AFFIRMED

JUNE 14, 1990

NO. 10-89-243-CR

Trial Court

# 13,778

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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WOODROW GILBERT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 82nd Judicial District Court

Robertson County, Texas

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

 

On January 22, 1988, Appellant executed a written statement confessing to the murder of his wife. See TEX. PENAL CODE ANN. § 19.02 (Vernon 1989). On October 10, 1989, the court held a hearing on Appellant's motion to suppress the confession. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); TEX. CODE CRIM. PROC. ANN. art. 38.22(6) (Vernon 1989). Appellant claimed that his confession was inadmissible because he was incompetent at the time it was executed, and thus did not execute it voluntarily. The court overruled the motion. Subsequently, Appellant pleaded "no contest" to the charge, and was sentenced to sixty years in prison. The only point is that the court erred when it denied the motion to suppress. The judgment will be affirmed.

At a hearing on a motion to suppress a confession, the court is the judge of the credibility of the witnesses and the weight to be given their testimony. Burdine v. State, 719 S.W.2d 309, 318 (Tex. Crim. App. 1986). The court's findings will not be disturbed on appeal unless there was an abuse of discretion. Barton v. State, 605 S.W.2d 605, 607 (Tex. Crim. App. [Panel Op.] 1980). Furthermore, the state has the burden of proving by a preponderance of the evidence that the defendant voluntarily and knowingly waived his privilege against self-incrimination. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986).

Deputy Gordon testified at the hearing that on January 10, 1988, he transported Appellant from Travis County to Robertson County pursuant to an arrest warrant. He read Appellant his Miranda warnings when they got into the car, and he and Appellant talked the entire trip. He claimed that Appellant was coherent and understood "very well what I was talking about." During the next twelve days, Gordon saw Appellant on several occasions, and on each occasion he read him the Miranda warnings.

On January 22, Appellant asked to see Gordon, and Gordon again read him the Miranda warnings. Appellant, who was coherent, responded to questions and was able to carry on a conversation, confessed to killing his wife. Gordon told Appellant that he needed to "get it on paper," took the statement, read it back to Appellant, and had him sign it. He claimed that he did not have Appellant write the statement because he did not "feel like we could read them, and [he] didn't feel like they'd be presentable in Court because of the English."

At the hearing, Appellant offered into evidence his medical records which reflected his diagnosis as "paranoid schizophrenic and manic depression." He claimed that he heard "voices," was not able to distinguish between reality and the voices, and never understood the Miranda warnings. Appellant testified that Gordon told him to "sign [the confession]." However, when cross-examined, Appellant said he was able to understand that an attorney had been appointed to represent him and that he was charged with murder, even though he still claimed to hear voices.

Based on the record as a whole, the court did not abuse its discretion when it denied the motion to suppress. See Barton, 605 S.W.2d at 607. Point one is overruled and the judgment is affirmed.

 

                     

BOB L. THOMAS

DO NOT PUBLISHChief Justice

go to the bathroom out of?

A.  Yes.

Q.  And then you pushed it together, and said what?

A.  The puffiness.

Q.  The puffiness on either side of that hole, what do you call that?

A.  Cheeks.

Q.  These are the cheeks?

A.  Yes.

Q.   And where is the booty then?

A.  The whole thing.

Q.  The whole entire thing?

A.  Yes.

          Popp relies on a case from Texarkana to support his argument that there is no evidence of penetration without the aide of conjecture or speculation because A.W. describes the “booty” as “the whole thing,” not just the anus.  See Sessums v. State, No. 06-02-00149-CR, 2003 Tex. App. LEXIS 5477 (Tex. App.—Texarkana 2003)(not designated for publication), rev’d and remanded, 2003 WL 22855433 (Tex. Crim. App. Nov. 26, 2003)(not designated for publication).  However, the operative word in this case is “in.” 

          The child in Sessums simply said he had a “sore bobo.”  Dorothy testified that A.W. said Popp stuck his finger “in my booty.”  (Emphasis added).  She also stated that A.W. told her Popp put his finger “in both parts.”  One of the many definitions of the word in is “a — used as a function word to indicate inclusion, location, or position within limits[;]  b:  INTO.”  Webster’s Collegiate Dictionary, 10th Ed., 585 (1993).  The jury could have determined that Popp stuck his finger into A.W.’s anus. 

          Thus, looking at all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential element, penetration, beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)(emphasis in original); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005).  The evidence is legally sufficient to support the jury’s verdict.

          In arguing that the evidence is factually insufficient, Popp claims that the proof of guilt is so weak as to undermine the confidence in the jury’s determination because, Popp argues, when describing the licking of her anus as being up inside the hole, A.W. was quick to clarify she did not mean inside the hole, but the area outside the hole.  Thus, Popp argues, A.W. was capable of saying what she meant.  Again, Popp focuses on A.W.’s previous definition of “booty.”  However, the operative word, again, is “in.”  Thus, the verdict was not too weak to support a finding of penetration beyond a reasonable doubt.

          Considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  The evidence is factually sufficient to support the verdict.

          Popp’s sole issue is overruled.  The trial court’s judgment is affirmed.

 

                                                                   TOM GRAY

                                                                   Chief Justice

 

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Affirmed

Opinion delivered and filed July 6, 2005

Do not publish

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