Opinion
No. 07-17-00151-CR No. 07-17-00299-CR
01-31-2018
RONALD RAY CHAPPELL, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 46th District Court Foard County, Texas
Trial Court No. 1318 Counts I & II, Honorable Dan Mike Bird, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Ronald Ray Chappell (appellant) appeals his convictions on two counts of aggravated sexual assault of a child. We overrule the eight issues before us.
Voluntariness of Statement
Under issue one, appellant contends that the trial court erred in failing to suppress his statements uttered during interrogation because the statements were involuntarily and unknowingly made. We disagree.
Statements of an accused may be used against him if freely and voluntarily made without compulsion or persuasion. Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007). Whether they are such is determined by examining the totality of the circumstances. Id.; Hernandez v. State, 421 S.W.3d 712, 717 (Tex. App.—Amarillo 2014, pet. ref'd). If those circumstances reveal that the "speaker's will [was] overborne and [his] capacity for self-determination was critically impaired," then his statement is involuntary and inadmissible. Hernandez v. State, 421 S.W.3d at 717. And, the totality of the circumstances includes both the characteristics of the speaker and the details of the interrogation. Id.
The appellate record at bar discloses that the interview was conducted by a Texas Ranger. Apparently, someone from the Foard County Sheriff's Department contacted appellant and requested that he travel to the sheriff's office to participate in the interview. Appellant acquiesced and drove himself to the office. The interview began around 1:27 p.m. in a large conference room and lasted for about one hour and ten minutes. Appellant left at the end of the exchange. The conference room had one door, which was closed but unlocked, and no windows. The sole occupants, at the time, were the Ranger and appellant.
Other evidence of record disclosed that the Ranger informed appellant that he was free to leave and would not be arrested during the interview. Additionally, the Ranger did not tell appellant he had to talk. Nor did the official threaten appellant or place him in any kind of restraint, such as handcuffs. And because the Ranger did not view appellant as being in custody, he did not inform appellant of his Miranda rights. Yet, the Ranger did suspect appellant of committing the crimes for which he was later prosecuted.
As the discourse began, appellant was told of the allegations made against him by his step-daughter. Though the accusations were denied, he later described three occasions when he either touched or digitally penetrated the girl's vagina. One occurred when he was wrestling with the girl; it purportedly was accidental. The second occurred when he fell asleep watching television, had a "sexual dream," acted upon that dream, and discovered his hand down the child's pants rubbing her sexual organ. The third time happened after he saw the girl reclining while wearing shorts. She wore no underwear at the time. Noticing that her vagina was exposed, felt the need to touch it, and penetrated her with his finger. Appellant eventually informed the Ranger that he regretted his conduct before the interview ended. Subsequently, appellant left the Sheriff's office only to be arrested an hour later.
The record also illustrates that the Ranger perceived his exchange with appellant as "very friendly." And, when asked, the official denied yelling or screaming at appellant, telling him he was under arrest or that probable cause existed to arrest him, intimidating or attempting to intimidate appellant, or telling him he could not leave. So too did the Ranger reply "no, sir" when the prosecution asked "[d]id you hit him with a rubber hose?" Yet, during the exchange he did tell appellant that "there was possible DNA evidence."
The foregoing litany of circumstances provide no basis upon which to conclude that appellant's will was overborne by anyone or anything when describing his actions with the child. Nor do they suggest that his capacity was impaired in any way, much less in a critical way. Appellant's appearance at the interview was voluntary. He was free to leave and left once it ended. Its duration was short. No threats were uttered. Indeed, the trial court was free to accept the Ranger's description of the exchange as being "very friendly."
To the extent that appellant insinuates the Ranger lied to him regarding the existence of DNA evidence, it is true that misrepresentations by law enforcement officials during an interrogation is a factor in assessing the voluntariness of a confession. Green v. State, 934 S.W.2d 92, 99-100 (Tex. Crim. App. 1996). Yet, it alone would not render an otherwise voluntary statement inadmissible or involuntary. Id.; Hernandez-Sandoval v. State, No. 07-11-00085-CR, 2012 Tex. App. LEXIS 7660, at *5-6 (Tex. App.—Amarillo Sept. 6, 2012, pet. ref'd) (mem. op., not designated for publication). Here, though, the Ranger simply suggested that the existence of DNA was possible; he did not say that DNA was found. So, it was questionable whether the comment was false. At the very least, we found nothing in the record indicating that it was neither possible nor likely that appellant's DNA could be found on the victim. So, the representation carries little weight in our analysis, which leads us to conclude that under the totality of the circumstances appellant's confession was both voluntary and knowingly provided to the Ranger.
Custodial Interrogation
Issues three and four deal with whether appellant was in custody when interrogated and whether the trial court erred in finding that he was not. Because he believed he was and the Ranger failed to mirandize him, appellant argues that the trial court should have suppressed his confession.
There is no question that appellant was undergoing interrogation when conversing with the Ranger. If he were in custody, then the interrogator would have been obligated to admonish him in accordance with Texas Code of Criminal Procedure art. 38.22, § 3. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West Supp. 2017) (stating that "[n]o oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused . . . unless . . . prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above . . . ."). Like admonishments also would have been needed to comply with the mandate in Miranda v. Arizona. Herrera v. State, 241 S.W.3d 520, 525-26 (Tex. Crim. App. 2007); see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (specifying the admonishments). So, the question becomes whether appellant was in custody at the time.
Section 2 prohibits the admission of a written statement by the accused as a result of custodial interrogation unless "the accused, prior to making the statement, either received . . . a warning that: (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial; (2) any statement he makes may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise him prior to and during any questioning; (4) 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 (5) he has the right to terminate the interview at any time." TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (West Supp. 2017).
As we recently reiterated, one is in custody if, under the totality of the circumstances, a reasonable person believes that his freedom of movement was restrained to the degree associated with a formal arrest. Roberts v. State, No. 07-15-00282-CR, 2017 Tex. App. LEXIS 6019, at *12 (Tex. App.—Amarillo June 28, 2017, no pet.) (mem. op., not designated for publication). Here, the circumstances revealing that appellant's confession was voluntary also provided the trial court rational basis to find that he was not in custody when uttering the inculpatory statements. Again, he voluntarily appeared for the interview, was told he would not be arrested during it, was told that he was free to leave, and was unrestrained throughout the period. Furthermore, the exchange was of a rather short duration and "very friendly."
Interestingly, the circumstances here liken to those in Ballard v. State, No. 07-16-00333-CR, 2017 Tex. App. LEXIS 11719 (Tex. App.—Amarillo Dec. 15, 2017, no pet. h.) (mem. op., not designated for publication), wherein we "positively" concluded "that appellant was not in custody when he made his recorded statement." Id. at *7-8 (noting that the appellant agreed to come to the sheriff's office, was transported in a patrol car, was neither handcuffed nor restrained in any manner, was advised at the beginning of the interview that he was not under arrest and was free to leave at any time and left when he decided to end the interview). And, though the interviewer may have had probable cause to arrest appellant before he arrived or when the confessions were made, being told that he remained free to leave removed the situation from those wherein probable cause to arrest existed and the accused was not told he was free to leave. Id. at *6-7, quoting Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009) (mentioning four general situations that may evince custody, one of which involved the existence of probable cause to arrest without informing the suspect that he was free to leave). So, given the similarity between the circumstances at bar and those in Ballard, we view it appropriate to again conclude that appellant was not in custody when he made his statements to the Ranger.
Article 38.23 Instruction
In his second issue, appellant contends that the trial court erred when it refused to include in its jury charge an instruction under Texas Code of Criminal Procedure art. 38.23. This was purportedly so because a fact issue existed regarding whether he voluntarily confessed and whether he did so while in custody.
Per art. 38.23, no evidence obtained in violation of the United States or Texas constitutions or laws is admissible against the accused in a criminal prosecution. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). Furthermore, when "the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained." Id. Yet, the instruction is not required in all situations wherein the defendant questions the legitimacy of the manner in which the State obtained evidence. Rather, it must be provided only when 1) the evidence raises a fact issue, 2) the evidence on that fact is affirmatively contested, and 3) the contested factual issue is material to the lawfulness of the challenged conduct in obtaining the evidence. Gonzales v. State, No. 07-16-00281-CR, 2017 Tex. App. LEXIS 3073, at *9-10 (Tex. App.—Amarillo Apr. 6, 2017, pet. ref'd) (mem. op., not designated for publication). We take caution to note that the phrase "fact issue" refers to a conflict in the evidence regarding a particular historical fact; it does not encompass a dispute regarding the relevance or meaningfulness of a particular historical fact upon the outcome. For instance, if the Ranger had testified that he had not placed appellant in handcuffs while appellant testified he had, that would be the type of fact issue potentially warranting an art. 38.23(a) instruction. On the other hand, if the Ranger testified that he had not done so and no other evidence contradicted the statement, then the effect of appellant being unrestrained on the ultimate question of whether he was in custody would fall outside the scope of 38.23(a). This is so because the latter involves application of undisputed historical fact to the law and assessing its impact on the ultimate question of whether or not appellant was in custody. See Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007) (stating that "[t]he first requirement for obtaining a jury instruction under Article 38.23, is that the defendant requests an instruction on a specific historical fact or facts. The jury decides facts; the judge decides the application of the law to those facts."); accord, McKinney v. State, No. 07-15-00116-CR, 2016 Tex. App. LEXIS 1765, at *3-4 (Tex. App.—Amarillo Feb. 18, 2016, pet. ref'd) (mem. op., not designated for publication) (holding that appellant was not entitled to an art. 38.23 instruction because no one denied the occurrence of the underlying events resulting in the search; the appellant simply questioned the significance of the events and whether they were sufficient to lawfully justify the ensuing search).
Here, appellant cites us to no issue of fact about which the evidence was affirmatively contested. Nor did we find any. Rather, the evidence regarding what transpired during the interview, how appellant came to be there, what he and the Ranger said, the environment in which the conversation occurred, and when appellant left was uncontradicted and undisputed. It seems as though appellant simply wanted the instruction as a means of affording the jury the chance to apply undisputed historical fact to the law and thereby determine the ultimate issue of custody. To reiterate Madden, that was a matter for the court, not the jury. So, because there was no historical fact issue necessitating resolution by the jury, the trial court did not err in rebuffing appellant's effort to have the jury decide the ultimate issue of custody or the like via an art. 38.23 instruction.
Outcry
Appellant, in issue five, argues that the trial court erred in overruling his objection to Mary Royal's reiteration of outcry statements made by the victim. Allowing her to do that allegedly denied appellant "due process and equal protection of the law." Yet, those grounds for excluding the evidence were not encompassed within appellant's objection at trial. Because an objection at trial preserves only the specific grounds mentioned in the objection, Buckner v. State, No. 02-11-00106-CR, 2012 Tex. App. LEXIS 1258, at *5-6 (Tex. App.—Fort Worth Feb. 16, 2012, no pet.) (mem. op., not designated for publication), and the grounds raised here were omitted, they were not preserved for review.
Motion for Continuance
Appellant next, in his sixth issue, contends that the trial court erred in denying his motion to continue the trial. He filed same to secure the testimony of the victim's mother who would have purportedly testified that the child recanted her accusations. Apparently, the witness had been subpoenaed to appear and opted to ignore the subpoena. The trial court denied the continuance because the witness was "intentionally avoiding her duty under the subpoena," it was "not likely that her attendance would be secured by a postponement," and "her testimony is not material to this cause."
Whether to grant or deny a motion to continue lies within the trial court's discretion. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000). When the motion is filed to postpone a criminal trial due to a missing witness, the movant must show 1) he exercised diligence to procure the witness's attendance, 2) the witness is not absent due to the procurement or consent of the movant, 3) the motion is not made simply to delay the proceeding, and 4) the facts expected to be established through the missing witness. Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). So too must it appear to the trial court that the facts sought to be developed are material. Id.
Assuming that the missing witness at bar would have testified that the child recanted her accusations against her step-father, the witness would not have rebutted appellant's confession in any way. Again, appellant confessed to both touching and penetrating the child's vagina on several different occasions. Given his confession, we cannot deem inaccurate the trial court's belief that the missing evidence was immaterial. At the very least, the decision fell within the zone of reasonable disagreement and that is all that is needed to insulate the ruling from a claim of abused discretion. See Viengthong Sikalasinh v. State, No. 07-16-00082-CR, 2018 Tex. App. LEXIS 242, at *7 (Tex. App.—Amarillo Jan. 9, 2018, no pet. h.) (mem. op., not designated for publication) (holding that the trial court abuses its discretion when its ruling falls outside the zone of reasonable disagreement). Thus, we find no instance of abused discretion.
Sufficiency of the Evidence
Next, in his seventh issue, appellant asserts that the evidence was insufficient to prove he sexually assaulted a child. This is purportedly so because the "alleged victim's testimony is not sufficient, alone," and "[t]here is not sufficient evidence of a voluntary act on the part of Appellant" to corroborate her testimony.
Statute provides that a conviction for aggravated sexual assault "is supportable on the uncorroborated testimony of the victim . . . if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred." TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2017). The need for the victim to inform a third party of the offense "does not apply if at the time of the alleged offense the victim was a person . . . 17 years of age or younger . . . ." Id. art. 38.07(b)(1). In other words, if the victim is under 17 when the sexual assault occurred, the victim's testimony alone would be sufficient to support a conviction. Riordan v. State, No. 03-16-00297-CR, 2017 Tex. App. LEXIS 7388, at *11-12 (Tex. App.—Austin Aug. 4, 2017, no pet.) (mem. op., not designated for publication). Not only was the victim at bar under the age of 17 when assaulted but she also described how appellant inserted "his private part" into hers and his finger into her "private part" on multiple occasions at their home. Thus, her testimony need no corroboration to support appellant's convictions.
Cruel and Unusual Punishment
Appellant finally contends that the "Trial Court's stacking of the life without parole sentences constitutes the imposition of a cruel and unusual punishment violative of the Eighth Amendment to the United States Constitution." (Emphasis added). Yet, his complaint about "stacking" the sentences was not broached below. Rather he simply claimed that the portion of the punishment charge requiring a mandatory life sentence without parole if the jury found that he had previously been convicted of rape was cruel and unusual punishment.
A claim that punishment is cruel and unusual must be preserved. See Sharp v. State, No. 07-17-00128-CR, 2017 Tex. App. LEXIS 11295, at *2 (Tex. App.—Amarillo Dec. 5, 2017, no pet. h.) (per curiam) (mem. op., not designated for publication) (stating that because appellant did not assert that his punishment was cruel and unusual before the trial court when sentence was pronounced or through a motion for new trial, it was not preserved for review). Given the absence of any complaint regarding the trial court's decision to run the life sentences consecutively, that aspect of his Eighth Amendment complaint was not preserved.
To the extent he generally complained that being subjected to a mandatory life sentence without parole was cruel and unusual, we note that statute provides that a "defendant shall be punished by imprisonment . . . for life without parole if it is shown on the trial . . . of a sexually violent offense, committed by the defendant on or after the defendant's 18th birthday, that the defendant has previously been finally convicted of . . . a sexually violent offense . . . ." See TEX. PENAL CODE ANN. § 12.42(c)(4)(A) (West Supp. 2017). Appellant was previously convicted of rape, a felony of the second degree. Thus, the sentence fell within the statutory range of punishment and, consequently, is one generally outside the realm of excessive or cruel and unusual. See Stacks v. State, No. 07-15-00336-CR, 2017 Tex. App. LEXIS 7690, at *15 (Tex. App.—Amarillo Aug. 14, 2017, pet. ref'd) (mem. op., not designated for publication) (noting that "Texas courts have traditionally held that, so long as the punishment imposed lies within the range prescribed by the Legislature in a valid statute, that punishment is not excessive, cruel, or unusual").
The terms "sexually violent offense means an offense described in article 62.001(6) of the Texas Code of Criminal Procedure. See TEX. PENAL CODE ANN. § 12.42(h)(1) (West Supp. 2017). Per art. 62.001(6), "'Sexually violent offense' means any of the following offenses committed by a person17 years of age or older . . . an offense under Section 21.02 (Continuous sexual abuse of young child or children), 21.11(a)(1) (Indecency with a child), 22.011 (Sexual assault), or 22.021 (Aggravated sexual assault), Penal Code." TEX. CODE CRIM. PROC. ANN. art. 62.001(6)(A) (West Supp. 2017). Rape would appear to fall within the definition of a sexually violent offense.
Yet, being within the statutory range of punishment may not always insulate a sentence from attack as being grossly disproportionate. Id. at *15-16. When assessing whether a sentence is grossly disproportionate, "we make an initial threshold comparison of the gravity of the offense with the severity of the sentence." Id. If our initial comparison supports an inference of gross disproportionality, we then assess whether 1) sentences for similar crimes in the same jurisdiction and 2) sentences for the same crime in other jurisdictions render the sentence unconstitutional. Id.
Appellant previously had committed and been convicted of rape. Here, he sexually assaulted a child and did so multiple times on different occasions. See Stone v. State, No. 07-13-00341-CR, 2015 Tex. App. LEXIS 5032, at *3-4 (Tex. App.—Amarillo May 15, 2015, pet. ref'd) (mem. op., not designated for publication) (holding that when the appellant was sentenced under § 12.42 of the Penal Code as a repeat offender, we consider not only the present offense but also his criminal history in determining whether the latest sentence was grossly disproportionate). If nothing else, these circumstances evince a continuing propensity to engage in repeated criminal conduct of a depraved sexual nature. Under those circumstances, his sentences are not grossly disproportionate to the gravity of illegal and reprehensible activity.
Having overruled each issue raised by appellant, we affirm the final judgments entered by the trial court.
Brian Quinn
Chief Justice Do not publish.