Affirmed and Memorandum Opinion filed May 27, 2008.
In The
Fourteenth Court of Appeals
_______________
NO. 14-07-00574-CR
_______________
RONNIE LYNN FARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 06CR3377
M E M O R A N D U M O P I N I O N
A jury convicted Ronnie Lynn Farris of sexual assault of a child and the trial court assessed punishment at confinement for 25 years. Appellant contends that (1) the trial court erred in denying his motion to suppress his written statement; (2) the evidence was factually and legally insufficient to support his conviction; and (3) he was denied effective assistance of counsel. We affirm.
Background
In March 2006, appellant began a sexual relationship with his 16-year-old sister-in-law, Aron. Appellant was 29 at the time. In May 2006, Aron=s mother found out about the relationship and reported it to the police. Detective Edinburgh was assigned to lead the investigation in the case. After appellant was arrested, he was interviewed by Detective Edinburgh and made a written statement in which he admitted having sexual intercourse with Aron when she was 16 years old.
Analysis
1. Motion to Suppress
In his first issue, appellant argues that the trial court erred by not suppressing the written statement he made while in custody because (1) Aron misrepresented her true age; and (2) Detective Edinburgh inaccurately questioned him when he failed Ato ask the ultimate question of when [appellant] knew of [Aron=s] age (prior to, or after the incidents).@
At a suppression hearing, the trial judge is the sole trier of fact and judge of credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). On appeal, we give almost total deference to the trial court=s findings of fact but conduct a de novo review of the court=s application of law to those facts. Id. The denial of a motion to suppress should be upheld if the ruling is reasonably supported by the record and correct on any theory of the law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).
An accused=s statement may be used in evidence against him if it appears that the statement was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). Additionally, a written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding if it is shown on the face of the statement that the accused, before making the statement, received from the person to whom the statement was made a warning that (1) he has the right to remain silent and not make any statement at all; (2) any statement he makes may be used against him at his trial; (3) any statement he makes may be used as evidence against him in court; (4) he has the right to have a lawyer present to advise him prior to and during any questioning; (5) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (6) he has the right to terminate the interview at any time. Tex. Code Crim. Proc. Ann. art. 38.22, ' 2 (Vernon 2005).[1] It also must be established that the accused, before and while making the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning. Id.
In this case, the trial court=s findings of fact state as follows: (1) appellant indicated to Detective Edinburgh that he would like to give a statement; (2) appellant was read his Miranda warnings, stated that he understood the warnings, acknowledged the warnings by writing his initials by each of the five Miranda warnings, affirmed his understanding of his rights, and nonetheless wanted to waive his rights voluntarily by making a statement; (3) appellant was given an opportunity to read his statement and make any alterations; (4) appellant initialed the beginning of each question asked and initialed the end of each of his answers; and (5) appellant testified that he gave his statement freely and voluntarily, and that everything in his statement is true and correct. In its conclusions of law, the trial court relied upon appellant=s and Detective Edinburgh=s testimony C as well as appellant=s written confession and signed waiver of rights C in concluding that appellant knowingly, intelligently, and voluntarily waived his rights.
A review of the record of the hearing on the motion to suppress supports the trial court=s findings and conclusions. The record also contains appellant=s waiver of rights and his written statement, which, taken together, appellant initialed at least 40 times. Appellant does not dispute that he knowingly, intelligently, voluntarily waived his rights; he does not assert that he was coerced into making the statement or that the statement was not true. Additionally, whether appellant was mistaken about Aron=s true age or whether Detective Edinburgh asked when appellant knew of Aron=s correct age has no bearing on the admissibility of appellant=s statement. Therefore, we conclude that appellant=s first issue is without merit. We overrule appellant=s first issue.
2. Sufficiency of the Evidence
In his second and third issues, appellant contends that the evidence is legally and factually insufficient to support his conviction for sexual assault of a child because Aron misrepresented her true age.
In reviewing legal sufficiency, we examine the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). When performing a legal sufficiency review, we may not re‑evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In reviewing factual sufficiency, we view all of the evidence in a neutral light to determine whether (1) the evidence in support of the jury=s verdict, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and unjust; and (2) in considering conflicting evidence, the jury=s verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414‑17 (Tex. Crim. App. 2006). We consider all of the evidence; we do not intrude upon the jury=s role of assigning credibility and weight to the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).
Under the law applicable in this case, a person commits the offense of sexual assault if the person intentionally or knowingly causes the sexual organ of a child, younger than 17 years of age who is not the spouse of the actor, to contact or penetrate the sexual organ of another person, including the actor. Tex. Penal Code Ann. ' 22.011(a)(2)(C), (c)(1) (Vernon Supp. 2007).
In his brief, appellant admits that he had sexual intercourse with Aron on several occasions. Appellant concedes that his good faith or reasonable belief that Aron was over the age of consent Ais simply no defense.@ Texas courts consistently have held that when prosecuting sexual offenses committed against children, the State need not prove a mental state regarding the child=s age. See, e.g., Vasquez v. State, 622 S.W.2d 864, 865 (Tex. Crim. App. 1981); Grice v. State, 162 S.W.3d 641, 646 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Specifically, the State need not show that the defendant knew that the victim was younger than 17. Vasquez, 622 S.W.2d at 865; Grice, 162 S.W.3d at 646. Appellant urges Athis Court to review the legal framework surrounding this strict liability crime@ and cites People v. Hernandez, 393 P.2d 673 (Cal. 1964), as support for recognizing a good faith defense. We decline to do so. We follow settled Texas law and conclude that the evidence is both legally and factually sufficient to support appellant=s conviction. We overrule appellant=s second and third issues.
3. Jury Instruction on Mistake of Fact
In his fourth issue, appellant questions whether he was denied effective assistance of counsel when his trial counsel failed to seek a jury instruction on the defense of mistake of fact. At the same time, appellant concedes that trial counsel was not ineffective for failing to request such an instruction because Texas does not recognize mistake of fact as a defense to the offense of sexual assault of a child. Thus, the instruction would have been properly denied by the trial court had it been requested. Accordingly, appellant=s fourth issue is overruled.
4. Ineffective Assistance of Counsel
In his fifth issue, appellant alleges that he was denied effective assistance of counsel because his trial counsel failed to file a motion for appointment of an investigator; failed to request a continuance to identify, locate, and call witnesses favorable to the defense; and failed to investigate appellant=s mental health.
To prevail on an ineffective assistance claim, appellant must show that (1) his trial counsel=s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Garza v. State, 213 S.W.3d 338, 347‑48 (Tex. Crim. App. 2007). Appellate review of trial counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. Garza, 213 S.W.3d at 348. If counsel=s reasons for his conduct do not appear in the record and there is at least a possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal. Id. To warrant reversal where trial counsel has not been afforded an opportunity to explain those reasons, the challenged conduct must be so outrageous that no competent attorney would have engaged in it. Roberts v. State, 220 S.W.3d 521, 533‑34 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282 (2007).
Appellant acknowledges that his trial counsel filed a motion for the appointment of an investigator and that the trial court granted the motion. Further, appellant acknowledges that the Arecord is silent as to what, if any, assistance the private investigator provided to trial counsel during the trial in terms of witness evaluation and identification.@ Appellant also admits that any other witnesses would have provided either cumulative or corroborating testimony Aof the numerous and various circumstances in which the complaining witness lied about her age.@ Additionally, there is nothing in the record to suggest that appellant had a mental health history that his counsel could have investigated or that appellant=s counsel indeed failed to investigate his mental health history. Lastly, appellant does not show how these alleged errors have prejudiced him. Accordingly, we overrule appellant=s fifth issue.
Conclusion
The trial court=s judgment is affirmed.
/s/ William J. Boyce
Justice
Judgment rendered and Memorandum Opinion filed May 27, 2008.
Panel consists of Chief Justice Hedges, and Justices Fowler and Boyce.
Do not publish C Tex. R. App. P. 47.2(b).