Opinion issued July 3, 2014.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00211-CR
                            ———————————
                EDWARD CONTRERAS TORRES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 400th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 12-DCR-059397


                          MEMORANDUM OPINION

      A jury convicted Edward Contreras Torres of continuous sexual abuse of a

child under 14 years of age 1 and assessed punishment at confinement for life. In


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      TEX. PENAL CODE ANN. § 21.02 (West Supp. 2013) (defining continuous sexual
      abuse of young child as two or more instances of sexual abuse committed against
      child under 14 years of age, occurring over period of 30 or more days).
his sole issue, Torres contends that the trial court erred in denying his motion to

suppress his statement because it was involuntarily given. We affirm.

                                   Background

      In the fall of 2011, Torres’s daughter, “Jane Smith,” then 16 years old, told

her school counselor that her father had been sexually abusing her for years.

According to the school counselor, Smith exhibited a calm demeanor, but,

emotionally, “she was upset and troubled and really needed to . . . talk about some

things.” After hearing Smith’s report of abuse, the counselor contacted CPS to

report Smith’s allegations, and CPS came to school to talk to Smith. CPS

interviewed Smith at school and then transported her to the Children’s Advocacy

Center for a forensic interview regarding the abuse.

      During the forensic interview, Smith reported that her father had sexually

abused her and that the abuse had occurred at her family’s home. Smith later

testified that Torres began inappropriately touching her when she was three years

old and that touching turned into sex when she was 10 or 11 years old. According

to Smith, the sexual abuse continued, often on a weekly basis, until she was 17

years old.

      Based on the information Smith provided during her interview, Fort Bend

County Sherriff Detective M. Cox contacted Smith’s mother and asked her

whether Torres, the father, would be willing to come to the police station to give a



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voluntary statement. According to Cox, Torres agreed and arrived at the station

“on his own.”

      Detective Cox testified about the interview. She stated that Torres never

asked to speak to an attorney or to stop the interview, that she did not coerce or

threaten him at any time, and that she did not promise him anything in exchange

for his statement. Torres did not confess to sexually abusing Smith. Cox asked

Torres to go to a second interview with Fort Bend County Sherriff Captain S.

Colunga. Torres agreed.

      Before the interview with Captain Colunga, Torres willingly took a

polygraph examination, during which he denied that he had sexually assaulted his

daughter. The police determined that Torres failed the polygraph. Torres again

agreed to be interviewed by Colunga. At the beginning of Colunga’s videotaped

interview with Torres, Colunga told Torres that he was free to leave at any time

and that he was not in custody. Colunga offered Torres food and water and gave

him an opportunity to use the restroom. And Colunga testified that he did not

directly or indirectly promise Torres anything in exchange for his statement. Torres

concedes that he was not in custody during his interview.

      During the interview, Captain Colunga had a lengthy discussion with Torres

about his failed polygraph examination. Colunga asked Torres whether he had ever

had sexual intercourse with his daughter or sexually assaulted his daughter. Torres



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denied ever having any sexual relationship with his daughter. In response, Colunga

explained to Torres that he would be willing to assist Torres in explaining what

had happened between him and his daughter but that he could only do so if given

true information from Torres: “In order for me to stand by you, okay, you have to

be 100 percent truthful with me . . . [and] if you want me to sit here and you want

me to stand with you and you want me to speak for you, you have to confide in me

first. You have to tell me what I already know.”

      After a lengthy exchange about the importance of Torres’s honest responses,

Colunga reminded him that “I will stand with you. I will stand next to you and I

will explain this. I will talk for you . . . but you have to be truthful with me.”

Colunga then reminded Torres that he could tell Colunga to stop talking at any

time. After suggesting to Torres that he had to “trust somebody in your life,”

Colunga told Torres that “I’m not gonna leave you alone, bro. If I think you’re

worth spending my time here with you, then you should feel the same way about

yourself.” Then Colunga said, “I promise you one thing, okay? And this is a

promise: if you and I talk right now, I’ll clear this mess up for you. I will. And I’ll

stand by you there and tell them. I will. But you have to talk to me, alright? I know

it’s hard but tomorrow will be a better day for you, I promise.” After this

exchange, Torres admitted to having sexual intercourse with his daughter “maybe

once.”



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      After Torres admitted to having sexual intercourse with his daughter “maybe

once,” Colunga implored Torres to tell the whole truth. Colunga reiterated his

earlier pleas for Torres to be truthful, saying, “I’m helping you clear this matter up.

I’m going to help you, okay? We cleared this matter up. I’m asking how many

times did you have sex with your daughter?” Colunga then said, “If I’m gonna

stand there and tell the [district attorney] you’re 100 percent truthful with me and

you can be trusted, then you’re gonna have to be 100 percent truthful with me,

okay?” Torres later admitted that he had sex with his daughter “maybe five times.”

      At a pretrial hearing, Torres moved to suppress his videotaped confession,

arguing that it was induced by Captain Colunga’s promises that “I’ll clear this

mess up for you” and “tomorrow will be a better day for you, I promise.” After

hearing the evidence, the trial court made the following findings of fact: Torres

was not in custody during his interview with Colunga; he appeared to be fully

coherent and not under the influence of any substance; he had education and life

experiences that rendered him capable of exercising his free will; and his

statements were freely and voluntarily made without compulsion. The court

concluded as a matter of law that there was no coercive police conduct and that

Torres’s statement was the product of a free and unconstrained choice. Having

found that Colunga made no positive promises to Torres, the trial court denied the

motion to suppress.



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      The jury found Torres guilty of continuous sexual abuse of a child under 14

years of age and assessed punishment at life confinement.

      Torres timely appealed the trial court’s denial of his motion to suppress his

confession.

                                Motion to Suppress

      In his sole issue, Torres contends that his confession to Captain Colunga was

involuntary because it “resulted from promises which were positive in nature,

made by . . . a person in authority, which were of such an influential nature that

caused the appellant to confess.” He contends, therefore, that the trial court erred in

admitting his confession and doing so had a “substantial and injurious effect upon

the jury.”

A.    Standard of review

      When a defendant challenges a trial court’s denial of a motion to suppress a

statement, we review the trial court’s ruling for an abuse of discretion. Turrubiate

v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We grant almost total

deference to a trial court’s determinations of historical facts. Id. We use the same

deferential standard for mixed questions of law and fact that require evaluation of

credibility and demeanor. Id. However, we review de novo all other mixed

questions of law and fact that do not fall within that category. Id. When we have a

videotape of the statement and an uncontroverted version of the facts, we review



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the trial court’s ruling on an application of law to facts de novo. Herrera v. State,

194 S.W.3d 656, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

      Article 38.21 of the Texas Code of Criminal Procedure provides that “[a]

statement of an accused may be used in evidence against him if it appears that the

same was freely and voluntarily made without compulsion or persuasion, under the

rules hereafter prescribed [in article 38.22].” TEX. CODE CRIM. PROC. ANN. art.

38.21 (West 2005). When the circumstances under which the statement was given

fail to meet this standard, the State may not use the statement during the

prosecution of its case. Ervin v. State, 333 S.W.3d 187, 204 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d); see Jones v. State, 119 S.W.3d 766, 772 (Tex. Crim.

App. 2003).

      Whether a statement is voluntary presents a mixed question of law and fact.

Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000); see Juarez v. State,

409 S.W.3d 156, 164 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). When

reviewing whether a statement is voluntary, we examine “the totality of the

circumstances surrounding its acquisition,” including the defendant’s experience,

background, and conduct. Penry v. Sate, 903 S.W.2d 715, 744 (Tex. Crim. App.

1995); Juarez, 409 S.W.3d at 165. A statement is involuntary if it was the

production of intimidation, coercion, or deception. Joseph v. State, 309 S.W.3d 20,

26 (Tex. Crim. App. 2010); Juarez, 409 S.W.3d at 165.



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B.    Voluntariness of statement

      Section six of article 38.22 of the Code of Criminal Procedure requires the

trial court to hold a hearing outside the jury’s presence to determine whether a

defendant voluntarily made his statement. TEX. CODE CRIM. PROC. ANN. art

38.22 § 6 (West Supp. 2013). After holding an article 38.22 hearing, the trial court

found that Torres had voluntarily given his statement. And, as required by that

section, the trial court instructed the jury that it should not consider the statement

for any purpose unless it also believed beyond a reasonable doubt that Torres

voluntarily made that statement. Id.

      It is undisputed that Torres was not in custody when he gave his statement to

Officer Colunga. However, Torres contends that his statement was induced by

Colunga’s positive promise to him.

      When determining whether a confession was improperly induced by a

promise, we consider whether (1) the confession was induced by the promise of

some benefit to the defendant; (2) the promise was positive; (3) the promise was

sanctioned by a person in authority; and (4) the promise is of “such character as

would likely influence the defendant to speak untruthfully.” Hill v. State, 902

S.W.2d 57, 59 (Tex. App.—Houston [1st Dist.] 1995, writ ref’d); see Martinez v.

State, 127 S.W.3d 792, 795 (Tex. Crim. App. 2004) (“Under state law the

determination is whether the officially sanctioned positive promise ‘would be



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likely to influence the defendant to speak untruthfully’ and not whether, the

defendant in fact spoke untruthfully.” (citation omitted)). A positive promise need

not be unequivocal, but it must “carry the suggestion of a quid pro quo.” Hill, 902

S.W.2d at 59; Chambers v. State, 866 S.W.2d 9, 20–21 (Tex. Crim. App. 1993)

(characterizing positive promise as one that “denote[s] the ‘if—then’ relationship”

whereby police “induce appellant to confess by implicitly or explicitly suggesting a

‘deal, bargain, agreement, exchange, or contingency’” (citation omitted)).

      Unspecific offers to help the accused are unlikely to induce a suspect to

make untruthful statements and will not invalidate a confession. Dykes v. State,

657 S.W.2d 796, 797 (Tex. Crim. App. 1983); Coleman v. State, No. 14-12-00553-

CR, 2013 WL 5758084 (Tex. App.—Houston [14th Dist.] Oct. 24, 2013, no pet.).

Similarly, general statements that indicate a confession could result in leniency do

not render a confession involuntary. Muniz v. State, 851 S.W.2d 238, 253–54 (Tex.

Crim. App. 1993); see, e.g., Herrera, 194 S.W.3d at 660 (holding no promise when

police said “[w]e can talk to the D.A., get you an offer, if you can help us”);

Espinosa v. State, 899 S.W.2d 359, 364 (Tex. App.—Houston [14th Dist.]

1995,writ ref’d) (holding promise of “‘less time’ may have contributed to

appellant’s decision to make a statement, but we cannot say that the inducement

probably caused him to falsely confess”). Furthermore, predictions about possible

future events do not constitute a positive promise. Mason v. State, 116 S.W.3d 248,



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261 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see Martinez v. State, 127

S.W.3d 792, 793 (Tex. Crim. App. 2004) (holding police statement from which

defendant “‘could have gathered’ that his father and brother would not be charged

if appellant ‘accepted responsibility’” was not promise); see also Jacobs v. State,

787 S.W.2d 397, 400 (Tex. Crim. App. 1990) (holding promise to allow suspect to

see his girlfriend if he confessed did not render confession involuntary).

      Torres relies upon Chambers v. State to support his contention that “Colunga

induced [him] to confess by explicitly suggesting that if the appellant would talk

with him right now, then Colunga would ‘clear up this mess,’ and that ‘tomorrow

will be a better day for you, I promise that.’” See Chambers, 866 S.W.2d at 20–21.

In Chambers, the Court of Criminal Appeals considered whether the defendant’s

confession was involuntary because it was alleged to have been “induced by the

promise that if he confessed ‘everything would be all right.’” Chambers, 866

S.W.2d at 20. The Court held that a “cliché” like “everything is going to be all

right” cannot be construed as a promise, and therefore the defendant’s statement

was voluntary. Id.

      At the beginning of Captain Colunga’s interview with Torres, Colunga told

Torres that the polygraph examination showed that he had not answered truthfully

when he denied that he had ever sexually assaulted his daughter. Colunga asked

Torres again whether he had sexually assaulted his daughter and assured Torres



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that “I am willing to spend the extra time with you here to clear this matter; there’s

always a reason why.” Captain Colunga also told Torres that “I’m willing to do

this for you . . . I will stand with you. I will stand next to you and I will explain

this. I will talk for you . . . but you have to be truthful with me.” After making

several appeals for Torres to tell the truth, Colunga said, “I promise you one thing,

okay? And this is a promise: if you and I talk right now, I’ll clear this mess up for

you. I will. And I’ll stand by you there and tell them. I will. But you have to talk to

me, alright? I know it’s hard but tomorrow will be a better day for you, I promise.”

Torres later confessed to having sexually abused Smith about five times.

      Captain Colunga’s promises that “tomorrow will be a better day for you,”

and “I’ll clear this mess up for you,” did not implicitly or explicitly suggest “a

‘deal, bargain, agreement, exchange, or contingency.’” Chambers, 866 S.W.2d at

20–21. Colunga’s general statements do not constitute the “if-then” relationship

required to establish a positive promise that would likely influence a defendant to

speak untruthfully. Id. at 22; see Martinez, 127 S.W.3d at 795.

      Colunga’s statements also did not promise leniency, guarantee future events

as a result of his confession, or promise a specific outcome. See Muniz, 851

S.W.2d at 253–54 (holding general statements that could result in leniency does

not render confession involuntary); see Mason, 116 S.W.3d at 261 (holding

predictions about future not positive promise); see Jacobs, 787 S.W.2d at 400



                                          11
(holding promise to see girlfriend did not induce involuntary confession).

Accordingly, Colunga’s statements were not unequivocal conditional promises that

would have been likely to influence Torres to speak untruthfully.

      We conclude, therefore, that the trial court did not err in determining that

Torres’s statement was voluntary or abuse its discretion in denying Torres’s

motion to suppress his statement.

      We overrule Torres’s sole issue.

                                    Conclusion

      We affirm.




                                                Harvey Brown
                                                Justice

Panel consists of Justices Keyes, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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