Thomas Lee Stein v. The State of Texas--Appeal from 42nd District Court of Taylor County

11th Court of Appeals

Eastland, Texas

Opinion

Thomas Lee Stein

Appellant

Vs. No. 11-02-00285-CR B Appeal from Taylor County

State of Texas

Appellee

The jury convicted appellant of aggravated sexual assault of a four-year-old girl and assessed his punishment at confinement for 50 years and a fine of $10,000. We affirm.

Donna L. Hicks, appellant=s mother, testified that she provided day care service at her home for Margery Kay Barton=s two daughters, L.M.B. and L.B. On the date of the offense, appellant went to his mother=s house. L.M.B. and L.B. were at the house at the time. Appellant watched television for a few minutes and then attempted to take a nap in the front bedroom of his mother=s home. L.M.B., the four-year-old victim, kept going into the bedroom. Appellant took L.M.B. back into the living room several times and tried to get her interested in watching cartoons on the television, but she kept going back to the bedroom. Hicks testified that L.M.B. and appellant were in the bedroom alone for two or three minutes. Finally, appellant brought L.M.B. out of the bedroom and stayed in the living room watching cartoons with the children. Hicks also testified that L.M.B. had a $1.00 bill with her when she returned to the living room. Hicks testified that L.M.B. told her that appellant gave her the dollar Afor being a good girl.@ That afternoon, between 5:30 and 6:00 p.m., Barton picked L.M.B. and L.B. up from Hicks=s house. Barton noticed that L.M.B. had a $1.00 bill with her that she had not had that morning. Barton asked L.M.B. where she got the dollar, and L.M.B. said: ATommy wanted to see [my] pee-pee.@

About a week after the offense, Officer Thomas Valdez went to appellant=s home to discuss the case with appellant. Appellant told Officer Valdez that he had an appointment at 3:00 p.m.; but nevertheless, he voluntarily met with Officer Valdez at the Law Enforcement Center (LEC). At the LEC, appellant gave a written statement in which he said that he was going to touch L.M.B.=s Aprivates@ but that he stopped himself. However, he also testified that he touched L.M.B.=s vagina Awith my left hand and fingers. I think my left first (index) finger touched the opening of her vagina.@ Appellant said that he stopped when L.M.B. asked him to stop. After he gave the statement, appellant went to an appointment which he had with a Mental Health and Mental Retardation (MHMR) worker.

Appellant filed a pretrial motion to suppress his statement, claiming that the statement was not voluntary. After the hearing, the trial court found that appellant did not present any evidence which raised the issue of voluntariness and overruled the motion. Appellant entered a plea of not guilty and proceeded to trial before a jury.

Appellant urges two issues on appeal. In his first issue on appeal, appellant argues that the trial court erred when it denied appellant=s pretrial motion to suppress because the statement was not voluntarily given.[1]

Once an accused presents evidence which raises the issue of voluntariness, the State must prove, by a preponderance of the evidence, that the statement was voluntarily made. State v. Terrazas, 4 S.W.3d 720 (Tex.Cr.App.1999). However, the State is not put to its burden to prove that a statement was voluntarily given unless the accused presents some evidence raising the issue. State v. Terrazas, supra at 727.

A statement is voluntary if it is the result of a free and unconstrained choice made by the accused who gave the statement. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Cr.App.1995). A statement is voluntary unless Athere was 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, supra at 211.

Here, the evidence did not raise the issue of voluntariness. We have been able to find no evidence of any official, coercive action in connection with appellant=s statement. Appellant did testify that he gave a statement to Officer Valdez, and that he signed it. He also testified that there were things missing from the statement and that he did not realize that, by signing the statement, he was admitting to a crime. Appellant claims that when the touching took place he was simply trying to help L.M.B. clean up after she had been to the bathroom; the dollar that he gave her was for Aa good job on the potty.@ He testified that he had never helped anyone Aclean up@ before and that he might have been a little rough. Appellant also testified that he was on various medications and that, when he was at the police station, he told Officer Valdez that he needed to take his medication because he was late in taking it. Appellant testified that taking his medication late caused him to feel A[l]ike somebody was taking a knife to [his] gut, just doubling over in pain, massive headache, splitting headache, migraine.@ Appellant further testified that he asked Officer Valdez if he could take a break to take the medicine. However, all of this testimony by appellant occurred at trial, not during the hearing on the motion. We will consider only such evidence as was before the trial court at the time it made its ruling. Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).

In the absence of some cause instituted by law enforcement personnel, a statement is not involuntary. Cornealius v. State, 870 S.W.2d 169, 175 (Tex.App. B Houston [14th Dist.] 1994), aff=d, 900 S.W.2d 731 (Tex.Cr.App.1995). Because there was an absence of any evidence of wrongdoing on the part of the law enforcement personnel involved, conditions such as those claimed by appellant, alone, do not raise the issue of voluntariness. See Colorado v. Connelly, 479 U.S. 157, 164 (1986). Appellant presented no evidence to raise the issue of voluntariness at the hearing on the motion to suppress.

Even if we were to hold that appellant had raised the issue of voluntariness, which we do not, the result in this case would not be different. In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App.1997). Because the trial court is the exclusive fact finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323 (Tex.Cr.App.2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844 (Tex.App. - Eastland 1999, no pet=n). We will not disturb findings which are supported by the record. Johnson v. State, 803 S.W.2d 272, 287 (Tex.Cr.App.1990), cert. den=d, 501 U.S. 1259 (1991). The evidence that we have outlined above, viewed in the light most favorable to the trial court=s ruling, supports the trial court=s finding that appellant=s statement was voluntarily given. Under either a de-novo-review standard or an abuse-of-discretion standard, the trial court did not err when it denied appellant=s motion to determine the admissibility of the statement. We overrule appellant=s first issue on appeal.

In his second issue on appeal, appellant argues that he received ineffective assistance of counsel because his counsel did not request that the trial court submit an instruction to the jury regarding the voluntariness of his statement. To prevail on a claim of ineffective assistance of counsel, appellant must establish that trial counsel=s performance fell below an objective standard of reasonableness and that there is a Areasonable probability@ the result of the proceeding would have been different but for counsel=s deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App.2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). The purpose of this two-pronged test is to judge whether counsel=s conduct so compromised the proper functioning of the adversarial process that the trial could not be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Cr.App.1999) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993)).

Before a jury instruction on voluntariness is required, that issue must be raised before the jury. Article 38.22, section 7; Butler v. State, 872 S.W.2d 227 (Tex.Cr.App.1994). There must be some evidence presented before the jury that the statement was not voluntary. Hernandez v. State, 819 S.W.2d 806 (Tex.Cr.App.1991). As we have stated, although he did not testify at the suppression hearing, appellant did testify at his trial. We already have set out appropriate portions of appellant=s testimony before the jury. That testimony does not rise to the level which involves official, coercive action by the authorities amounting to Awringing the statement out of@ appellant against his will, such that it is evidence of a statement that was not the product of appellant=s free and unconstrained choice. State v. Terrazas, supra at 728. Trial counsel cannot be said to have been ineffective for failing to request an issue to which appellant was not entitled. Autry v. State, 27 S.W.3d 177 (Tex.App. B San Antonio 2000, pet=n ref=d). Appellant fails the first part of the Strickland test.

Furthermore, even if we were to hold that the issue of voluntariness was raised, that appellant was entitled to have the issue of voluntariness submitted to the jury, and that appellant=s trial counsel was ineffective for failing to request the issue, we cannot say upon this record that the result would have been any different. In part, appellant points to the alleged severity of punishment to substantiate his position that the outcome of the case would have been different but for counsel=s deficient performance. The punishment is within the range of punishment provided for the offense. The inquiry is whether there is a reasonable probability that the outcome of this case would have been different if trial counsel had asked for, and the trial court had given, an instruction on the issue of voluntariness. A review of this record convinces us that there is no reasonable probability that the result would have been different had the jury received the instruction. Even if counsel were deficient, appellant fails the second prong of the Strickland test. We overrule appellant=s second issue on appeal.

The judgment of the trial court is affirmed.

JIM R.WRIGHT

JUSTICE

September 4, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Except for appellant=s claim that any error in this case was constitutional error under TEX.R.APP.P. 44.2(a), there are no citations to either the United States Constitution or the Texas Constitution in the briefs, and no arguments are presented thereunder. We take that absence to be indicative of the common realization that the statement here was not the result of custodial interrogation. We also note that our lack of discussion of TEX. CODE CRIM. PRO. ANN. ch. 38 (Vernon 1979, Supp. 2003, & Pamph. Supp. 2003) is the result of the lack of citation and argument under Chapter 38.