Opinion issued December 11, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NOS. 01-23-00959-CR, 01-23-00960-CR, 01-23-00961-CR ——————————— JOSE FLORENTINO ORTIZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case Nos. 20-DCR-092408C, 20-DCR-093160A, 20-DCR-093162A
MEMORANDUM OPINION
Jose Florentino Ortiz was charged in three different case numbers with
sexual offenses against children. The cases were consolidated for jury trial. In the
first case, he was found guilty of continuous sexual abuse of a child. See TEX. PENAL CODE § 21.02(b). In the remaining two cases, he was found guilty of
aggravated sexual assault of a child. Id. § 22.021(a).
On appeal, he argues that the trial court erred by denying his motion to
sever. He also argues that the trial court erred by denying his motion to suppress
his statement made after arrest. We affirm.
Background
After an investigation into sexual abuse allegations by his nieces, Ortiz was
arrested in 2024 in Fort Bend County. A few days before the arrest, a Fort Bend
County sheriff coordinated a one-party-consent call with Mary and Susie Oles and
their father.1 Ortiz is the paternal uncle of Mary and Susie. During the call, the
family confronted Ortiz. Ortiz acknowledged he had sexually abused Mary and
Susie and apologized for it. Following his arrest, Ortiz confessed to multiple acts
of sexual abuse against Mary and Susie.
When Nancy Chavez’s mother heard that Ortiz was in jail charged with
sexually abusing Mary and Susie, she asked Nancy, who is also Ortiz’s niece, if
anything happened when she was a child around Ortiz. Nancy told her mother that
Ortiz had sexual intercourse with her.
Ortiz was indicted for continuous sexual abuse of a child, alleging that he
committed two or more acts of sexual abuse against Susie Oles and Nancy Chavez,
1 We refer to the three complainants by the same pseudonyms used during trial. 2 who were younger than fourteen at the time. The remaining two indictments were
for aggravated sexual assault of a child, alleging that Ortiz penetrated Mary Oles
mouth with his sexual organ in 1995 and penetrated her sexual organ with his
finger in 1996. Both allegations occurred when Mary was younger than 14 years
old.
The State consolidated the cases into a single criminal action. Ortiz moved
to sever the cases, and the trial court denied his motion. Ortiz also moved to
suppress his post-arrest statements to authorities, asserting that the statements were
obtained in violation of his constitutional right to an attorney. The trial court
denied the motion to suppress.
Ortiz proceeded to a jury trial. Among other witnesses, Nancy, Susie, Mary,
and Ortiz testified. The testimony included that Ortiz sexually abused the three
complainants for many years when they visited their grandparents’ house. Mary
testified that Ortiz lived with her paternal grandparents. She testified that Ortiz
began abusing her when she was 5 years old. On multiple occasions over the
course of several years, he put his penis in her mouth and his fingers in her vagina.
He began having vaginal intercourse with her when she was about 13. When she
was about 15, she started avoiding family gatherings to hide from Ortiz. She did
not tell anyone about the abuse until years later.
3 Susie testified that Ortiz touched her vagina with his hands and showed her
photographs of his penis from the time she was 7 until the time she was 12. Susie
testified that the abuse happened at her grandparents’ house or while she was a
passenger in Ortiz’s truck.
Once she heard that Susie and Mary had told their parents about years of
sexual abuse, Nancy’s mother asked her daughter if she had experienced abuse. At
that time, Nancy disclosed that she too had been abused by Ortiz when visiting her
grandparents’ house. Nancy testified that she remembered waking up with Ortiz’s
penis inside her vagina. She also described Ortiz putting his hand on her bottom
inside her underwear while they were riding in a truck. She testified that the abuse
happened several times beginning when she was 5 or 6 years old until she was
about 11.
The jury found Ortiz guilty as charged and assessed punishment at 25 years’
imprisonment for continuous sexual abuse of a child and 16 years’ imprisonment
for each case of aggravated sexual assault of a child. The trial court ordered the
sentences to run consecutively. Ortiz appealed.
On appeal, Ortiz argues that the trial court abused its discretion by denying
his motion to sever and by denying his motion to suppress his post-arrest
statements. We affirm.
4 Severance
Ortiz contends that his convictions should be reversed because the trial court
erred by denying his motion to sever. He argues that the three cases against him do
not arise from the same criminal episode and that the trial court erred in finding
that he would not be unfairly prejudiced by joinder. We disagree.
A. Standard of Review and Applicable Law
“A defendant may be prosecuted in a single criminal action for all offenses
arising out of the same criminal episode.” TEX. PENAL CODE § 3.02(a). A
“‘criminal episode’ means, in relevant part, the commission of two or more
offenses, regardless of whether the harm is directed toward or inflicted upon more
than one person” when “the offenses are the repeated commission of the same or
similar offenses.” Id. § 3.01; see Waddell v. State, 456 S.W.3d 366, 370 (Tex.
App.—Corpus Christi 2015, no pet.) (explaining to qualify as same criminal
episode, “it need only be shown that the offenses for which a defendant was
charged and convicted were the repeated commission of the same or similar
offense” and does not require proof that offenses were committed in same or
similar fashion).
There is a two-tiered statutory framework for severance. Diez v. State, 693
S.W.3d 899, 919 (Tex. App.—Austin 2024, pet. ref’d). Generally, severance is
granted to the defendant as a matter of right. See TEX. PENAL CODE § 3.04(a);
5 Hodge v. State, 500 S.W.3d 612, 621 (Tex. App.—Austin 2016, no pet.); see also
Llamas v. State, 12 S.W.3d 469, 470 (Tex. Crim. App. 2000) (describing
defendant’s “absolute discretion” to decide whether to request “mandatory
severance”). In the second tier, if a defendant is being prosecuted for certain
statutorily listed offenses, including aggravated sexual assault of a child and
continuous sexual assault of a child, then the defendant may receive a severance
only after showing that the defendant “would be unfairly prejudiced by a joinder of
offenses” in the same trial. TEX. PENAL CODE § 3.04(c); see also id. § 3.03(b)
(listing offenses for which automatic right to severance does not apply).
Appellate courts review a trial court’s decision to grant or deny a request to
sever for an abuse of discretion. Salazar v. State, 127 S.W.3d 355, 365 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d). A trial court’s ruling will only be
deemed an abuse of discretion if it is so clearly wrong as to lie outside the zone of
reasonable disagreement or is arbitrary or unreasonable. State v. Mechler, 153
S.W.3d 435, 439 (Tex. Crim. App. 2005); Lopez v. State, 86 S.W.3d 228, 230
(Tex. Crim. App. 2002).
B. The trial court did not err in determining that the charges against Ortiz arose from the same criminal episode.
Ortiz argues that the trial court erred in denying his motion to sever because
the cases against Mary were not part of the same pattern of behavior as the cases
6 charging continuous sexual abuse against Susie and Nancy. He also argues that the
offenses against Mary occurred years before the offenses against Susie and Nancy.
The trial court did not abuse its discretion by finding that the three cases
against Ortiz comprised one criminal episode. The cases involving Ortiz’s niece
Mary are both for aggravated sexual assault when Mary was younger than
fourteen. The differences in the two cases included the date of the offense and the
way the offense was committed. Ortiz was indicted for penetrating Mary’s sexual
organ with his finger in 1996 and for penetrating Mary’s mouth with his sexual
organ a year later. The third case involved allegations of continuous sexual abuse
of two more nieces, Susie and Nancy. Susie is Mary’s sister.
The offenses were similar in nature. All three indictments involved Ortiz
sexually assaulting his nieces in different ways, including putting his sexual organ
in Mary’s mouth, touching Susie’s vagina with his fingers, and having sexual
intercourse with Nancy. The complainants alleged that the abuse happened
repeatedly over many years beginning when they were in elementary school. All
three alleged that the abuse happened at their grandparents’ house, where Ortiz
lived. The trial court could have reasonably found that because all three offenses
entailed sexual assault, they are similar offenses. See Diaz v. State, 125 S.W.3d
739, 742 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding indecency
7 with a child and sexual assaults against multiple children over course of year were
part of criminal episode because offenses were similar).
Ortiz argues that the trial court erred in holding that the offenses comprised a
criminal episode because the offenses against Mary happened in years prior to the
offenses against Susie and Nancy. But Section 3.01(2) of the Penal Code does not
impose a time differential between the commission of the same or similar offenses.
Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi-Edinburg 1995,
pet. ref’d); see also Corwin v. State, 870 S.W.2d 23, 27–29 (Tex. Crim. App. 1993)
(“In abducting, raping, and killing or attempting to kill five women in more or less
the same way over the course of some thirteen years, interrupted only by a lengthy
sojourn in the penitentiary, appellant can reasonably be said to have engaged in ‘a
regular mode or pattern of . . . behavior.’”).
The trial court could have reasonably found that the indictments comprised a
criminal episode of repeating the same or similar offense against three of Ortiz’s
nieces over a continuous period.
C. Ortiz did not meet his burden to show that he would be unfairly prejudiced by the consolidation of the cases.
Neither party disputes that based on the offenses charged, Ortiz’s right to
severance depends on an unfair prejudice showing. TEX. PENAL CODE § 3.04(c).
“Unfair prejudice” means something more than the types of prejudice that a
defendant “would automatically face in any case in which felony counts are
8 joined.” See Hodge, 500 S.W.3d at 622 (quoting Riemer v. State, Nos. 02-12-
00613-CR, 02-12-00614-CR, 02-12-00615-CR, 2013 WL 6565057, at *4 (Tex.
App.—Fort Worth Dec. 12, 2013, no pet.) (per curiam) (mem. op., not designated
for publication)). The types of prejudice inherent in any trial of joined counts
include “that the jury may convict a ‘bad man’ who deserves to be punished—not
because he is guilty of the crime charged but because of his prior or subsequent
misdeeds” and that “the jury may infer that because he committed some of the
alleged crimes, he probably committed all of them.” Llamas, 12 S.W.3d at 471.
In the trial court, Ortiz’s argument rests only on the types of prejudice that
are inherent in any case in which felony counts are joined. See Hodge, 500 S.W.3d
at 622. Ortiz argued that he would be unfairly prejudiced by consolidation because
the jury would struggle to distinguish the evidence supporting each case since the
cases involved different victims, dates, and facts. He alleged that consolidation
increased the likelihood that the jury would convict him based on poor character
rather than based on the evidence in each individual case. These concerns are
squarely within the realm of what the defendant would face in any felony joinder
and do not rise to the level of “unfair prejudice.” Id.
The trial court did not abuse its discretion in denying Ortiz’s motion to
sever. We overrule his first issue.
9 Motion to Suppress
In his second issue, Ortiz asserts that the trial court erred by denying his
motion to suppress his post-arrest statements made to a detective. Specifically, he
argues that he did not knowingly or voluntarily waive his right to counsel. We
disagree.
We review a trial court’s ruling on a motion to suppress evidence using a
bifurcated standard of review. Wexler v. State, 625 S.W.3d 162, 167 (Tex. Crim.
App. 2021); Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012). “We
afford almost total deference to the trial court’s rulings on questions of historical
fact and on application of law to fact questions that turn upon credibility and
demeanor. . . .” Pecina, 361 S.W.3d at 79. “[W]e review de novo the trial court’s
rulings on application of law to fact questions that do not turn upon credibility and
demeanor.” Id. When, as here, the trial court made no findings of fact, we view the
evidence in the light most favorable to the trial court’s ruling and presume the trial
court made implicit findings of fact that support its ruling if those findings are
supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.
2010). We will affirm the trial court’s ruling on a motion to suppress if it is
supported by the record and “correct under any applicable theory of law.” Wells v.
State, 611 S.W.3d 396, 406 (Tex. Crim. App. 2020) (internal quotation omitted).
10 “The Fifth Amendment prohibits the government from compelling a
criminal suspect to bear witness against himself.” Pecina, 361 S.W.3d at 74–75
(citing U.S. CONST. amend. V). The Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the [a]ssistance
of [c]ounsel for his defen[s]e.” U.S. CONST. amend. VI; Gonzalez v. State, 616
S.W.3d 585, 594 (Tex. Crim. App. 2020) (“The Sixth Amendment right to counsel
attaches when the prosecution has commenced.”). Miranda warnings and article
38.22 of the Texas Code of Criminal Procedure “guard against abridgement of the
suspect’s [constitutional] rights.” McCambridge v. State, 712 S.W.2d 499, 506
(Tex. Crim. App. 1986) (en banc); see Miranda v. Arizona, 384 U.S. 436, 445
(1966); TEX. CODE CRIM. PROC. art. 38.22. Therefore, before a defendant’s
custodial “statement [may] be introduced into evidence against him at trial,” it
must be shown that a defendant “voluntarily and intelligently waive[d] his
Miranda rights, including the right to have an attorney present during questioning.”
Pecina, 361 S.W.3d at 75; see also TEX. CODE CRIM. PROC. art. 38.22 (governing
when accused’s written or oral statements made during custodial interrogation may
be admissible in criminal proceedings).
A defendant may ask to speak with counsel at any time prior to or during a
custodial interrogation, and the invocation requires law enforcement to cease all
questioning “until counsel has been provided or the defendant initiates further
11 communication with the police.” Hartwell v. State, 476 S.W.3d 523, 530 (Tex.
App.—Corpus Christi–Edinburg 2015, pet. ref’d) (citing Edwards v. Arizona, 451
U.S. 477, 484–85 (1981)). However, a defendant’s request for counsel must be
unambiguous and articulated with sufficient clarity so that “a reasonable police
officer in the circumstances would understand the statement to be a request for an
attorney.” Pecina, 361 S.W.3d at 79 (quoting Davis v. United States, 512 U.S. 452,
459 (1994)). “[N]ot every mention of a lawyer will suffice to invoke the Fifth
Amendment right to counsel during questioning.” State v. Negrete, 630 S.W.3d
460, 466 (Tex. App.—Houston [1st Dist.] 2021, pet. ref’d). An ambiguous or
equivocal statement about counsel does not require law enforcement officers to
halt their interrogation or seek clarification. Id.
When reviewing an alleged invocation for the right to counsel, we look at
the statement itself and the totality of the circumstances surrounding the statement
to determine whether the defendant’s statement constitutes an actual invocation of
the right to counsel. Id. We determine whether the defendant articulated his desire
for assistance of counsel sufficiently clearly that a reasonable law enforcement
officer under the circumstances would understand the statement to be a request for
an attorney. Id. While no “magical words” are required, at a minimum, a defendant
must “express a definite desire to speak to someone, and [for] that person [to] be
12 an attorney.” Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995)
(internal quotations omitted).
B. Relevant Facts
The court held a hearing on Ortiz’s motion to suppress his custodial
statements. During the hearing, the court viewed a video of Ortiz’s interview.
The detective who interviewed Ortiz testified at the hearing that he had
investigated Ortiz concerning sexual assault accusations made by Ortiz’s family
members. The detective arranged a one-party consent call between Ortiz and Mary
Oles, Susie Oles, and their father, Ortiz’s brother. The detective testified that Ortiz
spoke mostly in English during the phone call. Based on Ortiz’s admissions during
that phone call, the detective obtained an arrest warrant for Oritz.
Ortiz was arrested two days later and brought in for interrogation. The
detective read Ortiz the Miranda warnings. The detective testified that he paused
after each warning, and Ortiz indicated that he understood each one. Ortiz was also
presented with a card with written Miranda warnings in English and Spanish, and
he signed, indicating he understood each of his rights. During the interrogation, the
detective told Ortiz that it was his understanding that Ortiz had issues with some
family members. The detective told Ortiz that he knew the family members had
mentioned that they were going to talk to law enforcement about it. Ortiz
responded that, “The reason why I didn’t call [the detective] is because I wanted to
13 hear back from a lawyer so I spoke to a lawyer . . . And I think he contact[ed]
you?” When Ortiz said he did not have the money to hire the attorney, and
suggested he had not told the attorney that, the detective responded, “But if you
can’t afford an attorney, you know, you have the right to speak to one. That’s part
of what I’ve already read to you.” Ortiz responded that he understood. Ortiz then
continued with the interview, discussing sexual abuse of Mary and Susie Oles.
The detective testified that he had spoken with attorney Adam Capetillo
before Ortiz was arrested regarding Ortiz. He was unable to give the attorney any
details at that time.
Attorney Adam Capetillo testified that before arrested, Ortiz called his office
inquiring about hiring him. Capetillo advised Ortiz not to talk to anyone, especially
the police. During the phone call, Capetillo told Ortiz his minimum retainer fee.
Ortiz told Capetillo that he needed to get his finances in order. Ortiz told Capetillo
that he was working on getting half of the money and would contact him the next
day. Capetillo testified that he called the investigating detective the same day to
inquire about the allegations. Capetillo testified that the detective would not give
him details of the case. At some point after Ortiz was arrested, Ortiz’s family
retained Capetillo, and Capetillo sent a letter of representation to the detective.
Ortiz testified that he spoke with Capetillo days before he was arrested,
explaining to Capetillo that he was “accused of something of a sexual nature.”
14 Ortiz testified that Capetillo told him his fee would be $25,000 and that Ortiz could
give him half. Ortiz told Capetillo that he was going to try to get the money
because he did not have it. Ortiz testified that he gave Capetillo authority to contact
the investigating detective, and that at no point did he tell Capetillo he did not wish
to hire him.
C. Analysis
Ortiz asserts that his Fifth Amendment rights were violated because even if
he knowingly and voluntarily waived his right to counsel during the interrogation,
his unilateral waiver is invalid because he had retained counsel days before the
custodial interrogation. Ortiz argues that Capetillo’s phone call with the detective
put law enforcement on notice that Ortiz was represented. According to Ortiz,
when Ortiz told the detective that he had spoken to a lawyer, Ortiz was invoking
his right to an attorney and the detective should have halted the interview or at
minimum sought clarification as to whether Ortiz was represented by an attorney.
The State responds that Ortiz did not clearly and unequivocally invoke his
right to an attorney. We agree with the State. Nothing in the record indicates that
Ortiz clearly articulated his desire to have counsel present such that a reasonable
police officer would have understood the statement to be a request for an attorney.
See Bernard v. State, No. 01-18-00876-CR, 2019 WL 6869328, at *4 (Tex. App.—
Houston [1st Dist.] Dec. 17, 2019, pet. ref’d) (mem. op., not designated for
15 publication) (“The use of the word ‘attorney’ or ‘lawyer’ does not, in and of itself,
invoke the right to counsel.”) (quoting Dinkins, 894 S.W.2d at 351); State v.
Norris, 541 S.W.3d 862, 865–67 (Tex. App.—Houston [14th Dist.] 2017, pet.
ref’d) (concluding statements such as “Well, give me a lawyer or something ‘cause
I’m not sure I have,” and “I just want to make a phone call and call my sister and
see if she could . . . go get me a lawyer or something,” were not unambiguous and
unequivocal requests for counsel). Ortiz stating that he thought the detective had
talked to an attorney Ortiz had contacted is not an unequivocal request to speak
with an attorney.
To the extent that Ortiz argues that Capetillo had invoked his Fifth
Amendment rights on his behalf, we disagree. Only under certain circumstances
may an attorney speak for his client in invoking Fifth Amendment protections, and
those circumstances are not present here. See Janecka v. State, 739 S.W.2d 813,
828 (Tex. Crim. App. 1987). An attorney may invoke the Fifth Amendment right
on behalf of his client, but he must do so when an attorney-client relationship
exists, in the presence of the accused or after conferring with the accused, the
accused must do nothing to contradict the attorney, and the officer must agree not
to question the accused in the attorney’s absence. Id. The record does not clearly
indicate that an attorney-client relationship exists, the attorney did not invoke the
right in the presence of or after conferring with Ortiz, and there is no evidence
16 establishing that law enforcement agreed not to question Ortiz in the attorney’s
absence. See id. The trial court did not err in denying the motion to suppress
because the interrogation did not violate Ortiz’s Fifth Amendment rights.
Finally, to the extent Ortiz argues that his Sixth Amendment rights were
violated during the custodial interrogation, we agree with the State that the right
had not yet attached. “The Sixth Amendment right to trial counsel is triggered by
judicial arraignment or Article 15.17. magistration.” Pecina, 361 S.W.3d at 71.
Ortiz’s Sixth Amendment rights had not been triggered at the time of his
interrogation because he had yet to be arraigned or magistrated.
The trial court did not err in denying Ortiz’s motion to suppress his custodial
statements. We overrule his second issue.
Conclusion
We affirm the trial court’s judgment.
Susanna Dokupil Justice
Panel consists of Chief Justice Adams and Justices Morgan and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).