Holland v. State

Citations: 770 S.W.2d 56; 1989 Tex. App. LEXIS 1140; 1989 WL 47735Docket: 3-88-037-CR

Court: Court of Appeals of Texas; April 12, 1989; Texas; State Appellate Court

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Kenneth Holland appeals his conviction for aggravated sexual assault, resulting in a 60-year sentence and a $5,000 fine. He raises two points of error: the trial court allegedly erred in denying his motion to suppress evidence, claiming his confession was not made knowingly, voluntarily, and intelligently; and he contends the trial court erred by denying his motion for a directed verdict, arguing the statute under which he was prosecuted is unconstitutional.

In the motion to suppress, it is noted that Holland provided two written statements to Sergeant Michael Shane of the Austin Police Department—one denying the offense and the other confessing after a polygraph test indicated deception. Prior to his statements, Holland consulted with his attorney, who advised cooperation. During the September 28 interview, Shane informed Holland of his rights, which Holland acknowledged by signing a form. On October 1, following the polygraph results, Holland was again informed of his rights before giving a written confession, which he initialed. 

Holland testified he was upset during the second interview but did not request an attorney. Shane observed that while Holland was visibly upset, it did not impair his ability to function. Holland was never formally arrested or restrained, and he did not express feeling compelled to remain at the station. The court concluded that the requirements for Miranda warnings apply only to custodial interrogations, and the circumstances of Holland's statements did not meet that threshold. The court affirmed the judgment of conviction.

The appellant was not considered to be in custody during the interrogation, as his testimony indicated he did not feel restrained. Even if he had been in custody, his confession would still be admissible, as he acknowledged understanding his rights and did not request an attorney. Officer Shane confirmed that the appellant received appropriate warnings without any coercion. The trial court deemed the confession voluntary based on this testimony.

Susan Schroeder, the mother of the child and appellant's ex-wife, testified about her concerns regarding the appellant's behavior and its impact on their child. They were married in 1979, had a child in 1983, divorced in 1985, and later resumed cohabitation until their separation in 1986. Since January 1987, Schroeder sought to limit appellant's visitation, citing instances of physical and potential sexual abuse, including the child returning from visits with bruises and inappropriate exposure to sexual behavior.

On September 7, 1987, Schroeder discovered her child engaged in inappropriate play with a cousin and learned from the child about a sexual act involving the appellant. Following advice from the child's therapist, she reported the incident to the police. The child had been undergoing therapy for behavioral issues since August 1987.

Schroeder's testimony was admitted under Tex. Code Crim. P. Ann. art. 38.072, allowing hearsay statements from child abuse victims under 12 if deemed reliable. The appellant challenged the reliability of her testimony, arguing her motives related to their custody disputes. However, the statute focuses on the reliability of the child's statement rather than the witness's credibility. Appellant also moved for a directed verdict, claiming insufficient evidence and arguing that the State's failure to call the child violated his confrontation rights.

Concerns regarding the credibility of witnesses apply equally whether testimony is based on hearsay or direct observation. The trier of fact (judge) evaluates witness credibility, as established in Williams v. State. In this case, evidence indicated a dispute over visitation between Schroeder and the appellant, the child's therapy involvement, and Schroeder's prompt action by consulting the child's therapist after learning about the incident. Schroeder's concise testimony was deemed credible, and the context of a single question posed to the child was not considered overly suggestive. The phrase "playing doctor" was interpreted without automatic implications of sexual activity. Although Schroeder was unsure why she asked the question, her concern about potential exposure to sexual activities provided justification for her inquiry.

The judge found Schroeder's account and the child's statement sufficiently reliable under Article 38.072, despite the appellant's argument that this article violated his confrontation rights by allowing hearsay testimony without the child being called as a witness. The court determined that the right to confrontation does not eliminate hearsay exceptions, referencing Ohio v. Roberts, and confirmed that Article 38.072 functions similarly to existing hearsay exceptions in rape cases. The court overruled the appellant's point of error and affirmed the conviction.