Hailey v. State (413 S.W.3d 457, 2012)

OPINION

ANNE GARDNER, Justice.

I. INTRODUCTION

Appellant Kimball Douglas Hailey II appeals his conviction for the capital murder of E.C., a child under six years old. In eight points, Appellant asserts that the trial court erred .(1) by admitting the entirety of a witness’s tape recorded pretrial interview under the rule of optional completeness; (2-3) by admitting Appellant’s custodial statements to a girlfriend and a Child Protective Services (CPS) caseworker; (4) by admitting Appellant’s non-custodial statements to an acquaintance; (5) by denying a challenge for cause and not allowing Appellant to individually question a “biased juror”; (6) by allowing the State to ask improper commitment questions; and (7-8) by denying three jury charge instructions. We affirm.

II. PROCEDURAL AND FACTUAL BACKGROUND

Because Appellant does not challenge the sufficiency of the evidence to support his conviction, we set out the relevant facts in each point. For background purposes, we provide Appellant’s statement of facts as follows:

The instant trial involved the death of Appellant’s girlfriend’s two and a half year old son. Appellant, his girlfriend, the girlfriend’s eight year old daughter and the victim lived together for a few months prior to the incident. Appellant also had another girlfriend who lived in a different area of town.

On [March 29, 2009], Appellant was home with the two children while the girlfriend, hereinafter mother, was gone to work. The mother then returned home, had an argument over money with Appellant and Appellant left. The mother also left leaving the two children home alone. Appellant then returned home a few hours later and the victim stopped breathing causing him to call 911 and have the daughter speak to the operator as he blew into the victim’s mouth and then left the location. Appellant had a parole violation warrant and, to avoid arrest, left the scene but remained down the street until the ambulance arrived.

The victim had multiple bruises over his body, but the cause of death was a skull fracture from blunt force trauma. The State offered numerous statements Appellant made to various individuals admitting to harming the child.... Appellant waived his rights and provided recorded statements to the police wherein he maintained his innocence. Appellant testified at trial and denied any type of abuse of the victim. [Internal record citations omitted.]

III. APPELLATE ISSUES

A. Admissibility of Witness Interview under Rule of Optional Completeness

In his first point, Appellant asserts that the trial court abused its discretion by admitting and publishing the entire tape-recorded pretrial interview between Fort Worth Police Detective Amy McClellan and E.C.’s mother, Laquanta Williams. The State responds that the trial court properly admitted the interview pursuant to the rule of optional completeness because the isolated statements played for the jury left the false impression that Williams’s trial testimony was inconsistent with her pretrial statements. See Tex.R. Evid. 107. Appellant counters that the entire tape was not admissible because it exceeded the matters inquired into, interjected extraneous information, bolstered Williams’s credibility, and was “highly prejudicial.”

1. Relevant Facts

Williams testified that she was the mother of two-and-a-half-year-old E.C. and eight-year-old daughter N.W. In November 2008, Appellant and Williams began dating, Appellant moved in with Williams and her two children, and Appellant began watching N.W. and E.C. while Williams went to work. Williams testified that Appellant did not have a job and that she paid for everything.

Williams testified that “hell broke loose” in the middle of March when Appellant began having mood swings. On March 29, 2009, Williams left for work around 6:00 a.m.; the children were asleep, and Appellant was at home. When Williams called to check on them at approximately 11:00 a.m., Appellant said he had been sleeping but that everything was okay. When Williams finished her shift around 2:00 p.m. and drove home, Appellant greeted her by “going off and cursing her and stuff’ and pushing her, and Williams testified that she did not have a chance to see her children initially. Appellant told her that he needed money, that he was “sick of this shit,” and that he had to “knock out” E.C. Williams testified that Appellant continued berating her and then told her to take one of their computers to a pawnshop to get money for it. Williams left and returned home around 3:50 p.m., having been unable to sell the computer. Appellant was still at home but left to go to Dallas, telling Williams to get him money before he got back or he was going to beat her and her kids when he returned. Williams testified that when she checked on E.C., he was on his bed holding a towel against his forehead, and when she removed the towel, his eyes and forehead were swollen and his lip was busted. When she spoke to E.C., he sat up and did not appear to be in pain. She testified that she “didn’t know what to do” but that she left E.C. and N.W. alone at home while she went to get money from friends and relatives to give to Appellant.

Around 8:00 that evening, Williams called her cell phone, which Appellant had been using. Appellant answered “in a panic mode,” told her to hurry and get home, and then hung up the phone. Once home, she saw the ambulance leaving and was told her son was being taken to the hospital. Inside, she found N.W., who told her that E.C. fell in the garage. She and N.W. then drove to the hospital.

Williams testified that she spoke to Appellant while she was at the hospital and that he asked her to lie for him. Williams testified that she decided initially to tell investigators that an individual named Chris had been at the house with the children but that “[t]his was before I was even aware of what happened to my child.” Williams testified that during her interview with Detective McClellan that night, she provided Appellant’s name and other information “[a]fter [Detective McClellan] said what she said to me.”

Appellant emphasized through cross-examination that Williams had been alone with the children a portion of that day, that she had initially not checked on E.C. after Appellant told her that he had knocked him out, and that she had not taken E.C. to the hospital when she noticed his injuries. . In response, Williams stated, “[E.C.] wasn’t perfectly okay. But I know one thing, I didn’t kill my son. No way, no how. I didn’t even spank my children at all.” The following dialogue then occurred:

[Defense Counsel]: Q. Yesterday, you told the ladies and gentlemen of the jury that you never spanked your son; is that correct?

[Williams]: A. Yes.

Q. You remember talking to Detective [McClellan]?

A. Yes.

Q. And while you were talking to her, you told her, did you not, that I barely even whip my son?

A. Okay.

Q. So you do occasionally whip your son; is that correct?

A. If it was necessary, but not really.

Q. Right.

A. If he’s in danger or he’s hurting someone, something like that. But I never really whip my children, period.

Q. You told [Detective McClellan] when [your children] were bad or they needed it, I spanked their butts. Do you remember telling her that?

A. I don’t remember telling her that.

Appellant then asked to play a portion of Williams’s taped interview with Detective McClellan to refresh her memory, stating that “if she denies them again after hearing them, then we would offer only those portions that are impeachment for this case.” The State objected to “picking and choosing” statements on the tape to be played for the jury. The trial court ruled that if Appellant played a portion of the tape, the State would be allowed to play the entire tape.

On the first portion of the tape played by Appellant for the jury, Williams is heard telling Detective McClellan, “I barely even whoop my kids” and “if they do something wrong, you know, you let them know, you get on their butt; when I do whoop, I spank their butt[s].At trial, defense counsel asked, “[T]hat’s what you did? You would spank their butts?” Williams responded, “If it was necessary, of course. Not beat them, spank them on their bottom. Not beat them.”

Later, after Williams testified that Detective McClellan did not tell her that a woman named Winter Star Butler had come over to her house the day of the offense to sleep with Appellant, Appellant played a portion of the taped interview. Afterward, Williams agreed that Detective McClellan had told her that.

Appellant also played an additional portion of the taped interview after eliciting the following testimony:

[Defense Counsel]: Q. You remember when you were talking to Detective McClellan, she asked you if [Appellant] had ever intentionally hurt your children? Do you remember her asking you that?

[Williams]: A. No.

Q. [D]id you ever tell her, no, he never intentionally hurt your children?

A. No.

Q. He may have slapped the boy or something during potty training?

A. Slapping? I know he used to hit him. If he had a[n] accident, he did that.

(A portion of interview is played.)

[Defense Counsel]: Q. Did you hear the statement you made to Detective McClellan?

A. Yes, I did.

Q. And you told her that, no, he didn’t ever — he wasn’t ever intentionally mean to your son; is that correct?

A. At the time, yes.

Q. And that was a true statement?

A. No, not really. It wasn’t.

Q. She told you that, you know, you needed to be truthful with her, didn’t she?

A. Right.

Q. She said if you hadn’t done anything wrong, then you need to be truthful; isn’t that true?

A. Right.

Q. But you are saying now that you lied to her and told her, when you told her that [Appellant] had never been intentionally mean to your children?

A. I didn’t actually lie to her. But at the same time—

[Defense Counsel]: Objection. She’s not — she’s answered the question—

[Williams]: I loved and cared about him.

When Appellant finished cross-examining Williams, the State asked to introduce the entire interview between Williams and Detective McClellan because Appellant had “played numerous portions from it, and we’ll ask that we be allowed to play the entire tape under optional completeness and prior inconsistent statements.” Appellant objected that the State could admit only those portions of the interview that “relate[d] to the impeachment” and his attempts to refresh her memory; he stated that the entire tape was “not admissible” and that it was “the equivalent of a police report” and improper bolstering. The State responded that Appellant

played words on tape to a jury, which leaves a false impression about how she said it and what she was saying. And because they left a false impression about the context of the statement, we have every right to continue to play all surrounding statements so they can understand it in context.

They have attacked her credibility. Her credibility is at issue. And this tape as a prior consistent statement on the other part goes to her credibility.

The trial court overruled Appellant’s objections, and the State played the entire taped interview for the jury, except that the State turned off the tape at the point Detective McClellan stopped the interview and a CPS worker began talking to Williams.

2. Analysis

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Sauceda, 129 S.W.3d at 120. Under the rule of optional completeness,

[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statements which is necessary to make it fully understood or to explain the same may also be given in evidence....

Tex.R. Evid. 107; see Walters v. State, 247 S.W.3d 204, 217-18 (Tex.Crim.App.2007). “This evidentiary rule ‘is designed to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing.’ ” Pena v. State, 353 S.W.3d 797, 814 (Tex.Crim.App.2011) (quoting Walters, 247 S.W.3d at 218). To be admitted under the rule, the omitted portion of the statement must be (1) “ ‘on the same subject’ ” and (2) “ ‘necessary to make it fully understood.’ ” Id.; Sauceda, 129 S.W.3d at 123 (quoting Tex.R. Evid. 107).

Whether the taped interview was “on the same subject” is a close question. Generally, the taped interview was “on the same subject” in that it consisted of Detective McClellan asking Williams about her relationship with Appellant and Appellant’s relationship with E.C. and N.W. in an attempt to investigate the offense. See Pena, 353 S.W.3d at 814 (“The audio portion of the videotape memorializes the conversation between Appellant and [the police officer]. Hence, the audio is on the same subject as other statements introduced into evidence.”). However, the taped interview also contained statements that — although elicited in the context of Detective McClellan’s attempts to determine what happened to E.C. — could be construed as extraneous information or bad acts. We have identified the arguably objectionable portions of the recording, including that Appellant was “a felon” at the time of the offense, that Appellant neither had a job nor contributed financially to the household, that Appellant had been verbally abusive to Williams and had pushed her, and that Appellant had another girlfriend (in addition to Williams) at the time of the offense. We do not decide, however, whether the entire taped interview was “on the same subject.” Even assuming that the trial court erred by allowing the taped interview to be played in its entirety, such nonconstitutional error was harmless. See Taylor v. State, 268 S.W.3d 571, 592 (Tex.Crim.App.2008) (error in admitting evidence is noneonstitutional error and reviewed under rule 44.2(b)).

3. Harm Analysis

Under rule of appellate procedure 44.2(b), we must disregard nonconsti-tutional error that does not affect a defendant’s “substantial rights,” that is, if upon examining the record as a whole, there is a fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. Tex.R.App. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex.Crim.App.2010), cert. denied, — U.S. —, 131 S.Ct. 3030, 180 L.Ed.2d 846 (2011). If the improperly admitted evidence did not influence .the jury or had but a slight effect upon its deliberations, such nonconstitutional error is harmless. Id. In making this harm determination we examine the entire record and calculate the probable impact of the error upon the rest of the evidence. Id. The improper admission of evidence is harmless if the same or similar evidence is admitted without objection at another point in the trial. Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex.Crim.App.2010), cert. denied, — U.S. —, 131 S.Ct. 905, 178 L.Ed.2d 760 (2011); Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2003) (“An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.”); Stewart v. State, 221 S.W.3d 306, 312-13 (Tex.App.-Fort Worth 2007, no pet.) (holding that trial court’s error in admitting document was harmless because evidence had already been admitted without objection).

First, any extraneous information contained on the tape was cumulative of evidence that had already been introduced to the jury without objection. For instance, while explaining her relationship .with Appellant to Detective McClellan during the taped interview, Williams stated that she and Appellant met in 2005, that they stopped seeing each other while he “did two years in jail,” and that they resumed their relationship in 2007 when he “got out.” She also stated that because he was a felon it was hard for him to find a job. However, Williams had already testified at trial without objection to virtually the same information, including that Appellant had been “locked up,” had been on parole and had “violated” it, and did not have a job at the time of the offense.

When Detective McClellan asked Williams during the interview whether Appellant had ever been violent with her, Williams stated, “Verbal,” and “He pushed me.” Williams had previously testified without objection, however, that the day of the offense, Appellant cursed at her, pushed and slapped her, and threatened that if she did not get him some money he was going to beat her and her kids.

Also during the taped interview, Detective McClellan asked Williams if Appellant was “seeing anybody else.” Detective McClellan then stated, “apparently he is,” telling Williams that a woman “came knocking on your door tonight looking for [Appellant] thinking you weren’t going to be there.” Williams responded that she had her suspicions about a woman named “Star.” Detective McClellan then stated, “Okay, so, you’re basically busting your butt working, okay, and this house is in your name and you’re paying for it, he’s not working, he’s sleeping with this girl at your house ... while you’re working and then he’s telling you to go out and beg for money.” Williams then asked, “She’s been in my house?” To which Detective McClellan responded, “Uh huh.” However, Appellant had already played for the jury the portion of the interview from Detective McClellan’s statements beginning with “Okay” and ending with “Uh huh.” Indeed, Appellant’s counsel stated at trial that “[a]nything about that being the first time [Williams] knew [Winter Star Butler] was sleeping with [Appellant] in the house would be admissible.”

More generally, after reviewing the entire record, we conclude that there is a fair assurance that any error in admitting the entire interview did not have a substantial and injurious effect or influence in determining the jury’s verdict. See Tex.R.App. P. 44.2(b); Coble, 330 S.W.3d at 280. Four State’s witnesses described incriminating statements made by Appellant. For instance, Butler testified that Appellant had recounted to her shortly before trial that he had punched and stomped E.C. and then had hit E.C.’s head on the corner of the sink, causing E.C. to shake, tremble, and convulse.

Further, Butler’s cousin, Andre Homer, testified that Appellant called him the night of the offense (after E.C. was taken to the hospital) and that Appellant had said that Butler was in jail and that “it was an accident.” Appellant then called back and said “something about the baby jumped on him or something, and he pushed the baby like out of reaction. And the baby went up against the wall and collapsed.” Additionally, an acquaintance of Appellant, Lafaven Adams, testified that during a cell phone conversation with Appellant the night of the offense, Appellant had told him that he had messed up and that

he was [a]sleep and [his girlfriend’s children] were making noise while he was sleep[ing], tearing up the house. And that when he got up, that he was upset. And he grabbed [E.C.] and he' tossed him and then he fell. And that he went into a seizure or whatever. And that he had panicked and left the house, and he told or he instructed the little girl, [E.C.’s] sister, to call 9-1-1.

Similarly, Larry Dawn testified that he produced music, that Appellant was a rapper, and that he had been working with Appellant to make records for approximately one month before the offense. Dawn testified that Appellant called him several times the day of the offense. Later in the evening, Dawn met Appellant at a gas station, and Appellant appeared “anxious” and “£j]ust a little nervous really.” Dawn invited Appellant to his home, and they sat down and talked. According to Dawn, Appellant kept repeating, “‘I F’ed up, I F’ed up, I messed up.’ ” Dawn testified that when he asked Appellant what was going on, Appellant told him that he threw the little boy. Dawn explained his understanding that Appellant grabbed the boy at the top and lower portion of his body and tossed him, like a “fireman’s toss.” Dawn recounted Appellant’s statement that “the boy flew in the air and he turned — kind of flew over like this and landed on his back.” Appellant told Dawn that he did not know if the boy hit his head but that a few minutes later the boy was still in the same place.

In addition to her testimony regarding Appellant’s inculpatory statements, Butler also testified that Appellant wrote her numerous letters from jail while he was awaiting trial. Many of Appellant’s letters (of which Butler read excerpts to the jury) professed his love to her and spoke disparagingly about Williams. Butler also discovered, however, that Appellant had written love letters to Williams during the same time period. Butler testified that, after Appellant made the inculpatory statements to her, he wrote her letters, expressing at different times love, anger, and regret at how he had treated her in the past. He also told her to get her “story together” with others and “expose” Williams “for the dope snorting ... child beating whore that she is.” In one letter, Appellant told Butler that she needed to testify on his behalf and do what he needed her to do.

Appellant testified, thereby providing his version of what occurred that day. He denied injuring E.C., and he denied telling Butler, Homer, Adams, or Dawn that he injured E.C. When his attorney asked who hit or hurt E.C., Appellant stated, “It had to be [Williams], it had to be.” Appellant explained, “When I left she was there. Now, if anybody came while I was gone, I don’t know. I really can’t speak and say this person or that person, but I know who I left with her children. I left [Williams] with her children when I went to Dallas.” Appellant testified that while he was living with Williams, “she drank alcohol a lot and she was using cocaine, just pure cocaine.” While he acknowledged that he never saw her doing it, he testified that he “knew” something was different due to her actions and mood swings.

On cross-examination, the State elicited the following testimony from Appellant:

[State]: Q. [Y]ou have pretty much told this jury that, I mean, pretty much [Williams] is the main suspect, correct?

[Appellant]: A. Yes, sir.

Q. And if you are in jail on a capital murder charge, why would you repeatedly write [Williams] letters telling her that you love her?

A. I was never told that I couldn’t write anybody....

Q. [M]y question is: If you are not guilty of these charges and you are truly innocent and [Williams] is the one who is the main suspect, why are you writing her letters saying you love her?

A. Because I can feel free to write whoever I want to, sir.

Q. Is [Williams] framing you?

A. Yes.

Q. Okay. Let me show you what’s been marked as State’s Exhibit 15 which is a letter you wrote to [Williams] on December 16th, 2009. First off, what does it say on the back of the envelope?

A. I still love you. You love me, too.

Q. Okay. And I want you to read this paragraph to the jury, sir.

A. I just want you to know that I love you and I always will. You came into my life and it was never a boring moment. We had a lot of fun for real. I appreciate that.

Q. So [Williams] is framing you, but you are writing her letters saying you love her?

A. Yes, sir.

During closing argument, the State argued, ‘Your old lady puts a capital murder charge on you and you are in custody, are you going to write love letters to her, I don’t think so.” The State also argued,

[Appellant] comes in here and trashes [Williams] and tells you about cocaine use and what a horrible mother she is. And yet on the tape with Detective Hutchins he’s very explicit when he says drugs aren’t [Williams’s] thing. [Appellant] is nothing but a boldface liar. And with two women telling them that he loves them, he’s trying to do damage control.

The State also argued that

[t]he evidence supports [Butler’s] version, which is this man told her what he did to [E.C.] that night.

And then ladies and gentlemen there is a fact of what [Appellant] told all the other people that night. All different versions of it, but all the same story, which is I’m the one who did something. Sometimes it’s on accident, sometimes it’s on purpose, sometime[s] it’s just, well, I just didn’t know what was going to happen, but it was always the same thing, but not [Williams] did something to this child....

Appellant’s attorney argued,

Did you see [Williams] on the stand, and think about it? She’s a mother and she has lost a child. Would a mother have somebody say I’ve injured your child. I’ve knocked your child unconscious and then go away looking for money for drugs? Come on does that sound rational? Is that something that would happen? Think about it. It didn’t happen.

After examining the record as a whole, we have a fair assurance that the alleged error did not influence the jury or that it had but a slight effect. For one, Appellant testified, thereby allowing the jury to assess his credibility in comparison to the other witnesses. Moreover, Appellant still challenged Williams’s credibility, despite the introduction of the audio-taped interview. Also, the State introduced other evidence implicating Appellant in E.C.’s death that, at least in the case of Butler’s testimony, was more damaging than Williams’s audio-taped interview. Further, ample evidence supported the jury’s guilty verdict. Indeed, although not a confession of guilt, Appellant does not challenge the sufficiency of the evidence establishing his guilt. See Motilla v. State, 78 S.W.3d 352, 356 (Tex.Crim.App.2002) (recognizing that overwhelming evidence can be a factor to be considered in conducting a rule 44.2(b) harm analysis). Because we conclude that any error in introducing the audio-taped interview was harmless, we overrule Appellant’s first point.

B. Admissibility of Appellant’s Custodial Statements to His Girlfriend

In his second point, Appellant asserts that the trial court erred by admitting a confession he made to one of his girlfriends, Butler, while he was in custody. Appellant contends that Butler was acting as an agent of the State and was therefore required to warn him in compliance with Miranda v. Arizona and article 38.22 of the code of criminal procedure. He.asserts violations of Miranda; the Texas constitution; the Fifth, Sixth, and Fourteenth Amendments; and articles 38.22 and 38.23 of the code of criminal procedure. See U.S. Const. amends. V, VI, XIV; Tex. Const. art. I; Tex.Code Crim. Proc. Ann. arts. 38.22, 38.23 (West 2005); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State responds that the trial court properly overruled Appellant’s motion to suppress his inculpatory, custodial statements to Butler because she was not acting as an agent of the State when he confessed to her; therefore, Appellant’s rights were not violated.

1. Applicable Law

The Fifth Amendment of the United States Constitution provides that no person shall be compélled in any criminal case to be a witness against himself. , U.S. Const, amend. V. As a prophylactic protection of this Fifth Amendment right, law enforcement officials, before questioning a person in custody, must inform a defendant that he has the right to remain silent and that any statement he makes may be used against him in court. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App.2008).

The state law corollary to Miranda warnings is found in article 38.22 of the code of criminal procedure, which sets out the requirements for the admission of an accused’s statements, including (as raised by Appellant) the following:

Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

Tex.Code Crim. Proc. Ann. art. 38.22, § 3(a)(2).

The procedural safeguards of Miranda and article 38.22 apply to custodial interrogation by law enforcement officers or their agents. Berry v. State, 233 S.W.3d 847, 855 (Tex.Crim.App.2007); Wilkerson v. State, 173 S.W.3d 521, 527 (Tex.Crim.App.2005). Private citizens ordinarily are not regarded as law enforcement officers and thus cannot engage in custodial interrogation under article 38.22. See Oriji v. State, 150 S.W.3d 833, 836 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). A citizen who acts as an agent of law enforcement and interrogates a person in custody, however, is “bound by all constitutional and statutory confession rules, including Miranda and Article 38.22.” Wilkerson, 173 S.W.3d at 529-30. In this context, “[t]he term ‘agency’ denotes a consensual relationship which exists between two persons or parties where one of them is acting for or on behalf of the other.” Id. at 529. The law does not presume an agency relationship, and the person alleging its existence has the burden of proving it. Id.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the [assistance of [c]ounsel for his defen[s]e.” U.S. Const. amend. VI. Once formal criminal proceedings begin, the Sixth Amendment renders inadmissible in the prosecution’s case-in-chief statements “ ‘deliberately elicited’ ” from a defendant without an express waiver of the right to counsel. State v. Hernandez, 842 S.W.2d 306, 312 (Tex.App.-San Antonio 1992, pet. ref'd), cert. denied, 509 U.S. 927, 113 S.Ct. 3049, 125 L.Ed.2d 733 (1993) (quoting Michigan v. Harvey, 494 U.S. 344, 345, 110 S.Ct. 1176, 1177, 108 L.Ed.2d 293 (1990)). There must be evidence that the witness acted “pursuant to an agreement with or instructions from government officials before he will be deemed a government agent for Sixth Amendment right to counsel purposes.” Manns v. State, 122 S.W.3d 171, 182 (Tex.Crim.App.2003); see Dotson v. State, 146 S.W.3d 285, 295-97 (Tex.App.-Fort Worth 2004, pet. ref'd) (discussing Manns and Hernandez.) “An individual’s action will not be attributed to the State if no promises are made for that individual’s help and if nothing was offered to or asked of that individual.” Hernandez, 842 S.W.2d at 315.

2. Relevant Facts

At a pretrial hearing, Appellant asked the trial court to suppress his custodial confession to Butler because she was an agent of the State, she did not provide Miranda warnings, and Appellant did not have counsel. In response, the State offered an audiotaped recording of a conversation between Butler and investigator Michael Weber with the Tarrant County District Attorney’s Office. The trial court listened to the tape (as has this court).

Additionally, Investigator Weber testified at the pretrial hearing that he contacted Butler at the lead prosecutor’s request, that he interviewed her at a restaurant, and that he recorded their conversation. Weber testified that he asked Butler if Appellant had made any previous incriminating statements to her and that she responded, “No.” Butler then stated that if Appellant would confess to anyone, it would be her, and Weber “immediately” responded, “[T]hat’s obviously not anything we’re going to ever ask you to do, you understand that[?]” To which Butler replied “yes.” Weber testified that later

[Butler] again begins to question me about what she should do, if [Appellant] tells her something. And I again tell her that that’s not anything we are going to ask her to do, to go talk to him, we would never do that. And she — she presses it, says what if he does, what do I do?

I told her you are going to have to tell the truth at trial, and we would appreciate a heads up.

When the prosecutor asked Weber if he ever instructed Butler to work on behalf of the District Attorney’s Office or law enforcement to go and get information, Weber responded, “Absolutely not.” Weber testified that he served Butler with a subpoena that day and that she was not happy about it.

On cross-examination, Weber testified to the following:

[Defense Counsel]: Q. When [Butler] made some statement about, well, if he would confess to anybody, he would confess to me, did you discourage her from trying to get a confession?

[Weber]: A. Yes, sir, I did.

Q. And what exactly did you say at that point?

A. At that point, my exact words are, that’s obviously not anything we are ever going to ask you to do. You understand that? And she said yes.

Q. But you didn’t tell her not to do it, did you?

A. At that point, I did not want her to do it and I did not want to emphasize it.

Q. In no way did you attempt to discourage her after you asked her about confessions, did you?

A. Oh, absolutely, I attempted to discourage her.

Q. So you are saying we are not going to ask you to do it; is that right?

A. That’s correct.

Q. Leaving her with the impression that you would still want it?

A. No, sir.

Weber testified that he told Butler, “If he hasn’t told you anything by now, he’s not going to tell you anything.” Weber further testified that he did not-hear from Butler again until she appeared for the court date listed on her subpoena, approximately one month later. When Butler arrived, she told Weber that she had visited Appellant in jail and that he told her he did it.

Butler testified at the pretrial hearing and confirmed that she met with Weber in September 2009; she testified to the following:

[Defense Counsel]: Q. Okay. What did you tell him in regards to whether or not [Appellant] made statements to you?

[Butler] A. He had not made any— he hadn’t confessed to any crimes at the time.

Q. And during that conversation, did Mr. Weber talk to you about whether or not the District Attorney’s Office wanted you to go and get us a confession?

A. He did.

Q. What did he tell you about that?

A. That he did not need me to do that.

Q. Okay. Did he make it clear to you that the District Attorney’s Office was not asking you to go and talk to [Appellant] on our behalf? Did he make that clear to you?

A. He definitely did.

Q. Okay. Was there any — looking back now and even at that moment, did you at any point feel like the District .Attorney’s Office was asking you to do something?

A.. No.

Butler then explained that between one and two weeks after she met with Weber, she went to see Appellant in jail, as she had done many times before. Butler testified that she had been in an ongoing relationship with Appellant and that she had decided she was going to ask him what happened to E.C. because she was a mother and needed to know. Butler testified that before Appellant made any statements to her, she asked if he “did it.” She then testified to the following:

[Defense Counsel]: Q. [W]hen you were doing that, were you thinking about telling the DA’s office at that point?

[Butler]: A. I was definitely going to tell on him.

Q. And you knew that they wanted him to make some sort of statement or admission at that point; is that correct?

A. I knew that I wanted to know. And I knew that if he told me, that I was going to tell—

Butler testified that after she talked to Appellant, she did not tell the District Attorney’s Office until she went to court on her subpoena in October 2009. At this point, the trial court denied Appellant’s request that Butler’s testimony be suppressed.

At trial, Butler testified that she and Appellant had lived together and had been in a relationship before he moved in with Williams and her two children and that they had continued their relationship even after he moved in with Williams. Butler testified that at approximately 8:00 on the evening of the offense, she had talked to Appellant, that he was “panicky,” and that he had said he thought E.C. was “dying, like he[’s] not breathing.” Appellant stated to her that he came home and found E.C. like that and that Williams was not home. Appellant stated that E.C. “wasn’t looking right,” that he “look[ed] sickly” and that when he gave him orange juice, he “just started shaking.” After Appellant hung up, Butler attempted to call him back several times, and when she got through, he said that he was trying to talk to 911 and that he had to leave the house because he was on parole.

Butler met Appellant at a gas station near Williams’s home where Appellant had been watching “the whole thing.” Appellant told Butler that E.C. had just had an asthma attack “or something” and that he was going to be all right. Butler decided to wait at Williams’s home to tell her that her son had been taken to the hospital, but as she approached the house, an officer stopped her and took her to the Alliance for Children building for questioning. She remained at the center from 9:00 p.m. until 5:00 a.m.

When she got home, Butler spoke with Appellant on the phone and told him that the police were saying that he beat E.C. half to death and that E.C. might not make it. Appellant told her that the police were lying and that he found E.C. “like that.” Appellant was arrested later that day. Butler and Appellant continued their relationship for a while, and she continued to visit him in jail, believing that he had not done anything wrong.

Eventually, Butler decided to contact Williams and let her know the things Appellant had told her. When the two women began talking, they realized that Appellant was telling them both that he loved them and that he had been lying to them both. Butler testified that as time progressed, she lost her feelings for Appellant but that she continued to visit him sporadically.

Butler testified that she met with Investigator Weber from the District Attorney’s Office and that she was upset that he had served her with a subpoena because she did not want to be “any part of this.” When the prosecutor asked Butler why she decided to ask Appellant about E.C. after Weber served her with the subpoena, Butler testified, “Actually, I had been trying to get [Appellant] to tell me for a while, but, I don’t know, on this particular day, I just kind of put some stipulations on it.” Butler explained that she told Appellant that if they were going to be a family that she “need[ed] to know some stuff.” After that, Appellant looked down and told her

that he beat him. He was punching him. He wouldn’t quit screaming. He started stomping him. And the little n[-] just started screaming real loud. And he grabbed him, hit his head on the corner of the bathroom sink, and that’s when he started shaking and trembling and going into convulsions.

3. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). A trial court necessarily abuses its discretion if it refuses to suppress evidence that is obtained in violation of the law and that is, therefore, inadmissible. Wilson v. State, 311 S.W.3d 452, 458 (Tex.Crini.App.2010).

4. Analysis

Appellant acknowledges that there is no evidence that Weber directly asked Butler to obtain the confession but -asserts that Weber “clearly implied” it given the nature and totality of the conversation. In support, Appellant contends that Butler “knew the investigator was saying they did not have a confession” and that although he said they were not going to ask her to obtain the confession, “he clearly did not tell her to not do the same.” Appellant also asserts that “[i]t was also clear in [Butler’s] mind that she wanted to help them and she went to the jail with every intent to obtain a confession and turning it over to the state.”

Appellant cites no case law in support of his argument that an implied request is sufficient. See Manns, 122 S.W.3d at 187 (stating that in the context of the Sixth Amendment that “there is general agreement that affirmative conduct by a government official is required to, convert, an entrepreneurial informant into, a government agent”). In any event, we note that the record does not demonstrate an implied request. The prosecutor specifically asked Butler, “[D]id you at any point feel like the District Attorney’s Office was asking you to do something?” And Butler responded, “No.” Nonetheless, Appellant asserts that “certain information can be discerned [on the audiotaped recording] such as the tone of the conversation as well as [Investigator Weber’s] general tone of desiring a confession which prompts the witness to clearly want to help the State by obtaining one.” While we have listened to the recording and do not hear indications of an implied request, many of Weber’s and Butler’s statements were difficult to understand; for this reason, we defer to the trial court’s assessment that the recording does not constitute affirmative evidence that conflicted with Butler’s testimony. See Madden v. State, 242 S.W.3d 504, 516 (Tex.Crim.App.2007).

Moreover, even if the State hoped for a confession from Appellant, this is not sufficient to establish that Butler was an agent. See Manns, 122 S.W.3d at 185 (“[S]everal courts have expressly held that the analysis does not change even if the government is aware of the entrepreneurial inmate’s self-seeking tendencies and government officials believe — or even hope — that the inmate will elicit information from the defendant.”). Also, Butler’s desire to help is not dispositive. Id. at 185 (stating that “the government does not convert the informant into a government agent by merely accepting the offered information”). Further, to the extent it could be said that Butler deliberately elicited the information from Appellant, this does not determine the agency issue. See id. at 182 (noting that several federal circuit courts recognize that the “agency inquiry” constitutes a separate and distinct analysis “from whether the informant ‘deliberately elicited’ [the] information” sought to be suppressed as being obtained in violation of the accused’s Sixth Amendment right to counsel (emphasis added)); see also Hernandez, 842 S.W.2d at 313 (“It appears clear that in examining the Massiah[ ] line of cases that to find a Sixth Amendment violation,. the statements in question must have been (1) ‘deliberately elicited’ (2) by a ‘government agent.’ ”).

We find the case of Escamilla v. State instructive. See 143 S.W.3d at 822. Escamilla asserted that the trial court erroneously denied his motion to suppress a custodial videotaped interview he gave to a television reporter two days after his arrest and that the admission of the tape violated the Sixth Amendment and article 38.22. Id. at 822. The evidence showed that the police followed their established practice in permitting the reporter to interview Escamilla in jail after he consented. Id. Escamilla claimed that the reporter became a state agent when he talked to a police officer before the interview, and the officer allegedly asked the reporter to get Escamilla to talk because Escamilla would not talk to the police. Id. at 823. The reporter testified to the following:

[Reporter]: A. I asked [the officer], are you going to try to block me. And, he said, well no, I want you to get him to talk. He won’t talk to me. Words to that [effect]. That’s not [a]' quote, that’s, you know, what my recollection, my impression of what he said.

[State]: Q. The remark that was made, how did you review that remark by him, that I hope you get him to talk or whatever the words were that he used?

A. I thought he was, you know, I was still sensitive about thinking he was going to try to block the interview. And, he said, like a laugh, a throw away, you know, he won’t talk to me so, maybe, you know, maybe you can get him to confess, something like that.

[T]hat is my recollection, is he said, he chuckled and said,' hell, no, I want you to get him to confess, he won’t talk to me.

[H]e did it in a laughing way. It was not a direct order or anything.

Q: And, that was my next question. Did you take that comment by him as any kind of directions to you as to what you should do?

A. No, sir, absolutely not.

Id. The court of criminal appeals held that the record did not indicate that the reporter acted as a state agent when he interviewed Escamilla and stated that the officer’s hope that Escamilla would incriminate himself during the interview “was not an offer to the reporter to act as a state agent and did not convert an otherwise legal interview into an illegal one.” Id. at 824 (citing Hernandez, 842 S.W.2d at 312-16).

The instant record demonstrates that Butler was not acting as a state agent when she questioned Appellant — and he made incriminating statements — about his involvement in E.C.’s murder. Thus, the trial court did not abuse its discretion by admitting Butler’s testimony regarding such. We overrule Appellant’s second point.

C. Admissibility of Appellant’s Custodial Statements to CPS Investigator

In his third point, Appellant asserts that the trial court erred by admitting statements he made to CPS investigator Emily Jandrueko while he was in custody. Appellant contends that Jandrueko was a state agent and therefore required to warn him in compliance with Miranda v. Arizona and article 38.22 of the code of criminal procedure. He asserts violations of Miranda; the Texas constitution; the Fifth, Sixth, and Fourteenth Amendments; and articles 38.22 and 38.23 of the code of criminal procedure. See U.S.. Const. amends. V, VI, XIV; Tex. Const. art. I; Tex.Code Crim. Proc. Ann. arts. 38.22, 38.23; Miranda, 384 U.S. 436, 86 S.Ct. 1602.

1. Standard of Review

We review for an abuse of discretion a trial court’s decision to admit testimony of a CPS worker when the defendant challenges the testimony under Miranda and article 38.22. See Berry, 233 S.W.3d at 856; Wilkerson, 173 S.W.3d at 523-24. Under that standard, we must affirm the trial court’s decision to admit the testimony if the decision is within a zone of reasonable disagreement. See Berry, 233 S.W.3d at 858; Moore v. State, 233 S.W.3d 32, 40 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

2. Applicable Law

The procedural safeguards of Miranda and article 38.22 apply to custodial interrogation by law enforcement officers or their agents. Berry, 233 S.W.3d at 855; Wilkerson, 173 S.W.3d at 527. State employment does not, by itself, make a person an agent of the State for the purpose of defining “custodial interrogation.” Berry, 233 S.W.3d at 855; Wilkerson, 173 S.W.3d at 528. Different types of state employees serve different roles. Berry, 233 S.W.3d at 855; Wilkerson, 173 S.W.3d at 528. Law enforcement ferrets out crime, investigates its commissions, arrests perpetrators, and gathers evidence for possible prosecution. Berry, 233 S.W.3d at 855; Wilkerson, 173 S.W.3d at 528. CPS workers protect the welfare and safety of children in the community. Berry, 233 S.W.3d at 855; Wilkerson, 173 S.W.3d at 528. “For the most part, CPS caseworkers, who are investigating family placement and safety matters, and police officers, who are investigating criminal matters, run on separate parallel paths.” Wilkerson, 173 S.W.3d at 529. “ ‘[I]f the once-parallel paths of CPS and the police converge, and police and state agent[s] are investigating a criminal offense in tandem, Miranda warnings and compliance with article 38.22 may be necessary.’ ” Berry, 233 S.W.3d at 855 (quoting Wilkerson, 173 S.W.3d at 529).

Courts must examine the entire record to determine if the paths of CPS and the police are parallel or if they have converged in a particular case. Berry, 233 S.W.3d at 855; Wilkerson, 173 S.W.3d at 530. Central to this evaluation are the relationship between the police and the potential police agent and the actions and perceptions of the police, the CPS worker, and the defendant. Berry, 233 S.W.3d at 855; Wilkerson, 173 S.W.3d at 530. The essential inquiry is whether the custodial interview was conducted explicitly or implicitly on behalf of the police for the purpose of gathering evidence or statements to be used in a later criminal proceeding against the interviewee. Berry, 233 S.W.3d at 855; Wilkerson, 173 S.W.3d at 531. The law does not presume an agency relationship, and the person alleging such a relationship bears the burden of proving it. Wilkerson, 173 S.W.3d at 529.

3. Relevant Facts

At trial, Appellant asked the trial court to exclude the testimony of Jandrucko regarding inculpatory statements he made to her because those statements were alleged to have been obtained in violation of his Fifth and Sixth amendment rights. The trial court conducted a hearing outside of the jury’s' presence during which Jan-drucko testified.

During her proffered testimony, Jan-drucko testified that she worked as a CPS investigator and that she met with Appellant on April 3, 2009, when he was in custody in the Tarrant County jail. Jan-drucko testified that the purpose of a CPS investigation is to investigate abuse and neglect allegations and that “[i]t is a requirement and policy of the investigation to interview all principals that are listed in the case.” She testified that she did not provide any Miranda warnings prior to talking with Appellant but that, as was her procedure, she told Appellant that there was a CPS investigation in progress and that she needed to obtain a social history. Jandrucko talked with Appellant about his social history and what happened in this case. Jandrucko testified that she was not working on behalf of anyone other than CPS when she interviewed Appellant and that no police officer or law enforcement agent told her what questions to ask.

On cross-examination, Jandrucko agreed that she worked for the State of Texas and testified to the following:

[Defense Counsel]: Q. You know, do you not, that it is a crime on your part if you obtain information of child abuse and you, don’t report it to the police?

[Jandrucko]: A. Yes, sir, I do know that.

Q. So when you talk to somebody, you already know that you have to talk to the police and give them any information you receive regarding child abuse?

A. That is correct, joint investigations.

Q. And you were working your joint investigation in this case?

A. Correct.

Q. And you did, in fact, turn over all your information to the police in this joint investigation, did you not?

A. Yes, sir.

Q. That is always the policy of CPS, is it not?

A. Yes, sir.

Shortly thereafter, Appellant asked to see any reports that Jandrucko had reviewed, and the trial court took a recess. Jan-drucko then continued testifying as follows:

[Defense Counsel]: Q. Before the break, you said you turned all of your stuff over to the police.

[Jandrucko]: A. They can receive it from closed records.

Q. Did you turn it over—

A. Not me personally, no, sir.

Q. Did anybody else with the office turn it over to the police?

A. I am not aware if they did or not. I ran a separate investigation.

Q. What happened during the break? Did you talk to the State? Did you talk to the State during the break?

A. Yeah.

Q. You did? And they talked to you about whether or not you are an agent?

A. I’m not an agent.

Q. Did they talk to you about that?

A. No, they did not.

Q. They talked to you about what you had said?

A. Correct.

Q. And they told you some things they wanted to clarify, did they not?

A. Yes.

Q. And you clarified them the way they want you to clarify them now, did you not?

A. About joint investigations.

Q. Did you commit perjury on your first set—

A. No.

Q. —of testimony?

A. No.

Q. So that testimony was true?

A. Yes, sir.

Q. And you do have a joint investigation, don’t you, with the police?

A. They run their separate investigation versus ours.

Q. And you work with them?

A. I do. In the same building, yes, sir.

Q. And you work to help them in investigations where there is abuse?

A. Yes, sir.

On redirect by the State, Jandrucko testified that the Fort Worth Police Department did not have any say in how she investigated the allegations and who would have custody of N.W. Jandrucko testified that the police department did not ask her to question Appellant and that she was working independently for her own agency’s purposes when she spoke with Appellant.

Following this proffer of evidence, Appellant moved to suppress Appellant’s statements to Jandrucko due to violations of the Fifth and Sixth Amendments, the Texas constitution, and article 38.23. The trial court overruled Appellant’s objection to Jandrucko’s testimony, stating:

[Appellant’s] right[s] on the Fifth and Sixth Amendment were not violated. The CPS investigator was doing an investigation that was required by her position as an investigator for [CPS].

She was not told by the police what to ask the [Appellant], nor was there any evidence presented that she was requested by the police to go and visit this [Appellant].

So the Court finds there was no evidence that law enforcement provided her with any questions to be asked or that she did anything that would — that was designed to assist law enforcement. She was merely doing her job as a [CPS] investigator.

4. Analysis

We review the record to determine whether Appellant has met his burden to show that the paths of CPS and the police had converged such that Jandrucko was a law enforcement agent required to comply with Miranda when interviewing Appellant. Appellant argues that “the Wilkerson three tiered inquiry reflects that the relationship between the [CPS] worker and police was that they were working together, in ‘joint investigations’ not parallel investigations.” The record as a whole, however, does not support Appellant’s contention.

a. Relationship Between the Police and Jandrucko

The Wilkerson court directed courts to ask the following questions to determine whether “law enforcement [was] attempting to use the interviewer as its anointed agent”:

• Did the police know the interviewer was going to speak with the defendant?

• Did the police arrange the meeting?

• Were the police present during the interview?

• Did they provide the interviewer with the questions to ask?

• Did they give the interviewer implicit or explicit instructions to get certain information from the defendant?

• Was there a “calculated practice” between the police and the interviewer that was likely to evoke an incriminating response from the defendant during the interview?

• Does the record show that the police were using the agent’s interview to accomplish what they could not lawfully accomplish themselves?

173 S.W.3d at 530.

Appellant asserts that Detective McClellan “solidified the fact the CPS investigation was a joint investigation with the police” when she testified that the first thing she did when she was called out on this case was to go to the Alliance for Children — “a nonprofit organization that unites the community in Tarrant County in the fight against child abuse ... by helping to coordinate the efforts of partner agencies[, including] the Fort Worth Police Department, Child Protective Services, Cook Children’s Hospital and the Tarrant County District Attorney’s Office.” Appellant also highlights Detective McClellan’s testimony that she contacted CPS prior to going to the hospital and that she agreed on cross-examination that it was the usual mode of operation for Fort Worth to coordinate the investigation with CPS and conduct a very purposeful, coordinated investigation.

In viewing the totality of Detective McClellan’s testimony, however, the Wilkerson questions are answered in the negative. Detective McClellan testified. that she received the instant injured-child call on March 29, 2009, and that she contacted the officers at the scene, called a forensic interviewer to interview N.W., called CPS to have a worker sent to the hospital, and went to the hospital at approximately 10:30 p.m. When she viewed E.C., he appeared to have been severely beaten. Early the next morning, Detective McClellan interviewed Williams. Williams provided a timeline (as set out in our disposition of Appellant’s first point) that implicated Appellant, and she stated, “I think' [Appellant] done it while I was gone” because “[he was] upset with me.”

Detective McClellan also testified that she interviewed Butler around 3:00 a.m. on March 30, 2009, and that afterward she prepared an arrest warrant for Appellant for serious bodily injury to a child. Detective McClellan testified that after E.C. died, she obtained a second arrest warrant on April 2, 2009, for Appellant for capital murder. When asked on cross-examination when she spoke with Jandrucko, Detective McClellan stated that she spoke with Jandrucko on April 7, 2009, four days after Jandrucko’s interview with Appellant. Detective McClellan testified that at no point did she ever tell Jandrucko or CPS what to do. She explained that, while the police department and CPS cooperate with one another, they conduct separate investigations.

The record demonstrates that law enforcement did not attempt to use Jan-drucko as its anointed agent. Indeed, law enforcement already had a strong case against Appellant before Jandrucko interviewed Appellant, and there is no evidence that the police used the agent’s interview to accomplish what they could not lawfully accomplish themselves.

b. Interviewer’s Actions and Perceptions

We next determine whether, under Wilkerson, Jandrucko believed she was acting as an agent of law enforcement by asking:

• What was the interviewer’s primary reason for questioning the person?

• Were the questions aimed at gaining information and evidence for a criminal prosecution, or were they related to some other goal? ,

• How did the interviewer become involved in the case? 1

• Did the interviewer help “build a case” that led to the person’s arrest, or was the interviewer pursuing some other goal or performing some other duty?

• At whose request did the interviewer question the arrestee?

173 S.W.3d at 530.

In addition to her testimony outside the jury’s presence, Jandrucko testified to the jury that she interviewed Appellant after interviewing Williams and Williams’s mother and that she interviewed all three to obtain a social history report to determine the best placement for the remaining child, N.W. She noted that as a result of her investigation, N.W. remained in foster care. Jandrucko recounted Appellant’s version of the events on the day of the offense, including that he got home around 5:00 that morning, that Williams went to work and came home around 2:15 p.m., that they had “gotten into it,” that E.C. was laying in the back bedroom with' an ice pack on his head (although Appellant did not explain why), that Williams left to get money, that he left around 4:00 or 5:00 p.m., and that he came back around 7:00 that evening. Appellant told Jandrucko that Williams “had to get with the children occasionally” and that “the injuries could have occurred while he was — while he had left the home.” On cross-examination, Jandrucko agreed that Appellant never told her that he injured E.C.

The record reflects that Jandrucko did not assist the police in building a case that led to Appellant’s arrest. Cf. Cates v. State, 776 S.W.2d 170, 173-74 (Tex.Crim.App.1989) (holding that the evidence gathered by a CPS worker was instrumental to the defendant’s arrest for child abuse).

c. Appellant’s Perceptions of the Encounter

Appellant states that Jandrucko told him she was an investigator with CPS looking into child abuse allegations. See Wilkerson, 173 S.W.3d at 530-31 (advising reviewing courts to ask, “[Wjould a reasonable person in defendant’s position believe that the interviewer was an agent