Opinion
No. 05-16-00260-CR
05-23-2017
LAWRENCE RICHARD PARKER, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-81571-2015
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Myers
Appellant Lawrence Richard Parker, Jr. was convicted by a jury of continuous sexual abuse of a child under the age of fourteen and sentenced by the court to life imprisonment. In two issues, he contends the trial court erred by denying his motion to suppress and the evidence is insufficient to support the conviction. We affirm.
DISCUSSION
1. Motion to Suppress
In his first issue, appellant argues the trial court abused its discretion by denying appellant's motion to suppress his statements to law enforcement officers or agents thereof, based on violations of the constitutions of the United States and of the state of Texas and article 38.22 of the Texas Code of Criminal Procedure.
Appellant does not separately brief his state and federal constitutional claims or argue the Texas Constitution provides greater protection than the United States Constitution in a situation such as this. Accordingly, we address appellant's issue based on the protections provided by the U.S. Constitution. See, e.g., Flores v. State, 319 S.W.3d 697, 702 n.8 (Tex. Crim. App. 2010) (resolving case "under the Fourth Amendment only" when appellant "never argued that Article 1, § 9 [of the Texas Constitution] provides more protection than the Fourth Amendment"); Bates v. State, No. 05-15-00899-CR, 2016 WL 1733464, at *2 n.1 (Tex. App.—Dallas Apr. 28, 2016, no pet.) (mem. op., not designated for publication) (citing Flores).
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016). We review the trial court's factual findings for an abuse of discretion, but review the trial court's application of the law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We afford almost complete deference to the trial court's determination of historical facts, "especially if those are based on an assessment of credibility and demeanor." Brodnex, 485 S.W.3d at 436 (quoting Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). We give the same deference to the trial court's conclusions with respect to mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We review mixed questions of law and fact that do not turn on credibility and demeanor as well as purely legal questions de novo. Brodnex, 485 S.W.3d at 436. The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
When, as in this case, the trial court does not make explicit findings of fact and neither party requested them, we imply the necessary fact findings that would support the court's ruling if the evidence, viewed in the light most favorable to the court's ruling, supports those implied findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); see also Valtierra, 310 S.W.3d at 447. We assume the trial court resolved any issues of historical fact or credibility consistently with its ultimate ruling. Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). We will reverse the trial court's ruling only if it is arbitrary, unreasonable, or outside the zone of reasonable disagreement. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Story, 445 S.W.3d at 732.
Individuals must be warned of their constitutional and statutory rights prior to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ (2) & 3(a)(2); Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). Custodial interrogation consists of questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444; Gardner v. State, 306 S.W.3d 274, 293-94 (Tex. Crim. App. 2009). A defendant must generally be in custody before Miranda rights are triggered. See Miranda, 384 U.S. at 444, 478-79; Herrera, 241 S.W.3d at 525-26. "A person is in 'custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The "reasonable person" standard presupposes an innocent person. Id. At least four general situations may constitute custody for purposes of Miranda: (1) the suspect is physically deprived of his freedom of action in any significant way, (2) a law enforcement officer tells the suspect he cannot leave, (3) law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted, and (4) there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Gardner, 306 S.W.3d at 294; Dowthitt, 931 S.W.2d at 255.
The determination of whether a person is in custody is made on an ad hoc basis considering all the objective circumstances. Herrera, 241 S.W.3d at 532; see also Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010). We consider whether, given the circumstances, a reasonable person would believe he could not terminate the questioning and leave. Herrera, 241 S.W.3d at 532. The record as a whole must "clearly establish" the statement was the product of custodial interrogation. Id. at 526 (quoting Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). The defendant bears the initial burden of proving a statement was the product of custodial interrogation. Gardner, 306 S.W.3d at 294.
Prior to the start of voir dire, the trial court held a hearing to determine the admissibility of certain statements appellant made to law enforcement officers. On April 10, 2015, appellant came to the office of the Collin County Children's Advocacy Center (CAC) to take a scheduled polygraph examination. Appellant had offered, and then agreed, to submit to a polygraph during an earlier interview with detective Gerald Burk of the Collin County Sheriff's Office.
The April 10th polygraph was conducted by Special Agent Lonnie Falgout of the U.S. Secret Service. Appellant came to the CAC on his own; he was not brought in by police. Detective Burk remained in the room while Falgout read appellant his rights and appellant signed forms consenting to the polygraph examination. There was no change in appellant's demeanor from previous encounters, according to Burk's testimony. Appellant remained "very confident" and self-assured. The detective noted that appellant appeared to be very intelligent. Falgout told appellant "he was free to leave at any time." The door to the interview room was unlocked and appellant was never handcuffed or restrained. He could have left if he wanted to. Falgout added that appellant "was there freely to talk to me, voluntarily to talk to me and he was free to stop talking to me at any time." During the polygraph examination, appellant took both restroom and "smoke breaks." Detective Burk was not present during the polygraph itself, which was not recorded pursuant to U.S. Secret Service policies.
After the polygraph was complete, Agent Falgout advised appellant, in what the agent described as a neutral, non-accusatory tone, that he had failed the exam. He asked appellant why, to which appellant responded, "Will you just ask me what you want to know?" The agent told appellant that he wanted to know what had happened between appellant and the victim. Appellant then made certain admissions as to the victim's outcry of sexual abuse, and Falgout testified that those admissions included more detailed information regarding the sexual behavior between appellant and the victim than what the agent had revealed to appellant during the polygraph. Falgout asked appellant to talk to Detective Burk about these admissions. Appellant said "[y]eah, I want to," and accompanied the agent to another interview room where they were joined by Burk. Falgout testified that he did not threaten appellant or tell him he was not free to leave.
The interview with Detective Burk was recorded and admitted at the hearing (and later at trial), and the trial court reviewed the video during the hearing. Appellant was allowed to take breaks during this interview as well. Burk testified that appellant was free to come and go as he pleased, and he was not placed under any restrictions of movement. At time stamp 13:48 and 33 seconds on the video, Burk told appellant he was going to be arrested. The State conceded appellant was in custody at this point and said it did not intend to offer the rest of the interview. Agent Falgout testified that he was at the CAC for a total of approximately five and one-half hours, and he spent approximately three and one-half of those hours with appellant. The trial court concluded appellant was not in custody until the point conceded by the State—when he was told he would be arrested.
The April 10th interview with Detective Burk was offered as State's exhibit 3 for purposes of the hearing, and offered at trial as State's exhibit 7. Exhibit 3 contains additional footage that was not shown to the jury, including after the point when the State conceded appellant was in custody.
Appellant argues that the length of the interview, the fact that he could not freely enter the CAC, and that he had been told he failed a polygraph before making admissions, all weigh in favor of finding that the interview was custodial. But the Texas Court of Criminal Appeals has found that a five hour interview is not inherently custodial. Estrada, 313 S.W.3d at 295. In this case, the portion of the interview until Detective Burk told appellant he would be arrested is just over three hours, and during that time appellant was allowed multiple breaks to smoke and use the restroom. The length of the interview, especially when interrupted up by breaks appellant requested and was allowed to take, does not indicate this was a custodial situation.
Appellant argues he could not have felt free to leave because he "could not reach the inside of the CAC on his own," and that one must be "buzzed in" to enter the premises and "buzzed out" to leave. Neither Agent Falgout nor Detective Burk—the only witnesses who testified at the pretrial hearing—testified about the layout of the CAC. However, there is no indication that the "smoke break" location was behind a fence or in a restricted area, and the door to the interview room was not locked. Appellant was never handcuffed or restrained. He could have left during a break and gone to his car, according to Falgout's testimony. Furthermore, even if appellant had to be "buzzed in" or "buzzed out" of the premises, the key determination that must be made is whether appellant felt that he was free to leave. The evidence indicates there were no restrictions on appellant's movements and that he was free to leave the premises.
Appellant also relies on the fact that he was told he failed the polygraph test before he made the admissions. But courts have recognized that "[c]ustody does not occur merely because the suspect submits to and fails a polygraph test." Dowthitt, 931 S.W.2d at 255. In this case, after appellant was told he had failed the polygraph examination, Agent Falgout testified that he asked appellant about what had happened between appellant and the victim in a neutral, non-accusatory tone. Appellant was in an unlocked room he had been allowed to leave freely to take restroom and "smoke breaks," he was not handcuffed or restrained, and there is no indication appellant was prevented from the leaving the room at that point. Indeed, Falgout left appellant alone in the room when he went to talk to Detective Burk. And when Falgout asked appellant to step into another room to talk to Burk, appellant said, "Yeah, I want to."
The record supports the trial court's ruling. Applying the factors noted earlier, appellant was not handcuffed, kept in a locked room, or otherwise restrained. Appellant was not told he could not leave. On the contrary, he was told he could leave at any time. Similarly, the officers did not create a situation that would cause a reasonable person to believe he was not free to leave, regardless of whether they had probable cause. The April 10th interview did not take place at a police station, and appellant was not kept in a locked area he could not leave. In fact, appellant was able to leave the room for restroom and "smoke breaks." The record also shows appellant had been interviewed by the police prior to the April 10th interview and was allowed to leave freely at that time. He initiated contacts with the police, offering to allow the police to review his computer and offering to take a polygraph examination. In all, the totality of the circumstances do not indicate a reasonable person would have believed his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt, 931 S.W.2d at 254-55. We conclude the trial court did not err by overruling appellant's motion to suppress and determining appellant was not in custody until he was told he would be arrested. We overrule appellant's first issue.
2. Sufficiency of the Evidence
In his second issue, appellant contends the evidence is insufficient to support the jury's finding of guilt beyond a reasonable doubt as to each element of the offense of continuous sexual abuse of a child under the age of fourteen.
A person commits the offense of continuous sexual abuse of a child if, during a period that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the time of the commission of each act, he is seventeen years of age or older and the victim is a child younger than fourteen. TEX. PENAL CODE ANN. § 21.02(b). Although the exact dates of the abuse need not be proven, the offense does require proof that two or more acts of sexual abuse occurred during a period of thirty days or more. Baez v. State, 486 S.W.3d 592, 595 (Tex. App.—San Antonio 2016, pet. ref'd); see TEX. PENAL CODE ANN. § 21.02(d) (jury not required to unanimously agree on which specific acts of sexual abuse were committed by defendant or exact dates when those acts occurred, but jury must agree unanimously that defendant, during period of thirty or more days, committed two or more acts of sexual abuse).
In determining the sufficiency of the evidence, the reviewing court considers 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 offense beyond a reasonable doubt. Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014). The jury is the sole judge of credibility and weight to attach to witness testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a); Lee v. State, 186 S.W.3d 649, 656 (Tex. App.—Dallas 2006, pet. ref'd).
The record in this case contains sufficient evidence of appellant's guilt. The victim, M.P., sixteen years of age at the time of trial, testified that she had gone to live with appellant, her biological father, on May 3, 2013, just over seven months before her fourteenth birthday. She accompanied appellant, a commercial truck driver, on the road, traveling up to the east coast and as far west as New Mexico. M.P. was not enrolled in school at the time and spent most of her time when she was on the road with her father writing, listening to music, and listening to her father tell stories.
At some point, however, M.P.'s relationship with her father started to become sexual. Some of M.P.'s writing involved subjects that were sexual in nature and appellant would read and critique her writing, suggesting changes she could make. Appellant told her "experience" would improve her writing. He also told her that sex would help reduce the stress on him during "Hail Mary" long-haul trucking runs, which required covering anywhere from 700 to 1000 miles in a day.
M.P. testified that the first time anything sexual happened, she was thirteen years of age and she was wrestling with appellant in the back of the truck cab. M.P. said she "kind of blacked out" and the next thing she knew, she and appellant were unclothed and engaged in vaginal sexual intercourse. M.P. remembered that appellant was penetrating her with his penis and that it hurt. She and appellant continued to have vaginal intercourse after that, initially as often as three times a week but less often as time passed. Appellant began using restraints on M.P. and this became a regular part of their sexual activity. M.P. was considered the "submissive" in the relationship and appellant was the "dominant" or "master." Appellant and M.P. also had anal sexual intercourse on one occasion, and appellant sometimes used his fingers to penetrate M.P.'s vagina and anus.
M.P. recalled several specific incidents of sexual behavior. During mild weather when she was thirteen years old, she and appellant had vaginal sexual intercourse in the truck while it was parked at an El Fenix restaurant in Plano. They also had sex in the truck at the parking lot of a Denny's restaurant in Garland. M.P. recalled that he kept the truck running because it was cold outside, and the following day there was a "really big freeze." M.P. testified that both of these incidents occurred when she was thirteen years of age, and the State introduced evidence that a winter storm had struck the North Texas area from December 5th to 7th in 2013, which was before M.P.'s fourteenth birthday. M.P. also recalled having vaginal intercourse with appellant at their house in Princeton on New Year's Eve of 2014, just after she turned fifteen years of age.
M.P. had met a man named Greg Ramsey, who was twenty-one years old and lived in Canada, through a Facebook group for a band they both followed. M.P. considered him a confidante and told him about appellant's abuse. In March of 2015, when M.P. was fifteen years old, the Princeton Police Department received an email report from Ramsey that appellant was sexually abusing M.P. Princeton police referred the case to the Collin County Child Abuse Task Force, and Detective Burk investigated the case. Burk went to M.P.'s home and tried to contact her, but her grandmother would not allow the detective speak with her. Burk contacted Child Protective Services (CPS) and a CPS investigator spoke with M.P.'s grandmother, who eventually allowed her to come in for a forensic interview.
During her forensic interview, M.P. told the interviewer, Lisa Martinez, that the abuse started about two weeks after appellant gained custody. The first time M.P. and appellant had sexual contact, they had been wrestling in the back of the truck. M.P. "blanked out" and when she awoke, they were both unclothed and she could feel appellant inside her. M.P. told the interviewer about appellant's use of restraints on her and how this became a regular part of their sexual relationship. She also said that appellant performed oral sex on her once or twice. The forensic interviewer testified that M.P.'s story was internally consistent and chronological, and that she was able to provide sensory details about how things felt. Martinez noted that M.P. did not appear as though she wanted to get appellant in trouble and that she just wanted to help him.
Martinez questioned M.P. about her ability to distinguish between fantasy and reality. M.P. told Martinez that she "schizophrenic" and indicated she saw another person with her at the interview, pointing to and saying that this person, "John," was always with her. But Martinez felt that M.P. knew John was not real and that she was able to distinguish fantasy from reality. M.P. told Martinez that "John" would go into her head when the abuse occurred. The senior vice president and clinical director of the Collin County CAC, Dan Powers, testified that he was not surprised by this sort of behavior and that it was M.P.'s way of coping with the abuse she suffered. As he told the jury, "The trauma was so severe that she needed to develop things in her life to be able to cope, to be able to survive." Martinez stressed that M.P. was "able to tell me that everything she said about her dad was definitely as real as it gets. Those are her words." M.P. testified that she had received in-patient treatment in Austin after her outcry, and her medical records were introduced into evidence.
Appellant met with the police several times. During the first interview with Detective Burk, which took place on March 27, 2015, appellant denied he had engaged in sexual activity with M.P. Appellant contacted Burk several times after that, offering additional information regarding M.P. and asking if he could get messages to her. Appellant also met with Burk for a couple of hours on March 30th. A third meeting between appellant and Detective Burk, which included Agent Falgout, took place on April 10, 2015, at the Collin County CAC. During that April 2015 interview, appellant admitted to Burk he had sexual intercourse with M.P. on approximately twenty-five occasions over two years in addition to digital penetration—the majority of the sexual intercourse occurring when M.P. was traveling with appellant on trucking runs. Appellant also admitted he had been having sexual intercourse with M.P. from early mid-2013 until approximately March of 2015. Appellant claimed M.P. was the aggressor and that she attacked him using her "John" persona, threatening to go to the police unless he had sex with her. Appellant declared, "John wanted me dead." Appellant drew two pictures, both admitted at trial, illustrating how far his penis and finger had penetrated M.P.'s vagina and anus.
As we stated earlier, there is sufficient evidence in the record to support the jury's determination that appellant committed the charged offense beyond a reasonable doubt. In addition to M.P.'s detailed testimony and her forensic interview, the jury heard appellant's statement admitting he had been having sex with his then-thirteen year old daughter. Appellant attacks M.P.'s credibility, but the jury was the sole judge of the weight and credibility of the evidence. Appellant also argues the confession never should have been admitted, but we consider all of the evidence in the record when conducting a sufficiency review, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). Furthermore, we have concluded appellant's statement was admissible because the trial court did not err when it found appellant was in custody at the point conceded by the State. And in any event, M.P.'s testimony alone is sufficient to support the jury's verdict. Deferring to the jury's determination of the credibility of the witnesses and the weight to be given their testimony, based on the cumulative force of all the evidence when viewed in the light most favorable to the verdict, and considering the reasonable inferences to be drawn from that evidence, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Appellant's second issue is overruled.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. 47
160260F.U05
JUDGMENT
On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-81571-2015.
Opinion delivered by Justice Myers. Justices Bridges and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 23rd day of May, 2017.