Opinion
No. 13-02-279-CR.
June 19, 2003. Do not publish.
On appeal from the 103rd District Court of Cameron County, Texas.
Before ChiefJustice Valdez and Justices Rodriguez and Baird
Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
OPINION
Appellant was charged in a multiple count indictment with the offenses of aggravated sexual assault, sexual assault, and indecency with a child. Appellant's motion to sever the counts was granted and this appeal involves only counts I, II, and III of the indictment. A jury convicted appellant of the offenses of aggravated sexual assault and sexual assault. The trial judge assessed punishment at confinement for fifty years for count I, and twenty years for counts II and III in the Texas Department of Criminal Justice — Institutional Division. We affirm.
Voluntariness of Confession.
The first point of error contends the trial judge erred in denying appellant's motion to suppress his written statement. While appellant concedes that "superficially" the confession appears to be voluntary, he nevertheless argues the statement should have been suppressed. Appellant's complaint stems from the fact that he speaks only Spanish, and was interviewed in Spanish by Rudy Delgado, an investigator with the Cameron County Sheriff's Office. However, Delagdo wrote appellant's statement in English and read it to appellant before appellant signed it. Appellant argues these circumstances make the statement inherently untrustworthy. At the hearing on appellant's motion to suppress the statement, the trial judge heard the testimony of Delgado, who repeatedly testified that appellant made his statement voluntarily and without any promise, threat, or coercion. Delgado was the only witness to testify at the hearing. At the conclusion of that testimony, the trial judge made the following findings and conclusions:All right. The Court finds that based on the testimony that I have heard, the officer, number one gave him the required warnings. Number two, there is no evidence of any improper influences brought to bear of any sort on the defendant to get him to execute this or in any way he attempted to exercise some of those rights and was denied the opportunity to do so.
The officer has testified that he is conversant in both languages and is able to translate the written English into Spanish sufficient to tell the defendant what was written on the document, which of course necessarily had to be in English; that he made the translation and that the defendant understood it, and there is no evidence to the contrary. And based on that, the court believes the officer to be telling the truth, that he did in fact get the information in Spanish from the defendant, reduce it to writing in English, translate the English document back to the defendant orally in Spanish. The defendant agreed to it, that that was his statement and voluntarily signed it, and that the proper warnings show on the face of the document.
So based on that State's Exhibit 5 . . . will be received.We believe the instant case is controlled by Hernandez v. State, 978 S.W.2d 137 (Tex.App.-Austin 1998, pet. ref'd), where the defendant was born in Mexico and English was not his primary language. Id. at 140. Nevertheless, the Hernandez court held:
[A]ssuming that the officer who read the blue card containing the Miranda warnings in Spanish and English was not fluent in Spanish, nothing established that appellant did not understand the warnings or his statement or did not voluntarily and knowingly waive the rights set out in the warnings. The testimony of the officers and the other witnesses was that appellant understood and knowingly waived his rights and executed his statement. There is no evidence to the contrary in the record.Id. In the instant case, there is absolutely no evidence that appellant was not properly warned, or that his statement was not made under voluntary conditions. At a hearing on the voluntariness of a confession, the trial court is the sole judge of the weight and credibility of the witnesses. Miniel v. State, 831 S.W.2d 310, 315 (Tex.Crim.App. 1992); Lamb v. State, 680 S.W.2d 11, 15 (Tex.Crim.App. 1984). The trial judge may believe or disbelieve all or any part of any witness's testimony. Lamb, 680 S.W.2d at 15. When reviewing a trial court's determination of the voluntariness of a confession, the appellate court must determine whether the trial court abused its discretion. Miniel, 831 S.W.2d at 315. Absent an abuse of discretion, the trial court's findings will not be disturbed. Id. In this case, there is no showing that the trial judge abused his discretion. Consequently, we are not at liberty to disturb his findings. Accordingly, the first point of error is overruled.
Judicial Comment.
The second point of error contends the trial judge created fundamental error by commenting on the weight of the evidence. Count II of the indictment alleged the offense of aggravated sexual assault because the complainant was younger than fourteen years of age at the time of the commission of the alleged offense. Tex. Pen. Code Ann. § 22.021(a)(2)(B) (Vernon 2003). Prior to trial, the State informed the trial judge that the complainant was not fourteen or younger. Therefore, the offense should have been alleged as a sexual assault. Id. § 22.011((a)(2)(A) (Vernon 2003). The trial judge indicated he would make some explanation to the venire. When the venire was seated, the trial judge offered an explanation to the venire regarding the allegation of the complainant's age in count II of the indictment. No objection was made to this explanation. On appeal, appellant argues the trial judge's explanation was fundamental error requiring reversal. The State contends the error, if any, has not been preserved for our review, and if preserved, that the explanation was not error. For the following reasons, we agree with the State. Article 38.05 of the code of criminal procedure prohibits a judge from commenting on the weight of the evidence. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon Supp. 2003). However, a violation of this article is forfeitable by inaction. Moore v. State, 907 S.W.2d 918, 923 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Since no objection was lodged in the trial court, we hold this issue is not preserved for our review. Tex.R.App.P. 33.1(a); Lookingbill v. State, 855 S.W.2d 66, 77 (Tex.App.-Corpus Christi 1993, pet. ref'd) ("A defendant must object to the comment at trial in order to preserve error for appellate review."). Appellant argues that the comments of the trial court amounted to "fundamental error" and, therefore, an objection was not required to preserve this issue for our review. In Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000), the court of criminal appeals held the trial judge's statement to the venire that he preferred the defendant plead guilty tainted the defendant's presumption of innocence and was fundamental error. Id. at 132. However, in this case, the trial judge's explanation does not rise to the level of fundamental error because he did not express an opinion on the sufficiency of evidence in appellant's case; the trial court merely explained the legal process if the State failed to prove the essential element of the complainant's age. Mestiza v. State, 923 S.W.2d 720, 724 (Tex.App.-Corpus Christi 1996, no writ) (finding that a trial court did not express an opinion of a party's guilt by briefly explaining parole in response to a venire member's question). Consequently, we hold the trial judge's explanation does not rise to the level of fundamental error thereby escaping the need to object to preserve the issue for appellate review. Assuming, arguendo, this issue was preserved, we further hold the explanation provided by the trial judge did not violate article 38.05 because he did not impermissibly comment on the weight of the evidence but merely helped explain the applicable rule of criminal law when the State fails to prove an element of the alleged offense. Williams v. State, 834 S.W.2d 502, 505 (Tex.App.-Fort Worth 1992, pet. ref'd). This rule of applicable law was incorporated in the court's charge when the trial judge instructed the jury as follows:With respect to Count No. 2 only, the Court has determined that there is no evidence that the offense alleged in Count No. 2 occurred while the alleged victim was under the age of 14. Therefore with respect to that count you are only being instructed on the lesser included offense of sexual assault.Accordingly, we find that the trial judge's explanation was not a comment on the weight of the evidence because the explanation was not reasonably calculated to harm appellant. Lookingbill, 855 S.W.2d at 77 ("A remark from the judge does not violate art. 38.05 unless it benefits the state or harms the defendant."). For these reasons, the second point of error is overruled. The judgment of the trial court is affirmed.