Court of Appeals of Texas, Fourth District, San Antonio
the 406th Judicial District Court, Webb County, Texas Trial
Court No. 2015CRN001126 D4 Honorable Oscar J. Hale Jr., Judge
Angelini, Justice Rebeca C. Martinez, Justice Patricia O.
Patricia O. Alvarez, Justice
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.
and Procedural Background
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 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,
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.
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
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.
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.
Standard of Review
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).
Interview Conducted by CPS Investigator
When Miranda Warnings are Required
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)).
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
[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
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.
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.
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.
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.
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.
Special Investigator Gonzalez's Relationship to
Laredo Police Department
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. 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.
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.
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
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. . . .
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
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.
Analysis under Wilkerson
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.
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
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).
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.
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.
concluded the statement was properly admitted before the
jury, we consider the content of that testimony.
Lopez's Statement to Special 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.
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.
Gonzalez questioned Lopez's version, explaining that
Delfino had bruises on his head, ...