Brian James Lopez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 31, 2023
• Docket: 07-23-00106-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00107-CR No. 07-23-00106-CR

BRIAN JAMES LOPEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Potter County, Texas Trial Court Nos. 081085-B-CR, 081086-B-CR, Honorable Dan Schaap, Sitting by Assignment

October 31, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Brian James Lopez, was convicted of aggravated sexual assault of a

child1 and online solicitation of a minor.2 The sentences for both offenses were enhanced

due to a prior final felony conviction.3 Appellant was sentenced to incarceration for thirty-

1 See TEX. PENAL CODE ANN. § 22.021.

2 See TEX. PENAL CODE ANN. § 33.021(c), (f).

3 See TEX. PENAL CODE ANN. § 12.42. two years for the aggravated sexual assault charge and fifteen years for the online

solicitation of a minor charge. Appellant presents two appellate issues. We overrule his

issues and affirm the judgments of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant’s issues challenge the trial court’s denial of his pre-trial motion to

suppress his judicial confession and the trial court’s denial of access to certain evidence

that Appellant contends could be exculpatory. We will thoroughly discuss the facts

relevant to these issues in our analysis of each and will provide a brief summary of the

facts here for context.

Twenty-six-year-old Appellant was discovered having sex with a thirteen-year-old

girl, M.R., by the child’s father. The father tracked M.R. through her cell phone. About a

week later, M.R.’s mother notified the Amarillo Police Department about the assault. The

police identified Appellant as the suspect. The police set up a sting operation in which an

officer, using M.R.’s phone, posed as her and communicated with Appellant. Appellant

and the purported child agreed to meet to have sex. When Appellant arrived at the

meeting spot, he was arrested.

Appellant gave a statement to the police in which he admitted having sex with M.R.

even though he knew that she was only thirteen years old. He was indicted for the

offenses of sexual assault of a child and online solicitation of a minor. Prior to trial,

Appellant filed a motion to suppress his statement contending that he had requested an

attorney prior to giving the statement. The trial court concluded that Appellant’s request

to call his attorney was not an unequivocal request to have an attorney present during

2 questioning and denied his motion. Subsequently, Appellant requested access to juvenile

court records pertaining to the child victim to see if those records contained any

exculpatory evidence. The trial court referred this request to the county court at law,

which denied Appellant’s request. Appellant pleaded guilty to the charged offenses but

preserved his right to appeal the trial court’s denial of his motion to suppress. After

holding a punishment hearing, the trial court sentenced Appellant to incarceration for

thirty-two years for the aggravated sexual assault charge and fifteen years for the online

solicitation of a minor charge. Appellant timely filed the instant appeal.

By his appeal, Appellant presents two issues. By his first issue, Appellant

contends that the trial court erred in denying his motion to suppress his judicial

confession. By his second issue, Appellant contends that his statutory and constitutional

rights were violated when his request to discover exculpatory evidence was denied.

MOTION TO SUPPRESS

Appellant’s first issue contends that the trial court erred in denying his motion to

suppress his judicial confession that was obtained through custodial interrogation. We

conclude that Appellant did not establish that his request for an attorney was clear and

unequivocal.

The Fifth Amendment to the United States Constitution affords suspects the right

to have an attorney present during police interrogation and applies to any offense about

which the police might wish to question a suspect. State v. Gobert, 275 S.W.3d 888, 892

(Tex. Crim. App. 2009). Police must advise a suspect who is in custody that he has the

right to have counsel present during any police-initiated interrogation. Id. Once the

3 suspect invokes his right to counsel, police interrogation must cease until counsel has

been provided or the suspect himself reinitiates a dialogue. Id. A suspect invokes his

right to counsel when he clearly and unambiguously requests the presence of an attorney

during questioning. Lucas v. State, 791 S.W.2d 35, 45–46 (Tex. Crim. App. 1989).

“Whether a statement referring to a lawyer constitutes a clear request for counsel

depends on the statement itself and the totality of the circumstances surrounding the

statement.” Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim. App. 2010). “[C]onditional

statements in which a suspect indicates that he ‘might’ want an attorney, as well as

generalized questions asked by a suspect seeking to clarify his rights, are typically not

considered an unambiguous expression invoking the right to counsel.” Jones v. State,

No. 05-18-00640-CR, 2020 Tex. App. LEXIS 6072, at *12–13 (Tex. App.—Dallas July 31,

2020, pet. ref’d) (mem. op, not designated for publication).

As part of its investigation into the sexual assault of M.R., the Amarillo Police

Department conducted an in-custody interrogation of Appellant. At the beginning of the

interview, Detective Luke Nelson read Appellant his rights and had him sign an

acknowledgment that he received the warnings and understood them. As part of these

warnings, Nelson informed Appellant that he had the right to a lawyer and to have a lawyer

present during questioning. At the time that Nelson informed Appellant of this right,

Appellant stated, “I do got a lawyer. Can I call him?” Nelson indicated that he needed to

finish reading the warnings and then Appellant could make a decision. While reading the

warnings, Nelson repeatedly asked Appellant if the warnings made sense and Appellant

responded that they did. After he finished reading the warnings, Nelson asked Appellant

if he wanted to communicate with Nelson. Appellant said, “Yeah.” Soon afterward,

4 Nelson explained to Appellant that he was deciding whether he wanted to answer some

of Nelson’s questions without his attorney. In response, Appellant stated, “Yeah, it’s

cool.” In describing the written warnings that he asked Appellant to sign, Nelson

explained, “That’s just saying you’re cool with talking to me without a lawyer. Is that

correct?” Again, Appellant answered, “Yes.” Immediately after this, Nelson reminded

Appellant that he could change his mind about speaking with Nelson at any time.

Following this exchange, Appellant confessed, both orally and in writing.

Prior to trial, Appellant filed a motion to suppress his confession on the basis that

he requested an attorney prior to Nelson’s interrogation that led to his confession. After

holding a hearing, the trial court denied Appellant’s motion concluding that Appellant’s

question asking whether he could call his attorney was not an unequivocal request for an

attorney. Texas case law has established that a question such as Appellant’s is not an

unequivocal assertion of the right to counsel. See Martinez v. State, No. 07-11-00473-

CR, 2012 Tex. App. LEXIS 8994, at *12 (Tex. App.—Amarillo Oct. 30, 2012, pet. ref’d)

(mem. op., not designated for publication) (suspect asking, “Can I get a lawyer in here?”

not a clear and unambiguous request for an attorney); Mbugua v. State, 312 S.W.3d 657,

665 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (suspect asking, “Can I wait until my

lawyer gets here[?]” did not clearly state a firm, unambiguous, and unqualified request for

counsel); Gutierrez v. State, 150 S.W.3d 827, 832 (Tex. App.—Houston [14th Dist.] 2004,

no pet.) (op. on remand) (suspect asking, “Can I have [a lawyer] present now?” was

ambiguous and did not clearly invoke suspect’s right to counsel); Flores v. State, 30

S.W.3d 29, 33–34 (Tex. App.—San Antonio 2000, pet. ref’d) (suspect asking, “Will you

5 allow me to speak to my attorney before?” not a clear and unambiguous invocation of

right to counsel).4

Appellant contends that his question was an unequivocal assertion of his right to

have counsel present during questioning. However, Appellant does not cite any case law

to support his assertion that his question constituted an unequivocal assertion of his right

to counsel. Further, Appellant does not attempt to distinguish any of the cases cited

above that conclude that the sort of question asked by Appellant is not a clear and

unequivocal request. Additionally, Appellant does not identify how, under the totality of

the circumstances, his question, “Can I call him?” constituted a clear and unambiguous

assertion of the right to counsel. Because Appellant has failed to establish that the trial

court abused its discretion in denying his motion to suppress, we overrule Appellant’s first

issue.

ACCESS TO JUVENILE RECORDS

Appellant’s second issue contends that the trial court violated his statutory and

constitutional rights to discovery of exculpatory and mitigating evidence by denying his

motion to discover juvenile records relating to M.R.

During the investigation of this case, the prosecutor received an email containing

an incident report referencing a third-party juvenile offender, which identified M.R. as the

victim. The State made the report available to Appellant in discovery. However, the

4 But see State v. Soto, Nos. 04-19-00427-CR, 04-19-00428-CR, 04-19-00429-CR, 2020 Tex. App.

LEXIS 8458, at *15 (Tex. App.—San Antonio Oct. 28, 2020, pet. ref’d) (mem. op., not designated for publication) (upholding trial court’s determination that suspect’s question, “Can I call my lawyer, sir[?]” was, under the totality of the circumstances, an unambiguous and unequivocal request for counsel).

6 prosecutor subsequently withdrew the document from the discovery portal out of concern

that the information should not have been released. Appellant filed a motion for discovery

of the juvenile records related to the incident report. The trial court accepted Appellant’s

pleas of guilty to each charged offense without expressly addressing the motion relating

to the juvenile records. The next day, apparently at the request of the trial court, the

parties convened before the county court at law where they presented argument

regarding Appellant’s entitlement to the juvenile records. At the end of this brief hearing,

the judge of the county court denied the motion. At the beginning of the punishment

hearing that commenced the following day, the trial court acknowledged that there was

to be an order entered by the county court at law and stated that this order would be made

part of the record. The county court at law entered an order denying the motion and this

order was filed in the clerk’s record of the district court proceedings but was not adopted

or signed by the district court.

In general, a party must make a timely, specific request, objection, or motion in the

trial court and obtain an adverse ruling to preserve a complaint for appellate review. TEX.

R. APP. P. 33.1; Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009). A review

of the record reflects that Appellant never raised any objection before the trial court

regarding its referral of the discovery dispute to the county court at law for resolution.

Likewise, after the county court at law denied Appellant’s motion, he did not ask the trial

court to rule on his motion or adopt the county court at law’s ruling. Because Appellant

never obtained a ruling by the trial court on his motion, Appellant’s issue has not been

preserved for appellate review. TEX. R. APP. P. 33.1; Lovill, 319 S.W.3d at 691–92.

7 However, even if Appellant had preserved his claim of error, we would still overrule

his issue because he has failed to show that the State owed a duty to disclose the

contents of the juvenile record.

The State has a duty to disclose to the defendant “any exculpatory, impeachment,

or mitigating document, item, or information in the possession, custody, or control of the

state that tends to negate the guilt of the defendant or would tend to reduce the

punishment for the offense charged.” TEX. CRIM. PROC. CODE ANN. art. 39.14(h); see

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (“We now

hold that the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.”). “Under Brady,

the materiality of undisclosed information is not sufficiently proven by showing a mere

possibility that undisclosed information might have helped in the defense or that the

undisclosed information might have affected the outcome of the trial.” Kelly v. State, 413

S.W.3d 164, 176 (Tex. App.—Beaumont 2013, no pet.) (citing Hampton v. State, 86

S.W.3d 603, 612 (Tex. Crim. App. 2002)).

In the present case, nothing in the record shows the contents of the juvenile record

sought by Appellant. As such, nothing in the record shows that this juvenile record

contains evidence which “tends to negate the guilt of the defendant or would tend to

reduce the punishment for the offense charged.” TEX. CRIM. PROC. CODE ANN. art.

39.14(h). In fact, the record reflects that neither the district court, State, or Appellant had

any knowledge of what evidence was contained in the juvenile record. Rather, Appellant

speculates that the juvenile record might possibly contain evidence that could have been 8 helpful to the defense. Such mere speculation that the juvenile record might contain

evidence exculpatory to Appellant is not sufficient to trigger the State’s duty to disclose

the contents of the juvenile record under either Brady or article 39.14(h).

Concluding that Appellant failed to preserve his claim of error regarding his motion

for access to juvenile records and failed to show that the State owed a duty to disclose

this evidence, we overrule Appellant’s second issue.

CONCLUSION

Having overruled both of Appellant’s issues, we affirm the judgments of the trial

court.

Judy C. Parker Justice

Do not publish.