                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00555-CR
                             NO. 02-12-00556-CR


BRADLEY STEPHEN MAXWELL                                           APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
                      TRIAL COURT NO. 09757
                      TRIAL COURT NO. 09758

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

      Appellant Bradley Stephen Maxwell was charged by separate indictment in

each case with the offense of aggravated sexual assault of a child.     A jury

convicted him of both offenses in a single trial and assessed his punishment at


      1
      See Tex. R. App. P. 47.4.
life imprisonment, enhanced by a single prior conviction, and a $10,000 fine. The

trial court sentenced him accordingly, stacking the sentences. Appellant brings

three issues, challenging the admission of his out-of-court statements and letter,

the sufficiency of the evidence to support his convictions, and the exclusion of

impeachment evidence. Because the evidence is sufficient to support the jury’s

verdicts and because the trial court did not commit reversible error, we affirm the

trial court’s judgments.

Brief Summary of Facts

      The complainant testified that Appellant had penetrated both the

complainant’s mouth and anus with Appellant’s penis in Olney, Texas.           The

complainant was eleven years old when he reported the alleged assaults to his

mother.

Sufficiency of the Evidence

      In his second issue, Appellant argues that the evidence is insufficient to

support his convictions because the complainant was not a credible witness. In

our due-process review of the sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. 2          This standard gives full play to the


      2
      Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).



                                        2
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. 3

       The trier of fact is the sole judge of the weight and credibility of the

evidence. 4 Thus, when performing an evidentiary sufficiency review, we may not

re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. 5    Instead, we determine whether the necessary

inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. 6 We must presume that

the factfinder resolved any conflicting inferences in favor of the verdict and defer

to that resolution. 7

       The complainant testified to the requisite elements of each offense. The

jury apparently found his testimony credible.         We must defer to the jury’s




       3
      Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350
S.W.3d 588, 595 (Tex. Crim. App. 2011).
       4
      See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768.
       5
        Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
       6
      Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
       7
        Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360.



                                          3
determinations of credibility and not set ourselves up as the thirteenth juror. 8 We

overrule Appellant’s second issue.

Admissibility of Appellant’s Statements

      In his first issue, Appellant argues that the trial court erred by admitting a

letter of apology he wrote at the request of law enforcement as well as

statements that he made on February 15, 2011, and February 23, 2011,

concerning the offenses and that they were all obtained in violation of his Sixth

Amendment right to counsel. Specifically, on appeal,

             Appellant says such statements should be suppressed
      because they were not voluntary, were products of custodial
      interrogation for long periods of time leading to Appellant’s
      exhaustion, without access to family or his appointed attorney, and
      were obtained by coercion, intimidation and duress. They were
      obtained in violation of his Sixth Amendment right to counsel.

Regarding the February 15, 2011 statement, Appellant had already requested

counsel beforehand.      Regarding the later statement and the letter, he had

already received appointed counsel. Appellant contends that the February 15,

2011 statement was the result of continued questioning after counsel had been

requested and that the letter and February 23, 2011 statement resulted from

continued questioning after counsel had been both requested and appointed.

      Appellant filed a pre-trial “Motion for Protection.” The portion of the motion

dealing with the subject of his first appellate issue provides,


      8
       Brooks v. State, 323 S.W.3d 893, 901 (Tex. Crim. App. 2010).



                                          4
      4.      Additionally, [Appellant] moves to exclude the following under
      this Motion for Protection: any statements made by [him], any
      “letter” written to the alleged victim as a result of custodial
      interrogation, any and all history of his arrest, prior arrests, or other
      interaction with law enforcement.

      5.     Specifically, the length of the custodial questioning by law
      enforcement officials of the state was excessive, leading to
      exhaustion, confusion, intimidation and coercion of [Appellant] who
      consistently denied any memory of the events suggested by officials.
      The Texas Ranger interview used excessive, repeated questioning,
      and suggested words to [Appellant] such as “hardwiring”, “blueprint”,
      [and] “triggers” which, after hours of questioning and exhaustion,
      [Appellant] began to repeat about himself. Even so, [Appellant]
      consistently refused to make an open admission of responsibility or
      culpability. At best he said only something to the effect that “if the
      child says so then it must be true because the kid is a good kid[.”]

      6.    It was law enforcement who suggested that [Appellant] write
      the child a letter of apology. Again the letter is nothing more than a
      continuation of the “I don’t remember but if you say so, because you
      are a good kid” theme.

      7.     Nonetheless, if the prosecutor is allowed to allude to,
      comment upon, inquire about, or introduce evidence concerning any
      of the above matters, ordinary objections during the course of trial,
      even sustained and including proper instructions to the jury, will not
      remove the harmful effect of the evidence in view of its ambiguous
      but suggestive content. This is highly prejudicial and lacks probative
      force.

      The hearing on this motion took place during the trial. At the Jackson v.

Denno 9 hearing, the trial court asked for clarification:

      [THE COURT:]               Now, explain to me again. Are there two
                                 statements?

      [DEFENSE COUNSEL]: There’s actually three, Your Honor.

      9
       378 U.S. 368, 84 S. Ct. 1774 (1964).



                                           5
       THE COURT:               There’s three statements?

       [THE STATE]:             Yeah, that’s right. There was one that was
                                taken by Chief Davis that was not in
                                custody.

       THE COURT:               Okay.

       [THE STATE]:             And then there were two statements taken
                                by Ranger Lain, one was on February 15th
                                and one was on February 23rd.

       Appellant made it clear that the statements of February 15 and February

23 were the only statements that he wanted to discuss in the hearing because he

considered them the only two custodial statements. The trial court sought more

clarification:

       THE COURT:                And the allegation of the low blood sugar
                                 was which one?

       [DEFENSE COUNSEL]: The 23rd, Your Honor, at the end when he
                          would have been writing the letter. And
                          the low blood sugar issue is something
                          where we have a doctor that has been
                          attempted to be subpoenaed, not served
                          yet, Dr. Cawley, because he has interest in
                          another part of this case so I thought one
                          physician would be fine for that purpose.
                          He’s not an expert that’s been designated,
                          but we did not know the blood sugar
                          problems existed till we received the
                          records early this week from Tommy at the
                          Sheriff’s Department that it was an issue
                          so we had no anticipation of any need for
                          a sugar—

Defense counsel informed the trial court,

       [I]t looks like the statement they are trying to introduce may be at a
       time that was previous to the time when the low blood sugar issues
       may have been a part. So I don’t have that medical expert yet, but I


                                         6
      am working on getting the subpoena for the second statement. That
      would be the [February] 23rd statement. I believe they’re trying to
      introduce the [February] 15th statement since that’s the one they
      typed up.

      Defense counsel was primarily concerned that the police had allegedly

taken advantage of Appellant’s low blood sugar level to secure statements from

him. As to the statement obtained on February 15, Ranger Lain testified that the

Texas Rangers had tried to find Appellant to question him in a noncustodial

setting but had been unable to locate him. After the arrest, Lain went to the jail to

interview Appellant:

      Q.     Okay. Did he seem willing to talk with you at the time?

      A.     Yes, ma’am.

      Q.     Did he seem agitated or upset or did he seem like he wanted
             to be there talking to you?

      A.     His body language and his demeanor indicated to me that he
             was eager to talk to me and also he stated that he wanted to
             sit and discuss it. He’s been anticipating trying to discuss and
             resolve any issues.

      Q.     So he didn’t seem reluctant to be there speaking with you, did
             he?

      A.     Absolutely not.

      Q.     And approximately how long did this interview last?

      A.     Approximately three hours I think.

      Q.     And during that time did he ever ask for food or ask for any
             sort of medical attention or anything?

      A.     No, ma’am.




                                         7
      Q.    And had he asked you for anything of that nature would you
            have been happy to accommodate him?

      A.    Yes, ma’am. Absolutely.

      Q.    Is that what you would routinely do in your interviews?

      A.    Yes, ma’am.

Ranger Lain returned to the jail to interview Appellant on February 23:


      Q.    Did he appear to be coherent at the time?

      A.    He did.

      Q.    Did he appear to have any of those diabetic red flags that
            [Defense Counsel] was talking about a moment ago?

      A.    No, ma’am. I did not notice any of those.

      Q.    Was he shaky? [S]weaty? [A]nything of that nature?

      A.    No, ma’am. Not that I recall.

      Q.    Had you noticed anything like that and you were concerned
            about something, in your training are you advised to get
            medical personnel into an interview room under those kinds of
            circumstances?

      A.    Yes, ma’am. If there’s any kind of circumstance where it
            appears that the subject is in any kind of physical medical
            distress the interview would be over.

      Q.    And do you recall approximately how long that interview
            lasted on the 23rd?

      A.    That one is approximately two hours.

      Q.    Approximately two hours. And during that interview, did he
            produce any writings?

      A.    Yes, ma’am, he did.

      Q.    And what was it that he produced?


                                        8
      A.     He wrote a letter of apology to the victim apologizing for what
             he had done to him.

      Q.     Did you coerce him into writing that letter?

      A.     I did not.

      ....

      Q.     Okay. And did you accomplish this during the two hours or
             did he do this after the interview?

      A.     This was during the interview.

      Q.     Okay. So when he completed this document and he signed it
             would you have had an opportunity to identify it in the
             interview as a completed document at a certain time in the
             interview?

      A.     When he signed his name at the bottom and said he was
             finished writing.

      Q.     Did you stop the interview then or did you continue on for
             longer?

      A.     I think we may have talked a few minutes after that. I don’t
             recall exactly.

      Q.     So it would be close to two hours into the interview?

      A.     I would have to go back to look and see exactly when it was
             that he—

      Q.     Would it surprise you that he had a blood sugar of 56 at the
             end of your interview?

      A.     It would not surprise me because I have no knowledge of
             that.

      Although Appellant raised the issues of length of questioning and absence

of counsel in much of the wording he employed in his brief, at the hearing on the




                                         9
motion, his position was that his statement and letter were not voluntary because

he suffered from low blood sugar.

      The trial court stated at the end of the hearing,

              Well, the problem that I’m having . . . is I’ve heard absolutely
      no testimony from this stand on either of the interviews of any
      effects . . . from someone that was trained to at least have some
      initial valuations of the effects of diabetes. I’ve had absolutely no
      evidence whatsoever that he was acting under the influence or
      under the problem of diabetes, so I—I don’t find at least even in the
      second one—that’s the only one that you’re alleging. I’m not seeing
      anything that would indicate that the low blood sugar by itself would
      have affected the voluntariness of it.

Defense counsel responded,

       And, Your Honor, we know that there [are] instances through case
law and through the voluntariness, knowingly and intelligently waiving
rights that there can be medical issues.

      The trial judge was told that the complaint before the court was the

voluntariness of the letter that Appellant was induced to write because his will

was influenced by his weakened condition as a result of the combination of low

blood sugar and the length of the interrogation.          The total length of the

interrogation was five and a half hours: two separate periods of questioning

separated by more than a week, the longest period of interrogation being about

three and a half hours.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,




                                         10
objection, or motion. 10 A reviewing court should not address the merits of an

issue that has not been preserved for appeal. 11         The hearing referred to in

Appellant’s brief dealt with low blood sugar. When the State offered the letter at

trial, Appellant said, “No objection.”

      Additionally,   although    Appellant    made     certain   objections   to   the

admissibility of the other statements, in the trial court he did not raise the Sixth

Amendment claim he now raises on appeal.              The trial court was asked to

determine whether the letter and any statement were involuntary because

Appellant was suffering from low blood sugar. Appellant’s complaints on appeal

are much broader, but they were never before the trial court, and the trial court

was never asked to rule on them. Trial counsel specifically limited its motion to

the voluntariness of the letter because of the effect of low blood sugar. The issue

of the right to counsel was not called to the attention of the trial court, if it was an

issue, and the trial court ruled on it only as it related to the issue Appellant

claimed to raise.      The trial court was never made aware that any other

voluntariness complaints Appellant raises on appeal were before the trial court.




      10
       Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d 252, 254 (Tex.
Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth
2013, pet. ref’d).
      11
         Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on
reh’g); Sample, 405 S.W.3d at 300.



                                          11
Because Appellant has not preserved these complaints he raises on appeal, we

overrule his first issue.

Exclusion of Impeachment Evidence

      In his third issue, Appellant argues that the trial court reversibly erred by

excluding his proffered impeachment evidence. If a party fails to provide legal

authority to support its position, the appellate court may properly overrule the

issue or point as inadequately briefed. 12 Appellant has directed us to no legal

authority in support of his argument. We therefore overrule his third issue.

Conclusion

      Having overruled Appellant’s three issues on appeal, we affirm the trial

court’s judgments.




                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 3, 2014

      12
        Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.
Crim. App. 2000); Lopez v. State, No. 02-12-00179-CR, 2013 WL 5303593, at *5
(Tex. App.—Fort Worth Sept. 19, 2013, pet. ref’d) (mem. op., not designated for
publication).



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