in the Matter of E.M.R., a Juvenile

YÁÑEZ, Justice,

dissenting.

Because I would hold that E.M.R. was in custody at the time he gave his statements, and because the State failed to show that the statements were taken in compliance with section 52.02(b) of the family code, I respectfully dissent.

Standard of Review

At a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999); Vega v. State, 32 S.W.3d 897, 899 (Tex.App.—Corpus Christi, 2000, pet. filed); Childs v. State, 21 S.W.3d 631, 637 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd); In re L.R., 975 S.W.2d 656, 658 (Tex.App.—San Antonio 1998, no pet.). Consequently, we view the evidence in the light most favorable to the trial court’s ruling and afford almost total deference to its findings if they are supported by the record. Maestas v. State, 987 S.W.2d 59, 62 (Tex.Crim.App.1999); Vega, 32 S.W.3d at 899; Childs, 21 S.W.3d at 637; In re L.M., 993 S.W.2d 276, 286 (Tex.App.—Austin 1999, pet. denied); In re A.D.D., 974 S.W.2d 299, 305 (Tex.App.—San Antonio 1998, no pet.). Furthermore, the appellate court must sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). The same amount of deference must be afforded to the trial court’s rulings on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Maestas, 987 S.W.2d at 62; Vega, 32 S.W.3d at 899. However, we review de novo “mixed questions of law and fact” not falling within this category. Maestas, 987 S.W.2d at 62; Vega, 32 S.W.3d at 899; Childs, 21 S.W.3d at 637; In re L.M., 993 S.W.2d at 286; In re A.D.D., 974 S.W.2d at 305.

*721On appellate review, we must examine the record as it existed at the time of the suppression hearing. O’Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App.2000). In the present case, the issue of whether the officers complied with the statutory requirements of the family code is a mixed question of law and fact. However, because there is no disagreement about the facts or credibility of the witnesses regarding the evidence adduced at the suppression hearing,1 the resolution of the issue does not turn on an evaluation of witness credibility or demeanor, and de novo review is appropriate. See Jeffley v. State, 38 S.W.3d 847, 853 (Tex.App.—Houston [1st Dist.] 2001, no pet.) (holding de novo review proper where issue of custody does not turn on credibility or demeanor of witnesses).

Part I. Waiver

The majority holds that E.M.R.’s right to complain on appeal of a section 52.02(b) violation was waived because he did not specifically argue a section 52.02(b) violation at the suppression hearing. Although E.M.R. argued at the hearing that his statements were inadmissible because they were obtained in violation of the family code,2 he did not specifically argue inadmissibility based on a violation of section 52.02(b). However, the State did not raise the argument, now relied on by the majority, that E.M.R. waived his section 52.02(b) claim by failing to raise it before the trial court. Accordingly, I would decline to address sua sponte an argument that was neither urged by the State nor briefed on appeal.

Moreover, I conclude that because E.M.R. did not expressly waive compliance with section 52.02(b), he may raise his section 52.02(b) claim for the first time on appeal. See In re C.O.S., 988 S.W.2d 760, 767 (Tex.1999) (holding failure of juvenile court to provide statutorily required action may be raised for first time on appeal unless juvenile expressly waived statutory requirement); see also, Childs v. State, 21 S.W.3d 631, 638 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd) (holding rights and requirements protecting juveniles in family code fall into category of rights which must be implemented unless expressly waived); but see, Jeffley, 38 S.W.3d at 853 (holding juvenile defendant waived review of section 52.02 violation); Hill v. State, No. 12-00-00172-CR, 2001 WL 493275, at *6-7, — S.W.3d -, - (Tex.App.—Tyler May 9, 2001) (no pet. h.) (holding *722juvenile waived alleged section 52.02(a) violation by failing to raise issue in motion to suppress).

In re C.O.S. holds that there are three categories of rights and requirements used in determining whether error may be raised for the first time on appeal. See In re C.O.S., 988 S.W.2d at 765-767. The first set of rights are those that are considered so fundamental that implementation of these requirements is not optional and cannot, therefore, be waived or forfeited by the parties. See id. at 765; Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997), and Matchett v. State, 941 S.W.2d 922, 928 (Tex.Crim.App.1996). The second category of rights are those that must be implemented by the system unless expressly waived. See In re C.O.S., 988 S.W.2d at 766; Marin, 851 S.W.2d at 278-79. These rights are “not forfeitable,” meaning they cannot be lost by inaction, but are “waivable” if the waiver is affirmatively, plainly, freely, and intelligently made. See In re C.O.S., 988 S.W.2d at 766; Marin, 851 S.W.2d at 279-80. These include rights or requirements embodied in a statute that direct a trial court in a specific manner. See In re C.O.S., 988 S.W.2d at 766. The third set of rights are those that the trial court has no duty to enforce unless requested. See In re C.O.S., 988 S.W.2d at 765; Marin, 851 S.W.2d at 279. The law of procedural default applies to this last category. See In re C.O.S., 988 S.W.2d at 767 (quoting Marin, 851 S.W.2d at 279).

The majority contends that Marin and In re C.O.S. are distinguishable because in the present case, E.M.R. urged the trial court to suppress his statements on a different ground than he now urges on appeal; in Marin and In re C.O.S., the issue was whether error was preserved where no objection was raised to the trial court. See Marin, 851 S.W.2d at 277; In re C.O.S., 988 S.W.2d at 763. The majority relies on Texas Rule of Appellate Procedure 33.1 in arguing that E.M.R. failed to preserve error by failing to adequately notify the trial court of his complaint. See Tex.R.App. P. 33.1. In Marin, however, the court of criminal appeals expressly held that former rule 52(a) (now Tex. R.App. P. 33.1) did not apply to “waivable” rights that had not been expressly waived. Marin, 851 S.W.2d at 280 (“The rule [now 33.1] does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal.”).Thus, the majority’s reliance on rule 33.1 to support its holding that E.M.R. waived his section 52.02(b) claim is misplaced.

Part II. Custody and Section 52.02(b) Violation

In his second point of error, E.M.R. argues that his statements should have been suppressed because the police did not promptly notify his mother as required by section 52.02(b) of the family code. Because the parental notification requirements of section 52.02(b) apply to “[a] person taking a child into custody,” see Tex. Fam.Code Ann. § 52.02(b) (Vernon Supp.2001) (emphasis added), it is necessary to first determine whether E.M.R. was in custody when the statements were taken.

A. Custody

E.M.R. contends he was in the custody of the police from the time they picked him up until they dropped him off at his mother’s house on September 10th, and from the time they picked him up and delivered him to juvenile detention on September 15th. The State argues that the notification requirements of section 52.02(b) were *723not triggered because E.M.R. was not in custody until after he gave his second statement. The State further argues that even if section 52.02(b) was invoked, it was not violated because E.M.R.’s mother was aware that he had been taken to the station for questioning. The State argues that especially after giving his statement on September 10th, E.M.R. and his mother “knew the process” when the police returned on September 15th. The State also argues that section 52.02(b) merely requires “notice” to, not the presence of, a parent.

In In re L.M., 993 S.W.2d 276, 287 (Tex.App.—Austin 1999, pet. denied), the Austin Court of Appeals distinguished the standard applicable to adults from the standard applicable to juveniles in determining issues of when an individual is in custody. The court noted:

In Texas, the standard used to answer this inquiry in cases involving adults is clear: “a person is ‘in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996) (emphasis added) (citing Stansbury v. California, 511 U.S. 318, 322-24, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). The standard to be applied to juveniles, however, is not so well defined.

Id. After discussing the development of a “reasonable juvenile” standard in other jurisdictions, the Austin court adopted a standard which expressly provides for consideration of age under the reasonable-person standard. Id. at 289. I agree with the approach adopted in In re L.M. Accordingly, I would adopt the following standard for determining whether a juvenile is in custody,: “whether, based upon the objective circumstances, a reasonable child of the same age would believe her freedom of movement was significantly restricted.” Id.; see also, Jeffley, 38 S.W.3d at 855 (adopting “reasonable child” standard for determining whether a juvenile is in custody).

The record reflects that the circumstances and procedures surrounding the taking of E.M.R.’s statements on September 10th and September 15th were similar. On both occasions, Officers Stimmler and Rivera went to E.M.R.’s home, spoke briefly to him and his mother, drove him to the police station, took him before a magistrate to administer the required warnings, and questioned him. Stimmler testified that E.M.R. agreed to go to the station and was cooperative in giving the statements. Both officers questioned E.M.R. in an interview room at the station. The officers were wearing their service revolvers during the questioning. E.M.R. was not handcuffed at any time prior to the signing of his second statement.3 Stim-mler testified that both statements were given freely and voluntarily. He also testified that E.M.R. made no requests that were denied, and that if he had asked to go to the bathroom, “we can go with him.” Approximately twenty-five police officers were on duty at the station when E.M.R. gave his statements. In characterizing E.M.R.’s trips to the station, Stimmler testified that he and Rivera “asked” E.M.R. to come, and also that the officers “told” E.M.R. that they needed to talk to him.

Judge Donald Alex, a municipal court judge, testified at the suppression hearing that he administered the initial warnings *724to E.M.R. on September 10th and 15th, prior to each of the statements. On cross-examination, Judge Alex testified as follows:

Q [Defense counsel]: Okay. Was [E.M.R.] free to leave once the meeting between you and he began?
A [Alex]: That’s not my concern, sir. He’s in the custody of a police officer.
Q: Okay. So would it be fair to say that he was in custody?
A: Yes, sir.

However, on redirect by the State, Judge Alex testified as follows:

Q [State]: When you said, “in custody,” you mean the police officer’s in charge?
A [Alex]: In charge.
Q: And when you’re referring to legal custody of some kind or—
A: Well, you know, we don’t know the status. We are there as magistrates. We don’t know what the status is, a good many times, as to what’s going on.
Q: So you have no idea whether they’ve been arrested or not, or in custody or not?
A: No. You’re correct.

On recross, by defense counsel, Judge Alex testified:

Q [Defense counsel]: Okay. And I think you said earlier that once your meeting with him began that he was not free to leave, true?
A [Alex]: I would assume so, sir. I have never had one walk out on me, yet.

On redirect, the State asked:

Q [State]: If one wanted to [walk .out], would you do anything about it?
A: I would stop him.
Q: You would stop him from walking out?
A: Yeah, if they’re brought in with a police officer. I think they’re in the custody of that officer. And, occasionally, the officer is not in there with us, the officer may be around the corner or, the officer may be somewhere else, and as far as I’m concerned, if they’re brought in by an officer, they’re in custody. Now, to what degree, or whatever,— But, as you note here just a last week or so they had another person just kind of wander out of the police station.
Q: So if the police officer wanted to let them walk out, that was up to them, but you’re not going to.
A: If a police officer wants to let them walk out, that’s — that’s fine.

There is no evidence that E.M.R. was told during the questioning that he was free to leave the interview room or the police station. Although he apparently made no requests, there is no evidence that he was told he could call his mother or any other adult. By the time the second statement was taken, E.M.R. and Ortiz had been identified in a photo lineup, the police had obtained a witness statement impheating Ortiz and E.M.R., and Ortiz had given a statement blaming everything on E.M.R. Stimmler testified that when E.M.R. was questioned again on the 15th, “[w]e pretty-much told him, you know, we got statements from Nick, statements from this other lady, that he had been picked out by Mr. Franco, and wanted to know what the — wanted to know the whole truth. And that’s when he gave us the second statement.” Based on the objective circumstances outlined above, a reasonable thirteen-year-old would believe that his freedom of movement was significantly restricted. Consequently, I would hold that E.M.R. was in custody at the time he gave his statements.

B. Section 52.02(b) Violation

Having determined that E.M.R. was in custody, the next issue is whether a viola*725tion of section 52.02(b) occurred. This Court recently noted:

The court of criminal appeals has recently reaffirmed that law enforcement personnel must strictly follow the requirements of the family code when dealing with juvenile suspects. The court stated:
The Legislature has set forth very specific actions which a law enforcement officer must take when arresting a juvenile. We are aware of the disturbing increase in juvenile crime in our state, and we are sympathetic to law enforcement’s efforts to deal with violent juvenile offenders. Nevertheless, we must not ignore the Legislature’s mandatory provisions regarding the arrest of juveniles. We informed the citizenry, a decade ago in a unanimous opinion, of the Legislature’s clear intent to reduce an officer’s impact on a juvenile in custody. Today we remind police officers of the Family Code’s strict requirements.

Vega, 32 S.W.3d at 904-05 (quoting Le v. State, 993 S.W.2d 650, 655 (Tex.Crim.App.1999) (footnotes omitted) (holding a juvenile murder suspect’s confession inadmissible because of failure of police to process him in accordance with family code provisions)); see also, In the Matter of R.R., 931 S.W.2d 11, 14 (Tex.App.—Corpus Christi 1996, no pet.) (police officers, courts and others involved with juveniles are bound to comply with the detailed and explicit procedures set out in the family code); accord In the Interest of D.Z., 869 S.W.2d 561, 564 (Tex.App.—Corpus Christi 1993, writ denied).

The State had the burden to show that E.M.R.’s statements were taken in compliance with section 52.02(b) of the family code. In re C.R., 995 S.W.2d 778, 783 (Tex.App.—Austin 1999, pet. denied) (holding juvenile statement inadmissible where record contained no evidence that statement was obtained in compliance with section 52.02(b)); In the Matter of R.R., 931 S.W.2d at 14 (Tex.App.—Corpus Christi 1996, no pet.) (holding juvenile statement inadmissible where State failed to prove compliance with procedures of family code).

Neither E.M.R. nor his mother testified at the suppression hearing. Stimmler testified that when he and Rivera picked E.M.R. up on September 10th, E.M.R.’s mother knew E.M.R. was going with them to the station. When asked whether E.M.R.’s mother wanted to go along, Stim-mler responded, “I don’t believe that she did, because we told her, he was gonna be taken to the police station and talking to him [sic], and — .” With regard to what E.M.R.’s mother was told on September 15th, Stimmler testified:

Q [State]: You said you told [E.M.R.] you needed to resolve some things. Did you indicate to the mother and to [E.M.R.] at the house that there were some conflicts?
A: I believe we did. I think Rivera might have said something to the mother that, you know, we needed to talk a little bit more about the statement we had taken.

The record contains no other evidence regarding what was said to E.M.R.’s mother. Rivera did not testify at the suppression hearing or at trial. Stimmler testified that after E.M.R.’s second statement was taken, he called the juvenile prosecutor and was told to take E.M.R. into custody. Thereafter, E.M.R. was taken to the detention facility.

E.M.R. relies on In re C.R., 995 S.W.2d at 778, in support of his argument that section 52.02(b) was violated. In that case, the Austin Court of Appeals held a fifteen-year-old juvenile’s statement inadmissible because the State failed to prove that the *726officers had complied with the parental notification requirements of section 52.02(b). As in In re C.R., the State argues in the present case that no violation of section 52.02(b) occurred because: (1) E.M.R.’s mother was present when the police contacted E.M.R. and knew he had been taken to the police station; and (2) section 52.02(b) merely requires parental notification, not that a parent must be present when a juvenile chooses to waive his rights and give a statement. Both arguments were rejected by the court in In re C.R. In re C.R, 995 S.W.2d at 783-84. The court “reject[ed] the proposition that being aware that one’s child has ‘gone with police officers to the police station’ is the same as being aware that one’s child is in custody for a criminal offense.” Id. at 784. I agree. On both occasions that E.M.R. was picked up for questioning, the officers knew he was a suspect in an aggravated assault. E.M.R.’s mother was only told, however, that her son was being taken to the police station because the officers “were going to be needing to talk with him.” On the 15th, the officers “might” have told her that they needed to talk to E.M.R. “a little bit more” about his earlier statement. Although section 52.02(b) does not require a parent to be present when a child chooses to waive his rights and give a statement, it does require “prompt” notice to a parent that a child has been taken into custody and the reasons why. Tex. Fam.Code Ann. 52.02(b) (Vernon Supp.2001). Here, the State presented no evidence that E.M.R.’s statements were obtained in compliance with section 52.02(b) of the family code.

Section 54.03(e) of the family code provides that “[a] child alleged to have engaged in delinquent conduct ... need not be a witness against nor otherwise incriminate himself. An extrajudicial statement which was obtained without fulfilling the requirements of this title ... may not be used in an adjudication hearing.” Tex. Fam.Code Ann. § 54.03(e) (emphasis added). I would hold that the trial court abused its discretion when it denied E.M.R.’s motion to suppress and improperly admitted his written statements into evidence at trial. See In re C.R., 995 S.W.2d at 785; In re R.R., 931 S.W.2d at 14.

The majority argues that section 52.02(b) is inapplicable to the present case because E.M.R. was not in custody until after he gave his September 15th statement impheating himself. Citing Roquemore v. State, 11 S.W.3d 395, 399-400 (Tex.App.—Houston [1st Dist.] 2000, pet. granted), the majority contends that the requirements of section 52.02 are not triggered “every time a police officer takes a juvenile to the police station for questioning for a crime.” In Roquemore, the court found that although the juvenile defendant was in custody when he told investigating officers of his involvement in the crime, his statements were nonetheless admissible because the statements were made on the defendant’s own initiative and were not the result of any custodial interrogation by the police. Id. at 400. In Roquemore, the juvenile defendant was arrested, taken to a police car, and immediately after being advised of his rights, told the police he wanted to cooperate and admitted his involvement in the crime. Id. at 398. Based on these facts, the Roquemore court concluded that the statements were not inadmissible based on a violation of section 52.02 because they “sprang from appellant’s own initiative” and not “from custodial interrogation or from the fact of custody itself.” Id. at 400. In the case before this Court, E.M.R.’s statements did not spring from his own initiative, but instead, were elicited by the police as a result of questioning that took place on two separate occasions, each of which lasted about *727an hour, in an interview room at the police station. Thus, I conclude that the majority’s reliance on Roquemore is misplaced.

C. Harm Analysis

Having determined that the trial court erred in failing to suppress E.M.R.’s statements, I would next consider whether he was harmed by the improperly admitted evidence under Texas Rule of Appellate Procedure 44.2 governing reversible error in criminal cases. See In re C.R., 995 S.W.2d at 786; In re D.Z., 869 S.W.2d at 566 (Tex.App.—Corpus Christi 1993, writ denied). Rule 44.2 provides two standards, one for constitutional error and a more lenient standard applicable to other errors. See Tex.R.App. P. 44.2(a), (b). Even under the more lenient standard, which requires us to disregard non-constitutional error unless it affects substantial rights of the defendant, see Tex.R.App. P. 44.2(b), I would conclude E.M.R. was harmed.

A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. Vega, 82 S.W.3d at 905 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997)); In re C.R., 995 S.W.2d at 786. A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Vega, 32 S.W.3d at 905 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); Rios v. State, 982 S.W.2d 558, 561 (Tex.App.—San Antonio 1998, pet. ref'd)). The United States Supreme Court has construed the nearly identical federal harmless error rule as follows:

If, when all is said and done, the [court’s] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)) (emphasis in original). “Grave doubt” means “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” O’Neal, 513 U.S. at 435, 115 S.Ct. 992.

Because of the potentially dramatic effect of a written confession on the decision-making process of a jury, I have grave doubts that the introduction of E.M.R.’s written statements had no effect on the outcome of the proceeding. See Vega, 32 S.W.3d at 906; In re C.R., 995 S.W.2d at 786-87.

The statement given by E.M.R. on September 10th read as follows:

My name is [E.M.R.]. I am 13 years old, born on 12/09/85. I live at [address]. I go to Driscoll Middle School. I am in the 8th grade. On 09/09/99, sometime after 10:00 p.m., I went over to Nick Ortiz’s house by the corner of Mexico and Mestina. I think it is a brown house. Nick and his uncle Chris were drinking and they were drunk. This old man walked by the house and Nick said something to them. The old man picked up a stick, and he started *728walking away. The man tripped and fell down. Nick went over and picked up the stick and he hit the man in the head two or three times. Nick went through the man’s pockets, but I don’t know if he got anything out of his pockets. I stayed by the gate by the alley and I didn’t do anything to this man. We both ran back to Nick’s mom’s house and then I went home. This statement was taken by Sgt. Stimmler and is true and correct.

The statement given by E.M.R. on September 15th read as follows:

My name is [E.M.R.] and I am 13 years of age, my date of birth is 12/09/85. I live at [address]. I’m in the 8th grade at Driscoll Middle School. On 09/10/99, I had given a statement about what Nick Ortiz had don’t [sic ] to that old man. I had left out that I had hit the man a couple of times too. I only used my hands. Nick used a stick on this man. He went through the man’s pockets and took his wallet. I didn’t see if he got any money or not. Nick took the cards in the wallet and threw them down the sewer by Jessica’s house. This is the first corner house by Nick’s. Nick gave Jessica the wallet. There was a Lone Star card in it, along with a piece of paper, Jessica got that. Nick had given me a long Swiss Army knife, after we had beat up the man. I gave the knife to Nick’s mom and then I went home. This statement is true and correct to the best of my knowledge.

E.M.R.’s testimony at trial was essentially consistent with his September 10th statement. He testified he was at Ortiz’s house with several friends shortly before the incident occurred, that he left to return home, and as he walked through the alley, saw Ortiz follow Rojas and beat him with a stick. E.M.R. testified he did not participate in the beating in any way, and did not know it was going to occur. He did nothing to intervene, and was scared because Ortiz was “out of control.” He testified he changed his statement on the 15th because between the 10th and 15th, Ortiz repeatedly called E.M.R. and threatened to beat up his family and have his house burned down unless E.M.R. took the blame for the beating. One of the State’s witnesses testified that he saw Ortiz and E.M.R. running in the direction Rojas was seen walking. Another witness testified she saw Ortiz and E.M.R. going through a wallet. No one claimed to have witnessed the attack. The State presented no forensic evidence linking E.M.R. to the attack. There was no evidence that E.M.R.’s fingerprints were found on the stick, nor any evidence of bloodstains found on his clothing.

After examining the record as a whole, I cannot say with fair assurance that the erroneous admission of E.M.R.’s written statements did not influence the jury, or had but a slight effect. In re C.R., 995 S.W.2d at 787. I would therefore conclude that the denial of E.M.R.’s motion to suppress and the admission of his statements at trial affected E.M.R.’s substantial rights and therefore constitutes reversible error. Accordingly, I would sustain E.M.R.’s second point of error. I would reverse the judgment of delinquency and remand the cause to the trial court for further proceedings.

Because I would hold that section 52.02(b) was violated and the violation was harmful, I would not address E.M.R.’s remaining points on appeal. See Tex.R.App. P. 47.1.

. Although the appellate court only considers testimony from the suppression hearing, I would note that at trial, E.M.R. and his mother testified that on each occasion the police came to the house, E.M.R.'s mother asked if she could accompany her son to the police station and was told she could not. At the suppression hearing, Officer Stimmler testified that E.M.R.'s mother was "free to come, if she wanted to,” but could not recall whether she had asked to come along.

. E.M.R. argued at the hearing that his statements were not intelligently and knowingly given, pursuant to section 51.095 of the family code. Section 51.095(a)(1)(C) provides:

(a) Notwithstanding Section 51.09, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
(1) the statement is made in writing under a circumstance described by Subsection (d) and:
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(C) the child knowingly, intelligently, and voluntarily waives these rights before and during the making of the statement and signs the statement in the presence of a magistrate; ...

Tex. Fam.Code Ann. § 51.095(a)(1)(C) (Vernon Supp.2001). The circumstances described in "Subsection (d)” include, among others, while a child is in the custody of an officer. See Tex Fam.Code Ann. § 51.095(d)(2) (Vernon Supp.2001).

. The record of the adjudication hearing reflects that E.M.R. was photographed and fingerprinted.