                            NUMBER 13-13-00704-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

                     IN THE MATTER OF J.G.M., A CHILD


                   On appeal from the 138th District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      J.G.M., a juvenile, appeals from an order committing her to the Texas Department

of Juvenile Justice (TDJJ) following an adjudication of delinquent conduct. By a single

issue, appellant contends that the trial court violated her Fifth Amendment rights by: (1)

considering a disposition report prepared by appellant’s probation officer although
appellant was not advised of her Miranda rights1; and (2) eliciting incriminating statements

from appellant when she testified at the disposition hearing. We affirm.

                                           I. BACKGROUND

       Appellant pleaded “true” to the State’s allegations that she engaged in delinquent

conduct by committing the felony offense of assault on a public servant. See TEX. PENAL

CODE ANN. § 22.01(a), (b)(1) (West, Westlaw through 2013 3d C.S.). The trial court held

a contested disposition hearing. At the beginning of the hearing, appellant’s counsel

objected to the admission of an amended disposition report prepared by Sandy Perez, a

probation officer with the Cameron County Juvenile Probation Department.             Perez

prepared the report based on information obtained in an interview with appellant, but did

not advise appellant of her Miranda rights prior to the interview. Appellant’s counsel

argued that the report included incriminating statements made by appellant during the

interview and therefore violated appellant’s Fifth Amendment privilege against self-

incrimination. See U.S. CONST. amend. V. The trial court noted that there were two

sentences in the report in which appellant admitted prior drug use. The trial court struck

the two sentences from the report, stated that it would disregard the statements, and

admitted the remainder of the report.

       Perez testified that she did not read appellant her Miranda rights before

interviewing her. The State concedes that the statements made by appellant during the

interview were taken in violation of article 38.22 of the code of criminal procedure. See

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a) (West, Westlaw through 2013 3d C.S.)

(providing statutory warnings virtually identical to Miranda warnings, except that article



       1   See Miranda v. Arizona, 384 U.S. 436 (1966).

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38.22 includes a warning that the accused has the right to terminate the interview at any

time, which is not required by Miranda). The State argues, however, that appellant’s Fifth

Amendment rights were not violated because the trial court properly excluded the

statements and disregarded them.

                                 II. STANDARD OF REVIEW

       We review a trial court’s decisions on evidence admissibility under an abuse-of-

discretion standard, reversing only when the trial court’s decision falls outside the zone

of reasonable disagreement. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim.

App. 2006).

                                         III. DISCUSSION

       Appellant relies on In the Matter of J.S.S., in which the El Paso Court of Appeals

held that, under the specific facts of that case, the Fifth Amendment applied to a probation

officer’s pre-disposition interview with a juvenile, and the juvenile should have been

warned of his rights and informed that his statements could be used against him during

the disposition hearing. 20 S.W.3d 837, 846–47 (Tex. App.—El Paso 2000, pet. denied).

The El Paso Court found that the probation officer’s interview of the juvenile “exceeded

any arguably neutral purposes” by questioning the juvenile about two extraneous

offenses. See id. at 846. The El Paso Court noted that the trial court explicitly stated

that, in making his disposition decision, the trial judge “took into account that J.S.S. had

committed the same offense on two prior occasions.” Id. at 840. Moreover, the J.S.S.

Court emphasized that its holding was limited to the facts in the case before it. Id. at 846

n.7. The El Paso Court added the following footnote:

       Our opinion should not be read as holding that the Fifth Amendment applies
       to all pre-disposition interviews because of the facts in a given case may

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       show that the interview served more neutral purposes, and therefore, did
       not implicate the juvenile's Fifth Amendment rights. Rather than focusing
       on the type of proceeding involved, we believe the better approach is to
       examine the nature of the statement or admission and the exposure which
       it invites.

Id. In a more recent case, In re C.R.R.E., the El Paso Court of Appeals found J.S.S.

distinguishable and found that a juvenile’s Fifth Amendment rights were not violated

where the juvenile’s probation officer did not ask the juvenile about extraneous offenses

and the trial court made its disposition decision without taking into account the juvenile’s

prior acts. See No. 08-02-00476-CV, 2004 WL 231928, at *5 (Tex. App.—El Paso Feb.

5, 2004, no pet.) (mem. op.).

       In the present case, the State concedes that the incriminating statements made by

appellant during the interview were taken in violation of article 38.22. See TEX. CODE

CRIM. PROC. ANN. art. 38.22, § 2(a). However, the trial court struck the statements from

the report and specifically stated that it would not consider the inadmissible statements.

We assume the trial court disregarded the evidence unless the record clearly shows the

contrary. See Herford v. State, 139 S.W.3d 733, 735 (Tex. App.—Fort Worth 2004, no

pet.) (stating that while an appellate court no longer automatically presumes the trial court

did not consider inadmissible evidence, it can assume that the trial court disregarded

irrelevant or inadmissible evidence when it indicated it would and the record fails to show

that the court did otherwise); see also Chavira v. State, No. 13–10–00002–CR, 2011 WL

2732610, at *5 (Tex. App.—Corpus Christi July 14, 2011, no pet.) (mem. op., not

designated for publication) (holding the same). The trial court did not abuse its discretion

in admitting the disposition report.

       Appellant also argued that the trial court violated her Fifth Amendment rights by



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eliciting testimony from her during the disposition hearing. Appellant testified on her own

behalf at the disposition hearing. The State declined to cross-examine appellant, but the

trial court questioned appellant. The trial court asked appellant whom she stayed with

during an earlier period when she ran away. Appellant’s counsel objected and urged

appellant to “invoke her [F]ifth [A]mendment privilege.”      The trial court denied the

objection and stated that appellant waived her Fifth Amendment privilege by testifying.

Thereafter, appellant responded to the trial court’s questions by stating that she did not

remember.

       “When a criminal defendant voluntarily takes the stand to testify in his own

defense, he waives his privilege against self-incrimination.” Ramirez v. State, 74 S.W.3d

152, 155 (Tex. App.—Amarillo 2002, pet. ref’d) (citing Nelson v. State, 765 S.W.2d 401,

403 (Tex. Crim. App. 1989)); see Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App.

1992) (en banc) (“Once an appellant decides to testify at trial he opens himself up to

questioning by the prosecutor on any subject matter which is relevant.”). Here, appellant

testified about incidents involving her mother and step-father that made her feel like

running away. The trial court asked appellant about her whereabouts when she was on

runaway status. We hold that appellant’s Fifth Amendment privilege was not violated

when the trial court questioned her. We overrule appellant’s sole issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.

                                                   DORI CONTRERAS GARZA,
                                                   Justice


Delivered and filed the
8th day of January, 2015.

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