Before JOHNSON, C.J. and REAVIS, J. and BOYD, S.J. (1)
Johnnie Whinery and Pam Whinery appeal from a judgment based on a jury verdict that they take and recover nothing against Mission Petroleum Company, Inc. and Myrl Dean Mann by their suit for personal injuries suffered by Whinery when the pickup he was driving was struck in the rear by a tractor trailer truck driven by Mann. Presenting three issues, they contend that (1) there was no evidence to support the jury verdict, (2) there was insufficient evidence to support the jury verdict, and (3) the jury verdict was so against the weight and preponderance of the evidence as to be manifestly wrong and unjust. Based on the rationale expressed herein, we affirm the judgment of the trial court.
Whinery was an employee of Leonard Hudson Drilling Company located on the west side of FM Road 282 (Price Road) in Pampa. While driving a company pickup to work on April 10, 1995, at about 7:10 a.m., Whinery was stopped to allow oncoming traffic to pass before he made a left turn into Hudson's driveway. About the same time, Mann, an employee of Mission Petroleum Company, was also driving a company truck north on Price Road; however, as discussed in detail below, the Mission truck rear-ended the Hudson pickup. At that time, Mann had 25 years experience as a full time truck driver who had driven three million miles without an accident. Whinery filed suit on April 4, 1997, and by his amended pleadings filed October 12, 2001, claimed the accident was caused because Mann:
- failed to control his speed so as to avoid colliding with the truck driven by Whinery, and such failure was negligence per se;
- followed more closely than a person using ordinary care would have done under the same or similar circumstances; failed to maintain an assured clear distance between the two vehicles and such conduct was negligence per se;
- failed to make timely application of his brakes;
- failed to keep a proper lookout; and
- failed to sound the truck's horn.
Notwithstanding the two claims of negligence per se, by question 1, the trial court submitted the question of negligence and proximate cause in one broad form as suggested by COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES-NEGLIGENCE PJC 4.1 (2000) without an instruction or request, for an instruction of negligence per se per PJC 5.1. Based upon the jury finding that the accident was not proximately caused by the negligence of either driver, the trial court rendered judgment that Whinery take nothing.
Before we consider Whinery's three issues, we first address the appropriate burden of proof and standard of review. Because the mere occurrence of a rear-end collision does not present evidence of negligence as a matter of law, Whinery had the burden to prove specific acts of negligence on the part of Mann and prove proximate cause. Gomez v. Adame, 940 S.W.2d 249, 251 (Tex.App.--San Antonio 1997, no writ); Weaver v. U.S. Testing Co., Inc., 886 S.W.2d 488, 490 (Tex.App.--Houston [1st Dist.] 1994, writ denied).
In Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241-42, (Tex. 2001), the Court discussed the appropriate standards of review where, as here, the party attacking an adverse finding on an issue had the burden of proof. In summary the Court held:
- When a legal sufficiency issue is presented the complaining party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. If there is no evidence to support the finding, then we will examine the entire record to determine if the contrary proposition is established as a matter of law and sustain the point only if the contrary proposition is conclusively established.
- When a factual sufficiency challenge is presented, the complaining party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Under this review, after considering and weighing all the evidence, we can set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.
See also Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 266 (Tex.App.--Amarillo 1988, writ denied), and Hall, Standards of Review in Texas, 34 St. Mary's L.J. 173-74. Because the issues presented require that we review the entire record, we will consider Whinery's three issues simultaneously.
Restated, Whinery contends there was no evidence to support the jury verdict, insufficient evidence to support the verdict, and the verdict is against the weight and preponderance of the evidence so as to be manifestly wrong and unjust. We disagree.
Witnesses described the two-way road, weather and road conditions at dawn on April 10, 1995, as being cold, misty/rainy and the black top pavement was wet. Lesher, a witness who was in the area at the time but did not see the accident, described the traffic as "all kinds of traffic going south and, I guess, going north, too, but-," then said that he was uncertain about north bound traffic. According to Lesher and other witnesses at the time of the accident, cars were using their headlights and the Department of Public Safety Officer described the light conditions as "dawn." According to the evidence, several other businesses, in addition to Leonard Hudson Drilling, were located adjacent to Price Road with exits and entries and the posted speed limit was 40 m.p.h.
Whinery testified that as he was traveling north on Price Road, he intended to turn left across the south bound traffic lane into Hudson's driveway. According to Whinery, his headlights and left turn signal were on and he was stopped to allow the south bound traffic to pass when he was rear-ended by the truck driven by Mann. Mann, however, testified that he did not see any tail lights illuminated on the back of Whinery's pickup. Whinery testified that after receiving a citation, the tail lights were repaired a few weeks prior to the accident, and that before leaving for work every morning he looked to the rear to make sure the lights were operational. Another witness also claimed that the pickup was stopped waiting to make a left turn, but did not testify that Whinery's "stop lamps" were illuminated at the time of the accident. Although another witness who viewed the accident from the north testified that the head lights and left turn signal were working at the time of the accident, the witness was unable to see the rear of the pickup.
Mann estimated that his speed at the time of the accident was approximately 30 m.p.h. Although he saw oncoming traffic from the north, he did not see the truck until about 3 or 4 seconds before the accident and attempted to turn right to avoid hitting the truck; however, the left part of his truck struck the right rear portion of Whinery's pickup. Photographs of the road depicted skid marks showing that Mann applied his brakes, but were not measured by the DPS officer.
DPS Trooper Jim Bishop arrived at the scene of the accident at 7:23 a.m. After interviewing Mann and investigating the scene and the pickup, he prepared a written report describing the weather as clear/cloudy and raining and the surface of the road as "wet." The report introduced by Whinery listed factors/conditions that "may" have contributed to the accident as (a)(22) Mann failed to control speed, and (b)(19) a distraction in vehicle; however, the written report did not designate (44) followed too closely, (60) speeding-unsafe (under limit), or (61) speeding over limit. According to Trooper Bishop, his reference to "distraction in vehicle" was based on Mann's recollection that he was adjusting the windshield wipers. As restated here, his narrative opinion of what happened was
The pickup was traveling northbound in front of the truck. The pickup apparently attempted a left turn into the drive of a private business. The driver of the truck swerved right to avoid the pickup. The truck's left front drive wheel struck the right rear corner of the pickup. Driver of the truck did not see any lights on the pickup. The pickup continued north in the west ditch of FM 282 for approximately 0.1 mile and struck a telephone junction box and then struck a tree in front of another business office.
Although Whinery claimed that his pickip was stopped, according to the Trooper's report Whinery was "traveling in front of the truck" and "apparently attempted a left turn into the drive of a private business." The driver of the truck "swerved right to avoid" the pickup. On cross-examination of Trooper Bishop defense counsel asked:
Q: Is it true what you told me was that when you arrived at the scene what your remembered was that there were no lights on Mr. Whinery's pickup and then you went down and checked them?
A: Yes, sir.
During his examination, the Trooper said that he did not recall if Whinery did anything which contributed to the accident and did not recall if the tail lights on the pickup were defective; however, he did testify that had any defects been found, it should have been noted on his report. (3)
Citing Clark v. Waggoner, 452 S.W.2d 437 (Tex. 1970), Whinery argues that unless excused by some extenuating circumstances or condition, a driver whose vehicle strikes another vehicle which is lawfully stopped is guilty of negligence. However, because Clark and the other cases cited therein were all decided before adoption of the broad form submission practice as provided by Rule 277 of the Texas Rules of Civil Procedure, they are of little assistance. Moreover, in Clark the court did not hold as Whinery suggests, but only decided whether the foreseeability element of proximate cause was conclusively shown.
In Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675 (Tex. 1998) a multi-car rear-end collision accident based on a jury verdict that none of the drivers was negligent, the trial court rendered a take nothing judgment for the defendants. On discretionary review, the Court held that the rule which requires that a driver proceed safely imposes a duty of reasonable care; therefore, a negligence per se instruction was not necessary. Further, in accord with Gomez, 940 S.W.2d at 251 and Weaver, Inc., 886 S.W.2d at 490, in Klein v. Brown-Griffin Texaco Distributors, 562 S.W.2d 910, 912 (Tex.Civ.App.-- Amarillo 1978, writ ref'd n.r.e.), we held that the fact that a rear-end collision occurred did not establish negligence on the part of the driver of the following vehicle. Considering the weather, time of day, and road and traffic conditions, and because there was no evidence that Whinery's brake lights were working, and Mann's testimony that he did not see any lights on the back of the truck was uncontradicted, we conclude that Whinery did not demonstrate the vital facts necessary for recovery as a matter of law.
Although Whinery plead negligence per se, the trial court did not give such an instruction. The trial court did instruct the jury as follows:
A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or hear the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts.
Notwithstanding this instruction, however, a vital fact necessary to support a legal element may not be established by "piling inference upon inference." Further, when circumstances are consistent with either of two facts and nothing shows that one is more probable than the other, neither fact can be inferred. Roth v. FFP Operating Partners, 994 S.W.2d 190, 197 (Tex.App.--Amarlllo 1999, pet. denied).
Accordingly, we do not agree with Whinery's contentions that the evidence was insufficient to support the verdict and that the jury verdict was so against the weight and preponderance of the evidence as to be manifestly wrong and unjust. It was within the province of the jury to determine whether Whinery succeeded in proving negligence by a preponderance of the evidence. Klein, 562 S.W.2d at 911; see also Farley v. M M Cattle Company, 529 S.W.2d 751, 756 (Tex. 1975) (holding that "cause in fact of an injury has been said to be a particularly apt question for jury determination"). Considering the evidence that (a) traffic was heavy, (b) the weather was rainy and the road was wet, (c) the absence of any evidence that the tail lights or brake lights were operating on the pickup immediately before the accident, and (d) that Mann was operating the truck below the posted speed limit and other evidence and permissible inferences, we conclude the evidence is not so weak as to make the jury verdict so against the great weight and preponderance of the evidence as to be clearly wrong and unjust and decline to substitute our judgment for that of the jury. Gomez, 940 S.W.2d at 252. Accordingly, issues one, two, and three are overruled.
Following submission of this appeal, counsel for appellants presented the Court with compact discs of a power point presentation. Appellees filed an objection challenging the presentation on the ground that it was not part of the appellate record. Appellants responded contending that the presentation was supplementation permitted by Rule 38.7 of the Texas Rules of Appellate Procedure. However, Rule 38.7 permits amendment or supplementation of a brief, not the record, whenever justice requires. We agree with appellees and decline to permit the power point presentation to be filed as part of the appellate record.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. Tex. R. App. P. 47.4.
3. We do not consider the inability of the Trooper and other witnesses to recall some matters to be unusual, but instead normal in view of the six-year lapse of time between the accident and trial.
5"/>
NO. 07-09-0077-CR
NO. 07-09-0078-CR
NO. 07-09-0079-CR
NO. 07-09-0080-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 20, 2010
______________________________
SIDNEY LYNN WEEKS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 46TH DISTRICT COURT OF HARDEMAN COUNTY;
NOS. 4088, 4089, 4090, 4091; HON. DAN MIKE BIRD, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Sidney Lynn Weeks (appellant) appeals his four convictions for aggravated sexual assault. Via twelve issues, he contends that the trial court erred in 1) denying his motion for severance, 2) denying his motion to suppress, 3) admitting extraneous evidence, and 4) refusing to charge the jury per art. 38.22 of the Texas Code of Criminal Procedure. He also asserts that the evidence was insufficient to support the four convictions. We affirm.
Background
The circumstances before us involve appellants repeated sexual assaults upon his stepdaughter while she was between the ages of thirteen and sixteen. When finally contacted, the police began an investigation into the crimes. Pursuant thereto, law enforcement officials called appellant and advised him that he was being investigated. Eventually, a meeting was arranged between appellant and a DPS ranger (Foster); but when same was scheduled via phone, appellant was not advised of his Miranda rights. Nevertheless, the two did meet in person, and at the meeting, appellant was mirandized before providing the ranger with a statement. Moreover, during the exchange, the ranger advised appellant that he was subject to punishment anywhere from probation to ninety-nine years in prison and that the district attorney would be told of appellants cooperation in the investigation if a statement was given.
At trial, the victim testified, as did Foster. Furthermore, the trial court admitted appellants written statement, though his oral comments were excluded. Ultimately, the jury found him guilty of all four charges.
Issues One and Six
We address issues one and six since they are logically connected. Via issue one, appellant contends that the trial court erred by refusing to sever each count into separate trials. This allegedly was wrong because the admission of extraneous offenses somehow prejudiced him. Via his sixth issue, he posits that it was error to admit the extraneous offenses. We overrule the issues.
Regarding the admission of the extraneous offenses, the latter consisted of instances wherein appellant engaged in anal and oral sex with the victim. This should have been excluded, according to appellant. Yet, evidence of extraneous acts involving the accused and the victim may be admissible under art. 38.37 of the Code of Criminal Procedure.[1] Appellant does not explain why that statute is inapplicable. Moreover, the State contends that the instances in question had a bearing on relevant matters such as the state of mind of both appellant and victim and the nature of their prior relationship. The trial courts agreement with the State did not fall outside the zone of reasonable disagreement. See Hernandez v. State, 205 S.W.3d 555, 558 (Tex. App.Amarillo 2006, pet. ref'd) (stating that the standard of review for issues encompassing the admission of evidence is that of abused discretion and discretion is abused when the decision falls outside the zone of reasonable disagreement).
The inappropriate relationship between appellant and his stepdaughter covers several of the youths teenage years and evinced frequent assaults. As such, it could be viewed as relevant to the relationship between the two and their respective states of mind. The statements could also be viewed as tending to rebuff appellants attack upon the victims credibility. He did ask the jury to ponder upon why she waited so long to disclose the supposed misconduct and why it was disclosed during an argument with the assailants wife (i.e. the victims mother). Implicit therein is the suggestion that maybe the events were fabricated. Admitting appellants own comments about the nature and extent of the sexual activities in which the two engaged would serve to illustrate that the victim did not simply fabricate the incidents. See Smith v. State, No. 07-05-0277-CR, 2007 Tex. App. Lexis 6004 *3-6 (Tex. App.Amarillo July 30, 2007, pet. dismd) (not designated for publication) (wherein the court held that it was not error to admit instances of prior sexual activity between the accused and appellant, despite an objection founded on Rule 403, because, among other things, the evidence tended to bolster the victims credibility).
We further note that it was within the realm of reason to deduce that while reference to anal and oral sex may carry with it prejudicial effect, that effect would be no greater than the impact arising from the evidence of appellant engaging in vaginal intercourse with his thirteen-year-old stepdaughter. And, no one can deny that the latter evidence was admissible given the allegations contained in the indictment. So, we cannot say that the trial court abused its discretion in finding the evidence both relevant and admissible despite appellants Rule 401, 403, and 404(b) objections.[2] See Hitt v. State, 53 S.W.3d 697, 704-05 (Tex. App.Austin 2001, pet. ref'd) (recognizing that, in cases involving the sexual abuse of children, article 38.37, section 2 supersedes the application of Texas Rules of Evidence 402 and 404).
As for the matter of severance, appellant concedes that the causes were properly joined. However, he posits that they should have been severed because their joinder caused him to suffer prejudice. The prejudice, in his view, arose from the States use of the aforementioned evidence of extraneous offenses. How severance would have precluded the State from invoking art. 38.37 went unexplained, however. Indeed, having concluded above that the trial court did not abuse its discretion in admitting the evidence when the causes were joined, we have difficulty understanding why the same evidence would be inadmissible if the causes were tried separately. Nor does appellant address that. So, under the circumstances before us, the trial court cannot be said to have abused its discretion in trying the causes together. Salazar v. State, 127 S.W.3d 355, 365 (Tex. App.Houston [14th Dist.] 2004, pet. refd) (noting that the pertinent standard of review is one of abused discretion).
Issues Two through Five - Admission of Appellants Confession and the
Evidence of the Extraneous Offenses Therein
Appellant next contends that the trial court erred in admitting his written statement into evidence. This was so, according to him, because the statement 1) was involuntary, and 2) was obtained in a manner that violated due process and article 38 of the Texas Code of Criminal Procedure. We disagree and overrule the issues.
Regarding the issue of voluntariness, appellant suggests his statement was involuntary because it was given in response to the rangers promise to speak with the district attorney if appellant cooperated and his representation that the crime for which appellant was being investigated could carry a sentence ranging from probation to ninety-nine years in prison. Neither of these grounds was urged at trial as basis for finding his confession less than knowing and voluntary, however. That is, he did not argue that the confession was involuntary because it arose from a promise or representation of the type which would induce someone to speak untruthfully. Therefore, this particular argument was not preserved for review. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (stating that the legal basis of a complaint raised on appeal cannot vary from that raised at trial).
As for due process and article 38 of the Code of Criminal Procedure, both were purportedly violated because appellant was not mirandized prior to undergoing the custodial interview. This is allegedly true even though the ranger actually mirandized appellant before he signed his confession. We find no error.
It is clear that a suspect undergoing custodial interrogation must be warned of his right to remain silent, his right to have legal counsel, his right to have counsel appointed if he is impoverished, and of the potential consequences arising from his refusal to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Such warnings are not necessary, though, if the interview occurs outside the realm of custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). The trial court found, after conducting an evidentiary hearing, that the statement at bar was not the product of such an interrogation. And, we find no fault with that determination.
According to the record, the police chief contacted appellant about meeting to review the allegations raised by his stepdaughter. Appellant agreed and appeared at the offices of the Department of Public Safety. There he met with Ranger Foster for one hour and forty-nine minutes. Foster testified that appellant was free to go at any time and that if he left, the ranger would have simply continued his investigation without appellant. So too did the ranger testify that appellant was not denied any basic necessity such as food, or water, or cigarettes or anything like that. And, once the interviewed ended, appellant left. It may well be that appellant was a suspect in an ongoing investigation. But being a suspect alone does not cause any ensuing interview to rise to the level of custodial interrogation. Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990) (citing Beckwith v. State, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976)); accord, Samuel v. State, No. 02-08-341-CR, 2010 Tex. App. Lexis 1372, *17 (Tex. App.Fort Worth February 25, 2010, no pet.) (not designated for publication) (stating the same). Moreover, we cannot forget that appellant was actually mirandized before executing his written confession. And, upon receiving those warnings, he not only indicated to the ranger that he understood them but also that he wished to proceed without counsel.
Missing from the record is any evidence of threats. Nor do we have before us evidence of appellant being physically restrained in any manner. And, that Foster informed appellant about the potential range of punishment for the alleged offense and stated he would let the district attorney know that appellant cooperated falls short of evincing psychological coercion. Indeed, appellant himself characterized the representations (in his appellate brief) as seem[ing] innocuous enough. Furthermore, they could have been reasonably interpreted, by the trial court, as an effort to impress upon appellant the gravity of the situation and as a means of fully informing him of potential ramifications arising from the allegation. In other words, the ranger may have simply been attempting to provide appellant with all the information available to assist him in making an informed choice. And, if placed within that perspective, we cannot say that they alone or in conjunction with the other circumstances then present somehow obligated the trial court to conclude that appellant was neither free to leave nor able to terminate the interview at will.
Simply put, the trial court had basis to legitimately conclude that the interview was not tantamount to a custodial interrogation. As stated in Martinez v. State, 131 S.W.3d 22 (Tex. App.San Antonio 2003, no pet.), when the circumstances show that the individual acts upon the invitation or request of the police, and there are no threats, express or implied, that he will be forcibly taken, then that person is not in custody at that time. Id. at 32. Those are the indicia here. Thus, the decision to deny suppression of the statement because appellant was not mirandized at the beginning of the interview was not error.
Issue Eleven Jury Charge
Via issue eleven, appellant asserts that the trial court erred by failing to submit a limiting instruction to the jury regarding the purposes for which it could consider the evidence of the aforementioned anal and oral sexual acts. We disagree and overrule the issue.
The party opposing effort to admit evidence admissible for a restricted purpose has the burden of requesting a limiting instruction when the evidence is introduced. Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001). That is, to be effective, such an instruction must be given when the evidence is admitted. See Rankin v. State, 974 S.W.2d 707, 712 (Tex. Crim. App. 1996). If it is not, then the information simply becomes part of the general evidence and may be considered by the jury for all purposes. See Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994). We say this since appellant did not request a limiting instruction before, during or immediately after the written confession was offered, admitted into evidence, and read to the jury. Consequently, his statement was admitted for all purposes. See Hammock v. State, 46 S.W.3d at 895 (holding that when a party fails to ask for a limiting instruction until later in the trial, the evidence is admitted for all purposes); Jones v. State, 119 S.W.3d 412, 424 (Tex. App.Fort Worth 2003, no pet.) (holding that when a party requests a limiting instruction concerning a witness's testimony after the witness testifies, the evidence is admitted for all purposes).
Issues Seven through Ten Sufficiency of the Evidence
In his next four issues, appellant contends that the evidence is both legally and factually insufficient to establish that he had engaged in sexual intercourse with the victim when she was fourteen or younger and seventeen or younger. We overrule each issue for several reasons.
First, the assertion is premised on the exclusion of his confession. Since we overruled the issues attacking the trial courts decision to admit the confession, the foundation of his argument is missing.
Second, within the confession lay appellants own admission to engaging in sexual intercourse with the child. To this we add the childs own testimony about her age when the two first coupled, i.e. thirteen years old. Those activities continued, according to the victim, during the time the family lived in both Quanah and Wichita Falls. So too did appellants stepdaughter testify that after she left Wichita Falls and returned to Quanah at the age of sixteen, appellant picked her up from work. On the way home, he told her that he would make her get out of the car and walk if she did not have sex with him. She complied with the demand, according to the girl.
It is well settled that "[t]he testimony of a victim [,] standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault." Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.San Antonio 1994, pet. ref'd) (citing Villalon v. State, 791 S.W.2d 130 (Tex.Crim.App.1990)). Here, the childs own words coupled with appellants confession constituted some evidence from which the jury could rationally deduce beyond reasonable doubt that the victim was fourteen and under when the sexual activity began and continued while she was between the ages of fifteen and seventeen. Moreover, such a conclusion would not be supported by weak evidence, or overwhelmed by contrary evidence, or manifestly unjust.
Issue Twelve Jury Instruction Pursuant to Art. 38.22
Via his last issue, appellant posits that he was entitled to a charge per art. 38.22, §7 of the Texas Code of Criminal Procedure and that the trial court erred in refusing it to him. We overrule the issue.
Per the aforementioned statute, when question regarding the legality by which evidence is obtained is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement." Tex. Code Crim. Proc. Ann. art. 38.22, §7 (Vernon 2005). If no such evidence (irrespective of whether it is strong, weak, contradicted, impeached or unbelievable) exists, then it is not error to omit such an instruction. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.1993). By evidence, it is meant evidence creating a fact issue encompassing the manner in which the proof was secured. See Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). If no such fact issue exists, then an instruction need not be given. Id.
According to appellant, there existed a fact issue as to whether he was in custody or whether he underwent a custodial interrogation when providing his statement. Yet, we are cited to nothing of record illustrating that the factual circumstances from which his statement arose were in dispute or otherwise contradicted. Nor did we find any such evidence. Instead, it appears that appellant simply wanted the jury to have the opportunity to apply the test for what constitutes a custodial interrogation to the undisputed evidence. That falls outside the scope of art. 38.22. See Madden v. State, 242 S.W.3d at 511-13.
Having overruled each issue, we affirm the judgments of the trial court.
Brian Quinn
Chief Justice
Do not publish.
[1]According to that provision, [n]otwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child. Tex. Code Crim. Proc. Ann. art. 38.37, §2 (Vernon Supp. 2009).
[2]Rule 401 of the Texas Rules of Evidence states: [r]elevant 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 (Vernon 2003). Rule 403 states: [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. And, Rule 404(b) states: [e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith . . . .