## In the Court of Appeals Second Appellate District of Texas at Fort Worth

____________ _______________ No. 02

- 19

- 00163

- CR

________ ____ _______________

On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1478948D
Before Gabriel, Kerr, and Birdwell, JJ. M emorandum Opinion by Ju stice Birdwell 

### C RISTIAN 

### F AVELA 

### P EREZ AKA 

### C RISTHIAN 

### F AVELA 

### P EREZ 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORAND UM OPINION
In t wo po ints, Appellant C ristian Favela Perez complains of his conviction for
continu ous sexual abuse of a child

. See Tex. Penal Code Ann. § 21.02. Because his
video

- recorded confession to police was vo luntary and the tri al court ’ s admission of possible juveni le extraneous sexual offe nse s was not reversible error, we overrule his two points and a ffirm the trial court ’ s judgm ent. Background
In October 2016, Perez walked into an Arlington Police Department station

a nd o rally confessed to sexu a lly abusing Marie , 1 a family member

. Officer Vincent
Va squez testified t hat Perez stated that he had touched Marie ’ s br easts , vagina, an d

anus over the previous eight years, beginning when Marie was three or fou r. Perez
then ex ecuted the followin g written statemen t: I, C rist hian Perez, have touched [Marie ] for the past 8 or five years and I feel as if I need to voluntarily give myself up as p ea cefully a s possible to the law of Texas. I think it, being t he molestation, s tarte d when she was 4 year s old and I may have been 15 and this continued on and off for eight or five years and stopped two summers ago. I touc hed her vagina and bu ttox [ sic] an d breasts , and regret my detrim []ental mistakes. I hope m e coming in w ill ease he r mental state becaus e she ’ s possibl y suicidal.
Afte r his oral c onfessi on to Officer Vasquez and his execution of the written

stat ement, Detective Mary Tenorio interv iewed Perez

. A vid eo recording of the

1 In accorda nce with rule 9.10(a)(3) an d our local rules , we r efer to children and family members by aliases. Tex. R. App. P. 9.10(a)(3); 2nd Tex. App. (Fort Worth) L oc . R. 7.3 intervie w was admitted and shown to the jury. In it , Detective Tenorio began the interview by a sking Perez for his basic information

— name, address

— and then
readi ng him his rights. After reading each individual right , she asked if he u nd erstood , to which he s a id yes. When finished, she asked him to sign a card sta t in g each of his
Miranda rights, and he did.
Perez then provided a detailed con fession of multiple instances of his sexual
abuse of Marie

. Throughou t, h is demeanor rem ained calm, but 37 minutes into the interview, he t old Detective Tenorio that he had given up on school because of plans

to kill himself and that he was feeling “ a little su icidal ” right then. He start ed crying,
and he told D etective Tenorio t h at he had thought about how he would kill himself

a nd , “ It[ would] be a little easier on everyone else if I was dead

. ” At t hat point,
Detective Teno rio text messaged her s erge ant about her concerns for Perez ’ s men ta l health and wellbeing

. Later in th e i nterview, he again mentioned that he had
conside red how to kill himself and thought about buyi ng a gun. When De tective Tenorio asked, “ Do you f eel like you might kill yourself if you leave here today ? ” h e

answere d, “ Yes. ” He mentioned tha t he had previou sly been d iagnosed with and

t aken m edication for dep ression but had stopped taking the medication about a y ear prio r. After fifty minutes , Detective Tenorio stepped out to complete paperwork,
le aving Perez alone in t he interview room. Perez can be heard o n the video recording

mut tering, “ I wish I coul d kill myself right now, ” praying, and w hisper ing a ser ies of
numbers over and over. At times, he appeared to be crying. Eventually, De tective4 Tenorio retur n ed and e xplained t hat two officers would e scort Pe rez to J ohn P eter S mith hospital for a mental evaluation.
Perez was sub sequently charged with continuous sexual assault , three counts of

a ggravated sexual assault, and th re e counts of indecency with a child by co ntact. See
Tex. Penal C o de Ann. §§ 21.02 (b) , 2 1 .11(a) , 22.021 (a)

. Two mo nths after his confession, MHMR a ssessed P erez ’ s mental health and
concluded that he had a mental illness

— depression

— but was not inc om pe tent to stand tria l and did not need a competency evaluation, though it did recommend a
psy chiatric evaluation. A mo nth after that , upon the req uest of P erez ’ s trial counsel, the trial court appointed Dr. Barry Norman to evaluate Perez and ass is t in his defense.
Dr. Norman c oncluded that Perez was incompetent to stand trial and recommended
his commitment , and the trial court ado pted his o pinion in February 2017. A year later, the trial co urt concluded that Perez rem ained i nc ompetent and extende d P ere z ’ s commitmen t
. 2 It noted its findings that Perez had been diagnosed as bipo lar , was likely to cause serious harm to oth ers, and was suffering severe and abnormal mental,
emotional , or physical distress; was experiencin g deterio ration of his a bility to
functio n independently, exhibit ed by his inability to provide for his needs ; and was
unable to ma ke a rational and informed decision as to whether or not to submit to

treatment. A few months later, Perez was fo un d competent to stand t rial.

2 The S t ate a nd t he defense counsel agreed in February 2017 and February 2 018 that Perez was incompetent to stand trial

.5 After a t hree

- day trial in April 2019, Perez was found guilty of continu ous sexual abuse and indecency with a ch i ld and se ntenced to 75 and 20 years ’
confinement , respectively.
Discussio n
In his first po int, Per ez argues t hat his confession s to police were improperly
admitted because his mental state re ndered his statements involuntary

. In his secon d, he argues tha t the trial court erred by allowing ev idence of extraneous sex ual offe nses committe d by him a s a juvenile. We disagree with Perez on both points.
I. Voluntariness of Statement s In a hearing held out side the jury ’ s presence and before any testimony was

re ceived , Perez aske d the trial court to su p pre ss the r ecorded inter view becau se it was
involunta rily made due to his mental state
. He did not lodge such an ob ject ion to the
admission o f his wri tten confession or Officer Vasquez ’s testimony to Pere z ’ s oral
confession , and by failin g to do so , Perez forfeit ed any suc h argument on appea l. Tex. R. App . P. 33.1(a)(1); Thomas v. State , 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). We therefore overrule the portions of his fir st point relating to th ose

statements an d wi ll only address his v oluntarine ss argument as it r elates to the video

recorded interview

. 3

3 In light of Perez ’ s forfeiture , we need not addre ss the State ’ s a rgument that Tex as Code of Crim inal Proc edure A r ti cle 38.22 d id n ot apply to Perez ’ s v erbal confession to Officer Vasquez.6 The trial court denied Perez ’ s request to suppress the video int erview an d
found that Perez ’ s statements were voluntary based on its review of the recording

. It

re served addit ional findi ngs for after Detec tive Tenorio ’ s and Officer Vas quez ’ s testimony, at which time it stated the following on the record and ou tside the jury ’ s presence : The defendant was not in custody a t the time he gave both the recor de d st ate ment and the writ ten stateme nt. He was taken t o an interview roo m . He was

- - the interview room was appropriately

- - appeared to be appropriately clim ate

contr olled and of adequate size. The defendant was no t interviewed while we aring cuffs. T he i nter view lasted appr oximately a n hour and 10 minut es. The interview w as recorded. The Court did review the recording of the interview admitted as State ’ s 1. There a ppeared to be no gaps or missing portions of the interview. Defendant w as re ad hi s Mira nda ri ght s despite n ot being in custody, and the y comply

- - those Miranda rights complied with 38.22. The defendant indicated

- - the defendant indicated he understoo d his rights and, understanding those rights , weigh ed them and continued to speak wi th D etecti ve Tenorio. T he defendan t did not appear to be intoxicated. He appeared to have his mental faculties , and there was no co ercion on the part of D etective Payne. Despite the fact that defendant stated he was depressed, it did not appear that h is men tal fac ul ties were l ost at the time he gave either of these statements based upon the evidence. He was not hearing voices. He did not appear to be ha llucinati ng. Thou gh he was depressed and appeared to have

- - possibl y want to harm himself, that di d no t affec t his volunta rine ss and his

- - any mental issues he was having did not overcome his voluntariness to give this statement. The defendant did n ot ask to s top the i nterview , nor did he invoke any right to counsel. He did not appear to be under t he i nfluence of a contro lled substa nce.7 Court finds th ere was no police overreaching or coercion in the interview of the defend ant. Th e defendant [sic] was not over lengt h y so as to overcome the will of the defendant, and any mental issues that he was hav ing d id n ot overco me the will of the def endant. The defend ant ’ s statement was made under voluntar y conditions. Court therefore finds t he def endant did knowingly, in te llig ently, an d voluntarily waive any rights , and that his statement, both State ’ s Exhibit 4 a nd S tate ’ s Ex h ibit 2 as well as Sta te ’ s Exhibit 1, [ 4 ] were voluntarily made. [ 5 ]
We review a trial court ’ s decision to admit evidence for an abuse of discre tion,
par ticularly whe n , as here, its admissibility is determ ined based on an evalu ati on of t he
credibi lity an d de meanor o f the witnesses. S ee Guz man v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Franks v. State , 90 S.W.3d 771, 78 4 (Tex. App.

— Fort Worth
2002 , no pet. )

. A tr i al court abuse s its d is cretion if its ru ling f a lls outsid e the z one o f

reaso nable disag reement. Henl ey v. State , 493 S.W.3d 77, 82

– 83 (Te x. Crim. App. 2016). A determination of the voluntary nature of a co nfession must be based upon an examination of the totality of the circumstances surro und ing it s acquisiti on. Cl ifton
v. Sta te , 755 S.W.2 d 556, 559 (Tex. App.

— Fort Worth 1988 , no writ ). A wa iver of
Miranda rights must be voluntary in the sense that it was the product of free and

4 State ’ s Exhibit s 1 an d 2 are both the sa me video

- r ecorded interv iew. For reasons uncle ar in the record, only Sta te ’ s Exhibit 2 was a dmitted.

5 The trial court gr an ted Perez ’s re q uest for the inclusion in the guilt /innocence jury charge of a voluntariness instruction regard ing his statements. See Oursbourn v. State , 25 9 S.W.3d 1 59 , 181 (Tex. Crim. App. 20 08) (holding defendant ’s bipolar disorder and ev id ence that he w a s in a de pressed or mani c state at time of confession raised a voluntariness question for the j ury under A rticle 38.22 )

.8 deli berate choice rather than inti midation, coercion , or dec e pt ion ; a n d it must be
made with full a warenes s both of th e nature of the right being abandoned and the consequences of the decision to aba n don it. Franks , 90 S.W

. 3d at 7 85 ; see also Tex.
Code Cr im. Proc. Ann. art. 38.22, § 3 (a)(2) (requiring oral stateme nts be ma d e after
th e accus ed knowingly , intelligent ly, an d voluntarily waives his Miranda rights). Perez challenges only the second dimension of this inquir y: whether h e was fully a ware of the nature of the rights he abandoned and the consequences of th at abando n ment. 6
In other words, the tr ial co urt wa s taske d with determining whether Perez ’ s mental
illness was so severe that he was incapable of understanding the meani n g and effect of
his s tatement. See Franks , 90 S.W.3d at 785 (citing Casias v. State , 4 52 S.W

. 2d 483, 488 (Tex. Crim. App. 1 970) , and Re ed v. State , 59 S.W.3d 278, 281

– 82 (Tex. App.

— Fort Worth 2001, pet. ref ’ d) )

. Having reviewed the record and the record ed in terview, we c annot say that the
trial court abused its d i scretion by finding that Pe re z ’ s sta t ements wer e volun tarily
made. De tectiv e Tenorio read Perez his Miranda right s at the very beginning of the

6 Becaus e he does not accuse the o fficers of in timidation , coercion , or dec eption in arguing that his statement was inv ol untar y, his du e process claim fails as a matter of law. “ [C]oercive police activity is a necessary predicate to t he finding that a
c onfession is not ‘ voluntary ’ within the meanin g of the Due Process Clause of the Fourteenth Amendment. ” Colorado v. Conn el ly , 479 U.S. 1 5 7, 167 , 1 07 S. Ct. 515, 522 ( 1986) ; s ee also Rip kowski v. State , 61 S.W.3d 378, 384 (Tex. Crim. App . 2001 ) ( “ If appell ant ’ s coca ine use and mental diso rde rs alone im pelled him t o confess, tha t is of no constitutional c onse quence. ” ). We th er efore overrule his due p rocess arguments and will only address his arguments that the admission of the intervie w v iolated A rticle 38. 22 ’ s volun tariness requirement

.9 hour

- and

- ten

- minute

- long interview, and she stopp ed after reading e ach individual right to confirm that Perez underst ood and affirmatively wa ive d t h at right. He

con firmed that he u nderst ood, weig hed them, and e xpressed his desire to continue speaking with Detective Tenorio. Throughout the interview, Pe rez appeared cogni zant and oriented. He did state that he was depressed and possibly sui ci d a l, bu t it was within th e trial cour t ’ s discre tion to d etermine that this alone did not undermine his ability to knowingly and voluntarily waive his rights. S e e Ri pkowski , 61 S.W.3d at 383

– 84 ( holding trial court was entitled to believe State ’ s wi tness es regard i n g defendant ’ s ac knowledgment of receip t of warn ings , appear ance of understanding, and voluntary waiver, rather than defendant ’ s expert ’ s testimony t hat volu ntariness

was fata lly undermin ed by a combination of stressful conditions, bipolar disord er, and

c o c aine binging). Having hel d the t rial c ourt d id not abuse its di scretion by finding Perez ’ s interview statements were voluntarily made, we overrule his first point

. II. Extra neous - off ense evidence
Perez ’ s second point takes issue with the tri al court ’ s allowance of tes timony
reg arding ac t s of se xu al abuse committed by Perez as a juvenile. He presents four

s ub

- issues within his argument : (1) the evidence ’ s a dmission violate d t he continuous

sex ual

- abuse statute ’ s requirement that the State prov e that Pe r ez was seventeen or old er at the ti me of the abuse ; (2 ) the evidence was offered only for character

conformity purposes and was u nfairly prejudicial ; (3) the eviden ce confuse d the jury ;10 and (4) the evidenc e was not admissible under Texas Code of Crimi nal Procedu r e A rticle 38.3 7

. Bu t h e onl y pres erved t he first and last a r gument s ; he did not present the second and third arguments to the trial court and therefore f orfe ited them. 7 Tex. R. App . P. 33.1(a)(1) . We therefore overru le h is arguments that the extra neous

offense evidence was unfairl y prej udicial or confusing or wa s inadmissible character conformity evidence

. See Tex. R. Evid. 403, 404

. Pere z was charged with sexual ly abu s ing Marie beginning on his sevent eenth birthday in M ay 2009 and c ontinu ing unti l May 2016 , with six predicate off enses alleged

. Perez a rgued t hat admission of any evidence of offenses co m mitted prior to his turning seventeen would be no mor e than an improper attempt to “ bootstrap or
backdoor ” juvenil e co ndu ct on whi c h the State c a nnot co nvict without cert if

ication o f
Pere z as an adult. But the State agreed that it could not obtain a conviction of Perez
based on any conduct commit ted as a juvenile , and instead asserted that juvenile

extrane ous

- of f

ense evid e n ce was admiss ible under Article 38.37

. The trial c ourt
agre ed wit h th e State and gav e the following limiting instruction to the jury once the

e viden ce was admitted : Members of the jury, you are instructed that if ther e is an y testimo n y before you i n this case regarding the defendant ’ s having co mmitted offenses ot h er tha n the offenses alleged a gainst him in the indictment in

7 Bef ore trial, Perez filed a “ Trial Objec ti on Number T wo (Extran eous) , ” in which he objec te d to “ the admi s sion of a ny extraneous offense evidence as vi o lations of Article 38.37 . . . , as well as Texas Evi den ce Rules 403 [ an d] 404

. ” But in our review of the r ecord, we h ave not disc overed any poi nt when he presented his Rule 403 or 404 objections a nd obtained a ru l ing.11 this case, wheth er as an adult or a juvenile, you cannot consider said testimony for any purpose unl ess you find and believe be yond a reasonable doubt tha t the defendant comm itted such other of f

enses, if an y were committed

. A nd even then you may only consider the same in determining the mot ive, plan, opportunity, intent, preparation, knowledge, i dent ity, ab sen ce of m istake or acci dent of the defendant, if any , in connection wi th the offense s , if any, a lleged against him in the indictment in this case or as to the relati onship of the parties a nd for no other purpose. You are not to consider any crimi nal act ivity all e ged to have be en committed while the defendant was a juvenile for purposes of cr i minal respon sibility of the offense or offen ses charged. A juvenile is an individual under 17 year s of age.
The trial court ’ s r uling was ba sed on Ar tic le 38.37 ’ s allowance of : [E] vidence of other crimes , wrongs, or acts committed by the defendant against the c hild who is the victim of the all eged offe nse shall be admitted for its bearing on relevant matters, including: (1) the state o f mi nd of the de f endant and the child; and (2) the previous and subsequent relationship betwee n the defendant and the chil d [

. ]

. . . . [E] vidence that the de fendant has committed a separate offense [of , among others, continu ous sexual abuse of a child, in dece ncy with a
c h ild, or sexual assault or aggravated sexual assault of a chi ld , or a n attempt o r conspiracy to commit such offen ses] m ay be admitted in the trial of an alleged [continuous

- sexual

- abuse o ffense ] for any bearing the evidence has on relevant matt ers , inclu d i n g the characte r of the d efendant and acts performed in co nfo rmity with the char acter of the defendan t. Tex . Code Crim. Proc. Ann. art. 38.37 § § 1( b) , 2 (b). But in Perez ’ s estimation, th is exception

— as it was applied by the trial court

— “ sw allo ws the rule l imiting convic tion12 for continu ous sexual abuse to acts commi tted after the age of seventeen. ” We disagree

. Pere z a ver s that Artic le 38.37 can only apply to those extrane ous offense s committed by the non

- juvenile defendan t bec aus e a n indi v idual cannot b e convicted
of continuous sexual abuse unless they are over the age of seventeen ; in other words, they were n ot a “ defen dant ” a t the time they committed the juvenile extrane ous offenses

. But h e cites no su p port fo r his arg u ment , and we h ave not found any such support in our own res earch. Rather, his argument asks us to read something in to the plain wording of t he sta tute that is not there

— an invitation tha t we are legally obligated to decline

. See Lopez v. St a te , 600 S.W. 3 d 43, 45 (T ex. Crim. App. 2020) ( “ Statutory construction depend s on the plain mean ing of the statute ’s l anguage unless it is ambiguous or the plain meaning would lead to absurd results . . . . If the plain meaning is not ambiguous or does no t le ad to abs u rd results , we do not consider

e xtra

- textual factors. ”) . If the l e gislatur e had inten ded Article 38.37 to a pply only to
those extraneous off enses committed by the defendant once they rea ched the age o f majority, it would have said so. Mi les v. State , 50 6 S

. W

. 3d 48 5, 487 (Tex. Crim. App. 2016) ( “ [W] e assume that the legi slature means what it said and derive the statute ’ s meaning from the words that the legislature used. ” )

. Perez ’ s argumen t that this e xception swallows the State ’ s burden of proof i s fata l ly undermi ned by the fact that

— as the State candidly admitted

— a con tinuous

sexual

- abus e convicti on may only be upheld by sufficient evidence th at the accused

was seventee n when he committed two or more acts of sexual abuse against the chil d13 o ver a period o f thirty d ays or more. S ee Tex. Penal Code Ann. 21.02. Tel lingly,
Perez makes no com plaint rega rding the sufficiency of the evidence underlyi ng his
conviction. Finally, Article 38.37 goe s to the admissibility of the evidence

— a concept

t hat is separable from the w eight to be assigned to the evidence by the fa ctfinder in determining the su fficiency of the evidence to support each element of the crime

. S e e Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017 )

. We are not persuaded th at the trial c ourt abuse d its di scretion by determining

t hat the juvenile

- extrane ous

- offense evidenc e was admissible under Article 38.37

. We
therefore overrul e Pere z ’ s second point.
Con clusion Having over ruled Perez ’ s points, we affirm the trial court ’ s judgment. /s/ Wade Birdwell
Wa d e Birdwell Justice
Do Not Publis h Tex. R. App. P. 47.2(b)
Delive red : Nov e m ber 19 , 2020