                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §              No. 08-12-00102-CV

                                                §                   Appeal from
 IN THE MATTER OF J.T.M.,
 A JUVENILE                                     §                65th District Court

                                                §            of El Paso County, Texas

                                                §                 (TC #1101216)


                                         OPINION

       J.T.M., a juvenile, appeals from the juvenile court’s adjudication order finding that he

engaged in delinquent conduct by possessing less than two ounces of marihuana. After the

juvenile court denied his motion to suppress evidence, J.T.M. entered a negotiated plea of true to

the State’s petition. In accordance with the parties’ agreement, the court placed J.T.M. on

probation for a period of five months. For the reasons that follow, we affirm.

                                       FACTUAL SUMMARY

       On October 9, 2011, El Paso Police Officers Jesus Hernandez, III and Paul Mata

responded to a drunken disturbance call on Osage Street in El Paso shortly after midnight. When

they turned onto Osage, they saw two males, each with a liquor bottle, walking on the sidewalk.

After seeing the patrol car, the two males bent down and placed the liquor bottles under a car and

continued walking. This behavior caused the officers to suspect that the young men were
juveniles and Hernandez stopped the patrol car. The officers stepped out of the vehicle and

Officer Mata said, “Hey, come here.” The young men complied and Mata did a quick pat-down

search. Mata retrieved three bottles of vodka from beneath the vehicle. After Mata retrieved the

liquor bottles, Hernandez asked how old they were and J.T.M. replied that he was sixteen years

of age. The other young man, identified at the suppression hearing only by his first name, was

seventeen years old. Hernandez then asked J.T.M. and his friend whether either had any drugs.

J.T.M. responded that he had some “weed,” and before Hernandez could do anything else, J.T.M.

pulled seven small bags of marihuana out of his pocket and put them on the hood of the patrol

car. Mata handcuffed J.T.M. and told him he was under arrest. After removing everything from

J.T.M.’s pockets, including a set of car keys, Mata placed J.T.M.in the back of the patrol unit.

       Hernandez asked J.T.M.’s friend if they had driven to the area and the friend said they

had driven J.T.M.’s Tahoe which was parked down the street. Mata located the vehicle but did

not enter it. He walked back to the patrol unit and told Hernandez that he could smell a strong

odor of burned marihuana coming from the Tahoe. Mata asked J.T.M. if there was any more

marihuana in the car and he replied, “Yes.” Mata believed there would be additional evidence of

the offense in the vehicle and testified he intended to search it regardless of J.T.M.’s answer to

his question. Mata went back to the Tahoe and opened it using the key. He searched it and

found scales, marihuana in two containers, and a camera bag containing $160.

       J.T.M. filed a motion to suppress his statements and the evidence seized following an

“illegal detention or arrest” and he alleged that the officers had violated his rights to counsel and

to remain silent. The juvenile court denied the motion at the conclusion of the hearing. J.T.M.

did not request and the juvenile court did not issue written findings of fact and conclusions of

law. J.T.M. subsequently entered a plea of true to the petition alleging he had engaged in



                                                -2-
delinquent conduct by possessing less than two ounces of marihuana and the court placed him on

juvenile probation in accordance with the parties’ agreement. J.T.M. reserved the right to appeal

the pretrial suppression ruling.

                                          MOTION TO SUPPRESS

          In his sole issue on appeal, J.T.M. argues that the court erred by denying his motion to

suppress because he was interrogated without first being taken to a magistrate and warned as

required by Section 51.095 of the Texas Family Code and Miranda v. Arizona.1 He further

contends that the evidence seized as a result of the improper custodial interrogation, including

the marihuana, is inadmissible as fruit of the poisonous tree. He does not raise any Fourth

Amendment issues with respect to the warrantless search of his vehicle. Our review is likewise

restricted.

                                              Standard of Review

          We review a ruling on a motion to suppress using a bifurcated standard of review.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010); Guzman v. State, 955 S.W.2d 85,

87-91 (Tex.Crim.App. 1997). An appellate court must give almost total deference to the trial

court’s assessments of historical fact and conclusions of law with respect to mixed questions of

law and fact that turn on credibility and demeanor. State v. Saenz, 411 S.W.3d 488, 494

(Tex.Crim.App. 2013); State v. Ortiz, 382 S.W.3d 367, 372 (Tex.Crim.App. 2012). In contrast,

an appellate court engages in a de novo review of mixed questions of law and fact that do not

turn on credibility and demeanor. Saenz, 411 S.W.3d at 494; Ortiz, 382 S.W.3d at 372.

          The issue whether J.T.M. was in custody for purposes of applying Miranda is a mixed

question of law and fact that does not turn on credibility or demeanor. See Saenz, 411 S.W.3d at

494. Consequently, we apply (1) a deferential standard of review to the trial court’s factual
1
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                       -3-
assessment of the circumstances surrounding the interrogation, and (2) a de novo review to the

court’s ultimate legal determination that J.T.M. was not in custody. See id.; see also Thompson

v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 465, 133 L.E.2d 383 (1995)(stating that when

determining whether a person was in custody for Miranda purposes, an appellate court conducts

a factual review of the circumstances surrounding the interrogation and makes an ultimate legal

determination whether a reasonable person would not have felt at liberty to leave; the first

inquiry is distinctly factual while the second inquiry calls for application of the controlling legal

standard to the historical facts; this ultimate determination presents a mixed question of law and

fact qualifying for “independent review”). The trial court did not make findings of fact because

they were not requested. In this scenario, we view the evidence “in the light most favorable to

the trial court’s ruling” and “assume that the trial court made implicit findings of fact that

support its ruling as long as those findings are supported by the record.” Herrera v. State, 241

S.W.3d 520, 527 (Tex.Crim.App. 2007), quoting State v. Ross, 32 S.W.3d 853, 855

(Tex.Crim.App. 2000).

                                      Custodial Interrogation

       J.T.M. contends that his statements indicating he was in possession of marihuana and the

evidence seized as a result of those statements are inadmissible because the officers failed to

administer the warnings required by Section 51.095 of the Texas Family Code.                     See

TEX.FAM.CODE ANN. § 51.095 (West Supp. 2013). Section 51.095 incorporates the warnings

required by Miranda. If an individual is subjected to questioning while in custody without being

first warned of his rights and without voluntarily waiving those rights, then any evidence

obtained as part of that questioning may not be used against him at trial. See Miranda v.

Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). Section 51.095 only



                                                -4-
applies to a statement made while the child is in the custody of an officer. TEX.FAM.CODE ANN.

§ 51.095(d)(2). Likewise, the requirements of Miranda do not apply unless the accused’s

statement is the result of custodial interrogation.    Dowthitt v. State, 931 S.W.2d 244, 263

(Tex.Crim.App. 1996).

       A person is “in custody” if, under the totality of the circumstances, a reasonable person

would believe his freedom of movement was restrained to the degree associated with a formal

arrest. Stansbury v. California, 511 U.S. 318, 322-24, 114 S.Ct. 1526, 1528-30, 128 L.Ed.2d 293

(1994); Dowthitt, 931 S.W.2d at 254. When the person involved is a juvenile, courts consider

his age and all the circumstances surrounding the interrogation to decide whether there was a

formal arrest or a restraint of movement to the degree associated with formal arrest. In re J.A.B.,

281 S.W.3d 62, 65 (Tex.App.--El Paso 2008, no pet.); In re V.P., 55 S.W.3d 25, 31 (Tex.App.--

Austin 2001, pet. denied).      An appellate court determines custody based on objective

circumstances, and any subjective intent of law enforcement officers to arrest is irrelevant unless

that intent is communicated or otherwise manifested to the suspect. Stansbury, 511 U.S. at 325-

26, 114 S.Ct. at 1530. In evaluating whether a reasonable person would believe his freedom has

been restrained to the degree of a formal arrest, we are to look only to the objective facts

surrounding the detention. State v. Ortiz, 382 S.W.3d 367, 372 (Tex.Crim.App. 2012). We do

not consider the subjective views harbored by either the interrogating officers or the person being

questioned. Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529. The subjective intent of law

enforcement officials to arrest is irrelevant unless that intent is somehow communicated or

otherwise manifested to the suspect. Dowthitt, 931 S.W.2d at 254, citing Stansbury, 511 U.S. at

324-25, 114 S.Ct. at 1530. Any undisclosed subjective belief of the suspect that he is guilty of

an offense should not be taken into consideration--the reasonable person standard presupposes an



                                               -5-
innocent person. Ortiz, 382 S.W.3d at 373; see Dowthitt, 931 S.W.2d at 254, citing Florida v.

Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991).

       Texas courts have identified four general situations which may constitute custody: (1)

when the suspect is physically deprived of his freedom of action in a significant way; (2) when a

law enforcement official tells a suspect he cannot leave; (3) when law enforcement officers

create a situation that would lead a reasonable person to believe that his freedom of movement

has been significantly restricted; and (4) if there is probable cause to arrest and law enforcement

officials do not tell the suspect that he may leave. Dowthitt, 931 S.W.2d at 255, citing Shiflet v.

State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985). The first three situations require that the

restriction on a suspect’s freedom of movement must reach “the degree associated with an arrest”

instead of an investigative detention. Saenz, 411 S.W.3d at 496; Dowthitt, 931 S.W.2d at 255.

The fourth situation requires a showing that the officer manifested his knowledge of probable

cause to the suspect by word or deed. Saenz, 411 S.W.3d at 496; Dowthitt, 931 S.W.2d at 255;

see Stansbury, 511 U.S. at 325, 114 S.Ct. at 1530 (an officer’s knowledge or beliefs regarding

probable cause may bear upon the custody issue if they are conveyed, by word or deed, to the

individual being questioned). Custody is not established by the fourth situation unless the

manifestation of probable cause combined with other circumstances of the interview, such as

duration or factors of the exercise of police control over a suspect, would lead a reasonable

person to believe that he is under restraint to the degree associated with an arrest. Saenz, 411

S.W.3d at 496; Dowthitt, 931 S.W.2d at 255-57. The defendant has the burden of proving that a

statement was the product of a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526

(Tex.Crim.App. 2007).




                                               -6-
                                       The First Statement

       J.T.M. made two statements to the police indicating he was in possession of marihuana:

(1) when Officer Hernandez asked him if he had any drugs, J.T.M. answered “weed” and pulled

it out of his pocket; and (2) when Officer Mata asked J.T.M. following his arrest whether he had

any more marihuana in the Tahoe, J.T.M. answered affirmatively. Because the circumstances in

which each statement was made are different, we will analyze the statements separately.

       The evidence does not support a conclusion that any of the first three situations apply

with regard to the first statement. Moreover, J.T.M. has restricted his argument on appeal to

custody under the fourth situation. More specifically, J.T.M. complains that he was in custody

because the officers had probable cause to arrest him for a curfew violation and minor in

possession of alcohol and the officers did not tell him he was free to leave. J.T.M. argues that a

reasonable person in the juvenile’s shoes would not have felt free to leave. The police officers’

failure to tell J.T.M. that he was free to leave does not, standing alone, establish custody. See

Saenz, 411 S.W.3d at 497. For custody to be found, the officers had to manifest their knowledge

or beliefs regarding probable cause to J.T.M., and even then, custody does not exist unless a

reasonable person of J.T.M.’s age would have believed, under the totality of the circumstances,

that he was under restraint to the degree associated with a formal arrest. J.T.M. does not address

whether the evidence shows that the officers manifested their knowledge of probable cause to

him.

       J.T.M. asserts that he was in custody because he had been called over to the patrol unit by

the officers, he was subjected to a brief pat-down, and the officers subjectively believed J.T.M.

was not free to leave. This argument misses the mark because a person is not free to leave

during the course of the investigative detention and suspects are often subjected to a pat-down



                                              -7-
during the course of an investigative detention. Whether a person is under arrest or subject

merely to a temporary investigative detention is a matter of degree and depends upon (1) the

length of the detention, (2) the amount of force employed, and (3) whether the officer actually

conducts an investigation. Mount v. State, 217 S.W.3d 716, 724 (Tex.App.--Houston [14th Dist.]

2007, no pet). The record does not demonstrate the precise amount of time the officers detained

J.T.M. at the scene before asking the question which led to discovery of the marihuana in his

pocket, but it appears from the officers’ testimony that the encounter to that point was brief. The

officers performed a quick pat-down search of each juvenile and spoke to them while standing

beside the patrol car. They did not handcuff J.T.M., put him in the back of the patrol car, or

employ any other type of physical restraint typically associated with an arrest. Consistent with

the purpose of the temporary detention, the officers engaged in an investigation to confirm or

dispel their suspicion that J.T.M. and his friend were underage and in possession of alcohol by

determining the age of the young men and retrieving the liquor bottles the officers had seen them

throw underneath a vehicle. There is no evidence in the record before us that the officers

manifested their knowledge or belief regarding probable cause to J.T.M. prior to asking him

whether he had any drugs.

          Based on the totality of the circumstances, we conclude that a reasonable sixteen-year-old

would not have believed he was under restraint to the degree associated with a formal arrest at

the time the officer asked him whether he had any drugs. Consequently, the trial court did not

err by denying J.T.M.’s motion to suppress the first statement or the marihuana seized from his

pocket.

          Even if the statement had been obtained in violation of Miranda and Article 51.095, it

would not result in suppression of the marihuana which J.T.M. removed from his pocket and



                                                 -8-
placed on the hood of the patrol car. The “fruit of the poisonous tree” doctrine espoused in

Wong Sun does not apply to mere violations of the prophylactic requirements in Miranda. Baker

v. State, 956 S.W.2d 19, 22 (Tex.Crim.App. 1997), citing Michigan v. Tucker, 417 U.S. 433,

452, 94 S.Ct. 2357, 2368, 41 L.Ed.2d 182 (1974) and Oregon v. Elstad, 470 U.S. 298, 314, 105

S.Ct. 1285, 1296, 84 L.Ed.2d 222 (1985). The statement taken in violation of Miranda must be

suppressed, but other evidence subsequently obtained as a result of that statement (i.e. the

“fruits” of the statement) need not be suppressed. Id. The rule in Wong Sun requires suppressing

the fruits of a defendant’s statement only when the statement was obtained through actual

coercion. Baker, 956 S.W.2d at 22, citing Tucker, 417 U.S. at 448-49, 94 S.Ct. at 2365-67 and

Elstad, 470 U.S. at 314, 105 S.Ct. at 1296. Similarly, the state exclusionary rule found in Article

38.232 of the Texas Code of Criminal Procedure does not require suppression of evidence

obtained as a result of a statement taken in violation of Miranda. In re H.V., 252 S.W.3d 319,

327-28 (Tex. 2008); Baker, 956 S.W.2d at 24.

                                          The Second Statement

          It is undisputed that J.T.M. had been placed under formal arrest at the time he made the

second statement and he was not taken to a magistrate and admonished as required by Article

51.095. There is no evidence the officers admonished him as required by Miranda prior to

asking him whether he had any additional marihuana in the Tahoe. Consequently, this statement

is inadmissible and should have been suppressed by the trial court. The marihuana seized from

the vehicle is not subject to suppression as the fruit of this violation of Miranda and Article

51.095 under either the federal or state exclusionary rules. In re H.V., 252 S.W.3d at 327-28;

Baker, 956 S.W.2d at 24.



2
    TEX.CODE CRIM.PROC.ANN. art. 38.23 (West 2005).

                                                      -9-
                                           Harm Analysis

       Having found that it was error to deny the motion to suppress J.T.M.’s post-arrest

statement that there was additional marihuana in his vehicle, we must decide whether the trial

court’s judgment should be reversed. See TEX.R.APP.P. 44. The Texas Supreme Court has not

determined whether the criminal or civil standard for harm applies to a juvenile case. See In re

D.I.B., 988 S.W.2d 753, 756 (Tex. 1999)(stating it had not decided whether the civil or criminal

harm standard applied, but applying the civil standard because the State urged application of the

rule and juvenile did not argue otherwise). Juvenile cases are quasi-criminal in nature as certain

aspects of the trial are governed by the Code of Criminal Procedure and the rules of evidence

applicable to criminal cases. TEX.FAM.CODE ANN. § 51.17; In re D.I.B., 988 S.W.2d at 756. An

appeal from an order of a juvenile court is to a court of appeals as in civil cases generally. See

TEX.FAM.CODE ANN. § 56.01(a). Thus, appellate courts apply the Rules of Appellate Procedure

applicable to civil cases as far as practicable. See In re D.I.B., 988 S.W.2d at 756.

       In a criminal case, the erroneous denial of a motion to suppress a statement taken in

violation of Miranda is constitutional error subject to review under Rule 44.2(a)’s standard. See

Jones v. State, 119 S.W.3d 766, 777 (Tex.Crim.App. 2003). That rule requires us to reverse

unless we conclude beyond a reasonable doubt that the error did not contribute to the defendant’s

conviction or punishment. See TEX.R.APP.P. 44.2(a). The emphasis of a harm analysis pursuant

to Rule 44.2(a) should not be on “the propriety of the outcome of the trial.” Scott v. State, 227

S.W.3d 670, 690 (Tex.Crim.App. 2007). The question for the reviewing court is not whether the

jury verdict was supported by the evidence. Id. Instead, the question is the likelihood that the

constitutional error was actually a contributing factor in the jury’s deliberations in arriving at that

verdict. Id. In other words, the question is whether the error adversely affected the integrity of



                                                - 10 -
the process leading to the conviction. Id. In the context of a plea-bargain case, we consider

whether the erroneous ruling contributed in some measure to the State’s leverage in the plea

bargaining process. See Holmes v. State, 323 S.W.3d 163, 174 (Tex.Crim.App. 2010)(op. on

reh’g).

          The civil standard for harm does not distinguish between constitutional and non-

constitutional errors and we would reverse only if the error (1) probably caused the rendition of

an improper judgment; or (2) probably prevented the appellant from properly presenting the case

to the court of appeals. TEX.R.APP.P. 44.1(a). This standard falls somewhere between Rule

44.2(a) and Rule 44.2(b) which applies to non-constitutional error in criminal cases. Under Rule

44.2(b), any non-constitutional error that does not affect substantial rights must be disregarded.

TEX.R.APP.P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex.Crim.App. 2011). A

conviction should not be overturned for non-constitutional error if the appellate court, after

examining the record as a whole, has fair assurance that the error did not influence the jury, or

had but a slight effect. Cobb v. State, 85 S.W.3d 258, 272 (Tex.Crim.App. 2002).

          We believe that constitutional error in juvenile cases should be analyzed for harm under

Rule 44.2(a)’s standard because it is more protective of the juvenile’s rights than Rule 44.1(a) as

it examines the impact of the error on the integrity of the process leading to the juvenile’s plea of

true. See In re D.A.R., 73 S.W.3d 505, 513 (Tex.App.--El Paso 2002, no pet.)(examining harm

from court’s failure to suppress statement made in violation of Article 51.05 under Rule 44.2(a)’s

standard and finding evidence harmful because the adverse ruling likely impacted the juvenile’s

decision to plead true); see also In re D.J.C., 312 S.W.3d 704, 721-22 (Tex.App.--Houston [1st

Dist.] 2009, no pet.)(applying Rule 44.2(a) to erroneous admission of juvenile’s statement taken

during custodial interrogation and in violation of Section 52.02 of Family Code).



                                               - 11 -
       Under Rule 44.2(a)’s standard, we must consider whether J.T.M.’s admission that he had

additional marihuana in his vehicle contributed in some measure to the State’s leverage in the

plea bargaining process. The admissible evidence consisted of J.T.M.’s admission that he had

marihuana in his pocket, the marihuana he pulled out of his pocket, and the additional marihuana

taken from his vehicle along with the scales and cash also found in the vehicle. J.T.M.’s friend

told the police that they drove to the party in J.T.M.’s Tahoe and the keys to the vehicle were

found in J.T.M.’s pocket following his arrest. Given this state of the evidence, suppression of

J.T.M.’s statement to Mata that there was additional marihuana in the vehicle would not have

diminished the State’s leverage in the plea bargaining process.       Accordingly, we conclude

beyond a reasonable doubt that the constitutional error is harmless under Rule 44.2(a).

       Alternatively, we hold that the error is harmless under Rule 44.1(a)’s harm standard

because the record does not support a conclusion that the trial court’s error probably caused the

rendition of an improper judgment. The State had substantial evidence supporting a finding that

J.T.M. knowingly exercised care, custody, and control of the marihuana found in his pocket.

Based on the evidence admitted at the suppression hearing, the State had sufficient evidence

affirmatively linking J.T.M. to the marihuana found in his vehicle even without his post-arrest

statement made to Officer Mata that he had additional marihuana in the vehicle. Consequently,

suppression of his second statement would not have reduced the State’s bargaining power. We

conclude that the trial court’s failure to suppress the second statement probably did not cause the

rendition of an improper judgment. Accordingly, we overrule J.T.M.’s sole issue and affirm the

judgment of the juvenile court.

March 12, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

                                              - 12 -
                                   DISSENTING OPINION

       Concluding that J.T.M. was in custody, I would reverse and remand, so therefore,

respectfully dissent.

       Critical to the analysis, is J.T.M.’s compliance to Officer Mata’s order to approach the

patrol car. J.T.M. complied and voluntarily submitted to a pat down for officer safety. Officer

Mata felt no weapons on the male he patted down, later identified as J.T.M.

       Officer Hernandez then asked J.T.M. how old he was. J.T.M. answered he was 16 years

old. After questioning J.T.M.’s friend, Officer Hernandez asked both if they had any drugs on

them. In response, J.T.M. admitted that he had “some weed[,]” and removed seven bags of

marihuana from the left pocket of his pants and put them on the hood of the patrol car. Officer

Hernandez immediately secured the marihuana and Officer Mata handcuffed J.T.M., informing

him he was under arrest and placing him in the back of the patrol car.

       Under Dowthitt, J.T.M. was in custody under the fourth scenario because a reasonable 16

year-old in J.T.M.’s position would have believed he was not free to leave when Officer

Hernandez asked him if he had drugs.

       First, there was probable cause to issue a citation to J.T.M. for curfew and alcohol

violations once Officers Hernandez and Mata ascertained that he was a juvenile. See TEX.ALCO.

BEV.CODE ANN. § 106.05 (West Supp. 2012)(a minor commits an offense if he possesses an

alcoholic beverage); MUNICIPAL CODE CITY      OF   EL PASO, TEXAS, Title 10, § 10.20.010 et seq.

(2013)(prohibiting youths under the age of seventeen from public places within the City between

the hours of 11 p.m. and 6 a.m.); Vasquez v. State, 739 S.W.2d 37, 44 (Tex.Crim.App.

1987)(holding that a law enforcement officer may make a warrantless arrest if he has knowledge

based upon reasonably trustworthy information that would warrant a reasonable and prudent



                                              - 13 -
person in believing that the suspect has committed or is committing a crime).

       Second, neither Officer Hernandez nor Officer Mata told J.T.M. he was free to leave. In

fact, Officer Hernandez testified that J.T.M. was not free to leave.

       Third, Officers Hernandez and Mata never specifically told J.T.M that probable cause

existed to issue a citation for curfew and alcohol violations, however, along with J.T.M.’s

admission that he was a juvenile constituted manifestation of probable cause to cite him. See

Fuller v. State, No. 02-06-00382-CR, 2008 WL 45794, *3 (Tex.App.--Fort Worth Jan. 3, 2008,

no pet.)(mem. op., not designated for publication)(“Although the officers never specifically told

Fuller that probable cause existed, Fuller’s admission of ownership of the marijuana did

constitute manifestation of probable cause.”); In re D.A.R., 73 S.W.3d at 511 (“And certainly,

after appellant made his confession, he would have realized Officer Gonzalez’s probable cause to

arrest him, given that the incriminating nature of his statement would substantiate Officer

Gonzalez’s probable cause.”).

       Fourth and finally, this manifestation of probable cause, when combined with the

circumstances associated with J.T.M.’s questioning, would have led a reasonable 16-year-old in

J.T.M.’s position to believe that he was under restraint to the degree associated with arrest.

Officers Hernandez and Mata, who were in full uniform and carrying their sidearms, batons,

Tasers, and handcuffs, engaged in a show of force when they approached J.T.M and his friend.

They ordered J.T.M. and his friend to come to the patrol car and patted both of them down.

Moreover, while questioning J.T.M., Officers Hernandez and Mata “made clear” to J.T.M. that

“he wasn’t free to leave, he wasn’t going anywhere.”

       In light of these circumstances, J.T.M. was in custody when he admitted that he had

“some weed” in response to Officer Hernandez’s questioning. Although the events occurred in



                                               - 14 -
quick succession, there was sufficient time for Officers Mata and Hernandez to realize that

J.T.M. came into custody and should have been given the Miranda warnings by a magistrate as

required by Section 51.095 of the Texas Family Code. Yet, no warnings were issued to J.T.M.

and instead he was asked if he had drugs. Prior to Officer Hernandez’ questioning, he knew

J.T.M. was a juvenile, had been compliant with all the officer’s requests, and was not in

possession of any weapons.

       The State contends J.T.M. was not in custody, but rather the subject of an investigative

detention, and that, once the purpose of the detention was satisfied, Officers Hernandez and Mata

did not unlawfully seize J.T.M by asking him if he possessed illegal contraband. We do not

dispute that Officers Hernandez’s and Mata’s actions did not amount to an unlawful seizure

under the Fourth Amendment. See Strauss v. State, 121 S.W.3d 486, 491 (Tex.App.--Amarillo

2003, pet. ref’d)(once the purpose of a traffic stop has been effectuated, the officer may ask the

driver if he possesses illegal contraband and solicit voluntary consent to search the vehicle);

James v. State, 102 S.W.3d 162, 173 (Tex.App.--Fort Worth 2003, pet. ref’d)(merely requesting

consent to search does not amount to an unlawful seizure, and neither probable cause nor

reasonable suspicion is required for the officer to ask). But an investigative detention may

nevertheless evolve into custodial interrogation. Dowthitt, 931 S.W.2d at 255. As established

above, this is exactly what occurred.

       J.T.M. was detained temporarily to investigate possible alcohol and curfew violations.

Once J.T.M admitted he was a minor, probable cause arose to arrest him for those offenses. At

no point thereafter was J.T.M. told that he was free to leave and, in fact, was made to understand

that “he wasn’t free to leave, he wasn’t going anywhere.” Given the nature of the restraint and

the show of force employed by Officers Hernandez and Mata in restraining J.T.M., a reasonable



                                              - 15 -
juvenile of the same age would have considered himself in custody. J.T.M. has thus carried his

burden of establishing that he was in custody when he made his inculpatory statement and placed

the marihuana on the hood of the patrol car. See Herrera, 241 S.W.3d at 526. Because J.T.M.

was in custody and he was not given the Miranda warnings required by Section 51.095 of the

Texas Family Code, we conclude the trial court erred in denying his motion to suppress both his

oral statement to police officers that he had marihuana and the marihuana.

       The majority concludes that J.T.M. was not in custody when Officer Hernandez asked

him if he had any drugs and that, even had J.T.M. been in custody, the marihuana itself would

not have been suppressed as “fruit of the poisonous tree.” Given the current state of the law, the

majority is likely correct. See e.g., In re A.J., 63 A.3d 562, 564-65, 567-69 (D.C. 2013)

(concluding that trial court erred in finding that juvenile was in custody where police officer

encountered juvenile and companion on street, suspected them of being truant, and juvenile, in

response to officer’s question whether he had anything on him that the officer needed to know

about, reached inside his jacket packet, said, “yeah, I got this,” and pulled out a black BB gun);

United States v. Patane, 542 U.S. 630, 636-37, 124 S.Ct. 2620, 2626, 159 L.Ed.2d 667

(2004)(plurality op.)(holding that the rule of Miranda does not require the suppression of

physical evidence obtained after failing to read Miranda warnings); In re H.V., 252 S.W.3d 319,

327-29 (Tex. 2008)(holding that the rule of Miranda does not require the suppression of physical

evidence obtained after ignoring Miranda right to counsel). But by affirming the trial court’s

order denying J.T.M.’s motion to suppress his statements and the marihuana, the majority is also

encouraging the police to use improper “fishing expeditions” when questioning juveniles.

Because I believe this Court should forbid rather than permit this type of behavior, I respectfully

dissent.



                                              - 16 -
       I recognize that it was legally permissible for Officer Hernandez to briefly detain J.T.M.

and ask him questions to confirm or dispel his suspicion that J.T.M. was engaged in delinquent

conduct.    Officer Hernandez rightfully inquired as to J.T.M.’s age in performing his

investigatory detention, and J.T.M’s response confirmed Officer Hernandez’s suspicion that

J.T.M. was a minor in possession of alcohol. But in the absence of a basis to believe that J.T.M.

was engaged in further delinquent conduct, J.T.M.’s self-incriminating response did not justify

further questioning intended to elicit more incriminating responses and evidence. While that

course of conduct may be tolerated when adult suspects are subject to investigatory detentions, it

should not be when juveniles are in the crosshairs. This is because “children are fundamentally

different from adults when it comes to understanding and invoking their rights.” Benjamin E.

Friedman, Protecting Truth: An Argument for Juvenile Rights and a Return to In re Gault, 58

UCLA L. REV. DISC. 165, 176 (2011)(internal citations omitted).

       Given the physiology of brain development and growth, age--more so than intelligence--

is the primary factor in determining whether a child has the capacity to reason and to make

informed decisions. Id. at 176-78. In general, the younger the child, the less likely he is to

possess such attributes. Id.; Barry C. Feld, Juveniles’ Competence to Exercise Miranda Rights:

An Empirical Study of Policy and Practice, 91 MINN. L. REV. 26, 39 (2006)(noting that while

juveniles aged sixteen and older exhibited an understanding of Miranda warnings on a par with

adults, juveniles younger than fifteen frequently misunderstood warnings). Here, J.T.M. was

sixteen years of age, and he may well have had the capacity to make decisions on a par with an

adult. The record, however, sheds no light on J.T.M.’s competence or capacity. But

       “[e]ven if an adolescent has an ‘adult-like’ capacity to make decisions, the
       adolescent’s sense of time, lack of future orientation, labile emotions, calculus of
       risk and gain, and vulnerability to pressure will often drive him or her to make
       very different decisions than an adult would in similar circumstances.” The

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       difference becomes more apparent in situations of stress, such as police
       interrogations or court proceedings. Immaturity can produce the same lack of
       capacity as mental illness, which means that many juveniles are in fact legally
       incompetent.

Friedman, Protecting Truth, 58 UCLA L. REV. DISC. at 177, internal citations omitted.

       The law recognizes that, in many contexts, children are legally incompetent and thus

accord them special protections in deference to their youth. For example, this Court has been

vigilant in safeguarding the claims of injured minors. See, e.g., Maes v. El Paso Orthopaedic

Surgery Group, P.A., 385 S.W.3d 694, 698 (Tex.App.--El Paso 2012, pet. denied)(“The claims

of a minor may not be settled without court approval . . . [and] a parent does not have the right to

settle a minor’s claim without a guardian ad litem.”); Rivera v. Compton, 392 S.W.3d 326, 333

(Tex.App.--El Paso 2012, pet. granted)(“Because section 74.251(b) [of the Texas Civil Practice

and Remedies Code] effectively cuts off a minor’s cause of action before the minor is legally

able to assert it, thereby requiring the minor to satisfy an impossible condition, and fails to

provide an adequate substitute remedy, we hold that section 74.251(b) violates the open court

provision of the Texas Constitution as applied to minors injured before their eighth birthday.”).

Why then is the majority so willing to permit law enforcement officials to engage in “fishing

expeditions” when questioning a juvenile in the absence of a basis to believe that the juvenile

was engaged in further delinquent conduct? By upholding the trial court’s ruling, the majority

invites the police to run roughshod over a class of people who need the most protection.

       Here, when Officer Hernandez confirmed his suspicion that J.T.M was engaged in

delinquent conduct, he should have informed J.T.M. of his constitutional rights before engaging

in further questioning likely to elicit incriminating responses. Because Officer Hernandez did

not do so, J.T.M.’s incriminating response that he had “weed” should have been suppressed by

the trial court. And like the dissent in Patane, I believe that “courts should apply the fruit of the

                                               - 18 -
poisonous tree doctrine lest we create an incentive for police to omit Miranda warnings.”

Patane, 542 U.S. at 645, 124 S.Ct. at 2631 (Souter J., dissenting). Accordingly, the trial court

should have excluded the marihuana obtained from J.T.M.’s person and from the Tahoe. In sum,

I would reverse the trial court’s order refusing to suppress J.T.M.’s statement and the marihuana

and therefore dissent from this Court’s opinion that holds otherwise.


March 12, 2014
                                     YVONNE RODRIGUEZ, Justice




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