      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00287-CR


                                Daniel Timothy Ozuna, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
     NO. D-09-0854-SA, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A grand jury returned an indictment charging appellant Daniel Timothy Ozuna with

indecency with a child by sexual contact, a second-degree felony. See Tex. Penal Code Ann. § 21.11

(West Supp. 2010). A jury found Ozuna guilty of the offense. The trial court found the indictment’s

enhancement paragraph to be true and assessed punishment at life in prison. On appeal, Ozuna

argues that (1) the indictment failed to give him adequate notice of the State’s intent to use a prior

conviction for enhancement purposes, (2) the evidence was legally insufficient to support a true

finding as to the enhancement paragraph, and (3) the trial court erred in admitting an involuntary

confession into evidence. We affirm the judgment of the trial court.


                                         BACKGROUND

               Ozuna’s indictment for indecency with a child by sexual contact stemmed from

allegations by his step-daughter, M.R., that he touched her genitals with his hands. The indictment

contained the following enhancement paragraph:
       And, the Grand Jurors upon their oaths further present that prior to the commission
       of the offense in paragraph one, DANIEL OZUNA, on the 29th day of January, 1997,
       in the District Court of Adams County, Nebraska, in Cause Number 96546 styled
       THE STATE OF NEBRASKA vs. DANIEL OZUNA, was legally and finally
       convicted of Ct I-Assault by Confined Person Ct-II Robbery, a felony, upon a
       charging instrument then pending in the Court and of which that Court had
       jurisdiction[.]


               A jury trial was held on this charge and similar charges committed against M.R.’s

two younger siblings, J.R. and T.O. The jury heard testimony from several witnesses, including the

victims, Ozuna, and two San Angelo Police Department detectives.1 During the testimony of

Detective Irma Rodriguez, the State offered a video recording of an interview conducted by

Rodriguez in which Ozuna confessed to touching M.R. Ozuna objected to the admission of the

video recording on the grounds that it was an involuntary confession. A hearing was held outside

the presence of the jury to determine the admissibility of the video.

               At the hearing, Ozuna offered recordings of three interviews performed over a 60-day

period from March to May 2009. Ozuna’s confession occurred during the third interview. Ozuna

testified at the hearing that Detective John Ford, who conducted the first and second interviews,

stated that he could give Ozuna “the lightest punishment he can, it would either be probation or

classes, and he told [Ozuna] he would talk to the DA and try to get as less punishment as he can.”

Ozuna also claimed that Ford told him that if he confessed to the count against M.R., he would be

able to see his children again and Ford would “drop” the prosecution for the other two siblings. At

the conclusion of the hearing, the trial judge overruled Ozuna’s objection and found that Ozuna


       1
        The victims’ mother (who was also Ozuna’s estranged wife), their current foster parents,
and several caseworkers also testified.

                                                 2
freely, knowingly, intelligently, and voluntarily waived his rights and gave the statement. The

third interview was then played to the jury.

               At the conclusion of trial, the jury found Ozuna guilty of one count of indecency with

a child by sexual contact against M.R. and acquitted him of all charges against M.R.’s siblings.

During the punishment phase, Ozuna pleaded “not true” to the indictment’s enhancement paragraph.

The State presented punishment evidence in the form of a Nebraska penitentiary packet and several

Texas penitentiary packets. The trial court found that the enhancement paragraph was true, and

sentenced Ozuna to life imprisonment.2 The trial court later denied Ozuna’s motion for new trial and

motion to set aside a void sentence. This appeal followed.


                                           DISCUSSION

               Ozuna raises three issues on appeal. First, he claims that the indictment failed to give

him constitutionally adequate notice of the State’s intent to enhance his conviction. Second, Ozuna

argues that the evidence was legally insufficient to support a true finding as to the enhancement

paragraph of the indictment. Finally, Ozuna contends that the trial court erred in admitting the third

interview because the interview included an involuntary confession.




       2
          The charged offense, indecency with a child by sexual contact, is a second-degree felony
punishable by two to twenty years’ imprisonment. See Tex. Penal Code Ann. §§ 12.33, 21.11
(West Supp. 2010). A second-degree felony may be enhanced to a first-degree felony by proving
that the defendant has been once before convicted of a felony. See id. § 12.42(b) (West Supp. 2010).
A first-degree felony has a punishment range of five to ninety-nine years or life. See id. § 12.32
(West Supp. 2010).

                                                  3
Notice of Enhancement

                In his first issue on appeal, Ozuna argues that the indictment failed to give

constitutionally adequate notice of the State’s intent to use the prior conviction of assault by a

confined person for enhancement purposes. We review this question of law de novo. See Smith v.

State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010) (“The sufficiency of a charging instrument presents

a question of law.”).

                The indictment’s second paragraph states:


        [P]rior to the commission of the offense in paragraph one, Daniel Ozuna, on the 29th
        day of January 1997, in the District Court of Adams County, Nebraska, in Cause
        Number 96546 styled THE STATE OF NEBRASKA vs. DANIEL OZUNA, was
        legally and finally convicted of Ct I-Assault by a Confined Person Ct II-Robbery, a
        felony[.]


The Nebraska penitentiary packet introduced to prove these convictions indicates that count two,

robbery, was dismissed. Therefore, in order for the State to properly enhance Ozuna’s conviction,

it was required to prove the conviction for count one, assault by a confined person. Ozuna asserts

that the indictment failed to adequately notify him of the State’s intent to use the assault conviction

for enhancement because the words “a felony” in the indictment modify the robbery count but not

the count for assault by a confined person. He claims that it is “illogical” to contend that merely

including a conviction in an indictment, without identifying it as a felony, notifies a defendant of the

State’s intent to use that conviction for enhancement purposes. We disagree.

                If a defendant does not object to a defect in the indictment before trial, he “waives

and forfeits” the right to object on appeal or at any post-conviction proceeding. See Tex. Code Crim.



                                                   4
Proc. Ann. art. 1.14(b) (West 2005); Sanchez v. State, 120 S.W.3d 359, 364 (Tex. Crim. App. 2003).

The record does not reflect that Ozuna objected to the indictment at any time prior to this appeal.

                However, even had Ozuna properly objected, the alleged error does not vitiate the

notice received by Ozuna. A defendant is entitled to an enhancement allegation that will enable him

to locate the record of the prior conviction alleged and prepare to meet the question of whether he

is the same person who was convicted in the earlier case. Villescas v. State, 189 S.W.3d 290, 293

(Tex. Crim. App. 2006). The enhancement paragraph in this case alleged the nature of the offense

and the date, county, court, style, and cause number of the conviction for assault by a confined

person. Given the specificity of the information provided in the indictment, we conclude that it

provided Ozuna with sufficient information to notify him of the State’s intent to use the conviction

for enhancement and to allow him to locate the record and prepare a defense against it. See Pelache

v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010) (“The issue is whether appellant received

sufficient notice . . . so that he had the opportunity to prepare a defense . . . .”). We overrule Ozuna’s

first point on appeal.


Legal Sufficiency

                Ozuna next argues that the Nebraska penitentiary packet introduced to prove the prior

conviction for assault by a confined person did not contain legally sufficient evidence to support the

trial court’s finding of “true” as to that conviction. In reviewing the sufficiency of the evidence, we

view the evidence in the light most favorable to the verdict and determine whether any rational trier

of fact could make the finding beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 908

(Tex. Crim. App. 2010); Young v. State, 283 S.W.3d 854, 863 (Tex. Crim. App. 2009).

                                                    5
                To prove a prior conviction, a penitentiary packet must contain sufficient information

to establish both the existence of a prior conviction and the defendant’s identity as the person

convicted. See Flowers v. State, 220 S.W.3d 919, 922 (Tex. Crim. App. 2007). The Nebraska

penitentiary packet did not contain a copy of the judgment finding Ozuna guilty, but it did contain

a commitment order in cause number 96546 stating Ozuna’s name, the offense, date of sentence,

length of sentence, sentencing court, and county of conviction. It also contained a sentencing order

in cause number 96546, dated January 29, 1997, and signed by a trial judge, sentencing Ozuna to

serve one year in the Nebraska Department of Corrections.

                Ozuna argues that the penitentiary packet never identified assault by a confined

person as a felony conviction, an element the State was required to prove. Felony convictions

rendered by the courts of other states may be used to enhance punishment. See, e.g., Langston v.

State, 776 S.W.2d 586, 588-89 (Tex. Crim. App. 1989). If, as here, the trial court does not take

judicial notice of the laws of the other state, it is presumed that the law of that state is the same as

Texas. Id. at 588. While Texas law does not provide for the crime of “assault by a confined person,”

the Texas Penal Code defines a felony as “an offense so designated by law or punishable by death

or confinement in a penitentiary.” Tex. Penal Code Ann. § 1.07(a)(23) (West Supp. 2010). Ozuna’s

punishment for assault by a confined person consisted of a one-year sentence in the Nebraska

Corrections Department. The commitment order called for commitment to the Nebraska Penal and

Correctional Complex, a penitentiary. Because Ozuna was sentenced to time in a penitentiary, his

conviction for assault by a confined person was a felony under Texas law. See Brooks v. State,

642 S.W.2d 791, 798 (Tex. Crim. App. 1982) (concluding that Nebraska conviction involving



                                                   6
sentence of two years in Nebraska Penal and Correctional Complex was felony offense because it

met Texas definition for “felony”). Because the Nebraska penitentiary packet contained sufficient

proof to establish the existence of a prior conviction for assault by a confined person, an offense

classified as a felony under Texas law, and Ozuna’s identity as the person convicted, we conclude

that a rational trier of fact could have found beyond a reasonable doubt that the enhancement

paragraph contained in the indictment was “true” as to Ozuna’s conviction for assault by a confined

person.3 Ozuna’s second point on appeal is overruled.


Involuntary Statement

                In his final point on appeal, Ozuna claims that the trial court erred in admitting the

video recording containing his confession. He asserts that the interview contained an involuntary

confession in violation of the Fifth and Fourteenth Amendments of the United States Constitution

and the Texas Code of Criminal Procedure. See U.S. Const. amend. V; id. amend. XIV; Tex. Code

Crim. Proc. Ann. art. 38.21 (West 2005). Ordinarily, we review the trial court’s ruling regarding

the voluntariness of a statement under an abuse-of-discretion standard, viewing the evidence in the

light most favorable to the trial court’s ruling, Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.

App. 1996), and deferring to the trial court as the exclusive factfinder and judge of the credibility

of the witnesses, Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, when, as

here, there is a videotape of the confession and an uncontroverted version of the events surrounding


        3
            Ozuna also admitted to the previous conviction when, during the guilt-innocence phase of
trial, he testified that he had previously served time in jail for the felony offense “aggravated assault
of an officer” in Nebraska. At the punishment hearing, the trial court took judicial notice of all
evidence presented during guilt-innocence.

                                                   7
it, we review de novo the trial court’s ruling on the application of law to facts. See Oles v. State,

993 S.W.2d 103, 105 (Tex. Crim. App. 1999) (reviewing motion to suppress de novo when there is

question of law with no disputed facts); Herrera v. State, 194 S.W.3d 656, 658

(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (reviewing voluntariness of videotaped

confession de novo). The determination of whether a confession is voluntary is based on an

examination of the totality of the circumstances surrounding its acquisition. See Arizona v.

Fulminante, 499 U.S. 279, 285-86 (1991); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000).

                 Ozuna contends that Detective Ford, who conducted the first two interviews, and

Detective Rodriguez, who conducted the third interview, made implied promises that if Ozuna

confessed to touching M.R., he would be able to see his children and the additional prosecutions

against him would be dismissed. We will first outline what occurred during the interviews before

analyzing them for infringement of Ozuna’s rights under the Constitution and the code of criminal

procedure.


The Interviews

                 The first interview began with Ozuna signing a written waiver of his Miranda rights.4

Ford and Ozuna then discussed the results of Ozuna’s recent polygraph tests. Ford explained to

Ozuna that he showed “deception indicated” on the polygraph as to M.R.’s allegations, but passed

the polygraph regarding M.R.’s sister, J.R. Ford explained, “[T]he first [test, J.R.,] you passed. I

am willing to give you that one because you did. . . . I said from the get go that I don’t know what


       4
        See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that prior to custodial interrogation,
defendant must be warned of his rights under Fifth Amendment).

                                                   8
the polygraph’s going to show, but I’ll take it whatever it is.” Ford went on to discuss how honesty

might help Ozuna gain access to his children, saying,


       What I want to do is . . . I want to see you get, and be able to deal with, your children.
       Be able to talk to them. In order to do that, Daniel, . . . I’ve gotta be able to take
       honesty to the court, and say “look, he is being honest, he wants to rebuild. He wants
       to change. This isn’t who he is, he is not this kind of person, and he doesn’t want his
       daughter to go through this crap anymore. He [doesn’t] want her to suffer.” But I
       can’t start off with, “ok yeah, this one I passed, and this one I failed.” That’s the
       problem.


Later in the interview, during an explanation of the difference between sexual assault and indecency

with a child, Ford explained, “This is an indecency with a child case, and there was touching that

went on that was inappropriate, and that’s the kind of case we can work with in reuniting families

and getting them back together.” Throughout the interview, Ozuna denied touching M.R. or her

siblings and repeatedly insisted that he did not fail the polygraph. At the end of the interview, Ford

explained that even though the district attorney would “give” him J.R., they were still “going to have

issues” with M.R. because he failed the polygraph as to her.

               Three minutes of the second interview were played during the hearing.5 During those

three minutes, Ozuna and Ford discussed what might happen if another polygraph about M.R. came

back with “deception indicated.” Ford asked Ozuna, “What am I supposed to do if it comes back

and shows ‘deception indicated’? Then I have to go to my boss, then I have to go to my sergeant,

who has to go to his boss, who has to go to the D.A.’s office and say, ‘Look, he’s a liar. Maybe we




       5
         These three minutes were taken from the middle of the interview and did not include the
reading or waiver of Miranda rights.

                                                   9
need to go back and look at every kid that has been involved in his life.’ . . . I just don’t know what

I’m supposed to do if it comes back ‘deception indicated.’” Ford went on to say, “I think I can get

rid of the [T.O.] case . . . as a matter of fact I know I can.”6 Ford then stated that the “[M.R.] thing

is going to be the hold up” and again asked, “What am I supposed to do if it comes back ‘deception

indicated’?” Ford explained that he would have to tell his sergeant that after giving Ozuna several

chances, Ozuna still showed deception on his polygraph tests. Ford then compared this “deception

indicated” scenario with one in which Ozuna was “willing to admit it,” in which case Ford could

report to his boss that Ozuna “can move on, get counseling, get help, because his kids are the most

important thing.”

                During the third interview, in which Ozuna again signed a waiver of his Miranda

rights, Rodriguez, who conducted the interview, stated, “I don’t believe this happened more than one

time. I think it’s like [M.R.] says, all he did was he touched, you touched her, but that needs to come

out.” Rodriguez then went on to say:


        You mentioned counseling. I am mentioning counseling. And I think that’s what
        you’re gonna need, you know for this to get resolved, so you can come back home
        to your family. But you may not be able to get around [M.R.] and [J.R.] for a little
        while. But I think that once you are able to show that you’re safe around them—and
        that’s gonna be proved by counseling—that’s when you’re gonna be able to be with
        your family.




       6
         Ford explained that this was because the allegations as to T.O. allegedly occurred on a
trampoline, but Ozuna was incarcerated during the time period that the children had access to a
trampoline.

                                                  10
Ozuna then stated that he was afraid of remaining in jail, but admitted, “I touched [M.R.] I did. . . .

It was something I regret in my life.”


Constitutional Due Process

                A statement is involuntary for purposes of federal due process only if there was

official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have

been the product of an essentially free and unconstrained choice by its maker. Alvarado v. State,

912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (citing Colorado v. Connelly, 479 U.S. 157, 164

(1986)). Absent coercive police conduct causally related to the confession, there is no basis for a

due-process claim. Id.

                Ozuna argues that Ford’s comments during the first and second interviews created

an implied promise that if he confessed to touching M.R., the cases involving J.R. and T.O. would

be dismissed, and that they would not be dismissed if he did not confess. He also claims that Ford

and Rodriguez made an implied promise that he would “get his children back” if he confessed. We

disagree with this characterization of the interviews.

                The first interview contained no statement that, when viewed in context, could

reasonably be construed as police coercion. Ford’s first statement, that he would “give” Ozuna J.R.,

was not a promise to prevent prosecution. Instead, it was Ford communicating his belief that Ozuna

may be telling the truth as to J.R.’s allegations. His statement that the district attorney would “give”

Ozuna J.R. was made in an attempt to explain that, even if the prosecution for J.R.’s allegations

ceased, Ozuna would still have to defend against M.R.’s allegations before he could see his children

again. To the extent that this statement may be construed as a promise, the existence of a promise

                                                  11
is only one factor in the determination of voluntariness, and does not render a confession involuntary

per se. Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir. 1988). When viewed in the context of

the totality of the circumstances, this statement, which was made nearly two months before Ozuna’s

confession, did not render the confession involuntary. See id. Ford’s other comments during the

first interview communicated the benefits of honesty and informed Ozuna that there was a greater

possibility that Ozuna could be reunited with his children if he told the truth. Statements regarding

the benefits of honesty do not render a confession involuntary. See United States v. Craft, 495 F.3d

259, 263-64 (6th Cir. 2007) (concluding that statement about possible leniency upon cooperation

does not render confession unconstitutional); Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App.

1983) (“A confession is not rendered inadmissible because it is made after an accused has been told

by the officer taking the confession that it would be best to tell the truth.”).

                Ford’s statements in the second interview also showed no coercive conduct. Again,

Ford explained the consequences of dishonesty versus honesty and the fact that honesty was in

Ozuna’s best interest. His statement that he could “get rid” of the T.O. case, when considered in

context, did not imply a promise to do so in exchange for a confession. Rather, it was an attempt

to make Ozuna understand that even if the T.O. and J.R. prosecutions were dropped, he would still

face allegations by M.R. The circumstances surrounding this statement, including its context within

the interview and the lack of temporal proximity to the confession, make it unlikely to have impacted

the free and voluntary nature of Ozuna’s confession.

                Finally, Rodriguez’s statements in the third interview did not impliedly promise

Ozuna that he would “get his children back” if he confessed. Rather, Rodriguez’s statements were



                                                  12
statements of fact, expressing the reality that Ozuna would need counseling if he ever wished to

convince authorities to allow him access to his children. See Muniz v. State, 851 S.W.2d 238, 254

(Tex. Crim. App. 1993) (declaring that statement of fact was not promise in exchange for

confession). Reviewing Ford’s and Rodriguez’s statements in context, we see no conduct that would

have made Ozuna’s confession involuntary under federal due process.


Texas Code of Criminal Procedure

                Under Texas law, a statement may be used in evidence against an accused if it

appears that the statement was “freely and voluntarily made without compulsion or persuasion.”

Tex. Code Crim. Proc. Ann. art. 38.21. For a promise to render a confession invalid, it must be

positive, made or sanctioned by someone in authority, and of such an influential nature that it would

cause a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App.

2004). General offers to help a defendant are not likely to induce an accused to make an untruthful

statement, and therefore will not invalidate a confession. Garcia v. State, 919 S.W.2d 370, 388 (Tex.

Crim. App. 1996) (citing Dykes v. State, 657 S.W.2d 796 (Tex. Crim. App. 1983)) (holding that

detective’s statement that he would try to “help [defendant] out” or would “talk to the D.A.” were

not specific promises). Similarly, general statements made to a suspect that a confession may

sometimes result in leniency do not render a confession involuntary. See Muniz, 851 S.W.2d at 254.

               The majority of Ford’s and Rodriguez’s statements were no more than general

statements explaining how the truth could benefit Ozuna’s chances of resolving the prosecutions.

To the extent that any statements may be construed as promises, they were not conditioned on a

confession and were therefore unlikely to induce Ozuna to speak untruthfully. See Espinosa v. State,

                                                 13
899 S.W.2d 359, 364 (Tex. App.—Houston [14th Dist.] 1995, pet. denied) (“Even specific,

unequivocal promises can lack the persuasive impact needed to show that they will probably induce

an accused to make an untruthful statement.”). None of Ford’s or Rodriguez’s statements contained

a promise or threat of such an influential nature that it would have caused Ozuna to speak

untruthfully. We find this particularly true given the fact that the interviews occurred over a span

of nearly two months. See Wilson v. State, 277 S.W.3d 446, 448 (Tex. App.—San Antonio 2008,

no pet.) (considering temporal proximity of illegal conduct and confession when determining

whether confession should be suppressed); Perkins v. State, 779 S.W.2d 918, 923

(Tex. App.—Dallas 1989, no pet.) (same).

                 Under the totality of the circumstances, we conclude that the confession was

voluntary in nature. We overrule Ozuna’s third point on appeal.


                                           CONCLUSION

                 Having overruled all of Ozuna’s points on appeal, we affirm the trial court’s judgment

of conviction.



                                                __________________________________________

                                                Diane M. Henson, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: May 27, 2011

Do Not Publish

                                                  14
