Cantu v. State

830 S.W.2d 166, 1992 Tex. App. LEXIS 997, 1992 WL 85183
CourtCourt of Appeals of Texas
DecidedFebruary 28, 1992
DocketNos. 05-88-01194-CR, 05-88-01195-CR
StatusPublished
Cited by9 cases

This text of 830 S.W.2d 166 (Cantu v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cantu v. State, 830 S.W.2d 166, 1992 Tex. App. LEXIS 997, 1992 WL 85183 (Tex. Ct. App. 1992).

Opinion

KAPLAN, Justice.

A jury convicted Felix Edward Cantu on two counts of aggravated sexual assault of a child under the age of fourteen. Punishment, enhanced by two prior felony convictions, was assessed at confinement for ninety-nine years and a $5000 fine for each offense. On an earlier appeal from both convictions, this Court held that appellant’s statements to a Department of Human Services investigator were the result of a custodial interrogation and therefore erroneously admitted into evidence at trial because no Miranda4 warnings were given. We further held that this was harmful error, and we remanded the two causes for trial. See Cantu v. State, 785 S.W.2d 1, 3-5 (Tex.App.—Dallas 1990), rev’d, 817 S.W.2d 74 (Tex.Crim.App.1991). The Court of Criminal Appeals granted the State’s petition for discretionary review and determined that the DHS investigator did not act as an agent of law enforcement or pursuant to police practices. Accordingly, the Court of Criminal Appeals reversed this Court’s judgment and remanded the cases for consideration of appellant’s remaining points of error. See Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991).

In his three remaining points, appellant contends that: (1) his confession was not voluntary and should have been excluded from evidence; (2) the two complaining children’s out-of-court statements about the alleged offenses were hearsay; and (3) testimony from the DHS investigator about outcry statements constituted improper bolstering. We overrule these points of error and affirm the judgments of the trial court.

VOLUNTARINESS OF CONFESSION

In his second point of error, appellant claims that the evidence presented at the pretrial suppression hearing was insufficient for the trial court to conclude that his confession was voluntary.

To be admissible, a confession must be freely and voluntarily made, and must not have been obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. See Hawkins v. State, 613 S.W.2d 720, 730-32 (Tex.Crim.App.) (op. on reh’g), cert. denied, 454 U.S. 919, 102 S.Ct. 422, 70 L.Ed.2d 231 (1981); Tex.Code Crim.Proo. Ann. art. 38.21 (Vernon 1979). An inculpa-tory statement is inadmissible if it was obtained as a result of a benefit positively promised to the defendant, and if the promise was made or sanctioned by one in authority and of such a character as would be likely to influence a defendant to speak untruthfully. Hardesty v. State, 667 S.W.2d 130, 134 (Tex.Crim.App.1984). At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses and of the weight to be given their testimony. The judge may believe or disbelieve all or any part of any witness’s testimony. We do not disturb these findings absent a clear abuse of discretion. Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim.App.1990).

The circumstances surrounding this confession were hotly contested at the suppression hearing. Barbara Anderson, the DHS intake investigator to whom appellant made oral and written statements, testified that she routinely interviewed family members and everyone connected with the case when there were allegations of child molestation or child abuse. Anderson said that appellant called her and requested that she come to the jail where he was in custody. Anderson went to the jail. Appellant wanted Anderson to understand his side of the story with respect to the two children who were the complainants. Anderson said that she did not coerce or threaten appellant, nor did she make any promises of leniency in order to obtain the statements.

On cross-examination, Anderson stated that she attempted to contact appellant about the alleged child abuse. She told appellant that DHS offered group counseling, but made no assurances of probation and counseling. Anderson took appellant's statement as a matter of routine. She said that the written statement was in appellant’s handwriting and consisted of appel[169]*169lant’s words. Anderson denied telling appellant what to write. A caseworker and notary were present when appellant wrote and signed the statement. Anderson stated that she did not promise appellant that she would bring a lawyer to talk to him.

Appellant testified that he contacted Anderson because he thought that the actions of DHS personnel caused his incarceration. Appellant was aware that Anderson wanted to talk to him, and he contacted her in response to those efforts. Appellant agreed to talk because Anderson offered him probation and counseling if he pleaded guilty to the charges. Anderson told him she would bring a lawyer with her, but when she got to the jail, she said the lawyer was tied up and couldn’t make it. Appellant said that Anderson promised to help him. He denied writing and signing the notarized document introduced into evidence as his written statement. Appellant said that he wrote and signed a document containing only four lines, and that Anderson told him what to write.

On cross-examination, appellant stated that he did want to talk to Anderson. He said that his written statement was notarized after he finished writing it, but the notary was not present while he wrote it. Appellant again denied that the statement introduced into evidence was the statement he wrote and signed.

On rebuttal, Anderson confirmed that the statement introduced into evidence was a copy of the statement written and signed by appellant. Anderson said that the original document was in the DHS file and was available. She stated that she did not promise or offer probation to appellant, explaining that such matters were not within the scope of her job. Anderson did tell appellant that she was there to help him because it was DHS’s job to help reunify families. She did not offer anything to appellant, and she never told him that she was going to bring him a lawyer.

The trial court found that Anderson did not use coercion, threats or promises to secure the oral and written confessions. Anderson stated that she gave no assurances of counseling or probation, and her testimony does not indicate that counseling was offered to induce or coerce appellant’s statements. The trial court’s findings are supported by the record and must be accepted by this Court on appeal. See Meek, 790 S.W.2d at 621. We overrule the second point of error.5

OUTCRY STATEMENTS

In his third point of error, appellant contends that the trial court erred in allowing Anderson to testify at trial about statements made by the two child complainants regarding the alleged offenses.

When it became apparent that the prosecutor was seeking testimony from Anderson about statements made to her by one of the complainants, defense counsel objected to “anything [the complainant] said as hearsay and bolstering the witness.” The prosecutor responded that the testimony was admissible as an outcry statement. See Tex.Code Crim.Proc.Ann. art. 38.072 (Vernon Supp.1992).

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Cite This Page — Counsel Stack

Bluebook (online)
830 S.W.2d 166, 1992 Tex. App. LEXIS 997, 1992 WL 85183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cantu-v-state-texapp-1992.