NUMBER 13-01-849-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HUMBERTO LICEA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Garza
Memorandum Opinion by Justice Yañez
A jury convicted appellant, Humberto Licea, of three counts of aggravated sexual assault of a child and two counts of sexual assault of a child. The jury assessed punishment at forty-five years’ confinement in the Institutional Division of Texas Department of Criminal Justice on each of the three counts of aggravated sexual assault of a child and twenty years’ confinement on each of the two counts of sexual assault of a child. In two issues, appellant challenges the trial court’s admission of: 1) his written statement, on the ground that it was not voluntary; and 2) his statements to social workers made during his voluntary treatment at a hospital, on the ground that the statements were privileged communications. The trial court has certified that this “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). We affirm.
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
Standard of Review
The standards of appellate review for motions to suppress are set forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The appropriate standard of review depends on the exact issues presented. Guzman recognizes three different categories and provides the appropriate standard of review for each. Id. In category one, where the issue presented involves the trial court's determination of historical facts supported by the record, especially those in which the fact findings are based on an evaluation of credibility and demeanor, the appellate court should afford almost total deference to the trial court's determination. Id. In category two, where the issue presented involves the trial court's rulings on "application of law to fact questions," also known as "mixed questions of law and fact," and where the resolution of those ultimate questions turns on an evaluation of credibility and demeanor, the appellate court should again afford almost total deference to the trial court's rulings. Id. In category three, where the issue presented involves "mixed questions of law and fact" which do not fall into the second category, that is, do not turn on an evaluation of credibility and demeanor, then de novo review is appropriate. Id. However, the reviewing court should still afford deference to the trial court on the subsidiary factual questions which fall into the first category. Id. When the evidence is controverted, the appellate court should give almost total deference to the trial court's determination of historical facts but should review de novo the application of the law to those facts. Id. at 89.
The determination of whether a statement is voluntary, which is the issue in this case, is a mixed question of law and fact which turns on the credibility of the witnesses and therefore falls within category two. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). Accordingly, the trial court's determination should be granted almost total deference on appeal. Id.
The Trial Court’s Findings
In his first issue, appellant challenges the voluntariness of a written statement signed by appellant after he was interviewed at the police station. The trial court held a hearing to determine the voluntariness of the statement. Pursuant to this Court’s order, the trial court filed findings of fact and conclusions of law. See Tex. Code Crim. Proc. Ann. art. 38.22 § 6 (Vernon Supp. 2004). The trial court’s findings of fact included the following: 1) appellant and his wife went to the police department to speak to Detective Leonard Garza; appellant was not told he had to speak to the police, or that speaking to the police was a condition of any continued custody of the victim; 2) appellant was not intoxicated, delusional, or psychotic during the interview; 3) neither appellant nor his wife told Garza appellant could not read or write; and 4) appellant was admitted to the hospital because he was suffering from depression; he was not found to be intoxicated, incompetent, or psychotic when admitted to the hospital. The trial court’s conclusions of law included the following: 1) appellant was not in custody during the interview; 2) all applicable requirements of article 38.22 were met; 3) appellant knowingly, intelligently, and voluntarily waived the rights set out in article 38.22; and 4) appellant’s written statement was voluntarily made and is admissible.
Appellant’s written statement, in which he admits to sexually assaulting the victim, was subsequently admitted at trial. Although appellant testified at the suppression hearing, he did not testify at either the guilt/innocence or punishment phase of his trial.
Analysis
A. Appellant’s Written Statement
Detective Garza testified that appellant came to the police station voluntarily and that he did not threaten or pressure appellant to make a statement. He also testified appellant did not appear intoxicated and seemed to understand the questions he was asked. He testified that he read and explained appellant’s Miranda warnings to him and that appellant voluntarily waived his rights and initialed the warnings. A Child Protective Services investigator testified that she did not threaten to take appellant’s child away or otherwise force him to talk to the police.
“The trial judge ‘is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.’” Cerda v. State, 10 S.W.3d 748, 751 (Tex. App.–Corpus Christi 2000, no pet.) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)). Considering all of the evidence, we conclude the trial court was entitled to determine that appellant’s statement was voluntary and admissible. We overrule appellant’s first issue.
B. Appellant’s Claim of Privilege
In his second issue, appellant challenges the trial court’s admission of inculpatory statements he made to a social worker in group therapy sessions at the hospital. Appellant contends the statements are inadmissible because they are privileged communications.
Following a hearing outside the presence of the jury, the trial court overruled appellant’s objections to the admissibility of his statements on privilege grounds. We review a court's ruling on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). We will not reverse such a ruling so long as it falls "within the 'zone of reasonable disagreement.'" Id. at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)). Further, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. Tex. R. Evid. 103(a); see also Tex. R. App. P. 44.2(b).
Appellant relies on Texas Rule of Evidence 509(b), which provides:
Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.
Tex. R. Evid. 509(b). Appellant also cites article 38.101 of the Texas Code of Criminal Procedure, which similarly provides a privilege for communications by persons being treated voluntarily for drug abuse. See Tex. Code Crim. Proc. art. 38.101 (Vernon 1979).
The trial court overruled appellant’s privilege objections and Christine Welsh, a social worker, testified regarding statements made by appellant during group therapy sessions at the hospital. Welsh testified that during therapy, appellant “expressed remorse and guilt related to the molestation charges by [the victim].” Welsh also testified that appellant’s hospital records reflect that he stated that “this incident [molestation] happened two to three years ago.”
Appellant argues that the exception to rule 509(b) is applicable because during his hospitalization, appellant was treated for depression and alcohol abuse. Appellant points to his treatment plan, which reflects that he received treatment for depression and alcohol abuse, and to testimony by Welsh and his treating psychiatrist that he received treatment for depression and alcohol abuse.
The State’s response notes that although Welsh testified appellant was treated for depression and alcohol abuse, she specifically testified that he was in group therapy primarily to deal with his depression. She also testified that at the time he made the inculpatory statements, he was being treated primarily for depression and suicidal ideations, and not for alcohol or drug abuse. Similarly, appellant’s treating psychiatrist testified that appellant was treated for depression.
We hold the trial court did not abuse its discretion in determining that appellant’s statements were not privileged communications under rule 509(b) and were therefore admissible. We overrule appellant’s second issue.
We AFFIRM the trial court’s judgment.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed this the
28th day of October, 2004.