Gordon Takeo Satoh v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-079-CR

GORDON TAKEO SATOH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 21,716-272

O P I N I O N

Gordon Takeo Satoh entered a plea of guilty to a jury to the charge of aggravated sexual assault. See Tex. Penal Code Ann. 22.021 (Vernon 1989). The jury found him guilty and assessed punishment at sixteen years in prison and restitution of $3,000. Satoh appeals on four points. He alleges that the court erred in denying his motion to suppress, in allowing the State to present undisclosed rebuttal witnesses, and in submitting the case to the jury in a non-bifurcated trial. He also complains that the evidence is insufficient to sustain the conviction for aggravated sexual assault because there was no evidence of the child's age. We will affirm the judgment.

FACTS

Keith Wiley, an exterminator, was treating the Doux Chene apartments on October 22, 1992. Wiley testified that, while in Satoh's apartment, he saw a photo album lying open on a drafting table. The album contained two Polaroid photographs of Satoh and a young boy engaged in oral sex. Wiley warned Suzanne Whipkey, the apartment manager, not to let her son go near Satoh's apartment. Whipkey contacted the police. After speaking with Whipkey and Wiley, the police secured a search warrant. A search of Satoh's apartment revealed additional picture albums with photos of young boys in the nude or in swimsuits.

MOTION TO SUPPRESS

In his first point, Satoh asserts that the court erred in denying his motion to suppress. He argues that the search warrant, which did not specifically name Wiley, failed to allege sufficient facts to establish Wiley's reliability as a confidential informant. The State argues that Wiley was not a confidential informant but rather is a private citizen; thus, his reliability need not be alleged.

The affidavit in support of the search warrant states in part:

On October 23, 1992, at approximately 9:30 am, Affiant spoke in person to a man who told me that he had been inside apartment number 349 of the Doux Chene apartments on the afternoon of October 22nd, 1992. The man told me that he had been inside the apartment performing routine preventative maintenance as a representative of the management of Doux Chene Apartments.

The man told me that while in the apartment he saw an opened photo album, located on a drafting table in the only bedroom of the apartment. He said that the photos which were in open view were of a nude boy with an erect penis, and one photograph depicted a person, whom the man knows by sight as the resident of apartment 349, with the penis of the child [ ] in the resident's mouth. According to the man, the child appeared to be between 10 to 12 years old.

The man told me that he also saw several other photo albums in the open drawer of a metal filing cabinet sitting next to the drafting table in the bedroom. He did not open these albums.

I spoke to the manager of Doux Chene apartments, Suzanne Whipkey, who told me that the person renting and living in apartment number 349 since 1990 is Gordon Takeo Satoh. Ms. Whipkey also told me that the man who saw the photos and spoke to me about those photographs has worked for Doux Chene apartments for several years, and has always been reliable. Ms. Whipkey told me that in the past Satoh has told her about a young boy named Josh with whom he spent time and who has spent time with Satoh in his apartment. Ms. Whipkey told me that, at the end of August, Satoh told her that Josh had moved to the Galveston area. Ms. Whipkey told me that she believes Satoh is involved with a church youth group, but she had no specific knowledge on this point.

A search warrant may not issue unless it is based on probable cause. Hughes v. State, 843 S.W.2d 591, 593 (Tex. Crim. App. 1992); U.S. Const. amend. IV; Tex. Const. art. I, sec. 9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 1994). Probable cause sufficient to support a search warrant exists if the facts contained within the four corners of the affidavit and the reasonable inferences drawn therefrom justify the magistrate's conclusion that the object of the search is probably on the premises at the time of issuance. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986).

Under the Fourth Amendment, an affidavit is sufficient to establish probable cause if, from the totality of the circumstances, the magistrate is provided with a substantial basis for determining that probable cause exists. Illinois v. Gates, 462 U.S. 213, 239-40, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983). Although an informant's "reliability" and "veracity" are highly relevant, probable cause is a fluid concept, to be applied in a common sense, nontechnical manner. Id. 462 U.S. at 232-33, 103 S. Ct. at 2328-29. Texas adopted the Gates formulation for probable cause in 1983 and continues to apply the totality of the circumstances test today. See Hennessy v. State, 660 S.W.2d 87, 89 (Tex. Crim. App. [Panel Op.] 1983); Amos v. State, 819 S.W.2d 156 (Tex. Crim. App. 1991), cert. denied, U.S. , 112 S. Ct. 1959, 118 L. Ed. 2d 561 (1992).

Our review of the sufficiency of the affidavit is not a de novo review. The magistrate's determination of probable cause should be given great deference by the reviewing court. Gates, 462 U.S. at 237, 103 S. Ct. at 2331.

The Supreme Court has long recognized that informants' tips may vary greatly in their value and reliability. Id. 462 U.S. at 233, 103 S. Ct. at 2329. When a magistrate is evaluating information from a paid police informant, the magistrate must be advised of the underlying circumstances which establish the informant's veracity. Typical paid police informants provide information, not in the spirit of a concerned citizen, but in exchange for payment or other concessions. Also, the paid informant is typically in the criminal milieu and intimately involved with the persons informed upon and the criminal conduct at hand. U.S. v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972). Because the veracity of such an informant is assumed to be lacking, the police officer must demonstrate to the magistrate the informant's reliability. This may be done, for example, by citing the past instances in which the informant's information has proven reliable.

Texas properly draws a distinction between a paid police informant and the average citizen who provides information to the police because they are a victim or witness to a crime. "The reasons for detailing the basis for an officer's belief in information gained from an undisclosed informant simply do not apply where a private citizen, whose only contact with the police or criminal activity is a result of having witnessed a single criminal act committed by another, furnishes law enforcement officials with information and vouches for such information by allowing the officers to use his name." Frazier v. State, 480 S.W.2d 375, 379 (Tex. Crim. App. 1972); see also Esco v. State, 668 S.W.2d 358 (Tex. Crim. App. [Panel Op.] 1982); Hennessy, 660 S.W.2d at 91. A citizen who tenders his name to the police and gives sufficiently detailed information carries an indicia of reliability. Wood v. State, 573 S.W.2d 207, 216 n.2 (Tex. Crim. App. 1978).

In the instant case, the affidavit in support of the search warrant was based on information supplied by a man known to the police but unidentified in the affidavit. Unlike an anonymous tip, this situation creates fewer doubts with respect to the matter of veracity. See Wayne R. LaFave, Search & Seizure, section 3.4(a), at 598 (1978).

Under the specific facts, we hold that the affidavit supplied the magistrate with sufficient underlying circumstances to establish the citizen-informant's reliability. We overrule point one.

SUFFICIENCY OF THE EVIDENCE

In his second point, Satoh argues that there is no evidence to establish the child-victim's age and thus the evidence is insufficient to support a conviction for aggravated sexual assault. He cites article 1.15 of the Code of Criminal Procedure for the proposition that, although he pleaded guilty, the State was required to introduce sufficient evidence of his guilt. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 1994). Article 1.15 provides that the evidence may be stipulated if the defendant "consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses" and further consents to an oral stipulation of the evidence or the introduction of affidavits to support the judgment. The State argues that article 1.15 is inapplicable to guilty pleas to a jury. See Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986).

Satoh signed a document entitled "Defendant's Plea of Guilty, Waiver, Stipulation and Judicial Confession." However, he scratched through the word "waiver" in the caption. He also marked through several paragraphs regarding waiver of certain rights including the reading of the indictment, the right to a jury trial, and the right to remain silent, and deleted paragraph six which states:

However, I desire to WAIVE and do waive the following rights:

. . .

6. Waive the right to be confronted with the witnesses against me and request the approval of the Court to the stipulation of the evidence by waiving the appearance, confrontation and cross-examination of witnesses, and by my further consenting to the introduction of testimony and evidence by stipulation into the record by the attorney for the State, by oral stipulation, or by written statements of witnesses and any other documentary evidence.

Below this, however, the document contains the following paragraph that was not deleted:

I do further admit and judicially confess that I unlawfully committed the acts alleged in the indictment/information in this cause at the time and place and in the manner alleged and that such allegations are true and correct, and that I am in fact GUILTY of the offense alleged.

The indictment alleged that Satoh intentionally and knowingly caused the sexual organ of Josh, a child younger than fourteen years of age, to contact his mouth. Satoh pleaded guilty to the jury and did "admit and judicially confess" that he committed the act as alleged in the indictment and was "in fact GUILTY of the offense alleged." In felony cases, a plea of guilty to the jury admits the existence of all necessary elements to establish guilt. Darden v. State, 430 S.W.2d 494, 495 (Tex. Crim. App. 1968). After Satoh pleaded guilty to the jury, the State then introduced testimony to enable the jury to intelligently exercise its discretion in assessing punishment. See Ex parte Williams, 703 S.W.2d at 678. In addition to Satoh's written admission that he committed the act as alleged in the indictment, the jury had before it the photographs. We believe the evidence was sufficient to establish the aggravated sexual assault. We overrule point two.

REBUTTAL WITNESSES

In his third point, Satoh complains that the court abused its discretion in permitting the State to introduce testimony of two rebuttal witnesses whose names had not previously been disclosed to defense counsel. Satoh filed a pretrial discovery motion asking, among other things, for the State to produce "[a] list of any witnesses the State may intend to call in the trial of this cause, in its case in chief, or as rebuttal or impeachment witnesses or in connection with the issue of punishment." The court did not rule on the discovery motion. Rather, the parties apparently reached some sort of agreement.

In rebuttal, the State sought to call M.B. Flippen, a psychotherapist, and Joseph Bon-Jorno, the coordinator of the state prison's sex offender treatment program. The State had not disclosed the names of the men as potential rebuttal witnesses. The prosecutor explained that she had agreed to give Satoh a witness list "prior to voir dire not limited as to rebuttal witnesses. . . ." The court questioned the prosecutor on her definition of a "rebuttal witness."

[STATE]: Witnesses who I did not know that I would need to call until I saw what their case-in-chief was. I didn't want this to turn into a battle of experts and I was not planning to call anybody to talk about that unless they wanted to make it an issue which in fact they did.

[COURT]: Did you have a witness identified to call in quote "rebuttal" end quote to their expert if they called one?

[STATE]: I had M.B. Flippen and [defense counsel] was aware that I had already talked to Mr. Flippen about the case. [Defense counsel] was aware of that because he had also contacted Mr. Flippen about testifying and he explained to [defense counsel] that he had already spoken to me about the case and he didn't think it would be appropriate to listen to him talk about the case also so he stopped him before he went into the details of the case is my understanding from discussions with Mr. Flippen.

[COURT]: Would you assert that [defense counsel] was aware that you had intended to call Mr. Flippen as a witness?

[STATE]: I don't know if they were aware I had intended to call him. They were aware that I had spoken to him about the case. But I wasn't aware that I would call him as a witness until I saw that they had expert testimony regarding pedophiles.

[COURT]: When were you aware of that?

[STATE]: When they called Dr. Dave.

[COURT]: Not before?

[STATE]: No, last Friday when we had the motion for continuance, they had some female expert who was supposed to come to my office and look at the evidence. I knew that Dr. Dave had been seeing the defendant, but also knew that Dr. Dave was not anxious to testify in this case and they were trying to find another expert. When she didn't show up to examine the evidence in my office on Friday, I didn't know what their position was going to be as far as expert witnesses went and I didn't know if I would need to call my expert because I didn't plan to call my expert unless they called somebody to testify regarding pedophiles.

Defense counsel explained that, as he understood it, the State had agreed to give Satoh what he had requested in his discovery motion. // Although he was aware that Flippen was a "possibility," "when [the State] gave me the list I thought . . . they were complying with the deal, so I didn't voir dire specifically on Mr. Flippen because I didn't think there was any need to. And for all I know, there may be somebody there on that jury that's a client of his, patient of his, and knows him socially or something like that."

The court continued questioning defense counsel and the prosecutor:

[COURT]: Since the State did not know for sure whether the defense was going to call an expert in this case, it remained a possibility that the defense was going to call an expert in the case. And if the State, if the defense did call an expert, it was your intent to call Mr. Flippen as your rebuttal expert witness.

[STATE]: Yes, it was.

[COURT]: That being the case, why did you not give his name as a potential witness prior to voir dire?

[STATE]: Because pursuant to the agreed pretrial order, I was not obligated to give his name since I had stipulated that I would provide a list of the witnesses. That was not limited as to rebuttal witnesses. And I didn't think that it was that I was obligated to give his name.

[COURT]: Well, we've got one of those complicated situations here. If I had made the ruling in a contested discovery hearing, what I would have ruled was or would be that it doesn't make any difference where you call them in the order of trial, case-in-chief or rebuttal, if you've identified them as potential witnesses that you may or may not call during the course of the trial, then you're obligated to share them with the defense so that the defense can exercise [its] legitimate right of talking to the jury about any connections they might have with that potential witness. And if I had made that ruling if presented to me, then you would be in violation of it. But we have a different situation in this case because I did not make a ruling, but the lawyers apparently came in and said quote "we've agreed" unquote. A dangerous shortcut that we sometimes indulge and what you have agreed to is based on your interpretation of what a quote "rebuttal witness" is unquote. I don't believe it's ever a reasonable interpretation of that term to mean that merely because you intend to call them in rebuttal that you can shield them from disclosure. If you had the pretrial intent to call a witness, they are not immune from disclosure. Now, the rebuttal exception comes into play when you first determined the need for rebuttal testimony during the course of the trial and then have to go out and find it and you could not have known about it in advance. That's the exception to pretrial disclosure of potential witnesses. I don't think any other rule makes sense. But here we have an agreement. So, I'm going to permit the man to testify.

On the defendant's motion showing good cause, the court may order the State to produce evidence in its possession material to the action. Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon 1979). This right of limited discovery is independent of the defendant's constitutional right of access to exculpatory evidence. Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990). A defendant does not have a general right to discovery of evidence in the State's possession. Id. Decisions involving the pretrial discovery of evidence which is not exculpatory, mitigating, or privileged are within the court's discretion. Id.

Because the parties "agreed" to Satoh's discovery motion, the court did not rule on the motion and did not order the State to provide the requested information. Thus, the court did not abuse its discretion in allowing the undisclosed witnesses to testify. We overrule point three.

We concur with the court's assessment of this prosecutor's failure to disclose the names of the rebuttal witnesses if the State has identified them as potential witnesses (and the prosecutor admitted that she had identified Flippen as a potential witness), the State is obligated to share the names of rebuttal witnesses in response to a proper discovery order. As the court stated, had he ruled on Satoh's discovery motion, the State's actions in this case would have been in violation of that order. The prosecutor stated that she intended to call Flippen if Satoh called experts. She also was aware that Satoh was attempting to procure expert testimony yet she still did not disclose Flippen's name. By overruling point three, we do not condone the actions of the State in failing to disclose the names by relying on the fact that they were rebuttal witnesses.

NON-BIFURCATED TRIAL

In his final point, Satoh complains that the court erred in submitting the case to the jury in a non-bifurcated trial, citing article 37.07, section 3, of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, 3 (Vernon Supp. 1994). This section simply allows evidence of a defendant's prior criminal record, his general reputation, and his character to be offered after a finding of guilt. Satoh pleaded guilty to the jury and therefore the jury heard evidence to enable it to assess punishment. See id. art. 26.14 (Vernon 1989). Satoh did not object to the non-bifurcated trial and presents nothing for our review. We overrule point four and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 1, 1994

Do not publish