                                 NO. 07-10-00213-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                    APRIL 7, 2011


                           BECKY ELIZONDO, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE


        FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

        NO. 2009-454,835; HONORABLE LARRY B. "RUSTY" LADD, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

                                       OPINION

      Appellant Becky Elizondo appeals from her jury conviction of the offense of theft

in an amount of $50 to $500 and the resulting sentence of thirty days in the Lubbock

County Jail. Through one issue, she argues the trial court erred in failing to grant her

motion to suppress her confession. We will affirm.


                                      Background

      On March 18, 2009, appellant and her friend Linda walked into an Old Navy store

in Lubbock. A loss prevention officer for the store, Mora, saw the women arrive. He

noticed Linda was carrying a flat purse.   Mora watched the two, and eventually saw
Linda, with appellant at her side, put items of merchandise in her purse. He intercepted

the two after they passed the registers and walked out of the store without paying for

the items. He asked them to return to the store, and took them to the manager’s office,

where Linda produced the items from her purse.


      Mora gave appellant a document entitled “Gap Inc. Civil Demand Notice.”1 He

asked her to read and sign it if she agreed with it.          The document contained the

statement, “I, Becky Abajo Elizondo, have admitted to the theft of merchandise/cash

valued at $65.00 from GAP INC., Store No. 6220, located at 6249 Slide Rd. I also

hereby acknowledge that my detention on this date was reasonable.”                  Appellant

completed the form and signed and dated it. Mora took photographs of appellant and

the stolen clothing, and had a store clerk print a receipt reflecting the value of the

merchandise.


      Appellant was in the store manager’s office about an hour.        Mora    then      called

Lubbock police, who came to the store and arrested appellant and Linda. Sometime

before trial, an investigator with the district attorney’s office contacted Mora and

received from him a copy of his report that included the civil demand notice.


      Appellant filed a motion to suppress the civil demand notice obtained by Mora.

The trial court heard the motion at the beginning of trial. Mora testified at the hearing.

The civil demand notice, the photographs, and the receipt were received as evidence at

the suppression hearing. The trial court denied appellant’s motion to suppress and


      1
          Appellant’s brief explains that Old Navy stores are affiliated with Gap, Inc.

                                               2
made findings of fact and conclusions of law on the record. The case proceeded to trial

and appellant was found guilty and sentenced as noted. This appeal followed.


                                           Analysis


       Through her sole issue, appellant argues the trial court erred in failing to grant

her motion to suppress her confession because it was obtained in violation of the Fifth

and Fourteenth Amendments to the United States Constitution, Article I, Section 10 of

the Texas Constitution and article 38.22 of the Texas Code of Criminal Procedure. U.S.

Const. amends. V, XIV; Tex. Const. art. 1, § 10; Tex. Code Crim. Proc. Ann. art. 38.22

(West 2010).


Applicable Law


       A trial court's ruling on a motion to suppress a confession is reviewed on an

abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.

2002). In determining whether the trial court abused its discretion we give "almost total

deference to a trial court's determination of the historical facts" and review the 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). If the issue involves the credibility of a witness, such that the

demeanor of the witness is important, then greater deference will be given to the trial

court's ruling on that issue. Guzman, 955 S.W.2d at 87. In a motion to suppress

hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses

and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000). Accordingly, the trial court may believe or disbelieve all or any part of

                                               3
a witness's testimony, even if that testimony is not controverted. Id. We will uphold the

trial court's ruling on a motion to suppress if that ruling was supported by the record and

was correct under any theory of law applicable to the case. Id. at 856.


       As here, when the trial court makes findings of fact and conclusions of law with

its ruling on a motion to suppress, an appellate court does not engage in its own factual

review, but determines only whether the record supports the trial court's fact findings.

Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Unless the trial court

abused its discretion by making a finding not supported by the record, we will defer to

the trial court's fact findings and not disturb the findings on appeal. Cantu v. State, 817

S.W.2d 74, 77 (Tex.Crim.App. 1991). On appellate review, we address only the

question of whether the trial court properly applied the law to the facts. Romero, 800

S.W.2d at 543.


       Although appellant’s stated issue includes references to the United States and

Texas constitutions, her argument focuses on the requirements of article 38.22 of the

Texas Code of Criminal Procedure. Her argument is that the store loss prevention

officer Mora was acting as an agent of the State when he obtained her signature on the

civil demand notice, and article 38.22, § 2 precluded its admission as evidence against

her.   Article 38.22 makes inadmissible in criminal proceedings a written statement

resulting from custodial interrogation unless the statement contains the statutory




                                            4
Miranda2 warnings. Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West 2010); Oriji v.

State, 150 S.W.3d 833, 836 (Tex.App.—Houston [14th Dist.] 2004, pet. ref’d).


      The term "custodial interrogation" in article 38.22 is to be construed consistently

with its meaning under the Fifth Amendment to the United States Constitution. Bass v.

State, 723 S.W.2d 687, 690-91 (Tex.Crim.App. 1986). In Miranda, the United States

Supreme Court defined custodial interrogation as "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." Miranda, 384 U.S. at 444; Escamilla v.

State, 143 S.W.3d 814, 824-25 (Tex.Crim.App. 2004); Paez v. State, 681 S.W.2d 34,

36-37 (Tex.Crim.App. 1984) (holding article 38.22 does not apply to non-law

enforcement personnel who are not government agents). Accordingly, the "safeguards

attendant to custodial interrogation do not come into play unless the person to whom

the statements are made is acting as an agent of law enforcement pursuant to a police

practice." Macias v. State, 733 S.W.2d 192, 195 (Tex.Crim.App. 1987); Oriji, 150

S.W.3d at 837. Statements made by the accused that do not stem from a custodial

interrogation are admissible under article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22,

§ 5 (West 2010).


      Private citizens, even security guards, ordinarily are not regarded as law

enforcement officers and thus cannot engage in custodial interrogation under article

38.22. Oriji, 150 S.W.3d at 836, citing Ortiz v. State, 727 S.W.3d 37, 38-39 (Tex.App.—


      2
          Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694
(1966).

                                           5
San Antonio 1987, pet. ref’d).     But a private citizen may act as an agent of law

enforcement officers so as to become bound by the restrictions of article 38.22.

Wilkerson v. State, 173 S.W.3d 521, 529-30 (Tex.Crim.App. 2005) (person, “whether

CPS caseworker, teacher, preacher, probation officer, or mere family friend” proven to

be working for or on behalf of the police by interrogating another in custody, “is bound

by all constitutional and statutory confession rules, including Miranda and Article

38.22”).3


       In this context, the term “agency” reflects a consensual relationship existing

between two persons or parties where one of them is acting for or on behalf of the

other. Wilkerson, 173 S.W.3d 529. The law does not presume an agency relationship,

and the person alleging its existence has the burden of proving it. Id.


       Oriji involved facts similar to those at bar.     The defendant gave a written

statement admitting theft to a Foley’s Department Store loss prevention officer. 150

S.W.3d at 835.     After her motion to suppress the statement was denied in her

subsequent prosecution for theft, the defendant argued on appeal that article 38.22

required Miranda warnings even for statements taken by private store security

personnel. Rejecting her argument, the court found no evidence that any of the Foley’s

employees were agents of law enforcement pursuant to a police practice when they

obtained the statement. Id. at 837. The court said the statement was not the result of

       3
        See Estelle v. Smith, 451 U.S. 454, 68 L.Ed.2d 359, 101 S. Ct. 1866 (1981)
(Miranda applied to custodial statements of defendant to psychiatrist appointed by court
to determine mental competency, when psychiatrist testified for the State during
punishment phase).

                                            6
custodial interrogation because the Foley’s loss prevention officer was not acting at the

request of police officers to elicit incriminating information from the defendant. Id. at

836. If further found law enforcement officers “did not initiate, know of, or acquiesce in”

the store employees’ efforts to obtain the defendant’s statement, and found the store

employees “obtained the statement to further the store’s needs in preventing theft, not

for law enforcement purposes.” Accordingly, the court found, the defendant’s written

statement to the store employees was not inadmissible under article 38.22. Id. at 837.


      Appellant attempts to distinguish Oriji, and argues that here, police and the

district attorney were aware of the practices of Old Navy and other retailers to obtain

written admissions from shoplifters without providing Miranda warnings and that

prosecutors repeatedly made use of them as evidence in theft prosecutions.4

Appellant’s argument focuses on the relationship between law enforcement authorities

and Mora.    See Wilkerson, 173 S.W.3d at 530 (courts reviewing asserted agency

relationship should first examine that between police and the asserted agent).


      The trial court’s findings included one reading: “The District Attorney’s Office is

aware of the practice of obtaining civil demand notices and sent their investigator to Old

Navy to acquire the document before trial.” The record supports the finding, but we

agree with the trial court it does not lead to a conclusion Mora was acting as the agent

of law enforcement when he obtained the civil demand notice from appellant.

      4
         Appellant also contends the evidence she was held in the store manager’s
office for an hour requires the conclusion her interrogation by Mora was custodial.
Because we agree with the trial court that Mora was not acting as an agent of law
enforcement officers, we do not address the circumstances of appellant’s detention.


                                            7
      Neither the police nor the district attorney’s office was aware of Mora’s

conversation with appellant until after it was completed and they were not involved in

Mora’s investigation in any way. See Oriji, 150 S.W.3d at 837; Franklin v. State, No.01-

05-01129-CR, 2007 Tex.App. LEXIS 2675, at * 16 (Tex.App.—Houston [1st Dist.] April

5, 2007, pet. ref’d) (mem. op., not designated for publication) (finding one conducting

search not acting as government agent, under Fourth Amendment analysis).               No

evidence indicates Mora or his employer had any agreement with or received

instructions from any government official regarding his questioning of appellant. See

Manns v. State, 122 S.W.3d 171, 183-84 (Tex.Crim.App. 2003) (under Sixth

Amendment analysis, to qualify as government agent, informant must at least have

some sort of agreement with, or act under instructions from, government official);

Macias, 733 S.W.2d at 195 (informant not acting as agent because, inter alia, he was

never asked to question the defendant or to report his discoveries to anyone). Nor is

there any evidence showing police were present during the interview, provided Mora

with the questions to ask appellant, or provided implicit or explicit instructions to get

certain information from her. Wilkerson, 173 S.W.3d at 530. The record does not

reflect a relationship between Mora and law enforcement authorities by which the

authorities were “using” Mora for their own purposes. Id. Said another way, Mora did

not obtain appellant’s statement “pursuant to a police practice." Macias, 733 S.W.2d at

195; see Vanegas v. State, No. 02-08-0356-CR, 2009 Tex.App. LEXIS 7907, at *32-33

(Tex.App.—Fort Worth Oct. 8, 2009, no pet.) (mem. op., not designated for publication)

(court found no evidence to indicate civilian “in cahoots” with law enforcement); Hines v.

State, No. 14-04-01124-CR, 2006 Tex.App. LEXIS 3256 (Tex.App.—Houston [14th Dist.]

                                            8
April 13, 2006, no pet.) (mem. op., not designated for publication) (law enforcement

officers did not initiate, know of, or acquiesce in Wal-Mart employees’ efforts to obtain

statement from defendant).


       We cannot agree the general awareness of police or prosecutors that retailers

take non-Mirandized statements from shoplifters, even if accompanied by a common

practice to obtain and introduce the statements at trial, renders the store employees the

agents of law enforcement when they take the statements. The government’s willing

acceptance of information provided through selfish motives by an inmate informant did

not make the informant the government’s agent under the Sixth Amendment in Manns,

122 S.W.3d at 189, and the same is true here. As with the selfishly-motivated inmate,

the element missing is the instruction or request from the government. See id. at 183-

84. That the State has come to expect such cooperation from retailers does not change

the result. See id. at 184-86.


       Under the analysis in Wilkerson, we secondly look at the record concerning

Mora’s actions and perceptions.        173 S.W.3d at 530.     This factor in the analysis

examines the asserted government agent’s reasons for taking action and the goals of

the actions. It leads to the question whether Mora believed he was acting as an agent

of law enforcement.     Id.      While Mora testified he called police immediately after

speaking with appellant, this action is insufficient to make him an agent of police. Id. at

533.

       Mora’s actions with regard to appellant were required by his employment. He

testified Gap, Inc. had a written policy requiring that a civil demand notice be completed

                                              9
any time the prevention officer had contact with persons committing theft in their stores.

Mora said if the suspect refuses to sign the notice he would note the refusal on the

completed notice, but said he gets a signed demand notice 99% of the time.5 He

testified the store keeps these documents “for our record” but would turn them over to

the police or the district attorney on request.6


       Mora stated the purpose of obtaining the signed civil demand notice is to “seek

punitive damages” or “monetary damages.” He also acknowledged Gap, Inc.’s policy

manual states that other purposes include maintaining “a good rapport” with law

enforcement, preventing “defense attorneys” from discrediting the store employee’s

testimony, and helping prosecutors obtain convictions.


       The evidence thus shows that Mora, as an Old Navy loss prevention officer,

acted with mixed motives when he obtained appellant’s signature on the civil demand

notice. The signed notice served the store’s purposes of facilitating the return of its

merchandise and protecting it from liability for its detention of appellant, while providing

a basis for any civil action the store might pursue.


       That the store voluntarily provided to police and to the District Attorney the

incriminating information it had obtained from appellant does not alone distinguish it

from any other crime victim who cooperates with authorities. But Mora’s testimony and


       5
        Mora said that during his almost three years at Old Navy he had never
mistakenly accused a customer of shoplifting.
       6
         Mora also testified he showed his report, including the completed civil demand
notice, to police officers when they arrived at the store in response to his call.

                                             10
the retailer’s policy manual make clear that obtaining a shoplifter’s signature on the

notice also served the store’s purpose of “helping prosecutors obtain convictions.” In

Wilkerson, the Court of Criminal Appeals posed the question, “Were the questions [to

the defendant] aimed at gaining information and evidence for a criminal prosecution, or

were they related to some other goal?”       Wilkerson, 173 S.W.3d at 530. Here, the

answers are “yes, and yes.” Given this evidence, the trial court reasonably could have

concluded that Mora did not believe he was acting as an agent of law enforcement, but

was serving his employer’s interests, even if those interests included facilitating the

criminal prosecution of shoplifters.   Old Navy’s motive to aid in the prosecution of

shoplifters does not make it the State’s agent when it obtains statements later provided

to prosecutors.


       Lastly, we examine the record for evidence of appellant’s perceptions of the

encounter.   Appellant did not testify so we have no direct evidence whether she

believed she was talking to someone cloaked with the authority of law enforcement. We

thus consider the likely beliefs of a reasonable person in appellant’s position. Wilkerson,

173 S.W.3d at 530-31. Mora was not in uniform7 and said he identified himself to

appellant and Linda as a loss prevention officer for the store. He testified he stopped

the women outside the store, told them he needed to “talk to them about the stuff in the

purse,” and “asked them to step back in the store.”




       7
        Mora testified he is not a peace officer. He indicated he wears “T-shirt, jeans,
tennis shoes.”

                                            11
       Appellant signed the civil demand notice stating her detention by Mora was

reasonable, and she does not argue the interview was so menacing as to intimidate her

into making a false statement. Id.; see In re Deborah C., 635 P.2d 446 (Cal. 1981)

(discussing lesser risks of coercive atmosphere in questioning by store detectives). A

female store manager was with appellant and Mora in the store office during their

encounter. The evidence supports a conclusion a reasonable person in appellant’s

position would have believed Mora was exactly what he said, a store loss prevention

officer, not an agent of law enforcement. Id.


       As noted, custodial interrogation under Miranda is that initiated by law

enforcement officers. Miranda, 384 U.S. at 444. Our ultimate inquiry here is whether

Mora was acting as an “instrumentality” or “conduit” for the police or prosecution when

he obtained appellant’s signature on the civil demand notice. Wilkerson, 173 S.W.3d at

531. The trial court concluded he was not, and the record supports the trial court’s

conclusion. Accordingly, we resolve appellant’s sole issue against her and affirm the

judgment of the trial court.



                                                            James T. Campbell
                                                                 Justice



Publish.




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