IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 30, 2004
______________________________
DAVID LEE FOSTER, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 10,295; HONORABLE TOM NEELY, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellant David Lee Foster, Jr., having waived his right to a jury trial, pleaded guilty without the benefit of a plea bargain to manufacturing a controlled substance, and the trial court found him guilty and assessed a sentence of 20 years confinement. With four points of error, appellant claims he was denied effective assistance of counsel, the evidence is legally insufficient to support his conviction, and his conviction should be reversed because the attorney for the State committed prosecutorial misconduct. We affirm.
On February 13, 2003, Larry Lee, an officer with the Wilbarger County Sheriff's Department, received a phone call reporting a "possible meth lab actually in the process of making meth" at a residence in Oklaunion, Texas. When he arrived, Lee noticed a pickup truck backed up to a shed at the rear of the property. He then observed three people run out of the building, get into the pickup, and attempt to leave. Lee and another officer who responded to the scene apprehended the three individuals and identified them as appellant, who was the driver, appellant's wife, Maria Foster, and appellant's partner, Cesilio Gonzales. Inside the truck, Lee discovered a "fully loaded" pistol in a pouch on the driver's door and an SKS, "high powered semi-automatic rifle" behind the seat. When officers entered the shed, they located a working "clandestine methamphetamine lab." The officers seized several jars of chemicals, which were later analyzed and determined to contain methamphetamine and cocaine in various levels of concentration. At trial, appellant consented to a stipulation of evidence admitting each of the elements of the offense contained in the indictment. He further testified during the punishment phase and freely admitted that: (1) he had a drug problem; (2) the guns seized from the crime scene were his; (3) he manufactured the drugs at issue in this case; (4) he became "interested in cooking dope and using the dope" when he was fifteen or sixteen; and (5) he "actually made some profits out of the sale" of methamphetamine he manufactured.
Before addressing appellant's specific contentions, we first acknowledge the standard of review of an ineffective assistance of counsel claim. To prevail on such an allegation, a defendant must establish by a preponderance of the evidence that: (1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Cr.App. 2003). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). In other words, appellant must demonstrate that the deficient performance prejudiced his defense. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995).
The adequacy of defense counsel's assistance is based upon the totality of the representation rather than by isolated acts or omissions of trial counsel. Id. And, although the constitutional right to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless counsel whose competency or accuracy of representation is to be judged by hindsight. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993), cert. denied, 510 U.S. 840, 114 S. Ct. 122, 126 L. Ed. 2d 87 (1993). Appellate review of trial counsel's representation is highly deferential and presumes that counsel's conduct fell within the wide range of reasonable and professional representation. Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.-Texarkana 2004, no pet. h.).
Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999). In the absence of direct evidence in the record of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.2d 436, 440 (Tex.Cr.App. 2001), cert. denied, 537 U.S. 1195, 123 S. Ct. 1351, 154 L. Ed. 2d 1030 (2003). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that his conduct was reasonable and professional. See Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001). Indeed, appellate courts can rarely decide the issue of ineffective assistance of counsel because the record almost never speaks to the strategic reasons trial counsel may have considered. Id. Although the most effective procedure for presenting this claim may be via a habeas corpus, Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Cr.App. 2003), nevertheless, some claims may be disposed of on direct appeal where trial counsel's ineffectiveness is apparent from the record. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Cr.App. 2003).
We now direct our attention to appellant's first two points of error by which he claims that he was denied his constitutional right to effective assistance of counsel, thus rendering his plea involuntary and the resulting conviction void. In support of the voluntariness of his plea, appellant suggests we review letters written by him to the court prior to trial revealing his skepticism of his attorney's competence and his reluctance to enter a guilty plea. Regarding the void conviction argument, appellant contends that his attorney failed to appreciate the variance between the quantity of methamphetamine alleged in the indictment and the proof of that amount at trial. According to appellant, the indictment alleged that he manufactured over 400 grams of pure methamphetamine, while the evidence at trial merely established a combined weight for the controlled substances seized from the crime scene of 167.33153 grams. (1) This discrepancy obtains, he says, because of the State's failure to include in the indictment the language, "by aggregate weight, including adulterants or dilutants." The omission of that phrase, suggests appellant, resulted in his accountability for only that portion of the substance confirmed as pure methamphetamine. Then, because the quantity of drugs determines the range of punishment in a manufacturing case, appellant argues that, had his attorney provided effective assistance, "it is quite conceivable that [appellant] may have only been guilty of a State Jail felony as opposed to an aggravated first degree felony." See Tex. Health & Safety Code Ann. § 481.0112(b) & (f) (Vernon 2003). With appellant's contentions, we disagree.
When a defendant challenges the voluntariness of a plea entered upon the advice of counsel contending that his counsel was ineffective, the voluntariness of the plea depends upon: (1) whether counsel's advice was within the range of competence demanded, and if not, (2) whether there is a reasonable probability that, but for the ineffective assistance, the defendant would not have pleaded guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-88 (Tex.Cr.App. 1999). Because appellant did not file a motion for new trial raising his ineffectiveness claim, the record has not been developed with respect to the reasons for the entry of appellant's guilty plea, the advice provided to him, or counsel's trial strategy. Without a record having been developed on these issues, we are unable to determine whether appellant entered a plea of guilty on the advice of counsel or whether counsel's advice was legally correct and made pursuant to sound trial strategy.
With regard to appellant's assertion that his letters to the court "clearly reflect [his] state of mind as to the involuntariness of his plea," we observe that the record reveals abundant evidence demonstrating that his plea was, in fact, freely and voluntarily made. Indeed, we find the following exchange more probative of appellant's state of mind on the day of trial:
State: So back to my original question. You understand completely what you pled guilty to?
Defendant: Yes, sir.
State: And that it's the over 400 grams which puts it into a higher penalty bracket? Do you understand that?
Defendant: Yes, sir.
State: Minimum punishment, fifteen years?
Defendant: Yes, sir.
State: If you are found guilty and you have pled guilty?
Defendant: Yes, sir.
State: You have signed a statement telling the Judge that you are guilty?
Defendant: Yes, sir.
State: You wanted to do all that and you did all that voluntarily?
Defendant: Yes, sir.
State: No one forced you to do it?
Defendant: No, sir.
State: You understood the questions the Judge asked you about that and all that?
Defendant: Yes, sir.
State: All right. And you understand in all likelihood then that, well, fifteen years is the minimum sentence?
Defendant: Yes, sir.
State: You know that?
Defendant: Yes, sir.
Bearing the preceding discussion in mind, and considering the lack of direct evidence of what advice trial counsel gave appellant, whether it was legally correct, and whether that advice was the product of sound trial strategy, we conclude appellant has failed to demonstrate ineffective assistance by a preponderance of the evidence.
Furthermore, the genesis of appellant's void conviction argument is his misunderstanding of the requisites of an indictment and the definition of a controlled substance. First of all, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature. State v. Mays, 967 S.W.2d 404, 406 (Tex.Cr.App. 1998). Moreover, when a term is defined in the statute, it need not be further alleged in the indictment. Id. Contrary to appellant's assertion, the indictment here tracked the language of the statute. (2) And, because controlled substance is defined by statute as a substance, including a drug, an adulterant, and a dilutant listed in . . . Penalty Grou[p] 1" (3) and "includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance," it was unnecessary for the State to define the term further in the indictment. Tex. Health & Safety Code Ann. § 481.002(5) (Vernon 2003). As a matter of fact, appellant manifested his appreciation of the charge against him during cross-examination:
State: And you told him [the judge] that you are pleading guilty because in fact you are guilty of the manufacture of methamphetamine of 400 grams or more?
Defendant: Yes, sir.
State: As was accused in the indictment?
Defendant: Well, the only thing I feel that isn't right about it is over 400 grams. I know y'all are weighing everything on it, but as far as actual meth that you are going to make money off of or do, there wasn't over 400 grams.
State: Well, I understand that but you understand the law says the material that's in there?
Defendant: Yes, sir, I understand.
(Emphasis added).
Even in the absence of a record detailing counsel's advice to appellant and counsel's trial strategy, we conclude appellant has failed to establish by a preponderance of the evidence that his attorney's representation fell below an objective standard of reasonableness under prevailing norms. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Cr.App. 1992). Indeed, given the inaccuracy of appellant's assertions under these points of error, trial counsel can hardly be faulted for "failing" to advise appellant in accordance with them. Thus, having failed to overcome the presumption that trial counsel's conduct could be considered sound trial strategy, appellant's ineffective assistance claims must fail. We overrule his first and second points of error.
By his third point of error, appellant maintains that "[a]s a matter of law, [he] could not be convicted of the offense of manufacturing over 400 grams of methamphetamine where the State's evidence clearly reflected there was less than 400 grams of methamphetamine." Because appellant labors under a misconceived understanding of the law related to the offense of manufacturing a controlled substance, we disagree. In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict, and ask whether a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 ( Tex.Cr.App. 1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 44 U.S. at 319.
When the State proved that the substances seized from the crime scene had a combined weight of well over 400 grams, and that they contained methamphetamine, regardless of its concentration, it established the elements of the offense as alleged in the indictment beyond a reasonable doubt. See Williams v. State, 936 S.W.2d 399, 405 (Tex.App.-Fort Worth 1996, pet. ref'd)(holding that proof of the gross weight of the controlled substance appellant manufactured was sufficient, and that the State need only to have demonstrated that part of the substance was a controlled substance, and that the aggregate weight exceeded the minimum statutory amount). Furthermore, appellant entered into a stipulation of evidence judicially confessing that on the date of the offense he manufactured methamphetamine in an amount of 400 grams or more. In short, the evidence is legally sufficient to support the verdict. Appellant's third point of error is overruled.
With his fourth and final point of error, appellant claims his conviction should be reversed because the attorney for the State "intentionally or recklessly made a false material representation in open court." We disagree. Like appellant's other points of error, this one is premised on his misconception of the law. Appellant faults the attorney for the State for commenting during cross-examination that appellant was responsible for the gross weight of the controlled substance seized from the crime scene. According to appellant, the "State's attorney knew or should have known that his representation . . . was false." Apart from his bald assertion that "[i]n the interest of justice, said cause should be reversed and [appellant] acquitted because of prosecutorial misconduct," however, appellant has failed to provide any argument or authority in support of his position. Notwithstanding that inadequacy, we discern nothing improper about the prosecutor's statement. Indeed, as detailed in length above, the State was merely required to prove that a portion of the substance appellant was charged with manufacturing was a controlled substance, and that the aggregate weight of the seized substances exceeded the minimum statutory amount. See Williams, 936 S.W.2d at 405. Thus, the prosecutor's statement was, in fact, a correct statement of the law. Appellant's fourth point of error is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. Appellant obtains this result by multiplying the weight of the substance tested by the percentage of methamphetamine, .02%, contained in the substance.
2. Under the statute, a person commits an offense if "the person knowingly manufactures . . . a controlled substance listed in Penalty Group 1." Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003). The indictment in this case alleges that appellant "did then and there knowingly manufacture, . . . a controlled substance, namely methamphetamine, in an amount of 400 grams or more."
3. Methamphetamine is listed in Penalty Group 1. Tex. Health & Safety Code Ann. § 481.102(6).
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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 . . . .