Briones, Jesus v. The State of Texas--Appeal from 384th District Court of El Paso County

2) Caption, civil cases

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
JESUS BRIONES,

Appellant,

 

v.

 

THE STATE OF TEXAS,

 

Appellee.

 

 
No. 08-01-00492-CR

Appeal from the

 

384th District Court

 

of El Paso County, Texas

 

(TC# 20010D03245)

 

MEMORANDUM OPINION

 

Jesus Briones appeals his conviction for aggravated sexual assault with a child in which the jury assessed punishment at ten years' confinement. Briones complains that the trial court committed error when it failed to exclude his written custodial statement confessing contact with his child. We find that the court did not abuse its discretion in allowing the statements into evidence. We affirm.

Facts

Both Briones's points of error relate to the admission of a confession that was subject to a pretrial motion to suppress. That motion was denied by the trial court.

On the morning of June 9, 2001, Jesus Briones was playing on the floor with his son in the house of his ex-wife Susanna Nunez, while she drew a bath for the three-year-old boy. She had already prepared the boy for the bath, taking off all his clothes, and Briones was making the boy laugh by tickling him and giving him "besitos," little kisses. When Ms. Nunez returned to the living room, she saw Briones kiss the boy on his penis. She did not think the kiss was sexual in nature, and believed that it could have been accidental as the child squirmed from the tickling. The only evidence of Briones actually putting the child's penis in his mouth comes from his statement to police officers.

That afternoon Ms. Nunez drove to Juarez and then stayed at a friend's house that night after returning. On June 11, she spoke to a counselor at her college. The counselor told her to call the El Paso County Sheriff's Department and report the incident.

Responding to the call was Detective Jaime Terrazas, who works for the Crimes Against Children unit of the Criminal Investigations Division. After interviewing Ms. Nunez and the child, Detective Terrazas obtained a prosecution affidavit and an arrest warrant. With warrant in hand, Detective Terrazas and his partner Detective Alfredo Medina went to the house in which Briones lives with his father.

The detectives took Briones to the Sheriff's Department substation and read him his Miranda rights in Spanish, which he signed and dated. Briones indicated to detectives that he understood these rights. During questioning, the detectives told Briones about the allegations against him, and Briones gave a statement in Spanish. Detective Terrazas typed the report as he asked questions. After the detectives finished the questioning, they read the report to Briones and then had him read it himself. Briones indicated that he knew how to read and write in Spanish to the detectives at the interview. The detectives never tested his ability to read.

When Briones read the report silently to himself, the detectives explained that he could make any additions, alterations, changes, or deletions that he wished to make. He appears to have made none, and signed the report. The question arises as to the voluntariness of the statement in light of Briones's understanding of the events. Briones has an IQ of between 63 and 67. Despite the improper grammar and spelling of Detective Terrazas in the statement, leading to numerous comments and difficulties from the translator during the in-court translation, Briones made no changes or comments concerning the confession. Some of the words used in the statement were not even recognizable to the translator.

Briones was told at the interview that he could not see his son until after the investigation. The detective maintains that he did not coerce, threaten, or make promises in exchange for Briones's statement. Detective Terrazas testified that he would not interrogate a person if he knew that a person was mentally disabled. In this instance, no one advised him of Briones's situation, and he did not notice anything that made him feel that he should stop the interview. Both Detective Terrazas and Detective Medina testified that they have never been in a situation where they stopped an interview with a suspect based upon their perception that the suspect had a limited mental capacity.

Peter Fernandez, Ph.D., reported that on the Wechsler Adult Intelligence Scale-Third Edition and the Test of Nonverbal Intelligence-Third Edition, Briones measured quotients of 67 and 63, respectively. Dr. Fernandez also assessed his verbal and analytical skills:

Most noticeable of Jesus were his quiet demeanor and his constricted affect. Of the latter he indicated feeling nervous due to having been 'threatened.'

 

. . .

 

Jesus's speech in Spanish was fluent, but subtly dysarthric. He mentioned having been delayed in learning to speak, but not having received speech therapy. Although he spoke in short sentences, his stream of thinking was direct.

 

. . .

 

Jesus attended school in Juarez, Mexico, to the second grade, and then in El Paso from the first to the tenth grade. He repeated the second grade in El Paso. He reportedly was a 'slow learner'. Jesus worked two years in a cafeteria and then assisted his father in the latter's work. He received supplementary social security income.

 

Jesus correctly counted backwards from twenty, spelled a word backwards, recalled four of four hidden objects, and solved hypothetical problems. Conversely he demonstrated difficulty in reciting the alphabet, he recalled only three of four verbal items after a brief interval, and he tended to be concrete in identifying similarities among concepts.

 

The report concluded that Briones "demonstrates mild deficiency on intellectual measures."

 

Another report from Mariam A. Marvasti, M.D., confirmed the findings of Dr. Fernandez. Her evaluation revealed that Briones's high school education was in special education classes, and that Briones's reading and writing level was at the sixth grade level. Although "[h]is intellectual functioning was estimated as below average given his vocabulary and the results of his psychological testing. . . .[h]is insight and judgment seemed to be fair at the time of these examinations."

The confession was properly admitted as voluntary

Briones's first point of error urges that the trial court erred in denying his motion to suppress a confession which was given involuntarily. His argument is made in the context of his mental capacity and his lack of understanding as to what he was doing. He contends that tactics used by law enforcement officers on those with normal intelligence may constitute coercion when used on an individual like himself who is mentally deficient.

i. standard of review

The determination of whether a defendant was in custody at the time he gave statements is a mixed question of law and fact. Since that decision does not depend upon the credibility or demeanor of witnesses before the trial court, we review the custody question de novo. In re D.A.R., 73 S.W.3d 505, 509-10 (Tex. App.--El Paso 2002, no pet.); Jeffley v. State, 38 S.W.3d 847, 853 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). If a defendant is in custody, the court then proceeds to determine whether the statement was involuntarily obtained through force or coercion. The standard of review regarding the voluntariness of a confession is a deferential review of the trial court's determination of the historical facts and a de novo review of the law's application to those facts. Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997). As the question of voluntariness in most cases, as in this one, will rely upon the factual determinations made by the trial judge after hearing and judging the credibility of the testifying witnesses, the standard of review applied will be one of abuse of discretion. Franks v. State, 90 S.W.3d 771, 784 (Tex. App.--Fort Worth 2002, pet. ref'd, untimely filed). The test for an abuse of discretion is not whether, in our view, the facts present an appropriate case for the trial court's action. Instead, the court of appeals determines whether the court acted without reference to any guiding rules and principles. Coots v. Leonard, 959 S.W.2d 299, 301 (Tex. App.--El Paso 1997, no pet.) (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)).

ii. custody

The voluntariness of a statement is only an issue if it was the result of a custodial investigation. Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.--Austin 1997, no pet.). Briones was clearly in custody when his statement was taken. An arrest warrant had already issued, he was not free to go, and the trial court so found.

 

iii. an overview of the analysis for whether a statement is voluntary

The question in this case is whether Briones's statement was given voluntarily. Article 38.21 of the Code of Criminal Procedure provides that in order for a statement to be used against a defendant it must be freely given:

A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.

 

Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979).

A statement is involuntary if the record reflects "official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). Voluntariness of a confession is decided by considering the totality of circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997); Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). Mental deficiency is a factor in this calculation. Penry, 903 S.W.2d at 744; Cornealius v. State, 870 S.W.2d 169, 175 (Tex. App.--Houston [14th Dist.] 1994), affirmed by 900 S.W.2d 731 (Tex. Crim. App. 1995). However defendant's mental condition, by itself and apart from its relation to official coercion, does not require a conclusion of involuntariness. Penry, 903 S.W.2d at 744; Walker v. State, 842 S.W.2d 301, 303 (Tex. App.--Tyler 1992, no pet.) (citing Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520, 93 L. Ed. 2d 473 (1986)). The question to be resolved is whether the accused's mental impairment is so severe that he was incapable of understanding the meaning and effect of his statement. Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970); Reed v. State, 59 S.W.3d 278, 281-82 (Tex. App.--Fort Worth 2001, pet. ref'd); Harner v. State, 997 S.W.2d 695, 699 (Tex. App.--Texarkana 1999, no pet.).

iv. valid waiver of right to remain silent

An inquiry into the waiver of Miranda rights has two dimensions. Franks, 90 S.W.3d at 785. First, the waiver must be voluntary as a product of free and deliberate choice rather than intimidation, coercion, or deception. Id. (citing Colorado v. Spring, 479 U.S. 564, 573, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954 (1987); Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001)). Second, the waiver must be made with full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Id. (citing Spring, 479 U.S. at 573, 107 S. Ct. at 857; Ripkowski, 61 S.W.3d at 384).

Here, Detective Terrazas testified that he did not coerce, threaten, or make promises in exchange for Briones's statement. He also testified that he did not know that Briones was mentally retarded during the interview. Important to our resolution of this case is that, though Briones had an IQ of between 63 and 67 and clearly has limited reasoning ability, there was no evidence that he either did not understand or was not capable of understanding the rights that he waived before giving his statement. To the contrary, the report of Dr. Marvasti concludes that Briones, though below average in intelligence, could exercise proper judgment. We therefore cannot conclude that the trial judge abused his discretion in finding Briones's statement admissible.

v. no improper coercion during interrogation

Briones argues that he was coerced by Detective Terrazas's statement during his interview that Briones could not see his son until after the investigation was concluded. During the interview, Detective Terrazas explained to Briones that his ex-wife was going to be filing for an emergency protective order for herself and the child. The detective testified that "when it's family-related family violence, we have to advise him." The detective recounted what he said at the suppression hearing:

Told him that he couldn't see him until after the investigation. I mean, he was being charged with performing oral sex on his son. He was advised not to go near him-as simple as that. A protective order was going to be sought keeping him from doing so, and that is permissible. I'm obligated to advise him not to go near the victim or the victim's mother. I mean, I'm not a Judge; I can't tell him, [y]ou can never see your child. I just advised him that it was to his advantage not to see the child.

 

Briones argues that the threat of not being able to see his child until after the investigation could coerce a person of normal intelligence into giving a confession, and this threat is even more effective on a person with an IQ of 67. The effects of such statements in a particular case must be presented to the initial fact finder on the record and must meet the standard for being unduly coercive to warrant exclusion of a confession.

In support of this argument, Briones relies upon Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963), in which the police told a suspect in a marijuana case that she was in jeopardy of losing her welfare benefits and custody of her children, but offered to recommend leniency if she would confess. Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992) (discussing Lynumn).

[T]his particular deceptive practice did more than affect the suspect's beliefs regarding her actual guilt or innocence, and judgments regarding the evidence connecting her to the crime. It also distorted the suspect's rational choice . . . by introducing a completely extrinsic consideration: an empty but plausible threat to take away something to which she and her children would otherwise be entitled. . . . This extrinsic consideration not only impaired free choice, but also cast doubt upon the reliability of the resulting confession, for one can easily imagine that a concerned parent, even if actually innocent, would confess and risk prison to avoid losing custody of her children and their welfare benefits.

 

Id. at 1051-52.

Detective Terrazas testified he did not coerce, threaten, or make promises in exchange for Briones's statement. The officers simply stated that Briones would have to stay away from the child until after the investigation and that the mother of the child was seeking a protective order to keep him away. In Lynumn, confession to a drug charge presented the danger that it was motivated solely by desire to maintain custody of children. In contrast, here there was no like encouragement for Briones to confess to sexual contact with his child; to the contrary, any such statement would ensure that he would be kept from his child. This does not rise to the level of coercion, and we again perceive no abuse of discretion. The first point of error is overruled.

 

A signature does not require a non-law enforcement witness

Briones's second point of error is that the trial court erred in denying his motion to suppress, because his statement resulted from a violation of article 38.22 of the Texas Code of Criminal Procedure because it was without benefit of a non-law enforcement Spanish interpreter. Specifically, Briones argues that there must have been a non-law enforcement interpreter in the room to witness his signature on the confession. This is a misreading of article 38.22, section 1, which states as follows:

Section 1. In this article, a written statement of an accused means a statement signed by the accused or a statement made by the accused in his own handwriting or, if the accused is unable to write, a statement bearing his mark, when the mark has been witnessed by a person other than a peace officer.

 

Tex. Code Crim. Proc. Ann. art. 38.22, 1 (Vernon 1979). Courts interpret statutes according to the plain meaning of their text unless the language is ambiguous or the plain meaning would lead to absurd results. Dickens v. State, 981 S.W.2d 186, 187 (Tex. Crim. App. 1998) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). A plain reading of this statute unambiguously puts the need for a witness to be someone other than a peace officer only in the clause regarding the "mark" of a person that is unable to write. The witness requirement is separated from the clause regarding signatures by a disjunctive "or." Thus, this Court finds no merit in the argument regarding a need for a non-law enforcement witness when the confession is that of a person who can indicate assent to the veracity of a statement by signature. See Pete v. State, 501 S.W.2d 683, 686 (Tex. Crim. App. 1973). Briones could read at a sixth grade level and did sign his name to both the Miranda warnings and his statement.

Incorporated within Briones's argument are contentions that the method by which the statement was taken was questionable due to the fact that there was no non-law enforcement translator, but that is not a requirement of the law. It is clear from the comments of the in-court translator that the written Spanish used in drafting the statement was quite bad. However, there is no evidence that what was written down, albeit in questionable grammar and with improper spelling, was not what was told to the detectives as they took the statement. The statement was read to Briones and he was then given a chance to read it himself. Even if he were totally illiterate, the requirement of review of the statement can be met by the detective's reading the statement to him. See Pete, 501 S.W.2d at 686. At any point before signing the statement, he could have made changes if what he read, or what he heard from the detective, did not comport with what happened. The detectives informed him of this right. The second point of error is overruled.

Conclusion

For the foregoing reasons, the conviction is affirmed.

 

SUSAN LARSEN, Justice

February 27, 2003

 

Before Panel No. 4

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

 

(Do Not Publish)