Silverio Hernandez, Jr. v. State

Opinion

NO. 07-11-0372-CR NO. 07-11-0373-CR NO. 07-11-0378-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 4, 2013

JOSE HERNANDEZ GARCIA,

Appellant v.

THE STATE OF TEXAS,

Appellee ___________________________

FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

NO. 3349; HONORABLE RON ENNS, PRESIDING

Memorandum Opinion

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

Jose Hernandez Garcia pled guilty, in three causes, to indecency with a child and

to aggravated sexual assault of a child. The pleas were made as part of a plea bargain.

Thereafter, the adjudication of his guilt was deferred in each prosecution, and the trial

court placed him on community supervision. During the term of that supervision, the

State moved to adjudicate his guilt in all three prosecutions. It did so because he

allegedly violated three conditions of his community supervision. The first pertained to avoiding the commission of a new offense; the new offense he allegedly committed was

aggravated sexual assault of a child. The second involved his being in the presence of

a minor without supervision. The third condition involved the payment of fees, but the

averment pertaining to it was waived. Upon hearing evidence, the trial court found the

first two allegations true, adjudicated him guilty of the underlying offenses, and levied

sentence. Appellant now argues that insufficient evidence supports the trial court's

findings and that it erred in denying his motion to suppress his inculpatory statement.

We affirm.

Motion to Suppress

Appellant sought to suppress his written statement given to Detective Jordan

because it resulted from an oral statement given to a polygraph examiner. Since

“[n]owhere in the record does it appear . . . [appellant] was given any ‘Miranda’

admonishments before the disclosure was made” to the polygraph examiner, it and any

ensuing statements were subject to suppression, according to appellant. We overrule

the issue.

Exhibit 4 proffered at the suppression hearing consisted of a document entitled

“Stevens Polygraph Service Polygraph Examination Warning/Release.” Appellant

signed it at 2:45 p.m. as part of the polygraph examination at issue. In addition to it

containing admonishments encompassing what have become known as the Miranda

warnings, it also had the following verbiage:

After being advised of my rights, I do hereby request, voluntarily, without any threats, promises of reward or immunity, that I be examined on the polygraph. I request the necessary attachments be placed on my person where necessary. I forever hold harmless the Polygraph Examiner . . . . I

2 agree the results of this examination may be made available to the proper authorities.

(Emphasis added).

Next, appellant admitted to executing “a piece of paper” before undergoing the

examination. He also described the document as the “usual” one attendant to the

routine polygraphs required as a condition of his probation. Furthermore, the

investigating officer, i.e., Jordan, who stood outside the examination room, testified that

upon his entry into the room, he asked the examiner if appellant had been Mirandized.

The examiner replied in the affirmative. The officer confirmed this with appellant, who

also acknowledged understanding the nature of the document he signed.

At this point, we note that the language in the “Warning/Release” instrument we

italicized above is prospective in nature. That is, its tense connotes acquiesence to

something about to occur, as opposed to something that has occurred. We couple that

with appellant's own statement about signing the “usual” document before undergoing

the examination, and the detective's testimony about the examiner having admonished

appellant before the detective entered the examination room. Together, they permit one

to reasonably conclude that appellant not only was Mirandized before uttering any

inculpatory statements to the examiner but also understood those admonishments. So,

the foundation underlying his argument is non-existent. Irrespective of whether

undergoing the polygraph was a custodial interrogation (something we do not decide),

appellant had received his Miranda rights in writing before he admitted having sex with

a particular minor.

3 Sufficiency of the Evidence

Next, appellant argues that the evidence was insufficient to establish that he

committed aggravated assault upon a minor by having sex with a female under the age

of fourteen. Assuming arguendo that the pertinent standard of review is one of

sufficiency rather than abused discretion, Rickels v. State, 202 S.W.3d 759, 763-64

(Tex. Crim. App. 2006) (stating that our review is limited to determining whether the trial

court abused its discretion), appellant's inculpatory statement alone suffices to fill the

purported void. He admitted to the act, which admission comported with the victim's

own testimony. So, we overrule the issue.

Accordingly, the judgments are affirmed.

Brian Quinn Chief Justice

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