James Milton Roberts v. State

Opinion

NO. 07-07-0403-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 28, 2009 ______________________________

JAMES MILTON ROBERTS,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 410TH DISTRICT COURT OF MONTGOMERY COUNTY;

NO. 07-07-07649-CR; HON. K. MICHAEL MAYES, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

James Milton Roberts was convicted of two counts of aggravated sexual assault of

a child and sentenced to imprisonment for life. He seeks to reverse those convictions by

claiming that 1) the evidence is legally insufficient to support them, and 2) the trial court

erred in admitting into evidence his oral statement given to the police. We affirm the

judgments. Legal Sufficiency

Appellant was charged with having caused the penetration of the female sexual

organ of his former girlfriend’s daughter by the insertion of his finger (count 1) and with

having caused the penetration of her female sexual organ by his sexual organ or by

causing her sexual organ to contact his sexual organ (count 2). Appellant contends the

evidence is insufficient because the complainant was the only one to testify to the assaults

and she waited several years to tell anyone about them. The issues are overruled.

The testimony of a child victim alone can be sufficient to sustain a conviction for

aggravated sexual assault. Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.–Houston

[14th Dist.] 2008, no pet.); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.–Austin 2003,

pet. ref’d). Here, the youth testified that appellant moved his finger in and out of her vagina

on more than one occasion. She also testified that he later progressed to putting his penis

in her vagina, that it hurt, and that white stuff would come out of his penis. In addition to

this testimony, there was evidence that 1) the complainant had a healed hymenal

transection caused by blunt force that was consistent with penile penetration and for which

no alternative explanations were provided, 2) appellant confessed to penetrating the

complainant with his finger and penis but claimed it was initiated by the complainant and

his girlfriend who told him he needed to teach the complainant about sex, and 3) appellant

threatened to hurt the child and her mother if the child told anyone what was happening.

From this evidence, a rational trier of fact could have found beyond a reasonable doubt

that appellant committed the acts alleged in both counts of the indictment.

2 Lack of Statutory Warnings

Next, appellant argues that his oral statement should not have been admitted into

evidence because the admonitions given him did not substantially comply with art. 38.22

of the Code of Criminal Procedure. We overrule the issue.

Article 38.22 provides that an electronic recording of a defendant’s statement

resulting from a custodial interrogation may not be admitted into evidence unless prior to

the statement, but during the recording, the accused was given the following warnings: 1)

he has the right to remain silent and not make any statement at all and that any statement

he makes may be used against him at his trial; 2) any statement he makes may be used

as evidence against him in court; 3) he has the right to have a lawyer present to advise him

prior to and during any questioning; 4) if he is unable to employ a lawyer, he has the right

to have a lawyer appointed to advise him prior to and during any questioning; and 5) he

has the right to terminate the interview at any time. TEX . CODE CRIM . PROC . ANN . art. 38.22

§2(a) & §3(a)(2) (Vernon 2005). Equivalent though not identical warnings will also satisfy

the statute. Id. §3(e)(2). Here, the trial court found that appellant was in custody at the

time he made his statement and that the warnings he received met the statutory

requirements.1

The first problem we encounter is that appellant did not specify how the warnings

he received failed to comport with those mandated by art. 38.22. Given this, he did not

adequately brief the issue and, therefore he waived it.

1 The State disagrees that appellant was in custody at the tim e he gave the oral statem ent.

3 The second problem is that if he is suggesting that there existed a lack of substantial

compliance because the officer simply told him that his statement would be used in “court”

as opposed to trial, the argument was rejected in Bible v. State, 162 S.W.3d 234 (Tex.

Crim. App. 2005). There, the court addressed a like argument and concluded that use of

the word “court” is the fully effective equivalent of “trial” because the two required warnings

overlap and “court” is the broader term. Id. at 241.

The third problem is that if he is suggesting that the police failed to comply with art.

38.22 §2(b) (requiring that the person giving the statement knowingly and voluntarily waive

his rights to remain silent and to counsel), he is again mistaken. The record indicates that

appellant was asked if he understood his rights and admonished that the officer wanted

to make sure he understood “it.” In reply, appellant said “yes sir” and continued his

dialogue with the officer. No expressed verbal waiver of his rights was uttered by

appellant, however. When addressing like facts, the court in Turner v. State, 252 S.W.3d

571 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d) held that art. 38.22 §2(b) was

satisfied. Id. at 583. An express verbal waiver of his rights was not needed if the totality

of circumstances depicted a waiver, according to the court. Id. at 583-84. The totality of

circumstances depict such a waiver here.

The judgments of the trial court are affirmed.

Brian Quinn Chief Justice

Do not publish.