Albertico Cruz v. the State of Texas ( 2023 )

Opinion filed January 26, 2023
In The
Eleventh Court of Appeals
___________
No. 11-21-00260-CR
___________
ALBERTICO CRUZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR55110
MEMORANDUM OPINION
The jury convicted Appellant, Albertico Cruz, of two counts of indecency
with a child by contact. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019). The
trial court assessed Appellant’s punishment for each count at confinement for fifteen
years and a fine of $5,000. We affirm.
Appellant’s retained attorney has filed a motion to withdraw wherein he states
that “there is no basis to pursue an appeal in this matter.” Counsel has also filed
what appears to be an Anders brief. See Anders v. California, 386 U.S. 738 (1967);
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d
403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.
1991). However, the provisions of Anders v. California do not apply to retained
counsel. Vera v. State, No. 11-10-00063-CR, 2011 WL 2730965, at *1 (Tex. App.—
Eastland July 14, 2011, no pet.) (mem. op., not designated for publication); Rivera v.
State, 130 S.W.3d 454, 458 (Tex. App.—Corpus Christi 2004, no pet.); Craddock v.
State, 38 S.W.3d 886, 887 (Tex. App.—Waco 2001, no pet.). By securing retained
counsel, Appellant has received all that Anders was designed to assure. Rivera, 130
S.W.3d at 458. Nonetheless, like their counterparts who have been appointed,
retained counsel also have an ethical obligation to refuse to pursue a frivolous
appeal. Id. When counsel encounters such an appeal, he must inform the appellate
court of it and seek leave to withdraw in compliance with Rule 6.5 of the Texas
Rules of Appellate Procedure. Id. In this situation, we need only address whether
counsel complied with that rule. Id.Here, counsel complied not only with Rule 6.5 but also with the requirements
of Anders. In compliance with Rule 6.5, counsel’s motion to withdraw, which also
comprises a letter to Appellant, contains Appellant’s name and last known address,
a statement that a copy of the motion was delivered to Appellant via certified mail,
and a statement that Appellant was notified in writing of the right to object to the
motion. Aditionally, the letter attached to the motion to withdraw contains a
notification to Appellant that he has the right to file a pro se response in this appeal
and the right to file a petition for discretionary review. Counsel provided Appellant
with a copy of the “Anders” brief, a copy of the motion to withdraw, an explanatory
letter, and a copy of the appellate record.
Upon receipt of counsel’s motion, the clerk of this court notified Appellant by
letter of his attorney’s brief and the pending motion to withdraw. This letter also
advised Appellant that he could file a pro se response in this court.
2
In his pro se response, Appellant raises one issue for review. Because this is
not a true “Anders” situation, we address the issue raised by Appellant in his pro se
response. Appellant asserts that his constitutional rights to confrontation and a fair
trial were violated by the trial court when it admitted, over Appellant’s hearsay and
Fifth Amendment objections, an audio recording of the interview of Appellant that
was conducted by an investigator with the Midland County Sheriff’s Office.
Appellant’s (and his trial counsel’s) reliance on the hearsay rule is misplaced.
A party’s own out-of-court statement, when offered into evidence by an opposing
party, does not constitute hearsay. TEX. R. EVID. 801(e)(2)(A). Here, the out-of-
court statements were made by Appellant and were offered into evidence by the
State. Thus, the statements did not constitute hearsay, and the trial court did not
abuse its discretion when it overruled Appellant’s hearsay objection to the audio
recording of Appellant’s interview.
Appellant also suggests that, because he “never confessed to any wrong doing
during the interrogation,” the admission of the audio recording violated his
constitutional rights. Appellant relies on the Fifth Amendment and the
Confrontation Clause. We disagree with Appellant’s contentions because the record
shows that he waived his Fifth Amendment rights after being read the appropriate
warnings and because his Sixth Amendment right to confront the witnesses was not
implicated by the admission into evidence of his own out-of-court statements.
Both the investigator’s testimony and the audio recording itself show that
Appellant was informed of his Miranda rights and agreed to speak to the
investigator. See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966); TEX. CODE
CRIM. PROC. ANN. art. 38.22, § 3 (West 2018). Thus, the record affirmatively shows
that Appellant waived his rights under the Fifth Amendment and Article 38.22. See
Miranda, 384 U.S. at 475; Joseph v. State, 309 S.W.3d 20, 23–27 (Tex. Crim. App.
2010).
3
Appellant’s reliance on the Confrontation Clause is also misplaced. The
Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.
amend. VI; see Crawford v. Washington, 541 U.S. 36, 42, 68 (2004). However, the
Confrontation Clause is not implicated when a defendant’s own statements are used
against him. See, e.g., Vasquez v. Kirkland, 572 F.3d 1029, 1037 (9th Cir. 2009)
(noting that the Fifth Amendment right against self-incrimination—not the Sixth
Amendment right to confront witnesses—is implicated by the use of a defendant’s
own statement); United States v. Brown, 441 F.3d 1330, 1358–59 (11th Cir. 2006)
(holding that the admission into evidence of a defendant’s own statement did not
violate the Confrontation Clause).
Furthermore, in the Crawford line of cases, the Supreme Court has held that
the Confrontation Clause pertains to the admission into evidence of statements that
constitute testimonial hearsay. See, e.g., Davis v. Washington, 547 U.S. 813, 823–
26 (2006). The statements about which Appellant complains here were his own
statements. As we stated above, by definition, a party’s own statements,
when offered into evidence by the opposing party, are not hearsay. See TEX. R.
EVID. 801(e)(2)(A). Appellant’s rights under the Confrontation Clause were not
violated by the admission of the audio recording of his own statements. See
Contreras v. State, No. 02-11-00252-CR, 2012 WL 3737714, at *3 (Tex. App.—
Fort Worth Aug. 30, 2012, pet. ref’d) (mem. op., not designated for publication)
(holding that the defendant’s rights under the Confrontation Clause were not violated
when his own statements were admitted into evidence).
We have considered all of the contentions raised by Appellant in this appeal
and have determined that they have no merit. Accordingly, we overrule the sole
issue presented by Appellant.
4
We grant counsel’s motion to withdraw,1 and we affirm the judgment of the
trial court.
PER CURIAM
January 26, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
5