Affirmed as Modified; and Opinion Filed October 16, 2013




                                          S   In The
                                        Court of Appeals
                                 Fifth District of Texas at Dallas

                                       No. 05-12-01021-CR

                             JONATHAN PETERSON, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 363rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F10-61407-W

                                           OPINION
                         Before Justices FitzGerald, Francis, and Myers
                                 Opinion by Justice FitzGerald
       Appellant was indicted for capital murder of a child and entered a plea of not guilty. A

jury convicted him of the lesser included offense of serious bodily injury to a child and assessed

punishment at eighty years’ imprisonment. On appeal, appellant complains that the trial court

abused its discretion in admitting statements he made to a CPS worker without Miranda

warnings and there is insufficient evidence in the record to support the trial court’s order of

costs. Appellant also urges that the judgment be reformed to accurately reflect the prosecutors

who tried the case. We reform the judgment to accurately reflect the prosecutors who tried the

case, and as reformed, affirm.

                                         BACKGROUND

       On September 28, 2010, twenty-one-month-old Bronson Franklin, Jr. suddenly died as a

result of multiple blunt force trauma injuries to virtually every portion of his body. A Dallas Fire
and Rescue paramedic testified that he was dispatched to Bronson’s apartment complex at 5:20

p.m. When the paramedic arrived at the complex, appellant ran toward the ambulance carrying

Bronson in his arms. Bronson was limp, unresponsive, unconscious and not breathing. When

asked what had happened, appellant told the paramedics that the child “was drinking some water

out of 16-ounce bottle and he fell and he busted his lip and fell back,” presumably hitting his

head. Appellant also stated he “just couldn’t believe this would happen.”

       The paramedic administered CPR as Bronson was transported to the hospital. As blood

again started circulating through the child’s body, the paramedic observed several different

bruises that appeared on the child’s genitals, back, buttocks, and legs. The paramedic further

observed a cigarette burn on the child’s hand.

       The Dallas police officer dispatched in response to the 911 call found appellant standing

outside the trauma room at the hospital. The officer described appellant as “a little upset . . .

somewhat concerned.” Appellant had his head down and was talking to himself, and at one point

the officer overheard him say that he hoped he had not hit the child too hard.

       The officer also saw Bronson in the trauma room, and observed that he had been “beaten

up almost beyond recognition.” Bronson was later transported by Care Flight to Children’s

Medical Center. Appellant asked the officer if he could ride with him to Children’s Medical

Center, and the officer agreed. When the officer arrived at Children’s Medical Center, he was

informed that Bronson had died.

       Appellant often stayed with Bronson’s mother at her apartment. On the day in question,

she left Bronson in appellant’s care while she went to work. At around 5:00 p.m., she received a

telephone call from appellant advising that Bronson had choked on some food and water, and the

paramedics were attempting to revive him. When Bronson’s mother later saw her son at

Children’s Medical Center, he had bruises all over his body and knots on his head. She was

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immediately aware that appellant had lied to her when he said that Bronson had choked on some

food and water.

         Dallas Police Detective Sabra Garibay observed Bronson’s body at the hospital and

described it as extremely bruised and covered with lots of marks. Garibay requested that

appellant accompany her to the police station for questioning, and he agreed.

         Garibay’s partner questioned Bronson’s mother while Garibay questioned appellant.

After Garibay noticed some discrepancies between the two versions of events, appellant was

“Mirandized.” After receiving his Miranda warnings, appellant elected to continue speaking with

Garibay. During the interview, appellant stated that he hit the child three times. When the

interview concluded, appellant was arrested.

         An autopsy was performed the day after the interview. The medical examiner testified

that Bronson died of multiple blunt-force trauma injuries, all of which appeared to have been

caused at the same time. The medical examiner described twelve or thirteen impact sites on the

child’s face and head, and multiple bruises in the abdomen area and around the buttocks and

upper thighs. Although the medical examiner could not determine what object or force had been

used to cause the injuries, he stated that it was deadly. He also testified that the injuries did not

result from being hit three times with a belt, and the child did not die as a result of choking on

water.

         Appellant remained incarcerated after his arrest, and was visited by an investigator from

Child Protective Services (“CPS”). The investigator, Kara Miller, did not advise appellant of his

Miranda rights before she interviewed him and did not record the interview. During the

interview, appellant admitted that he had been frustrated with Bronson because he would not

stop crying. Appellant said that he “lost control” and hit Bronson. When Miller asked for further

explanation, appellant began to cry and declined to elaborate.

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        The jury found appellant guilty of serious bodily injury to a child and assessed

punishment at eighty years’ imprisonment. This appeal followed.

                                            ANALYSIS

Admission of Oral Statement

        In his first two issues, appellant asserts the trial court erred in admitting the statement he

made to the CPS worker without the benefit of Miranda warnings and the procedures mandated

by article 38.22 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. § 38.22

(West 2006). The State responds that neither Miranda nor article 38.22 were implicated in this

case.

        We review a trial court’s decision to admit testimony of a CPS worker for an abuse of

discretion. See Berry v. State, 233 S.W.3d 847, 856 (Tex. Crim. App. 2007); Wilkerson v. State,

173 S.W.3d 521, 524 (Tex. Crim. App. 2005). 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.

        The United States Constitution provides that no person “shall be compelled in any

criminal case to be a witness against himself.” U.S. CONST. amend. V. As a corollary to that

provision, in Miranda v. Arizona, 383 U. S. 436, 478‒79 (1966), the United States Supreme

Court held that when an individual is subjected to custodial interrogation, “the person must be

warned that he has a right to remain silent, that any statement he does make may be used as

evidence against him, and that he has a right to the presence of an attorney, either retained or

appointed.” Id. at 444.

        Article 38.22 provides that no oral statement of an accused made as a result of a custodial

interrogation may be admissible against the accused in a criminal proceeding unless, among

other requirements, an electronic recording of the statement is made, the accused is given

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Miranda warnings, and the accused waives any rights set out in the warning. See TEX. CODE

CRIM. PROC. ANN. art. 38.22 (West 2005).

       But the procedural safeguards of Miranda and Article 38.22 do not apply to all custodial

questioning. Wilkerson, 173 S.W.3d at 527. They apply only to custodial interrogation by law

enforcement officers or their agents. Id. Although a CPS worker is an employee of the state, state

employment does not, by itself, make a person a state agent for purposes of defining custodial

interrogation. See id. at 528. As the Wilkerson court explained:

       Although state employment clearly makes a person an “agent of the State,” that
       label does not, by itself, make the person an “agent of the State” for the purpose
       of defining “custodial interrogation.” Not all government workers must be
       familiar with and ready to administer Miranda warnings . . . . [W]hen “the official
       has not been given police powers, Miranda has been held inapplicable to
       questioning by [state officials].”

Id. at 528. The court further observed that different types of state employees serve different roles.

Id. CPS workers are charged with protecting the welfare and safety of children in the community

while the police are responsible for investigating crime. See id. Therefore, police officers and

CPS workers generally run on separate, yet parallel paths. Id. at 529. But if the parallel paths of

CPS and the police converge, and police and state agents are investigating a criminal offense in

tandem, Miranda warnings and compliance with article 38.22 may be necessary. Id.

       To determine whether the two paths have converged, courts must examine the entire

record. Id at 530. The thrust of the 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. Id. at 531. In making

this determination, we consider (1) the relationship between the police and the potential police

agent, (2) the interviewer’s actions and perceptions, and (3) the defendant’s perceptions of the

encounter. Elizondo v. State, 382 S.W.3d 389, 394 (Tex. Crim. App. 2012).



                                                –5–
           Here, the CPS worker, Miller, testified initially outside the presence of the jury.

Appellant’s trial counsel objected that Miller improperly obtained incriminating testimony and

was an agent of the state “as that term is recognized under Miranda . . . and 38.22.” The trial

court overruled the objection, and allowed Miller to testify before the jury.1

           Miller testified that her supervisor assigned this case to her for investigation. Miller’s

office is in the Dallas Children’s Advocacy Center, which is housed in the same building as the

police. Miller explained that CPS conducts its own investigations, separate from the police, and

the police do not tell CPS how to conduct the investigation. Miller stated that the goal of CPS is

to ensure the safety of children, and this has nothing to do with whether criminal charges are

filed.

           Once she was assigned to the case, Miller spoke briefly with the police to set up a

forensic interview for Bronson’s surviving sibling. Miller did not know what appellant told the

police, and the police were not specifically informed that she planned to interview appellant.

Miller stated that CPS has no obligation to inform the police about what she is doing in her

investigations, nor is she required to have the police accompany her when she conducts

interviews. In addition to her brief conversation with the detective, Miller was present at the

autopsy and spoke with the medical examiner.

           According to Miller, it is CPS policy to speak with all principals and caregivers of the

children. Prior to her interview with appellant, Miller spoke with the child’s mother and learned

that there were no other children living in the house. There was another child, but she was living

in a different city with the grandmother. Miller also spoke with the child’s grandmother.

Although she was informed that no other children lived in the home prior to her interview with



    1
        Defense counsel requested and was granted a continuing objection to Miller’s testimony.



                                                                     –6–
appellant, Miller still did not know whether appellant had children of his own or had access to

other children.

       Miller explained that she interviewed appellant because he lived in the home and had

been a caregiver for the deceased child. She described the purpose of her interview as “to gather

social history, to make sure he doesn’t have any other kids, and to investigate the death of the

child.” Because appellant was in jail, Miller interviewed him there.

       When Miller arrived to speak with appellant, she introduced herself and told him why she

was there. Miller told appellant that CPS works with the police, but performs a separate

investigation. Appellant was informed that the CPS part of the investigation did not pertain to the

criminal charges, but rather his background and an assessment of the safety of any children that

may be involved.

       Miller asked appellant whether he had any children, and appellant told her he may have a

child, but was not sure. Appellant gave Miller his social history and generally discussed his care

of Bronson. When Miller asked appellant what happened on the day in question, appellant told

her Bronson had been running around and crying. Appellant told him to sit down or he would

“whoop his ass.” When the child continued to cry, appellant hit him with his belt on his “butt and

thighs.” According to appellant, Bronson stopped crying shortly thereafter, and he gave him

some water. When Bronson fell and hit his head, appellant called 911.

       Based on her interview with Bronson’s mother, Miller knew that appellant and the

mother had been exchanging text messages all day about the mother’s pending move to another

city. Miller asked appellant if he was upset about that. Initially, appellant indicated that it was

not a problem. Miller then explained the medical findings to appellant, and asked again what had

happened. When appellant gave her the same version of events, Miller told him “that’s not what

the medical findings are stating.” Appellant then told Miller that he was frustrated because

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Bronson would not stop crying, and he lost control and started hitting Bronson. When Miller

pressed for detail as to what a “loss of control” entailed, appellant began to cry and said he

would only tell Bronson’s mother.

        Miller testified that she is obligated by law to report all aspects of child abuse to the

police. The day after appellant’s interview, she reported his statement to the police.

        Appellant insists that the relationship between Miller and the police shows that Miller

acted as an agent for the police. In support of this contention, appellant points out that the

investigation of Bronson’s death was one of Miller’s express purposes, and she reported

appellant’s statements to the police the day after the interview. Appellant also relies on the fact

that Miller spoke to both the detective and the medical examiner before the interview.

        Having reviewed this evidence in the context of the entire record, we conclude the trial

court did not err in its implicit finding that Miller was not acting as an agent of law enforcement

who was required to comply with Miranda and article 38.22. Although Miller spoke with the

detective prior to the interview, the record reflects that the conversation pertained to the logistics

of the forensic interview of the other child. There is no detail concerning anything else that may

or may not have been discussed. It is reasonable to infer, however, that the detective did not

discuss his interview with appellant, because Miller testified she was not aware of what appellant

had told the police. The police did not tell Miller to interview appellant, did not arrange the

interview, and did not accompany Miller when she conducted the interview. Similarly, although

Miller testified that she spoke with the medical examiner before she interviewed appellant, the

record is silent as to the specifics of that conversation.

        Although Miller did identify investigation of the child’s death as one of the purposes of

the interview, there is nothing to establish that she was conducting a criminal investigation. To

the contrary, Miller testified that the primary purpose of CPS investigations is to ensure the

                                                  –8–
safety of any children that may be involved. She expressly stated that CPS investigations differ

from criminal investigations. The fact that Miller elicited incriminating evidence does not

establish that it was her purpose to do so. Once appellant made the incriminating statement,

Miller was legally obligated to inform the police.

       While appellant did not testify about his perceptions of the encounter, Miller testified that

she explained who she was and why she was there. There is nothing in the record to suggest that

appellant perceived Miller as an agent of law enforcement.

        Appellant had the burden to demonstrate that Miller was acting as an agent of law

enforcement. Wilkerson, 173 S.W.3d at 529. Although Miller confronted appellant with the

results of the autopsy report and challenged his version of events, appellant did not meet his

burden to show that she did so at the behest of or in tandem with law enforcement.

       Our examination of the evidence leads us to conclude that the interview was not

conducted, explicitly or implicitly, on behalf of the police for the purpose of gathering evidence

to be used against appellant in a criminal prosecution. Because we conclude Miller was not

acting as an agent of law enforcement, the trial court did not abuse its discretion in admitting her

testimony. Appellant’s first two issues are overruled.

       Costs

       In his third issue, appellant complains that there is no bill of costs to support the

assessment of $244 in costs. Following submission of this case, we ordered the Dallas County

Clerk to prepare a supplemental clerk’s record containing a detailed itemization of the costs and

fees assessed in this case along with an explanation of any abbreviations used to define the costs

and fees. See TEX. CODE CRIM. PROC. ANN. arts. 103.001, .006 (West 2006). The Dallas County

Clerk complied and provided a supplemental record with a certified bill of costs.




                                                –9–
       In response to the Court’s order requiring supplementation of the record, appellant

objected that the bill of costs in the supplemental record is not a “proper bill of costs” and the bill

of costs was not filed in the trial court or brought to the trial court’s attention before costs were

entered in the judgment.

        Appellant’s objection is misplaced. A signed and certified certification from the district

clerk containing the costs that have accrued to date meets the mandate of the code of criminal

procedure. See id.; Coronel v. State, No. 05-12-00493-CR,2013 WL 3874446, at * 4 (Tex. App.

Dallas 2012, no pet. h.). Further, as the Coronel court observed, “court costs are mandated by

statute; they are not discretionary and therefore are not subject to approval or authorization by

the trial court. Likewise, the code does not require the bill of costs be filed at the time the trial

court signs the judgment of conviction.” Id. Appellant’s objection is overruled.

       Because the record now contains a bill of costs supporting the assessment of costs in the

judgment, appellant’s complaint is moot. Id.; see also Franklin v. State, 402 S.W.3d 894, 895

(Tex. App.—Dallas 2013, no pet.). Appellant’s third issue is overruled.

Reformation of Judgment

       The judgment reflects that the prosecutor was Elaine Evans, but the record reflects that

the prosecutors were Amy Derrick and Carmen White. We have the authority to amend the

judgment to “speak the truth” when we have the necessary data and information to do so. See

TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).




                                                –10–
We therefore reform the judgment to reflect that Amy Derrick and Carmen White were the

prosecutors in this case. As reformed, the trial court’s judgment is affirmed.




Do Not Publish
TEX. R. APP. P. 47                                  /Kerry P. FitzGerald/
121021F.U05                                         KERRY P. FITZGERALD
                                                    JUSTICE




                                               –11–
                                      S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

JONATHAN PETERSON, Appellant                      On Appeal from the 363rd Judicial District
                                                  Court, Dallas County, Texas
No. 05-12-01021-CR        V.                      Trial Court Cause No. F10-61407-W.
                                                  Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                      Justices Francis and Myers participating.

     Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
     to reflect that Amy Derrick and Carmen White were the prosecutors in this case.
As REFORMED, the judgment is AFFIRMED.


Judgment entered October 16, 2013




                                                /Kerry P. FitzGerald/
                                                KERRY P. FITZGERALD
                                                JUSTICE




                                           –12–
