Buzan, Elias Joseph v. State ( 2002 )

Affirmed and Opinion filed December 31, 2002

Affirmed and Opinion filed December 31, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00452-CR

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ELIAS JOSEPH BUZAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 880,568

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O P I N I O N

            Elias Joseph Buzan appeals a conviction for indecency with a child^[1] on the grounds that: (1) his confession was involuntary; (2) the evidence is legally and factually insufficient to support the conviction; and (3) he received ineffective assistance of counsel.  We affirm.

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Voluntariness of Confession

            Appellant’s first issue contends that the trial court erred in admitting into evidence his confession that was not voluntary because it was induced by: (1) a police officer’s promise that appellant would receive probation if he confessed; or (2) the police officer’s misrepresentation that appellant could receive probation, for which he was not eligible due to his criminal history.

            In reviewing a trial court’s ruling from a suppression hearing, we afford almost total deference to findings of historical fact that are supported by the record and defer to application of law to fact rulings if they turn on an evaluation of credibility and demeanor.  Herron v. State, 86 S.W.3d 621, 627 (Tex. Crim. App. 2002).  We apply a de novo review to rulings on mixed questions of law and fact that do not turn on credibility and demeanor.  Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). Whether a confession is voluntary is a mixed question of law and fact, i.e., an application of law to fact question.  Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000).

            A confession is involuntary or coerced if the totality of the circumstances demonstrates that the confessor did not make the decision to confess of his own free will.  Green v. State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996).  A misrepresentation made by police to a suspect during an interrogation is relevant in assessing whether the suspect's confession was voluntary, but it is insufficient to render an otherwise voluntary confession inadmissible. Id.  The misrepresentation must be viewed in the context of the totality of the circumstances. Id.  Some types of police deception employed during custodial interrogation to elicit a confession from the accused are constitutionally permissible.  Id.  The focus is on whether the law enforcement official’s behavior was enough to overbear the will of the accused and bring about a confession not freely determined. Id. at 99-100.^[2]

            In this case, appellant testified that the police officer told him that he would get probation if he confessed.  Conversely, the police officer testified that he told appellant there was a wide range of punishment, including jail time or probation, and that it would be up to the judge and jury to decide what would happen.  Thus, although there is conflicting testimony, the record supports the trial court’s finding that the police made no threats or promises to induce appellant’s confession.

            On appellant’s alternative ground, the trial court made no finding as to whether the police officer’s statement regarding the range of punishment was a misrepresentation or, if so, whether it was sufficient to render the confession involuntary.  However, the testimony supports a conclusion that the officer’s statement pertained only to the punishment applicable to the offense generally and not to the particular circumstances of appellant’s criminal history (which the record does not reflect whether the police officer even knew at the time of the conversation). Taken in that context, the officer’s statement was not a misrepresentation.  Accordingly, appellant’s first issue fails to demonstrate error in denying the motion to suppress, and it is overruled.

Sufficiency of the Evidence

            Appellant’s second issue contends that the evidence is legally and factually insufficient to support the conviction because “[t]here was no medical evidence presented in this case to verify the allegation against appellant. This case was much [too] serious to convict appellant based upon the brief testimony of the complainant.” However, in support of this contention appellant: (1) fails to specify on which element(s) of the offense the evidence, including the complainant’s testimony, was either inadequate or greatly outweighed by contrary evidence; (2) cites no authority requiring medical evidence to sustain a conviction for indecency with a child; and (3) cites no evidence suggesting that the contact alleged in this case was even of a type that would produce medically discernable evidence.  Under these circumstances, appellant’s second issue fails to afford a basis for relief and is overruled.

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Ineffective Assistance of Counsel

            Appellant’s third issue contends that he received ineffective assistance of counsel when his trial attorney “opened the door” to the admission of evidence of a prior act of misconduct during counsel’s direct examination of appellant’s father:

Q.        I may have already asked this, but have you heard of any misconduct between him and any children there in the park or anywhere else?

A.        No, I haven’t.  No.  I can tell just all of a sudden I heard that he had done – had something to do with it. I said well, I don’t believe it because – well, I got to have something to go on to believe it, you know.  That’s all I’ve heard.

            The prosecutor subsequently asked the trial court to: (1) cross-examine this witness on whether he knew of an allegation of sexual misconduct made against appellant by another child in the trailer park; and (2) put that complainant on the witness stand.  During the same bench conference, defense counsel acknowledged that he had opened the door to such rebuttal evidence.

            To prevail on a claim of ineffective assistance, an appellant must show that: (1) his counsel’s performance was deficient, i.e., it fell below the objective standard of professional norms; and (2) this deficient performance prejudiced his defense, i.e., there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  To be sustained, an allegation of ineffective assistance must be firmly and affirmatively demonstrated by the record.  Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).  A court need not determine whether counsel’s performance was deficient if the ineffectiveness claim fails for lack of prejudice.  Strickland, 466 U.S. at 697.

            In this case, appellant contends that, but for his trial counsel’s mistake, the jury would not have known of appellant’s alleged prior misconduct with the other child and that the testimony resulting from this error was devastating.  However, appellant cites no portion of

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the record where any such testimony can be found. Rather, when the prosecutor asked each of appellant’s two witnesses whether they had heard about any sexual misconduct by appellant with another child, both indicated they had not; and the fourteen-year-old complainant in the extraneous incident did not testify during the guilt/innocence phase of trial.  Under these circumstances, appellant has not demonstrated a reasonable probability that, but for his counsel’s opening the door to questions, but not testimony, regarding extraneous conduct, the result of the proceeding would have been different.  Accordingly, appellant’s third issue is overruled, and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Opinion filed December 31, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish — Tex. R. App. P. 47.3(b).

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^[1]           A jury found appellant guilty and sentenced him to 25 years confinement. Although the second page of the judgment is stamped, “Appeal waived.  No permission to appeal granted,” we find nothing in the record reflecting an actual waiver of appeal by appellant, and the State does not contend that appellant waived his right to appeal.  Nor would permission to appeal be relevant in the absence of a plea of guilty or nolo contendere.  See Tex. R. App. P. 25.2(b)(3)(C).

^[2]           Thus, for example, police statements to a suspect that she will lose her welfare benefits and custody of her children if she does not confess are enough to render her confession involuntary; but police statements inflating the evidence of a suspect’s guilt, even intentionally misinforming him that there is an eyewitness to the offense, are not so coercive as to overbear his free will.  See Green, 934 S.W.2d at 100-01.