                                     NO. 07-06-0336-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL B

                                    MAY 14, 2007
                           ______________________________

                                       JAMES E. FRY,

                                                                   Appellant

                                                v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2005-409207; HON. BRADLEY S. UNDERWOOD, PRESIDING
                      _______________________________

                                 Memorandum Opinion
                           _______________________________

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

        James E. Fry appeals his conviction for aggravated sexual assault through one

issue. In it, he contends that the trial court erred in failing to instruct the jury about whether

his statement to the police was voluntarily made. We overrule the issue and affirm the

judgment.
         Background

         The case involves appellant’s licking of his granddaughter’s genitals. Once an

investigation into the allegation began, appellant agreed to undergo a polygraph test and

met with an investigator for that purpose. In preparation for the test, the investigator

allegedly told appellant that he needed to compile questions to ask and solicited

appellant’s help. Appellant agreed. Thus, the allegations made by the victim were read

to appellant, and he was asked to respond to them in writing. Prior thereto, he was

mirandized. Indeed, appearing on his written statement are appellant’s initials beside the

written Miranda admonitions acknowledging that he was provided them.

         In responding to the allegations, appellant wrote, among other things, that he had

“licked” the child’s “vagina one time” while playing “puppy”.1 So too did he state that the

child touched his penis twice, once while he was exiting the shower and on another

occasion. At trial, appellant endeavored to explain what he meant by and why he made

the statements. For instance, use of the word “vagina” purportedly was not his idea.

Instead, appellant wanted to say that he licked her “private area,” but the officer told him

to call it the “vagina” because that is what the child called it. The incident was accidental,

according to appellant, and he apologized to the child for it. As for the instances when the

girl touched his penis, they allegedly were accidental as well and occurred when she

unexpectedly walked into the bathroom while he was in it and came in contact with the

appendage.




         1
             Playing “puppy” consisted of the two m aking believe that they were puppies chasing and licking each
other.

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        Appellant also reiterated that while he wrote the statement, he was not intending to

confess but merely trying to clarify what occurred and assist the investigator in developing

polygraph questions. Yet, nowhere did he claim that he was physically forced to provide

the statement or that the contents of the statement (save for reference to “vagina”) were

false, that he did not know the statement would be used against him, that he did not intend

to make the disclosures, that if he had known that the statement was to be used against

him he would not have made it, or that his responses would have differed had he actually

taken the polygraph.2 Again, he acknowledged that he was simply responding to the

officer’s questions in effort to clarify what he believed to be the truth regarding the child’s

allegations.

        Discussion

        When evidence at trial raises an issue regarding the voluntariness of the accused’s

confession or written statement, the trial court must instruct the jury that it shall be

disregarded unless it concludes, beyond a reasonable doubt, that the utterance was

voluntarily made. TEX . CODE CRIM . PROC . ANN . art. 38.22 §§6&7 (Vernon 2005); see also

Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002) (stating that when the

evidence presented at trial raises a factual issue as to whether a defendant had been

warned of his rights and had voluntarily waived them, he is entitled to an instruction on the

voluntariness of the statement). Next, a confession is involuntary if the totality of the

circumstances demonstrate that the speaker’s decision to speak was not made of his own

free will. Green v. State, 934 S.W.2d 92, 99-100 (Tex. Crim. App. 1996). That the


        2
          The investigator decided that the polygraph was no longer needed given the tenor of appellant’s
written replies.

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decision was induced through a misrepresentation by the interrogator is a factor to

consider in the mix but not alone determinable. Id. Again, all depends on the totality of the

circumstances, and the focus lies on whether the police misconduct “was such as to

overbear the will of the accused and bring about a confession not freely determined.” Id.

       The totality of the circumstances reveals no evidence suggesting that appellant’s

statement was involuntary, as that term is defined above. Nothing indicates that he had

any qualms in speaking to the investigator about the incident. Indeed, he initially met with

the investigator to undergo a polygraph wherein questions would be propounded involving

the truthfulness of the child’s accusations and his role, if any, in the assault. In other

words, he came to talk, and no one suggests that his decision to talk via a polygraph was

coerced in any way. Nor does anyone 1) deny that he was mirandized before talking or

2) suggest that the investigator purported to extend to him some type of immunity when

talking before the polygraph was administered. So, that he may have thought his answers

were to be used in drafting questions for the polygraph is of no import; to so believe and

yet agree to answer is nothing short of recognizing that the statement was going to be used

to affect the prosecution in one way or the other. Moreover, that the officer may have told

him of certain words to utilize in the non-custodial exchange is also inconsequential for the

Court of Criminal Appeals held in State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999)

that such is not the stuff from which an involuntary statement arises. Id. at 726.

       Simply put, what we have here is a situation wherein the investigator and appellant

may have had in mind different purposes to which his statement would be put. Yet, each

purpose entailed the investigation of the child’s claim and use of the comments as a means



                                             4
of assessing appellant’s guilt or innocence. He may not have wanted to confess but that

is a distinction without a difference. After all, he undoubtedly knew that what he was going

to say would be used (at least during the administration of a polygraph) to determine his

culpability, and he talked nonetheless. And, without any evidence showing that he was

granted some type of license to speak without fear of prosecution or that his answers

would have differed had he undergone a polygraph or that he initially appeared against his

will, the trial court was well within its discretion to conclude that his written statement and

its contents were made under appellant’s own free will. So, he was not entitled to the

instruction at issue.

       Accordingly, we affirm the judgment of the trial court.



                                                  Brian Quinn
                                                  Chief Justice



Do not publish.




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