                               Fourth Court of Appeals
                                      San Antonio, Texas
                                    DISSENTING OPINION
                                          No. 04-17-00058-CR

                                      David Alexander ZUNIGA,
                                              Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR4390B
                               Honorable Sid L. Harle, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 25, 2018

           For the following reasons, I respectfully dissent. In Nichols v. State, 954 S.W.2d 83, 85

(Tex. App.—San Antonio 1997, no pet.), this court explained our expectations with regard to an

Anders brief stating:

           The brief must demonstrate that counsel has conscientiously examined the record
           and determined that the appeal is so frivolous that the appellant is not entitled to
           counsel on appeal. A proper Anders brief therefore must contain references to the
           record, citations to authority, and legal analysis.

Rarely does this court encounter an Anders brief that so thoroughly complies with this court’s

expectations as the Anders brief filed in the instant case. After reviewing the Anders brief, the pro
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se brief, the State’s brief, and the record in this appeal, the majority concludes “there are arguable

ground(s) for appeal, including whether Zuniga was subjected to custodial interrogation without

Miranda warnings and whether his statement should have been suppressed under the Texas Family

Code or the Texas Code of Criminal Procedure.”

        Initially, I must note that the case law regarding what constitutes an “arguable” ground for

appeal is less than clear. See In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008)

(requiring appellate court to abate for appointment of new counsel if court determines “plausible

grounds for appeal” or “colorable claims for appeal” exist); Stafford, 813 S.W.2d at 509 (asserting

counsel should file Anders brief when the record does not support any reversible grounds and must

refer in the Anders brief to “anything in the record that might arguably support the appeal,” but

requiring appellate court to abate for the appointment of new counsel if court finds “legal points

arguable on their merits”); Watson v. State, No. 04-15-00807-CR, 2017 WL 2260121, at *1 (Tex.

App.—San Antonio May 24, 2017, no pet.) (not designated for publication) (“We may determine

the appeal is wholly frivolous and issue an opinion explaining that we reviewed the record and

found no reversible error, or we may determine that arguable grounds for appeal exist and remand

the cause to the trial court so new counsel may be appointed to brief the issues.”). Regardless of

whether we are to determine whether reversible error exists or whether legal points exist that are

arguable on their merits, I disagree that the ground identified by the majority meets either test for

the same reasons explained by appointed counsel in his Anders brief.

        Zuniga was interviewed by Detective Ruben Perez at the Gulf Coast Trade School where

he was placed by the Texas Department of Family and Protective Services on March 21, 2016.

Daniel Aragon, Zuniga’s Child Protective Services’ caseworker, testified Zuniga was placed at the

school because his mother’s parental rights had been terminated and Zuniga did not have a home.



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Dissenting Opinion                                                                   04-17-00058-CR


Aragon described the facility as a trade school where individuals go to learn a trade or get a high

school diploma. The school is in an open environment, and students move freely between the

campus dorms or living quarters to the school premises. The school does not have security guards,

only staff and teachers.

        Zuniga made incriminating statements during his interview with Detective Perez, and trial

counsel filed a motion to suppress. At the suppression hearing, trial counsel first argued Zuniga’s

statement should be suppressed under section 51.095 of the Texas Family Code which governs the

admissibility of statements by a child. As appellate counsel explained in his Anders brief, however,

the admissibility of Zuniga’s statement is not governed by the Texas Family Code because it is

undisputed Zuniga was seventeen years old both when the offense was committed and when he

was being questioned. See Ramos v. State, 961 S.W.2d 637, 639 (Tex. App.—San Antonio 1998,

no pet.) (“Because Ramos was seventeen at the time he was being questioned and because he was

seventeen on the date [the victim] was murdered, we find that the Texas Code of Criminal

Procedure governed the taking of his statement.”); see also Dominguez v. State, No. 13-10-00493-

CR, 2012 WL 3043072, at *11 (Tex. App.—Corpus Christi July 26, 2012, no pet.) (not designated

for publication) (holding appellant was not entitled to protections of section 51.095 because he

was seventeen when he made his statement).

        Second, trial counsel argued Zuniga was in custody when he was interrogated because he

was in the custody of Child Protective Services, and his statement was taken in violation of

Miranda. I disagree that Zuniga’s placement by Child Protective Services at the trade school is

akin to the incarceration of an inmate. Even if we were to liken Zuniga’s placement to an

incarcerated inmate, however, the Texas Court of Criminal Appeals has declined to institute a

bright-line rule regarding custody when discussing an incarcerated inmate. See Herrera v. State,



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241 S.W.3d 520, 531 (Tex. Crim. App. 2007). Instead, the court held its “traditional ‘custody’

analytical framework” applies when an inmate is questioned about an offense other than the

offense for which the inmate is incarcerated. Id. at 532.

        Under the traditional framework, “[w]e evaluate ‘custody’ on an ad hoc basis, after

considering all of the (objective) circumstances and apply the ‘reasonable person’ standard.” Id.

(internal quotations omitted). “‘Two discrete inquiries are essential to the determination [of

“custody”]: first, what were the circumstances surrounding the interrogation; and second, given

those circumstances, would a reasonable person have felt he or she was not at liberty to terminate

the interrogation and leave.’” Id. (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). “[A]n

evaluation of the circumstances surrounding an interrogation in this context should include an

examination of … factors [that] include, but are not necessarily limited to:

        • the language used to summon the inmate;

        • the physical surroundings of the interrogation;

        • the extent to which the inmate is confronted with evidence of his or her guilt;

        • the additional pressure exerted to detain the inmate or the change in the
        surroundings of the inmate which results in an added imposition on the inmate’s
        freedom of movement; and

        • the inmate’s freedom to leave the scene and the purpose, place, and length of the
        questioning.”

Id.

        Applying this framework to Zuniga’s questioning, the following evidence introduced at the

hearing on the motion to suppress and recited in the Anders brief establishes Zuniga was not in

custody when his statement was made:

        1. Appellant arrived to the meeting at the school voluntarily and unescorted to a
        small conference room;



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Dissenting Opinion                                                                   04-17-00058-CR


        2. Appellant was neither handcuffed, shackled nor physically restrained in any
        manner at any point;

        3. Detectives were not uniformed but in plain clothes;

        4. Appellant was given the option to leave the door open or closed;

        5. Appellant was given the option to terminate the interview and leave at any time;

        6. Appellant, according to Detective Perez, was not the focus of his investigation
        when he spoke with Appellant;

        7. Appellant was not threatened by detectives;

        8. Appellant received no promises from detectives;

        9. Appellant was told he was not under arrest;

        10. The duration of Appellant’s interview was less than two hours;

        11. After Appellant’s interview was completed detectives left and released
        Appellant unescorted and free to leave.

        In view of the foregoing, I would hold the suppression issue presents neither reversible

error nor a legal point arguable on its merits. Accordingly, I agree with appellate counsel that the

appeal is frivolous and without merit. Because the majority holds to the contrary, I respectfully

dissent.

                                                      Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH




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