Criminal Case decided by 5th Court of Appeals on July 28, 2017

The 5th Court of Appeals decided CLEOFAS ALEJANDRO RUIZ, Appellant v. THE STATE OF TEXAS, Appellee, on July 28, 2017.

The Court issued a memorandum opinion affirming Appellant’s conviction for Continuous Sexual Abuse of Young Child or Children.

The case was on appeal from the 296th Judicial District Court in Collin County, Texas, as Trial Court Cause No. 296-80461-2016. From the appellate court:

The complainant in this case, B.O., fifteen years old at the time of trial, testified that she was about four or five when appellant, her stepfather, moved into the home she shared with her mother, Sara, and her younger sister. For the first few years, Sara, appellant, and their newborn daughter shared one of the three bedrooms in the home, appellant’s son and nephew shared another room, and B.O. and her younger sister shared the third room. B.O. was not sure where appellant’s teenaged daughter Rebeca slept when she stayed with them, but B.O. thought it was probably the boys’ room. Although B.O. and her younger sister had bunk beds, they often slept together in the bottom bed because neither one liked sleeping on the top bed. When they shared a bed, B.O. would sleep on the outside; her sister slept next to the wall. Her sister was a sound sleeper and difficult to wake up.

B.O.’s biological father first learned about the sexual abuse in December of 2015, when he was driving her home from counseling. That day, B.O.’s boyfriend had written a text message to her saying he did not like appellant, which B.O. read aloud. Her father asked why her boyfriend did not like appellant, and B.O. said it was because appellant touched her when she was younger. Her father talked to B.O.’s counselor, Vilma Cea, a licensed marriage and family therapist. B.O. told Cea about what had happened using, as B.O. explained, “just general statements,” and not providing any details. Cea then called Child Protective Services.

Twenty-three-yearold Rebeca, appellant’s biological daughter, testified, for example, that she lived in the house with appellant and Sara for about a year and a half and that she slept in the girls’ bedroom and never saw appellant molesting B.O. According to Rebeca, B.O. had a bad reputation for being honest and she was frequently caught telling lies.

Other defense witnesses similarly testified that B.O. had a poor reputation for honesty. Appellant’s twenty-five-year-old son, Ricardo, testified that he lived with appellant and Sara from about 2007 until 2009 and that, during that time, B.O. had a bad reputation for honesty. Ricardo also noted that B.O. had nearly gotten him into trouble once, but had gotten caught. B.O.’s stepmother, Donna, who was then married to but divorcing Lee, B.O.’s biological father, testified that she saw B.O. regularly beginning in 2008 because she would stay one week with appellant and Sara and one week with her and Lee. In Donna’s opinion, B.O. had a reputation for not being honest. Donna admitted that she had not spoken to B.O. since July of 2015, and that she was unfamiliar with B.O.’s reputation for truthfulness at the time she made her outcry.

Article 38.22 governs the admissibility of statements made by a defendant during custodial interrogation in a criminal proceeding. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (citing TEX. CODE CRIM. PROC. ANN. art. 38.22). Article 38.22 requires that a defendant be provided with warnings virtually identical to those required by Miranda, but also that the accused has the right to terminate the interview at any time. Id. It further provides that an oral statement is admissible against a defendant in a criminal proceeding if, among other things, the defendant “knowingly, intelligently, and voluntarily” waived the rights set out in the warnings. Id

The State has the burden of showing a defendant knowingly, intelligently, and voluntarily waived his rights under Miranda and article 38.22 by a preponderance of the evidence. Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011). In evaluating whether an individual waived his rights, courts look at (1) whether the waiver was made voluntarily, which is defined as being a product of a free and deliberate choice rather than intimidation, coercion, or deception; and (2) whether the waiver was made with full awareness of both the nature of the rights being abandoned and the subsequent consequences of that decision. Id. at 349–50, 352. Such an evaluation involves the totality of the circumstances, which requires the consideration of all the circumstances surrounding the interrogation, including the defendant’s experience, background, and conduct. Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010).

A waiver can be expressly made or implied by the accused’s conduct. Berghuis v. Thompkins, 560 U.S. 370, 384 (2010); Joseph, 309 S.W.3d at 24. An implied waiver can be established upon a showing that the accused (1) was given the proper warnings; (2) understood the warnings and their consequences; and (3) made an uncoerced statement. Berghuis, 560 U.S. at 382–85; Leza, 351 S.W.3d at 354 n.33; Howard v. State, 482 S.W.3d 249, 256 (Tex. App.–– Houston [1st Dist.] 2015, pet. ref’d); Hernandez v. State, 387 S.W.3d 881, 885 (Tex. App.—San Antonio 2012, no pet.). In Berghuis, the Supreme Court noted that “[t]he main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel.” Berghuis, 560 U.S. at 383; see Hernandez, 387 S.W.3d at 885. Therefore, “[a]s a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” Berghuis, 560 U.S. at 385; see also Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988) (en banc) (“the general rule is that neither a written nor an oral express waiver is required”). The Berghuis court summarized its holding by stating, “In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” Berghuis, 560 U.S. at 388–89.

The record in this case shows that appellant willingly shared his version of events with Sergeant Driver immediately after receiving and acknowledging his understanding of the Miranda and article 38.22 warnings. At no time during the approximate two-and-one-half hour interview did appellant ask to stop the interview or ask for counsel. In addition, appellant makes no allegations of coercion, nor does he argue that he did not understand the warnings. Indeed, appellant read the warnings aloud and said he understood them, after which Sergeant Driver read the warnings aloud to appellant, and appellant verbally agreed or otherwise indicated that he understood those rights. Appellant also signed his initials next to each of the five rights, and he signed his name at the bottom of the form. The fact that appellant neither signed his initials next to the waiver language on the form nor explicitly stated he was waiving his rights does not mean that he invoked his Miranda rights. See, e.g., U.S. v. Plugh, 648 F.3d 118, 125 (2d Cir. 2011) (“[A] refusal to waive rights, however unequivocal, is not necessarily equivalent to an unambiguous decision to invoke them.”). As the court of criminal appeals stated in Joseph, “[a]ppellant’s objection to the absence of a written or articulated waiver runs contrary to ‘the general rule . . . that neither a written nor an oral express waiver is required.’” Joseph, 309 S.W.3d at 24 (quoting Watson, 762 S.W.2d at 601). A waiver need not assume a particular form and, in some cases, a waiver can be clearly inferred from the actions and words of the person interrogated. See id. This is such a case.

It was the responsibility of the factfinder to resolve the conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts. See Jackson, 443 U.S. at 319; see also Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). We do not sit as the thirteenth juror and substitute our judgment for that of the factfinder by re-evaluating the weight and credibility of the evidence. Isassi, 330 S.W.3d at 638. Viewing the evidence under the appropriate standard, the trial court could have found beyond a reasonable doubt that appellant committed two or more acts of sexual abuse during a period of thirty or more days, as charged in the indictment. Deferring to the factfinder’s determination of the credibility of the witnesses and the weight to be given to their testimony, based on the cumulative force of all the evidence when viewed in the light most favorable to the verdict, and considering the reasonable inferences to be drawn from that evidence, we therefore conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. We overrule appellant’s second issue


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Criminal Case decided by 5th Court of Appeals on July 28, 2017 – The Dallas Lawyer