Juan Herrera Rodriguez v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00734-CR

Juan Herrera Rodriguez, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT

NO. 95-140, HONORABLE BILL BENDER, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated sexual assault of a child. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 1996).⁽¹⁾ The jury assessed punishment at imprisonment for thirty years.

On April 14, 1995, the complainant told her mother, Amy Rodriguez, that appellant, the complainant's father and Rodriguez's estranged husband, had sexually abused her. Rodriguez reported this to the Lockhart police. On April 18, appellant gave Lockhart police officer John Roescher a written statement in which he confessed, "About a month ago things got out of hand between [the complainant] and I. We ended up having sex. This has happened several times in the past, the last time being about a month ago, maybe a little longer." Appellant also admitted having sexual intercourse with the complainant during a subsequent interview by Karen Williams, a case worker for the Department of Protective and Regulatory Services. The complainant was examined by Dr. Beth Nauert, a pediatrician who specializes in the treatment of child sexual abuse victims. She told Nauert that she had sexual intercourse with appellant repeatedly over a number of years. Nauert testified that the complainant's physical condition was consistent with a history of sexual intercourse.

In her trial testimony, the complainant denied that appellant engaged in any sexual activity with her. She was impeached by proof of her written statement to the police accusing appellant of penetrating her vagina with his penis.⁽²⁾ The complainant testified that she made the accusation against appellant because she wanted to live with her mother. Appellant also testified and asserted his innocence. Appellant claimed that, due to his limited education and poor command of English, he did not understand his written confession when he signed it. He explained his admission to Williams by saying that he was afraid the State would take his children if he did not cooperate.

In his first point of error, appellant contends the evidence is legally insufficient to sustain the conviction. In support of this contention, appellant asks this Court to accept the truth of the complainant's testimony repudiating her earlier accusations and of appellant's explanations for his incriminating statements. In determining the legal sufficiency of the evidence to support a criminal conviction, however, we must view all the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). The jury, as factfinder, determines the credibility of the witnesses and the weight to give their testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury was entitled to disbelieve the complainant's recantation of her accusations against appellant. Id. Applying the Jackson standard of review to the evidence in this cause, we conclude that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Point of error one is overruled.

Next, appellant contends his written statement to the police was not knowingly and voluntarily made and should have been suppressed by the district court. At the hearing on the motion to suppress, appellant testified that he cannot read English and did not understand what he was signing. Appellant's employer also testified to appellant's limited English skills and expressed the opinion that appellant could not have understood his rights and would have signed a confession in order to be cooperative. Roescher and a second officer, Richard Sepeda, testified that appellant was advised of his rights in both English and Spanish, and appeared to understand them. Appellant's statement was read back to him in both languages, and alterations were made at appellant's request. Both officers were of the opinion that appellant understood the statement before signing it.

At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses, as well as the weight to be given their testimony. Dubose v. State, 915 S.W.2d 493, 496-97 (Tex. Crim. App. 1996). The court is also the initial arbiter of the legal significance of those facts. Id. A court of appeals limits its review of the trial court's rulings, both as to the facts and the legal significance of those facts, to a determination of whether the trial court abused its discretion. Id. The record before us amply supports the district court's conclusion that appellant's statement was knowingly and voluntarily made. Finding no abuse of discretion, we overrule point of error two.

Finally, appellant complains that evidence of an unadjudicated extraneous offense was erroneously admitted at the punishment stage of his trial. Marilyn Drozd, a case worker for the Department of Protective and Regulatory Services, testified that appellant's son made an "outcry" to her during an interview at his school. Dr. Nauert testified that she was told by the boy that appellant often penetrated him anally with his penis. Nauert testified that the boy's physical condition was consistent with anal penetration.

Appellant's son was called as a defense witness. He admitted making the accusations against his father but asserted that they were false. The boy claimed that he made the accusations because he wanted to continue living with his mother. Two sworn written statements by the boy were also admitted in evidence. The first statement accused appellant of sexual misconduct while the second recanted the first.

Appellant's brief contains little argument and cites no authorities in support of his contention that the testimony in question was erroneously introduced. He cites his trial objection that the State was engaged in "trial by ambush." This was a reference to the State's earlier decision not to prosecute appellant for the alleged acts committed with his son. Appellant does not complain, however, that he did not have adequate notice of the State's intention to introduce this evidence at the punishment stage.

At the punishment stage, a trial court may admit evidence as to any matter it deems relevant to sentencing, including evidence of unadjudicated extraneous crimes committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1996). Before admitting the testimony, the district court heard the witnesses outside the jury's presence and determined that there was sufficient evidence to support a jury finding beyond a reasonable doubt that appellant committed the extraneous offense. Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994); Tex. R. Crim. Evid. 104(b). We are not persuaded that the court erred by admitting this evidence. Point of error three is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: September 25, 1996

Do Not Publish

1. The 1995 amendments to this statute are irrelevant to this cause.

2. Appellant did not request an instruction limiting the jury's consideration of the complainant's prior inconsistent statement to impeachment only, and thus this evidence could be considered as proof to the full extent of its rational persuasive power. Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994).

as not knowingly and voluntarily made and should have been suppressed by the district court. At the hearing on the motion to suppress, appellant testified that he cannot read English and did not understand what he was signing. Appellant's employer also testified to appellant's limited English skills and expressed the opinion that appellant could not have understood his rights and would have signed a confession in order to be cooperative. Roescher and a second officer, Richard Sepeda, testified that appellant was advised of his rights in both English and Spanish, and appeared to understand them. Appellant's statement was read back to him in both languages, and alterations were made at appellant's request. Both officers were of the opinion that appellant understood the statement before signing it.