Pablo Aguero v. State ( 2008 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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PABLO AGUERO, No. 08-06-00250-CR
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Appellant, Appeal from
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v. 243rd District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20050D00929)
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OPINION
Pablo Aguero appeals his convictions of sexual assault of a child (Counts I-IV), indecency
with a child (Counts V-VI), and aggravated sexual assault of a child (Counts VII-VIII). A jury found
Appellant guilty of all eight counts and assessed his punishment at imprisonment for 20 years and
a $5,000 fine in Counts I-VI and imprisonment for 99 years and a $10,000 fine in Counts VII-VIII.
Finding no error, we affirm.
FACTUAL SUMMARY
Appellant married Cynthia on July 29, 1995. At the time of the marriage, Cynthia had a six-
year-old daughter, Monica, from a prior relationship. The couple had two children of their own
during the marriage. Appellant began molesting Monica when she was eight years old and the abuse
continued daily until November 11, 2004, just a few days before her sixteenth birthday. Monica’s
younger brother, who had seen Appellant and Monica showering and in bed together, told their
mother something that caused her to question Monica.1 Monica confided in her mother about the
1
In an apparent effort to avoid a hearsay objection, the prosecutor did not elicit from Cynthia the details of her
son’s statements which prompted her to question Monica.
ongoing sexual abuse and Cynthia immediately called the police. Appellant was not home at the
time. When he came home, Cynthia told him what Monica had said and asked him why he had done
it. Appellant denied wrongdoing and insisted on speaking to Monica, but Cynthia would not let him.
The police arrived and also instructed Appellant that he could not speak with Monica. When
Appellant refused the officers’ orders not to approach his stepdaughter, they arrested him for
interference with public duties. He was also arrested based on some outstanding traffic warrants.
The police transported Appellant to a police substation and Detective Joe Zimmerly advised
him of his Miranda2 rights. Appellant waived his rights and gave a written statement admitting that
he had been engaging in various types of sexual acts with Monica for several years. According to
Appellant, Monica had started “coming on to [him]” when she was about nine years old and they
began a sexual relationship. At first, the sexual contact consisted of oral sex but Appellant began
having intercourse with Monica when she was in the eighth grade. He denied engaging in anal
intercourse with her. The last sexual encounter had been the previous Saturday when he took
Monica to a motel and engaged in oral sex and intercourse with her. Appellant said that Monica
enjoyed the sexual relationship and was a willing participant.
Monica disputed Appellant’s account regarding her willingness to participate. She testified
that Appellant started touching her breasts and vagina when she was eight years old and began
performing oral sex on her when she was ten or eleven. He began making her perform oral sex on
him when she was twelve and this progressed to sexual intercourse when she was fourteen years old.
Appellant also engaged in anal intercourse when she was fourteen or fifteen. In stark contrast with
Appellant’s description of her enjoying the sexual contact, Monica testified that her first sexual
intercourse with Appellant was the worst day of her life. She also testified that when the abuse
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
began, she was scared and did not know what he was doing to her. If she protested or resisted,
Appellant pressured her until she complied with his requests. She did not tell her mother what was
happening because she was afraid Appellant would become violent towards her or her mother.
MOTION TO SUPPRESS
In Issue One, Appellant contends that the trial court erred by overruling the motion to
suppress his written statement. We understand Appellant to argue that the written statement should
have been suppressed because the police lacked probable cause to arrest him for resisting arrest. He
also complains that the police lacked reasonable suspicion to detain him. The State responds that
the arguments raised on appeal are waived because Appellant affirmatively stated he had no
objection when the State offered the written statement into evidence at trial.
Waiver
Appellant filed a pretrial motion to suppress the written statement on five grounds: (1) he
was not properly advised of his Miranda rights; (2) the statement was involuntary because it was the
result of pressure and coercion by law enforcement agents; (3) the statement is the fruit of an illegal
arrest; (4) the statement was taken in violation of Appellant’s right to remain silent guaranteed by
the Texas and United States Constitutions; and (5) the statement was taken in violation of
Appellant’s right to counsel. At the beginning of the hearing, the trial court asked Appellant the
basis of his motion, and counsel replied, “Coercion of my client.” Detective Joe Zimmerly was the
only witness to testify at the suppression hearing. Zimmerly testified that Appellant was arrested
based on traffic warrants and for either “resisting or interfering.” It was Zimmerly’s understanding
that Appellant was trying to get to the child at the scene and would not listen to the police officers’
commands. He was “taken down and placed under arrest for that.” The police officers also ran him
on warrants and took him to the substation. Zimmerly testified that he gave Appellant his Miranda
warnings prior to any questioning, Appellant waived his constitutional rights, and he voluntarily
provided the written statement. Zimmerly did not threaten Appellant or do anything improper to
coerce him into giving the written statement. Appellant read the statement as Zimmerly typed it
because it was visible on the computer monitor. Zimmerly also gave Appellant a printed hard copy
to read before he signed it. He recalled that Appellant read it slowly but he had no doubt Appellant
read the statement before signing it. Appellant’s attorney did not make any argument at the
conclusion of the hearing and the trial court denied the motion to suppress.
As required by Article 38.22, § 6 of the Code of Criminal Procedure, the trial court entered
written findings of fact and conclusions of law regarding the voluntariness of the confession. See
TEX .CODE CRIM .PROC.ANN . art. 38.22, § 6 (Vernon 2005). In support of his conclusion that
Appellant’s statement was voluntary, the trial court judge found that: Appellant was properly
admonished of his Miranda rights; Appellant was not coerced, enticed, or promised anything in
return for making the statement; Appellant was not under the influence of any drug or alcohol when
he made the statement; Appellant’s decision to make the statement was not influenced by any failure
to immediately take him before a magistrate or by any factor other than his desire to give the
statement; and Appellant willingly and without coercion of any kind cooperated with law
enforcement in making the statement.
At trial, the prosecutor offered the written statement into evidence through Detective
Zimmerly, and Appellant’s attorney took Zimmerly on voir dire. He asked Zimmerly whether
Appellant was able to read the statement before he signed it because his glasses had been broken
when he was arrested. Zimmerly could not recall whether Appellant was wearing glasses when he
gave the statement, but he was sure Appellant had the ability to read the statement because Zimmerly
had made Appellant read portions of it aloud while Zimmerly was typing it. The prosecutor re-
offered the written statement into evidence and Appellant’s attorney stated that he had no objection.
The trial court admitted the written statement into evidence. On re-direct, the prosecutor elicited
testimony that Appellant had made corrections to the statement after reading it and before he signed
it. During cross-examination of Zimmerly, Appellant’s attorney returned to the issue of Appellant’s
behavior at the apartment which led to his arrest. Zimmerly testified that Appellant was arrested for
interference with public duties3 because he kept insisting on talking to Monica and would not obey
the officers’ orders to not approach her. Zimmerly did not recall seeing any bruises or lacerations
on Appellant’s face when he gave the written statement but he would have noted in his report if
Appellant had visible injuries.
To preserve error on appeal, the complaining party must make a timely, specific objection
and obtain a ruling on the objection. TEX .R.APP .P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349
(Tex.Crim.App. 2002). Further, a party must continue to object every time inadmissible evidence
is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991); Gillum v. State, 888
S.W.2d 281, 285 (Tex.App.--El Paso 1994, pet. ref’d). When a party objects outside the presence
of the jury to all of the testimony he deems objectionable as permitted by Texas Rule of Evidence
103(a)(1), he is not required to object again in the presence of the jury. TEX .R.EVID . 103(a)(1); see
Ethington, 819 S.W.2d at 858-59 (discussing similar provision in former Rule 52(a) of Rules of
Appellate Procedure). However, if he affirmatively states that he has “no objection” when the
objectionable evidence is offered in the jury’s presence, he waives his complaint regarding the
admissibility of the evidence. Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988); Traylor v.
State, 855 S.W.2d 25, 26 (Tex.App.--El Paso 1993, no pet.). Moreover, Appellant did not object in
3
A person commits interference with public duties if the person, with criminal negligence, interrupts, disrupts,
impedes, or otherwise interferes with a peace officer while the peace officer is performing a duty or exercising authority
imposed or granted by law. T EX .P EN AL C O D E A N N . § 38.15(a)(1)(Vernon Supp. 2007).
his motion to suppress or at trial based on the legality of his detention. Therefore, this complaint is
waived. TEX .R.APP .P. 33.1(a). We overrule Issue One.
INEFFECTIVE ASSISTANCE
In Issue Two, Appellant asserts that he was denied the effective assistance of counsel at trial
because his attorney (1) failed to present evidence showing that the written statement was obtained
after Appellant was assaulted by members of the El Paso Police Department which resulted in his
hospitalization, and (2) failed to object to the written statement on the ground that there was no
probable cause for his arrest.
Standard of Review
The standard for determining claims of ineffective assistance under the Sixth Amendment
is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770,
771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel’s
performance was deficient to the extent that counsel failed to function as the “counsel” guaranteed
by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Under the
second prong, the defendant must establish that counsel’s deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed. 2d at 693; Jackson, 877 S.W.2d
at 771. Prejudice is established by a showing that there is a reasonable probability that but for
counsel's unprofessional errors, the result of the proceeding would have been different. Strickland,
466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed. 2d at 698; Jackson, 877 S.W.2d at 771.
When we review a claim of ineffective assistance, we indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable, professional assistance, and the
appellant must overcome the presumption that the challenged conduct can be considered sound trial
strategy. Jackson, 877 S.W .2d at 771. In any case analyzing the effective assistance of counsel, we
begin with the strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808,
813 (Tex.Crim.App. 1999). The defendant must rebut the presumption that the challenged conduct
can be considered sound trial strategy. Jackson, 877 S.W.2d at 771. If the record is silent as to the
facts, circumstances, and rationale behind an attorney’s particular course of action, we are compelled
to find that the defendant did not rebut the presumption that it was a reasonable one. See Thompson,
9 S.W.3d at 814.
Failure to Present Evidence of Assault and Coercion
Appellant first alleges that trial counsel’s performance was deficient because he failed to
offer evidence at the suppression hearing that Appellant confessed after being assaulted by police
officers. It is Appellant’s burden to prove that a motion to suppress would have been granted on this
ground in order to satisfy Strickland. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.
1998)(defendant claiming he was denied effective assistance of counsel by trial counsel’s failure to
file motion to suppress was required to prove that motion to suppress would have been granted);
Roberson v. State, 852 S.W.2d 508, 510-12 (Tex.Crim.App. 1993)(unless there is a showing that a
pretrial motion had merit and that a ruling on the motion would have changed the outcome of the
case, counsel will not be ineffective for failing to assert the motion). Further, allegations of
ineffective assistance of counsel must be firmly founded in the record and the record must
affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63
(Tex.Crim.App. 2001); Thompson, 9 S.W.3d at 814.
Appellant was sentenced in open court on August 7, 2006. On August 24, 2006, Appellant
timely filed a motion for new trial alleging jury misconduct and insufficient evidence, but he did not
present any allegations of ineffective assistance of counsel. The trial court signed an order denying
the motion for new trial on August 25, 2006. On September 7, 2006, thirty-one days after the
sentencing, Appellant filed an untimely amended motion for new trial4 asserting that trial counsel
failed to present evidence that Appellant was assaulted by police at the time of his arrest and he
subsequently gave an involuntary written statement. In addition to being untimely, the motion was
not supported by affidavit. The trial court did not conduct a hearing or rule on the untimely amended
motion for new trial. Thus, we are presented with a record which contains no evidence showing that
Appellant was assaulted or injured by law enforcement officers at the time of his arrest or prior to
giving his written statement to Detective Zimmerly. Nor is there evidence that the written statement
is the product of coercion. Appellant’s unsubstantiated allegations of police brutality and coercion
do not constitute evidence and are insufficient to establish that a pretrial motion to suppress on this
ground had merit. Consequently, Appellant has failed to overcome the strong presumption that
counsel’s conduct falls within the wide range of reasonable, professional assistance. Appellant’s
first allegation of deficient performance is without merit.
Failure to Assert Lack of Probable Cause
Appellant also maintains that counsel’s performance was deficient because he failed to seek
suppression or exclusion of the written statement on the ground that the police officers lacked
probable cause to arrest Appellant for resisting arrest. Although Detective Zimmerly initially stated
at the suppression hearing that Appellant was arrested for either resisting arrest or interference with
public duties, he clarified at trial that Appellant was arrested for interference with public duties. He
also testified at both the suppression hearing and at trial that Appellant was arrested for outstanding
traffic warrants. Given that Appellant was not arrested for resisting arrest, an argument that the
4
An amended motion for new trial is due to be filed within 30 days after the date when the trial court imposes
sentence in open court but before the court overrules any preceding motion for new trial. T EX .R.A PP .P. 21.4(b).
police lacked probable cause to arrest Appellant for that offense could not have resulted in
suppression of the written statement. Even if the police had also arrested Appellant for resisting
arrest and assuming the police lacked probable cause for such an arrest, other valid grounds existed
for the arrest. Appellant has not established that the arrest based on the outstanding traffic warrants
was invalid or that the police lacked probable cause to arrest Appellant for interference with public
duties. Therefore, Appellant has not shown that a motion to suppress should have been granted
because the police lacked probable to arrest Appellant for resisting arrest.
Reason for the Arrest
Finally, Appellant argues that the record does not reflect why Appellant was arrested. He
does not clearly tie this argument to an allegation of ineffective assistance of counsel but we construe
his argument as faulting counsel for not attempting to suppress the written statement on this ground.
As we have already discussed, the record shows Appellant was arrested for interference with public
duties and based on outstanding traffic warrants. The interference with public duties charge was
based on Appellant’s refusal to obey the officer’s commands to not approach the child victim at the
scene. There is nothing in the record to indicate that Appellant’s arrest for interference with public
duties or his arrest based on the outstanding warrants was invalid. Appellant’s argument is therefore
without merit. Because Appellant has failed to carry his burden of establishing ineffective assistance
of counsel, we overrule Issue Two and affirm the judgment of the trial court.
June 26, 2008
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)