### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 6 -00 359 -CR

M anue l C or te z , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 167TH JUDICIAL DISTRICT NO. D-1- DC-05 -90 0845 , HO NORAB LE F RED A. MO ORE , JUDGE PRESIDI NG

O P I N I O N A jury found appellant Manuel Cortez g uilty of murder

and asse ssed his punishment at ninety -nine y ear s’ imprisonment. See Te x. Pe na l Co de Ann. § 1 9. 02 (We st 2 00 3) . In f our p oin ts of er ror, a ppellant contend s that the trial cour t erre d by admitting in evidenc e stateme nts he made to p oli c e of

fi c e rs and his mot he r t hat he argue s w e re un lawf ull y ob tai ned
. F ind ingno re ve rs ibl e
err or, we aff

irm the judg ment of convic tion. I n o u r revie w of the tria l court’s ruling s admitting the c halleng ed stateme nts, we def er to t he c ourt ’s fi nd ing s o f f

a c t but r e vie w d e no vo the c ourt ’s a pp licat io n of th e law t o th os e fa c ts. Gu zm an v . S tat e , 9 55 S.W. 2d

85 , 8 9 ( Te x. Cr im. Ap p. 19 97 ); Ho rto n v . S tat e , 78 S.W .3d 701, 703 (Tex. App.—Austin 2002, pet. ref ’d). We re view the evidenc e in the light most fa vorable to the trial court’s r ulings a nd, wher e the c ourt did not make express finding s of fac t, w e assume that the cour t2

made f indings that are supported by the re cord a

nd buttress its conclusions. Se e Car mo uc he v . S

tat e , 10 S.W .3d 323, 327-28 (Te x . Crim. App. 2000).
BACK GR OUND Friday, Septem ber 23

On F ri da y a ft e rn oo n, Se pte mbe r 23 , 20 05 , a g ro up of Au sti n H ig h Sc ho ol s tud e nts had just g otten off the school bus when a Honda Ac cord pulled to the c urb beside the m. Wi tnesses to the s h o o t i n g t e s t i f

i e d t h a tt h e f

r o n tp a s s e n g e r

i nt h e c ar

s a i d s o m e t h i n g t o s i xt e e n - y e a r - o ld Christopher B riseno, who had just g otten off the bus. Then, severa l shots wer e fired from the c ar. B ri se no wa s fa ta lly sh ot in the he a d. Hi s sixtee n- y e ar- old c ou sin , Ada m Can tu, wa s sh ot i n th e le g s. As the investig ation continued over the coming day s and wee ks, it was lear ned that six persons ha d been in the c ar w hen the shots wer e fire d. I n the front seat wer e Alan Ruiz, who was the driver , and appellant, who was the front pa sseng er. In the bac k seat we re A lan Ruiz ’s brother Humberto, his sister Pamela, Juan Soliz , and Victor Saramiento.
Satu rday, September 24

I n it ia ll y , th e o n ly o c c u

p an t of th e A c c o r d id e n ti f

ie d to th e p o li c e w a s H u mb e rto Ru iz
. The da y af

t er t h e shooting, Austin police of fice rs went to the Ruiz residence , wher e they met Humberto, Ala

n, and appellant, who was six teen y ear s old. The three boy s ag ree d to speak to the office rs and wer e taken to the downtown police st ation, wher e they arr ived between 1:30 and 2:00 p.m., acc ording to the officer’ s testimony at t he suppression hear ing. The off icer s also testified thatI t is c le ar t hat th e Rui zes no t on ly

inc ri min a te d a

pp e lla nt, bu t they

a lso min imi zed

the ir 1 own involvement in the shooting. The re is evide nce that the police allowed the Ruiz es to leave the station on Saturday

beca use there was no p robable cause to hold them. By the time the police lear ned that they

had p l ay ed a c ulpable role in the shooting, the Ruiz family had fle d to Mex ico. Some months l ater , the t hree siblings re turned to Austin and we re a rre sted. They

wer e aw aiting tr ial fo r B ri se no ’s mur de r at th e tim e of a pp e lla nt’ s tr ia l. Appellant testified that he was taken to the police station at 12:30 p.m. and told that he wa s 2 be ingde ta ine d b e c a

us e he “ did

no t ha ve a lic e ns e .” Ap pe lla

nt s a id t hat he a sk e d to c a ll h is p a re nts , bu t th e of

fi c e rs wo uld

no t a llo w i t. A

pp e lla nt a lso te sti fi e d th a t he was no t allo we d to c a ll h is pare nts after

he wa s returne d to the police station and plac ed in the juvenile pr ocessingoffice
. 3 the y we re no t th e n a

wa re of a pp e lla nt’ s in vo lve me nt i n th e sh oo tin g . App e lla nt w a s n ot u

nd e r a rr e st
or re straint, and he w as allowe d to wait i n the l obby while t he Ruiz brothers w ere being questioned.

L ater that afte rnoon, Pamela Ruiz was also broug ht to th e p o li c e s ta ti o n, acc ompanied by her mother . At trial, a poli ce office r t estified that when Pamela wa lked past appe llant, who was still sitti ng in the lobby , she did a “ doubletake.”

Shortly afte r 4:00 p.m., appellant left the police station a nd walk ed t o a nearby
co n v en i en ce s t o re , wh er e h e c al l eda f ri en d fo r a ri d e. M ea n wh i l e, s t at em en t s b y t h e Ru i z s i b l i n gs g ave inve stigators rea son to believe that appellant was the per son who had fir ed the shots that killed Br iseno and wounde d Cantu. Offic ers be g an to look for a ppellant and f

ound him at the convenie nce 1 store. De tective Ar

mando B alder ama testified that at 4:50 p.m., appellant was r eturne d to the police statio n, a dv ise d th a t he wa s und e r a rr e st, and pla c e d in an in te rv ie w r oo m tha t w a s d e sig nate d a s a juvenile proc essing office
. See Tex. Fam. Code Ann. § 52.025( a) ( West 2002). 2

Ba lder ama testified that he aske d appellant if he wanted his pa rents to be notified. Ap pellant said that he did. B alder ama trie d to call appe llant’s mother, but he g ot no answer
. Ba lderama succ essfully

called a ppellant’s father a

nd told h i m t h at appellant was about to beAppellant’s mother testified that this call came from Rodrig uez. The off icer testified, 3 howeve r, that he ha d no further conver sations on Saturday with members of

appellant’ s family

afte r appellant’ s mother left the police station. 4 transfe rre d to the Gar dner- Be tts juvenile detention fac ility . Appellant w as then take n to another location to a

wait transfe r. Whil e they wer e waiting , appellant asked Ba lderama “how long Ithought he was g oing to have to . . . remain in jail.” B alder ama told appe llant that “he wa s g etting a head of himself, that he nee ded to wait and se e.” A ppellant’s question to B alder ama is the first of the thre e statements that appe llant urg es should have be en suppre ssed.

Detec tive Fr ank Rodrigue z testified that minutes a fter appellant was re turned to the po lic e statio n and pla c e d in t he int e rv ie w r oo m, h e e nc ounte re d a pp e lla nt’ s mo the r a

nd br oth e r i n the downstairs lobby . Th ey asked the office r for

appellant’ s where abouts, and he told them that appellant had been detained for a c rime that had be en committed the day befor e. Appe llant’s mother responde d that the police should a lso a rre st A lan Ruiz beca

use appellant had been with him all day on Fr iday . Rodrigue z testi fied that he neede d to go back upstairs wher e the inter views we re taking place , so he excused himself but told appellant’s mother that he would be “rig ht ba ck.” Rodriguez said that when he later r eturne d to the lobby , appellant’ s mother and br other we re g one.

Appellant’s mother

testified that she we nt to the p olice station at 2:00 p.m. after
rec e iv in g a te le p h o n e c a ll f r o m A la n Ru iz s ay in g th a t a

p p e ll an t h a d b e e n ar

r e s te d
. Sh e s a id

that Rodrigue z tol d her that a

ppellant was being questioned and that she could not see him. She testified that afte r she r eturne d to her home, a police off

icer called he r and told her

that appellant wa s being
c ha rg e d w ithmur de r, that sh e c ou ld no t se e him , a nd that he wa s g oin g to b e take n to Ga rd ne r- B e tts
. 35

She s a i d t h a t s h e m a d e n o e f f o rt t o s e e a

p p e l l an t t h a t d ay b e c a

u s e s h e d i d n o t h a v e p e rm iss ion to do so. Richard B ratton wa s the intake off icer at Gar dner- Be tts on the evening of September 24 , 2 00 5. B ratto n te sti fi e d th a t up on a pp e lla nt’ s arr iva l, he a dv ise d a

pp e lla nt of his ri g hts wh ile in detention and c alled his family
. Br atton spoke to a per son who he be lieved wa s appellant’s br other, wh o w a s in

tur n s pe a kin g to a

pp e ll ant ’s mothe r i n Sp anis h. B ra tto n to ld a

pp e lla nt’ s f a mil y so me of the de tails of the offe nse for which appe llant had bee n arr ested, e x plained appe llant’s rig hts, and informed them of the visitation hours at the fac ility
. Appellant’s family was not able to visit him at Gar dner- Be tts that night beca use the intake proce ss w as not c ompleted until af ter 9:00 p.m., when visitation ended.
Sun day, September 25

At 11 :00 a .m. Sun da

y mor nin g , Ro dr ig ue z an d ano th er of fi c e r, He c tor

Re ve le s, tr ans po rt e d a

pp e lla nt f ro m Gard ner- Betts to t

he po lic e statio n s o th a t he c ou ld b e a dv ise d o f h is rig hts by a mag istrate. Se e id . § 51.095(a) (West Supp. 2006). Rodrigue z and Reveles testified that appellant wa s not que stioned during the drive, but that a ppellant asked Reveles if the police “ wanted the g un” or w anted to kn o w “w h er e the g un was.” Reveles sa id that he told appellant that they would “talk about that later.” Appellant’s question reg arding the g un is the second state ment that he soug ht to have suppre ssed.

Af te r b e inga dv ise d o f h is r ig hts by the ma g istra

te , a pp e lla nt wa s take n to the juv e nil e pr oc e ssi ngof

fi c e . H e re fu se d to g ive the of fi c e rs a state me nt and ask ed to sp e a k to his pa re nts
. There was no tele phone in the room, so Rodrig uez dialed the number on his c el l p h o n e, gav e the6

phone to appe llant, and stepped outside. Thr oug h a microphone located in the r oom, Rodrigue z he ard a pp e lla nt t e ll h is m oth e r t

hat he ha d f

ir e d tw o sh ots bu t ha d n ot h it a ny on e , a nd that A lan Ru iz ha d f ir e d th e fata l sh ots . T his is the la st o f t he thr e e c ha lle ng e d s ta te me nts
. The trial The juvenile court wa ived its jurisdiction and transfer red a ppellant to district court for tria l. Se e id . § 54.02 (West 2002). At the trial, Cantu identified a ppellant as the f

ront passeng er in th e Ac co rd and as the per son who shot him and Brise no. J ose Ortiz, another student who witnessed the shooting, also identified appellant as the front passeng er and shooter. B oth Cantu and Ortiz were c erta i n that the driver of the c ar ha d not fired the shots. Another by stander, E steban Z uniga, di d n ot i de nti fy a pp e lla nt, bu t he did

te sti fy (w ithso me e qu ivo c a tio n d ur ingc ro sse xami na tio n) that th e fr on t pa sse ng e r w a s th e pe rs on wh o f ir e d th e sh ots
. J uan Soliz , one of the back se at passeng ers in the Ac cord, ide ntified the other
oc c up ants of

the ve hi cle. H e sa id H umb e rt o Ru iz to ld h im that Pame la wa s h a vin g tr ou

ble wi th Br iseno and Cantu at sc hool. As the ca r appr oache d the bus stop, Alan Ruiz took a pistol out of the console be tween the front seats and hande d it to appellant. When the car st opped, appe llant called
ou t to B ri se no , “ Ar e y ou B loo ds ? ” B ri se no sa id, “ No .” Ap pe lla nt the n a sk e d A lan Ru iz if he sh ou ld “[g]ive it to them.” Alan said that he shoul d, and appellant beg an firing. Soliz t estified that Alan did not threaten a

ppellant or other

wise for ce him to shoot. Soliz said that he was cer tain that Alan Ruiz did not fire the gun, but he was not sure whether or not H umberto Ruiz had fire d the wea pon. Soliz also testified that on the da y afte r the shooting , afte r l ear ning that one of the vic tims had died, appellant sa id “it was g ood so they will not mess with t hem ag ain.”7 Although the y

did no t testify , there was e vidence that two other witnesse s to the shooting identified some one other t h an appe llant as the shooter. Rodriguez testified that Victor Sara mie nto , a no the r p a sse ng e r i n th e Ac c or d, g a ve a state me nt t o th e po lic e tha t w a s c on sis te nt w ith wh a t app e lla

n tt o l d h i s m o t h e r ; t h a ti s , t h a tA l anR u i z h a d f i r e d t h e f a t a l s h o t s . R o dr i g u e z a lso testified that Elvia He rnande z, who lived near the sce ne of the shooting, told offic ers that she was sittin g on he r po rc h w he n th e sh oo tin g oc c ur re d a nd that th e “ ba c k p a sse ng e r” ha d f ir e d th e sh ots
. I n his ow n testimony , appellant acknow ledg ed being the front passeng er in t he Acc ord. He said that afte r he acc epted a ride from Alan Ruiz , Ruiz showed him a pistol i n the console a nd told him that “he had to kill two students w ho wer e in sc hool be cause they wer e messing with his sis ter.” After

picking up the other pa sseng ers at the s chool, Ruiz followed the bus. As they drove, Ruiz handed the pistol to appellant and told him, “You’r e g oing to kill him.” When appellant protested, Ruiz said, “Okay . Well, jus t tell him—ask him some questions, thing s I want to know.” When Br isen o g o t o f

f th e b u s , Pame la

Ru iz p o in te d

an d s a id , “ L o o k , it ’ s h im
. ” A t A la nRu iz ’s insistence, appe llant asked Briseno if he was a B lood. Brise no denied it. Pamela Ruiz said, “He’ s te lli nglie s. He ’s the on e that wa s mes sin g wi th me .” Th e n she sa id, “ Ki ll him. Ki ll h im. ” With that, Alan Ruiz reache d acr oss a ppellant and beg an firing . Acc ording to appellant, Ruiz t hen hande d the pistol to hi m and orde red him to shoot. Appellant testified that he was a fra id of Ruiz , and that he fire d two shots into t he air
.

The c ourt’s jury

char g e included a

n instruction on the law of pa rties. See Tex. P enal Code Ann. §§ 7.01, .02 (West 2003). The char g e authorized appellant’ s conviction for murder if the8

jury found that appe llant, acting alone or with othe rs as a par ty , cause d Br iseno’s death. Appellant do e s n ot c ha lle ng e the su ff ic ie nc y of the e vid e nc e to s us ta in t

he jur y ’s ve rd ic t.
STATE MENTS TO OF F ICERS I n point of err or one, appellant contends that the offic ers who took him into custody
o n th e a f te r n o o n o f Se p te mb e r 2 4 f

a il e d to p r o mp tl y n o ti f

y h is pare nts. Se e id . § 52.02(b)( 1) (West Supp. 2006) (providing that person takingchild i n t o custody shall promptly

g ive notice of action and statement of re ason to child ’s p ar en t , gu ardian, or custodian). I n point of err or two,
a pp e lla nt fu rt he r c on te nd s that he wa s no t a llo we d to have his pa re nts wi th him

in th e ju ve nil e proce ssing of

fice
. Se e id . § 52 .0 25 (c ) ( Wes t 20 02 ) ( pr ov idi ngthat c hil d d e ta ine d in juv e nil e proce ssing of

fice is entitled to be acc ompanied by pare nt, gu ar d i an , custodian, or attorney ). Appellant ar g ues that his question to Balde rama about how long he woul d re m ai n in jail was the inadmissible fruit of t h es e v i o l ati ons. See Tex. Code Crim. P roc. A nn. art. 38.23 (West 2005) (exclusionary

rule). I n point of err or three , appellant c ontends that his remar k to Reveles re g arding the g un sh ou ld a lso have be e n s up pr e sse d a s th e pr od uc t of the se juv e nil e c od e vio la tio ns . Section 52.02(b)(1)

The fa ilure to comply

with the section 52.02(b) (1) notice require m en t will render inadmissible any

subsequent stateme nt by the child that is obtained as a resul t o f the statutory violation. Horton , 7 8 S
. W
. 3 d at 7 0 5 (c i t i n g Go nz ale

s v . S tat e , 67 S.W .3d 910, 913 (Tex. Crim. App. 2002)). Appe llant did not allege a violation of that sec tion in his motion to s uppre s s , h e did not mention the statute at t h e s uppression hea ring , and he did not cite the statute in his post-hearing9

memorandum of la

w to the trial cour

t. S e e H i l l v . Stat e , 7 8 S .W.3d 374, 382 (Tex. App.—Ty ler 2001, pet. re f’d) ; Tex. R . App. P. 33.1(a).

As su min g the iss ue is p ro pe rl y be fo re u s, no vio la

tio n o f s e c tio n 5 2. 02 (b )( 1) is sh o w n . T h e juv e n il e c o d e d o e s n o t d e f in e w h a t is me an t b y “ p r o mp t” n o ti f ic a ti o n . Whethe r the statute has bee n complied with must be determined unde r the circ umstances of the pa rticular c ase. Ra yv . S tat e , 17 6 S. W.3 d 5 44 , 5 48 (T e x. Ap p. —H ou sto n [1s t D ist .] 20 04 , p e t. r e f’ d) ; Va nn v . S tat e , 93 S.W. 3d

18 2, 18 5 ( Te x. Ap p. —H ou sto n [14t h Di st .] 2004 , p e t. r e f’ d) . A mon g the fa c tor s to consider are the l eng th of t ime the j uvenile was in custody befor e notice w as g iven, whethe r notice
was g iven befor e or afte r the police obtained a statement fr om the juvenile, the ea se with which the police wer e ultimately able to c ontact the appropr iate adult, and what the police did dur ing the period of dela y . Vann , 93 S.W .3d at 185. We defe r t o the t rial court’s finding s of hi storical fact, but we revie w de novo the c ourt ’s application of the law to those fa cts. In re C.R. , 995 S.W .2d 778, 782 (Tex. App.—Austin 1999, pet. denied).

I n C.R. , the juvenile wa s taken into custody by the police at 11:00 p.m. Id . at 782. After his mother twice c alled the police stat i o n t o l ea rn what was happe ning to he r son, she wa s called by an off icer at 1:00 a .m. a

nd told that her son was not in custody , that he was “ helping ” the
o f f ic e r s “ o n a jo b , ” an d th a t it w a s n o t n e c e s s ar y f o r h e r to c o me to the station. Id
. I n fac t, the juvenile was be ing que stioned about his involvement in a murder
. Id . at 780. At 5:00 a.m., the juvenile’s mother

was notified tha t h e had be en take n to the juvenile detention fa cility
. Id . at 782. The mother’ s testimony was not refuted by

the State’s witnesses; in fa ct, the off icer who q u es t i o n ed the juvenile conc eded that he had made no eff ort to contac t her. Id . This CourtBe cause we view the evidenc e in the l i gh t most favorable to the trial court’ s ruling, w e 4 infer that the court did not believe appellant’s testim ony at t he suppre ssion hearingthat he wa s taken into custody

at 12:30. 10 c o n c lu d e d th a t th e St a te h a d f a il e d to s h o w th a t th e juv e n il e ’ s s tate me n t w a s ta k e n in compliance with section 52.02(b). Id . at 783.

The fa cts befor e us in this cause a re considera

bly differ ent. Although the testimony
re g ard ingthe re le va

nt t ime fr a me wa s n ot d e ta ile d to t he mi nu te, it is c le ar t hat on ly a sh or t ti me pa sse d b e tw e e n a

pp e lla nt b e ingtake n in to c us tod y and the no tif ic a tio n o f h is p are nts . B a lde ra ma testified that he c alled appe llant’s fathe r and notified him that appe llant was in custody minutes after ap pellant was pla ced in the juve nile proce ssing of fice
. Ro dr igu e z t e s ti f

ie d th a t h e encounte red 4 appellant’ s mother in the police station l obby minutes after

appellant wa s arr ested a

nd told her that appellant ha d been de tained for a cr ime committed the previous day
. Fi n al l y , ap p ellant’s mother testified that a police office r ca lled her after she returned home and tol d her that appellant ha d been
arr ested for

murder. T he evide nce r efle cts that appe llant was not questioned by the police be fore notice of his ar

rest wa s g iven to his parents, and the challeng ed stateme nts were made a fter notice was g iven. Appellant a

rg ues that B alder ama’ s telephone call to his fathe r and Rodriguez’s statement to his mother in the lobby did not comply

with section 52.02(a) (1) be cause neither of fice r said that appellant wa s being investigated for mur der. Se e id . Acc ording to appellant’s mother , howeve r, an office r ca lled her soon a fter she retur n ed h o m e and told her that appe llant had bee n arr ested for murder. A nd unlike C.R. , the re is no e vid e nc e that the po lic e mis le d a pp e lla nt’ s p are nts a

bo ut h is status or attempted to question him before his parents we re pr operly notified.Ap pe lla nt t e sti fi e d th at he was no t to ld t hat he ha d a

ri g ht t o h a ve his pa

re nts wi th h im. 5 He wa s not asked and did n o t s ay wh et her he would have invoke d that rig ht. Appellant does not 11 We conclude that appellant’ s pare nts wer e promptl y notified as required by section 52.02(b)( 1). See R ay , 176 S.W .3d at 550-51 (holdingthat notice to par ents over e ight hour s after
arr e st w a s p ro mpt

wh e re of fi c e rs ha d d ili g e ntl y

so ug ht t o c on ta c t pa

re nts wi thout

su c c e ss) ; Vann , 93 S.W .3d at 185 (holding that notice to custodian two-and- a-ha lf hours af ter a rre st was prompt); In re J .B.J. , 8 6 S. W.3 d 8 10 , 8 15 -1 6 ( Te x. Ap p. —B e a umo nt 2 00 2, no pe t.) (h old ingthat no tic e to pa re nts on e -a

nd -a -h a lf ho ur s a ft e r a

rr e st a nd a ft e r r e pe a te d atte mpt s w a s p ro mpt ); Hi ll , 78 S.W .3d at 383-84 (holdingthat notice to pare nts over four hours afte r arrest was not prompt where office rs made no e ffor

t to contact par ents ea

rlier, be fore juvenile made statement). Section 52.025(c)

A c hil d b e inghe ld i n a

juv e nil e pr oc e ssi ngof

fi c e may no t be le ft

un a tte nd e d a

nd is entitled to b e acc ompanied by his parent. Te x . Fam. Code Ann. § 52.025(c) . The statute doe s not require that a p ar en t b e prese nt, however
. Se e Le on ar d v . S tat e , No. 01-93-01066- CR, 1997 Tex. App. L EXI S 51, at *3 (Tex. App.—H ouston [1st D ist.] J an. 9, 1997, no pet.) (not de signated fo r p ub lic a tio n) . The re c or d b e fo re us su pp or ts a fi nd ingthat a

pp e lla nt d id n ot a sk

fo r h is p a re nts
and that a pp e lla nt’ s p are nts did

no t a sk to b e pr e se nt. Rod ri g ue z te sti fi e d th a t a

pp e lla nt w a s mon ito re d fo r the e nti re tim e that he wa s h e ld in t he juv e nil e pr oc e ssi ngof fi c e and that he ne ve r a sk e d to have his pa re nts wi th him . B a lde ra

ma te sti fi e d to the same e ff

e c t. Ev e n ap pe lla

nt, wh o te sti fi e d th a t he a sk e d to sp e a k to his pa re nts , d id not testify that he wanted one or both of them to be pr esent with him in the proce ssing of fice
. The 5contend that the police wer e oblig ated to advise him of hi s rig ht to have his pare nts present, a nd we express no opinion reg ardingthat issue. 12 e vid e nc e su

pp or ts the tr ia l c ourt ’s imp lie d fi nd ing that a pp e lla nt did no t re qu e st the pr e se nc e of his pare nts in the processingoffice
.

Th e re is n o e vid e nc e that a pp e lla nt’ s fathe r a sk e d to s pe a k to or be wi th h is s on

wh ile he wa s detained in the processing office
. Appellant’s mother testified that she a sked to see a ppellant while s he was at t he poli ce station on the afternoon he was arre sted, but this request was de nied. Her testimony was c ontradicte d by

Rodrigue z, who testified that appellant’s mother did not ask to see h er s o nb ef o re l ea v i n g t h e p o l i ce s t at i o n . T h e t ri al co u rt , as t ri er o f f ac tat t h e su p p re s s i o nh ea ri n g,
c ou ld r e a so na

bly c on c lud e fr om the of

fi c e rs ’ te sti mony that ne ith e r of a pp e lla nt’ s pa re nts a sk e d to be with appe llant while he wa s detained in the pr ocessing office
. Causal connection Even if a ppellant’s par ents wer e not promptly notified of his arr est or appe llant was denied the r ight to have his pare nts with him in the juvenile proc essing office on Saturday afte rnoon,
no c a us a l c on ne c tio n h a s b e e n s ho wn be tw e e n the se a lle g e d vio la tio ns and a pp e lla nt’ s st a te me nts to the t wo offic ers. See G onzales , 67 S.W .3d at 913 (holding that suppression re quired only when there is c ausal connec tion be tween violation of pare ntal notice require ment and re ceipt of juve nile’s statement). Ne ither statement was made while appellant was in the juvenile proc essing office , and thu s h is p are nts wo uld

no t ha ve been presen t. T his dis tin g uis he s th e ins tant c a se fr om Sta te v. Simpson , 1 0 5 S
. W
. 3 d 2 3 8 (T ex . Ap p . — T y l er 2 0 0 3 , n o p et
. ), o n wh i ch ap p el l an t re l i e s . In Simpson , a juvenile wa s interrog ated a nd g ave a w ritten confe ssion to participating in a ca pital13

murder be fore his parents we re notified, more than forty -eig ht hour s following his a rre st. Id . at 240. The court found a ca

usal conne ction betwee n the lack of notice and the statement, say ing that there
wa s “ no thi ngin t

he re c or d to ind ic a te that e ith e r o f [Si mps on ’s ] pare nts wo uld have a dv ise d [hi m] to make or sig n a st atement impl icating himself in the commission of capital murder ” had the y been prese nt during the interrog ation. Id . at 243.

Appellant hy

pothesizes that if his pare nts had come to the juvenile proc essing office , they would have a dvised him a g ainst making any statements or having any conver sations with the police. Ac ceptingthis hy

pothesis as true, we are not pe rsuade d that this advice would have dete rre d appellant from making the two statements at issue. The trial c ourt found that the state ments were not the pr od uc ts o f i nte rr og a tio n, and the e vid e nc e su pp or ts this fi nd ing
. I n fa c t, the e vid e nc e re fl e c ts that on both occa sions, appellant and the office rs wer e not even e ng ag ed in conve rsation when he spontaneously made the challeng ed rema rks. We f

ind no causa l c onnection betwee n t h e two statements and the office rs’ alleg ed failure to promptly notify appellant’ s pare nts of his arre st and the alleg ed denial of appellant’ s rig ht to have his parents with him in the juvenile proce ssing of fice
. Harm less error

Even if a ppellant’s rig hts under the juvenile c ode we re violate d and eve n if there wer e
a ca usal conne ction betwee n these violations a nd appellant’ s statements to the office rs, we c onclude that the admis sion of the statements did not aff ect a ppellant’s substantial rig hts. See Tex. R. App. P. 4 4. 2( b)
. Ap pe lla

nt’ s que sti on to B a lde ra

ma inq uir ing ho w lon g he wo uld have to re ma in i n ja il sh ow e d th a t a

pp e lla nt w a s c ur iou s a

bo ut t he se ri ou sn e ss o f h is s it uat io n. Th is c ur ios ity is understanda

ble and not par

ticularly incriminating . The statement to Reveles reg arding the gun was14

a more serious matter be cause it im p l i ci tly showed that a

ppellant had some know ledg e about the shooting a

nd the wea

pon. Stil l, the statement does not nec essar ily compel the c oncl u sion that appellant wa s g uilty

of t he murder. Appellant could have been offer ing to disclose inf ormation he h a d le ar n e d f r o m s o me o n e e ls e , s u c h a s A la nRu iz
. I n a ny e ve nt, a pp e lla nt’ s in vo lve me nt i n th e sh oo tin g wa s no t a c on te ste d is su e a t hi s trial; only the nature of that involvement wa s in question. I n his own trial t es t i m o ny , appellant
a dmi tte d b e ingin t

he c ar an d fir ing tw o sho ts, a lbe it into the a ir
. Ev e n if the c ha lle ng e d s ta te me nts had not bee n admitted, appellant would have had little choice but to admit his involvement in light of t he ey ewitness testimony identify ing him as the front passe ng er a nd his mother’s statement to the police that appe l l an t had spent the da y of the shooting with Alan Ruiz . I n light of a ppellant’s te sti mony , a

ny e rr or in t he a dmi ssi on

of a pp e lla nt’ s q ue sti on to B a lde ra

ma re g ard ing ho w muc h ti me he mig ht spend in jail and his question to Reveles as to whethe r the police wanted the g un may be di s re g arde d as har

mless. These r emar

ks to the office rs mere ly

confirme d what appe llant did not contest: that he wa s prese nt in the car from which the shots were fired.
STA TEM EN TS TO M OTHE R I n h is four

th p oin t of

e rr or , a pp e lla nt c on te nd s th a t Ro dr ig ue z un lawf ull y
eave sdropped on his te lephone conver sation with his mother on Sunday afte rnoon, September 25,
a ft e r he h a d b e e n ta

ke n b e fo re the ma g istra

te . H e argue s th a t th e us e of a hid de n mi c ro ph on e to lis te n to his c on ve rs a tio n v iol a te d h is r e a so na ble ex pect ati on

of pr iva c y un de r t he F ourt h Amendment. He further

argues t h at t he off

icer ’s conduc t constituted an unlawful, una uthorized15

interce ption of an ora l communication. See Tex. C o d e Crim. Proc. Ann. a rt. 18.20 (West Supp. 2006).
Four th Amen dment The F ourth Amendment ser ves to safe g uar d an individual’s privacy from
unrea sonable g overnme ntal intrusions. Ri c ha rd so n v . S tat e , 865 S.W .2d 944, 948 (Tex. Crim. App. 1993). A de fenda

nt may challeng e the admission of evide nce obta ined by g overnme ntal intrusion only if he ha d a leg itimate e x pectation of privac y in the place invaded. Ra k as v . I lli no is , 4 39 U. S. 12 8, 14 3 ( 19 78 ). To de te rm ine wh e the r a pe rs on ha d a re a so na ble e xpe c ta tio n o f p ri va c y , it mus t be dete rmined whe ther the per son exhi bited a subjec tive expectation of privac y and, if so, whe ther that subjective e x pectation is one that society is willi n g t o recog nize as rea sonable. Sm ith

v. Ma r yland , 4 4 2 U
. S. 7 3 5 , 7 4 0 ( 1 9 7 9 )
. I nth is c a s e , a p p e ll an t e xh ib it e d

a s u b je c ti v e e xp e c tati on of privac y

while speaking to his mother; the que stion present ed is whether this expectation
was re asonable
.

Whether a subjec tive expectation of privac y is one that society

rec og nizes as
rea sonable is a question of law. Vi lla rre al v . S tat e , 935 S.W .2d 134, 138 (Tex. Crim. App. 1996). Am on g the fa c tor s to c on sid e r in an sw e ri ng thi s que sti on are wh e the r t he a c c us e d: h a d a

pr op e rt y
or po sse sso ry

int e re st i n th e pla c e inv a de d; w a s le g itima tel y in the p la c e inv a de d; h a d c omp le te dominion or control and the rig ht to exclude others; t ook normal precautions customarily taken by those seeking p ri v acy ; put the place to some pr ivate use; a nd has a c laim of privac y consistent with historical notions. C a l l o w a y v . Stat e , 7 4 3 S.W .2d 645, 651 (Tex. Crim. App. 1988). A
c on sid e ratio n o f t

he se fact ors leads us to c on c lud e that a pp e lla nt d id n ot h a ve a

re a so na bleT h e r e w a s n o te le p h o n e in th e in te r v ie w r o o m. T h e r e f

o r e , w e a s s u me th a t th e r e wa s no 6 sign w arningthat telephone c alls from the room we re monitored. 16 expectation of privac y in the police interview room that doubled as the juve nile proce ssing of fice
. 6 Appellant had no prope rty or possessory

interest in the off

ice, no dominion or control of the offic e, and no rig ht to ex clude other s from the off ice. Appe llant was leg itimately in the office only

in the sense that he had bee n lawfully taken into custody

by the police. Although appellant put the office to a priv a te u s e , th e r e is n o e v id e n c e th a t h e a s k e d Ro dr igu e z to le a v e th e r o o m o r to o k any prec autions to ensure his priva cy . Finally , appellant’ s claim of privac y in a poli ce station int ervie w
r o o m i s n o tc o n s i s t e n tw i t h h i s t o r i c a l n o t i o n s o f p r i v a c y. A simil ar ca s e was re cently considere d by

the cour t of criminal appe als. I n Sta te v. Sche ineman , Scheineman a nd his co-def

endant we re a

rre sted and plac ed in sepa rate interview
ro oms . 7 7 S. W.3 d 8 10 , 81 1 (T e x. Cr im. Ap p. 20 02 ). Th e c o- de fe nd ant a sk e d a de pu ty if he c ou ld speak alone with Sche ineman. Id
. The deputy ag ree d, moved Scheinema n into the room occupie d by the co-de fenda

nt, a nd left the two of the m alone. Id
. The two men the n discussed their c riminal conduct while, unbe knownst to them, office rs monitored and r ecor ded their c onversation. Id
. Scheineman a

rg ued that the deputy ’s conduct had “lulled” him a nd his c o-def

endant into believing that their conver sation was private and there by g ave them a leg itimate expectation of privac y . Id
. The court of criminal appea ls disag ree d. The court observe d that a loss of privac y i s an inhere nt incident of confine ment, whether in a jail c ell or a police station interview room. Id . at 813. Afte r noting that there was no evidenc e that the de puty had g iven the two def

endants a ny verba l assuranc e of privac y , the cour

t held that society

is not prepa

red to rec og nize a leg itimate expectation of privac y17

in a conve rsation betwe en two arr estee s in a county law enf orce ment building, eve n if the ar restee s
are the only

persons pre sent and subjec tively believe that they

are unobserve d. Id
. The e vidence befor e us shows that Rodrig uez dia led appellant’ s mother’s tele phone number, ha

nded appe llant the cell phone, a nd left the room. Appellant argues this conduct “tr icked” him int o b e lie vin g tha

t hi s te le ph on e c on ve rs a tion wi th his mot he r w a s p ri vate . B ut a s in Scheine man , there is no evidence that the offic er g ave a ppellant any

express assuranc e that what he said to his mother would not be heard by others. The evidence supports the t rial court’s finding that Rodrigue z did not eng ag e in a ny dishonesty

or deliber ately

mislead appe llant into believing that the
conver sation was private. A lthough a ppellant’s juvenile status may have e ntitled him t o rig hts and
c on sid e ratio ns no t a ff

or de d ad ult s und e r the same c ir c ums tanc e s, we do no t bel ie ve that so c ie ty is prepa red to a cce pt as reasonable appellant’ s subjective belief t hat he could sit i n a police inter view room and discuss on the tele phone his role in a murder for which he had bee n arr ested without being overhe ard by

the police, at least in the absenc e of any evidenc e of police conduct intended to g ive appellant the impre ssion that his conversation would be pr ivate.
Article 18.20 Appellant’s c ontent i o n that article 18.20 was violated w as not raise d below. No vi ol ati on of

the statut e is s ho wn

in a ny c a se . A n “ or a l c omm

un ic a tio n” su

bje c t to the statut e is
on e that is “ utt e re d b y

a pe rs on e xhibi tin g an e xpe c ta tio n th a t th e c omm un ic a tio n is no t su

bje c t to int e rc e pti on un der

c ir c ums tanc e s ju sti fy

ingthat e xpe c ta tio n. ” Te x. Cod e Cr im. Pr oc . A nn . a rt
. 18.20, § 1(2). We have held that ar ticle 18.20 protec ts p er s o n s eng ag ed in ora l communications under c ircumstance s justify ing a n expectation of p ri vacy . Me y e r v . S tat e , 78 S.W .3d 505, 50918

(T e x. Ap p. —A us tin

20 02 , p e t. r e f’ d) (a lso ho ldi ngthat de fe nd ant d id n ot h a ve re a so na ble
e xpe c ta tio n o f p ri va c y

in b a c k s e a t of

patr ol c ar). B e c a

us e a pp e lla nt d id n ot h a ve a

re a so na ble expectation of privac y

under the circ umstances shown, he was not justified in the expectation that his statements would not be interce pted. Se e id
. Harm less error

As re c ounte d b y

Rod ri g ue z in h is t e sti mony

a t tr ia l, a pp e llan t’ s st ateme nts to h is mot he r o ve r t he te le ph on e we re e nti re ly c on sis te nt wi th a pp e lla nt’ s ow n te sti mony . A c c or din g to Rodrigue z, appellant told his m other that he had fire d two shots that did n o t h i t an y o n e, and that Al an Ru iz ha d f

ired th e shots that stru c k th e tw o v ic tim s. Ap pe lla nt t e sti fi e d to the same fa c ts. De fe ns e c ouns e l argue d to the jur y that th e state me nts app e lla nt m a de to h is m oth e r t e nd e d to
corr oborate his trial testimony by showing that he had consistently told the s ame story
. Under the circ umstances, if Rodrigue z violated appellant’s Four th Amendment or statutory rig hts by listening to appellant’s c onversation with his mother, we are satisfied beyond a r ea s o nable doubt that the admission of appellant’ s statements during t hat conversation di d not contribute to his conviction or punishment. See Tex. R. App. P . 44.2(a)
. CO NC LU SION Viewingthe re cord in the light most favora ble to the trial cour

t’s ruling s, we c onclude that appellant’ s pare nts were promptly notified afte r he was taken into c ustody and that appellant wa s not denied the right to have his parents with him while he wa s being held in the juvenile proc essing office
. Moreove r, there is no showing of a causa l c onnection betwee n the alleg ed violations a nd the19

sp on tane ou s st a te me nts a pp e lla nt m a de to the of

fi c e rs . F ina lly , any

e rr or in t he a dmi ssi on

of the se statements was ha

rmless. Points of error one , two, and thre e ar e over ruled. Appellant did not have a

rea sonable e x pecta

tion of privacy

in the juvenile proc essing office , and the of

fice r did not violate t he F ourth Amendment by listening to the stateme nts appellant made to his mother during their telephone conver sation. For the same re ason, ar ticle 18.20 was not violated. And bec ause the statements appe llant made to his m o t h er d u ri n g the conve rsation wer e
c on sis te nt w itha

pp e lla nt’ s tr ia l te sti mony , a

ny e rr or in t he a dmi ssi on

of the s t a t e m e nts wa s h arm le ss. Point of error f

our is overr

uled. The judg ment of convic tion is affirmed.

__________________________________________ W. Kenneth L aw, Chief Justice Be fore Chief J ustice L aw, Justi ces Waldrop a nd Henson Affir med Filed: August 21, 2007 Pub lis h