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                                                OPINION

                                          No. 04-08-00702-CR

                                      Chris Joshua MEADOUX,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 289th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CR-8922
                             Honorable Carmen Kelsey, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 9, 2009

AFFIRMED

           This appeal arises out of a capital murder conviction of a juvenile, Chris Meadoux, who was

sixteen years old at the time of the offense, but was certified to be tried as an adult. On appeal,

Meadoux raises suppression and sufficiency issues, and challenges the constitutionality of the Texas

sentencing scheme that imposes a mandatory life without parole punishment on a juvenile capital

murder offender. We affirm the trial court’s judgment.
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                           FACTUAL AND PROCEDURAL BACKGROUND

       On January 24, 2007 at approximately 3:47 p.m., firefighters responded to a call for a house

fire. The fire was located in a locked bedroom on the second story. After firefighters kicked the

door in and extinguished the fire, they noticed one body lying on the bed and a second body lying

on the floor. The person on the bed, later determined to be Luis Martinez, had two gunshot wounds

to the head and a neck laceration; his cause of death was a gunshot wound to the eye. The person

on the floor, later determined to be Johnny You, was covered with a blanket, and was positioned

with his hands behind his head and his feet crossed; he was taken downstairs to paramedics but it

was determined that he was deceased. You had two gunshot wounds to the back of the head and a

deep neck laceration; his cause of death was either a gunshot wound to the head or the neck

laceration. Neither victim had any defensive wounds, and both had the drug ecstasy in their systems.

Fire investigators determined the fire was intentionally set because there were two origination points,

the door was closed with a towel or clothing placed at the base, the smoke detector had been

removed, and burned articles of clothing were the source of the fire. Four shell casings fired from

a .25 caliber gun were recovered from the bedroom; no latent prints were recovered.

       The owner of the house, David Larrick, was notified by neighbors of the fire and arrived at

the scene. Mr. Larrick called his wife and determined that she and their son, Charles Larrick, were

together and away from the house. Charles and his mother had met with his probation officer for

twenty minutes at 2:42 p.m. that afternoon. Detectives learned that Luis Martinez had been staying

at the Larrick home with the Larricks’ permission, but that Johnny You and another boy, Chris

Meadoux, had also been staying there the last few days without the Larricks’ permission; early in

the morning on the day of the murders, You and Meadoux had climbed into Charles’ bedroom


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through the window. Martinez went to sleep on the bed, while You slept on the floor and Meadoux

slept on a futon. When Charles left in the afternoon to go to his probation appointment, Meadoux

was awake but the other two boys were still asleep. Charles stated he kept a hunting rifle in his

bedroom behind the bed, and that You had a .25 caliber handgun that he had gotten from

Meadoux—who had made it known that he wanted the gun back. Both You and Meadoux were

associated with gangs. A gun residue test on Charles was negative.

       Detectives dispatched Officer Kyle Goodwin to Chris Meadoux’s house to determine whether

he was there and safe. Goodwin knocked on the door, and Meadoux opened it; as soon as he saw

the uniformed officer, Meadoux tried to close the door but Goodwin put his hand in the doorway and

pushed it open. Goodwin identified himself and stated he was there to check on Meadoux’s welfare

because something bad had happened to two of his friends. Officer Goodwin asked Meadoux if he

would come down to the station to talk to the detectives, and Meadoux agreed. Because he was only

sixteen years old, Goodwin informed him that he needed a parent or guardian to come along.

Meadoux’s adult brother, Samuel Cordier, was at home and accompanied Meadoux to the police

station. Meadoux was told he was not under arrest; he was not patted down or handcuffed, and he

and his brother were given the option of driving separately to the police station. They chose to ride

with Officer Goodwin. Once at the police station, Meadoux and his brother waited in the lobby near

an exit, and then Meadoux was questioned by two separate detectives in an interview room with the

door left open much of the time.

       At the police station, Meadoux gave two separate statements that were recorded on DVD.

The first DVD statement lasts approximately one and one-half hours, and shows Meadoux repeatedly

denying any involvement in or knowledge of the murders, but then attempting to destroy evidence


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after being told a gun shot residue test (GSR) would be performed on his hands; specifically, the

video shows him getting a soda can out of the trash, pouring it over his hands, and rubbing them and

scraping them with his teeth during a break while waiting for the GSR test. After the detective

confronted him with this conduct, Meadoux continued to deny any knowledge or involvement in the

offense; he left the interview room and sat with his brother in the lobby area for approximately ten

minutes. Meadoux then agreed to give a second statement. The second DVD lasts approximately

half an hour, and contains Meadoux’s confession that he accidentally committed the murders when

he and You fought over the gun and it discharged, and then he set the fire to cover it up. After his

confession, Meadoux was not arrested, but was transported back home with his brother. Meadoux

did not receive any Miranda warnings or the statutory warnings required for a juvenile in custody

under section 51.095 of the Family Code. TEX . FAM . CODE ANN . § 51.095 (Vernon 2008).

       In August 2007, Meadoux was arrested and certified to be tried as an adult. He was

subsequently indicted for capital murder in two counts alleging alternate manner and means: (1) the

murder of Luis Martinez while in the course of committing arson; and (2) the murder of Luis

Martinez and Johnny You as part of the same criminal transaction. The trial court held a pre-trial

hearing on Meadoux’s motion to suppress his oral statements and a Jackson v. Denno1 hearing on

the voluntariness of his confession. The court ruled that Meadoux was not “in custody,” and his

statements were not the product of custodial interrogation and were voluntary; both statements were

admitted into evidence at trial and the jury viewed both DVDs. In addition, Sergeant Thomas

Matjeka testified that You could not have been shot in the back of the head accidentally as Meadoux

claimed; he stated Martinez also could not have been shot in the eye as a result of the gun being


       1
        … Jackson v. Denno, 378 U.S. 368 (1964).

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dropped and firing accidentally as Meadoux claimed. Matjeka testified in his opinion, based on the

trajectories and placement of the gunshot wounds, both boys were laying down at the time they were

shot. The blood stain pattern on Meadoux’s jeans was not consistent with his story of a struggle and

accidental shooting, and Meadoux had no injuries or marks on his hands or arms indicative of a

struggle. In addition, GSR particles were recovered from Meadoux’s right hand, the jacket he had

on at the police station, his jeans, and a shirt. The forensic scientist testified that pouring soda over

and rubbing and scrapping the hands would “significantly reduce” any GSR particles. Physical

evidence recovered from Meadoux’s home included a cell phone belonging to Luis Martinez, a

hunting rifle belonging to David Larrick, a .25 caliber handgun whose ballistics matched the

recovered shell casings and wounds, and a wooden box with several knives. The blood on

Meadoux’s jeans was that of Luis Martinez. The medical examiner testified a pocketknife recovered

from Meadoux’s room could have caused the neck lacerations on the victims. The .25 caliber

handgun was tested and did not fire accidentally when dropped. Several calls were made from

Martinez’s cell phone to Meadoux’s girlfriend from 3:42 p.m. to 4:05 p.m. on the afternoon of the

murders. Finally, a witness, Jennifer Kerr, testified she was driving through the neighborhood where

the murders occurred at about 3:00 or 3:30 p.m. on January 24, 2007, and saw Meadoux walking

away from a wooded area behind the houses. Meadoux told her his name was “Max” and he was

lost and did not know how to get out of the neighborhood. Kerr gave Meadoux a ride to a nearby

grocery store.

        Based on this evidence, the jury returned a general verdict finding Meadoux guilty of capital

murder; no lesser included offenses were included in the jury charge. Because of his minority, the

trial court imposed the mandatory sentence of life imprisonment without the possibility of parole.


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See TEX . PENAL CODE ANN . § 8.07(c) (Vernon Supp. 2009) (prohibiting punishment by death for

a person younger than 18 years at the time of the offense); TEX . CODE CRIM . PROC. ANN . art. 37.071

§ 1 (Vernon Supp. 2009) (prescribing a mandatory sentence of life without parole for defendants

convicted of a non-death penalty capital felony); see also Act of May 28, 2005, 79th Leg., R.S., ch.

787, § 1, 2005 Tex. Gen. Laws 2705 (amended 2009) (current version at TEX . PENAL CODE ANN .

§ 12.31(a) (Vernon Supp. 2009)). Meadoux timely appealed.

        On appeal, Meadoux claims that: (1) the trial court erred in denying his motion to suppress

his confession, and in refusing to submit a jury instruction on the voluntariness of his statement; (2)

the evidence is legally and factually insufficient to establish the elements of capital murder as set out

in the indictment; and (3) the Texas sentencing scheme of automatic life without parole for a juvenile

convicted of capital murder constitutes cruel and unusual punishment in violation of the federal and

state constitutions.

                                   CONFESSION (SECOND STATEMENT)

        In two issues on appeal, Meadoux asserts that the trial court erred in denying his motion to

suppress his second2 statement, and in denying his request for a jury instruction on the voluntariness

of his statement.       Specifically, Meadoux contends his second statement confessing to the

murders/arson was the product of custodial interrogation and coercion, and was therefore not

voluntary. The State responds that Meadoux was not “in custody,” was not coerced, and his

confession was voluntary, and therefore properly admitted into evidence. As to the jury instruction,

the State asserts that article 38.22 of the Code of Criminal Procedure does not apply when the


        2
         … On appeal, M eadoux only challenges the denial of his motion to suppress as to his second statement (the
confession), even though his first statement was also admitted and the jury viewed the DVD of him engaging in
incriminating conduct, i.e., the attempted removal of GSR from his hands in the interview room.

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statement did not stem from custodial interrogation. See TEX . CODE CRIM . PROC. ANN . art. 38.22

(Vernon 2005).

         Motion to Suppress Second Oral Statement.                  We review a trial court’s ruling on a motion

to suppress for an abuse of discretion, viewing all the evidence in the light most favorable to the

court’s ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (“party that

prevailed in the trial court is afforded the strongest legitimate view of the evidence and all reasonable

inferences”); Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We afford almost total

deference to the trial court’s determination of historical facts supported by the record, but review its

application of the law to the facts de novo. Garcia-Cantu, 253 S.W.3d at 241; see Guzman v. State,

955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). When a trial court does not make explicit findings

of fact, we assume the court made implicit findings of fact in support of its ruling as long as those

findings are supported by the record. Garcia-Cantu, 253 S.W.3d at 241; State v. Ross, 32 S.W.3d

853, 855 (Tex. Crim. App. 2000). If the trial court’s decision is correct on any theory of law

applicable to the case, its decision will be upheld. Ross, 32 S.W.3d at 855-56; Armendariz v. State,

123 S.W.3d 401, 404 (Tex. Crim. App. 2003). This deferential standard of review applies regardless

of whether the court granted or denied the motion to suppress.3 Garcia-Cantu, 253 S.W.3d at 241.

         1. Custodial Interrogation.               The admissibility of a statement made by a juvenile is

governed by section 51.095 of the Texas Family Code. TEX . FAM . CODE ANN . § 51.095. The statute



         3
          … A ruling on a motion to suppress in a juvenile case is reviewed using the same standard of review that applies
in an adult criminal case. In re R.J.H., 79 S.W .3d 1, 6-7 (Tex. 2002). Here, the trial court initially held a suppression
hearing in Meadoux’s juvenile case and ruled his statements were not the product of custodial interrogation. The court
held another suppression/Jackson v. Denno hearing in Meadoux’s adult criminal case, and reconsidered the issue of
whether he was “in custody” at the time he made the statements, ruling he was not. The court took judicial notice of the
testimony from the juvenile suppression hearing. Thus, the suppression ruling being reviewed on appeal arises out of
the adult criminal case.

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provides that a juvenile’s recorded oral statement is admissible only if the specified Miranda-based

warnings are given by a magistrate prior to the statement. Id. § 51.095(a)(5). If a juvenile is not “in

custody,” however, the statutory warnings are not necessary for admission of the juvenile’s

statement. Id. § 51.095(a)(1)(A), (d) (providing that the warnings 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). A voluntary oral

statement by a juvenile that does not stem from custodial interrogation is admissible, even if the

juvenile did not receive the statutory admonishments. Id. § 51.095(b)(1), (d); Martinez v. State, 131

S.W.3d 22, 32 (Tex. App.—San Antonio 2003, no pet.). It is undisputed that Meadoux never

received any admonishments of his rights. We must determine whether the trial court correctly

applied the relevant law to the facts of the case in ruling that Meadoux was not “in custody” when

he gave his statement.

        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. Martinez, 131

S.W.3d at 32 (citing 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.

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




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        In determining whether a child was in custody at the time of questioning, we apply a two-step

analysis. Martinez, 131 S.W.3d at 32; In re M.R.R., Jr., 2 S.W.3d 319, 323 (Tex. App.—San

Antonio 1999, no pet.). First, we examine all the circumstances surrounding the questioning 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 (citing Stansbury v. California, 511

U.S. 318, 322 (1994)). In making this initial determination, we focus on the objective circumstances

of the interrogation, not on the subjective views of the officer or the individual being questioned.

Martinez, 131 S.W.3d at 32. “[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 (citing Thompson v.

Keohane, 516 U.S. 99, 112 (1995)). Courts have traditionally considered 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. Id.; Dowthitt, 931 S.W.2d at 254. However, because the custody determination is to be

based entirely upon objective circumstances, the subjective intent of both the police and the

defendant is irrelevant except to the extent the intent may be manifested in their words or actions.

Martinez, 131 S.W.3d at 32; Dowthitt, 931 S.W.2d at 254. When the circumstances show that a

person is acting upon the invitation or request of the police, and there are no express or implied

threats to take him by force, then that person is not in custody at that time. Martinez, 131 S.W.3d

at 32; Dancy v. State, 728 S.W.2d 772, 778-79 (Tex. Crim. App. 1987). Merely being the focus of

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a criminal investigation does not amount to being in custody. Meek v. State, 790 S.W.2d 618, 620

(Tex. Crim. App. 1990). Moreover, being questioned at the police station does not, by itself,

constitute being in custody. Dowthitt, 931 S.W.2d at 255.

       In concluding that Meadoux was not in custody at the time of his statement, and that his

statement was voluntary and not the product of custodial interrogation, the trial court made the

following findings of fact on the record: (i) there was no parent involved, but an adult brother

accompanied Meadoux to the police station; (ii) he went with the police after they asked him to; (iii)

he and his brother were given an opportunity to drive their personal vehicle or ride with the officer;

(iv) he was not searched or handcuffed; (v) he was considered a suspect but was not read his rights;

(vi) no weapons were drawn; (vii) the reason the police went to Meadoux’s house was because they

had information he was with two individuals who were found dead in a house fire, a missing person

report had been filed by Meadoux’s mother, and they were conducting an investigation to determine

Meadoux’s safety; and (viii) at the police station, the door was left open numerous times and

Meadoux was told he would be free to leave after the questioning and did leave. All of the court’s

fact findings are supported by the record of the motion to suppress hearing, and we therefore afford

almost total deference to these facts. Garcia-Cantu, 253 S.W.3d at 241.

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

Meadoux’s questioning to determine whether there was a formal arrest or restraint to the degree

associated with a formal arrest. Here, it is undisputed that Meadoux was never placed under formal

arrest or handcuffed; in fact, after he gave his confession, he and his brother were transported back

home. Officer Goodwin, who was in uniform and driving a marked patrol car, testified he never

pulled out his gun or any handcuffs, and Meadoux was repeatedly told he was not under arrest at his

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home before going to the station. Goodwin also stated he informed Meadoux he did not have to

come down to the police station, but Meadoux agreed to do so; he and his brother were given the

option of driving themselves but chose to ride with the officer; they were not patted down or

handcuffed at any time; and they initially waited in the lobby area near an exit door at the station.

Sergeant Matjeka, one of two detectives who separately interviewed Meadoux at the station, testified

that Meadoux was informed he was not under arrest and was “free to leave” about thirty times during

the two interviews. Matjeka personally told Meadoux he was “free to go” six times during their

forty-minute interview. Meadoux was never restrained or handcuffed, and he was left alone in the

interview room with the door open much of the time, with access to the building exits; he was

questioned by only one detective at a time. Matjeka stated that during the interviews Meadoux never

stated he wanted to leave or asked for an attorney. After the first interview, Meadoux sat and talked

with his brother in the lobby area for about ten to fifteen minutes while transport home was being

arranged. Matjeka conceded there was some delay because an officer had to be available to drive

them home; it was at that point that Meadoux decided to talk to the detectives again, and made his

confession to Matjeka. Matjeka testified that Meadoux was never given any Miranda warnings

because he was not in custody. Finally, Meadoux himself states several times on the DVD that he

is aware that he is not under arrest and is free to leave. Based on all the objective circumstances

surrounding the questioning, Meadoux was not under formal arrest or a restraint of freedom to the

degree associated with a formal arrest. Martinez, 131 S.W.3d at 32.

       Turning to the second part of the analysis involving the four factors, we examine whether a

reasonable sixteen-year-old in the same circumstances as Meadoux would have felt free to terminate

the interview and leave. Id. In making this determination, we look first to the objective factors of

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whether the officers had probable cause to arrest Meadoux at the time of his questioning and whether

he was the focus of the investigation. Goodwin stated that he was dispatched to Meadoux’s house

by the homicide detectives for the dual purpose of checking on Meadoux’s welfare and, if he was

at home, asking him to go to the police station to discuss what happened at the Larrick house that

day. Goodwin explained that at the time he only knew “there was a house fire that had bodies in it.

And [the detectives] didn’t know whether or not [Meadoux] was there, whether he was hurt, whether

he was missing or possibly a suspect.” Goodwin stated that once he verified that Meadoux was safe

and at home, he called the detectives and they instructed him to ask Meadoux to come to the station

because they wanted to find out what Meadoux knew about the events at the house fire; they did not

know what his involvement might have been—they only knew he had been at the house with the

other boys that day. There was no other evidence pointing to Meadoux at the time of his

questioning, other than his presence at the house; it was only after he gave his confession that

probable cause to arrest him arose. Although he was a suspect, Meadoux was not the sole focus of

the investigation. Charles Larrick was also tested for gun shot residue, and was a potential suspect

until the GSR test came back negative and his alibi of being at the probation office was confirmed.

       As to the subjective intent of the police as manifested by their objective words and actions,

Officer Goodwin testified that when Meadoux opened the front door and saw a uniformed officer,

he immediately tried to close the door; Goodwin stated he put his hand in the doorway and stopped

the door from closing, pushing it open, for reasons of “officer safety” in that he knew a violent act

had occurred but did not know the extent of Meadoux’s involvement. After Goodwin verified

Meadoux’s identity, he explained to Meadoux that “something bad” had happened to some of his

friends, and that he needed to make sure Meadoux was okay; Meadoux answered, “No, I’m fine.”

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Goodwin then told Meadoux that some detectives wanted to speak with him and asked him to go

down to the police station, and Meadoux said, “Oh, okay.” Goodwin testified he then followed

Meadoux into the front living room of the house and waited while Meadoux got ready; his backup

officer had arrived and waited at the front door threshold. Neither officer drew their gun or had their

handcuffs out. Goodwin did have his flashlight on because it was dark in the house and he did a

protective sweep of the room for any weapons or other potential dangers to the officers. When

Meadoux went upstairs to get his shoes, Goodwin followed him and waited at the top of the stairs,

again for reasons of officer safety. Goodwin explained to Meadoux that since he was a minor a

parent or guardian had to accompany him to the police station, and his brother Samuel did so.

Goodwin testified that he told them while at the house, “you don’t have to go with me if you don’t

want to,” and made it “very clear” that it was “only by choice” that they were going to the police

station. Goodwin gave them the option to drive separately, but they declined and chose to ride with

him; he did not frisk them before they got in his patrol car as he usually would, although the back

seat doors do not open from the inside. Goodwin stated Samuel and Meadoux agreed to go with him

voluntarily; he did not handcuff them or put them in custody or “make them feel like it;” Goodwin

said they “laughed and joked the whole time.” At the station, Meadoux and Samuel waited in a

lobby area with access to nearby exits.

       Sergeant Matjeka stated that during the entire time Meadoux was at the police station he was

not under arrest or in custody, and was free to leave at any time. Matjeka testified he repeatedly told

Meadoux that he was not under arrest and was free to go; he further told Meadoux repeatedly that

he would not be arrested that night no matter what he said to the detectives. Meadoux was never

restrained or handcuffed or read his rights. The door to the interview room was left open much of

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the time and Meadoux was left in the room unguarded; he left the room and sat with Samuel in the

lobby area in between the two interviews. Samuel walked outside the police station to smoke several

times. Further, Meadoux was, in fact, not arrested after his confession but was transported home

with his brother. As to Meadoux’s subjective beliefs manifested by his words and actions, the DVD

shows Meadoux acknowledging several times that he is not under arrest and is free to leave.

Meadoux never states that he wants to leave or stop the interview.4 In fact, after being confronted

with his “hand-washing” and then speaking to his brother, Meadoux chose to talk to Matjeka a

second time and confess that the shootings were accidental. Meadoux did not testify at the

suppression hearing, but his brother Samuel testified he personally did not give the officers

permission to enter the house, and Samuel’s girlfriend testified the officer who later came to pick

her up did not give her a choice about coming with him. Considering all the circumstances and the

four traditional factors, we conclude a reasonable sixteen-year-old in the same situation as Meadoux

would have felt free to terminate the questioning and leave. See id.

         The circumstances of Meadoux’s case are distinguishable from In re S.A.R., 931 S.W.2d 585,

587 (Tex. App.—San Antonio 1996, writ denied), in which this court held that a juvenile was in

custody where she was taken to the police station by four officers in a marked patrol car, was

photographed and fingerprinted at the station, was informed she was a suspect for capital murder,

and was questioned by three officers in a small room. These facts, combined with the fact that the

investigation focused on S.A.R., caused this court to hold that a reasonable person in that situation


         4
          … The DVD shows Matjeka asking Meadoux, as part of his interview tactics, if he is “ready to go?” and
Meadoux answering, “yes,” before Matjeka tells him, “I’m not gonna talk to you no more. I’m not even gonna try. If you
want to talk to me and tell me what happens [sic] then you better stop me sometime before I leave . . . .” At another
point, Meadoux asks Matjeka, “W e gonna go now?” Matjeka answers, “yeah,” but then states they have to wait for the
GSR technician to test his hands.

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would have believed their freedom of movement was significantly restricted. Id. (pre-dating

adoption of the “reasonable child of the same age” definition of juvenile custody). Indeed, the

circumstances of Meadoux’s case are more similar to those in Martinez, in which this court held the

fifteen year-old juvenile was not in custody at the time of his statement. See Martinez, 131 S.W.3d

at 33. There, Martinez voluntarily agreed to accompany plain clothes officers to the police station,

and was informed he could drive himself or ride with the officers. Id. He was specifically advised

that he was not under arrest before he left home, and was never handcuffed. Id. He was told by a

detective that no matter what he said he would not be arrested that day; he was placed in an interview

room with one detective, with whom he cooperated and gave a written statement. Id. He agreed to

let the detectives take a photograph of him before he was transported home. Id. The main difference

between Martinez and Meadoux’s case is that Martinez’s mother separately accompanied him to the

police station, and agreed that he could give a statement. Id. In Meadoux’s case, his adult brother,

Samuel, accompanied him as his guardian.

       Based on the totality of the circumstances here, Meadoux was not under arrest or restrained

to the degree of an arrest, and a reasonable sixteen-year old child would have had the ability to

terminate the interview and leave; therefore, he was not in custody. See id. at 35. Because Meadoux

was not in custody when he made his oral confession, the requirement that a magistrate give him the

warnings set forth in section 51.095(a)(1)(A) of the Family Code did not apply to him. See In re

R.A., No. 03-04-00483-CV, 2005 WL 1412119, at *3 (Tex. App.—Austin June 15, 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).

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       2. Voluntariness of Confession.         Even in the absence of custody, due process may be

violated by admitting confessions that are not voluntarily given. Martinez, 131 S.W.3d at 35; Wolfe

v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996). A statement is not voluntary if there was

“official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have

been the product of an essentially free and unconstrained choice by its maker.” Alvarado v. State,

912 S.W.2d 199, 211 (Tex. Crim. App. 1995). When voluntariness is challenged by the defendant,

the State bears the burden of proving by a preponderance of the evidence that the statement was

given voluntarily. Id. The trial court is the sole judge of the weight and credibility of the evidence,

and the trial court’s finding on voluntariness may not be disturbed on appeal absent an abuse of

discretion. Id.; Martinez, 131 S.W.3d at 35.

       Meadoux argues the entire chain of events leading to his confession was triggered by Officer

Goodwin’s illegal conduct in preventing him from closing the door to his own home. As discussed

supra, Goodwin testified that he stopped Meadoux from closing the door by putting his hand on the

door and pushing it open, and later followed him into the front room, for reasons of “officer safety”

because he did not know the nature of Meadoux’s involvement with the two dead bodies, but knew

“some sort of violent act had taken place.” Even if Goodwin’s warrantless entry across the home’s

threshold, and later into the home itself, can be viewed as an illegal forced entry with a causal

connection to Meadoux’s confession, the record shows the taint of the illegal entry was sufficiently

attenuated by intervening circumstances and the passage of time before Meadoux voluntarily gave

his confession—by that point he had been told numerous times by both Goodwin and Matjeka, both

at his house and the police station, that he was not under arrest or in custody, and was free to refuse

to go to the police station, and once there free to leave. See Wilson v. State, 277 S.W.3d 446, 448


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(Tex. App.—San Antonio 2008, pet. granted) (citing Johnson v. State, 871 S.W.2d 744, 751 (Tex.

Crim. App. 1994), for the four factors to be considered under the attenuation doctrine: (1) whether

Miranda warnings were given, (2) the temporal proximity of the illegal conduct and the confession,

(3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official

misconduct).

       Finally, Meadoux asserts he was coerced into giving the confession because he repeatedly

denied involvement for an hour and a half, and his departure was delayed while waiting for the gun

shot residue test and a ride home. The record contains no evidence the officers threatened or coerced

Meadoux into confessing, or that his will was overborne by the officers’ actions; rather, it was

Meadoux’s own conduct in trying to clean any gun shot residue from his hands which was caught

on video, and his subsequent discussion with his brother in the lobby, that ultimately led to his

confession. See Wyatt v. State, 23 S.W.3d 18, 23-25 (Tex. Crim. App. 2000) (rejecting appellant’s

claim that his confession was coerced because the interrogating officers called him a liar and “talked

short” to him).

       Conclusion. We conclude the trial court did not abuse its discretion in ruling that Meadoux

was not in custody and that his confession was voluntary, and thus did not err in denying Meadoux’s

motion to suppress the second statement.

       Jury Instruction on Voluntariness of Statement.

       Meadoux also argues that a voluntariness instruction should have been included in the jury

charge under article 38.22 § 6 of the Code of Criminal Procedure. TEX . CODE CRIM . PROC. ANN .

art. 38.22 § 6 (Vernon 2005) (providing that upon the trial court’s finding that a statement was

voluntary, evidence pertaining to voluntariness may be submitted to the jury and it shall be instructed


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that unless it believes beyond a reasonable doubt that the statement was voluntarily made, it shall

not consider the statement or any evidence obtained as a result thereof). The State correctly responds

that article 38.22 applies only to statements that arise out of custodial interrogation. Because

Meadoux was not in custody when he made his confession, the question of whether the jury should

have received an instruction on the voluntariness of that statement is moot. Martinez, 131 S.W.3d

at 36; Land v. State, 943 S.W.2d 144, 149 (Tex. App.—Houston [1st Dist.] 1997, no pet.). We

therefore overrule this issue.

                                   SUFFICIENCY OF THE EVIDENCE

        In two issues, Meadoux next asserts the evidence is legally and factually insufficient to

support his conviction for capital murder because (i) the evidence did not show he had the intent to

commit arson at the time he was committing the murders, and (ii) the evidence did not show he

intentionally caused Martinez’s death, only You’s death. The State responds that the evidence is

clearly legally and factually sufficient to prove the second of the alternate means—that the two

murders were committed during the same criminal transaction, and that is all that is required.

        In reviewing legal sufficiency, we consider all the evidence in the light most favorable to the

verdict to determine whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007);

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is permitted to make reasonable inferences

from the evidence, and, as the trier of fact, the jury is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. Mosley v. State, 983 S.W.2d 249, 254-55 (Tex. Crim.

App. 1998). We resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State,

30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In reviewing factual sufficiency, we consider all the


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evidence in a neutral light, giving almost complete deference to the jury’s determinations of

credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We will reverse the

conviction only if the evidence in support of the verdict, although legally sufficient, is so weak that

the verdict is clearly wrong and manifestly unjust, or if, considering conflicting evidence, the verdict

is outweighed by the great weight and preponderance of the evidence. Id.; Watson v. State, 204

S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

       In the indictment, the State charged Meadoux with two alternative means of committing

capital murder: (1) intentionally and knowingly causing the deaths of Luis Martinez and Johnny You

by shooting and cutting them with a deadly weapon during the same criminal transaction, or (2)

intentionally and knowingly causing the death of Luis Martinez by shooting and cutting him with

a deadly weapon while in the course of committing the offense of arson of a building. TEX . PENAL

CODE ANN . §§ 19.02(b)(1), 19.03(a)(2), (7)(A) (Vernon 2003 & Supp. 2009) (providing a person

commits capital murder by committing murder in the course of another crime like arson, or by

murdering more than one person during the same criminal transaction). The jury was instructed in

the disjunctive to find Meadoux guilty of capital murder if they found beyond a reasonable doubt that

he committed either of the two means of the offense. The jury returned a general “guilty” verdict.

       When the court’s charge authorizes the jury to convict the defendant on alternative theories,

we will uphold the jury’s guilty verdict if the evidence is sufficient on any one of the theories. Sorto

v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005); Rabbani v. State, 847 S.W.2d 555, 558-59

(Tex. Crim. App. 1992). In its brief, the State only argues the evidence is sufficient under the “same

criminal transaction” theory. With respect to that theory, Meadoux asserts there is “no evidence”

that he intentionally caused Martinez’s death because all of his statements about the incident


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involved fighting with You; Martinez was not involved in the alleged struggle and his death could

have been accidental.

       The record does contain both legally and factually sufficient evidence to prove that Meadoux

intentionally and knowingly killed Martinez during the same criminal transaction in which he killed

You. Besides the other evidence detailed above that was inconsistent with Meadoux’s defense of

an accidental discharge (most critically that You was shot twice in the back of the head), there was

testimony that the .25 caliber handgun used in the killings did not fire accidentally when dropped

by an investigator. Further, there was testimony that if two people were fighting over the gun when

it fired, someone’s hands would likely get “hurt from the slide,” and Meadoux had no marks or

injuries on his hands or arms. In addition, Sergeant Matjeka testified that You could not have been

shot in the back of the head during a struggle over the gun, and Martinez could not have received the

wound to his eye from a gun being dropped on the floor and accidentally firing as described by

Meadoux; further, You had no defensive injuries. Most importantly, Martinez was shot twice —once

in the left eye and once in the neck. Finally, Meadoux admitted cutting Martinez’s throat, as well

as You’s throat, because he did not want to leave a witness behind; the medical examiner testified

You was still alive when his neck was cut and Meadoux stated he cut You’s throat because “he was

still breathing.” Meadoux also admitted setting the fire to cover up the deaths.

       As for any “contrary evidence” to be considered in a factual sufficiency review, the lack of

powder tattooing around Martinez’s wounds indicated the gun was fired from over three and a half

feet away, and there were fibers in one wound indicating the bullet passed through something like

a pillow or comforter. Sergeant Matjeka testified that, based on the trajectory of the wounds,

Martinez was lying down when he was shot.


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         The jury was entitled to infer Meadoux’s intent to kill Martinez from all of his conduct,

including his act of slitting Martinez’s throat to make sure he was dead and setting the fire to cover

up the deaths. Sorto, 173 S.W.3d at 475 (jury may infer intent to kill from defendant’s words and

conduct); Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Moreover, the jury was

entitled to believe or disbelieve all or part of Meadoux’s statements, and to assess the weight and

credibility of the other evidence and resolve any conflicts in the evidence. Sorto, 173 S.W.3d at 475.

         Conclusion.        Based on our review of the record, we conclude the evidence is both legally

and factually sufficient to prove Meadoux committed capital murder by intentionally and knowingly

killing two people during the same criminal transaction.

                 SENTENCING : AUTOMATIC LIFE WITHOUT PAROLE FOR JUVENILE

         Finally, Meadoux challenges the constitutionality of the Texas sentencing scheme mandating

that, even though he was sixteen years old at the time of the offense, he be automatically sentenced

to life without parole. Specifically, Meadoux argues the capital murder sentencing scheme for a

juvenile tried as an adult constitutes “cruel and unusual” punishment in violation of the Eighth and

Fourteenth Amendments to the United States Constitution and article I, section 13 of the Texas

Constitution. U.S. CONST . amends. VIII and XIV; TEX . CONST . art. I, § 13.

         Meadoux bases his argument on recent actions taken by the United States Supreme Court in

ruling that execution of a juvenile is unconstitutionally “cruel and unusual” in Roper v. Simmons,

543 U.S. 551 (2005), and in recently granting review in two Florida cases5 on the question of



         5
          … On November 9, 2009, the United States Supreme Court heard oral arguments in Sullivan v. Florida, 987
So.2d 83 (Fla. Dist. Ct. App. 1st Dist. 2008), cert. granted, 129 S.Ct. 2157 (May 4, 2009) (No. 08-0762), and Graham
v. Florida, 982 So.2d 43 (Fla. Dist. Ct. App. 1st Dist. 2008), cert. granted, 129 S.Ct. 2157 (May 4, 2009) (No. 08-7412).
The Court’s decisions are currently pending.

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whether life without parole for a non-homicide offense committed by a juvenile is “cruel and

unusual.” The Supreme Court also recently ruled that the Eighth Amendment prohibits the execution

of a mentally retarded person. See Atkins v. Virginia, 536 U.S. 304 (2002).

       The Eighth Amendment guarantees individuals the right not to be subjected to excessive or

cruel and unusual punishment. U.S. CONST . amend. VIII. A punishment is “excessive,” and

therefore prohibited by the Eighth Amendment, if it is not graduated and proportioned to the offense.

Atkins, 536 U.S. at 311 (citing Weems v. United States, 217 U.S. 349, 367 (1910)); Roper, 543 U.S.

at 560. An excessiveness claim is judged by currently prevailing standards of decency. Atkins, 536

U.S. at 311-12. Proportionality review under such evolving standards of decency “should be

informed by ‘objective factors to the maximum possible extent.’” Id. at 312. The Supreme Court

has stated that the “clearest and most reliable objective evidence of contemporary values is the

legislation enacted by the country’s legislatures.” Id. In addition to objective evidence, the

Constitution contemplates that the Supreme Court will bring its own judgment to bear “by asking

whether there is reason to disagree with the judgment reached by the citizenry and its legislators.”

Id. at 313; see Roper, 543 U.S. at 564-578 (holding that both objective indicia of consensus, as

expressed by enactments of legislatures that have addressed the issue, and the Court’s own

independent judgment demonstrate that the death penalty is a disproportionate punishment for

juveniles). Thus, in reviewing the constitutionality of a sentencing statute, an appellate court

considers: (1) the gravity of the offense relative to the harshness of the penalty; (2) the sentence

compared to that received by others in the same jurisdiction; and (3) the sentence compared to

similar sentences in other jurisdictions. Speer v. State, 890 S.W.2d 87, 92 (Tex. App.—Houston [1st

Dist.] 1994, pet. ref’d) (citing Solem v. Helm, 463 U.S. 277, 290 (1983)).


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       Meadoux argues that the same reasoning used by the Supreme Court in Roper to find

execution of a juvenile “cruel and unusual” applies to a mandatory sentence of life without parole

for a juvenile. See Roper, 543 U.S. at 569-70 (citing three reasons for declining to classify juveniles

as the “worst offenders” worthy of the death penalty: (1) lack of maturity and an underdeveloped

sense of responsibility; (2) susceptibility to outside pressures; and (3) the less than fully-formed

nature of their characters). The Supreme Court in Roper also considered the “evolving standard of

decency,” noting that almost all other countries prohibit the execution of juveniles. Id. at 561. The

Supreme Court affirmed the Missouri Supreme Court’s modification of the juvenile’s sentence from

death to life without the possibility of parole, but did not address the issue of the constitutionality

of a life without parole sentence for a juvenile. Id. at 560; but see Harmelin v. Michigan, 501 U.S.

957, 995-96 (1991) (sentencing scheme that calls for an automatic life without parole sentence,

rather than an individualized punishment determination, is not “cruel and unusual”).

       The State responds that it is up to the Texas legislature to choose to amend the sentencing

procedure for a juvenile capital murderer, and that several Texas courts of appeals have upheld the

constitutionality of a life without parole sentence for a juvenile convicted of capital murder. See Ex

parte Moser, 602 S.W.2d 530, 533 (Tex. Crim. App. 1980) (legislature may alter or abolish the

procedure whereby the jury assesses a defendant’s punishment within the bounds of due process and

other constitutional strictures). The Texas sentencing scheme for capital murder provides that upon

conviction an adult offender may receive one of two possible punishments: death or life

imprisonment without parole. TEX . PENAL CODE ANN . § 12.31(a); TEX . CODE CRIM . PROC. ANN .

art. 37.071 §§ 1, 2 (Vernon Supp. 2009). A juvenile who has been certified to stand trial as an adult

for capital murder may not be sentenced to death; therefore, the juvenile must be sentenced to the


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lesser punishment, life imprisonment without parole. TEX . PENAL CODE ANN . § 8.07(c). In

upholding the constitutionality of this sentencing scheme for juveniles, our sister courts of appeal

have stated that, “[p]resumably, the law statutorily considers youth in mitigation of the death

penalty and thereby mandates the lesser of the two possible punishments for capital murder.” Laird

v. State, 933 S.W.2d 707, 714-15 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (quoting Prater

v. State, 903 S.W.2d 57, 60 (Tex. App.—Fort Worth 1995, no pet.)); see Speer, 890 S.W.2d at 92-93

(upholding constitutionality of mandatory life for juvenile capital murderer and holding that

mitigating evidence such as prior abuse of juvenile may be considered by jury during trial in

determining whether juvenile committed capital murder or lesser offense); see also Barnes v. State,

56 S.W.3d 221, 239 (Tex. App.—Fort Worth 2001, pet. ref’d) (imposition of automatic life sentence

on juvenile is not unconstitutional). In addition, at least two Texas courts of appeal have recently

rejected a juvenile’s argument that a mandatory life sentence upon conviction for capital murder is

unconstitutional based on the Supreme Court’s reasoning in Roper; the Court denied certiorari in one

of the cases.     See Willis v. State, No. 06-04-0172-CR, 2005 WL 2086327, at *3 (Tex.

App.—Texarkana Aug. 31, 2005, no pet.) (mem. op., not designated for publication); Thomas v.

State, No. 14-06-00066-CR, 2007 WL 2238890, at *5 (Tex. App.—Houston [14th Dist.] Aug. 7,

2007, pet. ref’d), cert. denied, 129 S.Ct. 51 (2008) (mem. op., not designated for publication).

        As the State notes, the Texas legislature recently amended section 12.31 of the Penal Code

to restore parole eligibility for juvenile capital murder offenders who are certified as adults for trial;

however, the legislature chose not to make the law retroactive, restricting it to juvenile offenders

who commit capital murder on or after September 1, 2009. See TEX . PENAL CODE ANN . § 12.31(a)

(Vernon Supp. 2009) (providing for a mandatory life sentence, with the option of parole, for a


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juvenile whose case is transferred under section 54.02 of the Family Code). Given that the

legislature chose not to apply the parole eligibility amendment retroactively to juveniles who have

already been sentenced for a capital murder, it would not be appropriate for this court to “judicially

amend” the statute. TEX . GOV ’T CODE ANN . § 311.022 (Vernon 2005) (statute is presumed to be

prospective unless expressly made retrospective).

       Conclusion. We conclude that the Texas sentencing scheme mandating life without parole

for a juvenile convicted of capital murder does not constitute “cruel and unusual” punishment in

violation of the state and federal constitutions. Harmelin, 501 U.S. at 995-996.

                                           CONCLUSION

       Based on the foregoing analysis, we hold that Meadoux’s confession was not the product of

custodial interrogation and was voluntary, the evidence is legally and factually sufficient to support

his conviction for capital murder, and his sentence of life imprisonment without parole is not

unconstitutional. Accordingly, we affirm the trial court’s judgment.



                                                        Phylis J. Speedlin, Justice



PUBLISH




                                                 -25-
