                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00421-CV

                   IN THE MATTER OF C.M., A JUVENILE


                          From the 272nd District Court
                             Brazos County, Texas
                            Trial Court No. 73-J-2010


                          MEMORANDUM OPINION


       C.M. appeals from the trial court’s denial of a motion to suppress three

statements he made to law enforcement officials relating to an aggravated robbery.

After the trial court’s denial of his motion to suppress, C.M. pled true and was found to

have engaged in delinquent conduct for an aggravated robbery and possession of a

prohibited weapon.     TEX. FAM. CODE ANN. §§ 54.03; 56.01(n)(2) (West 2008). C.M.

complains that the trial court erred by denying his motion to suppress his first two

statements because they were the result of custodial interrogation and therefore, the

failure of the officers to comply with the 5th and 14th 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. C.M. further complains that his third statement should have
been suppressed because section 52.025 was violated in that his custodians were not

allowed to speak to him prior to his making the statement and because he did not

affirmatively waive his rights as required by section 51.095 (a)(5)(A). TEX. FAM. CODE

ANN. § 51.095 (a)(5)(A) (West 2008). Because we find that the trial court did not abuse

its discretion by denying the motion to suppress, we affirm.

Standard of Review

        We review a trial court’s ruling on a motion to suppress the statement of a

juvenile in an adjudication proceeding under the same abuse of discretion standard as a

motion to suppress the statement of an adult in a criminal proceeding. See Balentine v.

State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); In re J.A.B., 281 S.W.3d 62, 65 (Tex.

App.—El Paso 2008, no pet.). When reviewing the trial court’s ruling on a motion to

suppress, we view the evidence in the light most favorable to the trial court’s ruling.

State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); In re J.A.B., 281 S.W.3d at 65.

We uphold the trial court’s ruling if it is supported by the record and correct under any

theory of law applicable to the case. Iduarte, 268 S.W.3d at 548; In re J.A.B., 281 S.W.3d at

65. 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




In the Matter of C.M., a Juvenile                                                      Page 2
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.

The Facts

        An armed robbery of a convenience store committed with a shotgun took place a

short distance from the place C.M. was residing with his cousin, Charles, and Charles’s

wife, Laura. At this time, C.M. was fifteen years old. Shortly after the robbery, a

neighbor called the police to report a suspicious person attempting to enter Charles and

Laura’s residence through the back door. Multiple officers had been dispatched to the

scene to attempt to locate the robber, some of whom were in uniform and some were

not. An officer came to the residence and asked to search the residence because of the

neighbor’s report to make sure that no one had broken into the residence. Laura was

the only person at home and gave consent.

        At one point during the search for the robber, a suspect was spotted and chased,

but that person escaped. A short time later, an officer spotted C.M. in an alley a short

distance away peering around a corner of a building. When he saw an officer and a

deputy constable, C.M. turned and tried to walk away. The officers took off running

after C.M. and told him to stop, which he did. C.M. was frisked for weapons and

walked back with the officers to the residence.

        At the residence, C.M. was told not to leave and to wait next to Charles’s vehicle.

C.M. sat down on the back of Charles’s truck and waited. Hines, a detective, and at


In the Matter of C.M., a Juvenile                                                    Page 3
least one other officer stood with C.M. and had a conversation with C.M. about what he

had been doing that day and why he was not in school. During this time other officers

were in the vicinity of C.M. and were armed, although the officers testified that no

weapon was pointed at C.M. at any time and the weapons were unholstered only

during the protective sweep of the residence. Additionally, some of the officers at the

scene carried patrol rifles but the officers testified that they were pointed at the ground

in a safety circle position and not at C.M. While sitting on Charles’s truck, the officers

observed that C.M. seemed to be very nervous and shaking. He was dressed in a t-shirt

and shorts, which the officers believed was odd for the weather that day, which was

cool. C.M. was not handcuffed at any time prior to the conclusion of the second

statement made in the patrol car.

        C.M.’s initial story regarding his whereabouts that day were shown to be untrue,

and after a short conversation of approximately five to ten minutes, Hines confronted

C.M. by telling him that they knew what had happened that morning and that C.M.

might as well be truthful with the officers. At this point, C.M. admitted that he had

robbed a store with a shotgun. He had stolen a shotgun from a friend in Dallas and had

hidden it under his bed wrapped in a towel. C.M. committed the robbery so he could

get the money to return to Dallas, his hometown. C.M. contended that he had thrown

down the money and shotgun while he was being chased. This is the first statement of

which C.M. complains.


In the Matter of C.M., a Juvenile                                                    Page 4
        Hines then took C.M. to an unmarked police car so they could discuss what had

happened in a quieter environment. Hines got into the driver’s side and C.M. got into

the passenger side front seat. Another officer had already activated a recording device

in the vehicle. Hines asked C.M. similar questions except in more detail and C.M. again

confessed to stealing the shotgun and committing the robbery with the shotgun that

was loaded. C.M. stated that if the store clerk had resisted that he would have shot the

clerk. C.M. did not seem overly nervous or upset during this interview but was calm

and matter-of-fact. After this discussion, Hines told C.M. that he was under arrest and

that he would be taken to juvenile detention. This was the second statement of which

C.M. complains. C.M. was then left in the vehicle for a short time when another officer

came and asked him to exit the vehicle, at which time he was then handcuffed.

        Multiple officers spoke with Charles and Laura during this time.          Laura

consented to a search of C.M.’s room and the residence.       Charles and Laura both

testified that they asked to speak to C.M., but were not allowed to do so. Both stated

that if they had been allowed to speak to C.M. they would have advised him against

making any statements until after speaking with an attorney and that they believed that

C.M. would have listened to their advice. Charles asked to accompany C.M. to the

police station but the officers told him no and that he could not speak with C.M. until

he was taken to juvenile detention. C.M. did not have any prior adjudications as a




In the Matter of C.M., a Juvenile                                                 Page 5
juvenile; however, Charles testified that C.M. had been in trouble before but had not

been caught when he lived in Dallas.

        C.M. was taken to the Bryan Police Department to see a magistrate. C.M. was in

an interview room for approximately an hour waiting for the magistrate to arrive.

There is no dispute that C.M. was in custody at this time. Gore, a magistrate, arrived

and met with C.M. in the interview room. She reviewed the required warnings and

advised C.M. of his rights as required by section 51.095(a)(5)(A) of the Family Code.

C.M. signed an acknowledgment that he had been read and had his rights explained to

him by the magistrate, that he understood them, and had asked any questions he had

regarding them.        This was electronically recorded both visually and aurally.    The

magistrate asked C.M. if he still wanted to talk with the detectives and C.M. responded

affirmatively. Gore also testified at the suppression hearing that she believed that C.M.

understood his rights and that he voluntarily wanted to speak with the officers. C.M.

was interviewed by Hines and another detective and made a statement similar to the

statement recorded in the police vehicle. This statement by C.M. is the third statement

of which C.M. complains.

        C.M. filed a motion to suppress each of these statements, which was denied after

a hearing by the trial court. C.M. did not testify at the suppression hearing. After the

motion was denied, C.M. pled true to the offenses of aggravated robbery and

possession of a prohibited weapon, a sawed-off shotgun. In the disposition phase, the


In the Matter of C.M., a Juvenile                                                    Page 6
trial court accepted the disposition of a determinate sentence of fifteen years’

confinement to be served in the custody of the Texas Youth Commission for the

aggravated robbery which had been agreed-upon by the State and C.M.

                                               CUSTODY

        In determining whether or not the statements should have been suppressed, the

initial inquiry is at what time C.M. was in custody of the police because the protections

of the 5th and 14th Amendments of the United States Constitution, article 1, sections 9

and 10 of the Texas Constitution, and relevant sections of the Family Code concerning

the admissibility of statements of a juvenile do not apply if the juvenile is not in custody

when the statement was made.1 See TEX. FAM. CODE ANN. § 51.095(d); Roquemore v.

State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001).

        Custodial interrogation is questioning initiated by law enforcement after a

person has been taken into custody or otherwise deprived of his freedom in any

significant way. See Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528-30,

128 L. Ed. 2d 293 (1994); Cannon v. State, 691 S.W.2d 664, 671 (Tex Crim. App. 1985);

Martinez v. State, 131 S.W.3d 22, 32 (Tex. App.—San Antonio 2003, no pet.).                              ‚A

custodial interrogation occurs when a defendant is in custody and is exposed ‘to any


1 Although C.M. complains that the statements were made in violation of the Texas Constitution, he
makes no further arguments regarding what protections the Texas Constitution provides that differ from
those of the United States Constitution; therefore we will not address that portion of his issue. See TEX. R.
APP. P. 38.1(i); see also Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992) (declining to address
appellant's arguments regarding his state constitutional rights when the appellant did not make a
distinction between the United States Constitution and the Texas Constitution).

In the Matter of C.M., a Juvenile                                                                     Page 7
words or actions on the part of the police . . . that [the police] should know are

reasonably likely to elicit an incriminating response.’‛ Roquemore v. State, 60 S.W.3d at

868 (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d

297 (1980)). A child is in custody if, under the objective circumstances, a reasonable

child of the same age would believe his freedom of movement was significantly

restricted. In re U.G., 128 S.W.3d 797, 799 (Tex. App.—Corpus Christi 2004, pet. denied);

Jeffley v State, 38 S.W.3d 847, 855 (Tex. App.—Houston *1st Dist.+ 2001, pet. ref’d).

        We employ a two-step analysis in a juvenile delinquency proceeding to

determine whether a child is in custody. In re M.R.R., 2 S.W.3d 319, 323 (Tex. App.—

San Antonio 1999, no pet.). First, we examine all the circumstances surrounding the

interrogation in order to determine whether there was a formal arrest or restraint of

freedom of movement to the degree associated with a formal arrest. Stansbury, 511 U.S.

at 322, 114 S. Ct. at 1528-29; In re M.R.R., 2 S.W.3d at 323. This initial determination

focuses on the objective circumstances of the interrogation rather than the subjective

views harbored by either the interrogating officers or the child being questioned.

Stansbury, 511 U.S. at 322, 114 S. Ct. at 1529; In re M.R.R., 2 S.W.3d at 323. Second, we

consider whether a reasonable child would have felt he or she was at liberty to

terminate the interrogation and leave in light of the given circumstances. Thompson v.

Keohane, 516 U.S. 99, 112, 116 S. Ct 457, 465, 133 L. Ed. 2d 383 (1995); In re M.R.R., 2

S.W.3d at 323.


In the Matter of C.M., a Juvenile                                                       Page 8
        The four factors relevant to a determination of custody include (1) probable

cause to arrest; (2) focus of the investigation; (3) subjective intent of the police; and (4)

subjective belief of the defendant. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim.

App. 1996); In re J.A.B., 281 S.W. 3d at 65; In re M.R.R., 2 S.W.3d at 323. Because the

determination of custody is based on primarily objective circumstances, whether the

law enforcement officials had the subjective intent to arrest is irrelevant unless that

intent is somehow communicated to the suspect. Stansbury, 511 U.S. at 323, 114 S. Ct. at

1529; Dowthitt, 931 S.W.2d at 254; Jeffley, 38 S.W.3d at 855; In re M.R.R., 2 S.W.3d at 323.

        The following situations generally constitute custody: (1) when the child is

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

enforcement officer tells the child 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; or (4) when there is probable

cause to arrest and law enforcement officers do not tell the child that he is free to leave.

Dowthitt, 931 S.W.2d at 255; Jeffley, 38 S.W.3d at 855.

        However, merely being the focus of an investigation does not amount to being in

custody. Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990); Martinez, 131 S.W.3d

at 32. ‚Words or actions by the police that normally attend an arrest and custody, such

as informing a defendant of his Miranda rights, do not constitute a custodial

interrogation.‛ Roquemore, 60 S.W.3d at 868. When the circumstances show that the


In the Matter of C.M., a Juvenile                                                      Page 9
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, 778-79 (Tex. Crim. App. 1987); Martinez, 131

S.W.3d at 32.

        ‚The mere fact that an interrogation begins as non-custodial, however, 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; Jeffley, 38 S.W.3d at 856.

First Statement

        C.M. complains that he was in custody at the time he made the first statement to

Hines while he was sitting on the back of Charles’s truck. Although the officer who

initiated contact with C.M. and brought him back to the residence told him he could not

leave, no other indicia of an arrest were present. C.M. was not handcuffed or otherwise

restrained, nor did the officers make any threats that he would be forcibly taken if he

attempted to leave. At that time, C.M. was at most a suspect but there was no probable

cause to believe that he had committed the robbery. The shotgun and money from the

robbery were found under Charles’s porch stairs after C.M. had made his first two

incriminating statements but not because of C.M.’s statements. C.M. stated that he had

thrown them away while hiding from the police.          There was no other evidence

regarding whether C.M. subjectively felt he was in custody or not.         Viewing the


In the Matter of C.M., a Juvenile                                                 Page 10
evidence in the light most favorable to the trial court’s ruling, we find that C.M. was not

restrained to the degree associated with a formal arrest. He was not in custody and

therefore, the officers were not required to give the required warnings and

admonishments. The trial court did not abuse its discretion in denying the motion to

suppress the first statement made by C.M.

Second Statement

         Hines testified that because of the noise and activity at the residence that he took

C.M. to an unmarked police vehicle so that he could speak with him with fewer

distractions. Hines testified that he told C.M. on the way to the vehicle that he was not

under arrest. C.M. willingly followed Hines to the vehicle and got in the passenger side

front seat to speak with Hines. The audio recording demonstrates that C.M. was calm

and apparently wanted to tell his story to Hines. There were no threats or other

statements that indicated that C.M. was not free to leave or was forced to make the

statement on the audio recording. After the statement was given, Hines told C.M. at

that time that he was under arrest. During the time of the making of this statement, the

only other evidence connecting C.M. to the robbery was a resemblance between C.M.

and the individual shown on the video recording of the robbery from the convenience

store.    There was no other evidence regarding C.M.’s subjective beliefs regarding

whether he was in custody or free to leave when he made the second statement.

Viewing the evidence in the light most favorable to the trial court’s ruling and giving


In the Matter of C.M., a Juvenile                                                     Page 11
deference to the trial court’s determinations of fact, we find that C.M. was not in

custody until after he made the second statement. The trial court did not abuse its

discretion by denying the motion to suppress the second statement because C.M. was

not in custody when the statement was made. We overrule issue one.

                                    PRESENCE OF CUSTODIANS

        In his second issue, C.M. complains that the trial court abused its discretion by

denying his motion to suppress his third statement made at the police department

because Charles and Laura were not allowed to speak to him prior to his making the

statement nor were they allowed to accompany C.M. to the police department. Rather,

they were affirmatively told that they could not speak with C.M. or accompany him

when they asked the officers, which C.M. contends is a violation of section 52.025(c) of

the Family Code, which states that ‚*a+ child … is entitled to be accompanied by the

child’s parent, guardian, or other custodian or by the child’s attorney.‛ TEX. FAM. CODE

ANN. § 52.025(c) (West 2008). However, there is no requirement that such a person be

present. See Cortez v. State, 240 S.W.3d 372, 380 (Tex. App.—Austin 2007, no pet.).

        The burden of proof is on the child to establish a causal connection between a

statutory violation of section 52.025 and his statement. See Gonzales v. State, 67 S.W.3d

910, 913 (Tex. Crim. App. 2002) (holding that suppression required only when there is

causal connection between violation of parental notice requirement and receipt of

juvenile’s statement). While the issue in Gonzales involved a violation of section 52.02(b)


In the Matter of C.M., a Juvenile                                                     Page 12
relating to prompt parental notification, the same causal connection is required to

render a statement inadmissible for a statutory violation of section 52.025(c). See Cortez,

240 S.W.3d at 380-81.

        Charles and Laura testified that if they had been able to speak with C.M. they

would have advised him not to make any statements prior to him speaking with an

attorney. Charles opined that C.M. would have heeded his advice because Charles had

been in trouble with the law previously. However, when later recalled as a witness,

Charles stated that he was unsure whether C.M. would have listened to his advice or

not.

        On the recording of C.M. at the police department, C.M. never requested the

presence of Charles or Laura.       C.M. had admitted that he committed the robbery

because he was trying to get away from their residence because he was not happy there.

C.M. is a distant cousin of Charles and had resided with Charles and Laura only for

approximately two months prior to the robbery. Prior to that, he had lived in Dallas his

entire life. In fact, when Charles reminded C.M. of his doctor’s appointment scheduled

that day, C.M. told Charles that he would not go, which could be construed as evidence

of C.M.’s refusal to act in accordance with Charles’s directions. Even if we assume

without deciding that section 52.025(c) was violated, when viewing the evidence in a

light most favorable to the trial court’s decision, C.M. did not establish a causal




In the Matter of C.M., a Juvenile                                                   Page 13
connection between the alleged violation and his third statement. We overrule issue

two.

                                    WAIVER OF RIGHTS

        In his third issue, C.M. argues that the third statement should have been

suppressed because he did not affirmatively waive each of the rights set forth in section

51.095(a)(1)(A) and therefore the statement was not made in compliance with section

51.095(a)(5).

Relevant Statutes

        Section 51.095(a)(5)(A) of the Family Code provides the statement of a child

made while in custody is admissible if:

        (5) the statement is made orally under circumstances described by
        Subsection (d) and the statement is recorded by an electronic recording
        device, including a device that records images, and:
        (A) before making the statement, the child is given the warning described
        by Subdivision (1)(A) by a magistrate, the warning is a part of the
        recording, and the child knowingly, intelligently, and voluntarily waives
        each right stated in the warning.

TEX. FAM. CODE ANN. § 51.095(a)(5)(A) (West 2008). The warnings required to be given

by section 51.095(a)(1)(A) are as follows:

        (i)     the child may remain silent and not make any statement at all and
                that any statement that the child makes may be used in evidence
                against the child;
        (ii)    the child has the right to have an attorney present to advise the
                child either prior to any questioning or during the questioning;
        (iii)   if the child is unable to employ an attorney, the child has the right
                to have an attorney appointed to counsel with the child before or


In the Matter of C.M., a Juvenile                                                       Page 14
                during any interviews with peace officers or attorneys representing
                the state; and
        (iv)    the child has the right to terminate the interview at any time.

TEX. FAM. CODE ANN. § 51.095(a)(1)(A) (West 2008).

        Article 38.22, section 3(a) of the Texas Code of Criminal Procedure provides that

no oral statement of an accused shall be admissible unless:

        (2) prior to the statement but during the recording the accused is given the
        warning in Subsection (a) of Section 2 above and the accused knowingly,
        intelligently, and voluntarily waives any rights set out in the warning.

TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005).

Analysis

        The language in section 51.095 of the Family Code is substantially the same as

that contained in article 38.22 of the Code of Criminal Procedure with the exception that

the Family Code requires that a magistrate administer the warnings to the child. The

Court of Criminal Appeals has determined that article 38.22 does not require an express

waiver of rights. Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000). Additionally,

this Court has previously held that there is no requirement that a juvenile explicitly

waive his rights pursuant to section 51.095 of the Family Code or article 38.22 of the

Code of Criminal Procedure. See In re J.L., No. 10-06-00246-CV, 2007 Tex. App. LEXIS

8909 at *13 (Tex. App.—Waco Nov. 7, 2007, no pet.) (mem. op.). Rather, an implicit

waiver can be inferred from the actions and words of the person being interrogated. See

Joseph v. State, 309 S.W.3d 20, 23 (Tex. Crim. App. 2010) (quoting North Carolina v. Butler,


In the Matter of C.M., a Juvenile                                                      Page 15
441 U.S. 369, 373, 99 S. Ct. 1755, 1760, 60 L. Ed. 2d 286 (1979)); see also Marsh v. State, 140

S.W.3d 901, 911 (Tex. App.—Houston *14th Dist.+ 2004, pet. ref’d) (construing TEX. FAM.

CODE ANN. § 51.095 consistently with TEX. CODE CRIM. PROC. ANN. art. 38.22).

        As shown on the video recording of the third statement, C.M. was read the

required warnings by the magistrate. During that meeting with the magistrate, C.M.

indicated he understood his rights, including his right to have an attorney present and

to terminate the interview at any time. C.M. stated he understood those rights and

answered affirmatively when the magistrate asked him if he still wanted to talk with

the detectives.      Following this, appellant proceeded to give his statement to the

detectives. Based on this implied waiver, the trial court’s denial of the motion to

suppress because C.M. knowingly and intelligently waived his rights is supported by

sufficient evidence. C.M.’s third issue is overruled.

Conclusion

        Having found no error in the trial court’s denial of the motion to suppress the

statements, we affirm the trial court’s orders of adjudication and disposition.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 22, 2012
[CV06]
In the Matter of C.M., a Juvenile                                                      Page 16
