                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00037-CV

                   IN THE MATTER OF M.G., A JUVENILE,



                          From the 272nd District Court
                              Brazos County, Texas
                             Trial Court No. 215-J-08


                           MEMORANDUM OPINION


      A jury found that M.G. had engaged in delinquent conduct by committing the

offense of aggravated sexual assault of a child, and the court placed him on probation

for thirty-six months. In his sole issue, M.G. contends that the trial court erred in

overruling his motion to suppress his videotaped statements. We will reverse and

remand.

                                    BACKGROUND

      M.G. filed a pretrial motion to suppress, requesting that the court suppress any

of his statements that were the result of custodial interrogation because he had not been

given the warnings required by the Fifth and Fourteenth Amendments to the United

States Constitution; Article 1, Sections 9 and 10 of the Texas Constitution; articles 38.22
and 38.23 of the Code of Criminal Procedure; and section 51.095 of the Family Code. A

hearing was held on the motion. M.G.’s mother and Bryan Police Department Detective

Kelly Caldwell were the only witnesses who testified at the hearing.

        M.G.’s mother testified that she called 911 because then eleven-year-old M.G.

“confessed he had done these things” to her other son J.G. A detective subsequently

contacted her and told her that she needed to take M.G. to Scotty’s House.1 Detective

Caldwell testified that, after the initial part of the investigation, she asked M.G.’s

mother if she would mind bringing M.G. to Scotty’s House for a “juvenile victim

interview” to see if M.G. had been a victim of any kind of abuse.

        M.G.’s mother said she picked up M.G. from his Aunt Edna’s house and told him

that they were going to Scotty’s House, “a place where they were going to help him.”

M.G. went with her willingly but, on the way there, he told her that his Aunt Edna had

told him that “he didn’t have to say anything to the F-ing police.”

        Once at Scotty’s House, Nick Canto interviewed M.G. M.G.’s mother said she

was not present during the interview and could not hear what was going on inside the

interview room. However, Detective Caldwell was given the opportunity to listen in on

the interview. She also had the ability to actively participate in the interview through

an earphone and microphone, but she did not remember if she asked any questions. A

video recording of the Scotty’s House interview was admitted in evidence at the

suppression hearing. During the interview, M.G. stated that he had told his mother that

he sexually assaulted J.G. but that the truth was that he did not sexually assault J.G. and
        1
           Detective Caldwell testified at trial that Scotty’s House is the local child advocacy center where child
victims are interviewed.

In re M.G.                                                                                                 Page 2
instead believed that his “stepdad” Rogelio2 had done it. M.G. stated that he lied to his

mother because Rogelio told him to, so Rogelio would not go to jail for it. The video

also shows that Canto was given questions through the ear piece during the interview.

         M.G.’s mother testified that, after the interview at Scotty’s House, Detective

Caldwell informed her that she had been listening in on the interview. Detective

Caldwell told her that she had to take M.G. to the Bryan Police Department for

questioning. Detective Caldwell said, however, that, after the Scotty’s House interview,

she asked M.G.’s mother if she would mind bringing M.G. over to the police department

so that she could talk to him about what he had done to J.G. Detective Caldwell stated

that M.G.’s mother was “more than willing” and that she said, “Yeah, that would be

fine.”       Detective Caldwell further testified that although she saw M.G. at Scotty’s

House, and although he probably saw her, she never talked to him directly until they

were at the police department.

         M.G. and his mother went immediately from Scotty’s House to the Bryan Police

Department. M.G.’s mother said that when she and M.G. got into the car, she told him,

“We are going to the police department.” M.G. replied, “What are you doing? Where

are we going?”             She replied, “We’re going to the police department.” M.G. said,

“What? What? No, they’re going to arrest me.” She replied, “No they’re just going to

ask you questions. They want to help you.” M.G.’s mother further testified that when

they arrived at the police department, M.G. did not want her to park the car. He said,




         2
             M.G.’s mother testified at trial that Rogelio was her live-in boyfriend during that time.

In re M.G.                                                                                               Page 3
“No, no, no, they’re going to arrest me.” But he eventually went willingly with her into

the police department and was cooperative with all the people there.

        Detective Caldwell said that when she arrived at the police station, she removed

her sidearm and then went out to the lobby to talk to M.G. and his mother. She asked

M.G. if he would mind “coming back and talking to me,” and M.G. responded, “Okay.”

M.G.’s mother said that Detective Caldwell asked her if it was “okay” to take M.G. and

ask him some questions, and she said it was okay. M.G.’s mother stated that Detective

Caldwell never represented whether M.G. was in custody.

        M.G.’s mother testified that Detective Caldwell then took her to the crime

victims’ coordinator’s office where she stayed during at least the first part of M.G.’s

interview. Detective Caldwell said that, at some point, she told M.G.’s mother that she

could be in the interview room with M.G. but that Caldwell felt like M.G. would not be

as honest. As Detective Caldwell was showing M.G. to the interview room, M.G.’s

mother was following and then stopped to talk to the crime victims’ coordinator. M.G.

saw this, and Detective Caldwell told him that his mother “was going to talk to

someone up here while we went back to the other room and talked.” M.G. had no

reaction, and she did not remember if she ever asked M.G. if he wanted his mother in

the room for the interview.

        Detective Caldwell and M.G. had to walk through the detectives’ area to get to

the interview room. She stated that she did not know if any firearms were exhibited in

that area, but if an officer had been sitting at his or her desk, then he or she would more

than likely have been wearing a sidearm. She also stated that M.G. did not have to pass

In re M.G.                                                                           Page 4
any jail cells on his way to the interview room, he was not wearing handcuffs, and she

was not wearing a badge. M.G.’s mother testified, however, that although she did not

remember whether Detective Caldwell was wearing a weapon that day, she did

remember Detective Caldwell wearing a badge. The video recording of the interview

shows that Caldwell did have some type of badge or identification around her neck.

        Detective Caldwell described the interview room as a small room with a table

and two chairs. The only thing on the wall was a two-way mirror. Although there was

a lock on the door, she never locked it, but she did close the door, even when she left

the room and left M.G. alone.

        Regarding the interview itself, Detective Caldwell stated that she usually tells a

person that she is recording the interview, but she did not remember if she told that to

M.G. Although she testified that she never told M.G. that he was under arrest or that he

was detained, she did not remember if she ever told him that he was not under arrest or

detained. She never read M.G. Miranda warnings. She said she usually tells the person

that he or she is free to leave, and she thought that she might have in this case, but she

was not certain and could not testify affirmatively that she told M.G. that he was free to

leave. On the video recording of the interview that was admitted in evidence at the

suppression hearing, Detective Caldwell never told M.G. he could leave.

        Once the interview actually began, Detective Caldwell asked M.G. what he was

there to talk about, and he replied that he was there to talk about his stepdad touching

his little brother. Detective Caldwell responded that they were there instead to discuss

what he had done to his little brother. M.G. initially denied doing anything to his

In re M.G.                                                                          Page 5
brother. Detective Caldwell then used several interrogation techniques on the eleven-

year-old. She asked M.G. what he thought her job was, and he replied “to arrest

people.” Detective Caldwell agreed but told him that part of her job was also to help

children and that she wanted to get him and his little brother the help that they needed.

She told him that she had watched the earlier Scotty’s House interview and that she

knew he was not being completely honest.            She confronted him regarding his

confession to his mother and J.G.’s identification of him as the perpetrator. She also

told him that they had recovered evidence, including a shirt, from his bedroom and

that, if he had sexually assaulted his brother, they would find both his and his brother’s

DNA on the shirt. During this time, M.G. cried some, but he continued to deny sexually

assaulting his brother. Detective Caldwell then left the interview room and told M.G.

that she would give him a few minutes to think about it.

        After approximately sixteen minutes alone in the interrogation room, Detective

Caldwell then returned to the room with M.G.’s mother. Detective Caldwell asked

M.G.’s mother to sign a consent form, allowing Detective Caldwell to take DNA cheek

swabs from M.G. M.G. signed the paper as well. Detective Caldwell took the cheek

swabs and told M.G.’s mother that she could leave the interview room, which she did.

Detective Caldwell then told M.G. that they would be able to use the swabs to see if his

DNA was mixed with his brother’s DNA on the shirt that they had taken from his

bedroom. A short time after this, M.G. began to inculpate himself and ultimately

confessed that he sexually assaulted his brother.




In re M.G.                                                                          Page 6
        M.G.’s mother testified that she and M.G. left together after the interview.

Although she stated that she felt that they could have left the police station anytime, she

had never expressed that to M.G. She acknowledged that M.G. had been dependent

upon her that day because she was his ride.

        The trial court overruled M.G.’s motion to suppress, and the relevant portions of

Detective Caldwell’s interview were admitted at trial.

                                STANDARD OF REVIEW

        We review a trial court’s ruling on a motion to suppress evidence in a juvenile

proceeding under a bifurcated standard of review. See In re R.J.H., 79 S.W.3d 1, 6-7 (Tex.

2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost

total deference to the trial court’s rulings on questions of historical fact and application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson

v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Best v. State, 118 S.W.3d 857, 861-

62 (Tex. App.—Fort Worth 2003, no pet.). However, we review de novo a trial court’s

rulings on application-of-law-to-fact questions that do not turn on the credibility and

demeanor of witnesses. Johnson, 68 S.W.3d at 652-53.

                                      DISCUSSION

        M.G. contends that the trial court erred in overruling his motion to suppress his

videotaped statements because the statements were the result of custodial interrogation,

yet he had not been advised of his rights, which violated the Fifth and Fourteenth

Amendments to the United States Constitution; Article 1, Sections 9 and 10 of the Texas

Constitution; and section 51.095 of the Texas Family Code.          In response, the State

In re M.G.                                                                             Page 7
acknowledges that M.G. was not given the statutory warnings required by Texas

Family Code section 51.095 but contends that the statements were nevertheless

admissible because they did not arise from custodial interrogation. See TEX. FAM. CODE

ANN. § 51.095(b)(1), (d) (Vernon 2009). Alternatively, the State argues that any error in

admitting M.G.’s videotaped statements before the jury was harmless.

Custodial Interrogation

        “Custodial interrogation” means “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his freedom

of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602,

1612, 16 L.Ed.2d 694 (1966). In cases involving adults, “[a] person is in ‘custody’ only if,

under the circumstances, a reasonable person would believe that his freedom of

movement was restrained to the degree associated with a formal arrest.” Dowthitt v.

State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S.

318, 322-25, 114 S.Ct. 1528, 1528-30, 128 L.Ed.2d 293, 298-99 (1994)). When the person

involved is a minor, the court’s inquiry is whether, based on the objective

circumstances, a reasonable child of the same age would believe his freedom of

movement was significantly restricted. In re D.A.R., 73 S.W.3d 505, 510 (Tex. App.—El

Paso 2002, no pet.); In re L.M., 993 S.W.2d 276, 289 (Tex. App.—Austin 1999, pet.

denied).

        The Court of Criminal Appeals has recognized four factors relevant to

determining custody: (1) probable cause to arrest, (2) subjective intent of the police, (3)

focus of the investigation, and (4) subjective belief of the defendant. Dowthitt, 931

In re M.G.                                                                            Page 8
S.W.2d at 254. However, “factors two and four have become irrelevant except to the

extent that they may be manifested in the words or actions of law enforcement officials;

the custody determination is based entirely upon objective circumstances.” Id.

        Station-house questioning does not, in and of itself, constitute custody. Id. at 255.

The following four general situations may constitute custody: (1) when the suspect is

physically deprived of his freedom of action in any significant way, (2) when a law

enforcement officer tells the suspect that 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) when there is probable

cause to arrest and law enforcement officers do not tell the suspect that he is free to

leave. Id. Concerning the first three situations, the restriction on freedom of movement

must amount to the degree associated with an arrest as opposed to an investigative

detention. Id. Concerning the fourth situation, the officers’ knowledge of probable

cause must be manifested to the suspect.          Id.   Such manifestation could occur if

information substantiating probable cause is related by the officers to the suspect or by

the suspect to the officers. Id. Custody is thus established in the fourth situation if the

manifestation of probable cause, combined with other circumstances, would lead a

reasonable person to believe that he is under restraint to the degree associated with an

arrest. Id.

        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. Dancy v. State, 728 S.W.2d 772,

In re M.G.                                                                             Page 9
778-79 (Tex. Crim. App. 1987); In re M.R.R., 2 S.W.3d 319, 324 (Tex. App.—San Antonio

1999, no pet.). However, the mere fact that an interrogation begins as non-custodial

does not prevent it from later becoming custodial; police conduct during the encounter

may cause a consensual inquiry to escalate into custodial interrogation. Dowthitt, 931

S.W.2d at 255.

        Detective Caldwell had asked M.G.’s mother, who is also the mother of the

alleged victim, if she would mind bringing M.G. to Scotty’s House and then from

Scotty’s House to the police department. But Detective Caldwell never directly asked

M.G. whether he was willing to talk to her until he was already at the police

department. At that time, M.G. had just finished being interviewed at Scotty’s House.

Furthermore, once M.G. was at the police department and agreed to talk to Detective

Caldwell, at Detective Caldwell’s suggestion, he was isolated from his mother and then

led through the detectives’ area to an interview room, where he sat alone with

Caldwell.    The room was small.    Detective Caldwell sat very close to M.G. while

questioning him and appeared to be, at least in part, between M.G. and the door.

Detective Caldwell never informed him of any of his rights under the Texas Family

Code, and she was not sure if she told him that he was free to leave. Instead, Detective

Caldwell made it clear that M.G. was the focus of the investigation involving the sexual

assault of his brother. Despite M.G.’s denials, Detective Caldwell repeatedly asked

M.G. if he had sexually assaulted his brother. At some point, M.G. became teary-eyed.

Nevertheless, Detective Caldwell continued to press him for truthful statements, telling

him that she knew that he was not being completely honest during the Scotty’s House

In re M.G.                                                                       Page 10
interview. She also stressed to him several times that they had found a shirt in his

bedroom with potential DNA evidence on it and brought his mother into the interview

room, not for M.G.’s benefit, but only to allow Detective Caldwell to take DNA cheek

swabs from him. After all this, M.G. finally gave a statement inculpating himself in the

sexual assault.

        Based on the circumstances outlined above, we conclude that a reasonable

eleven-year-old child would have believed that his freedom of movement had been

significantly restricted at some point after Detective Caldwell began to press M.G. for a

truthful statement. See Jeffley v. State, 38 S.W.3d 847, 856-58 (Tex. App.—Houston [14th

Dist.] 2001, pet. ref’d) (consensual non-custodial questioning of fifteen-year-old who

had willingly accompanied detective to the police station escalated into custodial

interrogation after police officer began pressing her for truthful statement; the eighth-

grader sat alone, without parent or lawyer present or accessible, in police station with

police officer who never informed her she was free to leave, never informed her of her

rights under Family Code, and never made arrangements for her to return home, as

promised); L.M., 993 S.W.2d at 290-91 (eleven-year-old was in custody when she made

her statements even though she was informed at beginning of interview of her right to

remain silent, right to attorney, and right to terminate interview; interview was

conducted in children’s shelter where she was temporarily staying, she was not told she

was free to leave interview room or children’s shelter, she was isolated and alone

during interrogation, and she was focus of investigation).




In re M.G.                                                                        Page 11
Harm

        We consider next whether the trial court’s error was harmful under Texas Rule of

Appellate Procedure 44.2, which governs error in criminal cases. See TEX. R. APP. P. 44.2.

Under Rule 44.2, the nature of the error controls the standard under which it will be

evaluated. See id.; Jeffley, 38 S.W.3d at 858. Constitutional error requires reversal of a

judgment of conviction or punishment unless the reviewing court determines beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.

TEX. R. APP. P. 44.2(a). If the error is non-constitutional, it must be disregarded unless it

affects substantial rights. TEX. R. APP. P. 44.2(b). The improper admission of a statement

in response to custodial interrogation implicates the constitutional right against self-

incrimination; therefore, we employ the harm analysis mandated by Rule 44.2(a).

D.A.R., 73 S.W.3d at 513; Jeffley, 38 S.W.3d at 858; see TEX. R. APP. P. 44.2(a).

        The State argues that any error in admitting M.G.’s videotaped statements before

the jury was harmless because the jury had already heard M.G.’s mother testify,

without objection, that M.G. admitted to her that he had assaulted his brother J.G.

However, M.G.’s mother also testified that, on several separate occasions, J.G. said that

“Daddy” had touched him inappropriately. Although she explained this by stating that

M.G. told her that he would tell J.G. that he was “Daddy,” Rogelio testified that J.G.

called him “Daddy” and that he had been alone with J.G. for approximately one hour

every weekday afternoon. M.G.’s mother also testified that Rogelio continued to live in

the house even after J.G. first accused him. Moreover, during its closing argument, the



In re M.G.                                                                            Page 12
State emphasized M.G.’s videotaped confession. Thus, we cannot conclude beyond a

reasonable doubt that the error did not contribute to M.G.’s conviction.

        We sustain M.G.’s sole point.

                                        CONCLUSION

        We reverse the judgment of the trial court and remand for further proceedings.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed August 11, 2010
[CV06]




In re M.G.                                                                        Page 13
