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                                 MEMORANDUM OPINION

                                        No. 04-07-00658-CV

                                  In the Matter of M.A.O., a Child,

                     From the 289th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2007-JUV-02071
                            Honorable Carmen Kelsey, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 10, 2008

AFFIRMED IN PART, DISMISSED FOR LACK OF JURISDICTION IN PART

           M.A.O., a juvenile, appeals from orders adjudicating him to have engaged in delinquent

conduct by committing two drug possession offenses and transferring his case to Harris County for

disposition. As to the adjudication order, we affirm. As to the transfer order, we dismiss for lack of

jurisdiction.

                           A. FACTUAL AND PROCEDURAL BACKGROUND

           Shortly after 11:00 p.m. on Tuesday, June 19, 2007, fifteen-year-old M.A.O. and another

individual were walking on the street in a residential area in San Antonio. At the time, San Antonio

police officer Ernest Stevens and another officer were patrolling the area, which had a reputation for
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gang activity and violence. Because the individuals appeared to be minors, Stevens decided to find

out if they were violating the city’s curfew ordinance. The ordinance made it unlawful for minors

to be on the streets without an adult after 10:30 p.m. on a weeknight. The officer accompanying

Stevens parked the patrol car about fifteen feet behind the two individuals, but he did not turn on the

emergency lights. Stevens got out of the car, called to the individuals, and motioned for them to

come over to him.

       The individuals walked over to Stevens, who asked for their names and ages. Stevens learned

the two individuals were minors and lived nearby. Stevens did not handcuff M.A.O. and the other

minor, nor did he place them in the back of the patrol car. Stevens did ask, “Do you guys have

anything on you that you are not suppose[d] to have?” In response, M.A.O. stated, “I have some pills

in my pocket that I found.” Stevens then searched M.A.O.’s front pocket and retrieved nine pills. The

pills were not in a container. With the assistance of the poison control center, Stevens identified

some of the pills and confirmed they contained drugs that were unlawful to possess without a

prescription. Stevens then formally arrested M.A.O.

       Thereafter, the State filed an original petition alleging M.A.O. engaged in delinquent conduct

by possessing carisoprodol, a dangerous drug, and less than 28 grams of hydrocodone, a controlled

substance. The acts alleged in the State’s petition were misdemeanor offenses punishable by

confinement in jail. See TEX . HEALTH & SAFETY CODE ANN . § 481.117 (Vernon 2003), § 483.041

(Vernon Supp. 2008).

       M.A.O. filed a motion to suppress his oral statement and the pills retrieved from his pocket.

This motion was denied by the trial court.


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        The matter was tried to a jury, which found M.A.O. had engaged in delinquent conduct as

alleged in the State’s petition. Based on the jury’s findings, the juvenile court entered an adjudication

order and found a need for disposition, but did not proceed to disposition. Instead, after noting

M.A.O. had previously been adjudicated of delinquent conduct in Harris County and had already

been placed on probation in that county, the juvenile court transferred M.A.O.’s case to Harris

County for disposition. M.A.O. then perfected this appeal.

        On appeal, M.A.O. raises three issues. In his first and second issues, M.A.O. argues the trial

court abused its discretion by denying his motion to suppress. In his third issue, M.A.O. argues the

trial court abused its discretion by transferring his case to Harris County for disposition.

                                      B. MOTION TO SUPPRESS

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

applies to such motions in adult criminal cases. See In re R.J.H., 79 S.W.3d 1, 6 (Tex. 2002);

Martinez v. State, 131 S.W.3d 22, 31 (Tex. App.—San Antonio 2003, no pet.). In an adult criminal

case, a trial court’s denial of a motion to suppress is reviewed for an abuse of discretion. Balentine

v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In conducting this review, we give almost total

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

of the law de novo. Id.; Hernandez v. State, 107 S.W.3d 41, 46-47 (Tex. App.—San Antonio 2003,

pet. ref’d).

         We are obligated to uphold the trial court’s ruling if it was supported by the record and was

correct under any theory of law applicable to the case, even if the trial court gave the wrong reason

for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Ross, 32


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S.W.3d 853, 855-56 (Tex. Crim. App. 2000). We must determine if the trial court could have

reasonably denied the motion to suppress in light of the evidence presented and the applicable law.

Armendariz, 123 S.W.3d at 404.

        A motion to suppress is nothing more than a specialized objection to the admissibility of

evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981). To preserve a

complaint for appellate review, a party must have presented to the trial court a timely request,

objection, or motion stating the specific grounds for the ruling desired. TEX . R. APP . P. 33.1(a). A

juvenile’s appellate contention must comport with the specific objection made at trial. See Wilson

v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection stating one legal theory may not

be used to support a different legal theory on appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex.

Crim. App. 1995). A reviewing court need not consider errors, even of constitutional magnitude, not

called to the trial court’s attention. Id.

                                    1. SCOPE OF THE QUESTIONING

        In his first issue, M.A.O. argues that even though the initial stop to investigate a possible

curfew violation was proper, Stevens’s legal authority was limited to questioning him about his age

and address. M.A.O. contends Stevens’s question, “Do you guys have anything on you you’re not

supposed to have?,” went beyond the permissible scope of a curfew investigation, thereby violating

the municipal curfew ordinance and the Fourth Amendment of the United States Constitution.

        The issue raised by M.A.O. on appeal was not presented to the trial court. Nowhere in his

motion to suppress does M.A.O. present an argument about the propriety of the officer’s question.

The motion simply asserts that M.A.O.’s “arrest was unreasonable and illegal pursuant to the Fourth


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Amendment of the United States Constitution” and “had no basis in probable cause and was made

without a warrant.” We conclude M.A.O.’s motion to suppress was not specific enough to preserve

the argument now presented on appeal. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App.

2005) (holding global statements in motion to suppress were not sufficiently specific to preserve

arguments made on appeal). In addition, M.A.O.’s argument at the suppression hearing did not

address this contention. Because the argument presented in M.A.O.’s first issue does not comport

with any objection raised in the motion to suppress or at the suppression hearing, M.A.O. has failed

to preserve this issue for appellate review. See TEX . R. APP . P. 33.1(a).

       But even if M.A.O. had presented this argument below, we would not sustain this issue.

M.A.O. acknowledges the curfew investigation was reasonable, but maintains the “subsequent

questioning” that led to the discovery of the pills was unreasonable and violated the Fourth

Amendment. We disagree.

       An investigative detention must be temporary and last no longer than is necessary to

effectuate the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. 2004); Davis v. State, 947

S.W.2d 240, 243-44 (Tex. Crim. App. 1997). Once the purpose of the stop has been satisfied, the

stop may not be used for a “fishing expedition for unrelated criminal activity.” Davis, 947 S.W.2d

at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41 (1996) (Ginsburg, J., concurring)). Nevertheless,

a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is not itself a

Fourth Amendment violation. United States v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006); United

States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993).




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        Here, M.A.O. complains of only one question asked by Stevens. M.A.O. suggests this critical

question was asked after the curfew investigation was completed. The State suggests Stevens’s

question was asked shortly after M.A.O. was stopped. In reality, the record is not well-developed as

to the question’s timing. Additionally, the record does not establish that Stevens failed to diligently

pursue the curfew investigation, or that the question unreasonably prolonged the duration of the

investigation. Based on the record before us, we cannot say Stevens’s question was unreasonable and

violated M.A.O.’s Fourth Amendment rights. See Edmond v. State, 116 S.W.3d 110, 114 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d) (concluding questioning about drugs during a traffic

stop was permissible when it did not unreasonably prolong the detention). We therefore overrule the

first issue.

               2. WARNINGS UNDER SECTION 51.095 OF THE TEXAS FAMILY CODE

        In his second issue, M.A.O. argues the trial court should have suppressed his oral statement,

“I have some pills in my pocket that I found,” because prior to making the statement he was not

taken before a magistrate and given the warnings set out in Section 51.095(a)(1)(A) of the Texas

Family Code. See TEX . FAM . CODE ANN . § 51.095(a)(1)(A) (Vernon Supp. 2008). In response, the

State argues the motion to suppress was properly denied because no custodial interrogation took

place and the statement was admissible under section 51.095(a)(2) of the Texas Family Code, which

permits the admission of oral statements of facts or circumstances found to be true and tending to

establish a juvenile’s guilt, such as the finding of secreted or stolen property, or the instrument with

which the juvenile states the offense was committed. See id. § 51.095(a)(2).




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       The admissibility of a statement made by a juvenile is governed by Section 51.095 of

the Texas Family Code. Id. § 51.095 (Vernon Supp. 2008). The statute provides that a written

statement by a juvenile is admissible at trial if it shows the juvenile was taken before a magistrate

and given certain warnings prior to making the statement. Id. § 51.095(a)(1). These warnings include

advising the juvenile (1) he may remain silent and not make any statement at all, and any statement

made may be used in evidence against him; (2) he has the right to have an attorney present before

or during questioning; (3) he has the right to have an attorney appointed if he is unable to employ

an attorney on his own; and (4) he has the right to terminate the interview at any time. Id.

§ 51.095(a)(1)(A) (i-iv). An oral statement recorded by an electronic recording device is admissible

if these same warnings are given by a magistrate prior to the juvenile making the statement. Id.

§ 51.095(a)(5).

        The warnings specified under Section 51.095(a)(1)(A) must precede statements made while

the juvenile is in a detention facility or other place of confinement, in the custody of an officer, or

in the possession of the Department of Protective and Regulatory Services. Id. § 51.095(d).

However, these warnings need not precede a statement that does not stem from interrogation of a

child in custody. Id. § 51.095(b)(1). Thus, the statute allows the admission of a voluntary oral

statement by a juvenile that is not the product of custodial interrogation. Id. § 51.095(b)(1), (d);

Martinez, 131 S.W.3d at 32.

       In this case, the only evidence presented in support of the motion to suppress was Stevens’s

testimony. After considering this evidence, the trial court stated,“I am going to rule the child was in

custody. Just for the record, the child was in custody, but I am going to rule he was not being


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interrogated while in custody of the officer. So his statement and the items that were turned over to

the officer are admissible.” We will uphold the trial court’s ruling if it was correct under any theory

of law applicable to the case, even if the trial court gave the wrong reason for its ruling. See

Armendariz, 123 S.W.3d at 404; Ross, 32 S.W.3d at 856.

       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. Cannon v. State, 691

S.W.2d 664, 671 (Tex. Crim. App. 1985). A child is under interrogation if he is subjected to direct

questioning or its functional equivalent, which occurs when police officers engage in conduct that

they know is likely to elicit an incriminating response from the defendant. Lam v. State, 25 S.W.3d

233, 239 (Tex. App.—San Antonio 2000, no pet.). A child is in custody if, under the objective

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

restrained to the degree associated with a formal arrest. Martinez, 131 S.W.3d at 32; Jeffley v. State,

38 S.W.3d 847, 855 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

       In determining whether a child was in custody at the time of questioning, courts consider the

age of the juvenile and all of the circumstances surrounding the interrogation to decide whether there

was a formal arrest or restraint of movement to the degree associated with formal arrest. Martinez,

131 S.W.3d at 32; Jeffley, 38 S.W.3d at 855. We apply a two-step analysis to determine whether an

individual is in custody. Martinez, 131 S.W.3d at 32; In the Matter of 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 to determine whether there was a formal arrest or restraint of freedom of movement

to the degree associated with a formal arrest. Martinez, 131 S.W.3d at 32; M.R.R., 2 S.W.3d at 323.


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

subjective views harbored by either the interrogating officer or the individual being questioned.

Martinez, 131 S.W.3d at 32; M.R.R., 2 S.W.3d at 323. “[T]he restriction upon freedom of movement

must amount to the degree associated with an arrest as opposed to an investigative detention.”

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996).

          Second, in light of those circumstances, we consider whether a reasonable person would have

felt free to terminate the interrogation and leave. Martinez, 131 S.W.3d at 32; M.R.R., 2 S.W.3d at

323. Traditionally, courts consider four factors in making this determination (1) whether probable

cause to arrest existed at the time of questioning; (2) the subjective intent of the police; (3) the focus

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

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

that the intent may be manifested in the words or actions of law enforcement officials. Martinez, 131

S.W.3d at 32; M.R.R., 2 S.W.3d at 323. The custody determination is based entirely upon objective

circumstances. Martinez, 131 S.W.3d at 32; M.R.R., 2 S.W.3d at 323. Additionally, being the focus

of a criminal investigation does not amount to being in custody. Meek v. State, 790 S.W.2d 618, 621-

22 (Tex. Crim. App. 1990). When the circumstances show that the individual acts upon the invitation

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

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

1987)).

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

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


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associated with a formal arrest. Here, upon initiating contact, the officers did not use the patrol car’s

emergency lights, or pursue M.A.O. Instead, Stevens called out to M.A.O., who responded to this

request by walking over to Stevens. At this juncture, M.A.O. was not patted down, handcuffed, or

placed in the patrol car. When M.A.O. made his oral statement, he was standing on a public street

and was accompanied by one of his friends. Based on all the circumstances surrounding the

questioning, we conclude M.A.O. was not under formal arrest or under a restraint of freedom of

movement to the degree associated with a formal arrest.

        Turning to the second part of the analysis, we examine whether a reasonable fifteen-year-old

in the same situation as M.A.O. would have felt free to terminate the interrogation and leave. In

making this determination, we evaluate the four traditional factors. First, we recognize probable

cause to arrest M.A.O. did not exist at the time of questioning. Second, as to the subjective intent

of police, we note that even though Stevens stated he would not have allowed M.A.O. to walk away,

nothing in the record indicates Stevens objectively manifested such an intention through his words

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

arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the

suspect.”). Third, we recognize that even though M.A.O. was the focus of a curfew violation

investigation, he would not have been taken into custody for such a violation. Stevens testified that

for a first violation, the curfew ordinance only authorized him to issue a warning to the juvenile and

report the incident to a designated youth agency, which in turn contacted the juvenile’s parent or

guardian. See SAN ANTONIO , TEX . MUNICIPAL CODE , ch. 21, art. V, § 21-124 (1991). Finally, we

note that no evidence was presented as to M.A.O.’s subjective beliefs. Our evaluation of the four


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traditional factors leads us to conclude that a reasonable fifteen-year-old in the same situation as

M.A.O. would have felt free to terminate the questioning and leave.

         Based on the totality of circumstances, M.A.O. was not in custody when he made his oral

statement. Because M.A.O. was not in custody when he made his oral statement, the requirement

that a magistrate give him the warnings set forth in Section 51.095(a)(1)(A) of the Texas Family

Code did not apply to him. See In the Matter of R.A., No. 03-04-00483-CV, 2005 WL 1412119, at *3

(Tex. App.—Austin 2005, no pet.) (denial of motion to suppress based on failure to give Section

51.095 warnings was proper because custody is a precursor to the warning requirements of Section

51.095 and juvenile was not in custody). Accordingly, the trial court did not abuse its discretion in

denying the motion to suppress. We overrule the second issue.

                                                 C. TRANSFER ORDER

         In his third issue, M.A.O. argues the trial court abused its discretion in transferring his case

to Harris County for disposition under Section 51.07 of the Texas Family Code.1 See TEX . FAM .

CODE. ANN . 51.07 (Vernon Supp. 2008).

         As a threshold matter, we consider our jurisdiction to review the challenged order. A

juvenile’s right to appeal in juvenile proceedings is controlled by Section 56.01(c) of the Texas

Family Code. TEX . FAM . CODE ANN . § 56.01(c) (Vernon 2008); see In the Matter of R.J.M., 211


         1
             … Section 51.07, entitled “Transfer to Another County” provides:

         W hen a child has been found to have engaged in delinquent conduct or conduct indicating a need for
         supervision under Section 54.03, the juvenile court may transfer the case and transcripts of records
         and documents to the juvenile court of the county where the child resides for disposition of the case
         under Section 54.04. Consent by the court of the county where the child resides is not required.

T EX . F AM . C O D E A N N . § 51.07 (Vernon Supp. 2008).

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S.W.3d 393, 394 (Tex. App.—San Antonio 2006, pet. denied). However, section 56.01(c) does not

authorize an appeal from a transfer order issued under Section 51.07 of the Texas Family Code. See

TEX . FAM . CODE ANN . § 56.01(c) (Vernon 2008). When a legislative enactment says a juvenile may

appeal orders delineated in the statute, there is no right to appeal orders not so included. R.J.M., 211

S.W.3d at 394; In the Matter of J.H., 176 S.W.3d 677, 679 (Tex. App.—Dallas 2005, no pet.).

        Because the controlling statute does not authorize an appeal from a transfer order issued

under Section 51.07 of the Texas Family Code, we conclude the order transferring M.A.O.’s case

to another county for disposition is not an appealable order. See R.J.M., 211 S.W.3d at 394-95

(dismissing appeal for lack of jurisdiction because the Texas Family Code did not authorize an

appeal from a juvenile court order denying motion to appoint counsel for post-adjudication DNA

testing); J.H., 176 S.W.3d at 679 (dismissing juvenile’s appeal for lack of jurisdiction because

juvenile court order transferring determinate sentence probation to criminal district court was not

appealable). Because the transfer order is not an appealable order, we are without jurisdiction to

consider M.A.O.’s third issue and must dismiss this portion of the appeal for lack of jurisdiction. See

In re Estate of Munoz, No. 04-06-00850-CV, 2007 WL 4547558, at *3 (Tex. App.—San Antonio

2007, no pet.) (dismissing corresponding portion of the appeal for lack of jurisdiction when venue

transfer order was not appealable).

                                           D. CONCLUSION

        The trial court’s adjudication order is affirmed. The portion of the appeal challenging the trial

court’s transfer order is dismissed for lack of jurisdiction.



                                                         Karen Angelini, Justice


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