IN THE
TENTH COURT OF APPEALS
No. 10-10-00421-CV
IN THE MATTER OF C.M., A JUVENILE
From the 272nd District Court
Brazos County, Texas
Trial Court No. 73-J-2010
MEMORANDUM OPINION
C.M. appeals from the trial court’s denial of a motion to suppress three
statements he made to law enforcement officials relating to an aggravated robbery.
After the trial court’s denial of his motion to suppress, C.M. pled true and was found to
have engaged in delinquent conduct for an aggravated robbery and possession of a
prohibited weapon. TEX. FAM. CODE ANN. §§ 54.03; 56.01(n)(2) (West 2008). C.M.
complains that the trial court erred by denying his motion to suppress his first two
statements because they were the result of custodial interrogation and therefore, the
failure of the officers to comply with the 5th and 14th Amendments to the United States
Constitution, Article 1, Sections 9 and 10 of the Texas Constitution, and section 51.095 of
the Texas Family Code. C.M. further complains that his third statement should have
been suppressed because section 52.025 was violated in that his custodians were not
allowed to speak to him prior to his making the statement and because he did not
affirmatively waive his rights as required by section 51.095 (a)(5)(A). TEX. FAM. CODE
ANN. § 51.095 (a)(5)(A) (West 2008). Because we find that the trial court did not abuse
its discretion by denying the motion to suppress, we affirm.
Standard of Review
We review a trial court’s ruling on a motion to suppress the statement of a
juvenile in an adjudication proceeding under the same abuse of discretion standard as a
motion to suppress the statement of an adult in a criminal proceeding. See Balentine v.
State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); In re J.A.B., 281 S.W.3d 62, 65 (Tex.
App.—El Paso 2008, no pet.). When reviewing the trial court’s ruling on a motion to
suppress, we view the evidence in the light most favorable to the trial court’s ruling.
State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); In re J.A.B., 281 S.W.3d at 65.
We uphold the trial court’s ruling if it is supported by the record and correct under any
theory of law applicable to the case. Iduarte, 268 S.W.3d at 548; In re J.A.B., 281 S.W.3d at
65. We give almost total deference to the 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. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Best v.
State, 118 S.W.3d 857, 861-62 (Tex. App.—Fort Worth 2003, no pet.). However, we
In the Matter of C.M., a Juvenile Page 2
review de novo a trial court’s rulings on application-of-law-to-fact questions that do not
turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53.
The Facts
An armed robbery of a convenience store committed with a shotgun took place a
short distance from the place C.M. was residing with his cousin, Charles, and Charles’s
wife, Laura. At this time, C.M. was fifteen years old. Shortly after the robbery, a
neighbor called the police to report a suspicious person attempting to enter Charles and
Laura’s residence through the back door. Multiple officers had been dispatched to the
scene to attempt to locate the robber, some of whom were in uniform and some were
not. An officer came to the residence and asked to search the residence because of the
neighbor’s report to make sure that no one had broken into the residence. Laura was
the only person at home and gave consent.
At one point during the search for the robber, a suspect was spotted and chased,
but that person escaped. A short time later, an officer spotted C.M. in an alley a short
distance away peering around a corner of a building. When he saw an officer and a
deputy constable, C.M. turned and tried to walk away. The officers took off running
after C.M. and told him to stop, which he did. C.M. was frisked for weapons and
walked back with the officers to the residence.
At the residence, C.M. was told not to leave and to wait next to Charles’s vehicle.
C.M. sat down on the back of Charles’s truck and waited. Hines, a detective, and at
In the Matter of C.M., a Juvenile Page 3
least one other officer stood with C.M. and had a conversation with C.M. about what he
had been doing that day and why he was not in school. During this time other officers
were in the vicinity of C.M. and were armed, although the officers testified that no
weapon was pointed at C.M. at any time and the weapons were unholstered only
during the protective sweep of the residence. Additionally, some of the officers at the
scene carried patrol rifles but the officers testified that they were pointed at the ground
in a safety circle position and not at C.M. While sitting on Charles’s truck, the officers
observed that C.M. seemed to be very nervous and shaking. He was dressed in a t-shirt
and shorts, which the officers believed was odd for the weather that day, which was
cool. C.M. was not handcuffed at any time prior to the conclusion of the second
statement made in the patrol car.
C.M.’s initial story regarding his whereabouts that day were shown to be untrue,
and after a short conversation of approximately five to ten minutes, Hines confronted
C.M. by telling him that they knew what had happened that morning and that C.M.
might as well be truthful with the officers. At this point, C.M. admitted that he had
robbed a store with a shotgun. He had stolen a shotgun from a friend in Dallas and had
hidden it under his bed wrapped in a towel. C.M. committed the robbery so he could
get the money to return to Dallas, his hometown. C.M. contended that he had thrown
down the money and shotgun while he was being chased. This is the first statement of
which C.M. complains.
In the Matter of C.M., a Juvenile Page 4
Hines then took C.M. to an unmarked police car so they could discuss what had
happened in a quieter environment. Hines got into the driver’s side and C.M. got into
the passenger side front seat. Another officer had already activated a recording device
in the vehicle. Hines asked C.M. similar questions except in more detail and C.M. again
confessed to stealing the shotgun and committing the robbery with the shotgun that
was loaded. C.M. stated that if the store clerk had resisted that he would have shot the
clerk. C.M. did not seem overly nervous or upset during this interview but was calm
and matter-of-fact. After this discussion, Hines told C.M. that he was under arrest and
that he would be taken to juvenile detention. This was the second statement of which
C.M. complains. C.M. was then left in the vehicle for a short time when another officer
came and asked him to exit the vehicle, at which time he was then handcuffed.
Multiple officers spoke with Charles and Laura during this time. Laura
consented to a search of C.M.’s room and the residence. Charles and Laura both
testified that they asked to speak to C.M., but were not allowed to do so. Both stated
that if they had been allowed to speak to C.M. they would have advised him against
making any statements until after speaking with an attorney and that they believed that
C.M. would have listened to their advice. Charles asked to accompany C.M. to the
police station but the officers told him no and that he could not speak with C.M. until
he was taken to juvenile detention. C.M. did not have any prior adjudications as a
In the Matter of C.M., a Juvenile Page 5
juvenile; however, Charles testified that C.M. had been in trouble before but had not
been caught when he lived in Dallas.
C.M. was taken to the Bryan Police Department to see a magistrate. C.M. was in
an interview room for approximately an hour waiting for the magistrate to arrive.
There is no dispute that C.M. was in custody at this time. Gore, a magistrate, arrived
and met with C.M. in the interview room. She reviewed the required warnings and
advised C.M. of his rights as required by section 51.095(a)(5)(A) of the Family Code.
C.M. signed an acknowledgment that he had been read and had his rights explained to
him by the magistrate, that he understood them, and had asked any questions he had
regarding them. This was electronically recorded both visually and aurally. The
magistrate asked C.M. if he still wanted to talk with the detectives and C.M. responded
affirmatively. Gore also testified at the suppression hearing that she believed that C.M.
understood his rights and that he voluntarily wanted to speak with the officers. C.M.
was interviewed by Hines and another detective and made a statement similar to the
statement recorded in the police vehicle. This statement by C.M. is the third statement
of which C.M. complains.
C.M. filed a motion to suppress each of these statements, which was denied after
a hearing by the trial court. C.M. did not testify at the suppression hearing. After the
motion was denied, C.M. pled true to the offenses of aggravated robbery and
possession of a prohibited weapon, a sawed-off shotgun. In the disposition phase, the
In the Matter of C.M., a Juvenile Page 6
trial court accepted the disposition of a determinate sentence of fifteen years’
confinement to be served in the custody of the Texas Youth Commission for the
aggravated robbery which had been agreed-upon by the State and C.M.
CUSTODY
In determining whether or not the statements should have been suppressed, the
initial inquiry is at what time C.M. was in custody of the police because the protections
of the 5th and 14th Amendments of the United States Constitution, article 1, sections 9
and 10 of the Texas Constitution, and relevant sections of the Family Code concerning
the admissibility of statements of a juvenile do not apply if the juvenile is not in custody
when the statement was made.1 See TEX. FAM. CODE ANN. § 51.095(d); Roquemore v.
State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001).
Custodial interrogation is questioning initiated by law enforcement after a
person has been taken into custody or otherwise deprived of his freedom in any
significant way. See Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528-30,
128 L. Ed. 2d 293 (1994); Cannon v. State, 691 S.W.2d 664, 671 (Tex Crim. App. 1985);
Martinez v. State, 131 S.W.3d 22, 32 (Tex. App.—San Antonio 2003, no pet.). ‚A
custodial interrogation occurs when a defendant is in custody and is exposed ‘to any
1 Although C.M. complains that the statements were made in violation of the Texas Constitution, he
makes no further arguments regarding what protections the Texas Constitution provides that differ from
those of the United States Constitution; therefore we will not address that portion of his issue. See TEX. R.
APP. P. 38.1(i); see also Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992) (declining to address
appellant's arguments regarding his state constitutional rights when the appellant did not make a
distinction between the United States Constitution and the Texas Constitution).
In the Matter of C.M., a Juvenile Page 7
words or actions on the part of the police . . . that [the police] should know are
reasonably likely to elicit an incriminating response.’‛ Roquemore v. State, 60 S.W.3d at
868 (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d
297 (1980)). A child is in custody if, under the objective circumstances, a reasonable
child of the same age would believe his freedom of movement was significantly
restricted. In re U.G., 128 S.W.3d 797, 799 (Tex. App.—Corpus Christi 2004, pet. denied);
Jeffley v State, 38 S.W.3d 847, 855 (Tex. App.—Houston *1st Dist.+ 2001, pet. ref’d).
We employ a two-step analysis in a juvenile delinquency proceeding to
determine whether a child is in custody. In re M.R.R., 2 S.W.3d 319, 323 (Tex. App.—
San Antonio 1999, no pet.). First, we examine all the circumstances surrounding the
interrogation in order to determine whether there was a formal arrest or restraint of
freedom of movement to the degree associated with a formal arrest. Stansbury, 511 U.S.
at 322, 114 S. Ct. at 1528-29; In re M.R.R., 2 S.W.3d at 323. This initial determination
focuses on the objective circumstances of the interrogation rather than the subjective
views harbored by either the interrogating officers or the child being questioned.
Stansbury, 511 U.S. at 322, 114 S. Ct. at 1529; In re M.R.R., 2 S.W.3d at 323. Second, we
consider whether a reasonable child would have felt he or she was at liberty to
terminate the interrogation and leave in light of the given circumstances. Thompson v.
Keohane, 516 U.S. 99, 112, 116 S. Ct 457, 465, 133 L. Ed. 2d 383 (1995); In re M.R.R., 2
S.W.3d at 323.
In the Matter of C.M., a Juvenile Page 8
The four factors relevant to a determination of custody include (1) probable
cause to arrest; (2) focus of the investigation; (3) subjective intent of the police; and (4)
subjective belief of the defendant. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim.
App. 1996); In re J.A.B., 281 S.W. 3d at 65; In re M.R.R., 2 S.W.3d at 323. Because the
determination of custody is based on primarily objective circumstances, whether the
law enforcement officials had the subjective intent to arrest is irrelevant unless that
intent is somehow communicated to the suspect. Stansbury, 511 U.S. at 323, 114 S. Ct. at
1529; Dowthitt, 931 S.W.2d at 254; Jeffley, 38 S.W.3d at 855; In re M.R.R., 2 S.W.3d at 323.
The following situations generally constitute custody: (1) when the child is
physically deprived of his freedom of action in any significant way; (2) when a law
enforcement officer tells the child that he cannot leave; (3) when law enforcement
officers create a situation that would lead a reasonable person to believe that his
freedom of movement has been significantly restricted; or (4) when there is probable
cause to arrest and law enforcement officers do not tell the child that he is free to leave.
Dowthitt, 931 S.W.2d at 255; Jeffley, 38 S.W.3d at 855.
However, merely being the focus of an investigation does not amount to being in
custody. Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990); Martinez, 131 S.W.3d
at 32. ‚Words or actions by the police that normally attend an arrest and custody, such
as informing a defendant of his Miranda rights, do not constitute a custodial
interrogation.‛ Roquemore, 60 S.W.3d at 868. When the circumstances show that the
In the Matter of C.M., a Juvenile Page 9
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, 778-79 (Tex. Crim. App. 1987); Martinez, 131
S.W.3d at 32.
‚The mere fact that an interrogation begins as non-custodial, however, does not
prevent it from later becoming custodial; police conduct during the encounter may
cause a consensual inquiry to escalate into custodial interrogation.‛ Dowthitt, 931
S.W.2d at 255; Jeffley, 38 S.W.3d at 856.
First Statement
C.M. complains that he was in custody at the time he made the first statement to
Hines while he was sitting on the back of Charles’s truck. Although the officer who
initiated contact with C.M. and brought him back to the residence told him he could not
leave, no other indicia of an arrest were present. C.M. was not handcuffed or otherwise
restrained, nor did the officers make any threats that he would be forcibly taken if he
attempted to leave. At that time, C.M. was at most a suspect but there was no probable
cause to believe that he had committed the robbery. The shotgun and money from the
robbery were found under Charles’s porch stairs after C.M. had made his first two
incriminating statements but not because of C.M.’s statements. C.M. stated that he had
thrown them away while hiding from the police. There was no other evidence
regarding whether C.M. subjectively felt he was in custody or not. Viewing the
In the Matter of C.M., a Juvenile Page 10
evidence in the light most favorable to the trial court’s ruling, we find that C.M. was not
restrained to the degree associated with a formal arrest. He was not in custody and
therefore, the officers were not required to give the required warnings and
admonishments. The trial court did not abuse its discretion in denying the motion to
suppress the first statement made by C.M.
Second Statement
Hines testified that because of the noise and activity at the residence that he took
C.M. to an unmarked police vehicle so that he could speak with him with fewer
distractions. Hines testified that he told C.M. on the way to the vehicle that he was not
under arrest. C.M. willingly followed Hines to the vehicle and got in the passenger side
front seat to speak with Hines. The audio recording demonstrates that C.M. was calm
and apparently wanted to tell his story to Hines. There were no threats or other
statements that indicated that C.M. was not free to leave or was forced to make the
statement on the audio recording. After the statement was given, Hines told C.M. at
that time that he was under arrest. During the time of the making of this statement, the
only other evidence connecting C.M. to the robbery was a resemblance between C.M.
and the individual shown on the video recording of the robbery from the convenience
store. There was no other evidence regarding C.M.’s subjective beliefs regarding
whether he was in custody or free to leave when he made the second statement.
Viewing the evidence in the light most favorable to the trial court’s ruling and giving
In the Matter of C.M., a Juvenile Page 11
deference to the trial court’s determinations of fact, we find that C.M. was not in
custody until after he made the second statement. The trial court did not abuse its
discretion by denying the motion to suppress the second statement because C.M. was
not in custody when the statement was made. We overrule issue one.
PRESENCE OF CUSTODIANS
In his second issue, C.M. complains that the trial court abused its discretion by
denying his motion to suppress his third statement made at the police department
because Charles and Laura were not allowed to speak to him prior to his making the
statement nor were they allowed to accompany C.M. to the police department. Rather,
they were affirmatively told that they could not speak with C.M. or accompany him
when they asked the officers, which C.M. contends is a violation of section 52.025(c) of
the Family Code, which states that ‚*a+ child … is entitled to be accompanied by the
child’s parent, guardian, or other custodian or by the child’s attorney.‛ TEX. FAM. CODE
ANN. § 52.025(c) (West 2008). However, there is no requirement that such a person be
present. See Cortez v. State, 240 S.W.3d 372, 380 (Tex. App.—Austin 2007, no pet.).
The burden of proof is on the child to establish a causal connection between a
statutory violation of section 52.025 and his statement. See Gonzales v. State, 67 S.W.3d
910, 913 (Tex. Crim. App. 2002) (holding that suppression required only when there is
causal connection between violation of parental notice requirement and receipt of
juvenile’s statement). While the issue in Gonzales involved a violation of section 52.02(b)
In the Matter of C.M., a Juvenile Page 12
relating to prompt parental notification, the same causal connection is required to
render a statement inadmissible for a statutory violation of section 52.025(c). See Cortez,
240 S.W.3d at 380-81.
Charles and Laura testified that if they had been able to speak with C.M. they
would have advised him not to make any statements prior to him speaking with an
attorney. Charles opined that C.M. would have heeded his advice because Charles had
been in trouble with the law previously. However, when later recalled as a witness,
Charles stated that he was unsure whether C.M. would have listened to his advice or
not.
On the recording of C.M. at the police department, C.M. never requested the
presence of Charles or Laura. C.M. had admitted that he committed the robbery
because he was trying to get away from their residence because he was not happy there.
C.M. is a distant cousin of Charles and had resided with Charles and Laura only for
approximately two months prior to the robbery. Prior to that, he had lived in Dallas his
entire life. In fact, when Charles reminded C.M. of his doctor’s appointment scheduled
that day, C.M. told Charles that he would not go, which could be construed as evidence
of C.M.’s refusal to act in accordance with Charles’s directions. Even if we assume
without deciding that section 52.025(c) was violated, when viewing the evidence in a
light most favorable to the trial court’s decision, C.M. did not establish a causal
In the Matter of C.M., a Juvenile Page 13
connection between the alleged violation and his third statement. We overrule issue
two.
WAIVER OF RIGHTS
In his third issue, C.M. argues that the third statement should have been
suppressed because he did not affirmatively waive each of the rights set forth in section
51.095(a)(1)(A) and therefore the statement was not made in compliance with section
51.095(a)(5).
Relevant Statutes
Section 51.095(a)(5)(A) of the Family Code provides the statement of a child
made while in custody is admissible if:
(5) the statement is made orally under circumstances described by
Subsection (d) and the statement is recorded by an electronic recording
device, including a device that records images, and:
(A) before making the statement, the child is given the warning described
by Subdivision (1)(A) by a magistrate, the warning is a part of the
recording, and the child knowingly, intelligently, and voluntarily waives
each right stated in the warning.
TEX. FAM. CODE ANN. § 51.095(a)(5)(A) (West 2008). The warnings required to be given
by section 51.095(a)(1)(A) are as follows:
(i) the child may remain silent and not make any statement at all and
that any statement that the child makes may be used in evidence
against the child;
(ii) the child has the right to have an attorney present to advise the
child either prior to any questioning or during the questioning;
(iii) if the child is unable to employ an attorney, the child has the right
to have an attorney appointed to counsel with the child before or
In the Matter of C.M., a Juvenile Page 14
during any interviews with peace officers or attorneys representing
the state; and
(iv) the child has the right to terminate the interview at any time.
TEX. FAM. CODE ANN. § 51.095(a)(1)(A) (West 2008).
Article 38.22, section 3(a) of the Texas Code of Criminal Procedure provides that
no oral statement of an accused shall be admissible 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 (West 2005).
Analysis
The language in section 51.095 of the Family Code is substantially the same as
that contained in article 38.22 of the Code of Criminal Procedure with the exception that
the Family Code requires that a magistrate administer the warnings to the child. The
Court of Criminal Appeals has determined that article 38.22 does not require an express
waiver of rights. Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000). Additionally,
this Court has previously held that there is no requirement that a juvenile explicitly
waive his rights pursuant to section 51.095 of the Family Code or article 38.22 of the
Code of Criminal Procedure. See In re J.L., No. 10-06-00246-CV, 2007 Tex. App. LEXIS
8909 at *13 (Tex. App.—Waco Nov. 7, 2007, no pet.) (mem. op.). Rather, an implicit
waiver can be inferred from the actions and words of the person being interrogated. See
Joseph v. State, 309 S.W.3d 20, 23 (Tex. Crim. App. 2010) (quoting North Carolina v. Butler,
In the Matter of C.M., a Juvenile Page 15
441 U.S. 369, 373, 99 S. Ct. 1755, 1760, 60 L. Ed. 2d 286 (1979)); see also Marsh v. State, 140
S.W.3d 901, 911 (Tex. App.—Houston *14th Dist.+ 2004, pet. ref’d) (construing TEX. FAM.
CODE ANN. § 51.095 consistently with TEX. CODE CRIM. PROC. ANN. art. 38.22).
As shown on the video recording of the third statement, C.M. was read the
required warnings by the magistrate. During that meeting with the magistrate, C.M.
indicated he understood his rights, including his right to have an attorney present and
to terminate the interview at any time. C.M. stated he understood those rights and
answered affirmatively when the magistrate asked him if he still wanted to talk with
the detectives. Following this, appellant proceeded to give his statement to the
detectives. Based on this implied waiver, the trial court’s denial of the motion to
suppress because C.M. knowingly and intelligently waived his rights is supported by
sufficient evidence. C.M.’s third issue is overruled.
Conclusion
Having found no error in the trial court’s denial of the motion to suppress the
statements, we affirm the trial court’s orders of adjudication and disposition.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 22, 2012
[CV06]
In the Matter of C.M., a Juvenile Page 16
in the Matter of C.M., a Juvenile
Combined Opinion