                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                     No. 07-12-00227-CR


                        BRIAN MCKEE ALDROW, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 21,416-C, Honorable Ana Estevez, Presiding

                                       June 18, 2014

                             MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Brian McKee Aldrow appeals from his conviction of the offense of

aggravated sexual assault of a child under six years of age 1 and the resulting sentence

of thirty years of confinement. Through one issue, appellant challenges the trial court’s

denial of his motion to suppress his oral and written statements. We will affirm.




      1
       TEX. PENAL CODE ANN. § 22.021 (West 2012).
                                             Background


        Because appellant does not challenge the sufficiency of the evidence to support

his conviction, we will recite only those facts pertinent to disposition of his appellate

issue. After appellant was indicted for the first-degree felony offense, he plead not

guilty and the case was tried before a jury. Appellant had given both a recorded oral

statement and a written statement to Amarillo police.                 He filed a pretrial motion to

suppress both statements. At the outset of trial, the trial court listened to the oral

recording, heard argument and denied appellant’s motion to suppress. The written

statement and the oral recording, with some redactions, were admitted and published to

the jury.


        In his statements, appellant admitted that his then-girlfriend had, on one occasion

in early 2010, placed his penis against the lips of a child whose date of birth was in

December 2007. By the time police interviewed appellant, the woman had given a

written statement admitting to sexual acts involving children, and had implicated

appellant in the early 2010 event.2 Early in his interview of appellant, the officer told him

of the woman’s statement inculpating appellant, and told him the officer believed she

was telling the truth. Appellant acknowledged the event the woman had described, and

told him he and she were engaged in sexual intercourse before the child entered the

room, but initially said his penis “never got close” to the child’s face. He said the woman

tried to cause his penis to contact the child, but he “ended it and left.”




        2
          In her trial testimony, the woman said appellant “[tried] to have the child do oral sex on him.”
Appellant did not testify.


                                                    2
       At the outset of the interview, the officer established that appellant had no

significant criminal history, and that he had served in the military, including a two-year

tour in Iraq. Later during the interview, the officer pointed out to appellant “positive stuff”

that placed him in a more favorable light vis-à-vis his offense. He mentioned appellant’s

lack of a criminal history and his military service. But, the officer told appellant, police

would be required to present the case to the district attorney. Emphasizing that he

simply wanted to be able to present the truth concerning appellant’s conduct, the officer

outlined appellant’s predicament. He reminded him that the woman had given a written

statement in which she had implicated both of them, and that the victim might well make

a statement. He concluded a jury was unlikely to believe appellant’s denial in view of

the contrary evidence. He told appellant that the case “doesn’t have to go to trial,” and

that “I try to resolve cases at the lowest level.” Appellant, at that point, interposed the

statement that he was facing “jail time either way.” The officer responded, “No. Not

necessarily.”    The officer then for the second time noted that appellant was an

“anomaly” because of his lack of criminal history and his military service. He said that

“positive stuff” would be taken into consideration, and that people understand anyone

can make a mistake.


       The officer then brought appellant back to his denial of contact between his penis

and the child.    He told appellant he believed the woman was the instigator of the

involvement with the child, that it was her hand that guided his penis, and that it




                                              3
“brushed against” the child’s lips before appellant could pull away. Appellant agreed

that was what happened.3


        The jury found appellant guilty as charged in the indictment. Punishment was

assessed as noted and this appeal followed.


                                               Analysis

        Appellant’s motion to suppress challenged the voluntariness of his statements.

He points out he was being interrogated for the offense of sexual assault of a victim

under the age of six, an offense requiring imprisonment on conviction. See TEX. PENAL

CODE ANN. § 20.021(f)(1) (West 2012) (providing the minimum term for an offense under

this section is increased to 25 years if the victim is younger than six years of age).

Therefore, appellant asserts, the officer’s statement that appellant did not necessarily

face “jail time” was a misstatement of the law. The misstatement, appellant argues, was

an “improper influence” which led to his confession of the crime, in violation of his due

process rights.


        At the hearing on a motion to suppress a statement on the ground of

involuntariness, it is the State's burden to prove by a preponderance of the evidence

that the defendant's statement was given voluntarily. 4 Hernandez v. State, 421 S.W.3d

712, 723 (Tex. App.—Amarillo 2014, no pet.). "A statement is obtained in violation of

        3
          In a part of the interview not played for the jury, appellant also disclosed that his father had
sexually abused him during his childhood. There also was conversation about explicit photographs
appellant’s former girlfriend had taken, some involving sexual contact with children, and forwarded to
appellant. Police already had seized two cellphones from appellant, and the interviewing officer told
appellant they would be analyzed to retrieve even deleted photographs.
        4
           The statement of an accused may be used in evidence against him provided it was "freely and
voluntarily made without compulsion or persuasion." TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2012).


                                                    4
constitutional due process only if the statement is causally related to coercive

government misconduct." Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim. App.

2010) (citing Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S.Ct. 515, 93 L.Ed.2d

473 (1986)). A statement is rendered involuntary if by the coercive conduct of law

enforcement a person's will is overborne and his capacity for self-determination critically

impaired. Contreras, 312 S.W.3d at 574 (citing Schneckloth v. Bustamonte, 412 U.S.

218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Our review of the voluntariness of

any statement from an accused is under the totality-of-circumstances standard. Delao v.

State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007), (citing Arizona v. Fulminante, 499

U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Assessing the totality of

the circumstances concerns both the characteristics of the accused and the details of

the interrogation. Bustamonte, 412 U.S. at 226. The ultimate question is whether

appellant’s will was overborne. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App.

1997).


         At trial and on appeal, appellant has pointed only to the asserted misstatement of

law by the interviewing officer as evidence his ensuing confession to contact between

his penis and the child’s lips was not given voluntarily. The only evidence presented to

the trial court in support of the motion to suppress was the audio-recording of the

interrogation. Appellant does not assert, and the record does not indicate, any failure

on the officer’s part to comply with the requirements of Code of Criminal Procedure

article 38.22 or Miranda. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2012);

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 2817 (1966). Although a

police officer brought appellant to the police station, the record does not indicate


                                              5
appellant was under arrest during the interrogation.                     After receiving the required

warnings, appellant told the officer he would talk to him and waive his right to remain

silent. Nothing about appellant’s characteristics at the time of the forty-eight minute

interrogation or the general circumstances under which the interrogation was conducted

show his decision to discuss his former girlfriend’s allegations was less than free and

voluntary.     And there is no evidence showing how appellant perceived the officer’s

statement he was “not necessarily” facing “jail time,” or what effect the statement

actually had on appellant’s decision to continue their discussion and eventually respond

positively to the officer’s inquiry about the nature of his contact with the child.

Appellant’s contention thus must be seen as asserting that the officer’s misstatement of

the law, made during an interrogation in which appellant otherwise voluntarily

participated, rendered the inculpatory statements made after the officer’s misstatement

inadmissible.


        The State first responds that the officer’s statement was not incorrect. It points

out the conduct appellant admitted could have led to a charge of indecency with a

child,5 a second degree felony, as to which an alternative to a jail term would have been

possible. See TEX. PENAL CODE ANN. § 21.11 (West 2012) (describing offense of

indecency with a child); TEX. CODE CRIM. PROC. ANN. art 42.12, § 5(a) (West 2013)

(describing deferred adjudication by judge). We agree the trial court could have viewed

the officer’s statement in that light and concluded he had not misrepresented to

appellant the possible consequences of his admission to contact with the child.

        5
           As the State points out, while the officer told appellant at the outset of the interrogation that he
was being interviewed in connection with the sexual assault of a child, the officer arrested appellant after
the interview for indecency with a child.


                                                      6
       Moreover, even if the officer’s statement is viewed as a misstating of the law’s

requirements in the event appellant were convicted of the aggravated sexual assault

offense, we would be unable to agree with appellant that, in the totality of the

circumstances of his statements, the officer’s conduct was so plainly coercive as to

require the trial court to find appellant’s will was overborne and his capacity for self-

determination critically impaired. See Contreras, 312 S.W.3d at 574.


       First, we keep in mind that under the totality of the circumstances test applicable

here, the assertedly coercive police activity is not considered alone, but as a factor in

the determination of voluntariness. Hernandez, 421 S.W.3d at 719, citing Fulminante,

499 U.S. at 285. As noted, appellant does not suggest that any factor other than the

asserted misstatement of law itself supports his contention his statement was

involuntary. In that regard, we also note that by the time appellant made the statement

admitting contact with the child, he already had acknowledged the truthfulness of much

of what the former girlfriend had said. Prior to the officer’s asserted misstatement,

appellant acknowledged that in the midst of their sexual activity, the woman led him in

the direction of the child.


       Second, the officer did not offer appellant any positive promise of leniency or of a

beneficial outcome. See Hernandez, 421 S.W.3d at 723. The trial court reasonably

could have seen the statement to appellant as one describing the officer’s opinion of a

possible scenario, not one that promised leniency in return for a confession. Id.; see,

e.g., Ramirez v. State, 76 S.W.3d 121, 126-27 (Tex. App.—Houston [14th Dist.] 2002,

pet. ref’d.) (holding that a detective’s comment to a confessing suspect that “typically

juries and the court system sometimes favor people [who] tell the truth” to be a

                                             7
statement of opinion and not the kind of representation likely to be so influential that a

defendant would feel compelled to confess untruthfully). 6


        Contrary to appellant’s argument, we find that from its review of the audio

recording of appellant’s statement the trial court could have determined by a

preponderance of the evidence that appellant’s oral and written statements were freely

and voluntarily given. The trial court did not abuse its discretion in overruling appellant’s

motion to suppress his statements. We overrule appellant’s sole issue and affirm the

judgment of the trial court.




                                                         James T. Campbell
                                                             Justice

Do not publish.




        6
          Nor does the officer’s statement meet the test outlined in Martinez v. State, 127 S.W.3d 792,
794 (Tex. Crim. App. 2004). Under that test, an improper inducement will render a confession
inadmissible if (1) a promise of some benefit is made to the accused; (2) the promise is positive, (3) made
or sanctioned by a person in authority and, (4) is of such an influential nature that it would cause a
defendant to speak untruthfully. Id.



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