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Lopez v. State

Court of Appeals of Texas, Fourth District, San Antonio

June 27, 2018

Delfino LOPEZ Jr., Appellant
v.
The STATE of Texas, Appellee

          From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2015CRN001126 D4 Honorable Oscar J. Hale Jr., Judge Presiding

          Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice

          OPINION

          Patricia O. Alvarez, Justice

         A Webb County jury found Appellant Delfino Lopez Jr. guilty of the felony murder of eleven-month-old Delfino Lopez III, and assessed punishment at sixty-years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Lopez contends the trial court erred in (1) denying his motions to suppress statements made to officers of the Laredo Police Department and an investigator with Child Protective Services, and (2) failing to include limiting instructions, regarding the voluntariness of Lopez's statements, in the jury charge. Lopez also asserts the trial court erred in (1) refusing to allow him to argue for an acquittal during closing arguments, (2) admitting autopsy photographs, and (3) overruling defense counsel's objection to the State's improper jury argument. We affirm the trial court's judgment.

         Factual and Procedural Background

         On July 30, 2015, Laredo Emergency Responders were dispatched to the home of Delfino Lopez Jr. and Noemi Rodriguez, for an unresponsive "11-month old patient possibly having a seizure." The baby was transported to Laredo Medical Center Emergency Room. Dr. Jaime Pinero, Delfino III's[1] treating physician, testified the child showed signs of multiple bruises at different stages of healing, the child was posturing (suggesting severe brain trauma causing involuntary movement), and the baby was very small for his biological age. Dr. Pinero diagnosed Delfino with a traumatic brain injury, subdural hematoma, and transtentorial herniation, all of which appeared to be caused by a "repeated physical abuse in a short span of time." Delfino was transported to University Hospital in San Antonio where he died several days later, on August 3, 2015.

         Based on the severity of the baby's injuries, the hospital case manager, Betty Salinas, contacted Child Protective Services, a program within the Department of Family and Protective Services. While treatment was still ongoing for Delfino, Dr. Pinero also reported his findings to Laredo Police Department Officer Gerardo Quiroz. Detective Charlie Rosales was dispatched to the Lopez residence and Detective Robert Ramirez to the emergency room. After confirming the doctor's diagnosis and opinion that the parents' version of events was inconsistent with the injuries suffered by the child, the detectives requested Lopez and Rodriguez, who was nine-months pregnant, accompany them to Laredo Police Department for further interviewing.

         Rodriguez was transported in Detective Ramirez's unmarked vehicle and Lopez was transported in Officer Quiroz's marked patrol vehicle. Both detectives testified that neither Lopez nor Rodriguez were in custody, both voluntarily accompanied the officers to the police department, and both voluntarily provided statements to the officers. Out of precaution, and based on standard protocol, both individuals were Mirandized prior to the start of the video-recorded interviews. Lopez, however, contends the officers did not fully comply with article 38.22 of the Texas Code of Criminal Procedure, the Texas statutory equivalent of Miranda. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). Specifically, Lopez argues the officer failed to warn him that he had the right to terminate the interview. See Tex. Code Crim. Proc. Ann. art. 38.22, sec. 2(a)(5) (West 2018) ("[the accused] has the right to terminate the interview at any time").

         After Lopez provided his statement to Detective Rosales, an arrest warrant was obtained and he was placed under arrest for injury to a child with serious bodily injury. While Lopez was being processed by the police department, CPS Special Investigator Jose Gonzalez arrived at the police department. Detective Primo Guzman informed Investigator Gonzalez that the officers were finished questioning Lopez and agreed to allow Investigator Gonzalez an opportunity to talk to Lopez prior to his being transported to Webb County Jail. Lopez then provided a statement to Investigator Gonzalez, echoing much of what he had previously relayed to Detective Rosales. The charges against Lopez were upgraded to felony-murder when Delfino subsequently passed away several days later.

         We turn first to Lopez's assertion the trial court erred in overruling his pretrial motions to suppress the statements given to CPS Special Investigator Gonzalez and Laredo Police Department Detective Rosales.

         Motions to Suppress

         A. Standard of Review

         An appellate court reviews a trial court's ruling on a motion to suppress using a bifurcated standard of review; we "afford almost total deference to a trial court's determination of the historical facts that the record supports." Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); accord Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). A reviewing court must

give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo.

Wilson v. State, 442 S.W.3d 779, 783 (Tex. App.-Fort Worth 2014, pet. ref'd) (citations omitted); see also Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).

         B. Interview Conducted by CPS Investigator

         1. When Miranda Warnings are Required

         "In Miranda v. Arizona, the Supreme Court held that 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) (footnote omitted) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). Texas requires compliance with Texas Code of Criminal Procedure article 38.22 for the State to use any statement stemming from an interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22; Nonn v. State, 117 S.W.3d 874, 880 (Tex. Crim. App. 2003); State v. Aguilar, 535 S.W.3d 600, 605 (Tex. App.-San Antonio 2017, no pet.). A custodial interrogation is any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Wilkerson, 173 S.W.3d at 526 (quoting Miranda, 384 U.S. at 444). 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 who are working for or on behalf of . . . law-enforcement [officers]." Id. at 527-28. The question this court must decide is whether the CPS investigator was "working for or on behalf of" the Laredo Police Department. See id. at 528; Aguilar, 535 S.W.3d at 605 ("Although CPS workers are state agents, their state employment alone does not render them law enforcement agents for [the] purpose of 'defining a custodial interrogation.'") (quoting Berry v. State, 233 S.W.3d 847, 855 (Tex. Crim. App. 2007)).

         In Wilkerson, the Court of Criminal Appeals set out the different jobs and responsibilities for a law enforcement officer versus a CPS caseworker. "It is law enforcement's job to ferret out crime, investigate its commission, arrest the perpetrator, and gather evidence for a possible prosecution." 173 S.W.3d at 528; accord Aguilar, 535 S.W.3d at 605. The goal of CPS workers "is to protect the welfare and safety of children in the community," which necessarily includes examining family placement and safety matters to the extent of investigating child abuse claims or reporting statutorily required suspected child abuse to law enforcement authorities. Wilkerson, 173 S.W.3d at 528; accord Aguilar, 535 S.W.3d at 605. As this court previously explained,

[T]heir paths converge when there is an allegation that "a child has been or may be the victim of conduct that constitutes a criminal offense that poses an immediate risk of physical or sexual abuse of a child that could result in the death of or serious harm to the child[.]"

Aguilar, 535 S.W.3d at 605 (citing Tex. Fam. Code Ann. § 261.301(f) (West Supp. 2018))(second alteration in original).

         Although CPS investigators are state-agency employees, when they investigate family placement and safety matters, Miranda and article 38.22 warnings are not required. Wilkerson, 173 S.W.3d at 528 (citing Tex. Code Crim. Proc. Ann. art. 38.22); Aguilar, 535 S.W.3d at 605. However, if the police and the CPS investigator are investigating the criminal offense together, or "in tandem," the CPS investigator is an agent of the police and Miranda and article 38.22 warnings may be necessary. Wilkerson, 173 S.W.3d at 528; accord Aguilar, 535 S.W.3d at 605.

         The Wilkerson Court set forth three areas of inquiry to determine whether the CPS investigator was working "in cahoots" with or as a "conduit" for the law enforcement officer. Wilkerson, 173 S.W.3d at 531; Aguilar, 535 S.W.3d at 606.

         First, the relationship between law enforcement and the CPS worker: Was law enforcement using the investigator to accomplish what they could not lawfully accomplish? See Wilkerson, 173 S.W.3d at 530; Aguilar, 535 S.W.3d at 606. The court should consider, inter alia, whether the police knew about, arranged for, or were present during the interview; whether police provided the interviewer with the questions to ask, gave implicit or explicit instructions to obtain certain information; and whether this was a calculated attempt to evoke an incriminating response from the defendant during the interview. See Wilkerson, 173 S.W.3d at 530; Aguilar, 535 S.W.3d at 606.

         Second, the CPS investigator's actions and perceptions: Did the CPS worker "believe he was acting as an agent of law enforcement?" Wilkerson, 173 S.W.3d at 530; Aguilar, 535 S.W.3d at 606. The court should consider, inter alia, whether the interviewer's primary reason for questioning the person was for gaining information and evidence for a criminal prosecution or related to some other goal; how did the interviewer become involved in the case; whether the interviewer provided information to law enforcement that led to the defendant's arrest; whether the interviewer was pursuing another goal or performing another duty; and who requested that the interviewer question the defendant? See Wilkerson, 173 S.W.3d at 530; Aguilar, 535 S.W.3d at 606.

         And, third, the defendant's perceptions of the encounter: Whether a reasonable person would believe the investigator was an agent of law enforcement. See Wilkerson, 173 S.W.3d at 530; Aguilar, 535 S.W.3d at 606. Here, the court should consider, inter alia, did the "defendant believe that he was speaking with a law-enforcement agent, [or] someone cloaked with the actual or apparent authority of the police?" Wilkerson, 173 S.W.3d at 530; Aguilar, 535 S.W.3d at 606. And if the answer was yes, why? Wilkerson, 173 S.W.3d at 530.

         2. Special Investigator Gonzalez's Relationship to Laredo Police Department

         Special Investigator Gonzalez testified during the motion to suppress hearing. Investigator Gonzalez had been with CPS for over six years after retiring from the Laredo Police Department. He was contacted on July 30, 2015, by the statewide CPS office in Austin, Texas, regarding the child death case of Delfino Lopez III.[2] He was notified the parents were at the Laredo Police Department. When he arrived, Investigator Gonzalez spoke briefly with Sergeant Guzman, who "filled [him] in on the details, . . . [b]asically what was going on. They had a case, a dead child, a suspect, and his wife, that they were interviewing them." The officers suspected Lopez was the individual that caused the injuries to Delfino. Sergeant Guzman agreed to Investigator Gonzalez's request to speak to Lopez, who was in the process of being processed-"pictures, fingerprints, stuff like that"-before being transported to the jail. Although Investigator Gonzalez never asked, he acknowledged on cross-examination that he could reasonably assume by Lopez's location and the action being taken by the officers, that Lopez had been placed under arrest. Investigator Gonzalez, however, asserted that he was not concerned about Lopez's classification at the police department; his agency was working a case that was changing almost hour by hour. Once Lopez moved to the jail, the process to see him would be very complicated. "[Investigator Gonzalez had his] agency want[ing] to know what happened, what's happening in the case, almost hour, by hour. So [he had] to get to the major witnesses as soon as [he could] and as soon as [he had] an opportunity." While Investigator Gonzalez spoke to Lopez, his associate, CPS Special Investigator Sylvia Rojas, spoke to Rodriguez.

         Investigator Gonzalez testified that he introduced himself to Lopez; he explained that he was from Child Protective Services. Investigator Gonzalez was not wearing a badge or gun. Investigator Gonzalez further explained that although Lopez's freedom of movement may have been restricted by the Laredo Police Department, nothing on the part of CPS, their investigation, or the statement being taken, affected Lopez's ability to leave the room, talk to the investigator, or not talk to the investigator. It is undisputed that Investigator Gonzalez did not provide Miranda warnings or comply with article 38.22 of the Texas Code of Criminal Procedure.

         Investigator Gonzalez acknowledged pursuant to section 261.301(f) of the Texas Family Code, his paperwork and his agency considered the case a "joint investigation" with the Laredo Police Department. See Tex. Fam. Code Ann. § 261.301(f). Yet, Investigator Gonzalez explained that the term "joint investigation" is simply a computer-generated term:

State law requires that when there's an injury or a sexual abuse of a child, that there be two investigations made; one by law enforcement for criminal purposes and one by CPS for the protection of the child. And if we [CPS] get the report first, then we have to notify law enforcement. Then if they get the report first, they have to notify CPS. And that's what they call a joint investigation. . . .

         Investigator Gonzalez testified that, during his interview with Lopez, he was alone with Lopez, no one from the Laredo Police Department or any other law enforcement agency requested that he ask Lopez any questions, and he did not help the police department in their investigation. Investigator Gonzalez was conducting the interview of Lopez, on behalf of CPS, "in order to determine the state of the of the child or any remaining siblings."

         The questions asked of Lopez were part of a global assessment-designed to solicit information about the family environment and family life. Their conversation was not recorded, and Investigator Gonzalez testified that he wrote his report and submitted the report to his agency. He did not submit the report to the Laredo Police Department and did not receive any requests that he do so.

         3. Analysis under Wilkerson

         As required, we analyze Investigator Gonzalez and Lopez's interview and the investigator's relationship with the Laredo Police Department under all three areas of inquiry identified in Wilkerson. See Wilkerson, 173 S.W.3d at 530.

         First, although Investigator Gonzalez worked for the Laredo Police Department for twenty-nine years, his testimony-that his investigations with CPS were separate and distinct from those conducted by the police department-was uncontroverted. See id. (looking at entanglement of relationship between officers and CPS investigators). Investigator Gonzalez's presence at the police department was not at the behest of law enforcement, but at the request of CPS. See id.; cf. Aguilar, 535 S.W.3d at 608 (explaining the police department called CPS, the CPS investigator met the officers at the crime scene before interviewing the defendant, and officer told investigator defendant confessed). Additionally, although the officers allowed Investigator Gonzalez to use an interview room at the police department, they did not arrange for the interview, they were not present during the interview, and they did not provide Investigator Gonzalez with questions to ask or information to be obtained. See Wilkerson, 173 S.W.3d at 530; see also Hailey v. State, 413 S.W.3d 457, 483 (Tex. App.-Fort Worth 2012, pet. ref'd) (considering strength of law enforcement's case before CPS interview and lack of evidence police used CPS interview "to accomplish what they could not lawfully accomplish themselves").

         Second, Investigator Gonzalez testified, unequivocally, that he conducted a child death investigation, on behalf of CPS and at the request of CPS; his sole purpose was to determine the safety and welfare of the remaining child in the home. Although law enforcement officers' questioning of Lopez, as part of a police investigation, was to determine whether a crime was committed, Investigator Gonzalez's purpose in inquiring whether Delfino had been a victim of abuse or neglect was to determine the safety and welfare of Delfino's two-year-old sister. See Wilkerson, 173 S.W.3d at 530; cf. Aguilar, 535 S.W.3d at 609 (concluding investigator had sufficient information to determine existence of child abuse or neglect before interviewing defendant because he had already met with medical examiner who provided cause of death, met with officers at least twice, and knew defendant had confessed to offense). Affording deference to the trial court's rulings, Wilson v. State, 442 S.W.3d 779, 783 (Tex. App.-Fort Worth 2014, pet. ref'd), the record supports that Investigator Gonzalez was not acting on behalf of the Laredo Police Department; did not discuss his interview with, or provide copies of his report to law enforcement officers; or assist law enforcement officers in preparing their criminal case for prosecution. See Wilkerson, 173 S.W.3d at 530; Hailey, 413 S.W.3d at 484 (noting record does not reflect CPS investigator assisted police in building criminal case against defendant).

         Third, although there is no direct testimony regarding Lopez's perception of whether he believed Investigator Gonzalez was an agent of law enforcement, we examine the record to determine whether a reasonable person would believe the investigator was an agent of law enforcement. See Wilkerson, 173 S.W.3d at 530. Investigator Gonzalez was not wearing a badge, gun, or law enforcement uniform. He identified himself as a CPS investigator and explained why he was questioning Lopez. There were no other law enforcement officers in the room, Lopez had only been at the police department for a short period of time, and the interview took place in a different location than the law enforcement interview. Cf. Aguilar, 535 S.W.3d at 610.

         Lopez bore the burden to prove his statement to Investigator Gonzalez was a product of a custodial interrogation by an agent of law enforcement. See Wilkerson, 173 S.W.3d at 532. Viewing the evidence in the light most favorable to the trial court's ruling, and deferring to the trial court's explicit and implicit findings of fact, see Montanez, 195 S.W.3d at 106, we conclude the trial court did not abuse its discretion in finding (1) that Investigator Gonzalez did not act as an "agent of law enforcement" when he conducted the interview of Lopez, or (2) that such interview was not "for the primary purpose of gathering evidence or statement to be used in a later criminal proceeding against" Lopez, see Wilkerson, 173 S.W.3d at 530; Ripstra v. State, 514 S.W.3d 305, 316 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd); Hailey, 413 S.W.3d at 484. Accordingly, we conclude the trial court did not err in denying the motion to suppress Lopez's statement given to CPS Investigator Gonzalez.

         Having concluded the statement was properly admitted before the jury, we consider the content of that testimony.

         4. Lopez's Statement to Special Investigator Gonzalez

         Investigator Gonzalez testified that Lopez told him several things about how the baby sustained the injuries.

He told me that he had been depressed for some time and that he left his job because he didn't feel he was being paid enough. And then he told me that the birthday party for his two children, [V.L.] and Delfino, [was] coming up in August and he didn't have any money.

         Lopez continued that his sisters owned their own homes, but he did not. His father was older and his mother was very sickly. The night before Delfino was injured, Lopez and Rodriguez went to bed around 11:00 p.m. Rodriguez woke up at approximately 3:00 a.m. and 5:00 a.m. to care for Delfino. The last time he remembered Rodriguez getting out of bed was 11:00 a.m.

[Lopez] said that he couldn't tell [Gonzalez] how many hours had passed, but a couple of hours passed, and then the baby started crying. So [Lopez] changed the baby's diaper-baby Delfino's diaper-and the baby still wouldn't stop crying.
So he said that he shook the baby and he motioned like this. (Demonstrating) He demonstrated, and then he said the baby stopped crying. But then he said the baby started crying again. So he said that he then threw the baby on the bed.

         Investigator Gonzalez questioned Lopez's version, explaining that Delfino had bruises on his head, ...


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