COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00555-CR
NO. 02-12-00556-CR
BRADLEY STEPHEN MAXWELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
TRIAL COURT NO. 09757
TRIAL COURT NO. 09758
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MEMORANDUM OPINION 1
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Appellant Bradley Stephen Maxwell was charged by separate indictment in
each case with the offense of aggravated sexual assault of a child. A jury
convicted him of both offenses in a single trial and assessed his punishment at
1
See Tex. R. App. P. 47.4.
life imprisonment, enhanced by a single prior conviction, and a $10,000 fine. The
trial court sentenced him accordingly, stacking the sentences. Appellant brings
three issues, challenging the admission of his out-of-court statements and letter,
the sufficiency of the evidence to support his convictions, and the exclusion of
impeachment evidence. Because the evidence is sufficient to support the jury’s
verdicts and because the trial court did not commit reversible error, we affirm the
trial court’s judgments.
Brief Summary of Facts
The complainant testified that Appellant had penetrated both the
complainant’s mouth and anus with Appellant’s penis in Olney, Texas. The
complainant was eleven years old when he reported the alleged assaults to his
mother.
Sufficiency of the Evidence
In his second issue, Appellant argues that the evidence is insufficient to
support his convictions because the complainant was not a credible witness. In
our due-process review of the sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. 2 This standard gives full play to the
2
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
2
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. 3
The trier of fact is the sole judge of the weight and credibility of the
evidence. 4 Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. 5 Instead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of the evidence
when viewed in the light most favorable to the verdict. 6 We must presume that
the factfinder resolved any conflicting inferences in favor of the verdict and defer
to that resolution. 7
The complainant testified to the requisite elements of each offense. The
jury apparently found his testimony credible. We must defer to the jury’s
3
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350
S.W.3d 588, 595 (Tex. Crim. App. 2011).
4
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768.
5
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
6
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
7
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360.
3
determinations of credibility and not set ourselves up as the thirteenth juror. 8 We
overrule Appellant’s second issue.
Admissibility of Appellant’s Statements
In his first issue, Appellant argues that the trial court erred by admitting a
letter of apology he wrote at the request of law enforcement as well as
statements that he made on February 15, 2011, and February 23, 2011,
concerning the offenses and that they were all obtained in violation of his Sixth
Amendment right to counsel. Specifically, on appeal,
Appellant says such statements should be suppressed
because they were not voluntary, were products of custodial
interrogation for long periods of time leading to Appellant’s
exhaustion, without access to family or his appointed attorney, and
were obtained by coercion, intimidation and duress. They were
obtained in violation of his Sixth Amendment right to counsel.
Regarding the February 15, 2011 statement, Appellant had already requested
counsel beforehand. Regarding the later statement and the letter, he had
already received appointed counsel. Appellant contends that the February 15,
2011 statement was the result of continued questioning after counsel had been
requested and that the letter and February 23, 2011 statement resulted from
continued questioning after counsel had been both requested and appointed.
Appellant filed a pre-trial “Motion for Protection.” The portion of the motion
dealing with the subject of his first appellate issue provides,
8
Brooks v. State, 323 S.W.3d 893, 901 (Tex. Crim. App. 2010).
4
4. Additionally, [Appellant] moves to exclude the following under
this Motion for Protection: any statements made by [him], any
“letter” written to the alleged victim as a result of custodial
interrogation, any and all history of his arrest, prior arrests, or other
interaction with law enforcement.
5. Specifically, the length of the custodial questioning by law
enforcement officials of the state was excessive, leading to
exhaustion, confusion, intimidation and coercion of [Appellant] who
consistently denied any memory of the events suggested by officials.
The Texas Ranger interview used excessive, repeated questioning,
and suggested words to [Appellant] such as “hardwiring”, “blueprint”,
[and] “triggers” which, after hours of questioning and exhaustion,
[Appellant] began to repeat about himself. Even so, [Appellant]
consistently refused to make an open admission of responsibility or
culpability. At best he said only something to the effect that “if the
child says so then it must be true because the kid is a good kid[.”]
6. It was law enforcement who suggested that [Appellant] write
the child a letter of apology. Again the letter is nothing more than a
continuation of the “I don’t remember but if you say so, because you
are a good kid” theme.
7. Nonetheless, if the prosecutor is allowed to allude to,
comment upon, inquire about, or introduce evidence concerning any
of the above matters, ordinary objections during the course of trial,
even sustained and including proper instructions to the jury, will not
remove the harmful effect of the evidence in view of its ambiguous
but suggestive content. This is highly prejudicial and lacks probative
force.
The hearing on this motion took place during the trial. At the Jackson v.
Denno 9 hearing, the trial court asked for clarification:
[THE COURT:] Now, explain to me again. Are there two
statements?
[DEFENSE COUNSEL]: There’s actually three, Your Honor.
9
378 U.S. 368, 84 S. Ct. 1774 (1964).
5
THE COURT: There’s three statements?
[THE STATE]: Yeah, that’s right. There was one that was
taken by Chief Davis that was not in
custody.
THE COURT: Okay.
[THE STATE]: And then there were two statements taken
by Ranger Lain, one was on February 15th
and one was on February 23rd.
Appellant made it clear that the statements of February 15 and February
23 were the only statements that he wanted to discuss in the hearing because he
considered them the only two custodial statements. The trial court sought more
clarification:
THE COURT: And the allegation of the low blood sugar
was which one?
[DEFENSE COUNSEL]: The 23rd, Your Honor, at the end when he
would have been writing the letter. And
the low blood sugar issue is something
where we have a doctor that has been
attempted to be subpoenaed, not served
yet, Dr. Cawley, because he has interest in
another part of this case so I thought one
physician would be fine for that purpose.
He’s not an expert that’s been designated,
but we did not know the blood sugar
problems existed till we received the
records early this week from Tommy at the
Sheriff’s Department that it was an issue
so we had no anticipation of any need for
a sugar—
Defense counsel informed the trial court,
[I]t looks like the statement they are trying to introduce may be at a
time that was previous to the time when the low blood sugar issues
may have been a part. So I don’t have that medical expert yet, but I
6
am working on getting the subpoena for the second statement. That
would be the [February] 23rd statement. I believe they’re trying to
introduce the [February] 15th statement since that’s the one they
typed up.
Defense counsel was primarily concerned that the police had allegedly
taken advantage of Appellant’s low blood sugar level to secure statements from
him. As to the statement obtained on February 15, Ranger Lain testified that the
Texas Rangers had tried to find Appellant to question him in a noncustodial
setting but had been unable to locate him. After the arrest, Lain went to the jail to
interview Appellant:
Q. Okay. Did he seem willing to talk with you at the time?
A. Yes, ma’am.
Q. Did he seem agitated or upset or did he seem like he wanted
to be there talking to you?
A. His body language and his demeanor indicated to me that he
was eager to talk to me and also he stated that he wanted to
sit and discuss it. He’s been anticipating trying to discuss and
resolve any issues.
Q. So he didn’t seem reluctant to be there speaking with you, did
he?
A. Absolutely not.
Q. And approximately how long did this interview last?
A. Approximately three hours I think.
Q. And during that time did he ever ask for food or ask for any
sort of medical attention or anything?
A. No, ma’am.
7
Q. And had he asked you for anything of that nature would you
have been happy to accommodate him?
A. Yes, ma’am. Absolutely.
Q. Is that what you would routinely do in your interviews?
A. Yes, ma’am.
Ranger Lain returned to the jail to interview Appellant on February 23:
Q. Did he appear to be coherent at the time?
A. He did.
Q. Did he appear to have any of those diabetic red flags that
[Defense Counsel] was talking about a moment ago?
A. No, ma’am. I did not notice any of those.
Q. Was he shaky? [S]weaty? [A]nything of that nature?
A. No, ma’am. Not that I recall.
Q. Had you noticed anything like that and you were concerned
about something, in your training are you advised to get
medical personnel into an interview room under those kinds of
circumstances?
A. Yes, ma’am. If there’s any kind of circumstance where it
appears that the subject is in any kind of physical medical
distress the interview would be over.
Q. And do you recall approximately how long that interview
lasted on the 23rd?
A. That one is approximately two hours.
Q. Approximately two hours. And during that interview, did he
produce any writings?
A. Yes, ma’am, he did.
Q. And what was it that he produced?
8
A. He wrote a letter of apology to the victim apologizing for what
he had done to him.
Q. Did you coerce him into writing that letter?
A. I did not.
....
Q. Okay. And did you accomplish this during the two hours or
did he do this after the interview?
A. This was during the interview.
Q. Okay. So when he completed this document and he signed it
would you have had an opportunity to identify it in the
interview as a completed document at a certain time in the
interview?
A. When he signed his name at the bottom and said he was
finished writing.
Q. Did you stop the interview then or did you continue on for
longer?
A. I think we may have talked a few minutes after that. I don’t
recall exactly.
Q. So it would be close to two hours into the interview?
A. I would have to go back to look and see exactly when it was
that he—
Q. Would it surprise you that he had a blood sugar of 56 at the
end of your interview?
A. It would not surprise me because I have no knowledge of
that.
Although Appellant raised the issues of length of questioning and absence
of counsel in much of the wording he employed in his brief, at the hearing on the
9
motion, his position was that his statement and letter were not voluntary because
he suffered from low blood sugar.
The trial court stated at the end of the hearing,
Well, the problem that I’m having . . . is I’ve heard absolutely
no testimony from this stand on either of the interviews of any
effects . . . from someone that was trained to at least have some
initial valuations of the effects of diabetes. I’ve had absolutely no
evidence whatsoever that he was acting under the influence or
under the problem of diabetes, so I—I don’t find at least even in the
second one—that’s the only one that you’re alleging. I’m not seeing
anything that would indicate that the low blood sugar by itself would
have affected the voluntariness of it.
Defense counsel responded,
And, Your Honor, we know that there [are] instances through case
law and through the voluntariness, knowingly and intelligently waiving
rights that there can be medical issues.
The trial judge was told that the complaint before the court was the
voluntariness of the letter that Appellant was induced to write because his will
was influenced by his weakened condition as a result of the combination of low
blood sugar and the length of the interrogation. The total length of the
interrogation was five and a half hours: two separate periods of questioning
separated by more than a week, the longest period of interrogation being about
three and a half hours.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
10
objection, or motion. 10 A reviewing court should not address the merits of an
issue that has not been preserved for appeal. 11 The hearing referred to in
Appellant’s brief dealt with low blood sugar. When the State offered the letter at
trial, Appellant said, “No objection.”
Additionally, although Appellant made certain objections to the
admissibility of the other statements, in the trial court he did not raise the Sixth
Amendment claim he now raises on appeal. The trial court was asked to
determine whether the letter and any statement were involuntary because
Appellant was suffering from low blood sugar. Appellant’s complaints on appeal
are much broader, but they were never before the trial court, and the trial court
was never asked to rule on them. Trial counsel specifically limited its motion to
the voluntariness of the letter because of the effect of low blood sugar. The issue
of the right to counsel was not called to the attention of the trial court, if it was an
issue, and the trial court ruled on it only as it related to the issue Appellant
claimed to raise. The trial court was never made aware that any other
voluntariness complaints Appellant raises on appeal were before the trial court.
10
Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d 252, 254 (Tex.
Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth
2013, pet. ref’d).
11
Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on
reh’g); Sample, 405 S.W.3d at 300.
11
Because Appellant has not preserved these complaints he raises on appeal, we
overrule his first issue.
Exclusion of Impeachment Evidence
In his third issue, Appellant argues that the trial court reversibly erred by
excluding his proffered impeachment evidence. If a party fails to provide legal
authority to support its position, the appellate court may properly overrule the
issue or point as inadequately briefed. 12 Appellant has directed us to no legal
authority in support of his argument. We therefore overrule his third issue.
Conclusion
Having overruled Appellant’s three issues on appeal, we affirm the trial
court’s judgments.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 3, 2014
12
Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.
Crim. App. 2000); Lopez v. State, No. 02-12-00179-CR, 2013 WL 5303593, at *5
(Tex. App.—Fort Worth Sept. 19, 2013, pet. ref’d) (mem. op., not designated for
publication).
12