ANTONIO MARTINEZ v. THE STATE OF TEXAS--Appeal from 214th District Court of Nueces County

NUMBER 13-01-379-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

ANTONIO MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Castillo

Antonio Martinez, appellant, was convicted by a jury of aggravated sexual assault of a child[1] and indecency with a child[2] and sentenced to thirty years and seven years in prison, respectively. From these convictions, he appeals, complaining that the trial court erred in failing to suppress statements made by appellant to a clergyman and arguing that the evidence is legally insufficient to support the conviction for indecency with a child. We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. Tex. R. App. P. 47.1.

Failure to Suppress Statements

In his first issue, appellant argues that the statements he made to a clergyman to whom his parents had taken him were privileged and so should have been excluded under Texas Rule of Evidence 505.[3] Appellant specifically asserts that the trial court should have granted his motion to suppress such statements based on his assertion of a privileged communication with the clergyman.

The trial court made no findings of fact as to its denial of the motion to suppress, but did state that Aif [the clergyman=s] testimony is believed and [sic] the motion is without merit. Court finds [the clergyman=s] testimony to be credible and denies the motion to suppress.@ As the trial court=s decision clearly turned on the question of credibility, we review his ruling under the Aalmost total deference@ standard set out in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In light of this standard and the evidence in this case, we decline to disturb the trial court=s ruling.

We note further that even if we were reviewing this motion de novo, we would find no error in the admission of this testimony. As this case involved a sexual assault against a child, the privilege of rule 505 was abrogated under Texas Family Code section 261.202, which prohibits the exclusion of evidence on the grounds of privileged communication in a proceeding regarding the abuse or neglect of a child, aside from communications made between attorney and client.[4] Tex. Fam. Code Ann. '261.202 (Vernon 1996); Bordman v. State, 56 S.W.3d 63, 68 (Tex. App.B Houston [14th Dist.] 2001,no pet.)(holding that section 261.202 controls over rule of evidence 505);[5] see also Gonzalez v. State, 45 S.W.3d 101, 107 (Tex. Crim. App. 2001)(noting that there is some indication that the clergyman=s privilege in Texas may not be inviolate and that disclosure may be compelled in two circumstances, one of which is under the family code section predecessor to section 261.202).[6] The trial court thus had no authority to exclude this evidence on the basis of a privileged communication to clergy.[7]

We overrule appellant=s first issue.

Corroboration of the Confession

In appellant=s second issue, he complains that the evidence was legally insufficient to sustain the conviction for indecency with a child because there was no evidence corroborating appellant=s extra-judicial confession. Appellant is correct in asserting that a conviction may not be had solely on the extrajudicial confession of a defendant and that there must be other evidence tending to establish the corpus delicti of the offense, that is, evidence tending to show that a crime was committed, in order for a conviction to stand. Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990).

However, the quantum of independent evidence need not be great. Id. at 71-72. It is not necessary that this other evidence be sufficient to fully prove the corpus delicti. Id. at 72. Once there is some evidence independent of the extrajudicial confession that tends to corroborate the extrajudicial confession, the confession itself can be used to aid in establishing the corpus delicti. Self v. State, 513 S.W.2d 832, 835 (Tex. Crim. App. 1974). Accordingly, the independent evidence need not be such as to prove each particular element of the charged crime. Monterrubio v. State, 941 S.W.2d 322, 326 (Tex. App.BCorpus Christi 1997, pet. ref=d). Indeed, Acircumstances [which] are ambiguous in some respects and far from adequate to support the conclusions they imply@ may nonetheless suffice to provide the requisite corroboration. Gribble, 808 S.W.2d at 73. There must simply be some independent evidence which makes the commission of the crime more likely than in the absence of such evidence. Id. at 72.

The corpus delicti for indecency with a child is the occurrence of a sexual contact with a child with the intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. '' 21.01(2), 21.11(a)(2) (Vernon Supp. 2002); Moreno v. State, 823 S.W.2d 366, 367 (Tex. App.BCorpus Christi 1991, pet. ref=d). Accordingly, we must consider all of the record evidence, other than the extrajudicial confession, in the light most favorable to the jury=s verdict, to determine if there is some evidence that makes it more probable that appellant had sexual contact with the victim with the intent to gratify appellant=s sexual desire, than without such evidence. Fisher v. State, 851 S.W.2d 298, 302 (Tex. Crim. App. 1994).

Here there is evidence independent from appellant=s extrajudicial confession that renders the commission of the offense more probable than without such evidence. The outcry testimony and the statement of the victim detailing appellant forcing the child to perform certain sexual acts and the circumstances in which the encounter took place, the videotape of the entrance of the location where the offenses took place and appellant=s prints found therein, the admissions made to the clergyman regarding his guilt and to his mother regarding his guilt and the veracity of his statement to the police,[8] all corroborate his confession and serve to make it more probable that the crime of indecency with a child occurred than without such evidence. We overrule appellant=s second issue.

Conclusion

Having overruled both of appellant=s issues, we affirm the judgment of conviction of the trial court.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 15th day of August, 2002.

[1]Tex. Pen. Code Ann. '22.021(a)(1)(B)(ii)(Vernon Supp. 2002).

[2]Tex. Pen. Code Ann. '21.11(a)(1)(Vernon Supp. 2002).

[3]This rule provides as follows:

COMMUNICATIONS TO MEMBERS OF THE CLERGY

  (a) Definitions. As used in this rule:

(1) A Amember of the clergy@ is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual.

(2) A communication is Aconfidential@if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

  (b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member=s professional character as a spiritual advisor.

  (c) Who May Claim the Privilege. The privilege may be claimed by the person, by the person=s guardian or conservator, or by the personal representative of the person if the person is deceased. The member of the clergy to whom the communication was made is presumed to have authority to claim the privilege but only on behalf of the communicant.

Tex. R. Evid. 505.

[4]That section provides:

In a proceeding involving the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client.

Tex. Fam. Code Ann. '261.202 (Vernon 1996).

For the purposes of chapter 261 of the Family Code, abuse includes:

sexual conduct harmful to a child=s mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child under section 21.11, Penal Code, sexual assault under Section 22.0011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code[.]

Tex. Fam. Code Ann. '261.001(1)(E) (Vernon Supp. 2002).

[5]Rule 101(c) of the Texas Rules of Evidence provides a hierarchical governance in criminal proceedings, which specifies that civil statutes have precedence over the rules of evidence. Tex. R. Evid. 101(c)(setting out hierarchy as Constitution of the United States, federal statutes that control states under supremacy clause, Constitution of Texas, Code of Criminal Procedure and Penal Code, civil statutes, rules of evidence and the common law).

[6] We note, furthermore, that the clergyman was under a legal obligation to report the information that he had received to the police under Texas Family Code section 261.101 even if the conversation would otherwise have been privileged under Texas Rule of Evidence 505. Tex. Fam. Code Ann. '261.101(a) (Vernon Supp. 2002). The requirement expressly includes members of the clergy. Tex. Fam. Code Ann. '261.101(c) (Vernon Supp. 2002). Failure to report such abuse is a criminal offense, punishable as a Class B misdemeanor. Tex. Fam. Code Ann. '261.109 (Vernon 1996).

[7] We note that essentially the same testimony was received by the jury during appellant=s mother=s testimony, without any objection, and significantly more inculpatory evidence was received by way of the admission of appellant=s written confession which was far more detailed than the few words spoken to the clergyman. Even if section 261.202 had not prevented the application of the privilege, and if the admission of this evidence had been erroneous, in light of the all the other evidence before the jury in this case, the admission of appellant=s statements to the clergyman was harmless.

[8] There were two other admissions by appellant: 1) an in-court admission of the correctness of his confession, and 2) a judicial confession of guilt to Athis crime@ with which he was charged made during the punishment phase of the trial.

In the former, in a hearing outside the presence of the jury conducted to determine the admissibility of appellant=s extrajudicial statement, appellant admitted AI agree with it [the statement], but I did not understand that it could be used against me.@

In the latter, at the punishment hearing, appellant=s own attorney asked him if he was Athe person charged with this crime@and if he was Aguilty of this crime.@ Appellant answered, AYes, I am@ to both questions and later stated that he wanted to apologize to the victim and say he was Asorry for his mistake.@

We have found no authority that would support construing Aall the record evidence@ in the context of the corroboration requirement for a confession in such a manner so as to permit the consideration of evidence outside of the guilt/innocence phase of the trial or outside of the presence of the jury. As we find that the extra-judicial confession was corroborated by evidence given in the presence of the jury during the guilt/innocence phase of the trial, we do not consider these admissions. We decline the State=s invitation to specifically declare that corroborating evidence need not be presented to the jury, but only to the judge, and have no need to determine whether evidence presented at the punishment phase can be considered in establishing corroboration.