Juan Olivarez v. State ( 2013 )

NUMBER 13-13-00010-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN OLIVAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides and Longoria
Memorandum Opinion by Justice Benavides
By two issues, appellant Juan Olivarez appeals his convictions for six counts of
aggravated sexual of a child younger than six years old, see TEX. PENAL CODE ANN. §
22.021 (West 2011), and two counts of indecency with a child. See id. § 21.11 (West
2011). We affirm.
I. BACKGROUND
A Nueces County grand jury indicted Olivarez on six counts of aggravated sexual
assault of a child,1 see id. § 22.021, and two counts of indecency with a child. See id. §
21.11. Olivarez was tried by a Nueces County jury, and the following evidence was
presented at trial.
Olivarez dated the complainant’s mother (C.G.) in late 2010. Olivarez, C.G., and
the complainant (M.G.), then age five, eventually moved in together at an apartment
complex. Three months later, however, C.G. and M.G. moved out to live with C.G.’s
parents, but C.G. continued to date Olivarez. One day in May 2011, C.G. bathed M.G.
and noticed that M.G.’s vaginal area was “really red” and “irritated.” According to C.G.,
M.G. told her that Olivarez had touched her vagina and anus after school in the
apartment where the three of them used to live. C.G. testified that she notified M.G.’s
pediatrician, who directed C.G. to take M.G. to Driscoll Children’s Hospital for an
appropriate examination. Once at Driscoll Hospital, hospital workers told C.G. that they
were going to notify child protective services and the Corpus Christi Police Department.
M.G. also testified. Through the use of demonstrative dolls, M.G. testified that
Olivarez touched her vagina and anus with his hand and his penis “more than one time.”
M.G. also stated that Olivarez showed her a video of “a boy and a girl” doing stuff
“together” and “wearing no clothes.” M.G. recalled one instance in which Olivarez put
his penis into M.G.’s vagina and afterward went to the restroom to retrieve a Kleenex and
“spread yellow pee on it” from his penis. M.G. testified that the “yellow pee” would also
1
The State termed the offense “super aggravated sexual assault of a child” and referenced section
22.021 of the penal code. The State is referring to aggravated sexual assault of a child under the age of
six, which, if proved, carries a minimum punishment of twenty-five years’ imprisonment. See TEX. PENAL
CODE ANN. § 22.021(2)(f)(1) (West 2011). For purposes of clarity, we will refer to the charge simply as
“aggravated sexual assault of a child.”
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come out after Olivarez put his penis in her anus. M.G. stated that she did not tell her
mother about the incidents after they happened because M.G. thought that C.G. would
“feel sad and scared,” which in turn would make M.G. sad.
Olivarez testified in his own defense and denied all of the allegations. According
to Olivarez, M.G. would hit him “in the groin” in front of C.G. Additionally, Olivarez
testified that M.G. grabbed his hand and put it on her “crotch,” but he “pushed [M.G.]
away,” but then M.G. would lean on top of him as if it was “some kind of game.”
The jury found Olivarez guilty on all counts. The trial court assessed punishment
at seventy-five years’ imprisonment in the Texas Department of Criminal
Justice—Institutional Division for Counts One, Two, Three, Four, Five and Six each, and
at twenty years’ imprisonment for Counts Seven and Eight each. The trial court further
ordered the sentences in Counts One, Two, Three, and Seven to run concurrently, but
consecutive to the sentences in Counts Four, Five, Six, and Eight, which were ordered to
run concurrently. This appeal ensued.
II. MOTION TO SUPPRESS
By his first issue, Olivarez asserts that the trial court committed reversible error by
denying his motion to suppress a recorded audio interview with a Texas Department of
Family and Protective Services (TDFPS) investigator.
A. Standard of Review
A trial court’s ruling on a motion to suppress evidence is reviewed on appeal
under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007). We must give “almost total deference to a trial court's determination
of the historical facts that the record supports especially when the trial court's fact
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findings are based on an evaluation of credibility and demeanor.” Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). Additionally, we should afford the
same amount of deference to a trial court's rulings on “application of law to fact
questions,” also known as “mixed questions of law and fact,” if the resolution of those
ultimate questions turns on an evaluation of credibility and demeanor. Id. We review
de novo mixed questions of law and fact that do not depend on credibility and demeanor.
Amador, 221 S.W.3d at 673.
B. Discussion
Olivarez sought to suppress his audio interview conducted by TDFPS investigator
Bernadette Molina at the Nueces County jail. 2 Olivarez argues that Molina was
“working implicitly on behalf of the police when she interviewed [Olivarez] at the jail.” As
a result, Olivarez contends that the statements made during the interview were the result
of a custodial interrogation by an agent of the police (Molina). Olivarez further argues
that because it was a custodial interrogation, Molina violated his Fourth Amendment
rights for failing to administer his Miranda warnings. We disagree.
As a general rule, the State may not use any statements stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. Wilkerson v. State, 173
S.W.3d 521, 526 (Tex. Crim. App. 2005) (citing Miranda v. Arizona, 384 U.S. 436, 444
(1966)). These procedural safeguards do not apply, however, to all types of custodial
questioning. Wilkerson, 173 S.W.3d at 526. Instead, it applies only to questioning by
2
Olivarez filed a pre-trial motion to suppress on this issue, but the trial court did not address it until
the time of trial, in a hearing outside the presence of the jury, when the State sought to admit the recorded
interview into evidence. The audio disk that was admitted into evidence at trial was not included in the
record on appeal. Thus, it was unavailable for our review.
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law enforcement officers or their agents. See id. “State agents” are those who are
working for or on behalf of police. See id. General employees of the State are not, by
themselves, “agents of the State” for purposes of defining custodial interrogation under
Miranda. Id.; see Paez v. State, 681 S.W.2d 34, 37 (Tex. Crim. App. 1984) (en banc).
Consequently, not all government workers must be familiar with and ready to administer
Miranda warnings or comply with the statutory procedural requirements of article 38.22.
Wilkerson, 173 S.W.3d at 526; see TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005).
A criminal defendant who alleges that an individual acted as an agent of the police
has the burden to prove it. Wilkerson, 173 S.W.3d at 529. If the defendant meets this
burden and shows that this individual is working for or on behalf of the police by
interrogating a person in custody, then that agent is bound by all constitutional and
statutory confession rules, including Miranda and article 38.22. See id.; Cantu v. State,
817 S.W.2d 74, 75–77 (Tex. Crim. App. 1991). While numerous factors are to be
considered, the bottom-line inquiry for our court is whether the custodial interview was
conducted (explicitly or implicitly) on behalf of the police for the primary purpose of
gathering evidence or statements to be used in a later criminal proceeding against the
interviewee. Wilkerson, 173 S.W.3d at 531. Put more colloquially: was the
interviewer “in cahoots” with the police? Id.
At trial, Molina testified that she interviewed Olivarez at the jail as part of her
duties with TDFPS. According to Molina, part of her duties upon receiving an alleged
child sexual abuse report is to contact the child’s family, schedule an interview with the
child, as well as set up an interview with the accused. As part of her investigation in this
case, Molina met with C.G., M.G., and Olivarez’s daughter-in-law, Clarissa. During her
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meeting with Clarissa, Clarissa informed Molina that Olivarez had been arrested and
was in custody at the Nueces County Jail. Later that day, Molina visited Olivarez at the
Nueces County Jail. Molina testified that at that point in her investigation, she had no
memory of discussing the case with Detective Daniel Rodriguez, who was investigating
the case on behalf of the Corpus Christi Police Department. According to Molina, the
specific purpose for visiting Olivarez at the jail was to “inform him that a report had come
into the office involving him and to review the allegations and to also get a response back
to those allegations.” Molina stated that she respects an alleged perpetrator’s request
to have an attorney present or a refusal to talk to her without an attorney present.
Outside the jury’s presence, Molina testified that her goal is not to get an
admission from the defendants in the cases she is investigating. Instead, her goal is to
let the accused know that a report had been filed against them. Additionally, Molina
testified that she gave Olivarez “many opportunities” to end the conversation, but “he
kept giving [Molina more] information.” During questioning by the State, Molina testified
that Detective Rodriguez (1) did not ask her to interview Olivarez; (2) did not indicate that
he would like her to interview Olivarez; and (3) did not give her an idea of what questions
to ask Olivarez. Molina also stated that during the interview, she did not give Olivarez
any indication that she was working on behalf of law enforcement. Finally, Detective
Rodriguez stated in earlier trial testimony that he did not direct Molina to do anything
during his investigation, and did not have any authority over Molina or any other TDFPS
investigator.
We conclude that Olivarez did not meet his burden to establish that Molina was
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working for or on behalf of the police by interrogating Olivarez in custody. 3 See id. at
529. Thus, Molina was not required to Mirandize Olivarez, and the trial court did not err
in denying the motion to suppress on this basis. See Wilkerson, 173 S.W.3d at 531.
Accordingly, his first issue is overruled.
III. ADMISSIBILITY OF EVIDENCE
By his second issue, Olivarez asserts that the trial court erred by allowing C.G. to
testify regarding Olivarez’s awareness of the allegations against him from a handwritten
apology letter that was admitted into evidence.
A. Preservation of Error
As a threshold matter, we must first determine whether Olivarez properly
preserved error for review. See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App.
2009) (“Preservation of error is a systemic requirement that a first-level appellate court
should ordinarily review on its own motion.”). Generally, error is preserved if the record
shows that (1) a specific complaint was made to the trial court by request, objection, or
motion; and (2) the trial court ruled on the complaint or refused to rule and the party
objected to the refusal. See TEX. R. APP. P. 33.1(a). To be timely, an objection must
be made as soon as the basis for the objection becomes apparent. Lagrone v. State,
942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (en banc).
Olivarez complains about the following exchange between the State and C.G.
regarding an apology letter written by Olivarez after the allegations against him surfaced:
THE STATE: So if he says he’s sorry [in the letter], do you
think he knows?
3
We also note that Olivarez’s trial counsel admitted during the suppression hearing that he did not
offer any testimony to show that Molina was acting on behalf of the police.
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C.G. Yes.
DEFENSE COUNSEL: Objection. Calls for speculation.
THE STATE: Well, I’m going to make the connection here in
just a moment if I may have a bit of leeway.
THE COURT: Okay.
Olivarez argues that C.G.’s testimony violated rules of evidence 701 and 704.
See TEX. R. EVID. 701 (opinion testimony by lay witness), 704 (opinion on ultimate issue).
However, we conclude that the objection was made after the complained-of question
was asked and answered, and was therefore not preserved error for appeal. Juhasz v.
State, 827 S.W.2d 397, 401 (Tex. App.—Corpus Christi 1992, writ denied) (citing Polk v.
State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987) (“to preserve error on appeal by way
of an objection alone, the objection must come before the tangible evidence which is
clearly objectionable is admitted, or the question manifestly calling for objectionable
testimony is answered in front of the factfinder”).
Even assuming without deciding that Olivarez properly preserved error for appeal,
we conclude that the trial court’s ruling that allowed the testimony was not an abuse of
discretion. See Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997)
(“Whether an opinion meets the fundamental requirements of Rule 701 is within the
sound discretion of the trial court and its decision regarding admissibility should be
overturned only if it abuses its discretion.”). C.G. testified that she and Olivarez saw
each other every day until the allegations against him surfaced and then she began to
ignore his phone calls. C.G. testified that Olivarez would “start to worry” if they did not
see each other every day. It was not until this point that C.G. received the letter from
Olivarez. Therefore, this testimony, when read along with the complained of question
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and answer, was an opinion based on C.G.’s perception of the situation, did not call for
an opinion on an ultimate issue, and supports the trial court’s decision to admit the
evidence and did not amount to an abuse of discretion. See id. Olivarez’s second
issue is overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
25th day of July, 2013.
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