Sydney Lynn Weeks v. State ( 2010 )

NO. 07-09-0077-CR
NO. 07-09-0078-CR
NO. 07-09-0079-CR
NO. 07-09-0080-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 20, 2010
______________________________
SIDNEY LYNN WEEKS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 46TH DISTRICT COURT OF HARDEMAN COUNTY;
NOS. 4088, 4089, 4090, 4091; HON. DAN MIKE BIRD, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Sidney Lynn Weeks (appellant) appeals his four convictions for aggravated
sexual assault. Via twelve issues, he contends that the trial court erred in 1) denying
his motion for severance, 2) denying his motion to suppress, 3) admitting extraneous
evidence, and 4) refusing to charge the jury per art. 38.22 of the Texas Code of Criminal
Procedure. He also asserts that the evidence was insufficient to support the four
convictions. We affirm.
Background
The circumstances before us involve appellant’s repeated sexual assaults upon his
stepdaughter while she was between the ages of thirteen and sixteen. When finally
contacted, the police began an investigation into the crimes. Pursuant thereto, law
enforcement officials called appellant and advised him that he was being investigated.
Eventually, a meeting was arranged between appellant and a DPS ranger (Foster); but
when same was scheduled via phone, appellant was not advised of his Miranda rights.
Nevertheless, the two did meet in person, and at the meeting, appellant was mirandized
before providing the ranger with a statement. Moreover, during the exchange, the
ranger advised appellant that he was subject to punishment anywhere from probation to
ninety-nine years in prison and that the district attorney would be told of appellant’s
cooperation in the investigation if a statement was given.
At trial, the victim testified, as did Foster. Furthermore, the trial court admitted
appellant’s written statement, though his oral comments were excluded. Ultimately, the
jury found him guilty of all four charges.
Issues One and Six
We address issues one and six since they are logically connected. Via issue one,
appellant contends that the trial court erred by refusing to sever each count into
separate trials. This allegedly was wrong because the admission of extraneous
offenses somehow prejudiced him. Via his sixth issue, he posits that it was error to
admit the extraneous offenses. We overrule the issues.
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Regarding the admission of the extraneous offenses, the latter consisted of
instances wherein appellant engaged in “anal and oral” sex with the victim. This should
have been excluded, according to appellant. Yet, evidence of extraneous acts involving
the accused and the victim may be admissible under art. 38.37 of the Code of Criminal
Procedure.1 Appellant does not explain why that statute is inapplicable. Moreover, the
State contends that the instances in question had a bearing on relevant matters such as
the state of mind of both appellant and victim and the nature of their prior relationship.
The trial court’s agreement with the State did not fall outside the zone of reasonable
disagreement. See Hernandez v. State, 205 S.W.3d 555, 558 (Tex. App.–Amarillo
2006, pet. ref'd) (stating that the standard of review for issues encompassing the
admission of evidence is that of abused discretion and discretion is abused when the
decision falls outside the zone of reasonable disagreement).
The inappropriate relationship between appellant and his stepdaughter covers
several of the youth’s teenage years and evinced frequent assaults. As such, it could
be viewed as relevant to the relationship between the two and their respective states of
mind. The statements could also be viewed as tending to rebuff appellant’s attack upon
the victim’s credibility. He did ask the jury to ponder upon why she waited so long to
disclose the supposed misconduct and why it was disclosed during an argument with
the assailant’s wife (i.e. the victim’s mother). Implicit therein is the suggestion that
maybe the events were fabricated. Admitting appellant’s own comments about the
1
According to that provision, “[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence,
evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim
of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind
of the defendant and the child; and (2) the previous and subsequent relationship between the defendant
and the child.” TEX. CODE CRIM. PROC. ANN. art. 38.37, §2 (Vernon Supp. 2009).
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nature and extent of the sexual activities in which the two engaged would serve to
illustrate that the victim did not simply fabricate the incidents. See Smith v. State, No.
07-05-0277-CR, 2007 Tex. App. LEXIS 6004 *3-6 (Tex. App.–Amarillo July 30, 2007, pet.
dism’d) (not designated for publication) (wherein the court held that it was not error to
admit instances of prior sexual activity between the accused and appellant, despite an
objection founded on Rule 403, because, among other things, the evidence tended to
bolster the victim’s credibility).
We further note that it was within the realm of reason to deduce that while
reference to “anal and oral” sex may carry with it prejudicial effect, that effect would be
no greater than the impact arising from the evidence of appellant engaging in vaginal
intercourse with his thirteen-year-old stepdaughter. And, no one can deny that the latter
evidence was admissible given the allegations contained in the indictment. So, we
cannot say that the trial court abused its discretion in finding the evidence both relevant
and admissible despite appellant’s Rule 401, 403, and 404(b) objections.2 See Hitt v.
State, 53 S.W.3d 697, 704-05 (Tex. App.–Austin 2001, pet. ref'd) (recognizing that, in
cases involving the sexual abuse of children, article 38.37, section 2 supersedes the
application of Texas Rules of Evidence 402 and 404).
As for the matter of severance, appellant concedes that the causes were properly
joined. However, he posits that they should have been severed because their joinder
caused him to suffer prejudice. The prejudice, in his view, arose from the State’s use of
2
Rule 401 of the Texas Rules of Evidence states: “’[r]elevant evidence’ means evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” TEX. R. EVID. 401 (Vernon 2003).
Rule 403 states: “[a]lthough relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.” And, Rule 404(b)
states: “[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in
order to show action in conformity therewith . . . .”
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the aforementioned evidence of extraneous offenses. How severance would have
precluded the State from invoking art. 38.37 went unexplained, however. Indeed,
having concluded above that the trial court did not abuse its discretion in admitting the
evidence when the causes were joined, we have difficulty understanding why the same
evidence would be inadmissible if the causes were tried separately. Nor does appellant
address that. So, under the circumstances before us, the trial court cannot be said to
have abused its discretion in trying the causes together. Salazar v. State, 127 S.W.3d
355, 365 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (noting that the pertinent
standard of review is one of abused discretion).
Issues Two through Five - Admission of Appellant’s Confession and the
Evidence of the Extraneous Offenses Therein
Appellant next contends that the trial court erred in admitting his written
statement into evidence. This was so, according to him, because the statement 1) was
involuntary, and 2) was obtained in a manner that violated due process and article 38 of
the Texas Code of Criminal Procedure. We disagree and overrule the issues.
Regarding the issue of voluntariness, appellant suggests his statement was
involuntary because it was given in response to the ranger’s promise to speak with the
district attorney if appellant cooperated and his representation that the crime for which
appellant was being investigated could carry a sentence ranging from probation to
ninety-nine years in prison. Neither of these grounds was urged at trial as basis for
finding his confession less than knowing and voluntary, however. That is, he did not
argue that the confession was involuntary because it arose from a promise or
representation of the type which would induce someone to speak untruthfully.
Therefore, this particular argument was not preserved for review. Heidelberg v. State,
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144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (stating that the legal basis of a complaint
raised on appeal cannot vary from that raised at trial).
As for due process and article 38 of the Code of Criminal Procedure, both were
purportedly violated because appellant was not mirandized prior to undergoing the
custodial interview. This is allegedly true even though the ranger actually mirandized
appellant before he signed his confession. We find no error.
It is clear that a suspect undergoing custodial interrogation must be warned of his
right to remain silent, his right to have legal counsel, his right to have counsel appointed
if he is impoverished, and of the potential consequences arising from his refusal to
remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Such warnings are not necessary, though, if the interview occurs outside the realm of
custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
The trial court found, after conducting an evidentiary hearing, that the statement at bar
was not the product of such an interrogation. And, we find no fault with that
determination.
According to the record, the police chief contacted appellant about meeting to
review the allegations raised by his stepdaughter. Appellant agreed and appeared at
the offices of the Department of Public Safety. There he met with Ranger Foster for one
hour and forty-nine minutes. Foster testified that appellant was free to go at any time
and that if he left, the ranger would have simply continued his investigation without
appellant. So too did the ranger testify that appellant was not denied any basic
necessity such as “food, or water, or cigarettes or anything like that.” And, once the
interviewed ended, appellant left. It may well be that appellant was a suspect in an
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ongoing investigation. But being a suspect alone does not cause any ensuing interview
to rise to the level of custodial interrogation. Meek v. State, 790 S.W.2d 618, 621 (Tex.
Crim. App. 1990) (citing Beckwith v. State, 425 U.S. 341, 96 S. Ct. 1612, 48 L. Ed. 2d 1
(1976)); accord, Samuel v. State, No. 02-08-341-CR, 2010 Tex. App. LEXIS 1372, *17
(Tex. App.–Fort Worth February 25, 2010, no pet.) (not designated for publication)
(stating the same). Moreover, we cannot forget that appellant was actually mirandized
before executing his written confession. And, upon receiving those warnings, he not
only indicated to the ranger that he understood them but also that he wished to proceed
without counsel.
Missing from the record is any evidence of threats. Nor do we have before us
evidence of appellant being physically restrained in any manner. And, that Foster
informed appellant about the potential range of punishment for the alleged offense and
stated he would let the district attorney know that appellant cooperated falls short of
evincing psychological coercion. Indeed, appellant himself characterized the
representations (in his appellate brief) as “seem[ing] innocuous enough.” Furthermore,
they could have been reasonably interpreted, by the trial court, as an effort to impress
upon appellant the gravity of the situation and as a means of fully informing him of
potential ramifications arising from the allegation. In other words, the ranger may have
simply been attempting to provide appellant with all the information available to assist
him in making an informed choice. And, if placed within that perspective, we cannot say
that they alone or in conjunction with the other circumstances then present somehow
obligated the trial court to conclude that appellant was neither free to leave nor able to
terminate the interview at will.
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Simply put, the trial court had basis to legitimately conclude that the interview
was not tantamount to a custodial interrogation. As stated in Martinez v. State, 131
S.W.3d 22 (Tex. App.–San Antonio 2003, no pet.), when the circumstances show that
the individual acts upon the invitation or request of the police, and there are no threats,
express or implied, that he will be forcibly taken, then that person is not in custody at
that time. Id. at 32. Those are the indicia here. Thus, the decision to deny suppression
of the statement because appellant was not mirandized at the beginning of the interview
was not error.
Issue Eleven – Jury Charge
Via issue eleven, appellant asserts that the trial court erred by failing to submit a
limiting instruction to the jury regarding the purposes for which it could consider the
evidence of the aforementioned “anal and oral” sexual acts. We disagree and overrule
the issue.
The party opposing effort to admit evidence admissible for a restricted purpose
has the burden of requesting a limiting instruction when the evidence is introduced.
Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001). That is, to be effective,
such an instruction must be given when the evidence is admitted. See Rankin v. State,
974 S.W.2d 707, 712 (Tex. Crim. App. 1996). If it is not, then the information simply
becomes part of the general evidence and may be considered by the jury for all
purposes. See Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994). We say
this since appellant did not request a limiting instruction before, during or immediately
after the written confession was offered, admitted into evidence, and read to the jury.
Consequently, his statement was admitted for all purposes. See Hammock v. State, 46
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S.W.3d at 895 (holding that when a party fails to ask for a limiting instruction until later
in the trial, the evidence is admitted for all purposes); Jones v. State, 119 S.W.3d 412,
424 (Tex. App.–Fort Worth 2003, no pet.) (holding that when a party requests a limiting
instruction concerning a witness's testimony after the witness testifies, the evidence is
admitted for all purposes).
Issues Seven through Ten – Sufficiency of the Evidence
In his next four issues, appellant contends that the evidence is both legally and
factually insufficient to establish that he had engaged in sexual intercourse with the
victim when she was fourteen or younger and seventeen or younger. We overrule each
issue for several reasons.
First, the assertion is premised on the exclusion of his confession. Since we
overruled the issues attacking the trial court’s decision to admit the confession, the
foundation of his argument is missing.
Second, within the confession lay appellant’s own admission to engaging in
sexual intercourse with the child. To this we add the child’s own testimony about her
age when the two first coupled, i.e. thirteen years old. Those activities continued,
according to the victim, during the time the family lived in both Quanah and Wichita
Falls. So too did appellant’s stepdaughter testify that after she left Wichita Falls and
returned to Quanah at the age of sixteen, appellant picked her up from work. On the
way home, he told her that he would make her get out of the car and walk if she did not
have sex with him. She complied with the demand, according to the girl.
It is well settled that "[t]he testimony of a victim [,] standing alone, even when the
victim is a child, is sufficient to support a conviction for sexual assault." Ruiz v. State,
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891 S.W.2d 302, 304 (Tex. App.–San Antonio 1994, pet. ref'd) (citing Villalon v. State,
791 S.W.2d 130 (Tex.Crim.App.1990)). Here, the child’s own words coupled with
appellant’s confession constituted some evidence from which the jury could rationally
deduce beyond reasonable doubt that the victim was fourteen and under when the
sexual activity began and continued while she was between the ages of fifteen and
seventeen. Moreover, such a conclusion would not be supported by weak evidence, or
overwhelmed by contrary evidence, or manifestly unjust.
Issue Twelve – Jury Instruction Pursuant to Art. 38.22
Via his last issue, appellant posits that he was entitled to a charge per art. 38.22,
§7 of the Texas Code of Criminal Procedure and that the trial court erred in refusing it to
him. We overrule the issue.
Per the aforementioned statute, when question regarding the legality by which
evidence is obtained “is raised by the evidence, the trial judge shall appropriately
instruct the jury, generally, on the law pertaining to such statement." TEX. CODE CRIM.
PROC. ANN. art. 38.22, §7 (Vernon 2005). If no such evidence (irrespective of whether it
is strong, weak, contradicted, impeached or unbelievable) exists, then it is not error to
omit such an instruction. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.1993).
By evidence, it is meant evidence creating a fact issue encompassing the manner in
which the proof was secured. See Madden v. State, 242 S.W.3d 504, 509-10 (Tex.
Crim. App. 2007). If no such fact issue exists, then an instruction need not be given. Id.
According to appellant, there existed a fact issue as to whether he was in
custody or whether he underwent a custodial interrogation when providing his
statement. Yet, we are cited to nothing of record illustrating that the factual
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circumstances from which his statement arose were in dispute or otherwise
contradicted. Nor did we find any such evidence. Instead, it appears that appellant
simply wanted the jury to have the opportunity to apply the test for what constitutes a
custodial interrogation to the undisputed evidence. That falls outside the scope of art.
38.22. See Madden v. State, 242 S.W.3d at 511-13.
Having overruled each issue, we affirm the judgments of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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