Salcedo, Victor v. The State of Texas--Appeal from 41st District Court of El Paso County

2) Caption, civil cases

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
VICTOR SALCEDO,

Appellant,

 

v.

 

THE STATE OF TEXAS,

 

Appellee.

 

 
No. 08-01-00497-CR

Appeal from the

 

41st District Court

 

of El Paso County, Texas

 

(TC# 990D04999)

MEMORANDUM OPINION

 

Victor Salcedo appeals his conviction for two counts of aggravated sexual assault of a child and one count of indecency with a child. A jury found him guilty and sentenced him to ninety-nine years' imprisonment on the first count of aggravated sexual assault of a child, ninety-nine years' imprisonment on the second count of aggravated sexual assault of a child, and ten years' imprisonment on the indecency with a child charge. We affirm counts one and three but reverse count two.

Facts

After being sent to the principal's office on September 29, 1999 to discuss a discipline problem, M______, just as she was leaving the office, asked to speak privately with Ruben Acosta, the principal. She then told Acosta that her father had molested her about a week earlier on September 21 when her mother had left her at his apartment. Victor Salcedo and M______'s mother are divorced. Acosta reported the incident to Child Protective Services and M______'s mother, who worked in the school cafeteria. M______ was eight years old at the time.

Detective Luis Rico of the Crimes Against Children Unit of the El Paso Police Department was assigned to the case. On the morning of October 6, 1999, Detective Rico met with investigator Letty Dolan Johnson of CPS. That morning he viewed a video of an interview between Ms. Johnson and M______. He also spoke with M______'s mother before and after the interview. He also met with and took a statement from Principal Acosta. Based on this information, he completed a complaint affidavit and a warrant was issued for Salcedo.

That afternoon, Detective Rico, his partner Detective Ballou, and several patrol officers proceeded to Salcedo's residence with the warrant. Salcedo was arrested at his apartment and taken to the Crimes Against Children Unit. Detective Rico administered the Miranda warnings to Salcedo, having him initial each right and signing the card at 4:45 p.m. Detectives Rico and Ballou then proceeded to take a confession which was initialed and signed by Salcedo. The statement was completed at 6 p.m. Suppression of this confession was denied at a pretrial hearing.

 

At trial, after the State rested, counsel for the defense moved for acquittal on the grounds that the State failed to establish a prima facie case against Salcedo. When that was overruled, the defense indicated that he wished to put the documents from the sexual assault examination into evidence as defense exhibit one. The judge indicated that they would be admitted in front of the jury, but it does not appear that they were actually admitted. The jury found Salcedo guilty of all three counts.

No evidence of Salcedo's mental problems was admitted until the punishment phase of trial. At punishment, the jury awarded the maximum period of imprisonment for each charge against Salcedo: ninety-nine years on each of the two aggravated sexual assault counts and ten years for indecency with a child.Admission of confession was proper

Salcedo's first point of error claims that admitting his confession at trial violated the due process clauses of the Fifth and Fourteenth Amendments, and Article 1, Section 19 of the Texas Constitution. Salcedo argues that the detectives taking his confession knew that he had mental problems, then makes a logical leap to urge that Salcedo could not have knowingly or intelligently waived his right to remain silent and have counsel present prior to being interrogated.

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 was in custody by this analysis, 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) (applying same standard to a denial of a motion to suppress defendant's statement). As the determination of whether a confession is voluntary 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 is 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 the information was the result of a custodial investigation. Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.--Austin 1997, no pet.). The issue of whether or not Salcedo was in custody is settled. An arrest warrant had already issued, and Salcedo clearly had been arrested and was not free to go when his statement was taken.

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

Thus, our review must determine whether Salcedo'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). Since every defendant has a constitutional right to remain silent, the law of Texas requires proper waiver of that right under the provisions of article 38.22.

Sec. 2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

 

. . .

 

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

 

Tex. Code Crim. Proc. Ann. art. 38.22, 2(b) (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), aff'd, 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 here is whether Salcedo's mental impairment was 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). Salcedo's brief does not discuss why his mental impairment prevented him from understanding the consequences of his waiver of rights and confession. The confession states that Salcedo did knowingly, intelligently, and voluntarily waive his rights and that he "want[ed] to give this statement so that [he] can get help and tell [his] side of the [sic] what happened." Detective Ballou testified during the suppression hearing that Salcedo was never offered help for his mental problems if he signed the statement. Further, it appeared to Detective Ballou that Salcedo was articulate, knew what was happening, and understood his rights. Detective Rico testified that even with the statement as it was, that Salcedo appeared fine and was not suffering from any delusions at the time he gave his statement.

At the suppression hearing, Salcedo testified that he did express concerns to the officer including that he was mentally incapacitated, that he was under the influence of demons, and that he smoked marijuana. He also expressed that he was a sorcerer. All this is included in the confession. Salcedo also testified that when he told Detective Rico that he needed a doctor, Detective Rico said he would get him help right away if he would tell them everything. Salcedo thought this meant he was going to be going to a mental hospital instead of a jail. Detective Ballou's testimony contradicts that any such aid was offered in exchange for the statement. There is no other evidence in the record of the detectives coercing or otherwise abusing Salcedo's vulnerabilities to extract a confession. We find no error in the trial court's admission of the statement under these facts. The first point of error is overruled.

Trial counsel was not clearly ineffective

Salcedo's second point of error asserts that counsel's failure to voir dire the jury panel on his mental problems, and failure to introduce evidence of his mental state during guilt/innocence, rendered assistance of counsel ineffective in violation of the Sixth Amendment of the U.S. Constitution. Salcedo argues that trial counsel failed to enter any evidence that he suffered from mental illness during the guilt/innocence phase of the trial. This appears to be true. Although telling the trial judge that he had a number of documents to enter into evidence when the jury returns to the courtroom, he failed to do so. Review of the record does show that on Salcedo's closing argument, counsel did discuss mental problems by referencing Lillith and Namath, Salcedo's other personalities, alluded to in his confession.

Texas courts adhere to the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was inadequate so as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). First, the defendant must show that his counsel's performance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997). Second, assuming the defendant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (citing Hernandez, 726 S.W.2d at 55).

The review of defense counsel's representation at trial is highly deferential. We engage in "a strong presumption" that actions of counsel were within the wide range of reasonably professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The burden is on the appellant to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. Salcedo's brief on appeal fails to establish that trial counsel's performance fell below any objective standard of reasonableness. Although it offers examples of what trial counsel could have done differently, it does not show that what he did do was professionally unreasonable or deficient. Perhaps, rather than introducing report upon report with information on Salcedo's life, defense counsel decided to let the arguably delusional language of the confession speak for itself. This is certainly a valid strategy, and one that would not violate the Strickland rule establishing counsel as ineffective. The second point of error is overruled.

Evidence is legally insufficient to support

the verdict on the second count of the indictment

 

Salcedo's third point of error challenges the legal and factual sufficiency of evidence on the second count of the indictment. The second count of the indictment alleged that Victor Salcedo intentionally and knowingly caused the sexual organ of M_____, a child who was under the age of fourteen at the time, to contact the sexual organ of Victor Salcedo. Central to this argument is a description of what happened by M_____. She testified that Salcedo's penis "passed by" hers:

A. . . . He had kneeled down and he pulled the side of my bathing suit under, and he pulled it to the side, and he--when he bent down, his penis just passed by mine and he started kissing me in my private part. . . .

 

Q. Okay. When you say his penis touched yours, what do you mean?

 

A. It just passed by mine, real fast, when he was bending down.

 

Q. Passed by your what?

 

A. My private part.

 

Salcedo's confession does not mention any contact other than that Lillith, his other, evil personality, wanted him to penetrate her, but he was "able to overcome that." His confession also states that he pulled M_____ "up against my body really hard" because he wanted her to feel his erect penis. (1) Salcedo claims that this is insufficient to support the second count of aggravated sexual assault. We agree.

In reviewing the legal sufficiency of evidence, this Court views the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991); Rivera v. State, 885 S.W.2d 581, 583 (Tex. App.--El Paso 1994, no pet.). Viewing evidence in a light most favorable to the verdict means that the reviewing court is to review the evidence as it is already weighed by the trier of fact's verdict, therefore deferring to the trier of fact's determinations of weight and credibility. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The Court of Appeals is not charged with determining whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref'd). The fact finder, here the jury, is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it. Moore v. State, 935 S.W.2d 124, 126 (Tex. Crim. App. 1996). We do not resolve any conflict in fact, weigh any evidence, nor evaluate the credibility of any witnesses. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Rivera, 885 S.W.2d at 583. Further, a reviewing court is not to disturb the trier of fact's decision unless it is found to be irrational or unsupported by more than a "mere modicum" of the evidence. See Moreno, 755 S.W.2d at 867.

The only witness present at the time of the incident other than Salcedo was the victim. The medical reports from her sexual abuse examination were never entered into evidence, despite discussion of entering them before the jury. Thus, the only evidence of contact is her testimony that Salcedo's penis "passed by mine." Although the prosecutor attempted to clarify her statement by using the word "touch" in his question, she simply repeated the words "passed by." The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Jones v. State, 817 S.W.2d 854, 856 (Tex. App.--Houston [1st Dist.] 1991, no pet.); Villanueva v. State, 703 S.W.2d 244, 245 (Tex. App.--Corpus Christi 1985, no pet.). It is well established that a child victim is not expected to testify with the same clarity and ability that is expected of adults. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990); Wallace v. State, 52 S.W.3d 231, 235-36 (Tex. App.--El Paso 2001, no pet.). Further, conflicts in evidence are for the jury to resolve. Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993).

The lack of clarity of communication is often used in discussions of where a child was touched or to explain the defendant's intent. See Wallace, 52 S.W.3d at 235-36. In Wallace this Court explained that the rule with regard to a child's indication of location of contact was that "courts view the critical inquiry as whether the child has sufficiently communicated to the trier of fact that the touching occurred to a part of the body within the definition of the controlling statute." Id. at 235 (citing Gottlich v. State, 822 S.W.2d 734, 741 (Tex. App.--Fort Worth 1992, pet. ref'd)). Wallace extended that rule to application of determining the defendant's intent. Id. at 236. In this case, we use the same principle to determine if actual contact took place as alleged in the indictment.

Count II of the indictment alleges that Salcedo's sexual organ contacted M_____'s. This is not proven and is absent from the confession. M_____ said that his organ "passed by" hers. When the prosecutor asked her about how it "touched" hers, she responded by using the same words "passed by" rather than using her offered word "touched." We find this is not sufficient communication of the element of touch. The prosecutor could have continued to elicit responses until M_____ said "touch" or "contact" or that she "felt it" or offered any number of ways to explain that Salcedo had contacted her as alleged in count II. She did not do this and failed to establish a critical element to count II of the indictment.

Because we find the evidence legally insufficient to support the verdict on the second count of aggravated sexual assault of a child, we do not reach the challenge to factual sufficiency. The third point of error is sustained and the judgment is reversed with regard to the finding of guilt for the second count of the indictment.

 

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed with regard to counts I and III. We reverse and render a judgment of acquittal with regard to count II.

 

SUSAN LARSEN, Justice

July 24, 2003

 

Before Panel No. 3

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

 

(Do Not Publish)

1. The State's brief agrees that Salcedo's statement alone does not provide sufficient evidence of "organ-to-organ contact."