Rafael Rodriguez, Jr. v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00615-CR
Rafael RODRIGUEZ, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-4742
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 7, 2003

AFFIRMED

Rafael Rodriguez, Jr. appeals his conviction of manslaughter. Because the issues in this appeal are settled by existing precedent, we affirm the trial court's judgment in this memorandum opinion. Tex. R. App. P. 47.4.

1. Rodriguez contends that the trial court abused its discretion in admitting his statements to Bethany Baker, an investigator with the Texas Department of Protective and Regulatory Services ("DPRS"). Rodriguez contends that his statements to Baker were inadmissible because Baker was acting as an agent for the State when she questioned Rodriguez. Baker would only be considered a state agent if the record establishes that when Baker questioned Rodriguez she was "utilizing her capacity so as to accomplish what the police could not have lawfully accomplished themselves." Cates v. State, 776 S.W.2d 170, 172 (Tex. Crim. App. 1989). In this case, the record establishes that when Baker spoke with Rodriguez she was engaged in conducting a child abuse investigation, and any incriminating responses she elicited were exclusively for a legitimate purpose other than law enforcement. See id.; see also State v. Hernandez, 842 S.W.2d 306, 314 (Tex. App.--San Antonio 1992, pet. ref'd). Baker explained that she spoke with Rodriguez based on DPRS protocol that required her to visit with both parents, explain the process of the DPRS investigation, and alert Rodriguez as to what DPRS would be trying to do to help the family through the situation. Accordingly, Baker was not acting as a state agent, and the trial court did not err in admitting Rodriguez's statements to Baker.

2. Rodriguez asserts that the trial court erred in submitting a deadly weapon issue as a sentencing factor as opposed to an element of the offense, citing for support Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002). We agree with the State that a deadly weapon finding is not an element of the offense because the finding does not "expose [Rodriguez] to a greater punishment than that authorized by the jury's guilty verdict." Apprendi, 530 U.S. at 495. A deadly weapon finding does not increase the range of punishment but only requires that the defendant serve at least one-half of his sentence before being eligible for release on parole. See Tex. Gov't Code Ann. 508.145 (Vernon Supp. 2002). Because the jury responded affirmatively to the special issue regarding the use of a deadly weapon during the punishment stage of trial, the trial court was permitted to include a deadly weapon finding in the judgment. Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985).

3. Rodriguez further contends that the trial court erred in denying his challenge of a venire member for cause. In response to questioning by defense counsel, the venire member stated that she did not think she could be fair because of the age of the victim. Upon further questioning by the State, the venire member stated that she could be fair and could believe Rodriguez was innocent until the evidence proved otherwise. In response to additional questioning by defense counsel, the venire member stated she could be fair. The trial judge then questioned the juror, telling her that her responses had been inconsistent and he needed to ensure that she could be fair. The venire member responded that she thought she could be fair. Although the venire member initially equivocated on her answer, she ultimately stated that she could be fair; therefore, the trial court did not err in refusing to strike her for cause. Ramirez v. State, 87 S.W.3d 703, 705 (Tex. App.--San Antonio 2002, no pet.); Marx v. State, 953 S.W.2d 321, 333 (Tex. App.--Austin 1997), aff'd, 987 S.W.2d 577 (Tex. Crim. App. 1999).

4. In his final issue, Rodriguez requests that we abate this appeal for the trial court to enter findings of fact and conclusions of law with regard to whether his statements were voluntarily made. Although Rodriguez generally asserted that he was illegally interrogated in his pre-trial motion to suppress, the only argument made by defense counsel at the pre-trial hearing was whether the warnings Rodriguez was provided with regard to his Miranda rights were correct. Defense counsel did not present any argument with regard to the voluntariness of Rodriguez's statements; therefore, the issue is not preserved for purposes of appeal. See Tex. R. App. P. 38.1(h). In addition, we note that no point of error was advanced challenging the admissibility of the statements on the ground that they were involuntary. See Agnew v. State, 917 S.W.2d 282, 283 (Tex. Crim. App. 1996) (Keller, P.J., dissenting).

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH