CHRISTOPHER JOHN LONG, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued November 8, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01634-CR
............................
CHRISTOPHER JOHN LONG, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-82411-04
.............................................................
OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Mazzant
        Christopher John Long appeals his conviction for indecency with a child. In two issues, he alleges the evidence is factually insufficient to support the conviction and the trial court erred by admitting his statement into evidence. We affirm the trial court's judgment.
Background
        Appellant and LL were married in 1993 and divorced six years later. Appellant had primary custody of their nine-year-old daughter, CL, and LL had visitation on Wednesdays and every other weekend. At all other times, CL was in the custody of appellant. On May 29, 2004, during a weekend visitation, CL told LL that appellant had been “touching” her. CL said appellant would have her lie face down on the bed in the garage apartment they shared and insert his fingers into her vagina. CL claimed appellant told her “that he wanted to break her hymen so sex wouldn't be painful for her later on.”
        LL was initially reluctant to believe that her ex-husband was abusing their daughter. The day after her conversation with CL, she confronted appellant about the allegations. Appellant told his ex-wife that he only touched CL in sessions of “horseplay or hugging” and that he never did anything inappropriate. Later, appellant told her that, while he never touched CL in an inappropriate manner, he “had to touch her” for medical purposes due to CL's complaints of itching in her vaginal area.
        LL did not believe appellant's explanations and contacted Child Protective Services (CPS). Jamie Connell, a case worker for CPS, was assigned to investigate the claim. Connell went to the home where appellant and CL were living in Plano, Texas. When Connell asked CL whether appellant had touched her, CL denied any “private touches” but said appellant would periodically check her “hole to make sure it was growing appropriately.” Appellant also “told her this was okay because he was doing it for her own good.”
        On June 2, 2004, about one week after her interview with Connell, CL's mother brought her to the Collin County Children's Advocacy Center (CAC) for a Sexual Assault Nurse's Exam (SANE). At the forensic interview, CL claimed that the real abuser was Tracy Garvin, LL's live-in boyfriend. When the forensic interviewer, Kathryn Jenkines, asked CL if she had ever told anyone anything different than what she was telling Jenkines, CL explained that she had “accidentally” accused her father of touching her inappropriately.
        Shortly after CL's forensic interview, appellant was interviewed by Detective Richard Gonzales of the Plano Police Department at the CAC. Gonzales began the interview by telling appellant that he was a police officer and that he wanted to talk to him about CL's abuse allegations. During the interview, which lasted approximately thirty-seven minutes, appellant claimed he visually inspected CL's vagina and “pulled the labia open” because she complained of irritation or soreness. Appellant said he did this on perhaps one or two occasions and after she returned from visits to her mother's house. Appellant denied inserting his fingers into her vagina.
        The room where appellant was interviewed had a table, two chairs, one door, and no windows. Gonzales did not give appellant the Miranda warnings and he did not inform him that he was free to leave the room. Gonzales was the only officer present during the interview. During the interview, Gonzales left the room twice. On both occasions, he left appellant alone in the room for extended periods of time. After the interview, appellant was allowed to leave the CAC. At no time during or immediately after the conclusion of the interview, which was videotaped by Gonzales,   See Footnote 1  was appellant arrested or charged with a criminal offense.
        On June 7, 2004, CL was examined by Beth Hudson, a sexual assault examination nurse. During the SANE interview, CL recanted her previous allegations and told Hudson that her father had molested her on two occasions and instructed her to lie about it. According to Hudson's testimony:
 
Patient stated, quote, my dad sneaked up on me while I was sleeping, and he stuck his finger inside me. In parenthesis, patient describes vaginal opening, end parenthesis. Patient states this hurt a lot and I couldn't get my legs together. This happened about a month ago. I told a lie and said that Tracy, in parenthesis, my almost new dad, end parenthesis, hurt me, but he didn't. I have to tell the truth. Another time it happened again in May. I was sleeping again and he snuck up on me. This happened at George and Sandra's house where we are. My dad did not want me to tell the truth and he will be mad.
 
Hudson found no evidence of trauma to CL's vagina and the only physical injury she could find was a half-centimeter abrasion to CL's anus. Hudson explained that the absence of vaginal injury was not unusual in light of CL's allegations of digital penetration because “there's healing that occurs all the time, if there's any injury at the beginning.”
        At trial, CL described two instances of abuse. The first took place when she was in the first grade at an apartment she shared with her father. She recalled that she awoke one night and saw her father “touching” her on her vagina with his finger. The “Barbie dress” she was wearing had been “pulled up” and her panties had been removed. She did not recall that her father said anything during this incident, which lasted approximately fifteen minutes. The second incident took place at the converted garage apartment when CL was eight years old. CL said she was watching “Tom and Jerry” when her father walked over to her bed, covered his eyes with his hand, and shoved her face into the pillow. He pulled down her pants and inserted one of his fingers into her vagina. He also touched her vagina with his tongue. Appellant also “started cussing,” but CL could not recall any specific words or phrases. She remembered that she had tears in her eyes because she could not believe her father was doing this to her again. Appellant warned her not to tell anyone about the abuse “or else.”
        CL repeatedly admitted that she lied during her initial CPS interview and during her forensic interview with Jenkines. CL testified that appellant told her to lie to the CPS investigator by saying “bad things” about her mother and “good things” about him. After the CPS investigator left, appellant congratulated her on the “good job” she had done in lying to the investigator. CL also claimed that appellant told her to lie to Jenkines about being molested by her mother's boyfriend and to tell Jenkines “good things” about him and “bad things” about LL. CL feared that if she did not comply with appellant's instructions and lie to the investigators, “he would do it to me again.” CL also admitted that she lied about other false accusations she had made against boys in her neighborhood whom she claimed had tried to rape her.         Appellant was arrested on July 12, 2004, for aggravated sexual assault of a child.   See Footnote 2  On November 23, 2004, he was indicted for aggravated sexual assault of a child, indecency with a child, and sexual performance of a child. Following a jury trial, he was found not guilty of aggravated sexual assault and sexual performance of a child but convicted of indecency with a child. The jury sentenced appellant to twenty years in prison.
Discussion
        factual insufficiency
        In his first issue, appellant contends the evidence was factually insufficient to support the jury's verdict because the evidence is weak and contradictory and the evidence contrary to the verdict outweighs the evidence supporting it.
        Standard of Review
        In a factual sufficiency review, we consider all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 WL 2956272, *7 (Tex. Crim. App. Oct. 18, 2006). Before we may reverse for factual insufficiency, we must be able to say the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at *8. Under either a factual or legal sufficiency review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        Analysis
        Under count two of the indictment, the State had the burden of proving that appellant touched the genitals of a child younger than seventeen with the intent to arouse or gratify his sexual desire. See Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2005). Appellant admitted that he touched CL's vagina on two occasions. His only defense was that he did it for medical reasons rather than to arouse or gratify himself sexually.
        After carefully reviewing the record, we believe there is sufficient evidence in this record for the jury to have concluded that appellant had the necessary criminal intent. When LL first confronted appellant about CL's allegations, he responded that he may have touched her inadvertently over her clothes when they were hugging or during horseplay. Later, however, appellant spoke to LL again about the allegations and admitted that he touched CL's vagina but only for medical reasons. During the interview with Detective Gonzales, appellant provided more details and admitted that he touched CL on the skin of her vagina. He claimed this was for medical reasons because CL was complaining of a rash and itching. Additionally, appellant's only witness in his case-in-chief, Carol Long, his mother, testified that appellant asked her to inspect CL's vagina. But appellant did not mention this to either his ex-wife or to Detective Gonzales. From these changing explanations to his ex-wife and the police, the jury could reasonably infer that appellant's motives in touching his daughter's vagina were sexual and not medical. Furthermore, although CL admitted to falsely accusing other people of abusing her, she consistently stated during her testimony that the false accusations and statements to Connell and Jenkines were orchestrated by her father. The jury could reasonably infer from this testimony that appellant was attempting to ward off criminal prosecution. CL's testimony also included specific details of two instances of abuse, and these details included distinctions between locations where the abuse occurred and how it occurred. Giving appropriate deference to the jury's assessment of the evidence and its resolution of the evidentiary conflicts, and considering all of the evidence in a neutral light, we conclude the evidence is factually sufficient to support the conviction. Appellant's first issue is overruled.
         Appellant's Statement
        In his second issue, appellant contends the trial court erred by admitting his statement to Detective Gonzales into evidence because it was illegally obtained in violation of his Fifth Amendment rights “since Appellant was in custody and not given his required warnings under Art. 38.22 of the Texas Code of Criminal Procedure.” The State claims appellant failed to preserve this issue for review because his trial objection does not comport with his complaint on appeal. The State also argues the trial court did not err in admitting appellant's statement because he was not in custody when he made it.
        Background
        At trial, Gonzales was asked to testify about his interview of appellant at the CAC. Before Gonzales testified about the statement, defense counsel briefly questioned him on voir dire about the circumstances under which the interview took place. At the end of the voir, dire defense counsel did not assert any objection. When the State resumed its direct examination of Gonzales, the following exchange took place:
 
        [PROSECUTOR:] Detective Gonzales, when you were speaking with Mr. Long, did you ask him about the allegations that [CL] had made about his touching her inappropriately?
 
 
 
        [DEFENSE COUNSEL:] Judge, before we go any further, I would object to the statements that Mr. Long made to the detective. Based upon the information that he has presented to the Court, it's not clear what information was given to Mr. Long, if Mr. Long felt like he was free to leave, or he did not. I don't think that's clear before the Court. He could have felt like he was not free to leave since the officer did not give him warnings or warn him that he was free to leave at that time.
 
 
 
        THE COURT: Objections overruled.
 
        Article 38.22
        On appeal, appellant invokes the Fifth Amendment and article 38.22, arguing that his statement to Gonzales was improperly admitted because the questioning became custodial during the course of the interview and because he was not given the required statutory and constitutional warnings. To preserve a complaint under article 38.22 of the Texas Code of Criminal Procedure, however, the defendant must specifically invoke that article in his trial objection. See Thomas v. State, 723 S.W.2d 696, 699-700 (Tex. Crim. App. 1986); Greenwood v. State, 948 S.W.2d 542, 550 (Tex. App.-Fort Worth 1997, no pet.); Gonzalez v. State, 783 S.W.2d 774, 778-79 (Tex. App.-Corpus Christi 1990, no pet.).
        In this case, we do not find any indication appellant objected to Gonzales's testimony based on article 38.22. Nor is there any indication he raised this argument in a pretrial motion. Defense counsel's argument, quoted above, is the only legal objection to the admission of appellant's statement. Such an objection was too vague to alert the trial court to the particular legal objection appellant raises on appeal. Thus, we agree with the State that appellant waived his article 38.22 objection. See Gonzalez, 783 S.W.2d at 778; Greenwood, 948 S.W.2d at 550; Thomas, 723 S.W.2d at 699-700.
        We do not agree, however, that appellant waived his Fifth Amendment objection. Counsel pointed out that Gonzales “did not give [appellant] warnings or warn him that he was free to leave at any time,” which is a reference to the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). Accordingly, we believe the objection was sufficiently specific to preserve error on the Fifth Amendment portion of appellant's claim. See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). We therefore address the merits of appellant's Fifth Amendment argument.
        Miranda
        Appellant argues that the statement was inadmissible because it was taken in violation of the Fifth Amendment and Miranda. However, Miranda only applies to statements obtained through custodial interrogation. Greenwood, 948 S.W.2d at 550. We must therefore determine whether appellant was in custody when he made the statement.
        Standard for Reviewing the Admission of Appellant's Statement
        In reviewing a ruling on a challenge to the admission of evidence, we give almost total deference to the trial court's determination of historical facts and review the court's application of search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). When the trial court does not make explicit findings of historical facts, we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record. Id. We must affirm the trial court's ruling if it can be upheld on any valid theory of law applicable to the case--even if the trial court did not base its decision on the applicable theory. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002); Romero v. State, 800 S.W.2d 539, 543-544 (Tex. Crim. App. 1990).
        Custodial Interrogation
        The Supreme Court has 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. at 444. A person is in custody if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994); see Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). If an investigation is not at an accusatorial or custodial stage, a person's Fifth Amendment rights have not yet come into play and the voluntariness of appellant's waiver of those rights is not implicated. Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim. App. 1990).
        As a general rule, when a person voluntarily accompanies law enforcement to a certain location, even though he knows or should know that law enforcement suspects that he may have committed or may be implicated in committing a crime, that person is not restrained or “in custody.” Livingston v. State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987). In other words, so long as the circumstances show that a person is acting only upon the invitation, request, or even urging of law enforcement and there are no threats, either express or implied, that he will be taken forcibly, the accompaniment is voluntary and such person is not in custody. Anderson v. State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996). Becoming the focus of the investigation does not equate to custody for purposes of determining whether a statement is voluntarily given. Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990). Nor will station-house questioning alone equate to custody California v. Beheler, 463 U.S. 1121, 1124-25 (1983). However, police conduct during the encounter may cause a consensual inquiry to escalate into a custodial interrogation. Ussery v. State, 651 S.W.2d 767, 770 (Tex. Crim. App. 1983).
        The court of criminal appeals has outlined at least four general situations that may constitute custody: (1) when a law enforcement officer physically deprives a suspect of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement has been significantly restricted; and (4) when probable cause to arrest exists and law enforcement officers do not tell the suspect he is free to leave. See Dowthitt, 931 S.W.2d at 255. In the first through third situations, the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. Concerning the fourth situation, the officer's knowledge of probable cause must be manifested to the subject, and such manifestation could occur if information sustaining the probable cause is related by the officers to the suspect or by the suspect to the officers. Id. Additionally, the length of time involved is an important factor to consider in determining whether a custodial interrogation occurred. Id. at 256.         Analysis
        Bearing these principles in mind, we conclude that appellant was not in custody when he spoke to Gonzales. Appellant was interviewed for less than an hour at the CAC. He agreed to be interviewed and was never restrained in his movements. He was not told he was under arrest and was allowed to leave immediately after the interview. Furthermore, appellant was arrested more than a month after the interview. An interrogation is not custodial when a suspect arrives at the station voluntarily and is allowed to leave unhindered after his statement is taken. See Meek, 790 S.W.2d at 622 (defendant was not in custody when he came to the fire station of his own free will at a time of his choosing, was allowed to step outside the building unaccompanied during the interview, left unhindered at the end of the interview, and was not arrested or detained until five weeks later).   See Footnote 3  Such is also the case here. Considering all of the circumstances, a reasonable person in appellant's position would not have believed the police were restraining his freedom of movement to the degree associated with an arrest. Therefore, appellant was not in custody at the time he made the statement to Gonzales. Appellant's second issue is overruled.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051634F.U05
 
Footnote 1 Gonzales did not tell appellant that the conversation was being recorded. At trial, the video tape of the interview was played for the jury.
Footnote 2 The arrest warrant was issued on July 2, 2004.
Footnote 3 Appellant cites Xu v. State, 100 S.W.3d 408 (Tex. App.-San Antonio 2002, pet. ref'd), as support for suppressing his statement to Detective Gonzales. We find Xu distinguishable for several reasons. In Xu, unlike in this case, the suspect was interviewed several times during a fifteen hour period by different interviewers, had only limited command of the English language, and was not allowed to see or speak to a friend who asked to see him. Id. at 410-12, 414-15. Furthermore, the evidence suggested the suspect was permitted to leave the police station and not formally arrested after the interrogation not because he was not in custody but because the police wanted to avoid compliance with article 38.22. See id. at 415.