Aldo Pena Penaflor v. State

Affirmed and Memorandum Opinion filed November 21, 2006 Affirmed and Memorandum Opinion filed November 21, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00569-CR NO. 14-05-00570-CR ____________ ALDO PENA PENAFLOR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause Nos. 987,510 & 987,507 M E M O R A N D U M  O P I N I O N Following a jury trial, appellant, Aldo Pena Penaflor, was convicted of aggravated kidnapping and aggravated sexual assault of a child and sentenced to confinement for life in the Texas Department of Criminal Justice, Institutional Division. In a single point of error, appellant claims the trial court erred in denying his motion to suppress his videotaped confession. We affirm. I. Factual and Procedural Background On the morning of October 13, 2001, nine year-old A.R. was walking to school in the City of Houston. Appellant and his twin brother, Hugo Penaflor, were riding around in a stolen vehicle when they noticed A.R. Hugo Penaflor was driving. Appellant exited the vehicle, approached A.R. from behind, picked her up, and forced her into the back seat of the vehicle. Appellant then covered A.R.=s eyes while he removed her clothes and forcibly inserted his penis into her vagina. Thereafter, appellant and Hugo Penaflor drove to an industrial district and instructed A.R. to get out of the vehicle. DNA samples from A.R.=s rape kit were compared to samples from known individuals in the national Combined DNA Index System database. The comparison yielded a positive match for appellant and Hugo Penaflor.[1] Based on the results of the DNA analysis, an arrest warrant was issued for appellant. At approximately 5:00 p.m. on December 3, 2003, appellant was arrested and transported to the Houston Police station at 8300 Mykawa Road. Appellant was advised of his Miranda[2] rights and agreed to answer questions pertaining to the abduction and rape of A.R. Officer Heidi Ruiz interviewed appellant for approximately two and one-half hours, from 6:30 to 9:00 p.m., on December 3 (hereafter referred to as Athe first interview@). Officer Alfonso Yanez was also present. The first interview was recorded on videotape. During the first interview, appellant did not invoke his right to counsel or seek to terminate the interview. Appellant was given food and permitted to use the restroom upon request. Appellant was not handcuffed. During the first interview, Ruiz told appellant that she wanted to help him. Ruiz confronted appellant with the DNA evidence and told appellant that if he was truthful about what happened, she would tell the judge that appellant had told the truth. Ruiz also discussed the possibility of getting psychiatric counseling for appellant and the range of punishment he would face if convicted. Appellant made no confession during the first interview. Appellant was offered the opportunity to take a polygraph test, which he volunteered to do. On the morning of December 4, 2003, while still in custody, appellant was transported to the Houston Police station at 1200 Travis Street for a polygraph exam. After taking the polygraph exam and being informed that he had failed, appellant requested to speak to Officer Ruiz. At approximately 9:00 a.m. on December 4, Ruiz interviewed appellant for a second time (hereafter referred to as Athe second interview@). The second interview was also videotaped. As soon as Ruiz entered the room, appellant began making inculpatory statements. Appellant was again advised of his Miranda rights and thereafter confessed to the kidnapping and rape of A.R. Appellant was indicted for aggravated kidnapping and aggravated sexual assault of a child. The charges were enhanced with a prior felony conviction for burglary of a habitation. Appellant moved to suppress evidence of the second interview on the grounds that his statement was not freely and voluntarily made. The trial court conducted a suppression hearing, and appellant=s motion was denied. During the trial on the merits, videotapes[3] of the second interview were published to the jury. Appellant was convicted on all charges and sentenced to confinement for life. This appeal followed. II. Standard of Review We review a trial court=s decision to grant or deny a motion to suppress under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Mason v. State, 116 S.W.3d 248, 256 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). An appellate court affords almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The appellate court affords the same amount of deference to a trial court=s ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. The court reviews de novo those questions not turning on credibility and demeanor. Id. When, as here, we have videotape of the confession and alleged inducements, we review the trial court=s ruling on an application of law to facts de novo. Herrera v. State, 194 S.W.3d 656, 658 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). III. Analysis When determining whether a confession should have been excluded as a matter of federal constitutional law, we decide whether the confession was voluntary or coerced. Arizona v. Fulminante, 499 U.S. 279, 285B86, 111 S.Ct. 1246, 1251B52, 113 L.Ed.2d 302 (1991); see also Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986) (coercive police activity is necessary predicate to finding that a confession is not voluntary). A confession is coerced if the defendant=s will was overborne by the circumstances surrounding the confession. Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 2331, 147 L.Ed.2d 405 (2000). To make this determination, we examine the totality of the circumstances surrounding the interrogation, including the characteristics of the accused and the details of the interrogation. Id; Fulminante, 499 U.S. at 286, 111 S.Ct. at 1252. Appellant argues the trial court erred in denying his motion to suppress his videotaped confession because it was induced by direct or indirect promises in violation of the Fifth Amendment to the United States Constitution.[4] Appellant claims statements made by Officers Ruiz and Yanez during the first interview caused appellant to make an involuntary confession during the second interview. Specifically, appellant argues that (1) Ruiz engaged in a Acampaign of promises to help@ by telling appellant she was there to help him, and, if appellant was willing to tell her the truth about what happened, she would tell the judge appellant was truthful; (2) Ruiz told appellant he needed to confess in order to protect himself; (3) Ruiz induced appellant to confess by offering to get him psychiatric counseling; and (4) Ruiz and Yanez told appellant he could avoid a life sentence by confessing. The State argues (1) Ruiz and Yanez made no direct promises which caused appellant=s will to be overborne; (2) no causal relationship exists between Ruiz=s statements during the first interview and appellant=s confession during the second interview; and (3) under the totality of the circumstances, appellant=s confession was given voluntarily. We have reviewed the reporter=s record of the suppression hearing, the trial court=s findings of fact and conclusions of law, and videotapes of the first and second interviews. Examining these portions of the record, we find that appellant=s will was not overborne, and his confession was made voluntarily. The majority of appellant=s arguments are based on statements made by Ruiz which do not rise to the level of a promise. For example, appellant argues Ruiz begins her Acampaign of promises@ by making the following statements: AWhat I=m here to talk to you about is something, I=m, that I=m going to try to help you out with. What I=m here to tell you is I=d like to help you out. . . . I=m here to help you out. . . . I=m going to do what I can.@ Ruiz=s generalized statements that she would Alike to help,@ will Atry to help,@and is Agoing to do what [she] can@ do not indicate the Aif-then@ relationship required to establish a promise. See Chambers v. State, 866 S.W.2d 9, 20 (Tex. Crim. App. 1993); see also Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983) (holding officer=s general, but unspecific offers to help are not likely to induce an untruthful statement). Similarly, appellant=s argument that Ruiz promised appellant he would receive psychiatric counseling is unsupported by the record. During the first interview, Ruiz made the following statements: The one that did it needs help. . . .That=s another thing I=m trying to tell you about. That I can get help for you. . . .You should be thinking about what I=m offering you. . . . I know that people that do these kinds of things need help. . . . I can get the right people to talk to you, to get it straight here. . . . I don=t understand why you don=t talk to me about this so that I can do something about getting you maybe a counselor to help you out. The State argues that none of Ruiz=s statements regarding counseling are positive or coercive. We agree with the State. Ruiz=s statements that she Acan get help@ and Acan do something about maybe getting a counselor@ are not promises. See Chambers, 866 S.W.2d at 20; see also Renfro v. State, 958 S.W.2d 880, 884 (Tex. App.CTexarkana 1997, pet. ref=d) (officer=s statement that he would try to get defendant help for a drug problem did not establish a promise). Appellant also directs us to statements made by Ruiz during the first interview wherein Ruiz offered to tell the judge that appellant told the truth. Specifically, Ruiz stated: AWhat I=m here to do is give you my word that when you tell me what happened and what you know about what happened, I will go in front of the judge and tell him that you told me the truth. . . . And what I=m telling you is that I=m willing to offer my word to a judge that you came in here and told the truth about what happened.@ In determining the voluntariness of a confession, police falsehoods are relevant. See Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); Green v. State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996). However, A[t]rickery or deception does not make a statement involuntary unless the method [is] calculated to produce an untruthful confession or was offensive to due process.@ Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). The effect of a lie must be analyzed in the context of all the circumstances of the interrogation. Mason, 116 S.W.3d at 257B58. Again, we have reviewed the videotapes of the first and second interviews in their entirety. Throughout the first interview, Ruiz repeatedly urged appellant to tell the truth, and made statements such as: AI don=t want you to lie. I want you to tell me what happened.@ Taken in context, Ruiz=s statements were not calculated to lead appellant to speak untruthfully. See Creager, 952 S.W.2d at 856; see also Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (holding defendant=s custodial statement was voluntary where defendant testified that interrogating officers promised to Atell the judge to take it easy@ on him). Appellant next argues that Ruiz=s promises of leniency caused him to confess untruthfully. Our review of the videotapes shows that Ruiz never promised appellant he would receive leniency in exchange for a confession. Ruiz told appellant that the range of punishment he could expect to face if convicted was Afive to ninety-nine@ years. During a subsequent discussion, Ruiz stated, AIt=s five versus ninety-nine,@ to which appellant immediately replied, Afive to ninety-nine.@ At the conclusion of the discussion, Ruiz told appellant, AI don=t have any power. I=m asking you to tell me the truth about what happened.@ Under the totality of the circumstances, we find that Ruiz suggested to appellant, at most, that he might receive a lighter sentence by being truthful. See Muniz, 851 S.W.2d at 254 (holding officer=s statement that leniency was sometimes shown to a defendant who confessed was not a promise). Our evaluation of the totality of the circumstances is not limited to analysis of the statements and actions of the police. We must also consider the characteristics of the suspect. Mason v. State, 116 S.W.3d 248, 261 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). A suspect=s ability to resist pressure is very relevant to the issue of whether his confession is voluntary. Id. Here, appellant does not claim he was mentally unstable, physically ill, or intoxicated at the time of his confession. See Greenwald v. Wisconsin, 390 U.S. 519, 520, 88 S.Ct. 1152, 1153, 20 L.Ed.2d 242 (1968) (physical illness); Columbe v. Connecticut, 367 U.S. 568, 620B21, 81 S. Ct. 1860, 1888, 6 L.Ed.2d 1037 (1961) (mental instability); Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996) (intoxication). Additionally, the record indicates appellant had considerable prior experience in dealing with the police, having been arrested on at least four prior occasions. See Haynes v. Washington, 373 U.S. 503, 522, 83 S.Ct. 1336, 1347, 10 L.Ed.2d 513 (1963) (considering suspect=s experience with police). These facts, as well as appellant=s behavior and demeanor during the videotaped interviews, indicate appellant=s will was not overborne. Finally, the State argues there is no causal relationship between Ruiz=s statements during the first interview and appellant=s decision to confess during the second interview. We agree. AAbsent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.@ Connelly, 479 U.S. at 164, 107 S.Ct. at 520. Appellant argues his will was overborne by a Acampaign of promises@ made to him during the first interview. However, appellant steadfastly maintained his innocence throughout the first interview and made no confession. It was not until the next morning, approximately twelve hours later, that appellant confessed to his crimes. During the intervening period, appellant spent the night in jail. On the morning of December 4, appellant was transported to HPD headquarters and administered a polygraph examination, which he volunteered to take. After being informed that he had failed the polygraph exam, appellant requested to speak to Ruiz. Appellant=s request initiated the second interview. At approximately 9:00 a.m., Ruiz arrived to speak with appellant, and appellant immediately began to confess. Ruiz again informed appellant of his Miranda rights, and appellant confessed to the kidnapping and rape of A.R. In his appellate brief, appellant attempts to establish a causal link between his confession and Ruiz=s statements during the first interview. In support of his argument, appellant directs us to statements made by him during the second interview, wherein appellant tells Ruiz that he wants to see his son, that he is willing Ato complete any program,@ and he wants Ruiz to Ahelp [him] out.@ Appellant=s argument is unpersuasive. The unedited videotape of the second interview demonstrates that the statements quoted by appellant were made more than fifteen minutes after the beginning of the interview, and after appellant had made several inculpatory statements. Additionally, the fact that appellant initiated the second interview and does not allege that any express or implied promises were made by Ruiz during the second interview weighs heavily against his claim of involuntariness. See Masterson v. State, 155 S.W.3d 167, 170B71 (Tex. Crim. App. 2005) (holding confession was voluntarily given when defendant initiated the interview and no positive promises were made by police); Johnson v. State, 68 S.W.3d 644,654 (Tex. Crim. App. 2002) (finding statement was voluntary where defendant initiated the idea of a deal and police made no guarantees). Based upon our review of the totality of the circumstances surrounding appellant=s confession, we hold that appellant=s confession was given voluntarily. Therefore, the trial court did not err in denying appellant=s motion to suppress. Accordingly, we overrule appellants sole point of error and affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed November 21, 2006. Panel consists of Justices Anderson, Hudson, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant and Hugo Penaflor are identical twins. Therefore, they have the same DNA profile. [2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [3] State=s Exhibit 19 (an edited videotape of the second interview) and State=s Exhibit 82 (an unedited videotape of the second interview) were admitted into evidence during the trial on the merits and published to the jury. [4] Appellant does not assert a claim under the Texas Constitution or Texas statutory law. Therefore, we do not conduct the separate analysis required to determine whether the statements of Officers Ruiz and Yanez constitute improper inducements under state law. See Muniz v. State, 851 S.W.2d 238, 251B52 (Tex. Crim. App. 1993) (requiring state and federal claims of involuntariness to be argued on separate grounds with separate substantive analysis or argument provided for each ground); see also Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004) (applying four-prong test to determine whether a promise rendered a confession involuntary pursuant to Article 38.21 of the Texas Code of Criminal Procedure); Herrera v. State, 194 S.W.3d 656, 659B60 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (applying Atotality of the circumstances@ test to claim asserted under federal constitutional law, and four-prong test to claim asserted under state law).