MEMORANDUM OPINION

No. 04-24-00162-CR

Gustavo Bouvier HERNANDEZ a/k/a Gustavo Bovier-Hernandez, Appellant v. The STATE of Texas, Appellee

From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2021CRD001242D2 Honorable Monica Z. Notzon, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Irene Rios, Justice Lori Massey Brissette, Justice Adrian A. Spears II, Justice

Delivered and Filed: February 25, 2026

AFFIRMED

Following a jury trial, appellant Gustavo Bouvier Hernandez 1 was convicted of aggravated

sexual assault of a child pursuant to Texas Penal Code section 22.021(a)(2)(B) and possession of child pornography pursuant to Texas Penal Code section 43.26(a). See TEX. PEN. CODE §§

22.021(a)(2)(B), 43.26(a). On appeal, Bouvier contends the trial court erred in: (1) denying his 04-24-00162-CR discovering the video, she spoke with the child victim, who made an outcry to her that Bouvier had sexually assaulted her two prior times. At trial, Bouvier testified, confessing that he engaged in the sexual act with the child and filmed it on his phone, but stating that throughout the entire

recording he had believed the victim was his adult wife. Bouvier acknowledged that he had the phone’s flashlight on throughout the recording, and he further acknowledged that he can be heard in the video giving the child instructions.

The jury found Bouvier guilty on both counts of the indictment, and the jury assessed as punishment stacked sentences of eighty years for Count I and ten years for Count II, along with a

$10,000 fine for each count. Bouvier timely appealed.

REQUEST FOR MISTAKE-OF-FACT JURY INSTRUCTION

At the jury charge conference, Bouvier requested a jury instruction for Count I, aggravated sexual assault of a child, which stated that if the jury finds from the evidence that Bouvier

“reasonably believed that the act of penetrating the mouth of [the child] was a mistake of fact in that he believed [the child] was his wife” then the jury “will acquit” Bouvier. Bouvier contends that the trial court’s denial of his request for a mistake-of-fact jury instruction constitutes reversible error.

Under Texas Penal Code section 8.02, it is a defense to prosecution that a defendant formed a reasonable mistaken belief only if “his mistaken belief negated the kind of culpability required

for commission of the offense.” TEX. PEN. CODE § 8.02(a); see Mays v. State, 318 S.W.3d 368, 382 (Tex. Crim. App. 2010) (explaining that mistake-of-fact defense does not apply unless defendant was mistaken about a specific historical fact that, if true, would negate the mental state required for conviction). The trial court properly denied Bouvier’s request for this instruction because the purported mistake of fact does not negate any mental state required for conviction. A 04-24-00162-CR person commits the offense of aggravated sexual assault of a child if, (1) “regardless of whether the person knows the age of the child at the time of the offense,” intentionally or knowingly

“causes the penetration of the mouth of a child by the sexual organ of the actor” or “causes the mouth of a child to contact” the sexual organ of the actor; and (2) “the victim is younger than 14

years of age, regardless of whether the person knows the age of the victim at the time of the offense.” TEX. PEN. CODE § 22.021(a). “Because Section 22.021 requires no culpability as to the age of the victim, there is nothing for the defendant’s mistaken belief to negate, and his mistake cannot be a defense to prosecution.” Fleming v. State, 455 S.W.3d 577, 582 (Tex. Crim. App.

2014) (citing TEX. PEN. CODE § 8.02(a)). The Fleming court further concluded that section 22.021 is not unconstitutional for failing to recognize an affirmative defense based on a defendant’s belief that the victim was 17 years of age or older. Id. at 583; see Arias v. State, 503 S.W.3d 523, 530

(Tex. App.—San Antonio 2016, pet. ref’d).

Bouvier’s argument—that he mistakenly believed his conduct was lawful because he believed the victim was his wife—does not entitle him to a mistake-of-fact jury instruction. See

Fleming, 455 S.W.3d at 582–83; Miller v. State, 605 S.W.3d 877, 882 (Tex. App.—Houston [1st

Dist.] 2020, pet. ref’d) (“A defendant’s mistaken belief that his conduct was lawful is not a mistake of fact” and does not require a jury instruction). Therefore, the trial court did not err by denying

Bouvier’s request for this instruction. We overrule Bouvier’s first issue.

ADMISSION OF INVESTIGATOR’S TESTIMONY

In his second issue, Bouvier argues the trial court erred in permitting improper opinion

testimony from Investigator Donna as to the truthfulness of Bouvier’s mistake-of-fact defense. The State contends Bouvier failed to preserve this issue.

04-24-00162-CR

To preserve a complaint for appellate review, the complaining party must present a timely request, objection, or motion to the trial court which states the specific grounds for the desired ruling unless the specific grounds are apparent from the context. See TEX. R. APP. P. 33.1(a)(1)(A);

see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). “Failure to preserve error at trial forfeits the later assertion of that error on appeal.” Fuller v. State, 253 S.W.3d 220, 232

(Tex. Crim. App. 2008) (citation omitted). “[A]lmost all error—even constitutional error—may be

forfeited if the appellant fail[s] to object” during trial. See id. “This is true even though the error may concern a constitutional right of the defendant.” Id. Moreover, the issue on appeal must comport with the objection made at trial; otherwise, it is waived. See Clark v. State, 365 S.W.3d

333, 339 (Tex. Crim. App. 2012). “An objection stating one legal theory may not be used to support a different legal theory on appeal.” Williams v. State, 402 S.W.3d 425, 437 (Tex. App.—Houston

[14th Dist.] 2013, pet. ref’d).

At trial, the State asked Donna what he determined from his investigation based on his interview with Bouvier and his knowledge at the time of the sexually explicit video. Bouvier objected only on the ground that the question was vague, and the trial court overruled his objection.

Donna then responded that he determined Bouvier was not being truthful with him during the interview, because the content of the explicit video did not comport with Bouvier’s assertion that he did not realize the victim was an eight-year-old child rather than his adult wife. Bouvier did not raise any objections to this testimony.

Bouvier’s argument on appeal that Donna provided improper opinion testimony advances a different legal theory on appeal than Bouvier’s objection at trial. Therefore, Bouvier has not preserved this argument. See id. (argument not preserved on appeal that statements were improper expert-opinion testimony under Rule 702 because only objections at trial were based on lack of 04-24-00162-CR personal knowledge under Rule 602 and improper opinion testimony lacking personal knowledge under Rule 701); Howard v. State, No. 09-19-00149-CR, 2021 WL 1991267, at *5 (Tex. App.—

Beaumont May 19, 2021, no pet.) (argument at trial that trooper’s testimony would be speculative did not properly conserve complaint on appeal that allowing trooper’s testimony was fundamental

error in that it adversely affected defendant’s right to fair trial); Paroline v. State, 532 S.W.3d 491, 497 (Tex. App.—Texarkana 2017, no pet.) (concluding appellant failed to preserve objection to

testimony because objection at trial was itself so vague that it violated requirement that it be of “sufficient specificity to make the trial court aware of the complaint.”) (quoting TEX. R. APP. P.

33.1(a)(1)(A)). We overrule his second issue. See Blackshear v. State, 385 S.W.3d 589, 591 (Tex.

Crim. App. 2012) (reversing court of appeals and noting reviewing court should not address merits of an issue that has not been preserved for appeal).

DENIAL OF MOTION TO SUPPRESS

In his third issue, Bouvier argues the trial court erred in denying his motion to suppress his oral custodial statements made during his interview with Investigator Donna after his arrest.

Bouvier argues that he was misinformed about his rights, he was never informed about waiving them, he did not in fact waive them, and his statements were made involuntarily.

The forty-eight minute interview was conducted in Spanish and subsequently transcribed and translated. When Donna began his interview with Bouvier, Donna informed him that he is a police investigator and that an arrest warrant was issued because of the video his wife found on his phone. As Donna tried to further explain that he was assigned to investigate, Bouvier interrupted and began trying to tell his side of the story. Donna responded by telling Bouvier he is currently under arrest and that he will first explain Bouvier’s constitutional rights, which he must understand before Donna can ask him any questions, and then Bouvier can discuss whatever he 04-24-00162-CR wants afterwards. Donna then read in Spanish the first six items from the bilingual “Laredo Police

Department Miranda Warnings” form, stating:

1. You have the right to remain silent. ^[2]. Any statement that you make can be used against you in a court of law. ^[3]. You have the right to talk to an attorney so that—that he may counsel you before you are asked any questions and you also have the right to have an attorney present during questioning. ^[4]. If you do not have the means to hire an attorney you will be assigned one before questioning begins. 5. If you decided to answer any questions without the presence of an attorney, you may exercise your rights to stop answering and to stop making a statement. And you also have the right to terminate the interview at any moment that you would like to. 6. Do you understand your rights, Mr. Bouvier?

Donna did not read out loud the seventh item from the warnings form, which states “Do you elect to waive them?” After he read the sixth item—“Do you understand your rights, Mr.

Bouvier?”—appellant nodded positively. Donna then asked him again, “Do you understand?” to

which Bouvier responded, “Yes, sir.” Then Donna asked Bouvier to put his initials next to each of the warnings on the form and then sign at the bottom, which Bouvier then did. Thus, Bouvier

initialed next to each of the seven warnings, including “Do you understand your rights?” and, directly beneath, “Do you elect to waive them?” As Bouvier began writing on the form, Donna stated, “And with that you are only indicating that you understood what I read to you.” Bouvier continued initialing the items on the form, and after he finished signing, Donna began trying to ask him if he is willing to speak about what happened. Bouvier cut him off and stated that he does not have money for an attorney and that even if he had an attorney, no one will believe him anyway.

Donna responded by stating the first thing they have to cover is whether Bouvier is willing to speak to him or not. Bouvier responded that he is willing, and then Donna said, “First you have to tell me yes or no.” Bouvier responded, “Yes.” Then Bouvier shared his story and answered Donna’s questions.

04-24-00162-CR

At the two-day hearing on Bouvier’s motion to suppress, the trial court heard argument from the parties, viewed the interview video, read the transcript of the interview and the signed

warnings form, and heard testimony from Donna, in which Donna testified that in his opinion, Bouvier understood the rights Donna read to him.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). First, we give almost total deference to the trial court’s findings of historical facts and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d

666, 673 (Tex. Crim. App. 2007) (citing Guzman v. State, 995 S.W.2d 85, 89 (Tex. Crim. App.

1997)). The trial court is the “sole and exclusive trier of fact and judge of the credibility of the witnesses,” particularly when a motion to suppress is based on the voluntariness of a confession.

Carter v. State, 309 S.W.3d 31, 41–42 (Tex. Crim. App. 2010); see Weems v. State, 493 S.W.3d

574, 577 (Tex. Crim. App. 2016). The trial court “is entitled to believe or disbelieve all or part of the witness’s testimony—even if that testimony is uncontroverted—because [the trial court] has the opportunity to observe the witness’s demeanor and appearance.” Valtierra v. State, 310 S.W.3d

442, 447 (Tex. Crim. App. 2010). If the trial court makes a finding of fact that is derived from video evidence admitted at a suppression hearing, that finding “is still reviewed under a deferential standard.” Carter, 309 S.W.3d at 40 & n.47. Second, we review de novo mixed questions of law and fact “that do not depend upon credibility and demeanor.” Amador, 221 S.W.3d at 673; see

Guzman, 995 S.W.2d at 89.

If the trial court “makes express findings of fact, we view the evidence in the light most favorable to [the court’s] ruling and determine whether the evidence supports these factual 04-24-00162-CR findings.” Valtierra, 310 S.W.3d at 447; see Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App.

2012). We will sustain the trial court’s ruling if it is correct on any applicable theory of law and the record reasonably supports it. State v. Arellano, 660 S.W.3d 53, 57 (Tex. Crim. App. 2020).

B. Applicable Law

The State “may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). A defendant’s oral statement made as a result of custodial interrogation is inadmissible in a criminal proceeding unless a recording is made of the statement, and prior to the statement but

during the recording, the accused is given the warnings provided in Article 38.22, section 2, subsection (a). See TEX. CODE. CRIM. PROC. art. 38.22, §§ 2(a), 3(a). In addition, for any of Bouvier’s oral statements to be admissible, he must have “knowingly, intelligently, and voluntarily” waived those rights prior to making the statements. See id. art. 38.22, §§ 3(a)(2), 6. A

“statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion.” See TEX. CODE. CRIM. PROC. art. 38.21.

The State bears the burden to prove by a preponderance of the evidence a knowing, intelligent, and voluntary waiver. State v. Lujan, 634 S.W.3d 862, 865 (Tex. Crim. App. 2021).

We undertake a two-part inquiry into whether a defendant’s waiver is valid. See Berghuis v. Thompkins, 560 U.S. 370, 382–83 (2010); Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App.

2010). First, the waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Berghuis, 560 U.S. at 382

(citation omitted); Joseph, 309 S.W.3d at 25. Second, the waiver must be “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to 04-24-00162-CR abandon it.” Berghuis, 560 U.S. at 382–83 (citation omitted); Joseph, 309 S.W.3d at 25. An express waiver is not required; it may be inferred from the actions and words of the person interrogated. See Joseph, 309 S.W.3d at 24–25. Courts consider the totality of the circumstances surrounding the interrogation. See id. at 25.

Sections 2 and 3 of Article 38.22 are more expansive than the protections of Miranda and the Due Process Clause. Oursbourn v. State, 259 S.W.3d 159, 169, 173 (Tex. Crim. App. 2008).

Therefore, any “statement that is ‘involuntary’ as a matter of constitutional law is also

‘involuntary’ under Article 38.22, but the converse need not be true.” Id. A confession is not involuntary under Miranda or the Due Process Clause unless there is “some coercive police activity.” Id. at 170.

C. The Trial Court’s Findings of Fact and Conclusions of Law

After denying Bouvier’s motion to suppress, the trial court issued its findings of fact and conclusions of law stating, inter alia, the following:

• Donna read Bouvier his Miranda rights. • Prior to Bouvier making his statements, Donna “ensured that [Bouvier’s] rights under §38.22 of the Texas Code of Criminal Procedure were explained to, and understood by, [Bouvier].” • By clear and convincing evidence, based on Bouvier’s “words and actions,” Bouvier “waived his rights under §38.22 of the Texas Code of Criminal Procedure.” • By clear and convincing evidence, Bouvier’s statements were “made voluntarily” and were “the product of a free and deliberate choice.” • Bouvier demonstrated “a sufficient level of comprehension of his legal rights based on how the Defendant was trying to assist and explain to the investigator what he believed had occurred.” • Bouvier’s “conduct and active demeanor during the interview together with his desire to share details of what had occurred according to the Defendant demonstrated a free and deliberate choice to make an intelligent and voluntary statement and inferred [sic], by clear and convincing evidence, a willingness to waive his rights.”