Affirmed and Memorandum Opinion filed June 13, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00719-CR

                         STEVEN CORTEZ, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 239th District Court
                           Brazoria County, Texas
                       Trial Court Cause No. 78724-CR

                         MEMORANDUM OPINION

      A jury convicted appellant Steven Cortez of aggravated sexual assault of a
child and indecency with a child, criminal episode. The jury sentenced appellant to
thirty years in prison for the offense of aggravated sexual assault and ten years in
prison for the offense of indecency with a child. The jury assessed a fine of $5,000
for each offense. The trial court ordered the sentences to be served consecutively.
Appellant brings this appeal claiming: (1) the evidence is legally insufficient; and
(2) his statements to police were involuntary. For the reasons stated below, we
affirm.

                          SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant claims the evidence is legally insufficient to sustain
his convictions. When reviewing the legal sufficiency of the evidence, we examine
all of the evidence in the light most favorable to the verdict and determine whether
a rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). Because the jury is the sole judge of the credibility of witnesses and of the
weight given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). The testimony from a single eyewitness may be sufficient to
support a conviction. Bowden v. State, 628 S.W.2d 782, 784–85 (Tex. Crim. App.
1982).

      Appellant was employed as a sixth-grade teacher and high school coach. The
complainant was a student in appellant’s class during the 2014-2015 school year.
Around Christmas of the 2015-2016 school year, when the twelve-year old
complainant was in seventh grade, she and appellant began communicating via
Snapchat. During spring break, appellant met the complainant at her home, where
she was alone. Appellant kissed the complaint’s mouth and vagina and inserted his
fingers into her vagina. Appellant pulled down his shorts and began to put his penis
in the complainant’s vagina, but she said, “no” and he stopped. The complainant
testified that his penis did touch her vagina.

      We measure sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge and as authorized in the indictment.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc). In this case,
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such a charge would state that a person commits aggravated sexual assault of a child
if the actor intentionally or knowingly caused the sexual organ of a child under the
age of fourteen to contact the mouth of the actor. Tex. Penal Code §
22.021(a)(1)(B)(iii). Further, the charge would state that a person commits
indecency with a child if the actor, with the intent to arouse or gratify the sexual
desire of any person, touched any part of the genitals of a child under the age of
seventeen. Tex. Penal Code § 21.11(c)(2).

       The record reflects the complainant was under the age of fourteen and was
never the spouse of appellant.1 From the complainant, the jury heard testimony that
appellant caused his mouth to contact her vagina. Further, the jury heard testimony
that appellant touched the complainant’s vagina with his fingers. The jury could infer
from appellant’s acts and conduct that he acted intentionally and that he did so with
the intent to arouse or gratify his sexual desire. See Patrick v. State, 906 S.W.2d 481,
487 (Tex. Crim. App. 1995) (stating a defendant’s intent to commit sexual assault
can be inferred from his acts and conduct); McKenzie v. State, 617 S.W.2d 211, 216
(Tex. Crim. App. 1981) (stating the specific intent to arouse or gratify the sexual
desires of a person may be inferred from the surrounding circumstances); see also
Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (jury may infer
intent from any facts that tend to prove its existence, such as acts, words, and conduct
of defendant). Intent is most often proven through the circumstantial evidence
surrounding the crime. Hernandez, 819 S.W.2d at 810.

       Appellant fails to identify a single element of the two offenses that lack
sufficient evidence. Rather, appellant claims only that the complainant is not



       1
          See Tex. Penal Code 21.11((b-1) (“It is an affirmative defense to prosecution under this
section that the actor was the spouse of the child at the time of the offense.”)

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credible.2 We do not reevaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder. See Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). The uncorroborated testimony of a child victim is
sufficient to support a conviction for aggravated sexual assault or indecency with a
child. See Tex. Code Crim. Proc. art. 38.07; see also Tex. Penal Code §§ 22.021,
21.11.

         The record reflects a rational juror could find beyond a reasonable doubt all
the essential elements of both offenses. See Temple, 390 S.W.3d at 360. We therefore
hold the evidence was sufficient to support appellant’s convictions. Appellant’s first
issue is overruled.

                                    MOTION TO SUPPRESS

         Appellant filed a pre-trial motion to suppress two statements to police. The
first was an audio recording made while appellant was being driven to the police
station by Detective White. The second was a video recording of White’s interview
of appellant at the police station. The trial court denied the motion to suppress. 3 At
trial, the State offered into evidence the audio recording made in the police car from
White’s body microphone as State’s Exhibit 8 and the video recording of appellant’s
interview at the police station as State’s Exhibit 9. On both occasions, defense
counsel stated, “No objection.” An instruction was given to the jury pursuant to Tex.




         2
         We do not consider at this time appellant’s further complaint that his statements were
coerced because we consider all evidence in the record, whether it was admissible or inadmissible,
in reviewing the sufficiency of the evidence. See Price v. State, 502 S.W.3d 278, 282 (Tex. App.—
Houston [14th Dist.] 2016, no pet.).
         3
          The trial court filed written findings of fact and conclusions of law. See Tex. Code Crim.
Proc. art. 38.22, § 6; Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004).

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Code Crim. Proc. art. 38.23(a).4 Appellant presents a single argument for issues two
through five — that his statements to White were involuntary. 5

       A statement is involuntary if the record reflects official, coercive conduct such
that it is unlikely to have been the product of an essentially free and unconstrained
choice by the accused. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App.
1995). The test is whether the defendant’s will was “overborne” by police coercion.
Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d); see Gomes v. State, 9 S.W.3d 373, 377–78 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d). It is the State’s burden to prove the voluntariness of a confession
once an accused claims it was not. See Farr v. State, 519 S.W.2d 876, 880 (Tex.
Crim. App. 1975). To make this determination, we look at the totality of the
circumstances. Guardiola, 20 S.W.3d at 223.

       A confession may be deemed “involuntary” under three theories: (1) failure
to comply with Tex. Code Crim. Proc. art. 38.22; (2) failure to comply with Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); or (3) a violation
of due process. See Oursbourn v. State, 259 S.W.3d 159, 169–72 (Tex. Crim. App.

       4
         The charge provided: “You are instructed that unless you believe from the evidence
beyond a reasonable doubt that the alleged confession introduced into evidence was voluntarily
made by the defendant, or if you have a reasonable doubt thereof, you shall not consider such
alleged confession for any purpose nor any evidence obtained as a result thereof.”
       5
          The State contends appellant failed to preserve this complaint because he stated “no
objection” when the statements were offered into evidence. The Texas Court of Criminal Appeals
has held that, although a motion to suppress preserves error without the need to object when the
challenged evidence is subsequently offered at trial, a defendant waives his complaint if he
affirmatively states “no objection” when the evidence is offered. See, e.g. Gearing v. State, 685
S.W.2d 326, 329 (Tex. Crim. App. 1985), overruled on other grounds by Woods v. State, 956
S.W.2d 33 (Tex. Crim. App. 1997). However, the court has clarified that this principle is “context-
dependent,” meaning that if the entire record plainly demonstrates the defendant did not intend,
and the trial court did not construe, the “no objection” assertion to abandon the earlier preserved
complaint, the complaint is not waived. See Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim.
App. 2013). Regardless, for the reasons stated below, we need not decide whether appellant’s
statement of “no objection” waived the issue on appeal.

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2008); see also Williams v. State, 502 S.W.3d 262, 272 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d); Umana v. State, 447 S.W.3d 346, 350 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d). Appellant’s brief cites U.S. Const. Amend V, XIV;
Miranda, 384 U.S. at 436; Tex. Code Crim. Proc. arts. 38.22, 38.23; and Tex. Const.
art. I, §§ 9, 10, 19, in support of his claim that his statements were involuntary.
However, at the hearing on the motion to suppress, counsel expressly limited the
grounds for challenging admission of the statements to White’s “trickery.” Counsel
stated that she was “strictly concerned” about White’s allusions to surveillance
cameras and videos or recordings that did not exist. Our review on appeal is limited
to the complaint made to the trial court.6

       We first address the admission of State’s Exhibit 8, the audio recording.
Appellant claims that he was “deceived” about being recorded while he was in the
police car. Assuming, without deciding, this issue was preserved, appellant did not
admit or confess to anything, much less anything incriminatory, on the audio
recording. Because appellant’s statement in no way implicated him, there is no
reasonable possibility that the error, if any, in admitting State’s Exhibit 8, “moved
the jury from a state of nonpersuasion to one of persuasion as to the issue in
question.” Wesbrook, 29 S.W.3d at 119. Accordingly, any error is harmless. See Tex.
R. App. P. 44.2(a).

       We now consider the admission of State’s Exhibit 9, the video recording.
Appellant complains that during the interview White misrepresented the existence
of video evidence that could be used against him. The record reflects, and the State



       6
         Appellant makes no reference in his brief to an actual trial objection that would comport
with additional arguments made on appeal. See Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim.
App. 2017). Accordingly, those complaints present nothing for our review. See Tex. R. App. P.
33.1(a).

                                                6
does not dispute, that White represented to appellant there might be or was evidence
from video surveillance cameras supporting the complainant’s allegations.

      “It is well established that lying about the state of the evidence is not the sort
of “overreaching” that implicates [due process], as long as the subterfuge used is not
one likely to produce an untrue statement.” Oursbourn, 259 S.W.3d at 182. “The
voluntariness of a confession is not destroyed, and a confession induced by
deception or trickery, is not inadmissible, unless the method used was calculated to
produce an untruthful confession or was offensive to due process.” Rodriquez v.
State, 934 S.W.2d 881, 890–91 (Tex. App.—Waco 1996, no pet.) (concluding a
confession given after defendant was falsely told the victim, on his deathbed,
identified him as the assailant was not involuntary.); see also Frazier v. Cupp, 394
U.S. 731, 737–39, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (holding a confession given
after defendant was falsely told that his codefendant had turned State’s evidence was
not involuntary); Snow v. State, 721 S.W.2d 943, 946 (Tex. App.—Houston [1st
Dist.] 1986, no pet.) (concluding that even if defendant was told that he was being
interviewed as a witness, not a suspect, his confession was not “so tainted by trickery
that it violated due process.”).

      Misrepresentations such as those made by White do not render an otherwise
voluntary confession inadmissible. See Weaver v. State, 265 S.W.3d 523, 534 (Tex.
App.—Houston [1st Dist.] 2008, pet. ref’d) (citing Green v. State, 934 S.W.2d 92,
99 (Tex. Crim. App. 1996)). “Of the numerous types of police deception, a
misrepresentation relating to an accused’s connection to the crime is the least likely
to render a confession involuntary.” Green, 934 S.W.2d at 100. White’s
misrepresentations were not the type of deception likely to cause an involuntary
confession because they related to appellant’s connection to the crime and the



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strength of the State’s case against appellant. See id; see also Rodriquez, 934 S.W.2d
at 890.

      Based upon our review of appellant’s entire interrogation, we determine the
trial court did not err in concluding that appellant’s confession was voluntary.
Accordingly, we overrule appellant’s remaining issues and affirm the trial court’s
judgment.




                                       /s/       Margaret “Meg” Poissant
                                                 Justice



Panel consists of Justices Wise, Jewell and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).




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