                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-14-00352-CR

                                       JOHN GONZALES III,
                                            Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 386th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR7917
                              Honorable Laura Parker, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: May 6, 2015

AFFIRMED

           This case stems from an aggravated robbery resulting in the murder of James Whitley.

Appellant John Gonzales III was a juvenile at the time of the offense. Upon motion by the State,

the juvenile court waived jurisdiction and transferred the matter to criminal court.          After

Gonzales’s motion to suppress was denied, he entered a plea of guilty and was sentenced by the

trial court to twenty-years’ confinement in the Institutional Division of the Texas Department of

Criminal Justice. On appeal, Gonzales contends the juvenile court erred in transferring jurisdiction
                                                                                     04-14-00352-CR


and the criminal court erred in denying his motion to suppress. We affirm the trial court’s

judgment.

                                     FACTUAL BACKGROUND

        On August 13, 2012, David Estrada and Appellant Gonzales went to an apartment complex

to purchase marijuana from James Whitley. Gonzales was fifteen-years-old at the time. Gonzales

exchanged several phone calls with Whitley regarding the purchase of the marijuana. Before going

to the apartment complex, Gonzales and Estrada decided to rob Whitley of the marijuana.

Gonzales brought his Smith & Wesson .40 caliber semi-automatic firearm for purposes of the

robbery.

        Estrada and Gonzales were driven to the apartment complex by a third individual who did

not know of their plans and did not know Gonzales brought a firearm to the meeting. When they

arrived at the apartment complex, Estrada and Gonzales met Whitley and another individual, Pablo

Pecina, by the washroom. Gonzales asked for the drugs and Whitley asked for the money. Estrada

stalled and Gonzales lifted his shirt and pulled out his firearm. To Gonzales’s surprise, Whitley

also pulled a weapon and both men fired.

        Whitley was struck in the thigh and died from his injuries; the bullet that struck Gonzales

grazed his head, requiring a couple of staples. Gonzales and Estrada ran back to the vehicle and

Gonzales asked the driver to take him to the hospital. Instead, the driver pulled into a gas station

a short distance away. The driver called 911, told the dispatch, “Hey, my friend’s been shot. Here

he is,” and he and Estrada left. Before leaving, Gonzales gave Estrada the firearm and told him to

get rid of it.

        While the San Antonio police officers were investigating Whitley’s shooting, they received

the call of Gonzales’s shooting. It was not until later that the officers realized the two gunshot

victims were connected. When officers arrived at the gas station, Gonzales reported “We were
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walking down the street, somebody drives by and shoots me.” While they were investigating,

Gonzales’s mother arrived. His mother told him to tell the officers the truth. Gonzales finally told

them “I was at the apartment complex, the guy shoots me and I shot him back.” By all accounts,

at that point in the evening, the officers were investigating the incident as a case of self-defense.

       Gonzales was originally handcuffed and taken to the juvenile facility. However, shortly

after arriving, the officers transported Gonzales to the Santa Rosa Children’s Hospital to be treated

for his injuries. While Gonzales was at the emergency room, San Antonio Police Detective

Raymond Roberts interviewed Estrada. Estrada told the officer that Whitley shot first; however,

when confronted by the officer, Estrada confessed their plan to rob Whitley and identified

Gonzales as possessing and firing the weapon. Detective Roberts requested Detective Kim Bower

proceed to Santa Rosa Children’s Hospital to check on Gonzales’s condition and to tell his mother

that Detective Roberts would like to speak to him. Detective Bowers testified she gave Gonzales’s

mother a card with her phone number and asked to her contact them when Gonzales was released.

       Gonzales arrived at the police station between 2:30 a.m. and 3:00 a.m. Detective Roberts

told both Gonzales and his mother “If y’all don’t want to do it tonight, we don’t have to do it

tonight.” The record shows Detective Roberts insisted Gonzales was not under arrest, and that

Gonzales and his mother came in on their own, and they were both free to leave. In fact, Detective

Roberts told both Gonzales and his mother that Gonzales would be leaving at the end of the

interview. Detective Roberts did not Mirandize Gonzales and did not take him before a magistrate.

       Detective Roberts asked Gonzales if he knew what was going on, if he was in pain, and

how he felt. Gonzales responded, “I feel fine.” Detective Roberts testified that Gonzales was able

to answer all of his questions and did not appear to be in any distress. Gonzales originally told

Detective Roberts that Whitley fired first and that he returned fire; Detective Roberts confronted

him with Estrada’s version of events and Gonzales ultimately told Detective Roberts their plan
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was to steal the marijuana from Whitley. Gonzales also told Roberts that he always takes a gun

with him whenever he goes to buy weed.

         When asked to relay what transpired, Detective Roberts described Gonzales’s demeanor to

the court. He “kind of chuckled, smiled and he said, ‘That was my first mistake. My second was

letting him stand up.’” When Detective Roberts asked Gonzales to explain what he meant,

Gonzales explained that he should have pointed his weapon directly at Whitley instead of pointing

it down.

         Before leaving the police station, Detective Roberts gave Gonzales an opportunity to tell

his mother the version of events he had relayed to the officer. Detective Roberts told Gonzales

and his mother that the information would be presented to a magistrate and, if the magistrate

determined the facts satisfied the elements set forth in the murder statute, then a warrant would

issue. He also explained that if Gonzales ran, it would make matters worse. Later that morning,

the magistrate issued an arrest warrant and Gonzales was arrested for the murder of James Whitley.

On September 26, 2012, the State filed its original petition for waiver of jurisdiction and

discretionary transfer to criminal court.

         After a hearing, the juvenile trial court found probable cause to believe that Gonzales

committed the offense. The court concluded that due to the nature of the offense, Gonzales’s use

of a deadly weapon, the psychiatric evaluation, the probation officer’s certification and transfer

report, and the recommendations from the probation officers, the State’s petition should be

granted.

                               WAIVER OF JUVENILE JURISDICTION

         Gonzales first argues the juvenile court erred in transferring jurisdiction to the criminal

court.



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A.     Arguments of Parties

       1.       Gonzales

       Gonzales contends the juvenile court erred when it found that the protection of the public

and rehabilitation of Gonzales could not be served with the juvenile probation’s resources and

programs. At the hearing, defense counsel maintained that a Texas Juvenile Justice Department

commitment would have adequately protected the public and rehabilitated Gonzales. Gonzales

argued he was not a violent person by nature and exhibited excellent behavior throughout both the

proceedings and all meetings with the probation officers. Defense counsel argued that Gonzales

was the picture of someone who could be rehabilitated. He acknowledged the wrongfulness of

Gonzales’s delinquent behaviors and expressed his beliefs that Gonzales had improved because

“he grew up.”

       On appeal, Gonzales further argues the trial court erred by failing to focus on the individual

child. Instead, Gonzales contends the juvenile court focused solely on the severity of the

allegations. Gonzales was cooperative with law enforcement and there were no reports of behavior

issues during his incarceration. Gonzales suffers from cerebral palsy and epilepsy and requires

services available through the juvenile system. Finally, counsel argues that determinate sentencing

is a good option and would provide adequate protection to the community at large.

       2.       State

       The State contends the factors weigh heavily in favor of transferring jurisdiction. Although

the individual factors are subject to review, the ultimate determination is based on a review of the

entire record. The State acknowledged Gonzales’s cerebral palsy and epilepsy; yet, the State

pointed out neither diagnosis prevented him from committing either this offense or previous

offenses which invoked the juvenile justice system. Moreover, this was not just a murder—but

felony murder. Gonzales went to the scene intending to steal drugs from a drug dealer. He took
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his own weapon to the drug deal and murdered the dealer. This was the third time in four years

that Gonzales was involved in the legal system and, although he was not classified as a gang

member, he did claim membership in YTC (Young Texas Click), a “tagging crew.”

        B.      Texas Family Code Section 54.02

        Texas Family Code section 54.02(a)(3) provides that prior to transferring a juvenile to

criminal court for prosecution, the juvenile court must find (1) probable cause to believe the

juvenile committed the offense alleged in the petition; and (2) the seriousness of the offense

alleged, the background of the child, and the welfare of the community require criminal

prosecution. TEX. FAM. CODE ANN. § 54.02(a)(3) (West 2014); see also Faisst v. State, 105

S.W.3d 8, 11 (Tex. App.—Tyler 2003, no pet.). The Court of Criminal Appeals recently addressed

the juvenile court’s role in waiver of juvenile jurisdiction cases.

                The transfer of a juvenile offender from juvenile court to criminal court for
        prosecution as an adult should be regarded as the exception, not the rule; the
        operative principle is that, whenever feasible, children and adolescents below a
        certain age should be “protected and rehabilitated rather than subjected to the
        harshness of the criminal system[.]”

Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (alteration in original) (quoting Hidalgo

v. State, 983 S.W.2d 746, 754 (Tex. Crim. App. 1999)).

        The State bears the burden to convince the juvenile court, by a preponderance of the

evidence, that “the welfare of the community requires transfer of jurisdiction for criminal

proceedings, either because of the seriousness of the offense or the background of the child (or

both).” Id. at 40–41 (citing Faisst, 105 S.W.3d at 11). The juvenile court’s order must provide

that the section 54.02(f) factors were taken into account in making the determination. Id. at 41–

42. An appellate court may only set aside the juvenile court’s determination upon a finding the

trial court abused its discretion. Id. at 42.



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C.     Standard of Review

       Until recently, the appellate courts applied different guidelines for the abuse of discretion

standard. Compare In re M.D.B., 757 S.W.2d 415, 417 (Tex. App.—Houston [14th Dist.] 1988,

no writ) (“In reviewing the [juvenile] court’s action for an abuse of discretion, this court must

determine if the [juvenile] court acted without reference to any guiding rules and principles.”) with

Bleys v. State, 319 S.W.3d 857, 862–63 (Tex. App.—San Antonio 2010, no pet.), abrogated by

Moon, 451 S.W.3d at 47. (reviewing the factual sufficiency of the evidence to support the juvenile

court’s finding under Section 54.02(f)(4)). In Moon, 451 S.W.3d at 47, the Court of Criminal

Appeals explained that

       in evaluating a juvenile court’s decision to waive its jurisdiction, an appellate court
       should first review the juvenile court’s specific findings of fact regarding the
       Section 54.02(f) factors under “traditional sufficiency of the evidence review.” But
       it should then review the juvenile court’s ultimate waiver decision under an abuse
       of discretion standard.

The court further explained, “In other words, was [the juvenile court’s] transfer decision essentially

arbitrary, given the evidence upon which it was based, or did it represent a reasonably principled

application of the legislative criteria?” Id. Our review begins with an analysis of the factors

outlined in Texas Family Code section 54.02(f).

D.     Analysis under Texas Family Code section 54.02(f)

       Gonzales’s case was called before the juvenile court on October 19, 2012.

       1.      Whether Alleged Offense Was Against a Person or Property

       The first factor listed in section 54.02(f) is “whether the alleged offense was against person

or property.” TEX. FAM. CODE. ANN. § 54.02(f)(1). The alleged offense was the capital murder

of James Whitley. Detective Roberts testified as to his conversation with Gonzales and his

admitted involvement in the offense. Gonzales admitted that he and Estrada planned to rob



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Whitley during a marijuana purchase. Gonzales brought his firearm to the planned robbery.

Gonzales planned the robbery and fired the shot that killed Whitley.

        2.      Sophistication and Maturity of the Child

        The second factor is “the sophistication and maturity of the child.” Id. § 54.02(f)(2);

Faisst, 105 S.W.3d at 11. Bexar County Juvenile Probation Officer Traci Geppert testified that

she met with Gonzales and his family on multiple occasions and she considered him to be

sophisticated and mature. She further relayed that he understood both the proceedings and the

charges against him.

        Also available to the trial court was the psychiatric evaluation requested by the juvenile

probation office. Dr. Heather Holder’s report provided that “[Gonzales] knows right from wrong

in a general sense, and he is specifically aware of the wrongfulness of the charge of which he is

currently accused.” Additionally, she concluded “it is believed that [Gonzales] is mature and

sophisticated in that he is responsible for his conduct and able to assist his attorney in his defense.”

See TEX. FAM. CODE ANN. § 54.02(f)(2).

        Gonzales’s mother also testified before the juvenile court. She described her son as very

much in control during the incident. When he originally lied to the officer, she directed him to tell

the officers the truth and he did so.

        3.      Record and Previous History of the Child

        The third factor to consider is “the record and previous history of the child.”              Id.

§ 54.02(f)(3); Faisst, 105 S.W.3d at 11. Gonzales had two prior juvenile probations. In 2008, he

was placed on deferred probation for possession of a controlled substance, Xanax. In 2009,

Gonzales was placed on formal probation for the charge of terroristic threats stemming from

Gonzales threatening another student with a pair of scissors.           See TEX. FAM. CODE ANN.



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§ 54.02(f)(3); Faisst, 105 S.W.3d at 11. He completed his probation in April of 2010. Both

charges resulted in Gonzales being expelled from the school he was attending.

       At the time of his arrest, Gonzales was a student at Robert E. Lee High School and several

letters were presented to the trial court describing Gonzales as a nice student without any outward

displays of violent behavior.

       4.      Adequate Protection of the Public and Likelihood of Rehabilitation

       The fourth factor to consider is “the prospect of adequate protection of the public and the

likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently

available to the juvenile court.” TEX. FAM. CODE ANN. § 54.02(f)(4); Faisst, 105 S.W.3d at 11.

At the time of the offense, Gonzales was living with his mother and two sisters. When his mother

was notified of the shooting, her initial reaction was that it could not be Gonzales because he was

at home. She was unaware that he had left the residence and did not know that he owned a firearm.

Geppert further addressed Gonzales’s cerebral palsy and epilepsy diagnoses. He had a special

education distinction based on his orthopedic impairment and a reading disorder. He was

mainstreamed at the high school and had not exhibited behavioral issues while in detention.

During cross-examination, Gonzales’s mother conceded that Gonzales had recently run away from

home because he did not like “living by the rules.” However, after living on the streets for a period

of time, he had returned to their home.

       Geppert testified the juvenile court system’s probation jurisdiction would end when

Gonzales turned eighteen and the jurisdiction for Texas Youth Commission would end when

Gonzales turned nineteen. Geppert explained the only other option, besides adult sentencing, was

determinate sentencing. She did not believe determinate sentencing was proper because of the

allegations: the charge was murder, Gonzales was carrying his weapon, and Gonzales was

purchasing marijuana. Additionally, Geppert testified that she did not believe the juvenile
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probation system had sufficient time to work with Gonzales given the severity of the allegations.

See TEX. FAM. CODE ANN. § 54.02(f)(3); Faisst, 105 S.W.3d at 11. Her supervisor agreed, and so

did a staffing committee, consisting of two supervisors and a Child Protective Services

representative.

       5.         Specific Factual Findings

       Not only must the record substantiate the court’s findings, but the juvenile court must make

“case-specific findings of fact” with respect to the 54.02(f) factors. See Moon, 451 S.W.3d at 51.

Here, the juvenile court judge made the following findings:

       1) Gonzales was alleged to have committed murder under Texas Penal Code
          section 19.02;

       2) Gonzales was sixteen at the time of the hearing;

       3) Gonzales was fifteen at the time of the offense;

       4) Gonzales’s mother resides in Bexar County;

       5) no adjudication hearing had yet been conducted;

       6) the parties were properly notified of the hearing;

       7) prior to the hearing, the trial court obtained a psychological assessment
          including a psychological examination, a complete diagnostic study, a social
          evaluation, full investigation of Gonzales, Gonzales’s circumstances, and the
          circumstances of the alleged offense;

       8) the offense was against a person;

       9) Gonzales is sophisticated and mature enough to be transferred into the criminal
          justice system and he understands the allegations, the court proceedings, and
          their possible consequences;

       10) the procedures, services, and facilities available to the Juvenile Court are
           inadequate for rehabilitation of Gonzales while also protecting the public; and

       11) after a full investigation and hearing, Gonzales’s circumstances, and the
           circumstances of the offense, there is probable cause to believe that Gonzales
           committed the offense and, because of the seriousness of the offense and the
           background of Gonzales, the welfare of the community required that criminal
           proceedings proceed in Criminal District Court.

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       6.      Analysis

       Here, the juvenile court’s findings are substantially more case-specific than the findings

analyzed in Moon. See Moon, 451 S.W.3d at 51 (concluding the trial court’s findings were

superfluous because it only considered fact that offense was against another person). The juvenile

court made specific findings as to Gonzales. Cf. id. Based on a review of the record, including

the trial court’s findings of fact, we conclude the trial court provided “a sure-footed and definite

basis from which an appellate court can determine that its decision was in fact appropriately guided

by the statutory criteria, principled, and reasonable.” Id. at 49; cf. Guerrero v. State, No. 14-13-

00101-CR, 2014 WL 7345987, at *3 (Tex. App.—Houston [14th Dist.] Dec. 23, 2014, no pet.)

(mem. op., not designated for publication) (concluding the trial court’s order was deficient under

Moon). Accordingly, we overrule Gonzales’s first issue.

                                      MOTION TO SUPPRESS

       Gonzales next contends the trial court erred in failing to suppress his statement given to

Detective Roberts.

A.     Arguments of the Parties

       At trial and on appeal, defense counsel argued Gonzales was a scared fifteen-year old and

that any reasonable individual in his position would have believed that he was not free to leave.

The interrogation was, therefore, custodial and the officer was required to take Gonzales before a

magistrate prior to obtaining a statement.

       The State was adamant that Gonzales was not in custody when he gave his statement to

Detective Roberts. Both he and his mother were told they could leave and did not have to talk to

the officers. They were both told that no matter what Gonzales relayed to the officer, his mother

would be taking him home that night. And, in fact, as the officer promised, Gonzales left with his

mother and the case was presented to a magistrate.
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B.     Standard of Review

       When an appellate court reviews a trial court’s ruling on a motion to suppress, we apply a

bifurcated standard. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006); Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When a question turns on credibility and

demeanor, an appellate court views the evidence in the light most favorable to the trial court’s

ruling and gives “almost total deference to a trial court’s determination of the historical facts that

the record supports.” Guzman, 955 S.W.2d at 89; accord Montanez v. State, 195 S.W.3d 101, 106

(Tex. Crim. App. 2006) (quoting Guzman). We give the same deference to the trial court’s rulings

on mixed questions of law and fact “if the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor.” Guzman, 955 S.W.2d at 89; accord Montanez, 195

S.W.3d at 106.

       We review other mixed questions of law and fact and questions of law de novo. Guzman,

955 S.W.2d at 89; accord Montanez, 195 S.W.3d at 106. When custody attaches is a mixed

question of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007); Garza

v. State, 34 S.W.3d 591, 593 (Tex. App.—San Antonio 2000, pet. ref’d).

B.     Texas Family Code section 51.09

       When a defendant is a juvenile at the time of his arrest, the provisions of the Texas Family

Code control issues involving his substantive rights. Roquemore v. State, 60 S.W.3d 862, 866

(Tex. Crim. App. 2001). Gonzales contends his interrogation by Detective Roberts constituted a

custodial interrogation and that his confession should have been suppressed under Texas Family

Code section 51.095 because he was not brought before a magistrate. See TEX. FAM. CODE ANN.

§ 51.095 (West 2014); Meadoux v. State, 307 S.W.3d 401, 408 (Tex. App.—San Antonio 2009),

aff’d, 325 S.W.3d 189 (Tex. Crim. App. 2010).



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C.     Gonzales’s Interrogation

       In determining whether an individual is in custody, an appellate court examines all of the

circumstances surrounding the interrogation to determine if there was a formal arrest or “restraint

on freedom of movement to the degree associated with a formal arrest.” Stansbury v. California,

511 U.S. 318, 322 (1994) (internal quotation marks omitted); In re D.J.C., 312 S.W.3d 704, 712

(Tex. App.—Houston [1st Dist.] 2009, no pet.). This determination focuses on the objective

circumstances of the interrogation and not on the subjective views of either the interrogating

officers or the person being questioned. See Stansbury, 511 U.S. at 323; In re D.J.C., 312 S.W.3d

at 712. Our review focuses on whether, in light of the particular circumstances, a reasonable

person would have felt that he was at liberty to terminate the interrogation and leave. Thompson

v. Keohane, 516 U.S. 99, 112 (1995); In re D.J.C., 312 S.W.3d at 712.

       In Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996), the Court of Criminal

Appeals set forth four factors relevant to the determination of whether an individual is in custody:

(1) Was the suspect “physically deprived of his freedom of action in any significant way”?; (2)

Did “a law enforcement officer tell the suspect that he cannot leave”?; (3) Did the “law

enforcement officers create a situation that would lead a reasonable person to believe that his

freedom of movement has been significantly restricted”?; or (4) Was there “probable cause to

arrest and law enforcement officers [did] not tell the suspect that he [was] free to leave”? Id.; see

also In re D.J.C., 312 S.W.3d at 713. We remain mindful that because the custody determination

is based entirely on objective circumstances, whether the law enforcement official had the

subjective intent to arrest is irrelevant unless that intent is somehow communicated to the suspect.

Stansbury, 511 U.S. at 323–24; Dowthitt, 931 S.W.2d at 254; In re D.J.C., 312 S.W.3d at 713.

We, therefore, turn to an analysis of each of the Dowthitt factors.



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       1.         Was Gonzales Physically Deprived of His Freedom of Action?

       “[O]rdinarily, when a person voluntarily accompanies a law enforcement officer to a

certain location, even though the person knows or should know that the officer suspects that he or

she may have committed or may be implicated in the commission of a crime, the person is not

restrained or ‘in custody.’” Garcia v. State, 237 S.W.3d 833, 836 (Tex. App.—Amarillo 2007, no

pet.) (citing Miller v. State, 196 S.W.3d 256, 264 (Tex. App.—Fort Worth 2006, pet. ref’d)).

“When the circumstances show that the individual acts upon the invitation or request of the police

and there are no threats, express or implied, that he will be forcibly taken, then that person is not

in custody at that time.” In re D.J.C., 312 S.W.3d at 713; Garcia, 237 S.W.3d at 836 (citing Shiflet

v. State, 732 S.W.2d 622, 628 (Tex. Crim. App. 1985)).

       Here, the only testimony before the juvenile court was that Gonzales and his mother were

told they did not have to speak to the officers and that they could leave at any time. Gonzales’s

mother did testify that Detective Bowers told her that the officers “thought it was self-defense and

that if I would take him back that they could clear it all up.” However, that does not rebut the

officer’s testimony that Gonzales and his mother knew they could leave the interrogation if they

chose to do so.

       2.         Did Detective Roberts Communicate that Gonzales Was Not Free to Leave?

       There is no indication, and Gonzales does not allege, that at any point during his

conversation with Detective Roberts that Detective Roberts, or any other individual, told Gonzales

that he was not free to leave. All evidence contained within the record supports the contrary

proposition.

       3.         Would a Reasonable Person Believe His Freedom of Movement Was Restricted?

       At several points prior to the interview, and at several points during the interview,

Detective Roberts told Gonzales that he would be leaving the police station after giving his
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statement. Detective Roberts testified he did not consider Gonzales in custody and did not plan to

arrest Gonzales prior to seeking an arrest warrant from a magistrate. Detective Roberts clearly

articulated his subjective intent to Gonzales and his mother. See Stansbury, 511 U.S. at 323

(communicating subjective intent affects objective circumstances); Dowthitt, 931 S.W.2d at 254

(same); In re D.J.C., 312 S.W.3d at 713 (same).

        Although Gonzales contends that his age and the events earlier that evening would lead a

reasonable person to believe he was in custody, the record simply does not support such an

allegation. At no time following the doctor’s examination at the hospital was Gonzales in

handcuffs. Gonzales left the hospital with his mother and his mother took him to the police station.

Nothing compelled either Gonzales or his mother to be at the police station. When they arrived,

Gonzales and his mother were informed they were free to leave at any time and did not have to

talk to the officers. After Gonzales finished speaking to Detective Roberts, he and his mother

voluntarily left the police station.

        4.      Was There Probable Cause to Arrest and Detective Roberts Failed to Tell Gonzales
                He Was Free to Leave?

        By the time Detective Roberts interviewed Gonzales, he had already interviewed Estrada

and knew Gonzales was involved in Whitley’s death. However, Detective Roberts testified that

although Estrada claimed the firearm belonged to Gonzales and that Gonzales was the individual

who shot Whitley, he anticipated Gonzales could reasonably point the finger at Estrada as the

shooter. It was not until Gonzales told the officer that the gun used during the robbery was his

firearm, that he brought the weapon to the apartment complex, and that he fired at Whitley that

Detective Roberts was able to confirm Estrada’s statement.

        Although Detective Roberts may well have possessed probable cause to arrest Gonzales at

some point during the interview, there is no controverting evidence that Detective Roberts


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instructed Gonzales that he was free to leave and Gonzales left. Detective Roberts also clearly

articulated his intent to present the evidence to the magistrate and that he anticipated a warrant

would issue for Gonzales’s arrest. The concern that an officer has established probable cause to

arrest and does not tell the defendant that he is free to leave, as outlined in Dowthitt and its progeny,

is not present in this case. See Dowthitt, 931 S.W.2d at 255; Aguilera v. State, 425 S.W.3d 448,

456 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

D.      Application

        Because this case turns on the trial court’s determination of credibility and demeanor, we

give almost total deference to the trial court’s factual findings. Montanez, 195 S.W.3d at 106;

Guzman, 955 S.W.2d at 89. Although the evidence supports Gonzales was originally handcuffed

at the gas station, and when he was transported to the juvenile facility and Santa Rosa Children’s

Hospital, he was never in handcuffs or restrained in any manner when he spoke to Detective

Roberts. Detective Roberts’s testimony that he specifically told both Gonzales and his mother that

she would be taking Gonzales home that evening was supported by Detective Bowers’s testimony

as well as the video recording of Gonzales’s statement. Merely being questioned by an officer,

even when the officer has reason to believe the juvenile is involved in a criminal activity, does not

constitute custody. Dowthitt, 931 S.W.2d at 255; In re D.J.C., 312 S.W.3d at 713. Gonzales was

present with his mother, both Gonzales and his mother agreed for Gonzales to speak to Detective

Roberts, Gonzales was told that he was not under arrest, and he left the police station after his

statement.

        Because the evidence supports that Gonzales was free to leave at any time and that he

elected to speak to Detective Roberts, we conclude that a reasonable person would have believed

he was at liberty to terminate the interrogation and leave. See Thompson, 516 U.S. at 112;

Stansbury, 511 U.S. at 323; Dowthitt, 931 S.W.2d at 254–55. Accordingly, the trial court did not
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abuse its discretion in allowing Detective Roberts to testify regarding Gonzales’s statement and to

admit a video-recording of the same statement into testimony. We, therefore, overrule Gonzales’s

second issue.

                                          CONCLUSION

       Having overruled both of Gonzales’s issues on appeal, we affirm the trial court’s judgment.


                                                  Patricia O. Alvarez, Justice

PUBLISH




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