Antonio C. Esquivel v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00203-CR

John DOE, (1)

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 1996-CR-1809

Honorable Susan D. Reed, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 30, 2003

AFFIRMED

Defendant, a former police officer, was convicted of indecency with and aggravated sexual assault of his thirteen-year old daughter, M.E. A jury assessed punishment at eleven years' confinement on the indecency conviction and 99 years on each of the seven counts of aggravated sexual assault. On appeal, defendant asserts his pre-indictment statement was involuntary, the evidence was legally and factually insufficient, and the trial court erred in admitting expert testimony during the punishment phase on the long-term effects of child abuse. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. We affirm.

VOLUNTARINESS OF STATEMENT

In his first and second issues on appeal, defendant asserts the trial court erred in not suppressing his oral statements to Glen Mattox, a criminal investigator for the Bexar County District Attorney's Office. Defendant contends his statements to Mattox were involuntarily induced by Mattox's alleged promise that what was discussed during their conversation in the DA's office would remain confidential. Specifically, Mattox told defendant "that we would not go out into the street and talk about it or anything else." At the suppression hearing, Mattox's explanation for his statement was that "when we conduct an interview with the District Attorney's Office, that interview is private at that particular point . . . [i]t becomes public if it goes to court." Nevertheless, defendant contends he was "coerced" and "manipulated" by Mattox's interrogation technique in general. Defendant also contends his statements were involuntarily induced by Mattox's trickery because Mattox did not tell defendant he was tape recording their conversation. Defendant claims that if he had known his statements were being recorded and would be used against him, he would have ended his conversation with Mattox.

A defendant's statement may be used in evidence against him if it appears it was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. P. Ann. art. 38.21 (Vernon 1979). We determine whether a confession is voluntary based on an examination of 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). Whether the circumstances render a defendant's statement involuntary is determined by whether his will was "overborne" by police coercion. Nenno v. State, 970 S.W.2d 549, 557 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999); Creager, 952 S.W.2d at 856. Trickery or deception do not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process. Creager, 952 S.W.2d at 856; Jeffley v. State, 38 S.W.3d 847, 860 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd).

A statement is inadmissible if it was induced by the promise of some benefit to the defendant. Creager, 952 S.W.2d at 856. Id. But such a promise must be unequivocal and definite, must be made or sanctioned by a person in authority, and must be of such character as would likely influence the defendant to speak untruthfully. Id. "The fact that a friendly, supportive, low key, nonconfrontational style may prove effective in eliciting incriminating statements does not mean that the style of questioning is improper or that the resulting statements are involuntary." Gomes v. State, 9 S.W.3d 373, 379 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd).

Both defendant and Mattox testified at the suppression hearing, and the facts are not in dispute. Defendant voluntarily called Mattox, and arranged to come to Mattox's office "to find out where the case was at." At this time, defendant had not been indicted for any crime, the meeting was non-custodial, and he was not read his Miranda rights before, during, or after the meeting. When defendant first arrived at the DA's offices, Ernie Lobello was in the room with Mattox. When Mattox told defendant that Lobello was another investigator, defendant asked whether Lobello was familiar with the case because he did not want to explain what he and Mattox would be discussing. Because Lobello also was an investigator, defendant thought he was "trustworthy." At the end of the conversation, Mattox reviewed with defendant the fact that defendant had been under no obligation to come to the DA's office, he had not been read his rights, and he was free to leave at any time. Mattox admitted defendant told him, at that point, that if he had been advised of his rights he would have left the office.

On appeal, defendant asserts he understood his conversation with Mattox would remain "off the record" and his statements would not be used against him at trial. He said he trusted Mattox based on the "brotherhood" among current and former police officers. However, Mattox's statement to defendant was not an unequivocal and definite promise that nothing said in the meeting would be used against defendant at trial. We hold that the circumstances surrounding defendant's conversation with Mattox were not of such a nature as to override his free will or influence him to speak untruthfully.

As for the tape recording, Mattox admitted he recorded the conversation without defendant's knowledge or consent. The recorder was in plain view in the room, but Mattox turned it on before defendant arrived, and when the tape ran out, he did not turn it over to a new side because he did not want defendant to know about the recording. On appeal, defendant concedes that Mattox could have recorded the conversation without his knowledge or consent, but he argues that Mattox's promise that the conversation would remain in the DA's office led him to believe Mattox was not recording a conversation that would later be used against him.

An officer's intentional concealment of a recording device to "trick" a suspect into making a recorded statement does not render the suspect's oral confession inadmissible. See Moore v. State, 882 S.W.2d 844, 846 (Tex. Crim. App. 1994); see also Hernandez v. State, 938 S.W.2d 503, 506 (Tex. App.--Waco 1997, pet. ref'd) (police officer's recording of telephone conversations with defendant did not violate wiretap statute because officer was acting under color of law and was party to conversations). Because Mattox was a party to the taped conversation and knew the conversation was being taped, the statement was not rendered inadmissible merely because defendant was unaware of the recording.

We hold that, under the totality of the circumstances, defendant's conversation with Mattox did not result in an involuntary statement. Accordingly, the trial court did not abuse its discretion in denying the motion to suppress.

JURY INSTRUCTION

In his third issue, defendant asserts the trial court erred by not instructing the jury on the voluntariness of his statement. On appeal, defendant concedes this error was not preserved for review; however, he contends he suffered egregious harm because his statements were the only independent corroborating evidence, apart from M.E.'s testimony, linking him to the sexual abuse. "The determination of whether a statement is voluntary is a mixed question of law and fact, i.e., an application of law to a fact question." Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). Article 38.23 of the Code of Criminal Procedure requires the trial court to instruct the jury to disregard any evidence obtained illegally if the defendant requests the instruction and raises a fact issue concerning the manner in which the evidence was obtained. See Tex. Code Crim. P. Ann art. 38.23(a) (Vernon Supp. 2002). As a threshold issue, the State asserts that because the facts here are undisputed, article 38.23 was not implicated. We agree.

A trial court is required to give an article 38.23 instruction to the jury only if there is a factual dispute as to how the evidence was obtained. Balentine v. State, 71 S.W.3d 763, 773-74 (Tex. Crim. App. 2002); Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986). Here, the relevant facts are not in dispute. Defendant initiated the conversation with Mattox, Mattox admitted he told defendant their conversation would "remain in the DA's office," and defendant was not told the conversation was being recorded. The only remaining question was one of law: whether the totality of the circumstances demonstrated voluntariness. See State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633 (Tex. 2000) ("[A]ssessing whether the trial court's findings demonstrate voluntariness under the totality of the circumstances . . . is a question of law."). Because the facts surrounding the conversation between Mattox and defendant are not in dispute, an article 38.23 instruction was not required. Therefore, the trial court did not err by not including such an instruction in the jury charge.

Defendant was charged with seven counts of aggravated sexual assault. The State was required to prove beyond a reasonable doubt that defendant committed the offense of sexual assault by intentionally and knowingly causing M.E.'s sexual organ to contact defendant's mouth without M.E.'s consent or intentionally and knowingly causing the penetration of M.E.'s sexual organ without M.E.'s consent. Tex. Pen. Code Ann. 22.021(a)(1)(A) (Vernon Supp. 2003). To elevate the offenses to aggravated sexual assault, the State charged two alternative aggravating elements: that defendant committed the offense of sexual assault (1) by acts and words placing M.E. in fear that death and serious bodily injury would be imminently inflicted on her, or (2) by acts and words occurring in M.E.'s presence threatened to cause her death or serious bodily injury. Id. 22.021(a)(1)(A), (a)(2)(A)(ii), (iii). In his fourth and fifth issues, defendant contends the evidence is legally and factually insufficient to prove lack of consent through threats of force or violence and to prove either of the two aggravating elements. Defendant asserts that, while he may have obtained M.E.'s submission by manipulating her with compliments about her beauty, taking her to events, and buying her gifts, there is no evidence he threatened her with force or violence. We disagree.

In the context of an aggravated sexual assault, the victim's state of fear is normally established through her own testimony. Brown v. State, 960 S.W.2d 265, 268 (Tex. App.--Corpus Christi 1997, no pet.). The defendant's conduct, i.e., acts, words, or deeds, is then examined to determine whether it was the producing cause of such fear and whether the subjective state of fear was reasonable in light of such conduct. Id.; Lewis v. State, 984 S.W.2d 732, 735-36 (Tex. App.--Fort Worth 1998, pet. ref'd). The jury may infer from the totality of the circumstances whether a defendant's overall conduct placed the victim in fear of serious bodily injury. Grunsfeld v. State, 813 S.W.2d 158, 162 (Tex. App.--Dallas 1991), aff'd, 843 S.W.2d 521 (Tex. Crim. App. 1992). The aggravating element may come primarily from the nature of the defendant's acts and the depth of the victim's fear. Dacquisto v. State, 721 S.W.2d 603, 604 (Tex. App.--Amarillo 1986, pet. ref'd). However, the words and conduct must amount to more than the quantum of forcefulness needed for a simple sexual assault conviction. Douglas v. State, 740 S.W.2d 890, 891 (Tex. App.--El Paso 1987, no pet.).

M.E., who was thirteen years old when the sexual assaults began in 1992, (2) testified about her fear of her father and how easily he would lose his temper. She said she "knew what the consequences would be" if she did not submit to him; she "knew something would happen" if she said anything; and she was afraid he would kill her if she said anything. M.E. explained that, "whenever my sister would get into arguments [with their father], he would, like, slap her and stuff, and beat her up. I was just afraid that something like that would happen to me if I didn't do something right." She said she was afraid of her father but she did not tell anyone about what was happening because "he would beat me up or plain out kill me." During a 1993 trip to Canyon Lake, M.E. and her father stayed at a motel. M.E. testified that, because she "said something wrong," her father hit her, slammed her up against the wall, and threw her on the bed. They had intercourse on that occasion.

One night, while her father was on-duty and still wearing his uniform, gun, and police radio, he came home, went into M.E.'s bedroom, and touched her. M.E. said she was afraid of her father always carrying his gun with him because he once held the gun to her sister's head. M.E.'s sister testified her father held his gun to her head because some of her friends had toilet-papered a house in the neighborhood and her father "pulled out his gun and pointed it to my head and told me if I ever hung out with those kids, or if those kids decided to do anything else in the neighborhood, that that is what they'd be looking at. And, he had the gun pointed to my head. It was that kind of threat."

Although M.E. admitted defendant did not use verbal threats to force her into submission, we hold that M.E.'s subjective fear was reasonable in light of defendant's acts and words occurring in her presence and that defendant's acts and words were the producing cause of that fear. Accordingly, based on our review of the entire record, we hold there is legally and factually sufficient evidence to support the jury's verdict.

EXPERT TESTIMONY DURING PUNISHMENT PHASE

In his sixth issue on appeal, defendant asserts the trial court erred in allowing Janet Morocco to testify about the long-term effects of childhood sexual abuse. Defendant first contends Morocco was not qualified as an expert in this field. An expert may be qualified to testify if the expert has special knowledge derived from the study of technical works, specialized education, practical experience, or a combination of the above. Clark v. State, 881 S.W.2d 682, 698 (Tex. Crim. App. 1994). Morocco has worked for five years as a counselor and social worker for the Alamo Children's Advocacy Center, where she has counseled sexually abused children. She has a bachelor's degree and a master's degree in social work, and her areas of study include social work, counseling, clinical work, and psychology. We conclude the trial court did not abuse its discretion in determining that Morocco was qualified to testify.

Defendant also asserts the trial court erred in allowing Morocco to testify because there was an insufficient basis for her opinion. When a witness is an expert in a social science or a field that is based primarily on experience and training, we apply a less rigorous reliability test to the witness's theory than we apply to a witness's theory in a hard science. Nenno, 970 S.W.2d at 561. When addressing fields of study aside from the physical sciences, we ask the following questions: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert's testimony is within the scope of that field, and (3) whether the expert's testimony properly relies upon and/or utilizes the principles involved in the field. Id. On appeal, defendant asserts the record does not indicate Morocco relied on principles involved in the field of research concerning the behavior of sexually-abused children, the third element of the Nenno test.

At trial, Morocco testified that her opinion in this case was based on her experience working with children and her continued study of child sexual abuse. Although she has not conducted any research herself on the long-term effect of child sexual abuse, Morocco said she attended professional conferences, where she listened to "other people, other experts and doctors who have worked with this long term, who work in therapy, who work in the police department, all of the professionals that get involved when this type of crime happens to a child."

Defendant relies on Perez v. State, 25 S.W.3d 830 (Tex. App.--Houston [1st Dist.] 2000, no pet.), to argue that Morocco's testimony was not reliable because her opinion was not based on her personal experience, and instead was based on information she learned from other professionals in the field. In Perez, the State called Trudy Davis as a rebuttal witness to testify about the five stages of "child abuse accommodation syndrome." Id. at 832. Davis's testimony was based on her study of the writings of Dr. Roland Summit, a pediatric psychologist. Id. The court of appeals found the trial court erred when it allowed Davis to testify as an expert about Dr. Summit's findings. Id. at 837-38. However, later, in Hernandez v. State, 53 S.W.3d 742, 751 (Tex. App.--Houston [1st Dist.] 2001, no pet.), the Houston court of appeals limited its holding in Perez to "Davis's testimony about a psychiatrist's theories of pediatric psychiatry and [we] did not address the admissibility of her own opinions based on her own experiences as an expert." Id. at 751 (quoting Perez, 25 S.W.3d at 838 & n. 2). The Hernandez court also noted that in Perez it applied the more detailed inquiry concerning the reliability of scientific, rather than nonscientific, expert testimony. Hernandez, 53 S.W.3d at 751 (citing to Perez, 25 S.W.3d at 836-38).

Here, Morocco based her opinion on her own experience and the knowledge she gained from reading relevant literature and attendance at professional conferences. We conclude the trial court did not abuse its discretion in allowing Morocco's testimony into evidence.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. The court grants appellant's motion to use the pseudonym "John Doe" in place of his name in the style of this opinion.

2. The assaults ended in 1995, when M.E. was sixteen. She was seventeen at the time of trial.