                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


  CHRISTOPHER MIRANDA,                            §
                                                                  No. 08-15-00349-CR
                               Appellant,         §
                                                                     Appeal from the
  v.                                              §
                                                                   120th District Court
                                                  §
  THE STATE OF TEXAS,                                           of El Paso County, Texas
                                                  §
                               Appellee.                           (TC# 20130D04013)
                                                  §


                                            OPINION

       Appellant Christopher Miranda appeals his convictions for improper relationship between

educator and student, sexual assault of a child, and sexual performance by a child. In three issues,

Miranda contends: (1) the trial court erred in admitting statements made during an interview with

a school administrator in which Miranda confesses to sexual activity with three of his students

because he claims the statement was a product of custodial interrogation, thus requiring he be

given his Miranda warnings as required under Articles 38.22 and 38.23 of the Texas Code of

Criminal Procedure and the U.S. and Texas Constitutions; (2) the trial court erred in denying his

request for a voluntariness instruction in the jury charge; and (3) there was legally insufficient

evidence to find him guilty on all counts. For the reasons that follow, we reverse and render in

part and affirm in part.
                                        BACKGROUND

       This case began when the assistant principal of an El Paso high school was approached

with information that the gymnastics coach, Christopher Miranda, was having an inappropriate

sexual relationship with a student. The official policy of the school district was that employees

were not allowed to engage in sexual relationships with students at any time, even if the

relationship would not otherwise violate state law. When an allegation of an inappropriate

relationship with a student is made, school policy required the employee be brought in and placed

on paid administrative leave to ensure student safety pending resolution of the investigation.

       The assistant principal brought the allegations to the attention of Bobbi Russell, the director

of employee relations for the school district. Russell testified her primary function was to

investigate misconduct in the workplace, ranging from sexual misconduct to mere tardiness by

employees.    Russell called Miranda to her office and placed him on administrative leave,

explaining that he was alleged to be having an inappropriate relationship with a female student.

At this meeting, Miranda provided a handwritten statement to Russell denying the allegations.

Miranda was twenty-four at the time and had been working at the high school for a little under two

years when the incident was reported.

       Two days later, Russell called Miranda back into her office to discuss her investigation.

Russell made two sequential recordings of this interview. In the first recording, Russell asked

Miranda if he had followed the term of his administrative leave that he have no contact with

students and he responded that he had. Russell reminded him that lying during an investigation

is grounds for immediate termination, and again asked him if he had followed the directive.

Miranda hesitantly replied that he had spoken to a student about the gymnastics team but trailed


                                                 2
off before completing his thought. Russell injected, “That is not true. I’m going to ask you one

more time: what did you tell Diego?” After a brief pause, Miranda stated, “I’m sorry, I’m feeling

a little bit of pressured right now,” to which Russell responded “You should feel pressured right

now . . . I have evidence that you were texting students sexually.” Russell then asked Miranda if

he found it common practice to ask his students to have sex with him. Miranda denied ever saying

any such thing to a student. Russell asked him why one of the students was able to describe his

bedroom, and he replied by denying having an inappropriate relationship with any of his students.

The audio recording abruptly ended.

        The second recording picks up approximately five minutes after the first had ended.

Russell resumed the interview by explaining that during the interlude she had offered to give

Miranda the opportunity to change any statements he had previously made and had told him his

best interests would be served by being honest. She then pointedly asked Miranda why he had

asked P.V.1 to have sex with him. A long silence ensued, and Russell asked him what school

year it had been when he asked P.V. to have sex with him. Miranda responded, “2011.” Russell

softened her tone and assured Miranda that she understood why he was nervous but admonished

him that it was in his best interests to be honest. She asked him how he responded to the fact that

he had texted P.V. a description of the sexual acts he wanted to perform on her, and he stated, “I’m

ashamed of it.”

        Russell shifted the conversation and asked Miranda how a second student, K.R., had gone

from being one of his students to “something a little more risqué.” Miranda detailed how K.R.



1
 The students involved were minors at the times of the offenses. Their names are redacted in accordance with Texas
Rules of Appellate Procedure 9.10. TEX.R.APP.P. 9.10.

                                                        3
had initially wanted more one-on-one coaching in gymnastics, and how he had obliged and gotten

closer to her on a personal level. After quietly listening, Russell told Miranda, “I need you to be

one hundred percent honest, like we said, it’s in your best interest, coach—did you ever pick her

up from her house at midnight?” Miranda responded that he had. He then discussed, with some

prodding by Russell, what had happened after he had picked her up. The two drove around, and

at some point began kissing. Miranda stated he knew that kissing her was wrong but confirmed

he did not attempt to stop. He stated the two then went to the home of one of K.R.’s friends and

had sex in the basement. Miranda’s voice was unsteady, and he paused for long intervals during

the discussion. Russell told him that she was aware he was nervous and that she would be nervous

as well if she were in his shoes. After detailing the story, Russell asked him to confirm he was

admitting to having sex with a student, and he confirmed that he was. She asked him if he was

aware that his admission was grounds for termination and he responded affirmatively.

       Russell advised Miranda that she was going to stop the recording, but then paused and

asked Miranda to be honest and tell her if there were any other students he had been intimate with.

He stated there were not any. Russell asked if he was sure there were not any others, and Miranda

cleared his throat and went silent. Breaking the silence, Russell stated, “I think you and I both

know there’s probably someone else, correct?” Miranda agreed that there was another student.

Russell asked for the student’s name. Miranda sighed and went silent for more than a minute of

the recording. Russell injected that she understood he was scared and that she would be too, but

that she needed to know if there were any other students he had been intimate with; not just sexual

intimacy, she added, but kissing, touching, fondling, hugging, or the like. Miranda remained

silent. Russell asked him if he had had sex with P.V., and after a brief pause, Miranda responded


                                                4
that he had. She pressed him for another name, averring that he had been at the school only two

years and that she now knew he had already had sexual intercourse with two students. Miranda

revealed that there was indeed one more student, I.G., who he stated was in the junior class at the

high school. After asking him whether any of his coworkers were aware of his actions and

receiving a negative response, Russell concluded the interview.

           Russell testified that after stopping the recording she informed Miranda he could either

resign or the district would seek his termination. He chose to resign. Russell asked him to give

her a second written statement to ensure she had all of the information on the students that could

have been affected. In the statement, Miranda admitted to having sexual intercourse with P.V.

and K.R., but denied having intercourse with I.G. Miranda left the office after resigning. As

soon as he left, Russell reported what she had learned to the director of safety, J.R. Martinez, and

he contacted the El Paso Police Department.

           At trial, the State introduced Russell’s audio recordings along with the signed confession.

One of the victims, K.R., also testified for the State. She stated that she first met Miranda while

taking his gymnastics class and that she was sixteen at the time. She claimed that Miranda had

begun texting her casually and that she did not think this was out of the ordinary because at the

time she considered Miranda to be someone she could trust. She relayed that one evening he sent

her a text message inviting her to hang out with him. K.R. accepted the invitation and sneaked

out of her parents’ home around midnight and met up with Miranda, who had parked around the

block away from the home. The two engaged in small talk and drove around, eventually stopping

at Miranda’s parents’ home.2 They proceeded up a narrow staircase to Miranda’s bedroom. K.R.


2
    Miranda was living with his parents at the time.

                                                       5
stated the two sat down on the bed and Miranda began playing a video game. Eventually, Miranda

finished his game and began speaking with K.R. She testified he took her phone away and put it

aside and began moving closer to her on the bed. He leaned in and started kissing her face. K.R.

testified she felt very uncomfortable and told him to stop but that he had responded “Oh, come

on,” and continued trying to kiss her. Miranda lifted her up and moved her to the center of the

bed. She stated she again told him to stop but that he continued to kiss her and began taking her

clothes off. She said she was afraid to force him off of her because he was much larger, and

because she was worried about upsetting him. She testified he then pulled her pants off, pulled

down his shorts, and crawled on top of her. K.R. continued telling him to stop but he removed

her shirt and kept kissing her. He began having sexual intercourse with her. She stated that after

a while, Miranda pulled out and ejaculated on the side of the bed. The two lied on the bed for

some time and Miranda eventually drove her home. When he dropped her off, Miranda told K.R.

to “stop acting weird,” and left.

       K.R. testified she continued going to gymnastics class and would see Miranda but that he

acted as though nothing had ever happened. On cross-examination, she admitted to being called

into Bobbi Russell’s office at the high school on two occasions to discuss the matter and denied it

had happened on both occasions. She also admitted that a few months after the incident she had

invited Miranda to go to a carnival with her, but that he turned down her invitation. On redirect,

she claimed she had denied the allegations because all of her friends were close to Miranda, and

she feared she would lose them if she caused trouble for him. She testified that when the

allegations were made public, she was ostracized and harassed by classmates and eventually had

to transfer to another school.


                                                6
           The jury convicted Miranda of the following charges: two counts of improper relationship

between educator and student (Counts I and III); sexual assault of a child (Count V); and sexual

performance by a child (Count VII).3 At punishment, the jury sentenced Miranda to ten years’

confinement, probated, for the first count of improper relationship between educator and student;

ten years’ confinement, probated, for sexual assault of a child; four years’ confinement for the

second count of improper relationship between educator and student; and two years’ confinement

for sexual performance by a child. This appeal followed.

                                                   DISCUSSION

                                             Custodial Interrogation

           In his first issue, Miranda contends that Russell’s interview was actually a custodial

interrogation because Russell was acting as a state agent in obtaining his incriminating statements,

and he was thus entitled to the appropriate warnings under Articles 38.22 and 38.23 of the Texas

Code of Criminal Procedure. Because he did not receive these warnings, Miranda contends the

trial court erred in denying his motion to suppress all statements made to Russell during the

interview.

                                                Standard of Review

           A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion. Elizondo

v. State, 382 S.W.3d 389, 393 (Tex.Crim.App. 2012). When the trial court’s findings of fact are

based on an evaluation of credibility and demeanor, a reviewing court is required to afford almost

total deference to the trial court’s determination of facts, provided they are supported by the record.

Id. The trial court’s application of the law to the facts, however, is reviewed de novo. Lerma v.


3
    The jury acquitted Miranda of Counts II, IV, VI, and VIII.

                                                           7
State, 543 S.W.3d 184, 190 (Tex.Crim.App. 2018).

                                          Applicable Law

       The well-known procedural safeguards of Miranda are embodied in Article 38.22 of the

Texas Code of Criminal Procedure and apply to custodial interrogations conducted by law

enforcement officers or their agents. State v. Cruz, 461 S.W.3d 531, 536 (Tex.Crim.App. 2015);

Berry v. State, 233 S.W.3d 847, 855 (Tex.Crim.App. 2007). These include the necessity of

providing suspects with certain warnings, such as the right to remain silent and the right to counsel,

prior to interrogation. TEX.CODE CRIM.PROC.ANN. arts. 15.17, 38.22; Cruz, 461 S.W.3d at 536.

No statement made by a suspect under custodial interrogation is admissible unless these warnings

are given and the suspect knowingly, intelligently, and voluntarily waives his rights. TEX.CODE

CRIM.PROC.ANN. art. 38.22, §§ 3–4. But state employment does not, by itself, make a person an

agent of law enforcement.       Berry, 233 S.W.3d at 855 (CPS worker not an agent of law

enforcement unless the parallel paths of police and CPS worker converge). “Agency” denotes a

consensual relationship between two parties in which one of them is acting for or on behalf of the

other. Wilkerson v. State, 173 S.W.3d 521, 529 (Tex.Crim.App. 2005). The law does not

presume the existence of an agency relationship and the party alleging such a relationship has the

burden of proving its existence. Id. The Court of Criminal Appeals has set forth three areas of

inquiry for determining if a party is acting as an agent of law enforcement:

       (1) Was law enforcement using the party to accomplish what it could not lawfully
       accomplish itself?

       (2) Did the party believe it was acting as an agent of law enforcement?

       (3) Would a reasonable person in the defendant’s place believe the party was an
       agent of law enforcement?


                                                  8
Wilkerson, 173 S.W.3d at 530–31; see also Lopez v. State, No. 04-16-00774-CR, --S.W.3d--, 2018

WL 3129467, at *3 (Tex.App.--San Antonio June 27, 2018, no pet. h.).

       As to custody, there are four general situations that may constitute custody and thus require

the warnings of Article 38.22: “‘(1) when the suspect is physically deprived of his freedom of

action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot

leave, (3) when law enforcement officers create a situation that would lead a reasonable person to

believe that his freedom of movement has been significantly restricted, and (4) when there is

probable cause to arrest and law enforcement officers do not tell the suspect that he is free to

leave.’” State v. Saenz, 411 S.W.3d 488, 496 (Tex.Crim.App. 2013)(quoting Dowthitt v. State,

931 S.W.2d 244, 255 (Tex.Crim.App. 1996)). The first three situations require the suspect’s

freedom of movement to be restricted to the degree associated with arrest, not merely that of an

investigative detention.   Id. The fourth requires the manifestation of probable cause to be

combined with other circumstances that would lead a reasonable person to believe that he is under

restraint to the degree associated with an arrest. Id.

                                             Analysis

       Here, Miranda contends that Russell’s questions, manner, and conduct were aimed at

eliciting incriminating responses from him, and that he was restrained by the school district to

attend the meeting with Russell under threat of losing his job. These factors combined, Miranda

asserts, constituted custodial interrogation.    The trial court concluded in its findings that

Miranda’s statements to Russell were not a result of custodial interrogation and that his statements

were voluntary. Miranda’s argument primarily focuses on showing Russell was an acting agent

of law enforcement, but there is a more fundamental problem with his contention: he must also


                                                 9
have been in custody to trigger the warning requirements. TEX.CODE CRIM.PROC.ANN. art. 38.22,

§§ 3–4. Applying the first three Saenz factors, nothing in the record suggests that Miranda’s

freedom of movement was restricted to the degree associated with arrest.            He attended an

interview in an unlocked room in the context of a workplace misconduct investigation being

conducted by the director of employee relations.          While Miranda complains that he felt

“pressured” and that he was restrained under threat of losing his employment, this does not

constitute restriction associated with formal arrest. Saenz, 411 S.W.3d at 496. Further, Russell

repeatedly referred to her investigation in the context of his possible termination, never implied

police involvement, never told Miranda that he was not at liberty to leave, and later testified she

would have allowed him to leave if he had asked. As to the fourth Saenz factor, nothing in the

record indicates that after Miranda admitted his behavior the circumstances were such as would

lead a reasonable person to believe he was under the restraint associated with an arrest. Id. Quite

the contrary. Miranda was given the choice of resigning or having the school district seek his

termination; he chose to resign, gave a written statement of his actions, and left the office as soon

as he had given the statement. Accordingly, Miranda has failed to demonstrate he was in custody

at the time of his interview with Russell.

       Even assuming for the sake of argument that Miranda was in custody at the time of his

interview in Russell’s office, he has also failed to demonstrate Russell was acting as an agent of

law enforcement. The trial court’s conclusion that Russell was not acting as an agent of law

enforcement was based upon the following relevant findings of fact:

       45. There is no evidence that [Russell] reported any information she had gained
       through her investigation to nor had any contact with any law enforcement agency
       through her second interview with Miranda.


                                                 10
       46. There was no evidence that police knew that [Russell] was going to interview
       Miranda.

       47. There was no evidence that police arranged the meeting between [Russell] and
       Miranda.

       48. Police were not present during any of the interviews between [Russell] and
       Miranda.

       49. There was no evidence that police provided [Russell] with questions to ask
       Miranda.

       50. There was no evidence that police gave instructions—implicit or explicit—for
       [Russell] to obtain certain information from Miranda.

       51. There was no evidence that there was a ‘calculated practice’ between the police
       and [Russell] that was likely to evoke an incriminating response from Miranda.

       52. There was no evidence that police were using [Russell]’s interview to
       accomplish what they could not lawfully accomplish themselves.

       53. The change is [sic] [Russell]’s demeanor from the first interview to the second
       is suspicious, but the Court has no evidence about contact with law enforcement in
       any way.

Affording deference to the trial court’s findings of fact, as we are required to do, the record

supports that Russell was not acting on behalf of the El Paso Police Department and did not discuss

her interview with or provide copies of it to law enforcement officers. Miranda’s purpose is to

protect against physical or psychological pressure being used against an individual that is in

custody and subjected to questioning by law enforcement officers or those working on their behalf.

Wilkerson, 173 S.W.3d at 526. Miranda has failed to carry his burden to demonstrate that he was

both in custody and subjected to an interrogation by an agent of law enforcement. Id., at 529.

Accordingly, Miranda’s first issue is overruled.

                                    Voluntariness Instruction

       In his second issue, Miranda contends the trial court erred in failing to include his requested

                                                   11
instructions on the voluntariness of his confession and waiver of his Miranda rights.

                                          Applicable Law

       A criminal defendant may claim that a statement he made was not freely and voluntarily

made, and thus may not be used as evidence against him, under three different theories: (1)

Article 38.22, Section 6 of the Texas Code of Criminal Procedure, which governs general

voluntariness; (2) Miranda v. Arizona, as expanded in Article 38.22, Sections 2 and 3 (also known

as the Texas confession statute); or (3) the Due Process Clause. Oursbourn v. State, 259 S.W.3d

159, 169 (Tex.Crim.App. 2008). The theory of involuntariness determines whether and what type

of an instruction is appropriate; thus, the first step in deciding upon the appropriateness of a jury

instruction is identifying the theory of involuntariness. Id. The Due Process Clause is only

applicable to police overreaching, not to protecting people from themselves or private actors. Id.,

at 169-70. Similarly, Miranda v. Arizona and Article 38.22, Sections 2 and 3 are only applicable

to a defendant’s statements made under custodial interrogation. TEX.CODE CRIM.PROC.ANN. art.

38.22, §§ 2–3; Oursbourn, 259 S.W.3d at 171. But Section 6 of Article 38.22—concerning

general voluntariness—applies to both custodial and non-custodial statements, including

statements taken by a private person. Oursbourn, 259 S.W.3d at 171–72. The inquiry in a

situation involving a non-custodial statement is whether it appears—as Article 38.21 requires—

that the statement was freely and voluntarily made without compulsion or persuasion. TEX.CODE

CRIM.PROC.ANN. art 38.21; Oursbourn, 259 S.W.3d at 172. The types of fact scenarios that raise

a voluntariness issue under Section 6 include: (1) the suspect was ill and on medication and that

may have rendered his confession involuntary; (2) the suspect was mentally retarded and may not

have knowingly, intelligently, and voluntarily waived his rights; (3) the suspect otherwise lacked


                                                 12
the mental capacity to understand his rights; (4) the suspect was intoxicated and did not understand

what he was signing; (5) the confession was beaten out of the suspect; and (6) the suspect was

being questioned by an armed victim, such as the owner of a store the suspect had just broken into.

Id., at 172-73; Morales v. State, 371 S.W.3d 576, 583–84 (Tex.App.--Houston [14th Dist.] 2012,

pet. ref’d).   Questioning that is aggressive, emotional, highly persuasive, or intelligently

calculated to elicit confessions does not raise a voluntariness question under Section 6. Morales,

371 S.W.3d at 589.

                                             Analysis

       As we have already held, Russell’s interrogation of Miranda was not a custodial

interrogation and Russell was not an agent of law enforcement. Accordingly, Miranda v. Arizona

and Article 38.22, Sections 2 and 3 are inapplicable. TEX.CODE CRIM.PROC.ANN. art. 38.22, §§

2–3; Oursbourn, 259 S.W.3d at 171. Miranda’s theory of involuntariness must advance, if at all,

under general voluntariness as governed by Section 6 of Article 38.22. Oursbourn, 259 S.W.3d

at 172. During the interview, Miranda seemed nervous, was visibly shaken, and stated that he felt

“a little pressured.” Russell told him he should feel pressured and that she would be nervous if

she were in his shoes, she was alternately aggressive and sympathetic, and told him that it was in

his best interests to cooperate. No evidence was presented, however, that Miranda lacked the

capacity to understand his rights, was on medication or was intoxicated, or was physically coerced

in any way.     While the questioning was no doubt unpleasant for Miranda, and Russell’s

questioning turned out to be highly persuasive, as the trial court correctly concluded, none of the

facts presented raised a voluntariness issue under Section 6. See Oursbourn, 259 S.W.3d at 172.

Accordingly, the trial court did not err in refusing to instruct the jury regarding general


                                                13
voluntariness. Miranda’s second issue is overruled.

                            Sufficiency of the Evidence and Corpus Delecti

        In his third and final issue for review, Miranda contends that no rational trier of fact could

have found that the State proved all essential elements of the offenses charged in Counts I

(improper relationship), III ( improper relationship), V (sexual assault of a child younger than 17

years), and VII (sexual performance of a child younger than 18 years) beyond a reasonable doubt

because the evidence was factually insufficient to support a conviction on all counts. Because the

courts of this state no longer conduct factual sufficiency analyses in criminal cases, we construe

Miranda’s contention as a legal sufficiency challenge.4 Miranda was convicted of two counts of

improper relationship between educator and student, sexual assault of a child, and sexual

performance by a child.

                                             Standard of Review

        In a legal sufficiency challenge, the reviewing court does not act as a thirteenth juror,

reweighing the evidence and substituting its judgment for that of the jury. Dewberry v. State, 4

S.W.3d 735, 740 (Tex.Crim.App. 1999), holding modified by Guidry v. State, 9 S.W.3d 133

(Tex.Crim.App. 1999). We view the evidence in the light most favorable to the verdict and will

uphold the conviction if there is sufficient evidence to justify a jury to rationally find the appellant

guilty beyond a reasonable doubt on all essential elements of the offense. Salinas v. State, 163

S.W.3d 734, 737 (Tex.Crim.App. 2005). “Each fact need not point directly and independently to




4
  The Jackson v. Virginia legal-sufficiency standard is the only standard used by a reviewing court in determining
whether the evidence presented is sufficient to support each essential element of a criminal offense. See Brooks v.
State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).

                                                        14
guilt if the cumulative force of all incriminating circumstances is sufficient to support the

conviction.” Nisbett v. State, 552 S.W.3d 244, 262 (Tex.Crim.App. 2018). Because evidence

must be considered cumulatively, we are not permitted to use a “divide and conquer” strategy for

evaluating the sufficiency of the evidence.                    Id.     The evidence is measured against the

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App.

2009). A hypothetically correct jury charge lists all elements of the offense, is consistent with the

indictment, and does not unnecessarily increase the prosecution’s burden of proof. Id.

                                                    Applicable Law

           Under the Texas Penal Code, the offense of improper relationship between an educator and

student occurs when an employee of a public or private primary or secondary school engages in

sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a

public or private primary or secondary school at which the employee works.5 TEX.PENAL CODE

ANN. § 21.12(a)(1). Sexual assault of a child, as relevant here, occurs when a person intentionally



5
    Although not applicable here, the offense is also committed if the employee:

           (2) holds a position described by Section 21.003(a) or (b), Education Code, regardless of whether
           the employee holds the appropriate certificate, permit, license, or credential for the position, and
           engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person the
           employee knows is:

           (A) enrolled in a public or private primary or secondary school, other than a school described by
           Subdivision (1); or

           (B) a student participant in an educational activity that is sponsored by a school district or a public
           or private primary or secondary school, if students enrolled in a public or private primary or
           secondary school are the primary participants in the activity; or

           (3) engages in conduct described by Section 33.021, with a person described by Subdivision (1), or
           a person the employee knows is a person described by Subdivision (2)(A) or (B), regardless of the
           age of that person.

TEX.PENAL CODE ANN. § 21.12(a).

                                                            15
or knowingly causes the penetration of the anus or sexual organ of a child by any means, regardless

of whether the person knows the age of the child at the time of the offense. TEX.PENAL CODE

ANN. § 22.011(a)(2)(A). The statute defines “child” as a person younger than seventeen years of

age. TEX.PENAL CODE ANN. § 22.011(c)(1). Finally, the offense of sexual performance by a

child is committed when a person, knowing the character and content thereof, employs, authorizes,

or induces a child younger than eighteen years of age to engage in sexual conduct or a sexual

performance. TEX.PENAL CODE ANN. § 43.25(b).

                                             Analysis

       Miranda contends that the evidence was insufficient to support his convictions because his

confessions were not sufficiently corroborated by other evidence. Under the corpus delicti rule,

when the state relies on an extrajudicial confession of the accused to support a conviction, there

must be independent corroborating evidence showing that a crime has actually been committed.

Nisbett, 552 S.W.3d at 263; Fisher v. State, 851 S.W.2d 298, 302–03 (Tex.Crim.App. 1993)(“The

common law corpus delicti rule holds that no criminal conviction can be based upon a defendant’s

extrajudicial confession unless the confession is corroborated by independent evidence tending to

establish the corpus delecti.”)[Emphasis in original]. When the burden of proof is beyond a

reasonable doubt, a defendant’s extrajudicial confession, standing alone, is not legally sufficient

evidence of guilt. Dansby v. State, 530 S.W.3d 213, 224 (Tex.App.--Tyler 2017, pet. ref’d).

“Corpus Delicti” simply means the crime itself, and is a requirement imposed on the state to

prevent the possibility of a defendant being convicted of a crime based solely on his own false

confession to a crime that never occurred. Nisbett, 552 S.W.3d at 263; Fisher, 851 S.W.2d at

303.


                                                16
       Here, the primary corroborating evidence presented by the State was the testimony of one

of the victims, K.R. K.R. testified that she was sixteen at the time of the incident with Miranda.

She testified that on the evening in question Miranda invited her to hang out and she accepted.

While together, Miranda kissed her, took her clothes off, and had sexual intercourse with her. She

also testified Miranda knew at the time that she was a student at the high school where he worked.

A complainant’s testimony alone is sufficient to support a jury finding that sexual contact occurred.

Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978); Bargas v. State, 252

S.W.3d 876, 888 (Tex.App.--Houston [14th Dist.] 2008, no pet.). Accordingly, K.R.’s testimony

constituted sufficient evidence to justify a jury to rationally find beyond a reasonable doubt that

Miranda intentionally or knowingly caused the penetration of the sexual organ of a child by means

of his sexual organ, and thus committed sexual assault of a child. TEX.PENAL CODE ANN.

§ 22.011(a)(2)(A). Further, it was undisputed that at the time of the sexual contact Miranda was

an employee of a public secondary school and that K.R. was one of his students. Therefore,

K.R.’s testimony was also sufficient for the jury to find that Miranda, while an employee of the

public secondary school, engaged in sexual intercourse with a person enrolled in the school at

which he worked, and thus committed the offense of improper relationship between an educator

and student beyond a reasonable doubt. TEX.PENAL CODE ANN. § 21.12(a). Accordingly, the

evidence was sufficient to find Miranda guilty of Counts III and V.

       The remaining counts complained of—Counts I and VII—were improper relationship

between an educator and student and sexual performance by a child. Both counts involved the

student identified as P.V. In the audio recording and in his written confession, Miranda claimed

to have had sexual intercourse with P.V. P.V., however, did not testify at trial. No other


                                                 17
corroborating evidence was put forth regarding the allegations involving P.V. The only additional

evidence presented by the State—beyond Miranda’s statements and the testimony of K.R.—was a

hand-written letter sent from Miranda to the third student, I.G.           In the letter, Miranda

acknowledges a relationship between himself and I.G., discusses their anniversary, invites her to

the high-school homecoming, and states “Most people would think that finding love between a

teacher and a student should be forbidden. I would not have it any other way though. I really do

feel that I can spend the rest of my life with you.” The letter makes no mention of P.V. or any

other students.

       The State urges that this letter, combined with K.R.’s testimony, corroborates the counts

involving P.V. because it shows his mindset towards young female students. Alternatively, the

State contends that K.R.’s testimony satisfies a closely-related-crimes exception to the corpus

delicti rule. The State claims that under this exception, the corpus delicti is established for all

crimes if one or more of the properly corroborated crimes are closely related to the others, as

implicated by a close temporal connection. In support, the State cites the case of Miller v. State,

457 S.W.3d 919 (Tex.Crim.App. 2015). In Miller, the defendant was accused of engaging in

illicit sexual conduct with his three-month-old daughter. Id., at 920. When approached by a

detective, the defendant confessed orally and in writing to molesting his daughter on at least three

occasions. Id. A few days later he returned to the police station and confessed to a fourth

incident of sexual contact. Id. All four incidents had occurred during a twenty-seven-day period,

and the defendant was charged with four counts of aggravated sexual assault of a child under six

years of age. Id. The State, however, was only able to produce corroborating evidence for one

of the counts. Id., at 921. On appeal, the defendant successfully argued to the court of appeals


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that the State had failed to establish the corpus delicti of the other three counts and had his

convictions set aside as to those counts. Id. The Court of Criminal Appeals reversed, carving

out an exception to the strict application of the corpus delicti rule. Id., at 927. In doing so, the

court acknowledged that the corpus delicti rule provides essential protections to defendants and

declined to replace the rule with the trustworthiness standard adopted by the United States

Supreme Court in Opper v. United States.6 Id., at 925. The court held, however, that Texas law

recognizes a closely-related-crimes exception to strict application of the corpus delicti rule, but

qualified that the “exception applies only when the temporal relationship between the offenses is

sufficiently proximate that introduction of the extrajudicial confession does not violate the policies

underlying the corpus delicti rule.” Id., at 927. It then reversed the judgment of the court of

appeals and reinstated the defendant’s sentences on the three uncorroborated counts. Id., at 929.

           We think the present case is distinguishable from Miller. In Miller, the offenses confessed

to all occurred during a twenty-seven-day period, and the court repeatedly emphasized the

exception it had created requires the temporal proximity of the offenses to be sufficiently close so

that introduction of the confession does not violate the purposes of the corpus delicti rule. Id., at

927–29. Although the court did not provide a general time frame that would satisfy the proximity

requirement, it did favorably cite in its analysis an Alabama case7 in which the court had required

independent evidence for only one offense when the defendant had confessed to multiple sex

crimes over a three-month period. Id., at 927. But here, the alleged crimes occurred over a much

longer period. The alleged encounter involving P.V. occurred on or about September 1, 2011.


6
    Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954).
7
    Drumbarger v. State, 716 P.2d 6, 12 (Ala.Ct.App. 1986).

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The next encounter—that against K.R.—was alleged to have occurred March 1, 2012, precisely

six months later.    The last encounter—involving I.G.—was alleged to have occurred on

October 1, 2012. All told, the three alleged encounters giving rise to the charged offenses

occurred over a period spanning a little over a year—substantially longer than the twenty-seven-

day period in Miller or the three-month period in the favorably cited Alabama case. Further, in

Miller the offenses were all committed against a single individual—the defendant’s daughter.

Miller, 457 S.W.3d at 920. Here, the offenses were alleged to have been committed against three

different victims and there was no evidence that the victims were even aware of Miranda’s

involvement with the others until the allegations became public. Therefore, we do not think the

temporal connection between the offenses confessed by Miranda to be sufficiently close to warrant

application of the closely-related-crimes exception to the corpus delicti rule; to hold otherwise

would violate the purposes of the rule. Id., at 927. Because no evidence was presented that

independently corroborated Miranda’s confession regarding his offenses committed against P.V.,

his stand-alone confession was legally insufficient to establish guilt beyond a reasonable doubt.

Nisbett, 552 S.W.3d at 263; Fisher, 851 S.W.2d at 302–03; Dansby, 530 S.W.3d at 224. As a

result, we must sustain Miranda’s third issue as to Counts I (improper relationship) and VII (sexual

performance of a child younger than 18 years).

                                         CONCLUSION

       Having sustained Miranda’s third issue in part, we reverse Miranda’s convictions as to

Counts I and VII and render a judgment of acquittal as to those counts. Having overruled

Miranda’s remaining issues, we affirm the trial court’s judgment as to Counts III (improper

relationship) and V (sexual assault of a child younger than 17 years). See TEX.R.APP.P. 43.2(c).


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November 9, 2018
                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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