Randell Joshua Scott Boyd v. The State of Texas--Appeal from 260th District Court of Orange County
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In The Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-10-00062-CR _________________ RANDELL JOSHUA SCOTT BOYD, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________________________________ On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D-080447-R ________________________________________________________________________ MEMORANDUM OPINION Randell Joshua Scott Boyd appeals his aggravated sexual assault convictions. In a single issue, Boyd contends the trial court erred in refusing to instruct the jury under article 38.22 of the Texas Code of Criminal Procedure regarding his written statement. See Tex. Code Crim. Proc. Ann. art. 38.22 §§ 6-7 (West 2005). We affirm the trial court s judgments. 1 Background The State charged Boyd on two counts of aggravated sexual assault. See Tex. Penal Code Ann. § 22.021 (West Supp. 2010). The victim, D.L., was four years old at the time of the alleged assault. On the night the assault is alleged to have occurred, D.L., her brother, and her cousin, all minors, spent the night at a house occupied by Boyd and his wife. The following morning, D.L. informed Boyd s wife that Boyd had assaulted her, and Boyd s wife then took D.L. to Boyd s mother-in-law to explain what had happened. According to D.L., Boyd sexually assaulted her by digital penetration and by placing his mouth on her sexual organ. Boyd s wife and mother-in-law then returned the three minors to D.L. s mother. At that point, D.L. told her mother about the assault. D.L. s mother took her to a doctor where she was examined; afterward, the police were contacted. Before he was arrested, Boyd met with Detective Cupit and gave him a written statement in which he stated that his finger went inside D.L. s sexual organ, but he claimed that it was an accident. Boyd s written statement was admitted over his objection during the trial. The jury found Boyd guilty on both counts, and the jury then assessed five year sentences on each of the counts. Boyd timely appealed from the judgments. Analysis Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 2 23, 25-26 (Tex. Crim. App. 2009). Initially, we determine whether error occurred; if so, we evaluate whether sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731-32. When a question is raised and litigated about whether a statement of an accused was voluntary, article 38.22, section 6 of the Texas Code of Criminal Procedure requires a trial court to (1) make an independent determination that the statement was made under voluntary conditions; and then (2) instruct the jurors that they shall not consider the statement for any purpose unless they believe, beyond a reasonable doubt, that the statement was made voluntarily. Oursbourn v. State, 259 S.W.3d 159, 180-81 (Tex. Crim. App. 2008). Other types of jury instructions may be required in cases concerning whether the witness providing the statement received the warnings required by article 38.22, section 7. Id. at 173. An instruction pursuant to section 7 sets out the requirements of 38.22, sections 2 and 3 and asks the jury to decide whether these requirements were met. Id. Article 38.23 sets out a specific exclusionary-rule instruction. Id; see also Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005). [W]hen the evidence raises an issue of the voluntariness of a defendant s statement under [a]rticle 38.22, the trial judge must give a general voluntariness instruction under [s]ections 6 and 7 of that article because it is the law applicable to the case. Id. at 165. It is the defendant s responsibility to delineate which type of involuntariness he is claiming so that the trial judge can determine the appropriate instruction. Id. at 174. If the defendant fails to request a 3 statutorily mandated instruction, as is the case here, the trial court s failure to instruct the jury when the issue was litigated before the jury is reviewed on appeal for egregious harm under Almanza. See id. at 165 (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)). Boyd argues that the trial court should have given the jury an instruction on the voluntariness of his statement. Section 7 of article 38.22 reaches statements made during custodial interrogations. See Oursbourn, 259 S.W.3d at 176. The trial court s duty to include an instruction under section 7 arises when the evidence raises a genuine factual dispute regarding (1) law enforcement s compliance with the statutory warnings set out in Texas Code of Criminal Procedure article 38.22, sections 2 and 3, and (2) the voluntariness of a defendant s waiver of his rights. Id. To demonstrate that a genuine factual dispute exists, [t]he defendant must offer evidence that, if credited, would create a reasonable doubt as to a specific factual matter essential to the voluntariness of the statement. See id. at 177. When there is no disputed factual issue, the legality of compliance with the statutory warnings regarding the statement is determined by the trial court as a question of law; in that case, a section 7 instruction is not required. See id. at 177-78. Boyd provides no record citations to demonstrate that he raised a genuine factual dispute about whether Detective Cupit gave Boyd the warnings required by article 38.22. 4 Instead, Boyd argues generally, stating that there was evidence that supported an instruction as required by Tex. Code Crim. Proc. Art. 38.22 § 7. However, having reviewed the record, we find no evidence raising a genuine factual dispute concerning whether Detective Cupit complied with the statutory warnings required by article 38.22, sections 2 and 3, or whether Boyd voluntarily waived the rights given under article 38.22 section 2(a). Instead, the record is undisputed that Boyd received warnings and that he waived his article 38.22 rights. The mandated statutory warnings are included in Boyd s written statement, as are Boyd s initials by each warning and Boyd s signature, all of which indicate that Boyd knowingly, intelligently, and voluntarily waived these statutory rights. Additionally, Detective Cupit testified he admonished Boyd of his rights, he believed that Boyd understood his rights, and that Boyd voluntarily waived his rights. The record also contains evidence that Boyd was capable of understanding these warnings. Dr. Gripon, a psychiatrist acting as Boyd s expert, testified outside the presence of the jury that Boyd could understand the warnings given to him. On this record, we conclude that there is no genuine factual dispute regarding whether Boyd received the statutory warning required by article 38.22. It follows that the trial court did not err by failing to include an article 38.22, section 7 instruction. In arguing that he was harmed, Boyd also argues the trial court, under article 38.22, section 6, should have given the jury an instruction to allow them to consider 5 whether his statement was voluntarily made. Because only voluntary statements may be admitted, Section 6 applies to both custodial and non-custodial statements. Oursbourn, 259 S.W.3d at 171; see also Tex. Code Crim. Proc. Ann. art. 38.22 § 6. A section 6 instruction becomes necessary once a question is raised and actually litigated as to the general voluntariness of the defendant s statement. Oursbourn, 259 S.W.3d at 175-76, 180. A question of voluntariness is raised when a party notifies the trial court or the trial court raises the issue on its own. Id. at 175. The Court of Criminal Appeals has stated that the sequence of events contemplated by section 6 occurs when: (1) a party notifies the trial judge that there is an issue about the voluntariness of the confession (or the trial judge raises the issue on his own); (2) the trial judge holds a hearing outside the presence of the jury; (3) the trial judge decides whether the confession was voluntary; (4) if the trial judge decides that the confession was voluntary, it will be admitted, and a party may offer evidence before the jury suggesting that the confession was not in fact voluntary; (5) if such evidence is offered before the jury, the trial judge shall give the jury a voluntariness instruction. Id. In this case, Boyd notified the trial judge about an issue on the voluntariness of his written statement. The trial court held a hearing outside the presence of the jury, and after doing so, the trial court concluded that Boyd s written statement was admissible. Therefore, Boyd had the right to offer evidence before the jury in an effort to show that he did not give his statement voluntarily. See id. The State asserts that Boyd failed to present any evidence to the jury that questioned the voluntariness of his written statement. Boyd, in his brief, fails to identify 6 any evidence from which the jury could conclude that his written statement was involuntary. See id. at 176 (stating that an instruction is required only when a reasonable jury could find that the facts . . . rendered [the defendant] unable to make a voluntary statement ) (emphasis added). Because no such evidence was offered before the jury, the trial court was not required to give the jury an article 38.22, section 6 instruction. See id. at 175. Accordingly, we overrule Boyd s issue and affirm the trial court s judgment. AFFIRMED. ___________________________ HOLLIS HORTON Justice Submitted on February 8, 2011 Opinion Delivered March 16, 2011 Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ. 7
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