


CANALES V. THE STATE OF TEXAS



NO. 07-01-00176-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

OCTOBER 19, 2001
______________________________

POLO CANALES, JR.,




		Appellant


v.

THE STATE OF TEXAS, 


		Appellee

_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2000-433,843; HON. BRADLEY S. UNDERWOOD, PRESIDING
_______________________________

Before QUINN, REAVIS, and JOHNSON, J.J.
	Polo Canales, Jr. (appellant) appeals his conviction for aggravated sexual assault. 
Through two issues, he contends that the trial court erred in admitting 1) testimony of his
invocation of his Fourth Amendment right to be free from an unreasonable search and
seizure and 2) his confession.  We overrule each contention and affirm the judgment.
Background
	On April 9, 2000, appellant was babysitting his nieces, A. D., nine years old, and
A. S., five years old.  After A.S.'s parents picked her up from appellant's residence, she
told her mother that appellant had made her do bad things.  Mrs. Smith took A.S. to
Highland Medical Center and contacted the police.  Sgt. Wayne Casey of the Lubbock
County Sheriff's Department informed appellant of the allegations against him and
requested that he come to the sheriff's office to discuss the matter.  After informing
appellant of his Miranda rights, Sgt. Casey took a signed, sworn statement from appellant,
in which appellant stated that he had touched A.S's vagina with his penis and placed his
penis in A.S.'s mouth.  So too did he indicate that this sexually excited him for he
described how he would go to the bathroom when he began to climax (1).  Despite giving this
statement, appellant refused to voluntarily submit to the sampling of his hair, blood, and
saliva.  Thereafter, he was indicted for and convicted of aggravated sexual assault.
Issue Two - Voluntariness of Statement

	We initially address issue two for our answer to it facilitates disposition of issue one. 
Furthermore, through issue two, appellant contends that his statement given the police
was involuntary because it resulted from a promise of probation made by the interrogating
officer.  The trial court convened a hearing to determine the voluntariness of the statement. 
Therein, the interrogating officer denied making any promise to appellant.  The latter
disputed the officer's statement and asserted that such a promise was made.  Ultimately,
the trial court refused to suppress the statement, concluding that ". . . the officer did not
promise the defendant anything."
	At a suppression or similar hearing to determine the admissibility of a statement, the
trial court is the sole trier of fact and may choose to believe or disbelieve any or all
evidence from a particular witness.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.
App. 1996).  Furthermore, we must defer to the trial court's resolution of disputes regarding
historical fact, especially when resolution of those disputes entails the evaluation of
witness credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997).  Finally, the trial court's decision will be upheld absent a clear showing of abused
discretion.  Villarreal v. State, 935 S.W.2d at 138; Banda v. State, 890 S.W.2d 42, 51 (Tex.
Crim. App. 1994), cert. denied, 515 U.S. 1105, 115 S. Ct. 2253, 132 L. Ed.2d 260 (1995).
	Here, appellant contended that his statement was involuntary since the interrogating
officer allegedly promised him probation if he made the statement.  The officer denied
making such a promise.  Thus, the trial court was placed in the position of exercising its
power as the fact-finder and determining who to believe.  Having decided to believe the
officer and having concluded that no promise was made, the court acted within its scope
of authority as a fact-finder.  Thus, we cannot say that it abused its discretion in refusing
to suppress the statement when it found the basis for suppressing same to be non-existent.  
Issue Two - Evidence of Appellant's Invocation of Constitutional Rights

	Through his first issue, appellant contends that the trial court erred by admitting
testimony regarding his refusal to submit to the sampling of his hair, tissue, and fluids. In
admitting such testimony, the trial court allegedly committed constitutional error mandating
reversal.  We disagree.
	Assuming arguendo that reference to appellant's refusal to submit to testing was
error, we must determine whether it was harmful.  Furthermore, in assessing the potential
harm (given the framework of appellant's allegation), we utilize the standard contained in
Texas Rule of Appellate Procedure 44.2(a).  The latter obligates us to reverse the
judgment unless we conclude, beyond a reasonable doubt, that the error did not contribute
to the conviction or punishment.  Tex. R. App. P. 44.2(a).  Next, since Rule 44.2(a) is
simply a reiteration of the old Rule 81(b)( 2), Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998), cert. denied, 526 U.S. 143, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999),
precedent construing Rule 81 guides our hand in applying Rule 44.2(a).  And, that
precedent instructs us to analyze such things as the source and nature of the error,
whether or to what extent it was emphasized by the State, its probable collateral
implications, the weight a juror would probably place upon it, and the likelihood that
declaring it harmless would encourage the State to repeat it with impunity.  Harris v. State,
790 S.W. 2d 568, 587-88 (Tex. Crim. App. 1989). 
	Here, the nature and source of the error involved a State's witness mentioning that
appellant had refused to provide the aforementioned samples.  Prior to the solicitation of
that information, appellant objected.  Yet, when the objection was made, the State had not
asked whether appellant so refused.  Rather, it merely asked whether appellant was
requested to submit his hair, saliva, and blood to analysis.  At that point, appellant voiced
objection to his "refusal to make any statements or give any samples."  The trial court
overruled the objection and allowed the State to ask whether appellant "agree[d] to provide
any hair, blood, or saliva for collection?"  As can be seen, the supposedly inadmissible
evidence was not tendered sua sponte by the State and via means avoiding thwarting
supervision by the trial court.  Rather, it was admitted only after the trial court implicitly
authorized it to ask the question.  Having obtained the permission of the court to ask same,
we cannot say that the State would repeat the act with impunity if we were to hold the
purported error harmless.  Nor can we say that the source of the alleged error was the
State's alone for the trial court permitted it to proceed.  So, the State was not acting with
impunity when it solicited the information.  
	Additionally, the State did not emphasize the particular testimony.  Nor can we say
that it was of the ilk which would have influenced the jury's verdict and assessment of
punishment.  Indeed, before the jury were the appellant's statement graphically depicting
the acts he did to the two female children and the testimony of his victims corroborating
the substance of his confession.  It is illogical to suggest that rational jurors would have
been swayed to convict and mete out the punishment it did because of a passing comment
regarding the refusal to give samples when appellant's own confession and the testimony
of the victims overwhelming evinced his guilt. 
	Given the foregoing, we can safely say, beyond reasonable doubt, that the
purported error did not contribute to appellant's conviction or the punishment levied.  Thus,
no basis for reversal exists.
    	Accordingly, the judgment is affirmed.  

								Brian Quinn
								    Justice 

Do Not Publish.
1. In his statement, appellant also described the sexual contact he engaged in with A.D.

