Cesar Aguilar v. The State of Texas--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CESAR AGUILAR, ) No. 08-04-00242-CR

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Appellant, ) Appeal from

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v. ) 41st District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20020D05622)

O P I N I O N

Cesar Aguilar appeals his conviction of attempted aggravated sexual assault claiming the trial court erred in denying his motion to suppress. Finding no error, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

On February 17, 2002, Amparo Pimentel was returning home from a party when she was hit from behind by another vehicle. At the time, Pimentel had reached the parking lot of her mother s apartment complex. She exited her vehicle to inspect the damage. She noticed there was a scrape on the passenger side of her vehicle and told the other driver that she needed his insurance information. The driver then got out of his car, apologized, and asked Pimentel for a pen. When she reached inside her car, the driver pushed her from behind and began to choke her. He then stuck his hands down her pants and began to touch her. Pimentel was eventually able to free her left hand and began honking the horn with the hope that someone in the complex would hear or see what was happening. The attacker began to punch her in the face and as Pimentel continued to fight, she was able to look at him. Appellant told her, Don t look at me. Don t look at me, and then proceeded to push in her left eye. Pimentel continued to honk the horn and scream. Eventually, her mother came outside and the assailant ran back to his car and left the parking lot.

A few weeks later, on March 1, 2002, Jessica Hernandez was returning home after dropping a friend at her home. After she was bumped from behind, Hernandez got out of her car to assess the damage and saw the other driver outside of his vehicle. He apologized for hitting her car. He then pushed her into her car, began to punch and choke her, and inserted his fingers into her vagina.

Appellant was arrested and indicted in cause number 20020D05711 for aggravated sexual assault against Jessica Hernandez and in cause number 20020D05622 for attempted aggravated sexual assault against Amparo Pimentel. These cases were tried together and a jury found Appellant guilty of aggravated assault against Hernandez and attempted aggravated sexual assault against Pimentel. The jury assessed punishment of twenty years in the Texas Department of Criminal Justice Institution Division and a fine of $10,000 in each case. The sentences were to run concurrently.

VOLUNTARINESS OF CONFESSION

In his sole point of error, Appellant complains that his motion to suppress was denied. // He contends that his will was overborne by police conduct and, based on the totality of the circumstances, his confession was involuntary. Appellant raises several factors for our consideration. For the reasons that follow, we conclude that complaints concerning three of these factors have been waived.

Preservation of Error

Appellant suggests that we should consider the arrest warrant and photo line up as factors indicating his will was overborne. He argues that the police improperly obtained an arrest warrant because the only evidence to support its issuance was a photo identification by Pimentel. He then claims the photo line up was improper because the police only had one witness who could place Appellant at the same night club Hernandez had visited the night she was attacked. Finally, he points to the urgency which compelled the police to quickly solve the crime.

In order to preserve error for appeal, a defendant must present a request, motion, or objection with sufficient specificity to make the trial court aware of the complaint. Tex.R.App.P. 33.1(a)(1); and (2) Richardson v. State, 981 S.W.2d 453, 455 (Tex.App.--El Paso 1998, pet. ref d). A motion to suppress is a specialized objection to the admission of evidence. Porath v. State, 148 S.W.3d 402, 409-10 (Tex.App.--Houston [14th Dist.] 2004, no pet.); Bradley v. State, 960 S.W.2d 791, 800 (Tex.App.--El Paso 1997, pet. ref d). An appellant fails to preserve error if the objection made at trial differs from the complaint made on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002).

Appellant did not challenge the validity of the arrest warrant or the photo line up in his motion to suppress, nor did he object to their admission into evidence. As for his claim that we should consider police urgency to warn the public and to solve the crime, he has failed to provide any record references demonstrating that the police were overly zealous to the point of causing his will to be overborne. See Tex.R.App.P. 38.1(h)(brief must contain clear and concise argument for contentions made with appropriate citations to authorities and to the record). Inasmuch as these three issues have been waived, we will not consider them in considering whether the confession was voluntary.

Totality of Circumstances

We turn now to Appellant s contention that his confession was obtained in violation of his Fourth, Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution, Article I, Sections 9, 10, and 19 of the State of Texas Constitution, and Chapter 14 and Article 38.21, 38.22, and 38.23 of the Texas Code of Criminal Procedure. In determining whether a confession is voluntary, we examine the totality of circumstances surrounding its acquisition of a confession. Scott v. State, 165 S.W.3d 27, 43 (Tex.App.--Austin 2005, pet. ref d); Licon v. State, 99 S.W.3d 918, 924-25 (Tex.App.--El Paso 2003, no pet.). When the trial court fails to file findings of fact, we review the evidence in the light most favorable to the trial court s ruling and we will not reverse absent a clear abuse of discretion. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Licon, 99 S.W.3d at 924. Almost total deference must be given to the trial court s determination of historical facts in a suppression hearing. Ross, 32 S.W.3d at 856; Licon, 99 S.W.3d at 924. We review de novo the trial court s application of the law. Licon, 99 S.W.3d at 924. We may consider in the length of detention; incommunicado or prolonged interrogation; denial of access to a family member; refusal of a request to telephone a lawyer or family member; and physical brutality. Pace v. State, 986 S.W.2d 740, 747 (Tex.App.--El Paso 1999, pet. ref d).

In support of his argument, Appellant alleges he was detained for over five hours; he was interrogated for over three hours; he was not fed until he agreed to give his statement; he was not allowed access to a phone until he completed his statement; and he may not have been taken before a magistrate and given his warnings.

On June 21, 2002, at approximately 7:30 p.m., Appellant was arrested by Detectives Charlie Ortega and Jesus Pantoja. Detective Ortega read Appellant his Miranda // warnings while he escorted Appellant to the patrol car. Detective Ortega then entered the case number, date, and time and signed the card with his initials. Appellant was taken to the downtown police station while Detectives Ortega and Pantoja continued their investigation. When the detectives returned at 9:30 p.m., Appellant was waiting in a holding cell. Detective Pantoja spoke with Appellant there. Appellant was moved to Detective Pantoja s cubicle around 11:40 p.m. and again was advised of his Miranda rights. Detective Pantoja handed Appellant a warning card and asked him to read it aloud. Appellant read and signed the card. He admitted his involvement in the crimes and agreed to provide a written statement. This took about an hour and a half. Once the statement was complete, Appellant had the opportunity to review it, make corrections, and sign it. Appellant made several corrections, initialed each correction, and then hand wrote additional statements at the end. As Detective Pantoja completed the paperwork, Appellant asked if he could make a telephone call. Detective Pantoja allowed him to use the phone at his desk.

Detective Ortega witnessed Appellant give his statement. Appellant never requested a lawyer, never indicated he wanted to terminate the interview, and never stated he changed his mind about giving a written statement. Detective Pantoja never threatened, coerced, or promised to give Appellant anything in exchange for his statement. Both detectives testified Appellant was given food and a soda.

Finally, Appellant raises the issue that he may not have been taken before a magistrate prior to giving his statement. Standing alone, a confession given by a defendant prior to magistration will not render a confession inadmissible. A defendant must show there is a causal connection between the delay of appearing before a magistrate and the confession. Jones v. State, 944 S.W.2d 642, 650 n.10 (Tex.Crim.App. 1996); Neumuller v. State, 953 S.W.2d 502, 512 (Tex.App.--El Paso 1997, pet. ref d). The confession is admissible as long as the defendant was Mirandized first. Jones, 944 S.W.2d at 650 n.10; Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995). Here, Appellant read his Miranda warnings aloud, signed the warning card, and indicated to Detective Pantoja that he was willing to admit his involvement and provide a written statement.

Because Appellant has failed to provide us with any evidence showing the duration of his delay, he has not proven a causal connection. Cantu v. State, 842 S.W.2d 667, 680 (Tex.Crim.App. 1992); Pham v. State, 125 S.W.3d 622, 626-27 (Tex.App.--Houston [1st Dist.] 2003), aff d, 2005 WL1336931 (Tex.Crim.App. 2005)(defendant has the burden to show causal connection between delay and confession). Since Appellant received and understood his warnings prior to giving his written confession, any delay could not have rendered Appellant s confession involuntary.

Based upon the totality of circumstances, we must conclude that Appellant s will was not overborne. Finding no abuse of discretion, we overrule the sole issue for review and affirm the judgment of the trial court.

December 15, 2005

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)