           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-0882-11



                            BECKY ELIZONDO, Appellant

                                            v.

                               THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SEVENTH COURT OF APPEALS
                         LUBBOCK COUNTY

              M EYERS, J., delivered the opinion for a unanimous Court.

                                     OPINION

       Appellant, Becky Elizondo, was charged with theft of fifty to five hundred dollars.

She filed a motion to suppress a written confession obtained by a loss-prevention officer.

After a suppression hearing, the trial court denied Appellant’s motion. She appealed,

claiming that there was an agency relationship between the loss-prevention officer and

law enforcement, and thus her statement was inadmissible under Article 38.22 of the

Texas Code of Criminal Procedure. The court of appeals affirmed the trial court’s
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judgment. Elizondo v. State, 338 S.W.3d 206 (Tex. App.–Amarillo 2011). We granted

Appellant’s ground for review to determine whether the court of appeals erred in

affirming the trial court’s denial of Appellant’s motion to suppress the written confession

obtained by the loss-prevention officer. We agree with the court of appeals that no

agency relationship existed between law enforcement and the loss-prevention officer, and

we will affirm.

                                              FACTS

       Appellant and her friend were shopping in an Old Navy store. The store’s loss-

prevention officer, David Mora, noticed that Appellant’s friend was carrying a flat purse.

Mora watched the two women part ways inside the store and meet together behind a

clothing rack a few minutes later. Mora then watched between the racks as Appellant’s

friend, standing shoulder-to-shoulder with Appellant, put items of merchandise into her

purse. The two women, followed by Mora, left the store without paying for the items.

Mora intercepted the women when they were outside the store and asked them to return to

the store. Mora escorted the women to a room, accompanied by a female Old Navy

manager, and retrieved the items from the purse. After retrieving the items, Mora asked

Appellant to read and sign a document entitled “GAP INC. CIVIL DEMAND NOTICE,” 1

a document that contained the statement, “I, Becky Abajo Elizondo, have admitted to the

theft of merchandise/cash valued at $65.00 from GAP INC., Store No. 6220, located at



       1
           Gap Inc. is the parent company of Old Navy clothing stores.
                                                                             Elizondo–Page 3

6249 Slide Rd. I also hereby acknowledge that my detention on this date was reasonable.”

Appellant signed the form, dated it, and completed the address information section. Mora

also had Appellant sign a store receipt reflecting the value of the merchandise and took

photographs of Appellant and the stolen items. After completing what Mora testified was

typical protocol for theft at Old Navy, he called the Lubbock Police Department, and

officers came to the store to arrest Appellant and her friend. Before the trial began, the

District Attorney’s office obtained a copy of Mora’s Old Navy report, including the civil

demand notice. Appellant filed a motion to suppress the civil demand notice.

                                   MOTION TO SUPPRESS

       The trial court held a hearing on the motion to suppress outside the presence of the

jury to consider the admissibility of the civil demand notice taken by Mora. Appellant

argued that Mora was required to give Miranda2 warnings when he obtained the civil

demand notice because he was engaged in an agency relationship with law enforcement.

       Mora testified that he had been a loss-prevention officer at Old Navy for three

years and had never worked in law enforcement. He testified that, in those three years, he

obtained written confessions in about 99% of the encounters with accused shoplifters. He

stated that the written confessions were kept for the store’s records, but the store would

give a copy of the report to a police officer or attorney upon request. Mora said that the

police officer who arrested Appellant did not take a copy of the civil demand notice with



       2
           Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                            Elizondo–Page 4

him, although he was aware that one existed. Mora testified that the document was not

handed over to the District Attorney until a couple of months after Appellant was

arrested. Mora explained that, in line with the written policy contained in his manual

provided by Gap Inc., his common practice is to ask the apprehended individual to sign

the confession, however they may refuse to sign it if they wish. Mora stated that the

primary reason for the store’s policy requiring all documents to be signed is for punitive

or monetary damages associated with the shoplifting incident.

       Appellant claimed that, because she was taken to a manager’s office and did not

believe she was allowed to leave, she was in custody. She also cited cases stating that, if

a private individual and law enforcement work together, or a private individual acts to

benefit law enforcement, the private individual is required to issue Miranda warnings as

if he were part of law enforcement.

       The State argued that Article 38.22 does not require Miranda warnings for written

confessions taken by private security personnel and pointed the court to Oriji v. State, 150

S.W.3d 833 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). The State asserted that

there was no evidence that Mora was acting at the behest of law enforcement or the

District Attorney; rather he collected evidence on behalf of Gap Inc.

       The trial court denied Appellant’s motion to suppress the written confession and

entered findings of fact including that Mora was not a peace officer, that the defendant

was not in custody, and that the civil demand notice contained no Miranda requirements.
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The trial court’s conclusion of law was that the civil demand notice was not obtained as a

result of a custodial interrogation of the defendant by a law enforcement officer. The

case proceeded to trial, and Appellant was found guilty of theft of fifty to five hundred

dollars and sentenced to 30 days in jail.

                                  COURT OF APPEALS

       On appeal, Appellant argued that the trial court erred in failing to suppress her

written confession, claiming that it was obtained in violation of the Fifth and Fourteenth

Amendments of the U.S. Constitution, Article 1, Section 10, of the Texas Constitution

and Article 38.22 of the Texas Code of Criminal Procedure. The court analyzed the

relationship between Mora and law enforcement using the three-factored test from

Wilkerson v. State, 173 S.W.3d 521 (Tex. Crim. App. 2005). The court considered

whether authorities were using Mora for their own purposes and examined records related

to Mora’s actions and perceptions and Appellant’s perceptions of the encounter with

Mora. The court determined that Mora did not obtain Appellant’s statement pursuant to

police practices. Elizondo, 338 S.W.3d at 211. The court further concluded that Mora

was serving his employer’s interests and that a reasonable person in Appellant’s shoes

would believe that Mora was a loss-prevention officer and not a law-enforcement agent.

Id. at 212-13. The court of appeals held that the record supported the trial court’s

admission of the evidence and affirmed the judgment of the trial court.

       We granted Appellant’s ground for review to consider whether the court of appeals
                                                                            Elizondo–Page 6

erred in determining that an agency relationship did not exist between Mora and the

police and District Attorney’s office.

                            ARGUMENTS OF THE PARTIES

       Appellant argues that Mora was in an agency relationship with law enforcement

and had apparent authority to act on behalf of law enforcement officers. She contends

that officers used Mora to gain un-Mirandized confessions because they themselves could

not do so. Appellant argues that the purpose of the investigation distinguishes agents

from non-agents, but that the perception of the defendant is also relevant. Appellant says

that the court of appeals failed to address the agency relationship and did not thoroughly

address Wilkerson. Appellant contends that Mora’s history and continued practice of

receiving un-Mirandized confessions and handing them over to law enforcement shows

that Mora’s activities were in tandem with law enforcement. Applying the second factor

in Wilkerson, Appellant states that Mora’s purposes in obtaining the confession were to

aid in the prosecution of the case, to maintain a good relationship with law enforcement,

and to prevent defense attorneys from discrediting his testimony. Finally, Appellant

states that her belief in Mora’s authority was reasonable because he presented evidence

against her, detained and photographed her, and required her to sign a confession before

he had her taken to jail.

       Appellant argues that the court of appeals failed to recognize the difference

between an incidental relationship, such as the one in Oriji v. State, and the continued
                                                                            Elizondo–Page 7

complicity of law enforcement in receiving un-Mirandized confessions. Appellant argues

that Mora’s history and continued practice of receiving un-Mirandized confessions is a

systematic circumvention of the procedural guarantees of Miranda and Texas Code of

Criminal Procedure Article 38.22. Appellant contends that an agency relationship

between Mora and law enforcement is apparent. Finally, Appellant says that Estelle v.

Smith, 451 U.S. 454 (1981), requires Miranda warnings for any statement that is to be

used in a criminal proceeding and applies to anyone who gathers information that could

someday be used for criminal prosecution.

       The State disagrees with Appellant’s characterization of Estelle v. Smith, stating

that Smith involved a defendant in a post-arrest setting who was compelled by a court to

provide evidence against himself, so Miranda warnings were obviously required.

However, the State says Miranda warnings are not required for all custodial

questioning–only for questioning by law enforcement or their agents. The State posits

that we should apply the Wilkerson factors to the facts of this case to determine whether

there is an agency relationship with law enforcement that would require Miranda

warnings before questioning.

       The State says that nothing in the record shows that officers were using Mora as an

agent to obtain a statement from Appellant. According to the State, Mora was acting on

behalf of a private company and did not even contact the police until he had completed

his civil investigation. Mora turned over Appellant’s statement because the District
                                                                                Elizondo–Page 8

Attorney’s office requested it, not because he was acting as an agent of law enforcement.

The State says that Mora’s primary purpose for questioning Appellant was to conduct a

civil investigation for a private company. Mora did not hold himself out as law

enforcement, he did not wear a uniform or badge, and he conducted his investigation in

the Old Navy manager’s office.

       The State contends that these factors weigh against a finding that Mora was acting

as an agent of law enforcement. The State concludes that, because Mora was not acting

as an agent of law enforcement, he was not required to give Miranda warnings and

Appellant’s statement was admissible under Texas Code of Criminal Procedure Article

38.22, Section 5.

                                 STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress under an abuse-of-

discretion standard. When the trial court’s findings of fact are based on an evaluation of

credibility and demeanor, we afford almost total deference to the trial court’s

determination of facts that are supported by the record. We review de novo the trial

court’s application of the law to the facts and uphold the trial court’s ruling if it is

supported by the record and is correct under any theory of law applicable to the case.

State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

                              STATUTES AND CASE LAW

       In Miranda v. Arizona, the United States Supreme Court held that, in order to
                                                                              Elizondo–Page 9

ensure that criminal suspects in custody are aware of their rights under the United States

Constitution, police must give formal warnings before suspects are interrogated. 384 U.S.

436. Miranda defined “custodial interrogation” as “questioning initiated by law

enforcement officers after a person has been taken into custody.” Id. at 444. Texas Code

of Criminal Procedure Article 38.22 provides that a written statement made by an accused

as a result of custodial interrogation is inadmissible if the accused did not receive

Miranda warnings. The issue here is whether Miranda applies when questioning is

initiated by someone other than law enforcement.

       We introduced a test in Wilkerson v. State to determine whether non-law

enforcement state agents are required to give Miranda warnings. In Wilkerson, a Child

Protective Services investigator interviewed a father who was in police custody for injury

to a child. 173 S.W.3d 521. The CPS worker needed to discuss the placement of

Wilkerson’s children in foster care and did not give Miranda warnings prior to speaking

with him. During the interview, Wilkerson told the CPS worker about spanking his son,

and this information was included in the CPS report that was forwarded to the police. We

held that non-law-enforcement state agents are required to give Miranda warnings only

when acting in tandem with the police to gather evidence for a criminal prosecution. Id.

at 523. To determine if an agency relationship exists, the courts must examine the entire

record and consider three factors: (1) the relationship between the police and the potential

police agent, (2) the interviewer’s actions and perceptions, and (3) the defendant’s
                                                                             Elizondo–Page 10

perceptions of the encounter. Id. at 530-31. The test helps courts determine whether the

interviewer was acting as an instrumentality or was “in cahoots” with the police or

prosecution. Id. at 531.

       We concluded that Wilkerson’s statements to the CPS worker were admissible

because the CPS worker was not acting as an agent of law enforcement; rather she visited

Wilkerson in jail as part of a routine CPS procedure. Id. at 532. Because there was

nothing in the record to indicate that the police knew about the interview, that they spoke

to the CPS worker before the interview, or that they solicited her to gain information from

Wilkerson, we determined that the CPS worker was not acting as an agent of law

enforcement. Id. at 533.

       The facts of Oriji v. State are very similar to the case before us. In Oriji, the court

admitted into evidence a written confession of theft made without Miranda warnings to a

Foley’s loss-prevention officer. 150 S.W.3d at 833. The court of appeals concluded that,

because the loss-prevention officer did not elicit the incriminating information from the

defendant at the request of the police, he was not engaging in a custodial interrogation

requiring Miranda warnings. Id. at 836-837. The court stated that “[p]rivate citizens,

even security guards, are not ordinarily considered ‘law enforcement officers.’” Id. at

836. Because law enforcement did not know of or initiate the loss-prevention officer’s

effort to obtain a confession, the statement was not for law enforcement purposes. Id. at

837.
                                                                           Elizondo–Page 11

                                       ANALYSIS

        The law does not presume an agency relationship, and the party alleging such a

relationship has the burden of proving that it exists. Wilkerson, 173 S.W.3d at 529.

Appellant argues that there was an agency relationship between Mora and law

enforcement because of: (1) the complicity of law enforcement as evidenced by the

continuing relationship between Mora and the police, (2) the prosecutorial purpose of

Mora’s investigations, and (3) Appellant’s reasonable belief that Mora was acting under

the veil of authority. Because of this relationship, Appellant argues, Miranda warnings

were required in order for her written confession to be admissible. To determine if Mora

was working as an agent of law enforcement, we will apply the three Wilkerson factors to

the facts of this case.

The Relationship Between The Police and the Potential Police Agent

       First, we look for information about the relationship between the police and Mora.

Mora stated that every time he apprehended shoplifters he asked them to fill out a civil

demand notice for Old Navy’s records, and that 99% of the time the accused shoplifter

signed the document. While officers may have been aware that Old Navy had a policy of

obtaining a civil demand notice, there is no indication that this knowledge led to a

calculated practice between the police and the store’s loss-prevention staff. The police

had not even been contacted when Mora obtained Appellant’s confession, so they clearly

did not instruct Mora to get specific information or give him questions to ask Appellant.
                                                                           Elizondo–Page 12

The police were not using Mora to get information from Appellant that they could not

lawfully obtain themselves, and neither the police nor the DA’s office asked Mora to

obtain an admission of guilt to use in a criminal proceeding.

The Interviewer’s Actions and Perceptions

       The second part of the Wilkerson test evaluates the purpose of the interview. In

Oriji, the record showed that a written confession was obtained in order to further the

store’s need to prevent theft and was not for law enforcement purposes. 150 S.W.3d at

837. Similarly, in Wilkerson, we concluded that the CPS worker was not an agent of law

enforcement because her questioning of the defendant was part of her duty regarding the

placement of his children in foster care. 173 S.W.3d at 532. Here, Mora’s reason for

obtaining the civil demand notice was to adhere to the policies in the Gap Inc. loss-

prevention manual. Although Gap Inc.’s policy manual says that theft incident reports

serve to aid in criminal prosecutions and convictions, help maintain a good rapport with

law enforcement, and prevent defense attorneys from discrediting the testimony of the

loss-prevention staff, those are not the primary purposes of the report. The manual says

reports, which should include a civil demand notice, are necessary to record and preserve

observations, details, and information about the events surrounding the theft, and it says

that the reports are for company use and records only. The civil demand notice states that

the law permits merchants to recover civil monetary damages and that the civil penalties

are not intended to compromise any criminal action the store may seek as a result of the
                                                                           Elizondo–Page 13

shoplifting incident. While Mora did help build a case that led to Appellant’s arrest, and

his testimony indicates that the purpose of obtaining a written confession goes beyond

merely civil reasons, his primary duty was to document the incident for company records.

The record indicates that Mora believed that he was following Old Navy policy and

acting on the store’s behalf, not acting as a police agent.

The Defendant’s Perceptions of the Encounter

       Under the third Wilkerson factor, because there is nothing in the record from the

suppression hearing regarding Appellant’s perception of her encounter with Mora, we

consider whether a reasonable person in Appellant’s position would believe that Mora

was a law-enforcement agent. See Id. at 531. Mora testified that he was not wearing a

uniform when he approached Appellant and her friend outside the store. He informed

them that he was a loss-prevention officer for Old Navy, escorted them to the store

manager’s office, and asked them to fill out paperwork about the theft. A female Old

Navy manager was present during the encounter, and the door to the manager’s office was

left ajar. Mora printed out an Old Navy store receipt for the items found in Appellant’s

purse and photographed Appellant and the stolen items. Under these circumstances, we

cannot say that a reasonable person in Appellant’s position would believe that Mora was a

law-enforcement agent. There was nothing in the record indicating that Mora appeared to

Appellant to be cloaked with the actual or apparent authority of the police. See Id. at 530.

                                      CONCLUSION
                                                                          Elizondo–Page 14

       We conclude that Mora was not acting in tandem or “in cahoots” with the police.

The fact that Mora eventually gave the District Attorney’s office a copy of Appellant’s

written confession does not transform him into an agent of law enforcement. See

Wilkerson, 173 S.W.3d at 533. Because Mora was working on a path parallel to, yet

separate from, the police, Miranda warnings were not required in this situation. See

Wilkerson, 173 S.W.3d at 529. The record supports the trial court’s decision to deny

Appellant’s motion to suppress the written confession and the court of appeals did not err

in affirming the trial court’s denial of the motion to suppress. The judgment of the court

of appeals is affirmed.




                                                        Meyers, J.




Delivered: November 7, 2012

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