                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-356-CR


EDWARD VANEGAS                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

                                    ------------

           FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                   Introduction

      Appellant Edward Vanegas appeals his first-degree felony convictions for

two counts of possession of a controlled substance with the intent to deliver.

See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon Supp. 2009).

In four issues, he contends that the evidence is legally and factually insufficient




      1
          … See Tex. R. App. P. 47.4.
to support his convictions, that the trial court abused its discretion by refusing

his request for additional time to retain trial counsel of his choice, and that the

trial court abused its discretion by admitting the testimony of a Child Protective

Services (CPS) investigator. We affirm.

                                Background Facts

      Terry Dart and his son, Clint, are notable drug dealers in Denton County.

Terry and Clint both have significant criminal histories.

      In January 2008, the Denton County Sheriff’s Office (DCSO) executed

a search warrant at Terry’s house, found cocaine, and arrested Terry.

Clint arrived at the scene, and he eventually told the police that in exchange for

their leniency on Terry and for their assistance through a recommendation to

the prosecutors on his own pending drug case, he would help them set up

Terry’s drug distributor, Vanegas, for a drug bust. DCSO Officer Shane Norie,

a narcotics investigator, testified that he never submitted Terry’s case for

prosecution but that if the case had been submitted, Terry could have received

up to a life sentence. Clint also agreed to help officers make cases against two

or three other individuals.

      Clint met Officer Norie at a Wal-Mart on the afternoon of February 8,

2008. Officer Norie searched Clint and Clint’s pickup when Clint arrived to

ensure that Clint did not bring any drugs to the Wal-Mart. Clint and Officer

                                        2
Norie went inside the Wal-Mart and sat together in the Wal-Mart’s McDonald’s

restaurant.

      Several other police officers, including DCSO Sergeant Jeff Davis, also

arrived at the Wal-Mart at around 2 p.m. and remained in the parking lot to act

as a surveillance and arrest team.     Clint placed a short telephone call to

Vanegas; a digital device recorded the call.

      The recording begins with Officer Norie explaining the purpose of Clint’s

call to Vanegas as “an attempt to arrange for the quantity of cocaine and the

quantity of methamphetamine.” The call then begins by Clint telling Vanegas,

“I went and got my check cashed, and I got my money.” Later in the call, Clint

told Vanegas where he was and that he wanted “a half onion[2 ] of meth and

give me an ounce of coke too—I’ve got twenty-five hundred on me.”

Vanegas responded, “I probably only have like a quarter on me.” Clint said, “I’ll

take whatever you can get.” Vanegas said, “Okay,” and then he told Clint that

he would arrive at the Wal-Mart in thirty to forty-five minutes.       Clint told

Vanegas, “When you call, I’ll just come out and jump in your car.”

Vanegas said, “Allright, cool.”




      2
      … “Onion” is slang for an ounce; half an onion is half an ounce, or
around fourteen grams.

                                       3
      Clint stayed with Officer Norie in the McDonald’s restaurant until Vanegas

arrived at the W al-Mart at around 4 p.m. Vanegas called Clint, and Clint left

the Wal-Mart store and walked through the parking lot about thirty yards

toward Vanegas’s car without Officer Norie.3 Vanegas got out of his vehicle,

and he and Clint had a brief conversation. They walked over to the driver’s side

of Clint’s pickup, and Clint opened the door. Sergeant Davis drove his car up

to the bumper of Clint’s pickup, got out of the car, identified himself, and told

Vanegas to show his hands. Vanegas looked at Sergeant Davis, looked away

from Sergeant Davis, and then “reache[d] with a closed [left] hand inside the

vehicle and immediately [brought] his hand back out.” Sergeant Davis then

took control of Vanegas, who did not resist; while Sergeant Davis was doing

so, he saw two baggies containing drugs in Clint’s pickup.          One baggie



      3
      … Officer Norie remained inside the Wal-Mart until the “deal was done.”
Sergeant Davis described the “buy-bust” plan as follows:

      The way it was supposed to happen [was] Investigator Norie and
      Clint Dart were supposed to be positioned inside the Wal-Mart
      store. When Edward Vanegas arrived at the location and called and
      said [“]I’m here,[“] Clint Dart was going to exit the Wal-Mart,
      contact Edward Vanegas, confirm that the drug exhibits were
      present, and at that time give a bust signal, which in this case I
      believe was opening a toolbox in the back of his truck, which
      would give us a signal that, okay, the dope is there and it’s time to
      move in. We were going to block the vehicle from the front and
      the back, as we usually do to prevent their escape, and effect the
      arrest of the driver, Mr. Vanegas.

                                       4
contained approximately seven grams of methamphetamine, and the other

baggie contained approximately fifteen grams of cocaine. 4

      The officers did not find any weapons on Vanegas or in his car.

They spoke to the people in Vanegas’s car, and they noticed a child in the car.

      Danny Roberts, a CPS investigator, spoke with Vanegas around 6 p.m.

on the night of his arrest. For safety purposes, a police officer accompanied

Roberts   during   his   interview   with       Vanegas.   Roberts   expressed    his

understanding that Vanegas had been arrested for selling drugs, and Vanegas

told Roberts that “he had picked up his son from [Vanegas’s] mother . . .[,]

[a]nd then he went to Wal-Mart to do the delivery with his son present.” 5

      In May 2008, a Denton County grand jury indicted Vanegas for two

counts of possession of a controlled substance with the intent to deliver.

Count one    of the      indictment concerned         Vanegas’s   intent to   deliver

methamphetamine of an amount between four and two hundred grams, and

count two regarded his intent to deliver cocaine of that same amount.




      4
       … A forensic scientist later confirmed the character of the
methamphetamine and cocaine and the approximate weight of the substances
(subtracting the weight of the baggies themselves).
      5
       … The child that was with Vanegas upon his arrest was not Vanegas’s
biological son.

                                            5
      Vanegas pled not guilty before a jury in October 2008. After the State

presented its evidence, the parties rested and submitted closing arguments.

The jury found Vanegas guilty of the charges contained in both counts of the

indictment.   After the parties presented evidence regarding Vanegas’s

punishment, the jury assessed thirty years’ confinement on each count.

Vanegas filed notice of this appeal.

                           Evidentiary Sufficiency

      In his first two issues, Vanegas asserts that the evidence is legally and

factually insufficient to support his conviction for possession with intent to

deliver methamphetamine and cocaine. In a possession-with-intent-to-deliver

case, the State must prove through direct or circumstantial evidence that the

defendant (1) exercised care, custody, control, or management over the

controlled substance, (2) intended to deliver the controlled substance to

another, and (3) knew that the substance in his possession was a controlled

substance. Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App.

2005); Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.]

2004, no pet.); see Tex. Health & Safety Code Ann. § 481.002(38) (Vernon

Supp. 2009), § 481.112(a). Vanegas contends that the evidence is insufficient

to support his conviction because it allegedly fails to establish that he




                                       6
knowingly possessed the drugs by having custody or control of them or that

he intended to deliver them.

Standards of review

      Legal sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.             Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play

to the responsibility of the trier of fact to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct.

2075 (2009). Thus, when performing a legal sufficiency review, we may not

re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

                                         7
(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007).      We must presume that the factfinder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.

      Factual sufficiency

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

                                        8
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, although

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.     Id.   We may not simply substitute our judgment for the

factfinder’s.   Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000);

Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Analysis

      “When the accused is not in exclusive possession of the place where

[drugs are] found, it cannot be concluded that the accused had knowledge of

and control over the contraband unless there are additional independent facts

and circumstances which affirmatively link the accused to the contraband.”

Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981).

The “affirmative links” analysis requires direct or circumstantial evidence that

                                        9
the defendant’s connection with the drugs was “more than just fortuitous.”

Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); see Poindexter,

153 S.W.3d at 406.

      Vanegas was not in exclusive possession of Clint’s pickup, so we must

determine whether there are sufficient links from Vanegas to the drugs.

He asserts that the links are “essentially absent” because the “only factors

tending to link [him] to the [drugs] consist of his nearby presence” when they

were found.

      But this is not a case, like the case relied on for comparison in Vanegas’s

brief, in which the only essential connection of a defendant to drugs was the

defendant’s physical proximity to them. See Molina v. State, Nos. 205-03,

206-03, 2003 WL 22250391, at *1–4 (Tex. Crim. App. Oct. 1, 2003) (not

designated for publication). Instead, Vanegas was not only present when the

drugs were found, but also (1) the drugs were in plain view in an area (Clint’s

truck) that Vanegas was very close to; (2) Vanegas made incriminating

statements to Roberts, the CPS investigator, following his arrest; and

(3) Vanegas’s conduct of reaching in the pickup with his closed hand and then

immediately bringing his hand back out after Sergeant Davis told him to put his

hands up indicated Vanegas’s consciousness of guilt. See Tucker v. State, 183




                                      10
S.W.3d 501, 510 (Tex. App.—Fort Worth 2005, no pet.) (listing factors

relevant to an affirmative links analysis).6

      More importantly, the jury heard the recording of Vanegas agreeing to

transfer to Clint the same drugs—cocaine and methamphetamine—that the

officers found in Clint’s pickup, and Clint could not have placed the drugs there

because he and his pickup were searched upon his arrival at Wal-Mart.

Vanegas apparently asks us conclude that following Clint’s call to him

specifically requesting drugs, his appearance at the same Wal-Mart described

in the call on the same day as the call still cannot link to him to the custody or

control of the same drugs requested in the call.      We decline to make that

conclusion, and the evidence does not indicate any alternate way that the drugs

could have appeared in Clint’s pickup.

      Next, Vanegas cites a six-factor test that relates to when intent to deliver

may be proved by circumstantial evidence. See Garrett v. State, 161 S.W.3d

664, 671 (Tex. App.—Fort Worth 2005, pet. ref’d); Jordan v. State, 139

S.W.3d 723, 726 (Tex. App.—Fort Worth 2004, no pet.). But here, Vanegas’s




      6
       … Although our decision in Tucker listed fourteen affirmative links
factors, and Vanegas’s analysis focuses on those factors, the factors are not
independent tests of evidentiary sufficiency, and they are not exclusive to the
determination of whether evidence sufficiently links a defendant to drugs. Id.;
see Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006).

                                       11
conversation with Clint and his admission to Roberts directly establish his

intent. Also, Sergeant Davis testified that the amount of drugs he found in

Clint’s pickup is large enough to indicate an intent to distribute. He explained

that just one gram of methamphetamine costs around $100 and that seven

grams costs between $350 and $450. He stated that fifteen grams of cocaine

costs between $400 and $600. Finally, the cocaine that the officers found

was in “brick” form, which means that it could have been “broken off a

kilogram” for further distribution.

      We hold that a jury could rationally find that Vanegas intended to

distribute cocaine and methamphetamine to Clint. Thus, we overrule Vanegas’s

legal sufficiency challenge in his first issue. See Jackson, 443 U.S. at 319, 99

S. Ct. at 2789.

      In Vanegas’s second issue, regarding factual sufficiency, he theorizes that

someone may have placed cocaine and methamphetamine in Clint’s truck from

the time it was initially searched by Officer Norie to the time the drugs were

found in the truck upon his arrival at the Wal-Mart. He argues that the evidence

“plausibly suggested that Clint Dart arranged for the drugs to be placed in his

truck in the two hours before [Vanegas] arrived on the scene.” But testimony

indicated that several officers watched the Wal-Mart parking lot from the time




                                      12
Clint arrived there, at approximately 2 p.m., 7 until the time Vanegas arrived, at

around 4 p.m.

      Based on Vanegas’s statements in the phone recording and to Roberts,

his compliance with the intention he expressed in the recording, and the

remaining facts and circumstances detailed above, we hold that the evidence

is not so weak that the jury’s decision to convict him was clearly wrong and

manifestly unjust. See Lancon, 253 S.W.3d at 704. Thus, the evidence is

factually sufficient to support Vanegas’s convictions, and we overrule his

second issue.

                   Vanegas’s Request for Different Counsel

      At the beginning of the trial on October 6, 2008, the following exchange

occurred between the trial judge and Vanegas:

            THE DEFENDANT: I would like to ask for a little more time
      to retain a lawyer. I mean, what I’m saying is I don’t wish to
      proceed with this -- with this trial with Mr. Adame.

            THE COURT: Okay. Well, Mr. Vanegas, you applied for a
      court-appointed attorney, you asked for a court-appointed attorney,
      you got a court-appointed attorney. And you can’t wait until the
      day of trial and thereby manipulate the system and postpone your
      case to come in and say that you want a different attorney. If you
      had a different attorney that you hired here today and ready to go,
      then we would -- then that would be certainly your choice, and we



      7
       … Clint placed his call to Vanegas at 2:05 p.m. inside the McDonald’s
restaurant.

                                       13
would proceed with that attorney. But I’m not going to postpone
this case.

      THE DEFENDANT: Okay.

      THE COURT:         Mr. Adame is more than capable of
representing you in this case, and you just need to cooperate with
him, because, you know, this affects you more than anybody.

      THE DEFENDANT: Okay. I was set for another -- for a court
date on the 26th, I believe. And I was never called out for it. And,
I mean, Wednesday, you know, he comes to see me and tells me
I have a trial Monday. So . . .

      THE COURT: Okay. Well, you signed off on a pass slip back
on July the 3rd. Well --

      ....

      THE DEFENDANT: No, I was not told the specific date.
He told me in October but not on this specific date.

      THE COURT: Okay.

      THE DEFENDANT: Until last week.

      THE COURT: Well, you don’t have another attorney here to
represent you. Is that correct?

      THE DEFENDANT: Not today, ma’am.

      THE COURT: Okay. And, well, we’re going to proceed with
Mr. Adame, so I just -- like I said before, I suggest that you confer
with him and help him in your defense in this case, because we’re
about to seat a jury and we’re about to proceed with this trial. We
can’t postpone it on the day of trial.




                                 14
       Vanegas contends in his third issue that the trial court abused its

discretion and violated his constitutional rights by refusing his request for

additional time to retain trial counsel of his choice. He equates his third issue

to a challenge of a denial of a motion for a continuance.

Standard of review and applicable law

       The denial of a motion for continuance is within the sound discretion of

the trial court, and our review of the denial of the motion is limited to whether

the trial court abused that discretion. Renteria v. State, 206 S.W.3d 689, 699

(Tex. Crim. App. 2006); Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim.

App. 1996), cert. denied, 522 U.S. 825 (1997); Williams v. State, 172 S.W.3d

730, 733 (Tex. App.—Fort Worth 2005, pet. ref’d). A defendant must show

“specific prejudice to his defense” to establish that the trial court abused its

discretion by refusing to grant a continuance. Renteria, 206 S.W.3d at 699;

Janecka, 937 S.W.2d at 468. Examples of specific prejudice include unfair

surprise, an inability to effectively cross-examine witnesses, and the inability

to elicit crucial testimony from potential witnesses. Janecka, 937 S.W.2d at

468.

       The federal and Texas constitutions guarantee the right to counsel in

criminal cases and contemplate the right to obtain paid, nonappointed counsel

of the defendant’s choosing. United States v. Gonzalez-Lopez, 548 U.S. 140,

                                       15
151–52, 126 S. Ct. 2557, 2565–66 (2006); Gonzalez v. State, 117 S.W.3d

831, 836–37 (Tex. Crim. App. 2003).           But the right to counsel of the

defendant’s choosing is not absolute, and Texas courts have consistently noted

that a defendant cannot wait until the day of trial to demand different counsel

or to request that counsel be dismissed so that he may retain other counsel.

Gonzalez, 117 S.W.3d at 837; Webb v. State, 533 S.W.2d 780, 784 (Tex.

Crim. App. 1976) (explaining that an “accused’s right to represent himself or

select his own counsel cannot be manipulated so as to obstruct the orderly

procedure in the courts or to interfere with the fair administration of justice”).

      In deciding whether to grant a continuance because of the absence of the

defendant’s choice of counsel, the trial court should weigh the following

factors: (1) the length of delay requested; (2) whether other continuances were

requested and whether they were denied or granted; (3) the length of time in

which the accused’s counsel had to prepare for trial; (4) whether another

competent attorney was prepared to try the case; (5) the balanced convenience

or inconvenience to the witnesses, the opposing counsel, and the trial court;

(6) whether the delay was for legitimate or contrived reasons; (7) whether the

case was complex or simple; (8) whether the denial of the motion resulted in

some identifiable harm to the defendant; and (9) the quality of legal

representation actually provided. Ex parte Windham, 634 S.W.2d 718, 720

                                       16
(Tex. Crim. App. 1982). We must determine whether the trial court could

reasonably have balanced these factors and concluded that the fair and efficient

administration of justice weighed more heavily than Vanegas’s right to counsel

of his choice.      See Greene v. State, 124 S.W.3d 789, 794 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

Analysis

      Here, Vanegas had from May 2008, when he was indicted, until October

2008, the time of his trial, to retain counsel. But in those six months, he failed

to do so. And although he knew in July that his trial would begin in October,

he waited until the day of trial to request more time to retain different counsel.

Although no formal motions for continuance were filed, the record contains

“COURT SETTING” documents indicating that Vanegas’s case was passed

three times. Vanegas’s appointed counsel, Derek Adame, represented Vanegas

at least since June 2008, so he had at least five months to prepare for trial.

Vanegas admitted that no other attorney was ready to try the case, and the

record does not indicate how long it would have taken Vanegas to retain

counsel. Finally, although Vanegas contends that his appointed counsel did not

promptly file certain motions, he has not raised any error connected to such

motions, he has not contended that his appointed counsel was ineffective, and




                                       17
he has not identified any particular strategic decision or other act of his

appointed counsel that could have changed the result of his case.

      For all of these reasons, we hold that the trial court did not abuse its

discretion by denying Vanegas’s motion for continuance to secure counsel of

his choice. See Renteria, 206 S.W.3d at 699; Webb, 533 S.W.2d at 784.

Thus, we overrule his third issue.

          The Trial Court’s Decision to Admit Roberts’s Testimony

      In his fourth issue, Vanegas contends that the trial court abused its

discretion by admitting Roberts’s (the CPS investigator’s) testimony because

Roberts did not provide Vanegas with any Miranda warnings before questioning

him. See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630

(1966).

Standard of review

      We review for an abuse of discretion a trial court’s decision to admit

testimony of a CPS worker when the defendant challenges the testimony under

Miranda. See Berry v. State, 233 S.W.3d 847, 856 (Tex. Crim. App. 2007);

Wilkerson v. State, 173 S.W.3d 521, 524 (Tex. Crim. App. 2005). Under that

standard, we must affirm the trial court’s decision to admit the testimony if the

decision is within a zone of reasonable disagreement. See Berry, 233 S.W.3d

at 858; Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App.), cert.

                                       18
denied, 549 U.S. 1056 (2006); Moore v. State, 233 S.W.3d 32, 40 (Tex.

App.—Houston [1st Dist.] 2007, no pet.).

Applicable law

      The United States Constitution provides that no person “shall be

compelled in any criminal case to be a witness against himself.” U.S. Const.

amend. V. As a corollary to that provision, the United States Supreme Court

held in Miranda that

      when an individual is taken into custody or otherwise deprived of
      his freedom by the authorities in any significant way and is
      subjected to questioning, the privilege against self-incrimination is
      jeopardized. Procedural safeguards must be employed to protect
      the privilege and unless other fully effective means are adopted to
      notify the person of his right of silence and to assure that the
      exercise of the right will be scrupulously honored, the following
      measures are required. He must be warned prior to any questioning
      that he has the right to remain silent, that anything he says can be
      used against him in a court of law, that he has the right to the
      presence of an attorney, and that if he cannot afford an attorney
      one will be appointed for him prior to any questioning if he so
      desires. Opportunity to exercise these rights must be afforded to
      him throughout the interrogation. After such warnings have been
      given, and such opportunity afforded him, the individual may
      knowingly and intelligently waive these rights and agree to answer
      questions or make a statement. But unless and until such warnings
      and waiver are demonstrated by the prosecution at trial, no
      evidence obtained as a result of interrogation can be used against
      him.

Miranda, 384 U.S. at 478–79, 86 S. Ct. at 1630. However, the Court limited

its holding to custodial interrogation by “law enforcement officers.” Id. at 444,



                                       19
86 S. Ct. at 1612.      And the cases at issue in Miranda each involved

“incommunicado interrogation of individuals in a police-dominated atmosphere.”

Id. at 445, 86 S. Ct. at 1612; see also Cobb v. State, 85 S.W.3d 258, 263

(Tex. Crim. App. 2002) (explaining that the Fifth Amendment and the Miranda

decision guard “against coercive custodial questioning by police[,]” therefore

protecting defendants “from the possibility of physical or psychological ‘third

degree’ procedures”) (emphasis added), cert. denied, 537 U.S. 1195 (2003).

      The court of criminal appeals has twice recently considered the

application of Miranda’s requirements to CPS employees’ custodial interviews

of defendants. See Berry, 233 S.W.3d at 854–56; Wilkerson, 173 S.W.3d at

523–33. In Wilkerson, a CPS investigator had interviewed a defendant about

the removal of his three children from the defendant’s home a day after he was

arrested for injury to a child by placing the child into scalding water and by

hitting another child with a belt.      Wilkerson, 173 S.W.3d at 523–24.

The investigator “needed to discuss the children’s placement in a foster home

because there were no other parents or family members to care for them.” Id.

at 524.   At trial, the defendant objected to the investigator’s testimony

regarding the defendant’s incriminating admissions to the investigator, but the

trial court denied the objection. Id. at 525.




                                      20
      In reviewing this court’s decision to reverse one of the defendant’s

convictions based on the trial court’s decision to admit the testimony, the court

of criminal appeals considered when a CPS investigator becomes “a police

surrogate for purposes of Miranda warnings when the person she interviews is

in custody.” Id. at 526. The court explained,

      Although state employment clearly makes a person an “agent of
      the State,” that label does not, by itself, make the person an
      “agent of the State” for the purpose of defining “custodial
      interrogation.” Not all government workers must be familiar with
      and ready to administer Miranda warnings . . . . [W]hen “the
      official has not been given police powers, Miranda has been held
      inapplicable to questioning by school officials, welfare
      investigators, medical personnel, prison counselors, and parole or
      probation officers.

            ....

             . . . [CPS workers’] mission is to protect the welfare and
      safety of children in the community. Although this duty may at
      times entail the investigation of child abuse claims, that alone does
      not transform CPS workers into law enforcement officers or their
      agents. . . . If the obligation to report suspected child abuse by
      itself could convert a CPS worker into a law enforcement agent,
      then every person who suspects child abuse could be called a “law
      enforcement agent” in the Miranda context. This is clearly not the
      law, and it was certainly not the purpose of the prophylactic
      Miranda warnings.

Id. at 528–29 (citations and footnotes omitted). However, the court cautioned

that in some circumstances, Miranda’s requirements may apply to a CPS

investigator’s questioning:



                                       21
      [I]f the once-parallel paths of CPS and the police converge, and
      police and state agent are investigating a criminal offense in
      tandem, Miranda warnings . . . may be necessary. At this point,
      a CPS worker may be viewed as an agent of the police. The term
      “agency” denotes a consensual relationship which exists between
      two persons or parties where one of them is acting for or on behalf
      of the other. The law does not, however, presume an agency
      relationship. The person alleging such a relationship has the burden
      of proving it.[8 ] But if a defendant does prove that a particular
      person—whether CPS caseworker, teacher, preacher, probation
      officer, or mere family friend—is, in fact, working for or on behalf
      of the police by interrogating a person in custody, that agent is
      bound by all constitutional and statutory confession rules, including
      Miranda.

Id. at 529–30 (footnotes omitted and emphasis added). The court instructed

that in determining whether a CPS investigator’s path is parallel to or converges

with police purposes, courts should consider the “actions and perceptions of

the parties involved: the police, the CPS caseworker (or other potential agent

of the police), and the defendant himself.” Id. at 530. The court expounded,

             First, courts should look for information about the relationship
      between the police and the potential police agent. Did the police
      know the interviewer was going to speak with the defendant? Did
      the police arrange the meeting? Were the police present during the
      interview? Did they provide the interviewer with the questions to
      ask? Did they give the interviewer implicit or explicit instructions
      to get certain information from the defendant? Was there a
      “calculated practice” between the police and the interviewer that



      8
       … The urging of a motion to suppress does not thrust a burden on the
State to show compliance with Miranda warnings unless the defendant proves
that the statements he wishes to exclude were the product of custodial
interrogation. Id. at 532.

                                        22
     was likely to evoke an incriminating response from defendant
     during the interview? And finally, does the record show that the
     police were using the agent’s interview to accomplish what they
     could not lawfully accomplish themselves? In sum, was law
     enforcement attempting to use the interviewer as its anointed
     agent?

            Second, courts should examine the record concerning the
     interviewer’s actions and perceptions: What was the interviewer’s
     primary reason for questioning the person? Were the questions
     aimed at gaining information and evidence for a criminal
     prosecution, or were they related to some other goal? How did the
     interviewer become involved in the case? Did the interviewer help
     “build a case” that led to the person’s arrest, or was the
     interviewer pursuing some other goal or performing some other
     duty? At whose request did the interviewer question the arrestee?
     In sum, did the interviewer believe that he was acting as an agent
     of law enforcement?

           Finally, courts should examine the record for evidence of the
     defendant’s perceptions of the encounter. When the defendant
     was interviewed, did he believe that he was speaking with a
     law-enforcement agent, someone cloaked with the actual or
     apparent authority of the police? What gave him this impression?
     Alternatively, would a reasonable person in defendant’s position
     believe that the interviewer was an agent of law enforcement?

           At bottom, the inquiry is: Was this custodial interview
     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? Put another
     way, is the interviewer acting as an “instrumentality” or “conduit”
     for the police or prosecution? Most simply: is the interviewer “in
     cahoots” with the police?

Id. at 530–31 (footnotes omitted).




                                     23
      The record in Wilkerson did not demonstrate any police involvement in the

CPS investigation and did not show any of Wilkerson’s perceptions of the

investigation, and the CPS investigator’s mere communication with police after

speaking with Wilkerson did not transform the investigator into a law

enforcement agent. Id. at 532–33. Thus, the court held that the trial court did

not abuse its discretion by admitting the investigator’s testimony, reversed our

decision, and affirmed the trial court’s judgment. Id. at 533.

      Two years later, in Berry, the court of criminal appeals again addressed

the admissibility under Miranda of a defendant’s custodial statements made to

a CPS employee.     Berry, 233 S.W.3d at 854–56.        The court relied on its

Wilkerson opinion to hold that because the record in Berry (1) did not reflect

that the CPS employee questioned Berry at law enforcement’s request;

(2) indicated that the employee talked to Berry for reasons related to the

removal of a child and the child’s placement; and (3) contained testimony from

the employee that she was “not there doing an investigation,” the trial court did

not abuse its discretion by admitting the employee’s testimony regarding

Berry’s incriminating statements. Id. at 855–56. Intermediate appellate courts

reviewing factual circumstances like those in Wilkerson have held that similar

testimony is admissible. See Moore, 233 S.W.3d at 38–43.




                                       24
Analysis

       Here, the trial court conducted a brief hearing outside of the jury’s

presence regarding the admissibility of Roberts’s testimony. Roberts said that

he met with Vanegas on the day of Vanegas’s arrest in the Denton County

Jail’s arraignment room. When asked why he went to speak with Vanegas,

Roberts answered, “[CPS] had received a call from [the] Denton County Sheriff

that   Mr.   Vanegas   had   been    arrested   for   selling,   I   think   it   was,

methamphetamine and cocaine, and at the time of the arrest his child was in

the back seat of the car.”

       Roberts said that according to protocol established by a CPS handbook,

he identified himself as an employee of CPS to Vanegas, explained the reason

for CPS’s investigation (Vanegas’s bringing his child to the Wal-Mart during the

drug delivery and the child’s placement), and explained the nature of the

interview. Roberts testified, “I explained to [Vanegas] that there had been a

call to CPS, that I was under the impression that he had been arrested that day

with a child present, and at that point there was nobody to release the child

to.”

       An officer accompanied Roberts during his interview with Vanegas;

Roberts said that he “believe[d] it was one of the investigative officers, but [he

was] not sure.”    Roberts could not remember whether the officer was in

                                       25
uniform, and Roberts said that the officer was there for the “only reason” of

ensuring Roberts’s safety; he explained, “[The officer] stayed in the room

because Mr. Vanegas was a prisoner at the time, so he couldn’t leave me alone

in that room.”

        The officer stood across the arraignment room from Vanegas and Roberts,

and the officer did not communicate with Roberts during the interview or

involve himself at all in the interview.        When the State’s prosecutor asked

Roberts    directly   whether   the   officer    involved   “himself   in   [Roberts’s]

investigation with Mr. Vanegas whatsoever,” Roberts responded, “Not in any

way.”

        Vanegas admitted to Roberts that he went to Wal-Mart to make a

delivery. Roberts testified that he interviewed Vanegas for “the safety of the

child,” not to help law enforcement, because “[t]hat’s a totally separate thing.”

He said he was not a part of the police investigation and that his “only interest

[was] the child and the CPS investigation.” Roberts talked with Vanegas about

facts other than those involving his drug delivery; for example, Roberts

gathered Vanegas’s background information.

        At the end of Robert’s testimony outside of the jury’s presence, Vanegas

urged a motion to suppress, arguing that although it was “clear that Mr.

Roberts in the job he’s doing is not a police officer,” Roberts was “basically

                                         26
acting as an agent of the State” to circumvent Miranda. Vanegas’s counsel

contended,

      If this person, the arresting officer, was not present, if they had
      taken pains to make sure that these two men were alone, then I
      don’t think I would have an argument there. But the problem here
      is essentially the State has been allowed to recruit this civilian to
      act as their agent to ask the questions they would like to ask and
      get around [Miranda].

The trial court denied Vanegas’s motion to suppress, stating that there was “no

evidence . . . that this witness was recruited by the law enforcement agent or

that the law enforcement agent directed him in his conversation with

[Vanegas].”

      Vanegas relies heavily on the fact that an officer was present during

Roberts’s interview, but the record contains no evidence that, as relevant under

Wilkerson, the officer arranged Robert’s meeting with Vanegas, provided any

questions to ask, gave any instructions, or otherwise had any agreement or

consent with Roberts at all regarding the interview other than to provide safety.

And although Vanegas did not testify regarding his perception of the interview,

we conclude that a reasonable person in his position, considering Roberts’s

instructions to Vanegas, the officer’s lack of participation in the interview, and

the officer’s positioning in the arraignment room, would not have believed that

Roberts was law enforcement’s agent. Wilkerson, 173 S.W.3d at 530–31.



                                       27
      There is simply nothing in the record to indicate that Roberts was “in

cahoots” with law enforcement, and Roberts’s testimony affirmatively

demonstrates otherwise. Therefore, we hold that the trial court did not abuse

its discretion by deciding to deny Vanegas’s motion to suppress and admit

Roberts’s testimony because Vanegas has not satisfied his burden of proving

any agency relationship between Roberts and law enforcement’s criminal

investigation.   See Wilkerson, 173 S.W.3d at 524, 529.         We overrule

Vanegas’s final issue.

                                 Conclusion

      Having overruled all of Vanegas’s issues, we affirm the trial court’s

judgment.




                                          TERRIE LIVINGSTON
                                          JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 8, 2009




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