                                   NO. 07-05-0422-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                SEPTEMBER 14, 2006
                          ______________________________

                                    RICKY GARCIA,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2005-408,257; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                               Memorandum Opinion
                          ______________________________

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

      Appellant, Ricky Garcia, was convicted of sexual assault. He contends that the

conviction should be reversed because he was denied his right to remain silent in violation

of the United States Constitution and article 38.23 of the Texas Code of Criminal

Procedure. We overrule the issue and affirm the judgment of the trial court.

                                      Background

      According to the record, appellant’s wife was awakened during the early morning of

December 20, 2004, to sounds of moaning coming from the bedroom of her fourteen-year-
old daughter. Upon entering the room, she found her husband in bed with the girl (who was

also appellant’s stepdaughter). Appellant’s underwear and shorts were down to his knees,

and he confessed to her “this wasn’t the first time” he had sexual relations with the

teenager.

       The police were called and, upon their arrival, one of the officers entered and asked,

“What’s going on?” In response, appellant stated that he had slept with his stepdaughter.

He then turned his back to the officer and put his hands in a position to be handcuffed

without being requested to do so. One of the officers escorted appellant outside and read

him the Miranda warnings. Appellant then indicated that he did not wish to speak to the

officers.

       Appellant was arrested and taken to jail. Thereafter, neither of the responding

officers questioned him about the incident. Approximately six hours later, the detective who

had been assigned the case, but who was unaware that appellant had invoked his right to

remain silent, went to appellant’s cell and asked if he cared to talk about the incident. In

response, appellant gave the detective a written statement in which he admitted having

sexual intercourse with his stepdaughter on December 20 and on several other occasions.

This statement was admitted into evidence at trial.

                                   Motion to Suppress

       As previously mentioned, appellant contends that his statement was inadmissible

given that it was secured in violation of his constitutional and statutory rights. No officer

should have solicited from him information about the crime once he invoked his right to

remain silent, according to appellant.




                                             2
        Assuming arguendo that the statement was inadmissible, we nevertheless find its

admission harmless.1 Other evidence presented to the jury consisted of appellant’s

confessions or admissions uttered to both his wife and the two police officers, appellant’s

gesture of voluntarily placing his hands behind his back after admitting that he had “slept”

with his stepdaughter, the testimony of the assault victim wherein she said that she and he

had engaged in sex then and at other times, the testimony of appellant’s wife regarding the

discovery of appellant in bed with the teenager with his pants down and genitals exposed,

and, most importantly, appellant’s sperm or DNA (identified as his through analysis) found

on the victim’s underwear and vaginal area. So, not only was the substance of his

confession to a large degree redundant of other testimony admitted into evidence but that

other evidence overwhelmingly established his guilt. This negates any reasonable doubt

as to whether the written confession contributed to appellant’s conviction and punishment.

Simply put, it did not.

        The judgment of the trial court is affirmed.



                                                          Brian Quinn
                                                          Chief Justice

Do not publish.




        1
        In assessing the harm from constitutional error, we must reverse the judgment unless we determine
beyond a reasonable doubt that the error did not contribute to the co nviction or punishm ent. Mayes v. State,
8 S.W.3d 354, 361 (T ex. A pp.– Am arillo 1999, no pe t.).

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