in the Matter of M v. Jr., a Juvenile

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-08-00059-CV

IN THE MATTER OF M.V. JR., A JUVENILE

NUMBER 13-08-00104-CV

IN THE MATTER OF C.A.V., A JUVENILE

On appeal from the County Court at Law
of Victoria County, Texas, Sitting as a Juvenile Court.

MEMORANDUM OPINION 1

Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Rodriguez

A jury found it true that appellants, M.V. Jr. and C.A.V., juveniles, committed the

offense of arson, enhanced by bodily injury to Ray Gregory. See TEX . PENAL CODE ANN .

1
See T EX . R. A PP . P. 47.4 (providing that m em orandum opinions should be “no longer than necessary
to advise parties of the court’s decision and basic reasons for it”).
§ 28.02 (Vernon 2003). Disposition was tried to the same jury. Following the

recommendation of the jury, the trial court sentenced both M.V. Jr. and C.A.V. to a

determinate sentence of forty years’ placement in the custody of the Texas Youth

Commission with a possible transfer to the Institutional Division of the Texas Department

of Criminal Justice. These appeals followed.2

By two issues, appellants contend that: (1) the evidence was insufficient to support

the jury's finding that Gregory, a firefighter, suffered bodily injury as result of the fire at the

elementary school; and (2) the trial court abused its discretion by joining the cases for trial.

By a third issue, C.A.V. asserts the trial court erred in denying a motion to suppress his

statement made to fire investigators.3 We affirm.

I. SUFFICIENCY OF THE EVIDENCE

By their first issue, appellants challenge the sufficiency of the evidence to establish

the felony enhancement portion of the offense. See id. § 28.02(d)(1). They contend that

the evidence was legally and factually insufficient to support the jury's finding that Gregory

suffered bodily injury and that his bodily injury, if any, was caused by the fire.

A. Standard of Review and Applicable Law

"In the adjudication phase of a juvenile case, the criminal legal and factual

sufficiency standards of review are employed." In re J.D.P., 85 S.W.3d 420, 422 (Tex.

App.–Fort Worth 2002, no pet.) (citing In re G.A.T., 16 S.W.3d 818, 828 (Tex.

App.–Houston [14th Dist.] 2000, pet. denied)). When we review a legal sufficiency

2
This opinion consolidates the Court's analysis of both appeals. See id. at rule 47.1.

3
M.V. Jr. enum erates two separate issues on appeal, including one regarding the sufficiency of the
evidence and one regarding the joining of the trials. C.A.V. presents four separate issues, including two
sufficiency issues, one joinder issue, and one m otion to suppress issue. For purposes of organization, we
com bine and renum ber the issues as three and address them as set forth above. See id.

2
challenge, we view all the evidence in the light most favorable to the prosecution to

determine whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); Coleman v. State, 131

S.W.3d 303, 307 (Tex. App.–Corpus Christi 2004, pet. ref'd). We do not reevaluate the

weight and credibility of the evidence, and we do not substitute our own judgment for that

of the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc);

Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd).

Instead, we consider whether the jury reached a rational decision. Beckham, 29 S.W.3d

at 151.

Evidence is factually insufficient only when the evidence as to an element is so

obviously weak as to undermine confidence in the fact-finder's determination or the proof

of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Berry

v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d

1, 11 (Tex. Crim. App. 2000) (en banc)); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.

Crim. App. 2006); Coleman, 131 S.W.3d at 307. "Such a factual sufficiency review

requires the reviewing court to consider all of the evidence." Berry, 233 S.W.3d at 854

(citing Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)). In determining

factual sufficiency, "[w]e are not bound to view the evidence in the light most favorable to

the prosecution and may consider the testimony of all the witnesses." Coleman, 131

S.W.3d at 307 (citing Johnson, 23 S.W.3d at 10-12). It is appropriate to disagree with the

fact-finder's determination only when the record clearly indicates that such a step is

3
necessary to prevent the occurrence of a manifest injustice. Id. at 307-08 (citing Johnson,

23 S.W.3d at 10-12).

We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997) (applying principle to legal sufficiency review); Coleman, 131

S.W.3d at 307 (same); Adi v. State, 94 S.W.3d 124, 141 (Tex. App.–Corpus Christi 2004,

pet ref'd) (applying principle to factual sufficiency review). Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State's theories of liability, and adequately describes the particular offense for which

the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001);

Malik, 953 S.W.2d at 240.

To obtain a conviction for arson, the State must prove that a person “start[ed] a fire

. . . with intent to destroy or damage . . . any building, . . . knowing that it is within the limits

of an incorporated city . . . ." TEX . PENAL CODE ANN . § 28.02(a)(2)(A). "An offense under

this section is a felony of the second degree, except that the offense is a felony of the first

degree if it is shown [at] trial . . . that . . . bodily injury . . . was suffered by any person by

reason of the commission of the offense." Id. § 28.02(d)(1). "Bodily injury" is defined as

"physical pain, illness, or any impairment of physical condition." Id. § 1.07(a)(8) (Vernon

Supp. 2008).

B. Bodily Injury

Appellants urge by their first issue that the evidence is insufficient to establish that

Gregory suffered physical impairment. We disagree.

4
 In this case, the jury was presented with evidence that Gregory helped to extinguish

the fire by participating in the following assignments: (1) entering the school and looking

for possible extension of the fire in other parts of the building; (2) looking for flare-ups, i.e.,

to "[s]ee if the fire kicked up in any way," and holding a ladder so that another firefighter

could climb onto the roof to check the extent of one flare-up; and (3) entering the room

where the fire originated to again check for fire extension. Gregory testified that, compared

to other fires he had worked, the room of origin was unusually hot. As they checked for

fire extension in that room, they discovered a fire inside the cinder block wall. Based on

Gregory's testimony, the three assignments, including breaks, lasted a total of

approximately forty-five minutes to one hour. Between his first and second assignments,

Gregory took a break to exchange air bottles and drink water in order to stay hydrated.

Between his second and third assignments, Gregory changed air bottles. It is unclear from

the testimony whether he drank water during this break.

The evidence further reveals that as Gregory left the room of origin at the end of his

third assignment, he started to feel "not right" and "to sweat very profusely more than

normal"; he was not "feeling good at all." Gregory was told to go to a rehab area where he

removed his upper gear and started to feel dizzy. He tried to drink water and sat down on

the curb. Because Gregory was still feeling severely dizzy, he laid on his side. He felt

weak, tried to sit up, got "real dizzy," and laid down again. Gregory thought he was going

to faint or fall and hurt himself. In addition, Gregory testified that his blood pressure was

low—98 over 604—and that the oxygen concentration in his blood (94%) was low.

4
Gregory testified that this blood pressure was abnorm ally low for him . Em ergency room physician,
Victor Arrellano, M.D., testified that he considered a blood pressure of 98 over 60 to be “borderline.”

5
 Paramedic and emergency medical technician personnel placed Gregory on a

stretcher and then into an ambulance. According to firefighter and paramedic Dustin

Ferguson, Gregory was given intravenous fluids and oxygen, and a cardiac monitor was

placed on him. Gregory's feet were elevated, and he was cooled. He was taken by

ambulance to a local hospital. Upon arrival at the hospital, blood tests were run,

determining that Gregory's potassium and sodium levels were below normal limits.

Gregory was given oral potassium to elevate his potassium levels. Gregory began to feel

better after about twenty minutes. Ferguson testified that, in his opinion, Gregory suffered

bodily injury because "he was ill that night."

Victor Arrellano, M.D., the emergency room physician who attended to Gregory,

testified that when he first saw him, Gregory was "very apprehensive but stable." Dr.

Arrellano testified that Gregory "was in a fire so he became dehydrated and became dizzy"

and if he had not received treatment, his condition would have worsened. Dr. Arrellano

testified that in his expert medical opinion, Gregory had a short-term impairment of a

physical condition that night. Gregory was diagnosed with mild dehydration.

Appellants assert that the following evidence is contrary to the jury's determination

that Gregory's physical condition was impaired: IV fluids given to Gregory at the scene of

the fire stabilized his condition by the time he arrived at the hospital; Gregory re-hydrated

with no long-term effects after only a period of twenty minutes; and Dr. Arrellano's

examination of Gregory evidenced no pain, normal blood pressure, normal temperature,

and oxygen saturation in the appropriate range.

"[B]odily injury" includes "any impairment of physical condition." Id. The definition

is broad. See Contreras v. State, 54 S.W.3d 898, 903 (Tex. App.–Corpus Christi 2001, no

6
pet.) (explaining, in an assault case, that "the definition of 'bodily injury' is purposefully

broad, encompassing even relatively minor physical contacts" as long as the contacts

constitute more than mere offensive touching); York v. State, 833 S.W.2d 734, 736 (Tex.

App.–Fort Worth 1992, no pet.) (citing Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim.

App. 1989) (en banc) (same)). It does not require proof that the impairment last a certain

amount of time. See TEX . PENAL CODE ANN . § 1.07(a)(8). The definition does not require

that the impairment be permanent. See id. In fact, it does not even require medical

treatment. See id.

In this case, the evidence established that Gregory's physical condition was

impaired when he experienced profuse sweating, severe dizziness, weakness, faintness,

lower-than-normal blood pressure, and low oxygen concentration in his blood. Gregory

was diagnosed with mild dehydration that was resolved with rest and re-hydration and

without which his condition would not have improved. We cannot conclude that evidence

of dehydration lasting approximately twenty minutes with no long-term effects is contrary

to the jury's determination that Gregory's physical condition was impaired. Thus, viewing

all the evidence in the light favorable to the prosecution, we conclude that a rational jury

could have found that Gregory suffered bodily injury beyond a reasonable doubt. See

Jackson, 443 U.S. at 318-19; Coleman, 131 S.W.3d at 307. Thus, the evidence is legally

sufficient to establish that Gregory suffered physical impairment. See Jackson, 443 U.S.

at 319.

Moreover, considering all of the evidence, we cannot conclude that the evidence

establishing bodily injury is so obviously weak as to undermine confidence in the fact-

finder's determination, or that the proof of guilt, although adequate if taken alone, is greatly

7
outweighed by contrary proof. See Berry, 233 S.W.3d at 854; Coleman, 131 S.W.3d at

307. Neither can we conclude that the jury's determination constituted a manifest injustice.

See Coleman, 131 S.W.3d at 307 (citing Johnson, 23 S.W.3d at 10-12). The evidence is,

therefore, also factually sufficient to establish that Gregory suffered physical impairment.

C. Causal Connection

By their first issue, appellants also challenge the sufficiency of the evidence to

establish a causal connection between Gregory's dehydration and the fire. Appellants

assert that it was not the heat and exertion that caused the dehydration but Gregory's

alleged failure to replenish fluids properly.

Arson is a second degree felony "unless bodily injury . . . was suffered by any

person by reason of the commission of the offense." TEX . PENAL CODE ANN . § 28.02(d)

(emphasis added). "'[B]y reason of' is wordy for because of." BRYAN A. GARNER , A

DICTIONARY OF MODERN LEGAL USAGE 125 (2d ed. 1995). Based on the relevant language

of section 28.02(d), the offense, thus, becomes a felony of the first degree only when

bodily injury is by reason of or because of the fire caused by the arsonist. See Wilson v.

State, 541 S.W.2d 174, 176 (Tex. Crim. App. 1976) (concluding "that the offense becomes

a felony of the first degree only when bodily injury less than death is sufficiently related to

or a result of the fire . . . caused by the arsonist" (emphasis added)).

The penal code also provides that a person is criminally responsible for causing an

injury if the injury would not have occurred "but for his conduct, operating either alone or

concurrently with another cause, unless the concurrent cause was clearly sufficient to

produce the result and the conduct of the actor was clearly insufficient." TEX . PENAL CODE

ANN . § 6.04(a) (Vernon 2003). Here, appellants are criminally responsible for causing

8
Gregory's dehydration if the injury would not have occurred but for the commission of the

arson, operating alone or concurrently with Gregory’s alleged failure to hydrate, unless the

alleged failure to hydrate was clearly sufficient to produce the injury and the commission

of the arson clearly insufficient. See id. §§ 6.04(a), 28.02(d).

In this case, the commission of the arson required the presence of firefighter

Gregory who wore bunker gear and was exposed to the heat as he completed three fire-

fighting assignments at the elementary school. See id. § 6.04(a). Gregory became

dehydrated immediately after completing his third assignment. But for the commission of

the arson, Gregory would not have been fighting the fire. But for the commission of the

arson, operating alone or concurrently with Gregory's alleged failure to hydrate, the injury

would not have occurred. Id. Additionally, even were we to conclude that Gregory failed

to hydrate and that this failure was clearly sufficient to produce the injury,5 the commission

of the arson was not clearly insufficient. Thus, the exception does not apply. Id.

Therefore, we conclude that appellants, who committed the arson, are criminally

responsible for causing Gregory's bodily injury and that by reason of or because of

appellants' commission of an arson, Gregory's physical condition was impaired.

Furthermore, viewing all the evidence in the light favorable to the prosecution, we

conclude that a rational jury could have found a causal connection between Gregory's

5
At trial, the jury also heard the following evidence which appellants contend is contrary to the verdict:
Gregory began sweating very soon after arriving and donning his bunker gear; firefighters have access to
water every tim e they exit the fire zone; as a param edic, Gregory knew the warning signs of dehydration;
Gregory adm itted that he was responsible for his own hydration levels; Gregory agreed that he was not
sufficiently replenishing fluids; Dr. Arrellano testified that the body sends signals when it is becom ing
dehydrated and if a person heeds those signals and properly rests and re-hydrates than the effects of
dehydration can be avoided; Dr. Arrellano also testified that Gregory's dehydration was a failure to replenish
fluids properly; Gregory did not drink any water between the com pletion of his exterior assignm ent and his
entry into the building the second tim e; a firefighter can rem ove him self from the fire zone to re-hydrate; and
Gregory testified that he felt thirsty inside the building but decided to "stick it out" because he knew they would
be exiting soon.

9
dehydration and the fire beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19;

Coleman, 131 S.W.3d at 307. The jury could have rationally concluded that appellants

caused an impairment of Gregory's physical condition as a result of the arson. See TEX .

PENAL CODE ANN . §§ 1.07(a)(8); 28.02(d). Thus, we conclude that the evidence is legally

sufficient to establish causation. See Jackson, 443 U.S. at 319.

Moreover, considering all of the evidence, we cannot conclude that the evidence

establishing that appellants' commission of arson caused Gregory's bodily injury is so

obviously weak as to undermine confidence in the fact-finder's determination, or the proof

of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Berry,

233 S.W.3d at 854; Coleman, 131 S.W.3d at 307; see TEX . CODE CRIM . PROC . ANN . art.

38.04 (Vernon 1979) (stating that the jury is the sole judge of the facts, the credibility of the

witnesses, and the weight given to testimony). Neither can we conclude that a manifest

injustice occurred based on the jury's determination. See Coleman, 131 S.W.3d at 307

(citing Johnson, 23 S.W.3d at 10-12). Thus, the evidence is also factually sufficient to

establish causation.

Having concluded that the evidence is legally and factually sufficient to support the

jury's finding that Gregory suffered physical impairment and that the commission of the

arson caused Gregory's injury, we overrule appellants' first issue.

II. JOINDER

By their second issue, appellants contend that the trial court abused its discretion

in granting the State's motion to join their respective cases. Appellants assert that each

of them recorded videotaped statements blaming the other for starting the fire, thus

presenting antagonistic and damaging testimony that would prejudice the jury.

10
 Pursuant to article 36.09 of the code of criminal procedure, the trial court has

discretion to try two or more defendants jointly if they were jointly or separately indicted for

the same offense or for any offense growing out of the same transaction.6 TEX . CODE

CRIM . PROC . ANN . art. 36.09 (Vernon 2007). However, if it is made known to the trial court

that, among other things, a joint trial would clearly prejudice either defendant, then upon

timely motion the trial court shall order a severance as to the defendant whose joint trial

could prejudice the other defendant. Id. To preserve a complaint that the trial court

abused its discretion in failing to order a severance, a defendant must make a timely

motion to sever and introduce evidence thereon. Id.; see Peterson v. State, 961 S.W.2d

308, 310 (Tex. App.–Houston [1st Dist.] 1997, pet. ref'd) (providing that absent evidence

supporting a ground for severance, severance is not a matter of right but rests within the

trial court's sound discretion); Gibbons v. State, 794 S.W.2d 887, 891 (Tex. App.–Tyler

1990, no pet.) (concluding that "evidence that the degree of guilt would be different among

the defendants does not establish that degree of prejudice which would require reversal").

On September 25, 2007, the trial court granted the State's motion for joinder. It is

undisputed that appellants were indicted for the same offense; thus, in the trial court's

discretion the defendants may have been tried jointly. See TEX . CODE CRIM . PROC . ANN .

6
Article 36.09 provides:

Two or m ore defendants who are jointly or separately indicted or com plained against for the
sam e offense or any offense growing out of the sam e transaction m ay be, in the discretion
of the court, tried jointly or separately as to one or m ore defendants; provided that in any
event either defendant m ay testify for the other or on behalf of the state; and provided further,
that in cases in which, upon tim ely m otion to sever, and evidence introduced thereon, it is
m ade known to the court that there is a previous adm issible conviction against one defendant
or that a joint trial would be prejudicial to any defendant, the court shall order a severance as
to the defendant whose joint trial would prejudice the other defendant or defendants.

T EX . C OD E C R IM . P R O C . A N N . art. 36.09 (Vernon 2007).

11
art. 36.09. Nonetheless, at the hearing on the State's joinder motion, appellants’ trial

counsel argued for severance, not joinder. Counsel argued that appellants would be

prejudiced if they were tried jointly; however, no testimony or other evidence was presented

supporting the arguments.

On November 1, 2007, M.V. Jr. and C.A.V. each filed a pre-trial motion to sever

contending, among other things, that they would be prejudiced by the testimony of the

other. However, no hearings were held and again no evidence was introduced in support

of the respective motions to sever, although it is undisputed that each appellant knew of

the videotaped statement of the other when the statements were given. See Aguilar v.

State, 26 S.W.3d 901, 906 (Tex. Crim. App. 2000) (en banc) (concluding that—in a case

where a motion to sever was held timely when presented during the trial—“the purpose of

filing a motion to sever is to alert the trial court to potentially prejudicial evidence and to

allow the court an opportunity to rule on the motion as the prejudicial evidence becomes

apparent"); Aguilar v. State, 39 S.W.3d 700, 702 (Tex. App.–Corpus Christi 2001, pet.

ref'd). Although each knew of the other’s statement, no evidence was introduced to the

trial court as to prejudice. We conclude that the court did not abuse its discretion in joining

the prosecution of appellants. We overrule the second issue.

III. MOTION TO SUPPRESS C.A.V.'S STATEMENT

By a third issue, C.A.V. contends that the trial court abused its discretion when it

denied his motion to suppress his statement about his involvement in the fire at the

elementary school.7 The trial court's denial of C.A.V.'s motion was based, in part, on its

7
M.V. Jr. also gave a statem ent to the fire m arshals. On appeal, however, M.V. Jr. does not challenge
the adm ission of his statem ent. Therefore, our m otion-to-suppress analysis applies only to C.A.V. See T EX .
R. A PP . P. 47.1.

12
finding that C.A.V. was not in custody at the time his statement was made. On appeal,

C.A.V. asserts that he was in custody and was entitled to be magistrated. See TEX . FAM .

CODE ANN . § 51.095(a) (Vernon 2008) (providing that "the statement of a child is

admissible in evidence in any future proceeding concerning the matter about which the

statement was given if" certain procedural requirements are followed including, among

others, that (1) a magistrate warn the child of his rights (to have an attorney present, to

remain silent, to have an attorney appointed, to terminate the interview), (2) the statement

be signed in the presence of a magistrate who is fully convinced that the child is knowingly

and voluntarily making the statement and waiving his rights, and (3) the magistrate certify

he examined the child outside the presence of law enforcement officers). In response, the

State argues that C.A.V.'s motion to suppress was properly denied because no custodial

interrogation took place and the statement was admissible. See id. § 51.095(b) (Vernon

2008) (explaining that this section does "not preclude the admission of a statement made

by the child" in certain instances including when he is not "in a detention facility or other

place of confinement," "in the custody of an officer," or "during or after the interrogation of

the child by an officer if the child is in the possession of the Department of Protective and

Regulatory Services and is suspected to have engaged in conduct that violates a penal law

of this state").

A ruling on a motion to suppress in a juvenile case is reviewed using the same

standard that applies to such motions in adult criminal cases. See In re R.J.H., 79 S.W.3d

1, 6 (Tex. 2002). A trial court's denial of a motion to suppress is reviewed for an abuse of

discretion, State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006), and in the light

most favorable to that ruling. See id.; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.

13
2006). In conducting this review, we use a bifurcated standard, giving almost total

deference to the trial court's determination of historical facts while reviewing the trial court's

application of the law to the facts de novo. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.

Crim. App. 1997) (en banc); see St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.

App. 2007) (citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)); Carmouche

v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

The admissibility of a statement given by a juvenile is controlled by section 51.095

of the family code. See TEX . FAM . CODE ANN . § 51.095 (Vernon 2008). A juvenile's

statement is inadmissible against the juvenile in a subsequent trial if it is taken during

custodial interrogation without the admonishments required by that section. Id. §

51.095(a). However, section 51.095 does not preclude the admission of a juvenile's

statement if the statement does not stem from custodial interrogation. Id. § 51.095(b).

“‘Custodial interrogation’ is questioning initiated by law enforcement officers after

a person has been taken into custody or otherwise deprived of his freedom of action in any

significant way.” Cannon v. State, 691 S.W.2d 664, 671 (Tex. Crim. App. 1985) (en banc).

In determining whether an individual is in custody, a two-step analysis is employed.

Martinez v. State, 131 S.W.3d 22, 32 (Tex. App.–San Antonio 2003, no pet.). First, a court

examines all the circumstances surrounding the interrogation to determine whether there

was a formal arrest or restraint of freedom of movement to the degree associated with a

formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam). This initial

determination focuses on the objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers or the individual being

questioned. Id. at 323; see Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)

14
(explaining that the subjective intent of both the police and defendant is irrelevant except

to the extent that intent may be manifested in the words or actions of the investigating

officials). "[T]he restriction upon freedom of movement must amount to the degree

associated with an arrest as opposed to an investigative detention." Dowthitt, 931 S.W.2d

at 255. Additionally, being the focus of a criminal investigation does not amount to being

in custody. Meek v. State, 790 S.W.2d 618, 621-22 (Tex. Crim. App. 1990) (en banc).

When the circumstances show that the individual acts upon the invitation or request of the

police and there are no threats, express or implied, that he will be forcibly taken, then that

person is not in custody at that time. Dancy v. State, 728 S.W.2d 772, 778 (Tex. Crim.

App. 1987) (en banc).

Second, a court considers, in light of the given circumstances, whether a reasonable

person would have felt he was at liberty to terminate the interrogation and leave.

Thompson v. Keohane, 516 U.S. 99, 112 (1995); see Jeffley v. State, 38 S.W.3d 847, 855

(Tex. App.–Houston [14th Dist.] 2001, pet. ref'd) (holding that a juvenile is in custody for

purposes of determining admissibility of his statement, if, based upon the objective

circumstances, a reasonable child of the same age would believe his freedom of

movement was significantly restricted). Traditionally, courts consider the following four

factors in making this determination: (1) whether probable cause to arrest existed at the

time of questioning; (2) the subjective intent of the police; (3) the focus of the investigation;

and (4) the subjective belief of the defendant. Dowthitt, 931 S.W.2d at 254. However, the

subjective intent of both the police and the defendant is irrelevant except to the extent that

the intent may be manifested in the words or actions of law enforcement officials.

Martinez, 131 S.W.3d at 32. The custody determination is based entirely upon objective

15
circumstances. Id. When the individual detained is a minor, courts consider his age and

all the circumstances surrounding the interrogation to decide whether there was a formal

arrest or a restraint of movement to the degree associated with a formal arrest. In re V.P.,

55 S.W.3d 25, 31 (Tex. App.–Austin 2001, pet. denied).

Applying the first part of the analysis, we examine all the circumstances surrounding

the questioning to determine whether there was a restraint of freedom of movement to the

degree associated with a formal arrest. Here, according to Fire Marshal Stuart Sherman,

although arson was suspected at the time C.A.V.'s statement was given, investigators were

still looking at the determination factors to make sure it was arson. It was on the evening

of the fire that C.A.V.'s mother made the request to speak with someone. Fire Marshal

Sherman and County Fire Marshal Kyle Young went to a residence where C.A.V.'s mother

explained that her sixteen-year-old son might have been involved in the fire. In front of Fire

Marshal Sherman, C.A.V.'s mother asked C.A.V. if he was willing to talk with the marshals

voluntarily with her present. C.A.V. nodded his head in agreement. C.A.V. also agreed

to transport himself, with his mother, in a private vehicle to an interview room at the district

attorney's office to make a statement. The interview room had an office-type environment.

It had framed artwork on the walls, a table, chairs, and a couch. The door to the room was

closed but not locked. Fire Marshals Sherman and Young interviewed C.A.V. During the

interview, the marshals wore no badges and carried no guns, ammunition, or handcuffs.

No threats or abusive language were employed. Before C.A.V.'s statement was given, the

marshals again commented that it was a voluntary statement and that C.A.V. and his

mother did not have to be there. Although the district attorney was in the building, he did

not participate in the interview, and no other office staff was present. After the statement

16
was given, C.A.V. and his mother left the office. Based on all the circumstances

surrounding the questioning and the taking of the statement, we conclude that C.A.V. was

not under formal arrest or under a restraint of freedom of movement to the degree

associated with a formal arrest.

Turning to the second part of the analysis, we examine whether a reasonable

sixteen-year-old in the same situation as C.A.V. would have felt free to terminate the

investigation and leave. In making this determination, we evaluate the four traditional

factors. First, we recognize that the fire marshals had not completed their investigation into

whether the fire was arson; therefore, probable cause to arrest C.A.V. did not exist at the

time the statement was given. Second, as to the subjective intent of fire marshals, we note

that, throughout their testimony, the marshals reinforced their position that the statements

were given voluntarily, often making statements to that effect to both C.A.V. and his

mother. They further acknowledged to C.A.V. that he was free to leave. They carried no

guns, ammunition, or handcuffs into the interview room, and secured no doors. Thus,

nothing in the record indicates either Marshal Sherman or Marshal Young objectively

communicated or otherwise manifested an intention to arrest C.A.V. through their words

or actions. See Jeffley, 38 S.W.3d at 854 ("The subjective intent of law enforcement

officials to arrest is irrelevant unless that intent is somehow communicated or otherwise

manifested to the suspect."). Third, we recognize that even though C.A.V.'s mother stated

that her son might be involved in the fire, C.A.V. was not the focus of the investigation at

that time, and he would not have been taken into custody for the arson based on the status

of the investigation at that time. Finally, no evidence was presented as to C.A.V.'s

subjective beliefs. Our evaluation of the four traditional factors leads us to conclude that

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a reasonable sixteen-year-old in the same situation as C.A.V. would not have believed his

freedom of movement was significantly restricted; rather, he would have felt free to

terminate the session and leave.

Therefore, based on the totality of circumstances, we conclude that C.A.V. was not

in custody when he gave his videotaped statement to the fire marshals. Because C.A.V.

was not in custody when he made his statement, the requirement that he be magistrated

did not apply to him. Accordingly, the trial court did not abuse its discretion in denying the

motion to suppress. We overrule C.A.V.’s third issue.

IV. CONCLUSION

We affirm the adjudication and disposition orders of the trial court entered against

M.V. Jr., in trial court cause number 1-5089. We also affirm the adjudication and

disposition orders of the trial court entered against C.A.V. in trial court cause number 2-

5088.

NELDA V. RODRIGUEZ
Justice

Memorandum Opinion delivered and
filed this 1st day of October, 2009.

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