No. 13-06-376-CR
Opinion delivered and filed August 9, 2007. Do not publish. Tex. R. App. P. 47.2(b).
On appeal from the 389th District Court of Hidalgo County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA. Memorandum Opinion by Justice GARZA.
DORI CONTRERAS GARZA, Justice.
Appellant, Ricardo Garcia Peralez, was indicted for the offenses of sexual assault of a child (count 1), burglary of a habitation with intent to commit sexual assault of a child, (count 2), indecency with a child by contact (count 3), and indecency with a child by exposure (count 4). Peralez pleaded not guilty. A jury found Peralez guilty on counts 1, 3, and 4. The jury sentenced him to 35 years' imprisonment for count 1, 35 years' imprisonment for count 3, and 20 years' imprisonment for count 4. The jury also assessed a $10,000 fine for each count. The judge ordered the sentences to run concurrently. By three issues, Peralez challenges his convictions, contending: (1) the trial court erred by admitting evidence of his oral statement to an investigator, (2) the prosecution engaged in improper voir dire by broaching the subject of enhancements and their range of punishment, and (3) the convictions violated the constitutional prohibition against double jeopardy and the statutory prohibition against multiple punishments for the same offense. We affirm.
I. Factual Background
Fifteen-year-old T.P. testified that on the evening of December 11, 2005, she and her thirteen-year-old sister, B.D., were sleeping in the bed they shared at their home. T.P. woke up when she heard knocking at the bedroom window. She got up to look out and saw Peralez. T.P. recognized Peralez because she had seen him at her neighbor's house before. They had never spoken. Peralez opened the window and climbed in. He began to kiss T.P. T.P. told him to stop, but he did not. Peralez grabbed T.P.'s breast and buttocks. T.P. again asked him to stop, but he refused. Peralez tried to touch T.P.'s vagina, but T.P. tried to stop him by crossing her legs. T.P. then opened her legs, and Peralez "put his waist between [T.P.'s] legs." He ripped her underwear, took out his penis and sexually penetrated T.P.'s vagina. T.P. again told him to stop. B.D. began to wake up. Peralez then got behind T.P. and asked if her sister "would do a threesome." Peralez then tried to insert his penis in T.P.'s anus. T.P. pushed Peralez and he fell on the floor. B.D. woke up and Peralez left through the window. T.P. claimed she never screamed because she thought Peralez was armed. B.D. testified that she was awakened that night by "weird noises" like hard breathing and by the bed moving. B.D. saw somebody on top of T.P. She observed a man stand up, pick his pants up, open the window, and then jump out. The man had light bright shoes and a yellow and black "Killer Bees" jacket. When he turned, B.D. saw his face and recognized Peralez. She had seen Peralez before at her neighbor's home. B.D. told her mother and they both ran outside and saw Peralez drive off in a gray Taurus. Maria Pineda, T.P. and B.D.'s mother, testified she saw Peralez drive off in a newer model gray Taurus. Sexual assault nurse examiner, Lori Guerrero, examined T.P. that same day. She testified that T.P. reported the assault occurred between 4:00 and 5:00 a.m. Guerrero observed redness all around T.P.'s labia major. The redness indicated the use of some force. She also observed a small notch on T.P.'s hymen that could have been caused by force and could have occurred four hours before the exam. Guerrero also indicated a 1.5 inch superficial tear, like an abrasion or deep scratch on the hymen. Guerrero claimed the tear was not more than eight hours old. Guerrero also observed red marks on T.P.'s anus that were consistent with attempted anal penetration. Lori Laurel, Peralez's girlfriend, testified that Peralez left that evening in her 2004 silver-green Ford Taurus. He returned at about 3:00 a.m., then left again at about 4:00 a.m. Peralez was carrying his yellow and black jacket and tan shoes. He returned at about 7:00 a.m. Peralez was subsequently charged and convicted and sentenced by a jury. This appeal ensued. II. Admissibility of Peralez's Oral Statement
By his first issue, Peralez argues that the trial court erred in admitting into evidence an oral statement that he made to Investigator Leonor Garcia. Peralez contends his oral statement, which was not recorded, was inadmissible pursuant to article 38.22, section 3(a)(1) of the Texas Code of Criminal Procedure, which provides that an oral statement of an accused made as a result of "custodial interrogation" is not admissible against the accused unless an electronic recording is made of the statement. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1) (Vernon 2005). A. Standard of Review
A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion. See Ford v. State, 26 S.W.3d 669, 672 (Tex.App.-Corpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999)). Where, as here, a trial judge does not enter findings of fact, a reviewing court must "view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007) (citing State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000)); Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review giving almost total deference to a trial court's determination of historic facts and reviewing de novo the court's application of the law to the facts. See Carmouche, 10 S.W.3d at 327. This Court affords the same amount of deference to the trial court's ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on evaluating credibility and demeanor. Ross, 32 S.W.3d 853 at 856; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1977); Villarreal v. State, 61 S.W.3d 673, 678 (Tex.App.-Corpus Christi 2001, pet. ref'd). However, questions of law and mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89; Villarreal, 61 S.W.3d at 678. The issue before us presents a mixed question of law and fact that does not turn on evaluation of the credibility of witnesses; we therefore review this issue de novo. Maestas v. State, 987 S.W.2d 59, 62 (Tex.Crim.App. 1999); Guzman, 955 S.W.2d at 89. B. Applicable Law
Article 38.22, section 3(a)(1) states that no oral statement of an accused made as a result of "custodial interrogation" shall be admissible unless an electronic recording is made of the statement after the accused has been properly warned and has waived his rights. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1); see Miranda v. Arizona, 384 U.S. 436, 467 (1965) (holding that statements stemming from custodial interrogation may not be used unless procedural safeguards effective to secure the privilege against self-incrimination are employed). However, article 38.22, section 5 specifically exempts statements that do not "stem from custodial interrogation," statements that are "res gestae of the arrest or of the offense," and all voluntary statements, whether or not they result from custodial interrogation. Id. § 5. In Miranda v. Arizona, the United States Supreme Court defined custodial interrogation as "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. 436, 444 (1966). The Court in Miranda further notes: Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. Id. at 478. Thus, the procedural safeguards established in Miranda are not required if a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. R.I. v. Innis, 446 U.S. 291, 300 (1980). Interrogation must reflect a measure of compulsion above and beyond that inherent in custody itself. Id. The Innis court additionally notes: [T] he term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Id. at 300-01. When a suspect in custody spontaneously volunteers information that is not in response to interrogation by officers, the statement is admissible even though not recorded because it is not the product of custodial interrogation. Id. at 302; Stevens v. State, 671 S.W.2d 517, 520 (Tex.Crim.App. 1984). C. Analysis
Peralez argues that his statement was a product of interrogation while in custody and is therefore inadmissible because it was not recorded. The State concedes that Peralez was in custody at the time of his oral statement, however, the State argues that Peralez's statement was not the product of custodial "interrogation." Accordingly, the decisive question is whether Peralez's oral confession was the result of custodial interrogation. If Peralez's statement did not stem from custodial interrogation, neither Miranda nor article 38.22 requires its suppression. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5; Miranda, 384 U.S. at 478. The record reflects that Garcia spoke to Peralez at the county jail after his arrest. Garcia advised Peralez of his rights and Peralez signed a paper indicating that he understood those rights. Garcia testified that Peralez was then asked to give a statement, and refused. Garcia stopped questioning Peralez and began to gather up the paperwork. As Garcia collected the paperwork, Peralez remarked, "Anyway, she's eighteen." A pretrial motion to suppress this statement was filed by Peralez. The judge conducted a hearing with Garcia outside the presence of the jury and denied the motion and Garcia was allowed to convey Peralez's statement to the jury. At the hearing on the motion to suppress, Garcia testified that after Peralez refused to provide a statement, the conversation ended and the interrogation was over. At that point, Garcia testified that she began to gather up Peralez's paperwork. Recognizing that, in addition to express questioning, "interrogation" may refer to other words or actions by police that they should know are likely to elicit an incriminating response from the suspect, we address Garcia's actions to determine they were reasonably likely to elicit an incriminating response from Peralez. Innis, 446 U.S. at 300. There is no evidence in the record demonstrating that Peralez's statement was invited in response to interrogation. See id. at 300-02; Stevens, 671 S.W.2d at 520. Further, there is nothing in the record to suggest that Garcia's actions were orchestrated to elicit the response from Peralez. In fact, the record indicates that Garcia's actions were nothing more than inquiring whether Peralez wished to provide a statement and then gathering up paperwork upon Peralez's refusal. Neither Garcia's words or actions are indicative of anything other than those "normally attendant to arrest and custody." Innis, 446 U.S. at 300-01. Without such compulsion, direct or indirect, Peralez's statement did not arise from custodial interrogation. The trial court's ruling that Peralez's confession was not the result of custodial interrogation is supported by the record. Thus, there was no requirement that the statement be electronically recorded. Accordingly, the trial court did not abuse its discretion in admitting the complained-of evidence. Peralez's first issue is overruled. III. Voir Dire
Peralez next argues that the State's improper voir dire deprived him of his Sixth Amendment right to a jury determination of his guilt or innocence, and his right to a fair trial. Peralez additionally contends that the voir dire jeopardized his presumption of innocence. The State claims Peralez failed to preserve this issue for review. We agree. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). It is well established that almost every right, constitutional or statutory, may be waived by failing to object. Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). During voir dire, the State informed the venire that "hypothetically speaking, if the state were to provide evidence that a person had been convicted before, the punishment could be increased. On the first degree charge, normally facing 5 to 99 or life, he faces 15 to 99 or life." When the State made this statement, no objection was made by Peralez. When an appellant complains about an improper remark by the prosecutor during voir dire, the appellant must object when the remark is made. Espinosa v. State, 194 S.W.3d 703, 708 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (citing Beltran v. State, 99 S.W.3d 807, 811 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (overruling issue about trial court's improper comments because appellant failed to preserve error by objecting when the court made the comments); Cruz v. State, 877 S.W.2d 863, 868 (Tex.App.-Beaumont 1994, pet. ref'd) (holding the defendant waived the issue on appeal of improper argument during closing argument because he did not object during voir dire when the prosecutor first made comments about the difference in punishment between the charged crime of murder and capital murder)). Accordingly, we hold Peralez failed to preserve the issue for review because he did not object when the State made the remark to the jury during voir dire. See id.; see also Tex. R. App. P. 33.1. Peralez's second issue is thus overruled. IV. Double Jeopardy and Prohibition of Multiple Punishments for the Same Offense In his third issue, Peralez argues that the convictions for sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure, violate the constitutional prohibition against double jeopardy and the statutory prohibition against multiple punishments for the same offense. A. Constitutional Double Jeopardy Claim
We note that although Peralez cites to Blockburger v. United States, 284 U.S. 299 (1932), he wholly failed to apply the Blockburger analysis to the facts of his case and has failed to develop any argument regarding how his convictions violate the Double Jeopardy Clause pursuant to Blockburger. Accordingly, we will not address this contention. See Tex. R. App. P. 38.1(h). We additionally note that even if Peralez had properly briefed his constitutional double jeopardy violation claim, we would nonetheless conclude that he failed to preserve the issue for review. Generally, to preserve a double jeopardy claim, a defendant must object at or before the time the charge is submitted to the jury. Gonzales v. State, 8 S.W.3d 640, 642 (Tex.Crim.App. 2000). Peralez did not raise any double jeopardy objections at trial. See id.; Tex. R. App. P. 33.1(a)(1). However, an appellant is excused from the preservation requirement when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and (2) enforcement of rules of procedural default serves no legitimate state interests. Gonzales v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000). Peralez, however, has not contended nor demonstrated that the alleged double jeopardy violation is clear on the face of the record, nor has he claimed that enforcement of procedural defaults serves no legitimate state interests. See id. And, a double jeopardy violation is not clearly apparent on the face of the record. See id. Accordingly, we would nonetheless conclude he failed to preserve his constitutional double jeopardy claim for review. B. Statutory Multiple Punishment Claim
Although Peralez asserts that his convictions violate statutory prohibitions, he does not specify which statute has been violated. Peralez does, however, cite to Patterson v. State to support his contention. See Patterson v. State, 152 S.W.3d 88,89 (Tex.Crim.App. 2005) (en banc). In Patterson, the defendant was convicted of aggravated sexual assault of a child by penetration, aggravated sexual assault of a child by contact, attempted indecency with a child by contact, indecency with a child by contact, and indecency with a child by exposure. Id. In Patterson, the court of criminal appeals did not address any constitutional double jeopardy issue; instead, it resolved the issues before it on the basis of statutory construction pursuant to Texas Penal Code section 3.03. See id. at 90-92. Peralez did not object in the trial court on section 3.03 or Patterson grounds. Accordingly, he failed to preserve his complaint for appellate review. Donnell v. State, 191 S.W.3d 864, 869 (Tex.App.-Waco 2006, no pet.); Cabral v. State, 170 S.W.3d 761, 763-64 (Tex.App.-Forth Worth 2005, pet. ref'd); see Tex. R. App. P. 33.1(a)(1). Accordingly, we overrule Peralez's third issue. IV. Conclusion
The judgment of the trial court is affirmed.