Gustavo Bouvier Hernandez a/k/a Gustavo Bovier-Hernandez v. The State of Texas

Summary

The Fourth Court of Appeals of Texas affirmed Gustavo Bouvier Hernandez’s convictions for aggravated sexual assault of a child and possession of child pornography. The court held that the trial court properly denied a mistake-of-fact jury instruction, that an objection to investigator testimony was not preserved, and that Hernandez knowingly, intelligently, and voluntarily waived his rights before making custodial statements. The opinion also addresses Hernandez’s claim that the jury should have received an instruction concerning the voluntariness of his statements.

Holdings

1. The trial court properly denied the requested mistake-of-fact instruction because Bouvier's asserted belief that the child was his adult wife did not negate any culpable mental state required for aggravated sexual assault of a child under Texas Penal Code section 22.021.
2. Bouvier failed to preserve his complaint that Investigator Donna improperly testified about Bouvier's truthfulness because his trial objection that the question was vague did not comport with the improper-opinion theory raised on appeal.
3. The trial court did not err by denying the motion to suppress because, considering the totality of the circumstances, Bouvier received the required warnings and knowingly, intelligently, and voluntarily waived his rights before making the challenged statements.
4. The court affirmed despite the omission of a voluntariness instruction because Bouvier did not request or object to the omission and failed to show egregious harm.
5. The court declined to consider Bouvier's argument that pre-Miranda statements should be suppressed because he failed to preserve that argument in the trial court.

Questions Presented

1. Whether the trial court erred by denying Bouvier's requested mistake-of-fact jury instruction on the aggravated-sexual-assault charge.
2. Whether Bouvier preserved his complaint that Investigator Donna gave improper opinion testimony regarding the truthfulness of Bouvier's mistake-of-fact defense.
3. Whether Bouvier knowingly, intelligently, and voluntarily waived his rights and whether the trial court erred by denying his motion to suppress his custodial statements.
4. Whether the trial court reversibly erred by failing to instruct the jury under Texas Code of Criminal Procedure article 38.22, sections 6 and 7, regarding the voluntariness of Bouvier's custodial statements.
5. Whether Bouvier preserved his separate argument that pre-Miranda statements were inadmissible under a deliberate two-step interrogation theory.

Disposition

affirmed