                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00303-CR

                                      Fredys Antonio VARELA,
                                              Appellant

                                                v.
                                             The State
                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR3463
                             Honorable Melisa Skinner, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 16, 2014

AFFIRMED

           A jury found appellant, Fredys Antonio Varela, guilty on three counts of aggravated sexual

assault of a child and five counts of indecency with a child by contact. In five issues on appeal,

appellant asserts (1) the trial court erred in denying his motion to suppress, (2) he was denied his

right to counsel of choice, and (3) the trial court erred by commenting on the weight of the

evidence. We affirm.
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                                         BACKGROUND

        Late one evening, appellant called his church pastor, Carlos Castan, crying and mentioning

suicide. Castan realized appellant was emotionally upset and invited him to his house to talk.

During their conversation, appellant told Castan he was sexually abusing his eight-year-old son,

J.C. After speaking with appellant for several hours, the two agreed on a plan to have J.C.’s aunt

take care of him for the immediate future and for appellant to meet with Castan and a senior pastor

two days later.

        When the three met, Castan informed the senior pastor of appellant’s admissions. When

confronted by the senior pastor, appellant confirmed the admissions were true and the senior pastor

called the police. Officer Arthur Knox and Officer Roger Rodriguez responded to the call. When

they arrived, they found appellant crying on the floor of the senior pastor’s office. Castan informed

the officers that appellant spoke only Spanish. Although Officer Rodriguez spoke Spanish, Officer

Knox did not. The senior pastor and Castan explained the situation to the officers. While appellant

was speaking with Castan and the senior pastor, Officer Rodriguez overheard appellant admit to

sexually assaulting his son.

        After speaking with the pastors, Officer Knox contacted Detective Robert Valadez of the

San Antonio Police Department Special Victims Unit. Detective Valadez instructed the officers

not to question appellant, but to instead ask whether appellant was willing to voluntarily go to the

police station to provide a statement. The officers informed Castan of Detective Valadez’s request,

which Castan translated for appellant. Appellant agreed he would voluntarily speak to the police

at the police station.

        Officer Rodriguez drove appellant to the police station and escorted him to an interview

room. Officer Knox picked up J.C. from school and they also went to the police station. Detective

Valadez first interviewed J.C., who confirmed appellant sexually assaulted him. J.C. also provided
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additional details about the sexual assault that appellant had yet to give. After concluding his

interview with J.C., Detective Valadez interviewed appellant. Both an audio and video recording

of the interview was made. Although the recording is in Spanish, a transcription and translation

of the interview were also admitted. The video shows prior to conducting the interview, Detective

Valadez read appellant Miranda warnings. Detective Valadez testified he did so because appellant

arrived at the police station in a patrol vehicle rather than his personal vehicle.

       During the interview, appellant made several incriminating statements regarding sexually

assaulting J.C. At the conclusion of the interview, appellant was allowed to leave the interview

room and meet with a Child Protective Services representative in the lobby of the Special Victims

Unit. Subsequently, Detective Valadez obtained a warrant and appellant was arrested. The jury

convicted appellant on all eight counts.

                                    MOTION TO SUPPRESS

       Appellant filed a pre-trial motion to suppress the statements he made to Detective Valadez

arguing he was in “custody” for purposes of Miranda. In his first issue, appellant asserts the trial

court erred in denying his motion to suppress because the trial court erred in finding he was not

subjected to custodial interrogation when he made the incriminating statements to Detective

Valadez. In issues two and three, appellant asserts that because he was subjected to custodial

interrogation (1) the statements he made violated his right to counsel under the Fifth and

Fourteenth Amendments to the United States Constitution, and (2) he did not knowingly,

intelligently, and voluntarily waive his right to counsel as required by article 38.22 of the Texas

Code of Criminal Procedure. The State argues at the time the statements were made, appellant

was not the subject of a custodial interrogation. We agree with the State.




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1. Standard of Review

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

Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). The trial court is the sole trier of

fact and judge of the weight and credibility of the evidence. Wiede v. State, 214 S.W.3d 17, 24–

25 (Tex. Crim. App. 2007). “The appellate court must apply a bifurcated standard of review,

giving almost total deference to a trial court’s determination of historic facts and mixed questions

of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review

to pure questions of law and mixed questions that do not depend on credibility determinations.”

Martinez, 348 S.W.3d at 922–23. We must uphold the trial court’s ruling if it is supported by the

record and correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d

736, 740 (Tex. Crim. App. 2007).

       Generally, we are restricted to a review of the record as it existed at the time of the

suppression hearing. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012); Rachal v. State,

917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, when the State, as here, raises the

suppression issues at trial “either without objection or with subsequent participation in the inquiry

by the defense,” we may consider the record in its entirety. Black, 362 S.W.3d at 635; Turrubiate

v. State, 415 S.W.3d 433, 437 (Tex. App.—San Antonio 2013, pet. ref’d).

2. Custodial Interrogation

       In Miranda v. Arizona, the United States Supreme Court established warnings to safeguard

a person’s constitutional privilege against self-incrimination during custodial interrogation.

Miranda v. Arizona, 384 U.S. 436, 442–57 (1966). Miranda warnings are required before

statements made during custodial interrogation may be admitted as evidence in a defendant’s trial.

Id. at 444–45; see also TEX. CODE CRIM. PRO. art. 38.22 (West 2005) (requiring similar warnings).

However, the State is only required to show compliance with Miranda, or the warnings required
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by article 38.22, when a defendant establishes the statements he seeks to suppress were the product

of custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); see

also Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.—Austin 1997, no pet.) (“Miranda and

article 38.22 apply only to statements made as a result of custodial interrogation. They are not

applicable to statements resulting from noncustodial interrogation.”).

       Custodial interrogation is questioning by law enforcement officers after a person has been

taken into custody or deprived of his freedom of action in any significant way. Miranda, 384 U.S.

at 444; Herrera, 241 S.W.3d at 525. A person is in custody if, under the circumstances, “a

reasonable person would believe that his freedom of movement was restrained to the degree

associated with formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)

(citing Stansbury v. California, 511 U.S. 318, 322 (1994)).

       We apply a two-step analysis to determine whether an individual is in custody. Martinez

v. State, 131 S.W.3d 22, 32 (Tex. App.—San Antonio 2003, no pet.). First, we examine all the

objective circumstances on an ad hoc basis to determine whether a person is in custody. Id. Such

circumstances include “the location of the questioning, its duration, statements made during the

interview, the presence or absence of physical restraints during the questioning, and the release of

the interviewee at the end of the questioning.” Howes v. Fields, 132 S. Ct. 1181, 1189 (2012)

(internal citations omitted). Given those circumstances, we then consider whether a reasonable

person would have felt he was not at liberty to terminate the interview and leave. Martinez, 131

S.W.3d at 32. The record as a whole must “clearly establish” the defendant’s statement was the

product of custodial interrogation. Herrera, 241 S.W.3d at 526. The defendant bears the burden

to prove a statement was the product of custodial interrogation. Gardner v. State, 306 S.W.3d 274,

294 (Tex. Crim. App. 2009). The ultimate inquiry is simply whether there was a formal arrest or



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restraint on freedom of movement of the degree associated with formal arrest. Estrada v. State,

313 S.W.3d 274, 294 (Tex. Crim. App. 2010).

       During appellant’s motion to suppress hearing, the trial court heard testimony from Officer

Knox, Officer Rodriguez, and Detective Valadez. Detective Valadez testified he instructed the

responding officers not to question appellant, but to instead ask whether appellant would be willing

to voluntarily travel to the police station to provide a statement. Both Officer Rodriguez and

Officer Knox testified appellant voluntarily accompanied Officer Rodriguez to the police station

and was placed in the backseat of the patrol car without handcuffs. Officer Rodriguez also testified

appellant was not handcuffed or restrained when he escorted him to the interview room, nor was

he restrained while he was in the interview room. The video recording confirms appellant was not

restrained, had water, and had access to his cell phone while in the interview room.

       Although appellant and Castan did not testify during the suppression hearing, they later

testified during trial. Castan testified appellant admitted to sexually assaulting J.C., and confirmed

appellant voluntarily agreed to go to the police station to provide a statement. However, Castan

contradicted the officers’ testimony that appellant was not handcuffed when he was placed in the

back of the patrol car. During appellant’s testimony, he refuted Officer Rodriguez, Officer Knox,

Detective Valadez, and Castan’s testimony that he voluntarily chose to go to the police station to

provide a statement. However, appellant conceded he was not under arrest during the interview.

He also denied admitting to sexually assaulting his son to Castan, the senior pastor, and Detective

Valadez, arguing he was recalling abuse he suffered as a young child.

       On appeal, appellant contends because he previously admitted to committing a crime, the

interview with Detective Valadez was “designed to elicit a confession to a crime they already

believed that appellant had committed.” As a result, appellant argues the interview with Detective

Valadez constituted custodial interrogation and appellant could therefore avail himself of the
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Miranda safeguards. However, neither being the focus of a criminal investigation nor being

questioned at a police station, without more, necessarily equates to custodial interrogation. See

Oregon v. Mathiason, 429 U.S. 492, 495–96 (1977); Martinez, 131 S.W.3d at 33. When the

circumstances show that a person is acting only upon the invitation, request, or even urging of law

enforcement, and there are no threats, either express or implied, that he will be taken forcibly, the

accompaniment is voluntary, and such person is not in custody. Dancy v. State, 728 S.W.2d 772,

778–79 (Tex. Crim. App. 1987); Martinez, 131 S.W.3d at 32. Consequently, the fact appellant

may have been the subject of a criminal investigation did not convert his voluntary interview into

custodial interrogation.

       Appellant also contends the fact Detective Valadez chose to read him Miranda warnings

is further evidence he was subjected to custodial interrogation. However, Detective Valadez

testified he read the Miranda warnings “in case anything was ever raised as to [the voluntariness

of appellant’s presence,]” or simply as a precautionary measure. Mere recitation of Miranda

warnings is more indicative of proper cautiousness than it is of the officer’s intent to arrest. See

Dancy, 728 S.W.2d at 777; Bates v. State, 15 S.W.3d 155, 159 (Tex. App.—Texarkana 2000, pet.

ref’d). Thus, Detective Valadez’s reading of Miranda warnings did not transform his subsequent

questions into custodial interrogation.

       All of the testimony given at the suppression hearing, as well as Castan’s testimony during

trial, indicates appellant voluntarily went to the police station to provide a statement. There was

no evidence of express or implied threats that appellant would be forcefully taken to the police

station if he chose not to voluntarily provide a statement. Although appellant’s testimony

regarding the voluntariness of his presence at the police station contradicted the testimony of the

other witnesses, as the sole trier of fact and judge of the weight and credibility to give witness

testimony, the trial court was free to believe or disbelieve any part of the testimony as it saw fit.
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Reviewing all the circumstances surrounding appellant’s interview, we conclude the record

supports the trial court’s determination that appellant was not in “custody” when he made the

complained of statements to Detective Valadez. Consequently, neither Miranda nor article 38.22

prohibits the admission of appellant’s statements to police. Accordingly, the trial court did not

abuse its discretion in denying appellant’s motion to suppress.

                SIXTH AMENDMENT RIGHT TO COUNSEL OF CHOICE

       In his fourth issue, appellant asserts he was denied his Sixth Amendment right to counsel

of choice. Specifically, appellant argues the trial court erred by denying his motion for continuance

on the opening day of trial so that he could hire an attorney to replace appointed counsel.

       The constitutional right to the assistance of counsel includes the right to obtain that

assistance from retained counsel of one’s choosing. United States v. Gonzalez-Lopez, 548 U.S.

140, 144 (2006); Gonzalez v. State, 117 S.W.3d 831, 836–37 (Tex. Crim. App. 2003). However,

the right to counsel of choice is not absolute. A trial court has wide latitude in balancing the right

to counsel of choice against the needs of fairness and the demands of its calendar. Gonzalez-Lopez,

548 U.S. at 151–52. “Trial judges necessarily require a great deal of latitude in scheduling

trials. . . . Consequently, broad discretion must be granted [to] trial court[s] on matters of

continuances; only an [unreasonable] and arbitrary ‘insistence upon expeditiousness in the face of

a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy,

461 U.S. 1, 11–12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).

       A defendant’s right to select his own counsel cannot be manipulated so as to obstruct

orderly court procedure or to interfere with the fair administration of justice. Webb v. State, 533

S.W.2d 780, 784 (Tex. Crim. App. 1976). A defendant may not wait until the day of trial to

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

counsel. Id. When competent counsel is available and fully prepared to represent the defendant,
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a trial court does not abuse its discretion by denying an untimely request for continuance based on

the unavailability of the defendant’s counsel of choice. Slappy, 461 U.S. at 12–13.

       In this case, appellant waited until the day of trial to request a continuance in order to hire

a new attorney. His appointed counsel was present and fully prepared for trial. Appellant does

not allege his appointed counsel rendered ineffective assistance, and he offers no reason why the

trial court should have delayed his trial so he could retain a different lawyer. Accordingly, we

conclude the trial court did not violate appellant’s constitutional right to counsel by refusing his

untimely request for a continuance for the purpose of retaining new counsel.

                      COMMENT ON THE WEIGHT OF EVIDENCE

       In his fifth issue, appellant asserts the trial court improperly commented on the weight of

evidence in the jury charge. Specifically, appellant complains of the emphasized language in the

following portion of the jury charge:

       To ensure that the jury, the court and the parties are all receiving the same
       testimony, whenever a party or a witness does not speak English, the services of an
       interpreter are employed. The interpreters used by the court are highly competent,
       and are well versed in the idioms of both languages; you may place your complete
       confidence in them.

       You are further instructed that you as the jury are to base your deliberations on the
       interpretations as they came from the interpreters in the English language.

(emphasis added).

       On appeal, appellant asserts the State relied heavily on his statements to the police.

Appellant argues that because the instruction vouched for the credibility of the interpreter, the

instruction was an improper comment on the weight of the evidence. Assuming, without deciding,

that the jury charge constituted error, we nonetheless conclude appellant was not harmed.

       A trial court is required to give the jury a written charge “setting forth the law applicable

to the case; not expressing any opinion as to the weight of the evidence, not summing up the


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testimony, discussing the facts or using any argument in his charge calculated to arouse the

sympathy or excite the passions of the jury.” TEX. CODE CRIM. PRO. ANN. art. 36.14 (West 2007).

A trial court is prohibited from making a statement that comments on the weight of the evidence

in the jury charge. See id.

       Because appellant did not object at trial, we review to determine whether appellant suffered

egregious harm. See Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Egregious harm deprives a defendant of a

fair and impartial trial. Arrington v. State, 413 S.W.3d 106, 112 (Tex. App.—San Antonio 2013,

no pet.). Errors that result in egregious harm are those that affect “the very basis of the case,

deprive the defendant of a valuable right, or vitally affect a defensive theory.” Id. (internal

quotations omitted). “[O]ne of our considerations in the determination of egregious harm is

whether the error related to a ‘contested issue.’” Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim.

App. 1996) (quoting Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App. 1985)). In examining

the record for egregious harm, a reviewing court should consider (1) the entire jury charge, (2) the

state of the evidence, including contested issues and the weight of probative evidence, (3) the final

arguments of the parties, and (4) any other relevant information revealed by the record of the trial

as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

       The jury charge in this case correctly set out the statutory definitions of aggravated sexual

assault of a child and indecency with a child by contact. The jury charge did not emphasize the

complained of instruction, and the instruction is found only once within the twenty-seven page

jury charge. No other portion of the jury charge impacts or references the alleged error.

       Both defense counsel and the State made closing arguments. However, neither defense

counsel nor the State mentioned the instruction or the competency of the interpreter during closing

arguments.
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       The State also introduced extensive evidence in this case. J.C. testified appellant sexually

assaulted him on numerous occasions. The probative value of J.C.’s testimony alone, which has

no relation to the alleged jury charge error, would have been sufficient to support a conviction.

See Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref’d) (testimony of

victim alone sufficient to support sexual assault conviction). In addition to J.C.’s testimony,

Castan, Officer Rodriguez, and Detective Valadez also testified to appellant’s admissions of

sexually assaulting J.C. The evidence also included the video recording of Detective Valadez’s

interview with appellant and the transcription and translation of the interview. At no time during

the trial were the credentials of the interpreter or the accuracy of the translation contested issues.

Appellant’s defensive theory was simply that he did not commit the complained of acts against

J.C., arguing he was recalling the sexual abuse he suffered as a young child himself.

       Based on our review of the entire record, we do not believe the alleged error affected the

very basis of the case, deprived appellant of a valuable right, or vitally affected his defensive

theory. Nor do we believe appellant was deprived of a fair and impartial trial. Accordingly, we

conclude appellant was not egregiously harmed.

                                          CONCLUSION

       We conclude the trial court did not err in denying appellant’s motion to suppress,

appellant’s right to counsel of his choice was not violated, and appellant was not egregiously

harmed by the jury charge. Therefore, we affirm the trial court’s judgment.



                                                   Sandee Bryan Marion, Justice


Do not publish




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