JAVIER GOMEZ RODRIGUEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 20, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01125-CR
............................
JAVIER GOMEZ RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-54076-NR
.............................................................
OPINION
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice Whittington
        Javier Gomez Rodriguez appeals his conviction for aggravated sexual assault of L.E., a child younger than fourteen years of age. After finding appellant guilty, the jury assessed punishment at six years' confinement and a $10,000 fine. In three issues, appellant claims the trial judge erred in denying his motion to suppress and that the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
Motion to Suppress
 
        In his first issue, appellant claims the trial judge erred in denying his pretrial motion to suppress his written and oral statements. Under this issue, appellant contends the officers interrogating him did not give him the Miranda   See Footnote 1  warnings until after he had given his statements. He further argues that, even assuming they did give the appropriate warnings, his “will was overborne by the circumstances surrounding the giving of a confession” as he was “in total fear of the officers” interrogating him.
        At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). We review a trial judge's ruling on a motion to suppress under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give “almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.” Amador, 221 S.W.3d at 673 (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We give the same level of deference to a trial judge's ruling on “application of law to fact questions” or “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673 (quoting Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006)). We review de novo “mixed questions of law and fact” that do not depend upon credibility and demeanor. Amador, 221 S.W.3d at 673. When, as here, the trial judge does not make explicit findings of fact in ruling on a motion to suppress evidence, 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 by the record.” Amador, 221 S.W.3d at 673 (quoting Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)); see Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000).
        At the hearing on the motion to suppress, Detective Vidal Olivarez testified he was contacted about this case on June 24, 2005 and interviewed appellant that same day. According to Detective Olivarez, he advised appellant of his Miranda rights around 2:14 p.m. by reading those rights to appellant from the Miranda card. Appellant told the detective he understood those rights and would speak to him after he signed the card. Appellant then placed his initials on the left-hand column of the card by sentences one through five and signed the top of the card. The card, State's Exhibit #3, is printed in Spanish and bears the handwritten notations “6/25/05” and “2:14 p.m.” in two separate handwritings. Detective Olivarez again advised appellant in writing of his rights when appellant wrote out his statement. Once appellant finished his written statement, Detective Olivarez turned on a tape recorder and read out loud appellant's handwritten statement, beginning with the Miranda rights printed at the top of each page. When the detective finished reading appellant's written statement back to appellant, he asked appellant whether he had been treated with respect. Appellant responded, “Yes.” He then asked appellant if everything that he had written in that statement was true, and appellant again responded, “Yes.” Detective Olivarez testified he did not threaten or force appellant, nor did he make appellant any promises. Appellant's written statement is dated 6/24/05 and bears the notation “3:04 p.m.”.
        Thereafter, Detective Olivarez and another officer, Detective Gregory Dugger, accompanied appellant to three locations (a motel room, a Walgreen's store, and a pond on a golf course) where he and L.E. had been together. During that time, appellant was very cooperative. Detective Olivarez testified he did not physically harm, threaten, coerce, or make any promise to appellant in exchange for appellant's statements or his showing the officers the three locations.
        Detective Duffer testified he accompanied Detective Olivarez and appellant. Although he did not speak Spanish and therefore could not understand what Detective Olivarez and appellant said, Detective Dugger testified appellant's demeanor was cooperative. Appellant did not appear to be impaired nor did it appear Detective Olivarez threatened or coerced him in any way.
        In contrast, appellant testified Detective Olivarez pressured him by talking “strongly and moving the chair” and looking at appellant “very harsh.” Appellant claimed he was afraid the officer could get upset, pick up a chair, and hit him with the chair. He testified Detective Olivarez had a “yellow gun supposedly that gives you electric shocks” and that he threatened appellant while they were in the car driving around. Appellant testified he wrote his statement but claimed he did so only because Detective Olivarez threatened him with the chair. During cross-examination, appellant conceded that the detective picked the chair up “slightly off the ground” before he sat down to question appellant. He also conceded Detective Olivarez did not hit, punch, scratch, or kick him and that he did not use an electric shock gun on him. He identified his initials and signature on the Miranda card but claimed Detective Olivarez only read those rights to him after he gave a written statement. Appellant also conceded that, after writing out his statement, Detective Olivarez asked him if he had been forced and appellant responded, “No.” When asked if everything in the statement was true, appellant answered, “Yes.”
        Viewing the circumstances as a whole and giving deference to the trial judge's implied findings, we conclude the evidence established appellant's oral and written statements were freely and voluntarily given. The trial judge did not abuse his discretion in denying appellant's motion to suppress.
        Appellant also claims the suppression issue was “consensually re-litigated by the parties during trial” and that the entire record does not support the decision to deny his motion to suppress. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (when suppression issue has been consensually relitigated by parties during trial, it would be unreasonable to ignore trial evidence in review of trial judge's suppression decision only to be confronted by evidence in consideration of whether error was harmless). Following the hearing, appellant sought and was granted a running objection with respect to his oral and written statements and all evidence obtained as a result of the statements. We have reviewed the entire record and have discovered no evidence, other than that evidence already detailed above, to support appellant's claim that his written and oral statements were not freely and voluntarily given. Appellant has not discussed or cited us to what additional evidence, adduced during guilt/innocence, supports his contentions.
        At the conclusion of the guilt/innocence portion of trial, the jury was instructed not to consider any statement or evidence obtained as a result of his statements if it (i) found from the evidence that Detective Olivarez failed to warn appellant of his Miranda rights or (ii) had a reasonable doubt that the officer warned appellant his Miranda rights. By finding appellant guilty as charged, it is reasonable to conclude the jury implicitly rejected appellant's claim that his statements were coerced and not freely given. Under these facts and circumstances, we cannot conclude the trial judge abused his discretion in denying appellant's motion to suppress. We overrule appellant's first issue.
Legal and Factual Sufficiency
 
        In his second and third issues, appellant claims the evidence is legally and factually insufficient to support his conviction. Under these issues, appellant argues there is no evidence he caused contact or penetration of L.E.'s female sexual organ; appellant does not challenge the sufficiency of the evidence to support the remaining elements.
        In addressing legal sufficiency complaints, we apply well-known standards: we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The reviewing court must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214 S.W.3d at 13 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
        Evidence that rationally supports a guilty verdict beyond a reasonable doubt under the legal sufficiency standard can still be factually insufficient. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625. The difference between the legal and factual sufficiency standards is that “the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions 'albeit to a very limited degree.'” Rollerson, 227 S.W.3d at 724 (quoting Marshall, 210 S.W.3d at 624); Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006)). A “factual-sufficiency review is 'barely distinguishable' from a Jackson v. Virginia legal sufficiency review.” Rollerson, 227 S.W.3d at 724 (quoting Watson, 204 S.W.3d at 415).
        A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes (i) the penetration of the child's sexual organ by any means or (ii) the child's sexual organ to contact his sexual organ, and the child is younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (iii); (2)(B) (Vernon Supp. 2007). A child victim's testimony alone is sufficient to support a conviction for aggravated sexual assault. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas, pet. ref'd); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.-Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.)).
        In this case, the jury was charged to find appellant guilty if the jury found “from the evidence beyond a reasonable doubt” that appellant did “intentionally or knowingly cause the contact or penetration of the female sexual organ of [L.E.]” who was not appellant's spouse and was younger than fourteen years of age at the time of the offense. At trial, L.E. testified she met appellant when he drove by her house. She liked appellant because he made her laugh. She told him she was fourteen years old although she was really ten or eleven years old at the time. She thought appellant was twenty or twenty-one years old. Appellant told her he wanted to go out with her. The first time they went somewhere together was a park where they went fishing. Later, she left her house with appellant for a longer period. They had planned to go to his sister-in-law's house but went to motel instead. During the day, they went places, including to the park where they went fishing. L.E. testified that the first night together, they had sexual relations. According to L.E., they were at the park. They had taken off their clothes and appellant “was laying on top of” her. His penis touched her “private part” and went inside her. She liked appellant and considered him her boyfriend but made him stop because it hurt. L.E. testified they had sex two or three times. At the motel, appellant videotaped her on the bed. She was wearing only a white T-shirt at the time. Appellant talked to L.E. about getting married. L.E. testified she and appellant both wanted her to be pregnant and that he bought her a pregnancy test after they had sex. L.E. testified that, after the police took appellant away, it was hard because she still liked appellant and considered him her boyfriend. He called her from jail and wanted her to testify that she had told him she was eighteen years old.
        Appellant testified he arrived in the United States when he was twenty-five years old and, at the time of trial, had been here three years. According to appellant, he met L.E. when he was driving by her house. Appellant testified he took L.E. out to restaurants, downtown, and church and that they went fishing as well. L.E. told him she was eighteen years old. Appellant testified he did not have sex with L.E. He bought her the pregnancy test because she was dizzy and felt sick, and he thought she might already be pregnant from a previous boyfriend. But she told appellant her boyfriend had been gone for at least a month. Appellant testified he wanted to have sex with L.E. but would not do so until he knew she was not pregnant. According to appellant, L.E. got undressed at the motel but he did not undress her nor did he touch her. He videotaped her but stopped when she got mad.
        Viewed in the light most favorable to the judgment, the evidence shows L.E. was younger than fourteen years of age at the time appellant took her to a park and a motel. L.E. testified she and appellant had sexual relations at the park and that his penis touched her private part and entered her. This evidence establishes appellant caused “the contact or penetration” of L.E.'s female sexual organ. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for aggravated sexual assault of a child younger than fourteen years of age. Furthermore, after reviewing all the evidence in this case, we cannot conclude that the great weight and preponderance of evidence contradicts the jury's verdict. Although appellant denied contacting or penetrating L.E.'s sexual organ, L.E. testified to the contrary. Thus, the jury was rationally justified in finding guilt beyond a reasonable doubt. We conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second and third issues.
        We affirm the trial court's judgment.
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061125F.U05
 
Footnote 1 See Miranda v. Arizona, 384 U.S. 436 (1966).