                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00109-CR
        ______________________________


          MICHAEL HERRING, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 202nd Judicial District Court
                Bowie County, Texas
            Trial Court No. 10F678-202




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                            OPINION

       As Nigel Phillips and three friends sat in an automobile in front of Phillips‘ Texarkana

home on May 24, 2010, eating a pizza and visiting with one another, one of the car doors was

suddenly jerked open and the four friends were confronted with a young man with an AK-47

assault rifle with a bayonet affixed. The bearer of the assault rifle and two accomplices (who also

brandished a pistol) commanded the four occupants of the car to exit the vehicle and lie on the

ground. The three bandana-wearing assailants then robbed the prone Phillips and his friends of

their valuables, including Phillips‘ cell phone, and fled.

       Michael Herring, a sixteen-year-old juvenile certified to be tried as an adult, was charged

with, tried for, and convicted by a jury of the aggravated robbery of Phillips, receiving a sentence

of twenty years‘ imprisonment.

       Herring has appealed his conviction, centering his complaints on appeal around a

confession given by him.        Herring contends that the trial court erred by admitting that

confession into evidence, maintaining that it was inadmissible because he avers that it was

obtained from him in violation of the Texas Family Code and that it was not a voluntary

confession.

       We affirm the trial court‘s judgment because we find no violation of the Texas Family

Code in harvesting the confession and the circumstances under which the confession was given do

not indicate that it was given involuntarily.



                                                  2
Circumstances Leading to Arrest and Confession

           Later on the same night that Phillips was robbed, Michael Ferguson (a Texas Department

of Public Safety patrolman) saw a car approaching him that had its headlights turned off. The

driver of the car turned its headlights on, then off, then on again. Because driving at night without

the use of headlights is a traffic violation, Ferguson made a U-turn, turned on his overhead lights,

and followed the vehicle into an E-Z Mart parking lot. He saw the car‘s two rear seat passengers

exit the car and place an object wrapped in white cloth behind the vehicle‘s back tire. Both of

these passengers, one of whom was Herring, began to walk away from the car. Ferguson picked

up the object which had been placed behind the rear tire and unwrapped it from the white cloth,

discovering that the object was an AK-47 assault rifle with a bayonet attached. At that time,

Herring and the other passenger fled on foot. Ferguson gave chase, caught Herring, handcuffed

him, and placed him in the patrol car. Without first having given Herring his Miranda1 warnings,

Ferguson questioned him about the vehicle‘s other occupants and Herring identified them all.

When searching Herring, the officer found some female jewelry and a cell phone that was later

identified as belonging to a recently-robbed Hooks resident.

           Herring was arrested and taken to the Hooks Police Department, a juvenile processing

center. Herring was placed in an unlocked room with his mother present. Magistrate Pat James

administered the magistrate warnings to Herring, after which officers then re-entered the room and


1
    Miranda v. Arizona, 384 U.S. 436, 469 (1966).


                                                    3
interrogated Herring. After about an hour and a half, Herring was transported to the juvenile

detention center in Texarkana, where his custody was turned over to juvenile officer Melissa

Simpson, who then transported Herring to the juvenile detention center in Marshall, Harrison

County.

           Texarkana Police Detectives Matt Cashatt and Latriesha Grandy were dispatched to

Marshall to obtain a statement from Herring. The detectives took Herring to the office of

Kenneth Alford, a Harrison County Justice of the Peace. Alford testified that at 12:34 p.m., he

administered Herring the Miranda warnings which, Alford said, Herring appeared to understand

and which he voluntarily waived. Alford then informed Herring that he was turning him over to

the detectives so he could make a statement. The detectives interrogated Herring for about two

and a half hours. Cashatt testified that Herring voluntarily waived his rights, never asked for an

attorney, and spoke freely throughout the interview. Herring‘s typed statement was given to

Alford, who testified that he reviewed it with Herring (outside the presence of the law enforcement

officers), who signed it voluntarily. In the statement, Herring confessed to taking part in the

charged armed robbery, as well as several other recent armed robberies and burglaries.

           Before trial, Herring moved to suppress the confession, arguing, in relevant part, that the

typed confession was inadmissible under Sections 51.095 and 52.02 of the Texas Family Code2

and that Herring neither knowingly nor voluntarily waived his rights. The trial court denied the

motion and permitted the State to introduce the confession during its case-in-chief.
2
    See TEX. FAM. CODE ANN. § 51.095 (West Supp. 2011), § 52.02 (West 2008).

                                                        4
Standard of Review

         We review a trial court‘s decision on a motion to suppress evidence by applying a

bifurcated standard of review. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana

2010, pet. ref‘d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref‘d).

While we defer to the trial court on its determination of historical facts and credibility, we review

de novo its application of the law and determination on questions not turning on credibility.

Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996);

Graves, 307 S.W.3d at 489. We also afford deference to a trial court‘s ―application of law to fact

questions,‖ if the resolution of those questions turns on an evaluation of credibility and demeanor.

Guzman, 955 S.W.2d at 89.

Application of Section 51.095(a)(1) of the Texas Family Code

         Herring argues that his confession was improperly admitted into evidence because it was

taken in violation of the juvenile processing and detention requirements of Section 51.095(a)(1) of

the Texas Family Code.3

         Although juvenile proceedings are identified as civil or quasi-criminal rather than criminal,

the protections and due process requirements of adult criminal prosecutions are applicable to

juvenile cases. See Breed v. Jones, 421 U.S. 519, 529–31 (1975). The confession of a juvenile is

3
 Even though Herring was eventually certified to stand trial as an adult, he was a juvenile at the time of his arrest,
making the juvenile provisions of the Texas Family Code applicable to his initial detention. See Griffin v. State, 765
S.W.2d 422, 427 (Tex. Crim. App. 1989).

                                                          5
not admissible at trial unless it is obtained in compliance with the provisions of Section 51.095 of

the Texas Family Code. See In re L.M., 993 S.W.2d 276, 291 (Tex. App.—Austin 1999, pet.

denied).

       Section 51.095(a)(1) of the Texas Family Code states:

               (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:

                              (A)    the statement shows that the child has at some time
                       before the making of the statement received from a magistrate a
                       warning that:

                                     (i)     the child may remain silent and not make any
                              statement at all and that any statement that the child makes
                              may be used in evidence against the child;

                                      (ii)   the child has the right to have an attorney
                              present to advise the child either prior to any questioning or
                              during the questioning;

                                     (iii)   if the child is unable to employ an attorney,
                              the child has the right to have an attorney appointed to
                              counsel with the child before or during any interviews with
                              peace officers or attorneys representing the state; and

                                      (iv)   the child has the right to terminate the
                              interview at any time;

                              (B)     and:




                                                 6
                                    (i)      the statement must be signed in the presence
                            of a magistrate by the child with no law enforcement officer
                            or prosecuting attorney present, except that a magistrate may
                            require a bailiff or a law enforcement officer if a bailiff is not
                            available to be present if the magistrate determines that the
                            presence of the bailiff or law enforcement officer is
                            necessary for the personal safety of the magistrate or other
                            court personnel, provided that the bailiff or law enforcement
                            officer may not carry a weapon in the presence of the child;
                            and

                                    (ii)    the magistrate must be fully convinced that
                            the child understands the nature and contents of the
                            statement and that the child is signing the same voluntarily,
                            and if a statement is taken, the magistrate must sign a written
                            statement verifying the foregoing requisites have been met;

                            (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; and

                              (D)    the magistrate certifies that the magistrate has
                     examined the child independent of any law enforcement officer or
                     prosecuting attorney, except as required to ensure the personal
                     safety of the magistrate or other court personnel, and has determined
                     that the child understands the nature and contents of the statement
                     and has knowingly, intelligently, and voluntarily waived these
                     rights; . . . .

TEX. FAM. CODE ANN. § 51.095(a)(1). Section 51.095(d) of the Texas Family Code states:

              (d)    Subsections (a)(1) and (a)(5) apply to the statement of a child made:

                     (1)   while the child is in a detention facility or other place of
              confinement;

                     (2)    while the child is in the custody of an officer; or



                                               7
                             (3)     during or after the interrogation of the child by an officer if
                     the child is in the possession of the Department of Family and Protective
                     Services and is suspected to have engaged in conduct that violates a penal
                     law of this state.

TEX. FAM. CODE ANN. § 51.095(d).4

            Herring contends that the confession was inadmissible because the detectives were present

when Alford administered the statutory warnings to him.

            For a juvenile‘s confession to be admissible at trial, a magistrate is required to read the

warnings listed in Section 51.095(a)(1)(A)(i)–(iv) to the juvenile before any interrogation by law

enforcement. See L.M., 993 S.W.2d at 290–91. There is no requirement anywhere in Section

51.095 mandating that the magistrate be alone with the juvenile at the time the warnings are

given.5

            In support of his argument, Herring points to the suppression hearing wherein Cashatt

testified that both he and Detective Grandy were present when Alford gave Herring the statutory

warnings.6 Herring cites the case of Diaz v. State for the proposition that ―[n]o law enforcement

personnel are allowed to be present during the warnings, . . . .‖ 61 S.W.3d 525, 527 (Tex.

App.––San Antonio 2011, no pet.). While we acknowledge that the statement quoted above is


4
 The State does not contest that under subsection (d), Herring was in the custody of an officer at the time he made the
confession.
5
 It is illustrative that subsection (a)(1)(B)(i) requires that no law enforcement officers or prosecuting attorney be
present when the child‘s statement is signed and that subsection (a)(1)(D) requires the magistrate to certify that he
examined the child independent of any law enforcement or prosecuting attorney. TEX. FAM. CODE ANN. § 51.095.
6
    During the suppression hearing, Alford testified that he and Herring were alone at the time the warnings were given.

                                                            8
contained in the Diaz case and is not taken out of context, we read the statute as it is written and

observe that there is no such requirement in the statute. See TEX. FAM. CODE ANN. § 51.095. In

the applicable statute, it is important to distinguish between administration of the warnings

enumerated in Section 51.095(a) (which are administered before a statement is taken from the

juvenile), an examination of the juvenile by a magistrate after a statement has already been given

but has yet to be signed, and the signing of the statement.         The statute requires the law

enforcement officers to be outside the presence of the juvenile and the judge when the statement is

reviewed by the judge with the juvenile (see TEX. FAM. CODE ANN. § 51.095(a)(1)(D)) and when

the juvenile actually signs the statement (see TEX. FAM. CODE ANN. § 51.095(a)(1)(B)(i). It does

not require the absence of the police when the statutory warnings are given by the magistrate to the

juvenile. We choose to apply the statute as it is written, and therefore we overrule this point of

error.

Voluntariness of Confession

         Herring also contends that the confession violated the Texas Family Code because the

totality of the circumstances indicates that his confession was involuntary.

         In order for a juvenile‘s confession to be admissible, the juvenile must knowingly,

intelligently, and voluntarily waive his rights. TEX. FAM. CODE ANN. § 51.095(a)(1)(C). If the

circumstances indicate that the juvenile defendant was threatened, coerced, promised something in

exchange for his confession, or if he was incapable of understanding his rights and warnings, the



                                                 9
trial court must exclude the confession as involuntary. Darden v. State, 629 S.W.2d 46, 51 (Tex.

Crim. App. [Panel Op.] 1982). Once the accused claims that a confession was not voluntarily

given, the burden is on the State to prove its voluntariness. Farr v. State, 519 S.W.2d 876, 880

(Tex. Crim. App. 1975). In determining the voluntariness of the confession, the trial court must

look at the totality of the circumstances. Griffin, 765 S.W.2d at 429.

            In determining whether a trial court‘s decision is supported by the record, we generally

consider only evidence adduced at the suppression hearing because the ruling was based on it

rather than evidence introduced later. See, e.g., Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex.

Crim. App. 1984).             However, this general rule is inapplicable where (as in this case) the

suppression issue has been consensually re-litigated by the parties during trial on the merits.7 Id.

Moreover, it would be unreasonable to ignore trial evidence in our review of the court‘s

suppression decision only to be confronted by the evidence in our consideration of whether the

error was harmless. TEX. R. APP. P. 44.2. Thus, we may consider evidence adduced at trial as

well as during the suppression hearing in reviewing whether Herring‘s confession was voluntary.

            At the time of the arrest, Herring was sixteen years old, had a low intellect, a learning

disability, and mental health issues. Herring was questioned at the scene of the arrest about the

7
    The jury was instructed, in relevant part:

            You are instructed that unless you believe from the evidence beyond a reasonable doubt that the
            alleged confession or statement introduced into evidence was freely and voluntarily made by the
            defendant without compulsion or persuasion, or if you have a reasonable doubt thereof, you shall
            not consider such alleged statement or confession for any purpose nor any evidence obtained as a
            result thereof.

                                                          10
other passengers that were in the vehicle with him. He was interrogated for about an hour and a

half at the Hooks Police Department, and according to his confession, the officers told him that if

he did not help them find one of the codefendants, Herring would have to take all the charges by

himself.

       Within six hours of his arrest, Herring was transported to the juvenile detention center in

Marshall, Texas. About seven hours after Herring‘s arrival in Marshall, Detectives Cashatt and

Grandy took him to Alford‘s office. Although Cashatt testified that he and Grandy were present

and armed at the time Alford administered Herring the statutory warnings, Grandy and Alford both

testified that Alford and Herring were alone when the warnings were given. According to

Alford‘s testimony and the magistrate‘s juvenile warning form, Herring did not have any

questions, understood his rights, and voluntarily waived them.

       With Alford outside the unlocked office, Grandy questioned Herring for about two and a

half hours. Cashatt testified that Herring voluntarily waived his rights, spoke freely throughout

the interview, and neither asked for an attorney nor requested that the interview halt. Outside the

detectives‘ presence, Alford reviewed the typed statement with Herring, who did not ask to make

any corrections to the statement, and who voluntarily signed it.            Alford completed the

magistrate‘s verification of admissibility of statement of a juvenile form (magistrate‘s verification

of admissibility).




                                                 11
       Both the magistrate‘s juvenile warning form and the magistrate‘s verification of

admissibility failed to check the boxes to indicate that Herring voluntarily waived his rights.

Alford testified that both omissions were errors on his part and that (in spite of the failure of

Alford‘s failure to check either box) Herring did, in fact, knowingly, intelligently, and voluntarily

waive his rights.

       The determination of whether a statement is voluntary is a mixed question of law and fact,

i.e., an application of law to a fact question. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6

(West 2005); Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000) (if trial court finds that

statement is voluntary and thus admissible, court must enter an order stating its legal conclusion,

along with specific findings of fact upon which conclusion was based). Here, Herring moved to

suppress the confession on the grounds that it was obtained in violation of the Texas Family Code

and that it was not a voluntary confession. The trial court held a hearing on the motion and

testimony was taken from the arresting officer, one of the detectives who interrogated Herring, and

the magistrate judge who gave Herring the statutory warnings and independently determined that

Herring‘s confession was knowingly, intelligently, and voluntarily given. At the conclusion of

the suppression hearing, the trial court entered findings of fact and conclusions of law, stating, in

relevant part:

       This Court is of the opinion that . . . the statement was obtained from the juvenile in
       Marshall, and the Court is satisfied all provisions of the Family Code as it relates to
       the juvenile‘s giving of statements were complied with. Further, that there were
       two boxes not signed on the magistrate‘s verification of admissibility of statement


                                                 12
        of a juvenile, and the Court is satisfied with the explanation given by Judge Alford,
        and the Court believes, when looking at all the documents, that it supports his
        testimony. The Court is also satisfied that based on the testimony presented that
        the juvenile had the mental capability to understand the rights given to him and
        voluntarily waived each of those rights.

        The Texas Court of Criminal Appeals has held that ―appellate courts . . . should afford

[almost total] deference to trial courts‘ 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.‖ Guzman, 955 S.W.2d at 89. Here, the trial court‘s

conclusion that Herring‘s statement was voluntary was based upon the credibility and demeanor of

witnesses who directly interacted with Herring on or about the time of his confession. Granting

due deference to the trial court‘s determination, and after considering the totality of the

circumstances, including the evidence admitted during trial, we agree with the trial court that

Herring‘s confession was voluntary. Accordingly, we overrule this point of error.

        Although in its opening statement Herring‘s brief alleges a violation of Section 52.02 of the

Texas Family Code as an additional impediment to the introduction of Herring‘s brief in evidence

at trial, it makes no further mention of the application of that statute to the case under consideration

here. This issue not having been adequately addressed in the brief, we decline to deal with it.

TEX. R. APP. P. 38.1(h).

        Finally, Herring‘s brief appears to advance the proposition that a statement must be made

in the handwriting of the declarant (as opposed to one which, as here, has been drafted by another



                                                  13
person and signed by the declarant) in order to be admissible; he cites no authority for that premise.

Also, in order to preserve error for appellate review, the complaining party must have raised his

complaint in the form of an objection, request, or motion in the trial court and obtained a ruling.

TEX. R. APP. P. 33.1(a)(1); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).

Whether the confession was in writing was neither raised in the motion to suppress nor argued at

trial. Accordingly, this point was not preserved for our review, and we overrule it.

       We affirm the trial court‘s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        January 10, 2012
Date Decided:          February 2, 2012

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