Sherry Erick, Individually, Jack Erick, Individually and Erick Racing Enterprises, Inc. v. United Enterprises, Inc., Bill Hielscher, Individually, Mary I. Hielscher, Individually, Charles Hocker & Ass

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2002 » Sherry Erick, Individually, Jack Erick, Individually and Erick Racing Enterprises, Inc. v. United Enterprises, Inc., Bill Hielscher, Individually, Mary I. Hielscher, Individually, Charles Hocker & Ass

State: Texas

Court: Texas Northern District Court

Docket No: 07-01-00467-CV

Case Date: 12/31/2002

Plaintiff: Abdoulie Sarr

Defendant: Bank of America--Appeal from 241st District Court of Smith County

Preview:Robert M. Rosales v. State of Texas--Appeal from 106th District Court of Dawson County
Opinion filed May 15, 2008 Opinion filed May 15, 2008 In The Eleventh Court of Appeals __________ No. 11-07-00260-CR _________ ROBERT M. ROSALES, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 106th District Court Dawson County, Texas Trial Court Cause No. 05-6391 MEMORANDUMOPINION The jury convicted Robert M. Rosales of two counts of aggravated sexual assault of a child, one count of indecency with a child by exposure, and three counts of indecency with a child by touching. The jury assessed his punishment at confinement for ninety-nine years and a $10,000 fine for each aggravated sexual assault, confinement for ten years and a $5,000 fine for the indecency by exposure, and confinement for twenty years and a $5,000 fine for each indecency by touching. We affirm.

Evidence at Trial There is no challenge to the sufficiency of the evidence. The record reflects that the victim was twelve years old at the time of trial. She identified appellant as her grandmother=s former boyfriend and testified that, beginning in 2000, she had had A[b]ad problems@ with him. The victim described how appellant had touched her private with his hands and with his private; how he had touched her breasts; how he would pull his pants down, lay on top of her, move, and place his private inside of her private; how he would put his mouth on her private; and how he would push her head toward his private and tell her to suck. The victim stated that she knew appellant had done these A[b]ad things@ with her sister because she had seen him.[1] One time, she saw appellant hit her sister because she tried to fight him. The victim testified that appellant did these things to her Amore than once@ and that she saw him do this to her sister A[m]ore than once.@ Appellant told the victim not to tell anyone or something bad would happen to her. She was scared and believed him. After she saw a puppet show at school, she decided to tell what appellant had been doing. Appellant gave a written statement that was admitted into evidence. Appellant did not admit to any misconduct with
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the victim but described several incidents with the victim and her sister. Appellant stated that the victim and her sister had peeked through the shower curtain while he was in the shower and that the victim had sat on his lap one time when she was wearing only a T-shirt and he was in his underwear. Appellant did not think that his penis Acame out@ of his underwear. Another time, appellant said that he grabbed a towel and dried the victim off after her grandmother (his girlfriend) had bathed her. Appellant concluded his statement by saying that both the victim and her sister would hug him and kiss him on the mouth every time they saw him after he and their grandmother separated. Issue on Appeal

In his sole issue on appeal, appellant contends that the trial court abused its discretion in admitting his statement. Because he was taking medication on the day he gave his statement, appellant argues that there was an insufficient showing that he had waived his right to remain silent and his right to counsel. At trial, appellant objected to the admission of his statement pursuant to Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). To the extent that appellant=s complaints on appeal match the objections he raised before the trial court, appellant has preserved his arguments for appellate review. Tex. R. App. P. 33. To the extent that appellant=s complaints on appeal do not match, those complaints are not properly before this court and are overruled. Hearing on Appellant=s Statement Dawson County Deputy Sheriff Alex Sauseda testified that he was a Lamesa police officer at the time he investigated the present offenses. The victim had identified appellant as her assailant, and Deputy Sauseda went to appellant=s parents= house to talk to him. Appellant voluntarily agreed to go to the police station. Deputy Sauseda waited on appellant to get ready and then drove him to the police station. Appellant was not under arrest and was free to leave at any time. Deputy Sauseda advised appellant of his Miranda rights.[2] Appellant indicated that he understood and that he wished to waive his rights and make a statement. Deputy Sauseda took appellant=s statement, typed it up, and presented it to appellant for his review. Appellant initialed each of the various warnings and signed the statement. Deputy Sauseda stated that, while appellant had informed him that he was taking medication for his liver and that he had been in an accident, appellant did not state what the medication was. The record reflects that Deputy Sauseda initially contacted appellant at his parents= home at 12:30 p.m. and that appellant signed his statement at 4:15 p.m.

Appellant testified for the purpose of determining the admissibility of his statement. Appellant stated that he had sustained a head injury in a 1979 motorcycle accident. He stated that he could barely see, that he had been taking medication including hydrocodone at the time he talked to Deputy Sauseda, that he had vomited blood while he was at the police station, and that Deputy Sauseda did not give him his rights until after he had signed his statement. Appellant also testified that Deputy Sauseda saw Athe black in [his] stool@ when he passed blood. When the State questioned him, appellant stated that he understood that he was on trial, that he went voluntarily because he wanted to answer some questions, and that he had not been wandering around in a fog since his accident. The record reflects that Deputy Sauseda was not questioned concerning appellant=s statements that Deputy Sauseda was aware that appellant had vomited blood and passed blood in his stool. The trial court found that appellant=s statement was voluntary and overruled his objections. Analysis In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to the trial court=s rulings on mixed questions of law and of fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings
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do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Guzman, 955 S.W.2d at 87; Davila v. State, 4 S.W.3d 844, 847-48 (Tex. App.CEastland 1999, no pet.). The record supports the trial court=s determination that appellant voluntarily gave his statement and that the provisions of Article 38.22 did not apply as appellant was free to leave at any time. We specifically note that appellant=s claims concerning due process were not raised in the trial court and have not been preserved for appellate review. Rule 33. The sole issue on appeal is overruled. This Court=s Ruling The judgments of the trial court are affirmed. RICK STRANGE JUSTICE May 15, 2008 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.

[1]In a joint trial, the jury convicted appellant of the following offenses with the victim=s sister: two counts of aggravated sexual assault of a child, one count of indecency with a child by exposure, and one count of indecency with a child by touching. Today, we also affirm those convictions in Cause No. 11-06-00284-CR. [2]Miranda v. Arizona, 384 U.S. 436 (1966).

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