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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