Ybarra, Joe Moreno v. The State of Texas--Appeal from 112th District Court of Pecos County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOE MORENO YBARRA, )

) No. 08-00-00537-CR

Appellant, )

) Appeal from the

v. )

) 112th District Court

THE STATE OF TEXAS, )

) of Pecos County, Texas

Appellee. )

) (TC# 2164)

)

O P I N I O N

Appellant Joe Moreno Ybarra was charged with aggravated sexual assault of a child and indecency with a child. A jury found Appellant not guilty of aggravated sexual assault, but guilty of indecency with a child and assessed punishment at 15 years= imprisonment. Appellant raises two issues on appeal: (1) whether the trial court abused its discretion in failing to grant Appellant=s motion to suppress Appellant=s videotaped statement because it was not voluntarily and knowingly given; and (2) whether the trial court erred in denying Appellant=s motion for directed verdict because the State failed to prove venue, which rendered the State=s case legally insufficient to support a finding of guilt. We affirm.

On Thanksgiving 1998, A.N.Y. spent the night at the house of her grandfather, the Appellant. During the first week of December 1998, A.N.Y. again spent the night at Appellant=s house. A.N.Y.=s mother picked her up the next day and noticed that A.N.Y. was shaking and asked her what was wrong. Later that day A.N.Y. told her mother that on Thanksgiving while she slept at Appellant=s house on a couch in the living room, she woke up in the middle of the night in a lot of pain and found that Appellant=s hands were inside her panties in between her legs. At trial, the State also introduced into evidence testimony as to other incidents of alleged contact between Appellant and A.N.Y.

Motion to Suppress

In Issue One, Appellant asserts that the trial court erred in denying his pretrial motion to suppress his videotaped statement. Appellant claims that he was in custody when he gave his videotaped statement and that it was involuntary because officers made a number of promises and representations to Appellant in order to induce him into making the statement.

A trial court=s ruling on a motion to suppress is generally reviewed for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App. El Paso 1999, no pet.). Under this standard, the reviewing court must give almost total deference to the trial court=s determination of historical facts, especially when the court=s findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Gordon, 4 S.W.3d at 35. Where the trial court has made no explicit findings of historical facts, as in this case, we must view the evidence in a light most favorable to the trial court=s ruling. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). On a motion to suppress evidence, the trial judge is the sole trier of fact and judge of the credibility of the witnesses, including what weight, if any, is to be given to their testimony. See Bradley v. State, 960 S.W.2d 791, 800 (Tex.App. El Paso 1997, pet. ref=d). Consequently, the trial court may choose to believe or disbelieve any or all of a witness=s testimony. See Villarreal, 935 S.W.2d at 138. We review de novo the trial court=s conclusions of law and the application of those principles to the facts which do not turn on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 89.

Was Appellant in Custody?

The State contends that Miranda and Article 38.22 of the Texas Code of Criminal Procedure do not apply to the videotaped statements made by Appellant during the interview because they did not stem from custodial interrogation. Whether Appellant=s statements were voluntary is only an issue if the information was the result of custodial interrogation. Rodriguez v. State, 939 S.W.2d 211, 215 (Tex.App. Austin 1997, no pet.); Morris v. State, 897 S.W.2d 528, 531 (Tex.App. El Paso 1995, no pet.); Holland v. State, 770 S.W.2d 56, 58 (Tex.App. Austin 1989), aff=d, 802 S.W.2d 696 (Tex.Crim.App. 1991). If Appellant=s videotaped statements do not stem from custodial interrogation, neitherMiranda nor Article 38.22 require their suppression. See Tex.Code Crim.Proc.Ann. art. 38.22, ' 5 (Vernon 1979) (expressly excluding statements occurring outside of custodial interrogations). Thus, we must determine whether Appellant was in custody at the time he made the videotaped statement.

Whether a statement is the product of custodial interrogation must be determined on anad hoc basis after considering all of the objective, as opposed to subjective, facts and circumstances. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996). In Miranda, the United States Supreme Court defined Acustodial interrogation@ as Aquestioning 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 v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966). A person is Ain custody@ if, under the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 24, 114 S. Ct. 1526, 1528-30, 128 L. Ed. 2d 293, 298-99 (1994); Dowthitt, 931 S.W.2d at 254. The reasonable person standard presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991); Dowthitt, 931 S.W.2d at 254.

When a person is transported to a law enforcement facility by an officer in the course of an investigation, if the person was acting upon the invitation, request, or even the urging of an officer and there were no threats that he would be taken in a forcible manner, and the accompaniment is voluntary, then the individual is not in custody. Anderson v. State, 932 S.W.2d 502, 505 (Tex.Crim.App. 1996); Bradley, 960 S.W.2d at 801. Stationhouse questioning does not, in and of itself, constitute custody. California v. Beheler, 463 U.S. 1121, 1124 25, 103 S. Ct. 3517, 3519-20, 77 L. Ed. 2d 1275 (1983); Dowthitt, 931 S.W.2d at 255. However, police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation. Ussery v. State, 651 S.W.2d 767, 770 (Tex.Crim.App. 1983); Bradley, 960 S.W.2d at 801.

At the suppression hearing, the State called two witnesses, Deputy Sheriffs Larry Jackson and Arvin West. Deputy West testified that he made contact with Appellant at his place of employment, the Comfort Inn Motel in Fort Stockton, at approximately 9 or 9:15 in the morning on December 9, 1998. Deputy West was in full uniform and identified himself as a police officer. Deputy West informed Appellant that some allegations had been made and Appellant indicated that he knew what Deputy West was there for and would gladly go with him. Deputy West asked Appellant if he would accompany him back to the Pecos County Sheriff=s Office and Appellant told him A[s]ure. No problem.@ Deputy West testified that at that stage of the investigation, he did not intend to arrest Appellant. Deputy West did not handcuff Appellant and if Appellant had not consented, he would not have arrested him.

When they arrived, Deputy West took Appellant to his office and immediately informed Appellant again what they were there for and advised Appellant of his Miranda rights. Deputy West stated that he read the Miranda warnings to Appellant, then had Appellant read the written copy of his Miranda rights. Appellant initialed each of the warnings on the written copy. Deputy Jackson was present momentarily while Deputy West advised Appellant of his rights, but left the room shortly thereafter. By 9:35 a.m., Deputy West began interviewing Appellant and during the course of obtaining Appellant=s written statement it became obvious to Deputy West that Appellant was blurting out information and incriminating himself. Deputy West determined that it would be better to make a video statement and asked Appellant if he was willing to give one and Appellant agreed. Deputy West then contacted Deputy Jackson at around 11:30 a.m. With both officers present, Appellant was advised of his Miranda rights again and signed another written form, which advised him that a video statement was going to be taken.

For the purposes of the hearing, the State introduced Appellant=s videotaped statement into evidence. On the videotaped statement, Deputy Jackson states that the interview with Appellant is being conducted at 12:15 p.m. at the Pecos County Sheriff=s Office in Fort Stockton, Texas and will be about a sexual assault of a child that occurred on Thanksgiving. Deputy Jackson and Appellant went over the written copy of his Miranda rights again. As Deputy Jackson read each right, Appellant confirmed that it was his initials beside each of the rights. Appellant also confirmed that it was his signature beside a statement which read, AI have read the above rights and I understand each of these rights. And having all these rights in mind, I waive these rights and am willing to make a video statement for Deputy Larry Jackson.@ Deputy Jackson then informed Appellant that he was not under arrest at this time and that he was free to leave if he wanted to do so. Appellant affirmed that he understood this information. Deputy Jackson stated that he had explained to Appellant that he could and may be arrested later on for what he was about to say on the tape. Appellant confirmed that Deputy Jackson had told him that he would not be arrested today, but could be arrested later. On tape, Appellant confirmed that he had not been mistreated by any member of the sheriff=s department, had not been denied any bathroom privileges, and had not been denied water, food, coffee, or anything he wanted.

During the course of the videotaped interview, Appellant told the officers his version of what happened on Thanksgiving between him and his eight-year-old granddaughter A.N.Y. Appellant explained that A.N.Y. was sleeping on the couch and he was sleeping on the floor between A.N.Y. and another granddaughter, who was sleeping on another couch, in the living room of Appellant=s house. A.N.Y. was sleeping in a T-shirt and panties. A.N.Y. usually had a rough night sleeping, taking her blankets and covers off and walking all over the bed. On that night, Appellant had to cover her up several times. Appellant stated that while covering her up, his hand briefly touched the top of A.N.Y.=s panties. Appellant denied putting his hand underneath her panties. Appellant stated that it had never happened before and that he did not know why it had happened. Appellant also stated that he could not explain why it happened, but that he felt so bad about it. On the videotape, Appellant also admitted that on a different occasion he got on top of A.N.Y. while she was laying on her belly watching television. According to Appellant, they were just playing around.

Deputy West testified that during the encounter, Appellant was never deprived of any food or restroom privileges and was never threatened with arrest or harassment. Deputy West stated that during the entire questioning, Appellant was not under arrest. On cross-examination, Deputy West admitted that he advised Appellant of the possibilities of punishment. He recalled that he told Appellant there was a possibility that he could get probation and a possibility that he could go to the penitentiary. Deputy West stated that it is his policy to tell anybody who asks about length of punishment to say that it is up to the district attorney. Deputy West told Appellant that the videotape statement would be submitted to the district attorney=s office. Deputy West also testified that he was not aware of Appellant having any problems with his eyesight. After the interview, Deputy West took Appellant back to the motel and told him the possibility existed that there would be a warrant issued for his arrest at a later date, depending on how the district attorney wanted to handle the case.

Appellant testified on his own behalf at the suppression hearing. According to Appellant, on the morning of December 9, 1998, he was working at the Comfort Inn in Fort Stockton doing maintenance outside. He was approached by an officer, Deputy West. Appellant knew he was a deputy because of the way he was dressed and because he had a badge on and a gun. Appellant testified that Deputy West did not tell him right away why he was there. Rather, Deputy West told Appellant that he needed to talk to Appellant and asked if they could go outside for a minute. When they got outside, Deputy West said A[w]e are going to have to go to the office, to the sheriff=s office.@ Appellant replied that he needed to clock out first and went back inside to clock out. Appellant testified that he felt like he had to go with Deputy West. Deputy West then transported Appellant to the sheriff=s office in a police car.

At the sheriff=s office, Deputy West mentioned to Appellant the allegations against him and said A[w]e need to discuss this. We need to talk about what happened.@ Appellant thought Deputy West was talking about the time his granddaughter stayed with him in December. Appellant gave a written statement about that December visit as soon as he got to the sheriff=s office. According to Appellant, he and Deputy West walked over to Deputy Jackson=s office. When they walked in, Deputy Jackson began asking Appellant why he did it. When Appellant denied doing anything, Deputy Jackson stated that they knew he did it and that they were going to have to make a tape. Appellant testified that he was told that if they made this statement, nobody would know that he was arrested. Appellant also testified that Deputy Jackson told him that he was going to talk to the judge and make bail real low, that Appellant was not going to do any time in the pen, and the most he would get is about three years= probation.

As to the Miranda warnings, Appellant stated that he could not read the papers he had initialed. According to Appellant, he told the officer that he could not read it and the officer said he would help him. The officer read him his Miranda rights, but after the first part of it the officer garbled his words. Appellant testified, however, that he more or less understood what his rights were at that time. When defense counsel asked Appellant if he felt like you could leave at any time, Appellant stated that he did not because he had agreed to make the tape and Deputy Jackson had agreed to all those things that he said before and had told him that the tape was only going to be used for MHMR [Mental Health, Mental Retardation] purposes. However, Appellant also testified that he did not feel like he was under arrest at the time. After making the tape, Deputy West took Appellant back to the Comfort Inn and mentioned to Appellant that he would probably be arrested the next day or the day after.

On cross-examination, Deputy Jackson denied telling Appellant that the videotape was going to be used only by MHMR and denied making Appellant any promises or telling him that he would probably only get probation. Deputy Jackson denied telling Appellant that if he did not speak to him today about the incident, he was going to arrest Appellant that day. He also denied knowing whether or not Appellant was hard of hearing or that he wore eyeglasses.

The Court of Criminal Appeals has identified four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in a significant way; (2) when a law enforcement official tells a suspect he cannot leave; (3) when law enforcement officials create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) if there is probable cause to arrest and law enforcement officials do not tell the suspect that he may leave. Dowthitt, 931 S.W.2d at 255, citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985). In situations one through three, the restraint on freedom must be that associated with an arrest and not simply an investigative detention, and in situation four, the officer=s knowledge of probable cause must be manifested to the suspect, and such manifestation, considered in the totality of the circumstances, would lead a reasonable person to believe he is not free to leave. See id. at 255.

In this case, Appellant was asked to accompany Deputy West to the sheriff=s office for the purpose of discussing the allegations his granddaughter had made against him. Appellant voluntarily consented to going to the sheriff=s office. There is no evidence that indicates Appellant was physically deprived of his freedom of action in any significant way. He was not handcuffed, deprived of food, water, or restroom privileges while at the sheriff=s office nor was he told that he was not free to leave. On videotape, the officers informed Appellant that he was not under arrest and that he was free to leave. They also testified to the same at the hearing. Further, Appellant testified that at the time he did not feel like he was under arrest.

Examining objectively the circumstances surrounding Appellant=s videotaped statement, we cannot conclude that a reasonable person in Appellant=s position would have believed that his freedom of movement had been restrained to the degree associated with a formal arrest. While Appellant offered conflicting testimony as to the officers communicating to him that Athey knew he did it,@ the trial court as sole trier of fact and judge of the credibility of the witnesses may choose to believe or disbelieve any or all of a witness=s testimony. See Bradley, 960 S.W.2d at 800. Since Appellant was not in custody, the Miranda warning requirements under Article 38.22 were not triggered. Accordingly, we find no error in the trial court=s admission of his videotape statement. Issue One is overruled.

Venue

In Issue Two, Appellant contends that the trial court erred in denying Appellant=s motion for instructed verdict on the issue of venue at the close of the State=s case-in-chief. The indictment alleged that Appellant committed aggravated sexual assault of a child and indecency with a child in Pecos County, Texas. Appellant asserts that the State failed to establish during its case-in-chief that the offense for which Appellant was convicted did, in fact, occur in Pecos County. Therefore, Appellant contends the State failed to prove venue, rendering the State=s case legally insufficient to support a finding of guilt.

Failure to prove venue in the county of prosecution is reversible error. See Black v. State, 645 S.W.2d 789, 791 (Tex.Crim.App. 1983). However, venue is presumed to have been proven in the trial court unless the record affirmatively shows otherwise or venue is made an issue at trial. See Tex.R.App.P. 44.2(c)(1); Clark v. State, 558 S.W.2d 887, 891 (Tex.Crim.App. 1977); Valdez v. State, 993 S.W.2d 346, 349 (Tex.App.--El Paso 1999, pet. ref=d). A motion for an instructed verdict expressly challenging proof of venue timely raises and preserves the issue for appeal. Black, 645 S.W.2d at 792-93; Valdez, 993 S.W.2d at 349.

Venue is a noncriminative fact that the State must establish by a preponderance of the evidence. See Tex.Code Crim.Proc.Ann. art. 13.17 (Vernon 1977); Black, 645 S.W.2d at 790; Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App. 1981). Proof of venue may be established by direct or circumstantial evidence. Black, 645 S.W.2d at 790. The trier of fact may make reasonable inferences from the evidence to decide the issue of venue. Valdez, 993 S.W.2d at 349; Lozano v. State, 958 S.W.2d 925, 929 (Tex.App.--El Paso 1997, no pet.). Evidence is sufficient to establish venue if Afrom the evidence the jury may reasonably conclude that the offense was committed in the county alleged.@ Rippee v. State, 384 S.W.2d 717, 718 (Tex.Crim.App. 1964).

In this case, no one directly testified that the offense took place in Pecos County, Texas. At trial, A.N.Y.=s mother testified that in 1998, A.N.Y. spent the night at Appellant=s house on Thanksgiving and on the day after Thanksgiving. On Thanksgiving, A.N.Y. stayed overnight at the house without her parents, but on the following day, her father also stayed over at Appellant=s house. During the following week, from Friday, December 4 to Saturday, December 5, A.N.Y. again spent the night at her grandparents= house. On that occasion, Mrs. Ybarra and her husband went to Fort Stockton and left A.N.Y. and their other daughter at Appellant=s house, so that they could go out while Appellant acted as their babysitter. Mrs. Ybarra picked up her daughters from Appellant=s house the next day. Mrs. Ybarra testified that when they got in the car, A.N.Y. told her Alet=s go, let=s go.@ She looked at A.N.Y. and saw that A.N.Y. had her arms stretched out and was shaking. They drove back to their home in Kermit, Texas and later on that day, A.N.Y. confided to her mother that on Thanksgiving day when she slept there alone with her cousins, she woke up in a lot of pain and her grandfather=s hands were inside her panties in between her legs. A.N.Y.=s mother also testified that Appellant was living in a trailer house in the Quail Run area by the cemetery.

A.N.Y., the victim, testified that Appellant is her paternal grandfather and that she spent the night over at Appellant=s house around Thanksgiving time. She slept in the living on the couch, her cousin slept on the other couch, and Appellant slept right beside her on the floor. During the middle of the night, A.N.Y. woke up with pain in her private parts and found Appellant=s hands inside her panties. A.N.Y. also testified that she went back again and spent the night at her grandparents= house on that day in December.

The record also reflects that the State introduced Appellant=s voluntary written statement into evidence during its case-in-chief. In this statement, Appellant wrote, AI now live at P.O. Box 805 Ft Stockton, TX.@ The State also introduced Appellant=s videotaped statement into evidence and it was played to the jury. At the start of the tape, Deputy Jackson states, A[t]his will be a taped interview that=s being held at the Pecos County Sheriff=s Office in Pecos County, Texas, in Ft. Stockton, Texas.@

It may be reasonably inferred from circumstantial evidence in this case that the charged offense occurred in Pecos County. Because the evidence showed that the offense took place in Appellant=s home, that Appellant lived in Fort Stockton, and that Fort Stockton was in Pecos County, the trial court was also free to take judicial notice that Fort Stockton is a city within Pecos County. See Black, 645 S.W.2d at 791; Lozano, 958 S.W.2d at 929. Accordingly, we find the trial court did not err in denying the motion for directed verdict on this matter. Issue Two is overruled.

We affirm the trial court=s judgment.

February 27, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)