STEVEN RAY PORTER v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice FitzGerald

The State charged appellant Steven Ray Porter in three indictments with aggravated sexual assault of a child under the age of fourteen.   Following the trial court's denial of appellant's motion to suppress his confession, he pleaded guilty in all three cases.   The trial court assessed his punishment at thirty years' imprisonment.   In a single appellate issue, appellant contends the trial court erroneously denied his motion to suppress because his confession was the direct result of an illegal arrest.   Because the issue involves the application of well-settled principles of law, we issue this memorandum opinion.   See Tex.R.App. P. 47.4.   We affirm the trial court's judgments.

On October 16, 2007, eleven-year-old M.P. wrote a letter informing her mother that appellant—M.P.'s father—had forced her to have sex with him that day.   The next day, M.P. underwent a forensic interview at the Children's Advocacy Center;  M.P. described ongoing sexual abuse from the time she was approximately seven years old.   Detective Michael Holley was assigned to investigate the case, and he arranged for the issuance of a warrant to arrest appellant.   The evening of October 17, appellant was driving to work and was stopped by police.   Appellant was arrested and taken to the Mesquite Jail, where he was interviewed by Holley.   Appellant signed a confession that night, admitting to serial sexual abuse of his daughter, M.P.

Appellant moved to suppress the confession, arguing it was the result of an illegal arrest.   Holley testified at the hearing on the motion, but he was unable to testify with certainty whether appellant was stopped and detained because of a traffic violation or on the basis of the sexual assault arrest warrant.   Holley was also unable to testify with certainty as to the time the arrest warrant was issued, i.e. whether the warrant was issued before or after appellant was arrested.   Because the State was unable to establish the grounds for the arrest, we will assume—without deciding—that appellant was illegally arrested.

Holley did provide detailed testimony concerning events after appellant's arrest.   He had the arrest warrant in hand when he began to interview appellant at the police station.   Holley advised appellant of the charges against him based upon M.P.'s interview.   Then Holley gave appellant his Miranda warnings, and appellant confessed.   Given the choice of writing out his own statement or having Holley write it for him, appellant chose to have Holley write what appellant told him.   Holley gave appellant more than one opportunity to add, change, or delete anything in the statement.   Then he read the entire statement, including the warnings, aloud to appellant in the presence of civilian witnesses, and appellant signed it.   Mary Edwards, one of the civilian witnesses, testified at the hearing as well.   She confirmed Holley's version of the reading and signing of the confession in her presence.

Appellant also testified at the hearing.   He stated that Holley never told him about the sexual assault charges against him.   He stated that Holley wrote the statement on his own and told appellant that if he signed it, he would “get out of jail a lot sooner.”   Appellant testified he thought all the papers he signed had to do with traffic violations.   He stated he was never read Miranda rights;  he was told to sign the Miranda card after he had signed the confession.   Appellant claimed he was “duped” into signing the confession and that the State's witnesses were lying.   The trial court is the sole judge of the credibility of witnesses at a hearing on a motion to suppress evidence obtained in a search or seizure;  the court may choose to believe or disbelieve any or all of any witness's testimony.  Johnson v. State, 871 S.W.2d 744, 748 (Tex.Crim.App.1994).   In this case, the trial court's denial of the motion necessarily implies its finding that the State's witnesses' version of events was credible rather than appellant's.   We defer to that finding.

Appellant contends the confession must be characterized and excluded as “fruit of the poisonous tree” given that his arrest was unlawful.   This doctrine generally precludes the use of evidence, both direct and indirect, obtained following an illegal arrest.   See State v. Iduarte, 268 S.W.3d 544, 550 (Tex.Crim.App.2008).   The State contends, however, that if appellant's arrest was unlawful, then the connection between the arrest and appellant's confession was so attenuated as to dissipate the taint of the prior illegality.  “Evidence that is sufficiently attenuated from the unlawful arrest is not considered to have been obtained therefrom.”  Monge v. State, 315 S.W.3d 35, 40 (Tex.Crim.App.2010).   In the case of an arrested defendant's statement, the voluntariness of the statement is a threshold requirement of such a showing.   See Brown v. Illinois, 422 U.S. 590, 604 (1975).   And the burden of showing admissibility rests on the prosecution.  Id. In deciding whether appellant's confession was sufficiently attenuated as to permit the use of the confession at trial, we consider the following factors:  (1) whether Miranda warnings were given;  (2) the temporal proximity of the arrest and the confession;  (3) the presence of intervening circumstances;  and (4) the purpose and flagrancy of the official misconduct.  Monge, 315 S.W.3d at 40 (citing Brown, 422 U.S. at 603–04).   We address these factors in turn:

(1) It is undisputed that appellant was given his Miranda warnings.   Although it is not sufficient on its own to break the causal connection between the presumptively illegal arrest and appellant's confession, this first factor weighs in favor of the State.   See Monge, 315 S.W.3d at 40–41.

(2) Appellant was arrested sometime between eight and nine o'clock in the evening, and he confessed at approximately ten fifty-five that same evening.   The events occurred close in time, but courts have never identified a bright line rule under this factor.   Indeed, courts have concluded that detention times both longer and shorter than this have been adequate to establish attenuation.   On this limited record, we conclude the second factor is neutral, favoring neither party.

(3) Appellant argues no circumstances intervened between his arrest and confession.   The State contends that time period was punctuated by a number of relevant intervening circumstances:  informing appellant of the charges against him;  independent evidence of the offense sufficient to furnish probable cause (including his daughter's outcry and forensic interview);  obtaining the in-hand warrant for aggravated sexual assault;  and a “polite and non-coercive” atmosphere.   We agree, at a minimum, that Detective Holley's obtaining the arrest warrant—a warrant issued on probable cause that has not been challenged—was a significant intervening circumstance in this case.   Accordingly, this factor weighs in favor of the State.

(4) The “purpose and flagrancy” of official misconduct is generally the most important factor to be considered in this analysis.   See id. at 42.   As discussed above, we defer to the trial court's implied credibility findings in this case.   Thus, the evidence indicates appellant was immediately informed of the charges and evidence against him and that he was given repeated opportunities to assure the confession was in fact the statement he wished to make.   His approval of the confession was witnessed by civilians.   No other allegation has been made of police misconduct during the detention.   Thus the sole official misconduct in this case was the warrantless arrest.   However, the arrest warrant was issued the same day as the arrest.   We conclude the misconduct in this case is significantly less serious than situations in which an accused is arrested for no apparent justification.   See id.   This factor weighs in favor of the State as well.

Three of the four Brown factors weigh in favor of the State.   Considering the factors together, we are satisfied that the confession in this case was sufficiently attenuated from the taint of the illegal arrest to be admissible.

However, even if the confession were not sufficiently attenuated from the illegal arrest, we would conclude any error in refusing to suppress it was harmless.   Constitutional error requires reversal of the judgment unless this Court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.  Tex.R.App. P. 44.2(a);  Clay v. State, 240 S.W.3d 895, 904 (Tex.Crim.App.2007).   To make that assessment we consider the entire record.  Clay, 240 S.W.3d at 904.   When assessing the impact of the court's erroneous admission of evidence, we may look at a number of factors:  the importance of the evidence to the State's case, whether the evidence was cumulative of other evidence, the presence or absence of other evidence corroborating or contradicting the evidence on material points, the overall strength of the State's case, and any other factor revealed by the record that may shed light on the probable impact of the error on the minds of the fact finder.  Id. But notwithstanding any of these factors, a constitutional error does not contribute to the conviction or punishment if the fact finder's verdict would have been the same even absent the error.  Id. In this case, the State's evidence included appellant's daughter's testimony and her videotaped forensic interview, which included all of the facts appellant confessed to in his statement.   Moreover, the State produced DNA evidence that corroborated the daughter's testimony concerning her assault by appellant the day of her outcry.¹  We note as well that appellant's trial was to the court and that the State never referred to the confession during its closing argument in the punishment phase of the trial below.   Given the strength of the State's evidence, we are persuaded the outcome of this case would have been the same even if appellant had not confessed to his crimes.   We discern no error in the trial court's denial of the motion to suppress appellant's confession.

We overrule appellant's single issue and affirm the trial court's judgments.

KERRY P. FITZGERALD

JUSTICE

Do Not Publish

Tex.R.App. P. 47

101390F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

STEVEN RAY PORTER, Appellant

No. 05–10–01390–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 203rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.FO7–41259–P).

Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 23, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

STEVEN RAY PORTER, Appellant

No. 05–10–01391–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 203rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.FO7–41472–P).

Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 23, 2012.

/Kerry P. FitzGerald/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

STEVEN RAY PORTER, Appellant

No. 05–10–01393–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 203rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.FO7–41471–P).

Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 23, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

FOOTNOTES

FN1. Appellant's daughter told the forensic interviewer that appellant had cleaned himself with a white wash cloth after he ejaculated on her and that he had left the cloth in the bathroom.   Police investigators obtained and tested the cloth and confirmed it contained seminal fluid and sperm cells genetically matched to appellant..  FN1. Appellant's daughter told the forensic interviewer that appellant had cleaned himself with a white wash cloth after he ejaculated on her and that he had left the cloth in the bathroom.   Police investigators obtained and tested the cloth and confirmed it contained seminal fluid and sperm cells genetically matched to appellant.

KERRY P. FITZGERALD JUSTICE