Christopher Patrick O'Connor v. State ( 2004 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHRISTOPHER PATRICK O=CONNOR,          )

                                                                              )     No.  08-03-00326-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     203rd District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Dallas County, Texas

Appellee.                           )

                                                                              )     (TC# F-0140608-HP)

                                                                              )

O P I N I O N

In this consolidated appeal, Appellant Christopher Patrick O=Connor appeals from  separate convictions of two counts of aggravated sexual assault of a child and fourteen counts of possession of child or promotion pornography.^[1]  As grounds for reversal, Appellant argues that the trial court erred in its denial of his motion to suppress, and that the trial court failed to comply with Tex.Code Crim.Proc.Ann. art. 26.13(b) by failing to assure itself that Appellant was mentally competent and his plea was given freely and voluntarily.  Appellant also seeks reversal of the possession of child pornography convictions on the basis of double jeopardy claims under the United States Constitution and the Texas Constitution.  We affirm.

On the evening of July 23, 2001, the Mesquite Police Department executed a search warrant of Appellant=s residence in connection with information provided to them that Appellant was in possession of child pornography.^[2]  The search warrant listed numerous items believed to contain child pornography including computer related sources.  When police arrived at Appellant=s home, they discovered no one was home and proceeded to kick in the front door and search the premises.  They seized Appellant=s computer, computer discs, and other items listed on the search warrant.

While the equipment seized was being loaded into the police vehicles, Appellant arrived.  Detective Michael Parker, an investigator with the Mesquite Police Department, approached him and briefly explained the reason police officers were at his home.  According to Appellant=s testimony at the motion to suppress hearing, Detective Parker vaguely informed him that they had reason to believe there were questionable materials in his home and therefore his computer was seized. Detective Parker testified that he could not remember if he specifically mentioned child pornography.  Detective Parker then asked Appellant to accompany him to the police station which according to Detective Parker, Appellant did so voluntarily.  Appellant, however, testified that when he was asked to go to the police station, he did not have the impression that he was free to leave.  Appellant testified that while he was not told he was under arrest and did not feel under arrest at the time, he also did not feel free to leave. According to Detective Parker=s testimony, Appellant was not under arrest at this time.

Appellant was transported to the police station in a police vehicle.  Upon arriving at the police station, Appellant was taken to an interview room. According to Detective Parker, they had a conversation about the search warrant executed on Appellant=s home and the source of the information that led to such action.

Detective Parker testified that he read Appellant his Miranda rights.  Appellant indicated to Detective Parker that he had downloaded some inappropriate material from the internet to his computer and if his computer was searched, such items would probably be found.  Although Appellant knew his computer would be searched and could actually see some officers searching his computer as he was being interviewed, he never once objected.

Appellant then agreed to provide a written statement. Before allowing him to do so, Detective Parker testified that he once again gave the Appellant his Miranda rights.  Once Appellant had written his statement, Detective Parker asked two civilian dispatchers to witness the signing of Appellant=s statement.  In the presence of the witnesses, Detective Parker read out loud the document to Appellant and asked him if those were his own words and his handwriting.  Appellant replied affirmatively to both questions.  Detective Parker then asked Appellant if there was anything he wanted to add or change to his statement and Appellant replied no.  Appellant then signed the statement while the witnesses were still present.

During this time, Appellant was calm and appeared only a little nervous.  At no moment during the interview, did Appellant ask to terminate the conversation and he never asked for an attorney.  Throughout this entire process, Appellant was not under arrest and was free to leave. Detective Parker testified that Appellant would have been given a ride back to his home or he could have called someone to pick him up at the station.

Appellant=s narrative of this event offers a slightly different account.  According to Appellant, after waiting in the interview room for a few minutes, Detective Parker entered and told him that they knew he had images in his computer and that they wanted to know if he had anything else.  Detective Parker then told him that they were going to have a conversation but that it could be terminated anytime upon his request.  Appellant was also told he had a right to an attorney, but he was not told that he could leave.  He testified that he never heard any of the formal Miranda rights read to him. Even prior to writing his statement, Appellant testified that he was not given any Miranda warnings.  He did testify however that the statement was his own and that he was not told what to write.  On cross-examination, Appellant testified that before writing his statement, he did in fact read the Miranda warnings provided at the top of the document in which he wrote his statement in and that there was nothing about the warnings he did not understand.  Appellant testified that while being interviewed, he felt like he was under arrest, even though no one told him he was under arrest. 

The total amount of time Appellant spent at the police station was approximately one hour.  At no moment in the entire evening was the Appellant handcuffed.  After Appellant provided his written statement, he was driven home by a police officer.

The search of Appellant=s computer uncovered MPEG files depicting children with the background identical to the surroundings of Appellant=s home.  Detective Parker testified that the pictures were not pornography in nature but that one, for example, was of a young boy, around five years old, pulling down his pants and using profanity.  Appellant=s statement along with these photographs led police to investigate further. The individuals in the photographs were later identified as being related to the Appellant.  As a result of this investigation, Appellant was later charged with aggravated sexual assault. 

Based on the information that had been gathered, later that same week, police executed an additional search warrant of Appellant=s home.  The second warrant was served and again no one was home.  The police therefore entered through the front door, which according to Detective Parker had not been properly secured from the first time they kicked it in to execute the first search warrant.  This time, they seized a box of photographs. 

Appellant was charged with two counts of aggravated sexual assault and fourteen counts of possession of child pornography. Appellant filed a motion to suppress the oral and written statements he had given to the police.  On March 17, 2003, the trial court held a hearing on Appellant=s motion to suppress which it denied.  On April 28, 2003, Appellant waived his right to a jury trial and entered a plea of guilty for all offenses.  Upon the Appellant=s election, the trial court sentenced him to life in prison on the aggravated sexual assault charges and to ten years= confinement and a $5,000 fine for each of the possession of child pornography charges.   Appellant now timely appeals.

Motion to Suppress

In Issue One, Appellant contends the trial court erred in denying his motion to suppress his statements.  Specifically, Appellant argues that his written statement was a direct result of an illegal detention and therefore inadmissible.  The State contends that the statement was not a product of an illegal detention, but rather that Appellant voluntarily accompanied the officers to the police station and provided them with a written statement. Appellant maintains that the State has failed to meet its burden of showing that the voluntary statement was not a product of an unlawful detention.  See Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Beasley v. State, 674 S.W.2d 762, 769 (Tex.Crim.App. 1982).

Standard of Review

A trial court=s ruling on a motion to suppress is generally viewed for an abuse of discretion. Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Brewer v. State, 932 S.W.2d 161, 166 (Tex.App.--El Paso 1996, no pet.).  Under this standard, we give almost total deference to the trial court=s determination of historical facts, especially when the court=s findings are based on an evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.).  On a motion to suppress evidence, the trial judge is the sole trier of fact and judge of the credibility of the witnesses, including what weight, if any, is to be given to their testimony.  See Bradley v. State, 960 S.W.2d 791, 800 (Tex.App.--El Paso 1997, pet. ref=d).  Consequently, the trial court may choose to believe or disbelieve any or all of a witness=s testimony.  See Villarreal, 935 S.W.2d at 138.  We review de novo the trial court=s conclusions of law and the application of those principles to the facts which do not turn on an evaluation of credibility and demeanor.  State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 89.

Whether Appellant=s statements were not voluntary is only an issue if the information was the result of a custodial interrogation.  Rodriguez v. State, 939 S.W.2d 211, 215 (Tex.App.--Austin 1997, no pet.); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.--El Paso 1995, no pet.); Holland v. State, 770 S.W.2d 56, 58 (Tex.App.--Austin 1989), aff=d, 802 S.W.2d 696 (Tex.Crim.App. 1991).  If Appellant=s statements do not stem from custodial interrogation, neither Miranda nor Article 38.22 require their suppression. See Tex.Code Crim.Proc.Ann. art. 38.22, ' 5 (Vernon Supp. 2004)(expressly excluding statements occurring outside of custodial interrogations).  Therefore, our first determination is whether Appellant was in custody at the time he made the written statement.

Whether a statement is the product of custodial interrogation must be determined on an ad hoc basis after considering all of the objective, as opposed to subjective, facts and circumstances.  Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996).  In Miranda, the United States Supreme Court defined Acustodial interrogation@ as Aquestioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.@ Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966).  A person is Ain custody@ if, under the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest.  Stansbury v. California, 511 U.S. 318, 322‑24, 114 S. Ct. 1526, 1528‑30, 128 L. Ed. 2d 293, 298‑99 (1994); Dowthitt, 931 S.W.2d at 254. The reasonable person standard presupposes an innocent person.  Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991); Dowthitt, 931 S.W.2d at 254.  The United States Supreme Court has clearly held that the determination of custody is based entirely on objective circumstances.  Stansbury, 511 U.S. at 322-23, 114 S. Ct. at 1528-29.

When a person is transported to a law enforcement facility by an officer in the course of an investigation, if the person was acting upon the invitation, request, or even the urging of an officer and there were no threats that he would be taken in a forcible manner, and the accompaniment is voluntary, then the individual is not in custody.  Anderson v. State, 932 S.W.2d 502, 505 (Tex.Crim.App. 1996); Bradley, 960 S.W.2d at 801.  Stationhouse questioning does not, in and of itself, constitute custody.  California v. Beheler, 463 U.S. 1121, 1124‑25, 103 S. Ct. 3517, 3519‑20, 77 L. Ed. 2d 1275 (1983); Dowthitt, 931 S.W.2d at 255.  However, police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation.  Ussery v. State, 651 S.W.2d 767, 770 (Tex.Crim.App. 1983); Bradley, 960 S.W.2d at 801; State v. Rodriguez, 986 S.W.2d 326, 329 (Tex.App.--El Paso 1999, pet. ref=d).

The Court of Criminal Appeals has identified four general situations which may constitute custody:  (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.  Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985); Rodriguez, 986 S.W.2d at 329.  In situations one through three, the restraint on freedom must be that associated with an arrest and not simply an investigative detention; in situation four, the officer=s knowledge of probable cause must be manifested to the suspect, and such manifestation, considered in the totality of the circumstances, would lead a reasonable person to believe he is no free to leave.  See Dowthitt, 931 S.W.2d at 255, citing Shiflet, 732 S.W.2d at 629.

At the suppression hearing, the State introduced the evidence of Sergeant Bruce Bradshaw and Detective Michael Parker.  Sergeant Bruce Bradshaw testified that he was present when the search warrant of Appellant=s home was executed.  He testified that Appellant arrived as seized items were being loaded unto police vehicles. He testified that Appellant was not placed under arrest.

Detective Parker testified that he approached Appellant when he arrived at his residence as the search warrant was being carried out.  He testified that he explained to the Appellant why the police were there and asked the Appellant to accompany him to the police station.  According to Detective Parker, Appellant did so voluntarily.  Appellant was not placed under arrest at this time.  Appellant was transported to the police station in a police vehicle.  Detective then took Appellant to an interview room and soon thereafter, advised Appellant of his Miranda rights.  After agreeing to make a written statement, Appellant was given a document to write his statement on, which at the top, contained written Miranda rights.

Appellant, testifying on his own behalf at the hearing, did not dispute that he voluntarily went to the police station. He did however testify that with all the people around his home, he was not given the impression that he was free to leave.  He then testified that no one told him he was under arrest and that he did not feel under arrest at the time.  Once at the police station, Appellant testified that he was not given formal Miranda warnings, except that he was told he had a right to an attorney. Additionally, he testified that by this time, he felt he was under arrest.  On cross-examination, Appellant testified that he read the Miranda rights on top of the document on which he wrote his statement and that nothing about them was unclear to him.  He also testified that he did not want an attorney at that time. 

Appellant was only in custody approximately one hour.  See Nenno v. State, 970 S.W.2d 549, 557 (Tex.Crim.App. 1998)(noting that a one hour interview is a short time period). There is no evidence that Appellant was threatened or coerced while being interviewed or in order to provide a statement.  At no moment in time was Appellant handcuffed. 

After examining objectively the circumstances surrounding Appellant=s statement, we cannot conclude that a reasonable person in Appellant=s position would have believed that his freedom of movement had been restrained to the degree associated with a formal arrest.  While Appellant does offer conflicting testimony regarding whether Miranda rights were given to him, the trial court, as the sole trier of fact and judge of the credibility of the witnesses may choose to believe or disbelieve any or all of a witness=s testimony.  See Bradley, 960 S.W.2d at 800.  In light of these factors, we cannot conclude Appellant was in custody at the time he gave his statement.  Accordingly, we find no error in the trial court=s admission of Appellant=s written statement.  We therefore overrule Issue One.

Mental Competency

In Issue Two, Appellant contends that the trial court erred in accepting his guilty plea without first determining whether he was mentally competent and whether his plea was free and voluntary in compliance with Tex.Code Crim.Proc.Ann. art. 26.13(b).  Appellant argues that the nature of the offense he was charged with indicated that Appellant may have had a mental problem and that in his written confession, Appellant asserts that he would seek professional help to overcome his problem.

Article 26.13(b) of the Texas Code of Criminal Procedure provides:  ANo plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.@  Tex.Code Crim.Proc.Ann. art. 26.13(b)(Vernon Supp. 2004).  We initially observe that Article 26.13 does not require the court to ask a defendant anything.  Rachuig v. State, 972 S.W.2d 170, 177 (Tex.App.--Waco 1998, pet. ref=d).  The voluntariness of a guilty plea is determined from the totality of the circumstances viewed in light of the entire record.  Ybarra v. State, 960 S.W.2d 742, 745 (Tex.App.‑‑Dallas 1997, no pet.); Singleton v. State, 986 S.W.2d 645, 651 (Tex.App.‑‑El Paso 1998, pet. ref=d). Thus, the trial court need not specifically inquire if a plea is being given freely and voluntarily.  Singleton, 986 S.W.2d at 651.  Likewise, unless an issue is made of a defendant=s present mental competence at the time the plea is entered, the trial court need not specifically inquire into his mental competence.  Sims v. State, 783 S.W.2d 786, 788 (Tex.App.‑‑Houston [1st Dist.] 1990, no pet.), citing Kuyava v. State, 538 S.W.2d 627, 628 (Tex.Crim.App.1976).  The court=s failure to directly ask Appellant any questions is not deemed to rebut the presumption raised by the record that the trial court believed Appellant was competent and acting freely and voluntarily when he entered his guilty plea.  See Rachuig, 972 S.W.2d at 177, citing Brown v. State, 917 S.W.2d 387, 390 (Tex.App.‑‑Fort Worth 1996, pet. ref=d).

In this case, Appellant did not put his mental state at issue at the time the plea was entered, and there is no indication in the record that he was incompetent to enter his plea.  The trial court had an opportunity to observe Appellant in open court, to hear him speak, and note his demeanor.  The trial court was also made aware that Appellant had a four-year college education. The trial court also ensured itself that Appellant=s pleas were voluntary by asking Appellant numerous times whether they were before accepting his pleas.  Before entering its decision as to Appellant=s guilt, the trial court noted that it believed the Appellant was mentally competent and that his waiver of right to jury trial, his guilty plea, and signed written confession were all freely and voluntarily made.  Furthermore, the issue of Appellant=s mental competence was never raised at trial.  While the trial court did not specifically inquire as to the Appellant=s mental competency, the trial court=s failure to directly ask Appellant whether he was mentally competent is insufficient to rebut the presumption raised by the record.  See Rachuig, 972 S.W.2d at 177; Singleton, 986 S.W.2d at 651.  Recitations found in the judgment and other portions of the record, including the charge to the jury, are binding on an Appellant in the absence of direct proof to the contrary, and the Appellant has the burden of overcoming the presumptions raised by the record in such cases.  See Rachuig, 972 S.W.2d at 173.  We find that Appellant has failed to overcome the presumption of his mental competency as shown by the record in this case. Accordingly, we overrule Issue Two.

Double Jeopardy

In Issue Three, Appellant alleges that his multiple convictions of possession of child pornography, specifically regarding the depiction of deviate sexual intercourse charges, violate his right to be free from double jeopardy under the United States Constitution.  In Issue Four, Appellant makes the same argument as in Issue Three except with regards to the convictions regarding the possession of child pornography depicting lewd exhibition of his genitals.  In Issue Five, Appellant raises the same double jeopardy arguments he raises in Issues Three and Four except, he raises the issue under the Texas Constitution and the Texas Code of Criminal Procedure Article 1.10.

We note initially that the Court of Criminal Appeals has indicated that the federal and state prohibitions against double jeopardy are identical conceptually.  See Phillips v. State, 787 S.W.2d 391, 393 n.2 (Tex.Crim.App. 1990).  The double jeopardy ban under the Texas Constitution affords no broader protection than the federal constitution and does not require separate analyses.  See Stephens v. State, 806 S.W.2d 812 , 815 (Tex.Crim.App. 1990). 

The Fifth Amendment of the United States Constitution provides that no person shall Abe subject for the same offense to be twice put in jeopardy of life of limb . . . .@  U.S. Const. amend. V.  Article I, sec. 14 of the Texas Constitution states:  ANo person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.@  Tex.Const. art. I, ' 14.  These protections apply to:  (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.  Ex Parte Rhodes, 974 S.W.2d 735, 738 (Tex.Crim. App. 1998); Moncada v. State, 960 S.W.2d 734, 741 (Tex.App.--El Paso 1997, pet. ref=d).  The arguments raised by Appellant in this case involves the prohibition of multiple punishment for the same offense.  

Appellant is appealing fourteen separate convictions of possession of child pornography.  Appellant pled guilty to all charges before the trial court. After holding a punishment hearing, the trial court assessed punishment at confinement for ten years and a $5,000 fine for each offense.

Appellant was charged under fourteen indictments.  Each indictment alleged separate but identical offenses that took place on or about July 23, 2001.  Six of the indictments provided that Appellant intentionally and knowingly possessed,

[V]isual material, to-wit:  a disk that allows an image to be displayed on a computer, namely, a computer hard drive, that visually depicted, and which the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, to-wit:  deviate sexual intercourse.   [Emphasis added].

Similarly, seven of the indictments allege that Appellant intentionally and knowingly possessed,

[V]isual material, to-wit:  a disk that allows an image to be displayed on a computer, that visually depicted, and which the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, to-wit:  lewd exhibition of the genitals. [Emphasis added].

A single indictment alleged that Appellant intentionally and knowingly possessed,

[V]isual material,  to-wit: a disk that allows an image to be displayed on a computer, that visually depicted, and which the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, to-wit:  masturbation.  [Emphasis added].

Appellant now complains that the State violated his constitutional right against double jeopardy when it convicted and punished him multiple times for the same offense.  Appellant however failed to make a timely request, objection, or motion before the trial court on the issue of double jeopardy.  See Tex.R.App.P. 33.1.  A double jeopardy claim is forfeited if it is raised for the first time on appeal unless the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.  Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000).

In this case, we do not find an apparent double jeopardy violation on the face to the record.  We find Vineyard v. State^[3], to be controlling in this case.  In Vineyard, the defendant was convicted on two charges of child pornography:  for possessing both a videotape and a photograph depicting a child engaging in sexual conduct.  See Vineyard, 958 S.W.2d at 835.  The issue before the Court was whether, as a matter of statutory interpretation of [Texas] law, appellant=s simultaneous possession of both the videotape and the photograph constitutes more than one offense.  Vineyard, 958 S.W.2d at 837.  The Court held that the Legislature intended in cases like this to make possession of each item of child pornography an allowable unit of prosecution.  Id. at 838.

In this case, Appellant=s convictions were based on different images of child pornography, some of which depicted the same type of conduct.  The images however were not identical.  We do not find Vineyard distinguishable from this case simply because in Vineyard, there was a videotape and a photograph and here we have multiple photographs.  It makes no difference that the items in question are all photographs or all videotapes.  Vineyard plainly holds the fact that the possession was simultaneous does not bar prosecution for each and every single item of child pornography.  See id. at 838.  In accordance with Vineyard, we overrule Issues Three, Four, and Five.

For the reasons stated above, we affirm the trial court=s judgment.

July 15, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

---

^[1] Appellant was charged in cause numbers F-0140604-HP and F-0127442-KP of the felony offense of aggravated sexual assault of a child under the age of fourteen.  In cause numbers F-0140598-HP, F-0140605-HP, F-0140608-HP, F-0140618-HP, F-0140619-HP, and

F-0140620-HP, Appellant was charged with possession or promotion of child pornography depicting a child younger than eighteen, engaging in deviate sexual intercourse. In cause numbers F-0140590-HP, F-0140597-HP, F-0140600-HP, F-0140610-HP, F-0140611-HP,

F-0140612-HP, and F-0140617-HP, Appellant was charged with possession or promotion of child pornography depicting a child younger than eighteen, engaging in lewd exhibition of the genitals.  In cause number F-0140599-HP, Appellant was charged with possession or promotion of child pornography depicting a child younger than eighteen, engaging in the sexual conduct of masturbation.

^[2] An individual who had met Appellant through the Yahoo Personals provided an affidavit to the police in which he indicated that he had been in the Appellant=s home. While there, Appellant had shown him a videotape of teen males performing sexual acts on one another and then on Appellant=s computer screen, he had seen another video in which three young males, all under the age of ten years, engaged in sexual acts.  Additionally, he provided a handwritten map of Appellant=s home.  Both of these items were attached to the search warrant.

^[3] 958 S.W.2d 834 (Tex.Crim.App. 1998).