a trial court whose ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102. The defense argued at trial information "could become relevant" to show S.W. "grew up in an atmosphere of sexual conversation, knowledge, and trauma." On appeal, he argues the omission of the excerpt deprived him of a "viable defense." Specifically, he asserts he was (1) unable to show the accusation against him was false, (2) the language used by the child "was the result of the child having been raised in a sexually charged environment," and (3) the false accusation was motivated by the child's anger over not being allowed to play computer games. We disagree. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Evid. 401. The excerpt demonstrates only that the grandfather said that S.W. was removed from her mother's care at least four years earlier because an older sister had been abused by mother's boyfriend. No evidence was presented suggesting that S.W.'s older sister discussed the matter with S.W. or that S.W. was otherwise aware of the matter. To the extent appellant complains exclusion of the evidence prevented him from presenting a "viable defense," we note appellant testified the accusation was false and that it was motivated by S.W.'s anger at not being allowed to play computer games. Moreover, S.W. testified on cross-examination that she would get mad when appellant would tell her to get off of the computer. The inclusion of this statement in the medical report would not, as maintained by appellant, show the accusation against him was false, and would not demonstrate that S.W.'s language was the result of having been raised in a "sexually charged environment." Under these circumstances, we cannot conclude the trial court abused its discretion in excluding the information. We resolve the third issue against appellant. We affirm the trial court's judgments.