Affirmed as modified; Opinion Filed July 27, 2018.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00318-CR

                              ARMANDO CABRERA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 292nd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F10-41696-V

                              MEMORANDUM OPINION
                         Before Justices Francis, Fillmore, and Whitehill
                                  Opinion by Justice Fillmore
       A jury convicted Armando Cabrera of continuous sexual assault of a child younger than

fourteen years of age and assessed punishment of forty years’ imprisonment. In two issues,

Cabrera argues the trial court erred by admitting the recording of his interview by the police

because portions of the recording were inaudible and by denying his request for a jury instruction

on the voluntariness of his statement to the police. We modify the trial court’s judgment to reflect

the correct statute for the offense and, as modified, affirm the trial court’s judgment.

                                               Background

       In July 2010, twelve-year-old P.H. wrote a letter to her brother’s girlfriend, in which she

accused Cabrera, a close family friend, of raping her. Following the outcry, P.H. had a forensic

interview at the Dallas Children’s Advocacy Center, where she revealed the extent of Cabrera’s
sexual abuse. After Cabrera was arrested, he was interviewed by Detective Bryan Snyder of the

Mesquite Police Department. During the interview, which was recorded, Cabrera admitted to

sexually assaulting P.H. at least three times over a period of more than thirty days.

       At trial, P.H. testified at length about Cabrera’s abuse on multiple occasions and in at least

three different locations. According to P.H., Cabrera touched her vagina, put her hand on his penis,

and rubbed his penis in the triangular space between her vagina and thighs. She also testified

Cabrera put his mouth on her vagina and put her mouth on his penis; testifying specifically about

one time when he ejaculated in her mouth, she said she “felt really disgusted” and “got up quickly

and left and tried to spit everything out.” Cabrera denied the allegations and contended that he

only confessed to certain acts during his interview by the police because he was “scared” and

“nervous.” After hearing this and other evidence, the jury found Cabrera guilty of continuous

sexual assault of a child younger than fourteen years of age and assessed punishment of forty years’

imprisonment. TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2017).

                                      Recording of Police Interview

       In his first issue, Cabrera argues the trial court erred by admitting the recording of his

interview by the police because the recording failed to comply with the requirements of article

38.22, section 3(a) of the code of criminal procedure. Specifically, Cabrera contends portions of

the recording were inaudible and that “[t]he recording must be audible to merit admission.”

       We review a trial court’s ruling on the admissibility of evidence under an abuse of

discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial court

abuses its discretion when its ruling “falls outside the zone of reasonable disagreement.” Id. (citing

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)).

       Recorded oral statements of an accused, resulting from custodial interrogation, must satisfy

the requirements of article 38.22, section 3(a) of the code of criminal procedure to be admissible.

                                                 –2–
See TEX. CODE CRIM. PROC. ANN. art 38.22 § 3(a) (West Supp. 2017). Article 38.22, section 3

provides that such oral statements are inadmissible in a criminal proceeding unless: (1) an

electronic recording was made of the statement; (2) the recording shows that, prior to giving the

statement, the accused was advised of his rights under article 38.22, section 2(a) and knowingly,

intelligently, and voluntarily waived those rights; (3) “the recording device was capable of making

an accurate recording, the operator was competent, and the recording is accurate and has not been

altered”; (4) all voices on the recording have been identified; and (5) a complete and accurate copy

of the recording was provided to the accused’s attorney not later than the twentieth day before the

date of the proceeding. Id. The trial court does not abuse its discretion by admitting a recorded

statement with inaudible portions provided the portions were not intentionally altered and do not

affect the overall reliability of the recording. See Maldonado v. State, 998 S.W.2d 239, 245‒46

(Tex. Crim. App. 1999).

          Cabrera filed a motion to suppress the recording of his interview by the police. During the

hearing on his motion, Cabrera stated article 38.22 required that a “recording device must be

capable of recording accurately.” He then stated his objection to the recording was that “it’s very

difficult to hear” and that “some of the words are unintelligible.” The State responded that

Detective Snyder was present and able to testify about the equipment used to record the statement,

but it was the State’s position that any issue with the volume or ability to understand Cabrera went

to the weight of the evidence, not the admissibility of the recording. The trial court agreed and

denied Cabrera’s motion to suppress.

          During trial, Detective Snyder testified he interviewed Cabrera, the entire interview was

audio and video recorded, and there were no alterations, changes or deletions to the recording.

Detective Snyder also identified the Miranda1 card that Cabrera read and signed before the


   1
       See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                      –3–
interview. The State then offered Cabrera’s recorded statement. Cabrera objected on the ground

that “the recording device must be capable of making an accurate record.” The trial court overruled

Cabrera’s objection and admitted the recording.

       The recording was played for the jury; at some point, the trial court paused the recording

and asked the jurors if they had been able to understand the recording. Three of the twelve jurors

indicated they had difficulty hearing. Cabrera reurged his objection to the recording, which the

trial court again overruled. Detective Snyder continued testifying, stating Cabrera’s demeanor,

tone, and clarity changed significantly when he was questioned about P.H. and that he began

speaking softly and mumbling. At this point, the trial court stopped the video and moved the jury

from the jury box to the rear gallery of the courtroom for “better acoustics.” The record does not

reflect any complaints regarding difficulty hearing the recording after the jury was moved.

       We have reviewed the DVD copy of Cabrera’s recorded interview and agree that portions

of the recording are difficult to hear. However, our review shows that Cabrera clearly admitted to

touching P.H. “everywhere,” and when Detective Snyder asked if he touched P.H.’s breasts and

whether he pulled her pants down, Cabrera responded affirmatively. Later in the video, Cabrera

further admitted to another instance when P.H. rubbed his penis. In addition to confessing to

touching P.H. inappropriately, Cabrera also acknowledged that it happened “two other times,”

once around July 4, 2010, and another time about a year prior. The audible portions of the

recording establish that (1) the equipment was capable of making an accurate recording, and (2)

Cabrera committed the offense of continuous sexual abuse of a child younger than fourteen years

of age. See TEX. PENAL CODE 21.02(b).

       We further note there is nothing in the record to suggest the State intentionally caused

portions of the recording to be rendered inaudible in an attempt to keep out any evidence of

responses favorable to Cabrera; rather, the anomalies in the recording are due to Cabrera varying

                                               –4–
his tone of voice and Detective Snyder occasionally interrupting him. See Maldonado, 998 S.W.2d

at 245. Thus, the inaudible portions do not affect the overall reliability of the recording. See id.

Under these circumstances, we conclude the trial court did not err by admitting the recording of

Cabrera’s interview by the police. We resolve Cabrera’s first issue against him.

                                              Jury Charge

       In his second issue, Cabrera contends the trial court erred by denying his request for a

voluntariness instruction regarding his recorded police interview. In support of this contention,

Cabrera points to the State’s questioning of him about his educational background on cross-

examination and argues this was “designed to show his intelligence” in an attempt to “rehabilitate

the voluntariness of the statement.”

       When reviewing claims of jury charge error, we first determine whether there was error in

the charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). If there was error and the

defendant objected to the error at trial, we reverse if the record shows the defendant suffered some

harm from the error. Id. at 25–26. A jury charge error may occur when a defendant is entitled to

an instruction, but the trial court denies his request. See Vasquez v. State, 225 S.W.3d 541, 545

(Tex. Crim. App. 2007).

       “[A] defendant may be entitled to an instruction on voluntariness even if the facts

surrounding his confession are undisputed.” Id. at 544. “An instruction must be given if a

reasonable jury, viewing the totality of the circumstances, could have found that the statement was

not voluntarily made.” Id. Under this standard, evidence must be introduced at trial that would

allow a reasonable jury to conclude the confession at issue was not voluntary. Id. at 545. In

assessing the voluntariness of a statement, a jury may properly consider evidence regarding factors

such as youth, intoxication, mental capacity, physical violence toward the defendant, and police

overreaching. Oursbourn v. State, 259 S.W.3d 159, 172–73 (Tex. Crim. App. 2008). There is no

                                                –5–
error in failing to include an instruction if the jury was not presented with evidence raising the

issue of voluntariness. See Vasquez, 225 S.W.3d at 545.

       We first note Cabrera did not seek to suppress his recorded interview on the ground that

his statement was involuntary. As noted previously, during the hearing on his motion to suppress

his statement obtained during the interview, Cabrera challenged only whether the recording of the

interview was audible, expressly stating, “I don’t have any substantive objection in terms of

coerciveness, or anything like that.”    Likewise, during trial, Cabrera did not challenge the

admission of his statement or the content of the recording on voluntariness grounds. Nevertheless,

because Cabrera requested an instruction on voluntariness, we will consider whether the

voluntariness of his statement was raised by any evidence at trial.

       When the State offered the recording of Cabrera’s statement, Detective Snyder testified he

read Cabrera his Miranda warnings after which he gave Cabrera the same warnings in writing.

Once Cabrera read the written warnings and initialed and signed them, Detective Snyder

interviewed him. According to the detective, he saw no indications during the interview that

Cabrera had any type of mental illness or deficiency, had a low intelligent quotient, or was under

the influence of alcohol or drugs.

       Cabrera, who was thirty years old at the time of trial, denied touching P.H. or committing

any of the acts she testified about. When asked why he admitted committing the offenses to the

police during his interview, he said he did so because he was “nervous” and “scared.” The State

then cross-examined Cabrera and asked him about his educational background. Cabrera told the

jury he had graduated from high school with grades of mostly Bs and Cs, and attended community

college. He also admitted he understood his rights and knew there were “going to be consequences

for the things” he had done to P.H.




                                               –6–
       As noted previously, we have reviewed Cabrera’s recorded police interview, which was

admitted at trial and played for the jury. Considering the entirety of the record, including the

recording, we agree with the State that there is no evidence that would allow a reasonable jury to

conclude Cabrera’s confession was not voluntary. Accordingly, we conclude the trial court did

not err by denying Cabrera’s instruction on voluntariness. We resolve Cabrera’s second issue

against him.

                                           Modify Judgment

       We note the trial court’s judgment incorrectly recites the statute for the offense. Cabrera

was convicted of continuous sexual abuse of a child younger than fourteen years of age pursuant

to section 21.02 of the Texas Penal Code. The judgment incorrectly recites the statute for the

offense as “21.01 Penal Code.” Accordingly, on our own motion, we modify the section of the

judgment entitled “Statute for Offense” to show “21.02 Penal Code.” TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (courts of appeals have authority

to modify a judgment); Estrada v. State, 334 S.W.3d 57, 63–64 (Tex. App.—Dallas 2009, no pet.)

(court of appeals authority to modify incorrect judgment not dependent upon request by party).

       As modified, we affirm the trial court’s judgment.




                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47
170318F.U05




                                               –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 ARMANDO CABRERA, Appellant                           On Appeal from the 292nd Judicial District
                                                      Court, Dallas County, Texas,
 No. 05-17-00318-CR         V.                        Trial Court Cause No. F10-41696-V.
                                                      Opinion delivered by Justice Fillmore,
 THE STATE OF TEXAS, Appellee                         Justices Francis and Whitehill participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The section of the judgment entitled “Statute for Offense” is modified to state
       “21.02 Penal Code.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 27th day of July, 2018.




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