Opinion filed July 16, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                              No. 11-14-00064-CR
                                     __________

                      THE STATE OF TEXAS, Appellant
                                          V.
                        LISA ANN PETERSEN, Appellee

                      On Appeal from the County Court at Law
                              Midland County, Texas
                           Trial Court Cause No. 142727

                                   OPINION
       This is a shoplifting case. Appellee, Lisa Ann Petersen, was charged with the
offense of theft of property valued at an amount greater than or equal to fifty dollars
but less than five hundred dollars, a Class B misdemeanor. See TEX. PENAL CODE
ANN. § 31.03(a), (e)(2)(A)(i) (West Supp. 2014). She filed a motion to suppress
evidence of her statements to “Midland Police Department and/or any persons acting
as agents of the Midland Police Department.” She alleged that her statements in
response to questioning by police officers and a store security guard should be
suppressed because they were given without Miranda warnings. See Miranda v.
Arizona, 384 U.S. 436, 444 (1966). After conducting a pretrial hearing on the motion
to suppress, the trial court granted the motion by written order. The State of Texas
brings this interlocutory appeal of the trial court’s order granting the motion to
suppress. We reverse and remand.
                                  Background Facts
      Appellee was shopping in a Wal-Mart in Midland.               The store’s loss-
prevention officer, Moses Cortez, noticed that Appellee placed several items in
shopping bags and then placed the bags in her shopping cart. Cortez watched
Appellee pay for one item and then walk through the registers without paying for the
rest of her items. Cortez stopped Appellee right before the exit, identified himself
as a security guard, and showed her his “Wal-Mart badge.” Cortez said that he told
Appellee that the police were on their way. Appellee stayed at the scene at Cortez’s
instruction. Cortez began asking Appellee questions. Cortez testified that Appellee
“admitted to theft,” but he could not recall her exact words. Cortez did not make a
recording of Appellee’s oral statement, and he did not give her any Miranda
warnings.
      The pretrial hearing on the motion to suppress focused on Appellee’s
statements to Cortez. In orally granting the motion to suppress, the trial court ruled
that “any statements made by the Defendant at this time prior to the arrest were
custodial in nature. And I believe that they are inadmissible.” The trial court
subsequently entered a written order suppressing the statements made by Appellee.
The State then filed an interlocutory appeal of the trial court’s written order granting
the motion to suppress.




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                                       Analysis
      In its sole issue, the State argues that the trial court erred when it granted
Appellee’s motion to suppress. We note at the outset that the State has limited rights
of appeal in criminal cases. See TEX. CODE CRIM. PROC. ANN. art. 44.01 (West Supp.
2014). The State is entitled to appeal an order of a court in a criminal case that grants
a motion to suppress evidence if jeopardy has not attached and if the elected
prosecutor certifies to the trial court that the appeal is not taken for the purpose of
delay and that the suppressed evidence is of substantial importance to the case. Id.
art. 44.01(a)(5). The elected district attorney for Midland County personally signed
the notice of appeal filed in this case certifying the matters required to invoke this
court’s jurisdiction to review the trial court’s interlocutory order granting the motion
to suppress. See State v. Redus, 445 S.W.3d 151, 154–55 (Tex. Crim. App. 2014).
      A trial court’s ruling on a suppression motion is reviewed on appeal for an
abuse of discretion, with almost complete deference given to its determination of
historical facts, especially if those are based on an assessment of credibility and
demeanor. See Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013)
(citing Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). The same
deference is afforded the trial court with respect to its rulings on application of the
law to questions of fact and to mixed questions of law and fact, if resolution of those
questions depends on an evaluation of credibility. Id. For mixed questions of law
and fact that do not fall within that category, a reviewing court may conduct a de
novo review. Id. We review de novo a trial court’s application of the law to the
facts. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013); Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Regardless of whether the trial
court granted or denied the motion, appellate courts view the evidence in the light
most favorable to the ruling. Wade, 422 S.W.3d at 666; State v. Woodard, 341
S.W.3d 404, 410 (Tex. Crim. App. 2011). If the trial court makes express findings
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of fact, as the court did in this case, we review the evidence in the light most
favorable to the trial court’s ruling and determine whether the evidence supports
these factual findings. Valtierra, 310 S.W.3d at 447.
      The State challenges the trial court’s implicit determination that Cortez was
an agent of law enforcement when Appellee made statements to him purportedly
admitting the theft. In Wilkerson v. State, the Texas Court of Criminal Appeals
addressed the question of whether an agency relationship existed between law
enforcement and non-law enforcement agents in order to determine if Miranda
warnings were required. Wilkerson v. State, 173 S.W.3d 521 (Tex. Crim. App.
2005). To determine if an agency relationship exists, appellate courts must examine
the entire record and consider three factors: (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. Id. at 530–31. This test helps
courts determine whether the interviewer was acting as an instrumentality or was “in
cahoots” with the police or prosecution. Elizondo v. State, 382 S.W.3d 389, 394
(Tex. Crim. App. 2012) (citing Wilkerson, 173 S.W.3d at 531).
      Wilkerson involved a CPS investigator that interviewed a father who was in
police custody for injury to a child. Wilkerson, 173 S.W.3d at 523. The CPS worker
needed to discuss the placement of the father’s children in foster care and did not
give Miranda warnings prior to speaking with the father. Id. During the interview,
the father acknowledged spanking his son, and this information was included in the
CPS report that was forwarded to the police. Id. The court held that non-law
enforcement state agents are required to give Miranda warnings only when acting in
tandem with the police to gather evidence for a criminal prosecution.              Id.
Accordingly, the facts in Wilkerson are very different from the facts in this appeal.
      In Elizondo, the Court of Criminal Appeals applied the test that it had adopted
in Wilkerson and addressed the question of whether a retail store’s loss-prevention
                                          4
officer was required to give Miranda warnings. Elizondo, 382 S.W.3d at 394–95.
The court began its analysis by noting that the law does not presume an agency
relationship and that the party alleging such a relationship has the burden of proving
that it exists. Id. at 395 (citing Wilkerson, 173 S.W.3d at 529). The court then
applied the three Wilkerson factors to the facts of the case. Id.
      Elizondo involved a loss-prevention officer employed by Old Navy. Id. at
391. After observing the defendant leave the store without paying for items, the
loss-prevention officer intercepted her outside the store and asked her to return to
the store with him. Id. The loss-prevention officer and a manager of the store took
the defendant to a manager’s office and retrieved the stolen items from her purse.
Id. at 391–92. The loss-prevention officer then presented the defendant with a
document entitled “GAP INC. CIVIL DEMAND NOTICE.” Id. at 391. The
document contained an admission of theft, wherein the defendant “admitted to the
theft of” items from the store, admitted the value of the stolen items, and declared
that her detention was reasonable. Id. The defendant signed the document and a
store receipt reflecting the value of the items taken. Id. The loss-prevention officer
testified that these events were the “typical protocol” for theft at Old Navy. Id. He
then called the Lubbock Police Department, after which officers arrived and arrested
the defendant for theft. Id. The district attorney’s office subsequently obtained a
copy of Old Navy’s records pertaining to the theft, including the civil demand notice
signed by the defendant. Id. The defendant moved to suppress the civil demand
notice on the ground that the loss-prevention officer did not give Miranda warnings
to her prior to obtaining the statement. Id.
      The loss-prevention officer in Elizondo testified that he had worked for Old
Navy for three years and that he had never worked in law enforcement. Id. He
obtained written confessions in “99%” of his encounters with accused shoplifters,
and those confessions were kept for the store’s records. Id. However, the store
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would give a copy to the police or a prosecutor upon request. Id. He also testified
that the store’s primary purpose for obtaining written confessions from accused
shoplifters was for “punitive or monetary damages” associated with the shoplifting.
Id. at 391–92.
      With respect to the first Wilkerson factor of examining the relationship
between the police and the potential police agent, the court in Elizondo determined
that there was no indication of a calculated practice between the police and the
store’s loss-prevention staff even though the police may have been aware of the
store’s practice of obtaining signed statements from accused shoplifters. Id. at 395.
In reaching this determination, the court noted that the police had not been contacted
when the loss-prevention officer obtained the statement, “so they clearly did not
instruct [the loss-prevention officer] to get specific information or give him questions
to ask [the defendant].” Id. (emphasis added). The second Wilkerson factor focuses
on the interviewer’s actions and perceptions. Id. The court in Elizondo determined
that the purpose of the loss-prevention officer’s interview was to adhere to the store’s
policies rather than acting as a police agent. Id. The third Wilkerson factor focuses
on the defendant’s perception of the encounter. The court in Elizondo noted that, if
there is nothing in the record regarding the defendant’s perception, the court is
required to consider whether a reasonable person in the defendant’s position would
believe that the loss-prevention officer was a law enforcement agent. Id. at 396. The
court concluded that a reasonable person in the defendant’s position would not have
believed that the loss-prevention officer was a law enforcement agent because he
was not wearing a uniform and he identified himself as a loss-prevention officer for
Old Navy. Id. “There was nothing in the record indicating that [the loss-prevention
officer] appeared to [the defendant] to be cloaked with the actual or apparent
authority of the police.” Id.


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      As was the case in Elizondo, the resolution of this appeal is governed by an
application of the Wilkerson factors to the facts in this case to determine if an agency
relationship existed between Cortez and the police. The trial court did not make an
explicit finding of an agency relationship. However, the trial court entered the
following written findings of fact that are relevant to our analysis:
                               Findings of Fact
             ....
            5. The state announced its intention to utilize admission of
      [Appellee’s] statements prior to her arrest by security personnel for
      Walmart, Moses Cortez under the shop keeper privilege and that her
      statements were voluntary and spontaneous and not the result of
      custodial interrogation.
            6. Walmart security officer Cortez watched [Appellee] place
      items into shopping bags and proceed[] through the cashier’s line
      without paying for some of the items she had placed in her shopping
      cart.
             7. Prior to stopping [Appellee] before she left the store premises,
      security officer Cortez had already made the determination to prosecute
      [Appellee] as a shop lifter [sic].
           8. Security officer Cortez stopped [Appellee] before the exits of
      the Walmart store building.
            9. Security officer Cortez admits [Appellee] never left the store
      before his apprehension of [Appellee].
           10. Security officer Cortez identified himself and showed
      [Appellee] his Walmart badge.
            11. Security officer Cortez admits that he already called the
      police as a result of his prior decision to prosecute [Appellee] for theft
      before her stop and apprehension.
            12. Security officer Cortez informed [Appellee] that the police
      were on their way after [Appellee’s] initial stop and detention.
             13. Security officer Cortez admits that [Appellee] stayed at the
      store pursuant to his instructions.
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             14. Security officer Cortez indicates [Appellee] “admitted to
      theft”; and further indicates he does not recall statements [Appellee]
      told him after apprehension that made security officer Cortez conclude
      [Appellee] admitted to theft.
We note that the most significant finding of fact would appear to be Finding of Fact
No. 11, wherein the court found that Cortez called the police before stopping
Appellee.    While Cortez subsequently disagreed with this testimony when
questioned by the prosecutor, his earlier testimony supported the trial court’s finding
that he contacted the police prior to his detention of Appellee. Accordingly, we are
bound by this finding. See Valtierra, 310 S.W.3d at 447. The court in Elizondo
relied on the fact that Old Navy’s loss-prevention officer had not called the police
when he questioned the defendant.        Even though Finding of Fact No. 11 is
distinguishable from the facts in Elizondo, we conclude that it is not controlling.
      The first Wilkerson factor examines the relationship between the police and
the potential police agent. There was no finding of a “calculated practice” between
the Midland police and Cortez or any evidence in that regard. Elizondo, 382 S.W.3d
at 395. While the trial court found that Cortez contacted the police before detaining
Appellee, there was no evidence that the police instructed him to obtain a statement
from Appellee, which was significant to the court’s analysis in Elizondo—citing the
fact that the Old Navy loss-prevention officer had not contacted the police before
obtaining the statement from the defendant. Accordingly, we conclude that the first
factor weighs against a finding of an agency relationship.
      The second part of the Wilkerson test focuses on the interviewer’s actions and
perceptions to evaluate the purpose of the interview. Wilkerson, 173 S.W.3d at 530.
The trial court found that, “[p]rior to stopping defendant before she left the store
premises, security officer Cortez had already made the determination to prosecute
defendant as a shop lifter [sic].” The record supports this finding. Cortez was asked,
“[W]hy were you stopping her? What was your intention?” Cortez responded,
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“Prosecution.” Unlike the situation in Elizondo, there was no evidence that Cortez
questioned Appellee in accordance with store policy.                            Thus, his purpose in
interviewing Appellee was to prosecute her for theft. Accordingly, this factor
weighs in favor of an agency finding.
        The third Wilkerson factor focuses on the defendant’s perception of the
encounter. As was the case in Elizondo, there is nothing in the record regarding
Appellee’s perception.             Accordingly, we are required to consider whether a
reasonable person in Appellee’s position would have believed that Cortez was a law
enforcement agent. We conclude that a reasonable person would not have believed
that Cortez was a law enforcement agent.                       The trial court found that Cortez
“identified himself and showed [Appellee] his Walmart badge.” In reliance upon
similar findings, the Court of Criminal Appeals in Elizondo determined that there
was nothing in the record indicating that the loss-prevention officer appeared to the
defendant to be cloaked with the actual or apparent authority of the police. Elizondo,
382 S.W.3d at 396. Thus, this factor also weighs against a finding of agency.
        After giving deference to the trial court’s written findings of fact, we have
determined that two of the three Wilkerson factors weigh against a finding that
Cortez was an agent of law enforcement. We further conclude that the trial court
abused its discretion in granting Appellee’s motion to suppress all statements that
Appellee made to either Cortez or the police.1 Our conclusion is based in large part
on the fact that Appellee had the burden of establishing an agency relationship
between Cortez and the police. However, only one of the Wilkerson factors weighs



        1
         The trial court also suppressed any statements that Appellee may have made to the police.
However, the trial court did not receive any testimony about her statements to police officers. In this regard,
it appears that the trial court made the determination that any statement occurring after Cortez’s encounter
with Appellee should be suppressed.



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in her favor. Additionally, we disagree with the trial court’s conclusion that
Appellee was in custody when Cortez questioned her.
      Miranda warnings are only required when police conduct a custodial
interrogation of a suspect. Id. at 394. A person is in “custody” if, under the
circumstances, “a reasonable person would believe that his freedom of movement
was restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931
S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S.
318, 322–25 (1994)). The reasonable person standard presupposes the person is
innocent. Dowthitt, 931 S.W.2d at 254. Cortez’s questioning of Appellee occurred
near the exit doors of the Wal-Mart. Cortez had not asked to move to another
location within the store and had not physically restrained Appellee’s movement.
Accordingly, we disagree with the trial court’s conclusion that Appellee was in
custody when Cortez encountered her.
      Appellee raises the contention that the trial court’s act of granting the motion
to suppress constituted harmless error. She bases this contention on the allegation
that the State “cannot prevail on its prosecution due to insufficient evidence that a
crime was committed by [Appellee].” It appears that Appellee is asserting that she
could not have been prosecuted for shoplifting because she had not completely
exited the store. She additionally argues that Cortez could not recall her exact
statements.
      We are precluded from engaging in the inquiry that Appellee requests us to
make. The elected district attorney certified in the notice of appeal that the excluded
evidence “is of substantial importance in this case.” The defendant is not permitted
to challenge the verity of the prosecutor’s certification of “substantial importance.”
Redus, 445 S.W.3d at 156 n.16 (“[O]nce the government certifies that the evidence
is a substantial proof of a material fact, a reviewing court may not review ‘the
substantiality or the materiality’ of the evidence.” (quoting State v. Chupik, 343
                                          10
S.W.3d 144, 146 (Tex. Crim. App. 2011)) (internal quotation marks omitted)).
Furthermore, in the pretrial setting, there is neither constitutional nor statutory
authority for a defendant to test, or for a trial court to determine, the sufficiency of
the evidence to support or defeat an element alleged in the charging instrument.
Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005). We sustain the State’s
sole issue.
                                   This Court’s Ruling
      We reverse the order of the trial court granting Appellee’s motion to suppress
evidence, and we remand this cause to the trial court for further proceedings
consistent with this opinion.




                                                      JOHN M. BAILEY
                                                      JUSTICE


July 16, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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