Bahena, Jaquelino Bustamante v. State

Affirmed and Memorandum Opinion filed January 30, 2003 Affirmed and Memorandum Opinion filed January 30, 2003. In The Fourteenth Court of Appeals ____________ NOS. 14-01-01155-CR & 14-01-01156-CR ____________ JACQUELINO BUSTAMANTE BAHENA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause Nos. 804,433 and 804,432 M E M O R A N D U M   O P I N I O N Appealing his convictions on two charges of aggravated sexual assault of a child, appellant Jacquelino Bustamante Bahena claims the trial court erred in failing to exclude his oral confession and by refusing to allow him to reopen the evidence. We affirm. I. Factual and Procedural Background In this consolidated appeal, appellant challenges two convictions for aggravated sexual assault of a child. In cause number 804,433 appellant was charged by indictment with aggravated sexual assault of the complainant, a female child, in July of 1996. In cause number 804,432 appellant was charged by indictment with aggravated sexual assault of the same child in August of 1998. Appellant moved to the United States in 1985 with the complainant, her mother, and her older sister. The complainant was one year old at the time, and the four lived together until 1990, when appellant moved out of the home. However, between 1990 and 1997, appellant would stay with the complainant=s mother from time to time, but not on a regular basis. Appellant fathered two sons with the complainant=s mother in that time period. In 1997 or 1998, appellant moved in with his wife, Isidra Bahena, to whom he has been married for twenty-eight years. When appellant was not living with the complainant=s mother, the complainant would accompany her two half-brothers on their overnight visits to appellant=s apartment. At trial the complainant testified in detail to a series of sexual assaults perpetrated by appellant that began when she was ten years old and included the assaults alleged in the indictments. The complainant began to Afeel dirty@ about her sexual abuse after receiving sex-education lessons in school, prompting her to report the abuse to a school counselor in November of 1998. The counselor immediately called Children=s Protective Services. Detective Tim Brinson of the Pasadena Police Department was assigned to the case. After investigating the case, Detective Brinson referred the case to the Harris County District Attorney=s Office, and police officers arrested appellant. At trial, appellant testified in his own defense and denied that the sexual assaults took place. The State called Detective Brinson to impeach appellant=s testimony. Detective Brinson testified that appellant waived his Miranda rights and orally admitted to the sexual assaults, although appellant refused to sign a written statement. After Detective Brinson had testified and after both sides had rested, but before the charge was read to the jury, appellant moved the trial court to reopen the evidence in order to elicit further testimony from Detective Brinson. Appellant sought, among other things, to question Detective Brinson about a prior trial which had ended in a mistrial because of a hung jury. Detective Brinson was not present at the time, and the trial court denied appellant=s request to reopen the case for presentation of additional evidence. The jury found appellant guilty and assessed punishment for each offense at twelve years= confinement in the Institutional Division of the Texas Department of Criminal Justice. II. Issues Presented Appellant asserts the following issues for review: (1) Did the trial court abuse its discretion by allowing appellant=s oral confession to be used against him for impeachment? (2) Did the trial court err by denying appellant=s motion to reopen the evidence? III. Analysis and Discussion A. Did the trial court abuse its discretion by allowing appellant=s oral confession to be used against him for impeachment? In his first issue, appellant asserts that his oral confession to Detective Brinson was involuntary and thus could not be used to impeach his trial testimony. An oral statement of an accused made during custodial interrogation is generally inadmissible against the accused unless the statement was electronically recorded. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a)(1) (Vernon 2001). However, an accused=s unrecorded statement may be used to impeach his credibility as a witness if the statement was voluntarily made. Id. art. 38.22, ' 5. Voluntariness is a factual determination that must be based on the totality of the circumstances surrounding the statement, and the trial court, as finder of fact, is the exclusive judge of the credibility of the witnesses and the weight to be afforded their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). We review a trial court=s determination of the voluntariness of a confession for an abuse of discretion. Id. In determining whether there has been an abuse of discretion, we must decide whether the trial court acted without reference to any guiding rules and principles, or, in other words, whether the court acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). Appellant alleges that his confession was involuntary for two reasons: (1) appellant spoke broken English which allegedly made it impossible for him to knowingly and voluntarily waive his Miranda rights; and (2) Detective Brinson allegedly pressured appellant to waive his rights and confess. As required by section 6 of article 38.22 of the Texas Code of Criminal Procedure, the trial court conducted a hearing outside the presence of the jury to determine the voluntariness of appellant=s confession. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 6. With regard to appellant=s alleged inability to understand English, Detective Brinson testified that he read appellant his Miranda rights in English, and after reading each right, he asked appellant to initial it if he understood it. Brinson further testified that he conversed with appellant entirely in English, appellant appeared to fully understand English, and appellant never requested a translator or otherwise indicated that he did not comprehend the statements. The State also established appellant=s ability to understand English through its cross-examination of appellant. Appellant testified, through an interpreter at trial, as follows: (1) he speaks English; (2) he understood his rights when Detective Brinson read them to him; (3) he initialed each right to indicate his understanding; and (4) he agreed to waive his rights and speak with Detective Brinson. Appellant=s signed and initialed waiver of his Miranda rights was admitted after it was authenticated through appellant=s testimony. When asked on cross-examination whether he voluntarily signed the waiver of his Miranda rights, appellant answered, Ayes.@ However, during subsequent cross-examination appellant changed his answers, first saying he signed with mental reservations, then saying Detective Brinson forced him to sign. Appellant also submitted two supporting affidavits to the trial court that were written in English. Appellant testified that he signed and understood both affidavits. As to appellant=s claim that Detective Brinson pressured him to waive his rights, appellant=s testimony and Detective Brinson=s testimony both established the same initial sequence of events: (1) appellant signed the waiver of his Miranda rights; (2) Brinson asked him whether complainant=s sexual-assault allegations were true; (3) appellant answered; and (4) Detective Brinson asked appellant to sign a written statement which Detective Brinson had drafted while they were speaking. In addition, appellant testified he told Detective Brinson the allegations were false and then refused to sign the paper because he felt like he would rather die than sign a false statement. Appellant stated that Detective Brinson was angry and that appellant thought Detective Brinson would kill him. Appellant further testified that after he refused to sign the statement, Detective Brinson told him (1) he would have fewer problems if he signed; (2) he would remain in jail forever if he did not sign; and (3) appellant would be forced to sign the statement at trial. Assuming, arguendo, that Detective Brinson made these remarks when he asked appellant to sign the written statement, we do not see how they affected the voluntariness of appellant=s previous waiver of his Miranda rights or the voluntariness of appellant=s prior oral statement. In any event, Detective Brinson=s testimony controverted appellant=s testimony. Detective Brinson testified that, when he asked appellant about the sexual-assault allegations, appellant admitted the offenses. According to Detective Brinson, he then asked appellant to sign a written confession, but appellant said he would not sign anything, so Detective Brinson returned appellant to his jail cell. Finally, Detective Brinson denied that he told appellant he would have fewer problems if he signed and denied that he did anything that could have been construed as coercive or intimidating. During Detective Brinson=s interview, appellant was not handcuffed, and he did not ask for a lawyer. Further, appellant did not ask to use the restroom or request food, water, or anything else during the interview. In order to show appellant=s familiarity with the criminal-justice system, the State also established that appellant had been arrested in 1997, charged with assault, and pleaded guilty. The discrepancies between appellant=s testimony and Detective Brinson=s testimony created a question of fact which the trial court, acting as finder of fact, resolved against appellant. See Aranda v. State, 736 S.W.2d 702, 706B07 (Tex. Crim. App. 1987). We find no abuse of discretion in the trial court=s admission of appellant=s confession for impeachment purposes because Detective Brinson=s testimony supported the court=s finding that, based on the totality of the circumstances, appellant knowingly, voluntarily, and intentionally waived his rights when he confessed to Detective Brinson. See Wyatt, 23 S.W.3d at 23B25. Accordingly, we overrule appellant=s first issue. B. Did the trial court err by denying appellant=s motion to reopen the evidence? Appellant asserts in his second issue that the trial court erred in denying his motion to reopen the evidence for the admission of further testimony from Detective Brinson. We review the trial court=s decision for an abuse of discretion. See Wilkinson v. State, 423 S.W.2d 311, 313 (Tex. Crim. App. 1968). The Code of Criminal Procedure provides that the trial court Ashall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.@ Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2001). Under this article it is reversible error to refuse to reopen the evidence for the receipt of admissible evidence that is offered before the jury charge is read, unless it appears introduction of the evidence would have impeded the trial or interfered with the due and orderly administration of justice. Tucker v. State, 578 S.W.2d 409, 410 (Tex. Crim. App. 1979). Whether the trial court abused its discretion depends on the facts of each case. Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993). Appellant moved to reopen the evidence the day after Detective Brinson testified and after both sides had rested, but before the trial court charged the jury. Appellant wanted to make the following inquiries of Detective Brinson in an attempt to show bias: (1) whether Detective Brinson knew the first trial had ended in a mistrial; (2) whether Detective Brinson knew about the oral confession before or during the first trial; (3) whether Detective Brinson told the prosecutor about the confession before or during the first trial; (4) when Detective Brinson first told any prosecutor about the oral confession; and (5) whether it was true that Detective Brinson had not told any prosecutor about this confession until after the first trial. When appellant moved to reopen the evidence, Detective Brinson was not present. The trial court denied the motion, stating that any mention of the prior trial and its outcome would have been inadmissible because the danger of unfair prejudice substantially outweighed the probative value of the evidence. With regard to the four questions that pertained to the previous trial, we hold that it was within the trial court=s discretion to refuse to reopen the evidence because these questions would have elicited inadmissible evidence. See Tucker, 578 S.W.2d at 410 (holding that it was not error to refuse to reopen the evidence for the admission of evidence that was immaterial and therefore inadmissible). We now consider the trial court=s refusal to reopen the evidence so that appellant could ask Detective Brinson when he first told a prosecutor about appellant=s oral confession. In determining whether the evidence should have been reopened, we do not consider appellant=s opportunity to secure the evidence earlier in the trial through cross-examination of Brinson because that information is not relevant; rather, the important timing consideration is whether the evidence was available at the time appellant moved to reopen the evidence. See Vital v. State, 523 S.W.2d 662, 664 (Tex. Crim. App. 1975). The Court of Criminal Appeals addressed similar circumstances in Wilkinson, a case in which defense counsel moved to reopen the evidence after both sides had rested so that the defendant=s mother could be called to impeach a psychiatrist=s testimony on the defendant=s insanity. See Wilkinson, 423 S.W.2d at 313. The Wilkinson court upheld the trial judge=s refusal to reopen the evidence because reopening would have resulted in an Aindefinite delay@ as the court had already excused the psychiatrist and he was not then available in court to testify. Id. In Rogers v. State, the Court of Criminal Appeals affirmed a trial court=s decision to allow the state to reopen the evidence during the punishment phase of trial to elicit psychiatric testimony on the defendant=s propensity to commit future criminal acts, even though a recess was required to recall the psychiatrist. 774 S.W.2d 247, 262B63 (Tex. Crim. App. 1989). Finding the facts distinguishable from those presented in Wilkinson, the Rogers court noted the absence of the Aindefinite delay@ found in Wilkinson. The Rogers court pointed out that the appellate record in Rogers did not indicate Athat any significant delay resulted@ from granting the motion to reopen and that the evidence, Aalthough of slight probative value,@ was relevant to a material issue in the case. Id. at 263. In the present case, as in Wilkinson, appellant moved to reopen the evidence for impeachment purposes only. Granting the motion would have indefinitely delayed trial because the witness, Detective Brinson, was not present when the motion was made. Defense counsel did not give the trial court any indication of how quickly he could secure Detective Brinson=s testimony, even after the State noted Detective Brinson=s absence on the record. See Love, 861 S.W.2d at 904 (holding appellant=s statements on the record that witness would be available shortly and that further cross-examination would only take fifteen minutes, along with appellant=s actually securing witness=s presence in the courtroom within the hour, were sufficient to show lack of undue delay). The appellate record does not show how long the trial would have been delayed if the court had granted appellant=s motion to reopen. Under these circumstances, the trial court was not required to delay the trial indefinitely or impede its progress by granting appellant=s motion to reopen the evidence. See Wilkinson, 423 S.W.2d at 313. Even if the trial court abused its discretion in denying appellant=s motion to reopen, the error would be harmless. A trial court=s erroneous refusal to reopen evidence is subject to a nonconstitutional harm analysis. See Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); Forbes v. State, 976 S.W.2d 749, 752 (Tex. App.CHouston [14th Dist.] 1998, no pet.). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury=s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Based on our review of the record, we conclude the trial court=s refusal to reopen the evidence did not affect a substantial right of appellant. See Tex. R. App. P. 44.2(b); Forbes, 976 S.W.2d at 752B53. Appellant asserts that Detective Brinson=s testimony made such an impression on the jury that the jury asked to have appellant=s testimony reread during jury deliberations in the guilt-innocence phase of trial. The jury was instructed to consider appellant=s confession only if jury members believed beyond a reasonable doubt that it was voluntary. The jury=s request is consistent with discharging this duty, and it does not show that Detective Brinson=s answer to a single question (i.e., when he first told a prosecutor about the confession) would have had a substantial influence on the jury in determining its verdict. Because the record does not indicate that a substantial right was affected, any error in denying appellant=s motion to reopen was harmless. See Tex. R. App. P. 44.2(b); Forbes, 976 S.W.2d at 752B53. Accordingly, we overrule appellant=s second issue. IV. Conclusion The State introduced evidence that controverted appellant=s claims that he did not understand English and that he was pressured into making a statement to Detective Brinson. The trial court did not abuse its discretion in finding appellant=s statement voluntary and therefore admissible to impeach appellant=s credibility as a witness. The trial court did not abuse its discretion by denying appellant=s motion to reopen the evidence because appellant sought to elicit inadmissible testimony about a prior mistrial and because the record did not reflect that further testimony from Detective Brinson would not have impeded or delayed the progress of the trial. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed January 30, 2003. Panel consists of Justices Yates, Anderson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).