                          NUMBER 13-13-00010-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JUAN OLIVAREZ,                                                           Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 105th District Court
                          of Nueces County, Texas.


                       MEMORANDUM OPINION
          Before Justices Rodriguez, Benavides and Longoria
             Memorandum Opinion by Justice Benavides
      By two issues, appellant Juan Olivarez appeals his convictions for six counts of

aggravated sexual of a child younger than six years old, see TEX. PENAL CODE ANN. §

22.021 (West 2011), and two counts of indecency with a child.   See id. § 21.11 (West

2011). We affirm.
                                      I.       BACKGROUND

         A Nueces County grand jury indicted Olivarez on six counts of aggravated sexual

assault of a child,1 see id. § 22.021, and two counts of indecency with a child.               See id. §

21.11.       Olivarez was tried by a Nueces County jury, and the following evidence was

presented at trial.

         Olivarez dated the complainant’s mother (C.G.) in late 2010.             Olivarez, C.G., and

the complainant (M.G.), then age five, eventually moved in together at an apartment

complex. Three months later, however, C.G. and M.G. moved out to live with C.G.’s

parents, but C.G. continued to date Olivarez.           One day in May 2011, C.G. bathed M.G.

and noticed that M.G.’s vaginal area was “really red” and “irritated.” According to C.G.,

M.G. told her that Olivarez had touched her vagina and anus after school in the

apartment where the three of them used to live.             C.G. testified that she notified M.G.’s

pediatrician, who directed C.G. to take M.G. to Driscoll Children’s Hospital for an

appropriate examination.        Once at Driscoll Hospital, hospital workers told C.G. that they

were going to notify child protective services and the Corpus Christi Police Department.

         M.G. also testified. Through the use of demonstrative dolls, M.G. testified that

Olivarez touched her vagina and anus with his hand and his penis “more than one time.”

M.G. also stated that Olivarez showed her a video of “a boy and a girl” doing stuff

“together” and “wearing no clothes.” M.G. recalled one instance in which Olivarez put

his penis into M.G.’s vagina and afterward went to the restroom to retrieve a Kleenex and

“spread yellow pee on it” from his penis.         M.G. testified that the “yellow pee” would also
         1
          The State termed the offense “super aggravated sexual assault of a child” and referenced section
22.021 of the penal code. The State is referring to aggravated sexual assault of a child under the age of
six, which, if proved, carries a minimum punishment of twenty-five years’ imprisonment. See TEX. PENAL
CODE ANN. § 22.021(2)(f)(1) (West 2011). For purposes of clarity, we will refer to the charge simply as
“aggravated sexual assault of a child.”

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come out after Olivarez put his penis in her anus.      M.G. stated that she did not tell her

mother about the incidents after they happened because M.G. thought that C.G. would

“feel sad and scared,” which in turn would make M.G. sad.

       Olivarez testified in his own defense and denied all of the allegations.      According

to Olivarez, M.G. would hit him “in the groin” in front of C.G.       Additionally, Olivarez

testified that M.G. grabbed his hand and put it on her “crotch,” but he “pushed [M.G.]

away,” but then M.G. would lean on top of him as if it was “some kind of game.”

       The jury found Olivarez guilty on all counts. The trial court assessed punishment

at   seventy-five   years’   imprisonment    in   the   Texas    Department     of    Criminal

Justice—Institutional Division for Counts One, Two, Three, Four, Five and Six each, and

at twenty years’ imprisonment for Counts Seven and Eight each. The trial court further

ordered the sentences in Counts One, Two, Three, and Seven to run concurrently, but

consecutive to the sentences in Counts Four, Five, Six, and Eight, which were ordered to

run concurrently.   This appeal ensued.

                             II.    MOTION TO SUPPRESS

       By his first issue, Olivarez asserts that the trial court committed reversible error by

denying his motion to suppress a recorded audio interview with a Texas Department of

Family and Protective Services (TDFPS) investigator.

       A. Standard of Review

       A trial court’s ruling on a motion to suppress evidence is reviewed on appeal

under a bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007). We must give “almost total deference to a trial court's determination

of the historical facts that the record supports especially when the trial court's fact


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findings are based on an evaluation of credibility and demeanor.”                          Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc).                    Additionally, we should afford the

same amount of deference to a trial court's rulings on “application of law to fact

questions,” also known as “mixed questions of law and fact,” if the resolution of those

ultimate questions turns on an evaluation of credibility and demeanor.                        Id. We review

de novo mixed questions of law and fact that do not depend on credibility and demeanor.

Amador, 221 S.W.3d at 673.

        B. Discussion

        Olivarez sought to suppress his audio interview conducted by TDFPS investigator

Bernadette Molina at the Nueces County jail. 2                       Olivarez argues that Molina was

“working implicitly on behalf of the police when she interviewed [Olivarez] at the jail.” As

a result, Olivarez contends that the statements made during the interview were the result

of a custodial interrogation by an agent of the police (Molina). Olivarez further argues

that because it was a custodial interrogation, Molina violated his Fourth Amendment

rights for failing to administer his Miranda warnings. We disagree.

        As a general rule, the State may not use any statements stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.                     Wilkerson v. State, 173

S.W.3d 521, 526 (Tex. Crim. App. 2005) (citing Miranda v. Arizona, 384 U.S. 436, 444

(1966)). These procedural safeguards do not apply, however, to all types of custodial

questioning. Wilkerson, 173 S.W.3d at 526. Instead, it applies only to questioning by

        2
          Olivarez filed a pre-trial motion to suppress on this issue, but the trial court did not address it until
the time of trial, in a hearing outside the presence of the jury, when the State sought to admit the recorded
interview into evidence. The audio disk that was admitted into evidence at trial was not included in the
record on appeal. Thus, it was unavailable for our review.

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law enforcement officers or their agents.     See id.   “State agents” are those who are

working for or on behalf of police.   See id. General employees of the State are not, by

themselves, “agents of the State” for purposes of defining custodial interrogation under

Miranda.   Id.; see Paez v. State, 681 S.W.2d 34, 37 (Tex. Crim. App. 1984) (en banc).

Consequently, not all government workers must be familiar with and ready to administer

Miranda warnings or comply with the statutory procedural requirements of article 38.22.

Wilkerson, 173 S.W.3d at 526; see TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005).

       A criminal defendant who alleges that an individual acted as an agent of the police

has the burden to prove it. Wilkerson, 173 S.W.3d at 529.       If the defendant meets this

burden and shows that this individual is working for or on behalf of the police by

interrogating a person in custody, then that agent is bound by all constitutional and

statutory confession rules, including Miranda and article 38.22.   See id.; Cantu v. State,

817 S.W.2d 74, 75–77 (Tex. Crim. App. 1991). While numerous factors are to be

considered, the bottom-line inquiry for our court is whether the custodial interview was

conducted (explicitly or implicitly) on behalf of the police for the primary purpose of

gathering evidence or statements to be used in a later criminal proceeding against the

interviewee.   Wilkerson, 173 S.W.3d at 531.            Put more colloquially:    was the

interviewer “in cahoots” with the police?   Id.

       At trial, Molina testified that she interviewed Olivarez at the jail as part of her

duties with TDFPS. According to Molina, part of her duties upon receiving an alleged

child sexual abuse report is to contact the child’s family, schedule an interview with the

child, as well as set up an interview with the accused. As part of her investigation in this

case, Molina met with C.G., M.G., and Olivarez’s daughter-in-law, Clarissa.      During her


                                             5
meeting with Clarissa, Clarissa informed Molina that Olivarez had been arrested and

was in custody at the Nueces County Jail.     Later that day, Molina visited Olivarez at the

Nueces County Jail.    Molina testified that at that point in her investigation, she had no

memory of discussing the case with Detective Daniel Rodriguez, who was investigating

the case on behalf of the Corpus Christi Police Department.       According to Molina, the

specific purpose for visiting Olivarez at the jail was to “inform him that a report had come

into the office involving him and to review the allegations and to also get a response back

to those allegations.” Molina stated that she respects an alleged perpetrator’s request

to have an attorney present or a refusal to talk to her without an attorney present.

       Outside the jury’s presence, Molina testified that her goal is not to get an

admission from the defendants in the cases she is investigating.      Instead, her goal is to

let the accused know that a report had been filed against them. Additionally, Molina

testified that she gave Olivarez “many opportunities” to end the conversation, but “he

kept giving [Molina more] information.” During questioning by the State, Molina testified

that Detective Rodriguez (1) did not ask her to interview Olivarez; (2) did not indicate that

he would like her to interview Olivarez; and (3) did not give her an idea of what questions

to ask Olivarez.   Molina also stated that during the interview, she did not give Olivarez

any indication that she was working on behalf of law enforcement.         Finally, Detective

Rodriguez stated in earlier trial testimony that he did not direct Molina to do anything

during his investigation, and did not have any authority over Molina or any other TDFPS

investigator.

       We conclude that Olivarez did not meet his burden to establish that Molina was




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working for or on behalf of the police by interrogating Olivarez in custody. 3 See id. at

529. Thus, Molina was not required to Mirandize Olivarez, and the trial court did not err

in denying the motion to suppress on this basis.                See Wilkerson, 173 S.W.3d at 531.

Accordingly, his first issue is overruled.

                              III.    ADMISSIBILITY OF EVIDENCE

        By his second issue, Olivarez asserts that the trial court erred by allowing C.G. to

testify regarding Olivarez’s awareness of the allegations against him from a handwritten

apology letter that was admitted into evidence.

        A. Preservation of Error

        As a threshold matter, we must first determine whether Olivarez properly

preserved error for review.          See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App.

2009) (“Preservation of error is a systemic requirement that a first-level appellate court

should ordinarily review on its own motion.”).            Generally, error is preserved if the record

shows that (1) a specific complaint was made to the trial court by request, objection, or

motion; and (2) the trial court ruled on the complaint or refused to rule and the party

objected to the refusal.       See TEX. R. APP. P. 33.1(a). To be timely, an objection must

be made as soon as the basis for the objection becomes apparent.                       Lagrone v. State,

942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (en banc).

        Olivarez complains about the following exchange between the State and C.G.

regarding an apology letter written by Olivarez after the allegations against him surfaced:

        THE STATE:                       So if he says he’s sorry [in the letter], do you
                                         think he knows?


        3
           We also note that Olivarez’s trial counsel admitted during the suppression hearing that he did not
offer any testimony to show that Molina was acting on behalf of the police.

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       C.G.                         Yes.

       DEFENSE COUNSEL:             Objection.    Calls for speculation.

       THE STATE:                   Well, I’m going to make the connection here in
                                    just a moment if I may have a bit of leeway.

       THE COURT:                   Okay.

       Olivarez argues that C.G.’s testimony violated rules of evidence 701 and 704.

See TEX. R. EVID. 701 (opinion testimony by lay witness), 704 (opinion on ultimate issue).

However, we conclude that the objection was made after the complained-of question

was asked and answered, and was therefore not preserved error for appeal.          Juhasz v.

State, 827 S.W.2d 397, 401 (Tex. App.—Corpus Christi 1992, writ denied) (citing Polk v.

State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987) (“to preserve error on appeal by way

of an objection alone, the objection must come before the tangible evidence which is

clearly objectionable is admitted, or the question manifestly calling for objectionable

testimony is answered in front of the factfinder”).

       Even assuming without deciding that Olivarez properly preserved error for appeal,

we conclude that the trial court’s ruling that allowed the testimony was not an abuse of

discretion.     See Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997)

(“Whether an opinion meets the fundamental requirements of Rule 701 is within the

sound discretion of the trial court and its decision regarding admissibility should be

overturned only if it abuses its discretion.”). C.G. testified that she and Olivarez saw

each other every day until the allegations against him surfaced and then she began to

ignore his phone calls.    C.G. testified that Olivarez would “start to worry” if they did not

see each other every day.      It was not until this point that C.G. received the letter from

Olivarez.     Therefore, this testimony, when read along with the complained of question

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and answer, was an opinion based on C.G.’s perception of the situation, did not call for

an opinion on an ultimate issue, and supports the trial court’s decision to admit the

evidence and did not amount to an abuse of discretion.      See id. Olivarez’s second

issue is overruled.

                                  IV.    CONCLUSION

       We affirm the trial court’s judgment.


                                                      __________________________
                                                      GINA M. BENAVIDES,
                                                      Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
25th day of July, 2013.




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