Affirmed and Opinion Filed July 26, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-12-00639-CR
VICENTE BARRUETA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F11-70647-J
OPINION
Before Justices FitzGerald, Francis, and Lewis Opinion by Justice FitzGerald
A jury found appellant Vicente Barrueta guilty of aggravated sexual assault of a child
under the age of six and assessed punishment at eighty years’ imprisonment. On appeal,
appellant challenges the sufficiency of the evidence, the correctness of the jury charge, and the
admission of his oral and written statements following his arrest. We affirm.
I. BACKGROUND
In the indictment, the State alleged that appellant sexually assaulted the complainant on
or about February 10, 2011 by causing his sexual organ to contact and penetrate the
complainant’s anus. The evidence showed that the complainant was a five-year-old girl at the
time of the alleged assault and appellant was twenty-three-year-old man. The complainant’s
mother, Silvia Torres, was a friend of appellant’s mother, Martina Solorzano, and they lived in the same apartment complex about a block apart. Appellant lived with his parents, his older
brother Lazaro, and his younger brother Santiago, who was about the complainant’s age. Torres
worked with appellant’s parents at night, cleaning offices. On February 10, 2001, Torres went to
work with appellant’s parents and left her daughter, the complainant, with Lazaro, appellant, and
Santiago. The complainant was asleep when Torres picked the complainant up around midnight.
Torres testified that the complainant made an outcry the next afternoon and said that
appellant had assaulted her. After being arrested, appellant was interviewed by the police on
April 13, 2011, and he gave oral and written statements. He was then indicted for aggravated
sexual assault of a child under six years of age. He pleaded not guilty, and he elected to have
punishment assessed by the jury. The jury found him guilty and assessed punishment at eighty
years’ imprisonment. The judge rendered judgment in accordance with the jury’s verdict, and
appellant timely appealed.
II. ANALYSIS
Appellant raises five points of error on appeal. In his first point of error he challenges the
sufficiency of the evidence. In his second, third, and fourth points of error he complains of jury-
charge error. And in his fifth point of error he challenges the admissibility of his post-arrest
statements to the police.
A. Sufficiency of the evidence
1. Standard of review
When reviewing the sufficiency of the evidence, we consider all of the evidence in the
light most favorable to the verdict and decide whether a rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Haywood v. State, 344 S.W.3d
454, 458–59 (Tex. App.—Dallas 2011, pet. ref’d). In this case, the elements of the offense are
that appellant intentionally or knowingly caused his sexual organ to contact or penetrate the
–2– complainant’s anus at a time when the complainant was younger than six. See TEX. PENAL CODE
ANN. § 22.021(a), (f) (West 2011). The jury is the sole judge of credibility and weight to be
attached to the testimony of witnesses. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.
2012). The testimony of the victim, even a child victim, is sufficient to support a conviction for
sexual assault. Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet.
ref’d).
2. Evidence supporting the conviction
The complainant, who was six years old at the time of trial, testified to the following
facts. She testified that when she was at “Santiago’s house,” she was playing hide-and-seek
when “something bad” happened. She went into the bathroom, and appellant also went into the
bathroom. Appellant closed and locked the door. Appellant pulled the complainant’s clothes
down and pulled his own clothes down, and he touched her. When asked where appellant
touched her, she replied, “In my bottom.” Using drawings of a naked boy and girl, the
complainant explained that appellant touched her bottom over her clothes with his hand and
underneath her clothes with his penis. Using anatomically correct dolls, she also demonstrated
that appellant touched her anus with “his private.” Appellant stopped when Santiago tried to
open the door. The complainant put her clothes back on and left the bathroom crying. She
testified that she told her mother about the incident the next day after school. On cross-
examination, the complainant was asked how she knew that appellant touched her bottom
underneath the clothes. She replied that she could feel it and that it felt hot.
The complainant’s mother, Torres, testified as follows. When she went to work the
afternoon of February 10, 2011, she dropped the complainant off at appellant’s apartment.
Appellant, Lazaro, and Santiago were there. Torres picked the complainant up after work at
around midnight. The complainant was asleep at the time and appeared to be okay. After the
–3– complainant got home from kindergarten the next day, the complainant told Torres that appellant
had taken her into the bathroom and touched her behind “with his part here.” The complainant
demonstrated what she meant by “his part” by pointing to herself in such a way that Torres
understood her to mean appellant’s penis. The complainant also told Torres that appellant “laid
her down on the floor” and “her head [was] hitting against the bottom of the toilet.” Torres
testified that she took the complainant to the doctor the next day, and the doctor sent her to
“Children’s.” Before the incident, the complainant was a very open and very independent child
who liked to sleep alone. But at the time of trial, she was “scared,” distracted in school, and
slept holding onto or close to Torres.
A physician’s assistant named Shandolyn Story testified that on February 12, 2011,
Torres brought the complainant to the family practice clinic where Story worked. When it was
clear that there was a possible sexual assault, Story referred Torres to Children’s Hospital in
Dallas because the clinic was not equipped to deal with a possible sexual-assault case. A
pediatric nurse practitioner named Sandra Onyinanya testified that she was working at Children’s
Hospital on February 14, 2011. Onyinanya examined the complainant on that date. Her
examination revealed no unusual findings, but Torres told her that appellant had “laid the child
on the bathroom floor” and “proceeded to rub his penis in the hole she poops from.”
Dallas Police Detective Glen Slade testified as follows. He is fluent in Spanish. He
watched the forensic interview of the complainant and then interviewed appellant after his arrest.
He first advised appellant of his rights in Spanish. Appellant signed a card that had his rights
printed on it in Spanish, and he agreed to waive his rights and speak with Slade. The interview
lasted about forty-five minutes. Slade testified that appellant admitted
that they were playing hide-and-seek in the bathroom with the light out and that she got on top of him and aroused him, and they were both wearing shorts and that he admitted several times that his penis had made contact, and he one time even admitted that it penetrated her anus. –4– The trial judge admitted a DVD recording of the interview into evidence, as well as an English
transcript of the interview. Appellant also made a handwritten statement during the interview,
and the trial judge admitted the statement and an English translation of the statement into
evidence. The English translation of appellant’s statement says:
We were taking care of [the complainant] at my apartment. We were playing hide and go seek. We went to the bathroom with [the complainant]. We started to play she climbed on top of me hard and that is why I got excited. She lowered the pants a little and that is why there was a little bit of contact, a thin pair of shorts, her butt with my penis. We were sitting on the floor. I feel very bad because it was a game a stupidity.
Slade had no other involvement in the case after the interview.
Appellant testified at trial. During his testimony, he admitted that he told Slade that he
put his penis “inside of her butt.”
3. Appellant’s argument
Appellant argues that the evidence was insufficient to support his conviction for a host of
reasons. For example, he points out that there was no medical corroboration of the alleged
sexual abuse. When the complainant received a medical examination four days after the alleged
assault, there were no abnormal findings of any kind. Appellant also points out that the
complainant’s therapist after the incident testified that the complainant said that appellant never
gave her any presents, which would suggest that appellant did not “groom” the complainant in
preparation for assaulting her. Appellant speculates that the complainant may have been
assaulted instead by a man who was living with her and the complainant’s mother.
Appellant’s older brother Lazaro testified that he was in his bedroom that evening and
that he heard his little brother Santiago counting “one, two, three, four.” Although the door to
his bedroom was closed, he could hear what was going on outside and could hear footsteps
outside his room. But he never heard a noise like “a head hitting a toilet bowl or seat in the rest
room.” There was evidence that Lazaro’s bedroom and the bathroom in question were very close
–5– together, further suggesting that he would have heard something if the complainant’s accusations
were true. Torres herself testified that Lazaro was a very good and responsible person.
Appellant points to evidence that he argues undermines the complainant’s credibility.
For example, the complainant testified that she did not scream during the assault, and when
asked why she didn’t scream, she replied, “I don’t know, but I didn’t want to scream.” Appellant
argues that complainant’s failure to scream is inconsistent with his guilt, because the
complainant knew that Lazaro was in the apartment quite nearby. Appellant argues that the
complainant was troubled and vulnerable to manipulation by her mother, and in support he relies
on the complainant’s testimony that she missed her father, who did not live with her and her
mother, and on testimony that the complainant had problems with bed-wetting and “[a] bit” of an
unspecified eating disorder. Appellant also contends that the complainant’s allegations were too
detailed and mature to have originated with a five-year-old, that the complainant was
predisposed to go along with false allegations because she was assertive and liked to talk, and
that the complainant underwent counseling and consultations with the prosecution that involved
repeating the allegations.
Appellant attempts to undermine Torres’s credibility in a couple of ways. He points out
that there was some evidence that Torres continued to associate with appellant’s mother for at
least a few weeks after the incident. He also argues that the evidence suggested that there was a
romantic relationship between Torres and appellant, that Torres would not have wanted to admit
that relationship (apparently to appellant’s parents), and that Torres therefore had a motive to
have appellant “removed from her life by having him arrested.” For example, Torres testified
that she talked to appellant on the phone the day after the incident, and appellant said something
to the effect of, “You have not given me anything and I have given you things,” and, “You have
not given me any gifts.” Torres also testified that before the incident, appellant tried to hold her
–6– hand and hug her, but she said no. She also testified that appellant took her and perhaps the
complainant to the park twice, and that appellant also took her to work an unspecified number of
times.
Appellant testified at trial and denied that his penis ever contacted any part of the
complainant’s rear.
4. Application of the law to the facts
We reject appellant’s challenge to the sufficiency of the evidence. The points appellant
makes about the evidence involve, at most, weight and credibility determinations that the jury
was entitled to resolve against him.
The jury was entitled to credit the complainant’s and her mother’s testimony against
appellant. See Merritt, 368 S.W.3d at 525 (“The jury is the sole judge of credibility and weight
to be attached to the testimony of witnesses.”). Whether the complainant’s testimony was
unbelievably mature for a child her age or had been coached by repetition was for the jury to
decide. It was also for the jury to decide whether the complainant’s mother’s testimony was
influenced by any kind of bias against appellant. Although there was no medical evidence of the
assault, the State did put on evidence that anal tissue both is capable of dilation and heals
quickly, and it was “absolutely possible” for a young child to be anally penetrated by an adult
man and still have normal findings in a medical examination. The State also put on evidence that
not all sexual assailants “groom” a child victim with presents and special attention before
committing an assault. Some sexual assaults are simply crimes of opportunity. It was up to the
jury to weigh all this testimony. It was also the jury’s prerogative to assess the significance of
Lazaro’s testimony that he apparently heard nothing during the alleged assault, and the probative
value of appellant’s statements in his interview with Detective Slade. And of course it was the
jury’s province to assess appellant’s credibility when he testified.
–7– We conclude that the evidence was sufficient to support the jury’s verdict, and we
overrule appellant’s first point of error.
B. Jury-charge error
Appellant’s second, third, and fourth points of error concern alleged errors in the jury
charge for the punishment phase of the trial. Appellant did not object to the jury charge.
Accordingly, in this appeal we determine first whether the jury charge was erroneous. Barrios v.
State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If it was, we reverse only if the error was
so egregious and created such harm that it denied appellant a fair and impartial trial. See id. In
assessing harm, we may consider (1) the charge itself, (2) the state of the evidence, including the
contested issues and the weight of the probative evidence, (3) the arguments of counsel, and (4)
any other relevant information revealed by the record. Hutch v. State, 922 S.W.2d 166, 171
(Tex. Crim. App. 1996).
1. Parole
Appellant complains of the following instruction in the punishment jury charge:
You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and are no concern of yours.
In his second point of error, appellant argues that this instruction was erroneous because he was
not eligible for parole. See TEX. GOV’T CODE ANN. § 508.145(a) (West 2012). The State agrees
that appellant was not eligible for parole, but the State contends that the instruction was not
erroneous or, alternatively, that the instruction did not cause egregious harm.
Appellant argues that the instruction was erroneous under article 37.07 of the Texas Code
of Criminal Procedure, contending specifically that section 4(a) of that article required the trial
judge not to give any instructions regarding parole. Section 4(a) provides a four-paragraph set of
–8– instructions about “good conduct time” and parole that the trial judge “shall” give the jury if the
defendant has been convicted of certain offenses, “unless the defendant has been convicted of . . .
an offense under Section 22.021, Penal Code, that is punishable under Subsection (f) of that
section.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West 2012). Appellant was convicted
under section 22.021 and was punishable under subsection (f) of that section, so the section 4(a)
instructions were not required. But, as the State points out, the trial judge did not give the jury
the four-paragraph section 4(a) instruction. Rather, the trial judge gave the jury the two-sentence
instruction quoted above, which is not found in section 4(a). Thus, the instruction was not
erroneous under section 4(a) for the simple reason that section 4(a) says nothing about the actual
instruction used by the trial judge.
Appellant also argues that the instruction was erroneous by analogy to Hill v. State, 30
S.W.3d 505 (Tex. App.—Texarkana 2000, no pet.), and Navratil v. State, No. 05-97-01404-CR,
2001 WL 92688 (Tex. App.—Dallas Feb. 5, 2001, pet. ref’d) (not designated for publication). In
each of those cases, the trial judge erroneously instructed the jury that the defendant’s “good
conduct time” would count towards the time the defendant had to serve before becoming eligible
for parole, when under the law good conduct time actually did not count. Hill, 30 S.W.3d at 507;
Navratil, 2001 WL 92688, at *2. And in each case, the court of appeals reversed, holding that
the error caused egregious harm. Hill, 30 S.W.3d at 508–09; Navratil, 2001 WL 92688, at *3–4.
The State distinguishes Hill and Navratil, pointing out that those cases involved jury charges that
affirmatively misstated the law. In the instant case, by contrast, the instruction in question does
not misstate the law, but rather instructs the jury “not to discuss . . . how long the defendant will
be required to serve any sentence” imposed. Moreover, the court of criminal appeals has
considered instructions similar to the one in this case and consistently held that their submission
was not an abuse of discretion. E.g., Janecka v. State, 739 S.W.2d 813, 833 (Tex. Crim. App.
–9– 1987) (per curiam) (capital murder case); Williams v. State, 668 S.W.2d 692, 701 (Tex. Crim.
App. 1983) (same); Freeman v. State, 556 S.W.2d 287, 304 (Tex. Crim. App. 1977) (same). We
conclude that the instruction in question did not misstate the law and was not erroneous.
Appellant was not eligible for parole, but the instruction did not tell the jury that he was. The
instruction instructed the jury not to consider how long appellant would actually serve the
sentence the jury imposed, and that that question was solely for the Board of Pardons and
Paroles. Appellant acknowledges that pardon was theoretically possible. The instruction was
not erroneous.
Alternatively, assuming that the instruction was erroneous because it somehow implied
that appellant was eligible for parole, we conclude that the harm to appellant was not egregious.
We keep in mind the presumption that the jury understood and followed the court’s charge
absent evidence to the contrary, Crenshaw v. State, 378 S.W.3d 460, 467 (Tex. Crim. App.
2012), and that the instruction told the jurors not to discuss how long the defendant would
actually serve. The instruction was not emphasized in the punishment jury charge in any way.
The evidence included appellant’s denial of the offense, which the jury rejected; thus, the jury
was entitled to consider that appellant refused to take responsibility for his actions in assessing
his punishment. Parole was not mentioned in punishment closing arguments, and the jury did
not send out any questions about parole during deliberations. Although the punishment assessed
by the jury, eighty years’ imprisonment, was lengthy, it was short of the maximum punishment it
could have imposed, and the crime of sexual assault on a five-year-old girl was heinous. Given
all these factors, we conclude that any harm to appellant was not egregious.
In so concluding, we distinguish Navratil, in which we held that an affirmatively and
legally incorrect jury instruction about parole eligibility caused egregious harm. In Navratil, we
emphasized that our holding of egregious harm depended on the presence of an “absolute
–10– misstatement of the law” in the jury charge. 2001 WL 92688, at *3; see also id. at *4 (“The jury
was absolutely misinformed as to how the parole laws and good conduct time work, particularly
with respect to this defendant.”). The instruction in this case was not affirmatively incorrect. At
most, it might have suggested to the jury that appellant was eligible for parole or pardon, when in
fact he was not eligible for parole. For the reasons stated above, we conclude that any harm
caused by the instruction was not egregious.
We overrule point of error two.
2. Pardon
In his third point of error, appellant attacks the same jury instruction that he attacks in his
second point of error, but for a different reason—he contends that the instruction was misleading
because the possibility that he will be granted a pardon is “infinitesimal.” For factual support, he
relies on news reports to establish the number of inmates incarcerated in Texas and the number
of pardons the current governor has granted based on innocence in aggravated sexual assault
cases. But as the State points out, we may not consider these factual assertions based on
evidence not in the record. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004)
(“An appellate court may not consider factual assertions that are outside the record . . . .”)
(footnote omitted). Appellant acknowledges that the pardon laws were “theoretically applicable”
to his case, and that the Board of Pardons and Paroles could recommend clemency to the
governor.
We reject appellant’s contention that the instruction was erroneous or misstated the law
simply because the likelihood that appellant would be pardoned may be low. Assuming the
instruction implied that it was possible for appellant to be pardoned, it was correct. We overrule
appellant’s third point of error.
–11– 3. Cumulative error
In his fourth point of error, appellant contends that the jury instruction discussed above
caused harmful error because it both erroneously implied the applicability of parole law and
referenced pardon law even though pardon was very unlikely. See Chamberlain v. State, 998
S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable that a number of errors may be
found harmful in their cumulative effect.”). Cumulative error is inapplicable here, since the
instruction was only a single error if it was error at all. Moreover, we have concluded that the
instruction was not erroneous, and that if it was erroneous with reference to the parole-law issue,
it did not cause egregious harm. We accordingly also reject appellant’s cumulative-error
argument and overrule his fourth point of error.
C. Admission of appellant’s written and videotaped statements
In his fifth and final point of error, appellant argues that the trial judge erred by denying
appellant’s motion to suppress and by admitting appellant’s written and videotaped statements.
Appellant and Detective Slade testified about the circumstances of those statements outside the
presence of the jury, after which the trial judge denied the motion to suppress. The judge also
signed findings of fact and conclusions of law in support of her ruling. She found, among other
things, that appellant’s statements were voluntarily made.
1. Standard of review and applicable law
We review the trial judge’s determination as to the voluntariness of a confession under an
abuse-of-discretion standard. Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007).
This is a bifurcated standard of review under which we give almost total deference to the trial
judge’s determination of historic facts and any mixed questions of law and fact that depend on
the credibility of witnesses, but we give de novo review to pure questions of law and mixed
–12– questions that do not depend on credibility determinations. Martinez v. State, 348 S.W.3d 919,
922–23 (Tex. Crim. App. 2011).
“A statement of an accused may be used in evidence against him if it appears that the
same was freely and voluntarily made without compulsion or persuasion, under the rules
hereafter prescribed.” TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005). The court of
criminal appeals has identified three distinct legal theories under which a statement can be ruled
involuntary and thus inadmissible: (1) general involuntariness under article 38.22, section 6 of
the code of criminal procedure, (2) Miranda, as expanded in sections 2 and 3 of article 38.22,
and (3) the Due Process Clause. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App.
2008). This case involves the first Oursbourn theory of involuntariness. That theory can involve
police overreaching, but police overreaching is not essential to the claim. Id. at 172. Factors that
could be relevant to a general-voluntariness inquiry include illness, intoxication, effects of
medications, youth, mental retardation, and threats. Id. at 170–73. These factors are usually not
enough, by themselves, to render a statement inadmissible. Id. at 173; see also Leza v. State, 351
S.W.3d 344, 352–53 (Tex. Crim. App. 2011) (upholding trial court’s conclusion that confession
was voluntary even though some evidence showed defendant injected heroin just before his
arrest).
When a defendant presents evidence raising a voluntariness question, the State must
controvert that evidence and prove voluntariness by a preponderance of the evidence. State v.
Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999). The State is not put to its burden unless
the defendant presents evidence that raises a voluntariness question. Id. A confession is
involuntary if the totality of the circumstances demonstrates that the confessor did not make the
decision to confess of his own free will. Morales v. State, 371 S.W.3d 576, 583 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d).
–13– 2. The evidence and findings
Before the jury was sworn, the trial judge held a hearing on appellant’s motion to
suppress. Detective Slade interviewed appellant in Spanish, and the judge considered a certified
English translation of the interview. The interview was videotaped, and it is not clear from the
record whether the trial judge watched the video of the interview or not. Detective Slade and
appellant both testified at the motion-to-suppress hearing.
Slade testified that he learned to speak Spanish through a two-month training course at
Brigham Young University and through living in Chile for a year and a half. He has spoken
Spanish since 1982. He is also married to a Mexican woman, and they speak Spanish in the
home. He conducted the interview of appellant in Spanish, and he advised appellant of all his
rights. Appellant also read his rights printed on a card in Spanish. Appellant indicated that he
wanted to waive his rights, and he agreed to speak with Slade. Slade also testified that he never
directly promised appellant anything for his statement and that he did not coerce or threaten
appellant in any way. Appellant said more than once that he understood the seriousness of the
crime he was charged with. Appellant made a written statement during the interview after being
advised of his rights again and agreeing to waive his rights. On cross-examination, Slade said he
did not recall that appellant seemed dazed or slow to respond to his questions; he testified that
appellant was “lucid.” Appellant’s counsel brought out during cross-examination that Slade used
the Spanish word meaning “to pass on” for “waive” when he interviewed appellant, and Slade
further explained, “That’s as close a literal translation as you can get.” Slade agreed that
appellant’s written statement shows “a very poor command of Spanish.” On redirect
examination, Slade testified that he talked to appellant for forty-five minutes, that appellant
indicated that he was understanding what Slade was saying, and that appellant answered his
questions in a way that made sense in the context of what Slade was asking him.
–14– Appellant testified that he got two hours of sleep the night before he was arrested and
interviewed, and that he also slept a little bit before he was arrested that afternoon. He testified
that he also fell asleep at the police station. When he was taken to the interview room, he felt
very dizzy, nauseated, and faint. He further testified that he did not understand his rights, and
that he had no idea why he initialed the card that spelled out his rights. He did not understand
what Slade meant by the word “waive.” He also testified that Slade indicated that writing a
statement would be of some benefit to appellant before the grand jury. On cross-examination,
appellant testified that he did not understand what Slade was asking him and that he did not
understand Slade’s Spanish. When asked how he was able to answer Slade’s questions,
appellant answered, “I have no idea.”
The trial judge denied the motion to suppress. She made written findings, including
findings that Slade was able to converse fluently in the Spanish language, that appellant
understood his rights and voluntarily waived the right to remain silent, and that appellant’s
statements were voluntarily made. She also found that there was “no indication or evidence of
mental disease or defect that made [appellant] unable to understand his statutory or constitutional
rights.”
3. Application of the law to the facts
We conclude that the trial judge did not abuse her discretion. Appellant focuses on two
matters in arguing that his statements were made involuntarily. First, he argues at some length
that Detective Slade’s Spanish was very poor and that this “caused misunderstanding in
connection with core concerns.” Second, he argues that his statements were influenced by his
lack of sleep, dizziness, nausea, and feeling faint.
The quality of Slade’s Spanish and the degree to which appellant understood Slade’s
questions were questions of fact for the trial judge to resolve. Slade testified that he was fluent
–15– in Spanish and testified to facts that would support that conclusion. Slade also testified that
appellant indicated that he understood what Slade was saying and that appellant answered his
questions in ways that made sense in context. Moreover, the written transcript of the interview
also shows that appellant responded intelligibly to Slade’s questions. On the other hand,
appellant testified that he did not understand Slade’s Spanish. The trial judge heard the
evidence, observed the witnesses, and found that Slade’s Spanish was fluent and that appellant
understood his rights and voluntarily waived his right to remain silent. The record supports the
trial judge’s determination, and we will not disturb it.1 See State v. Stevens, 235 S.W.3d 736,
739–40 (Tex. Crim. App. 2007) (“Courts reviewing a ruling on a motion to suppress afford
almost total deference to a trial court’s determination of historical facts supported by the record,
especially when the determination is based on an evaluation of credibility and demeanor.”)
(footnote omitted).
We reach the same conclusion as to appellant’s claims that he was not feeling well during
the interview. Appellant testified that he had not slept much before his interview and that he did
not feel well during his interview, but it was the trial judge’s prerogative to assess his credibility
and believe or disbelieve his testimony. Moreover, during cross-examination, Detective Slade
testified that he did not remember appellant’s seeming dazed or slow to respond during the
questioning. He also testified that appellant was lucid and that part of his training in conducting
interviews is ensuring that the interview subjects are of sound mind and are not sick. By finding
that appellant’s statements were voluntarily made, the trial judge rejected appellant’s contention
that his physical condition was so grave that he did not make his statements of his own free will.
Additionally, as previously noted, matters such as youth, intoxication, and illness are usually not
1 We have assumed in our analysis that the trial judge did not review the video itself in making her determination, but we would reach the same conclusion under the opposite assumption. The video shows Slade and appellant conversing in Spanish. There is no indication in the video that appellant had any difficulty understanding Slade.
–16– enough by themselves to render a statement involuntary. See Oursbourn v. State, 259 S.W.3d at
173. The trial judge did not abuse her discretion by finding that appellant’s statements were
voluntary despite his alleged sleep deprivation and physical condition.2
The record supports the trial judge’s denial of appellant’s motion to suppress. We
overrule appellant’s fifth point of error.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE
Do Not Publish TEX. R. APP. P. 47 120639F.U05
2 Again, we have assumed that the trial judge did not review the video itself in making her findings, but we would reach the same conclusion under the opposite assumption. In the video, appellant does not appear to be suffering from any distress.
–17– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
VICENTE BARRUETA, Appellant On Appeal from the Criminal District Court No. 3, Dallas County, Texas No. 05-12-00639-CR V. Trial Court Cause No. F11-70647-J. Opinion delivered by Justice FitzGerald. THE STATE OF TEXAS, Appellee Justices Francis and Lewis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 26th day of July, 2013.
–18–