TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00359-CR

Manuel Cortez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. D-1-DC-05-900845, HONORABLE FRED A. MOORE, JUDGE PRESIDING

O P I N I O N

A jury found appellant Manuel Cortez guilty of murder and assessed his punishment

at ninety-nine years’ imprisonment. See Tex. Penal Code Ann. § 19.02 (West 2003). In four points

of error, appellant contends that the trial court erred by admitting in evidence statements he made

to police officers and his mother that he argues were unlawfully obtained. Finding no reversible

error, we affirm the judgment of conviction.

In our review of the trial court’s rulings admitting the challenged statements, we defer

to the court’s findings of fact but review de novo the court’s application of the law to those facts.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Horton v. State, 78 S.W.3d 701, 703

(Tex. App.—Austin 2002, pet. ref’d). We review the evidence in the light most favorable to the trial

court’s rulings and, where the court did not make express findings of fact, we assume that the court
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made findings that are supported by the record and buttress its conclusions. See Carmouche v. State,

10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

BACKGROUND

Friday, September 23

On Friday afternoon, September 23, 2005, a group of Austin High School students

had just gotten off the school bus when a Honda Accord pulled to the curb beside them. Witnesses

to the shooting testified that the front passenger in the car said something to sixteen-year-old

Christopher Briseno, who had just gotten off the bus. Then, several shots were fired from the car.

Briseno was fatally shot in the head. His sixteen-year-old cousin, Adam Cantu, was shot in the legs.

As the investigation continued over the coming days and weeks, it was learned that

six persons had been in the car when the shots were fired. In the front seat were Alan Ruiz, who was

the driver, and appellant, who was the front passenger. In the back seat were Alan Ruiz’s brother

Humberto, his sister Pamela, Juan Soliz, and Victor Saramiento.

Saturday, September 24

Initially, the onlyoccupant ofthe Accord identified to the police was Humberto Ruiz.

The day after the shooting, Austin police officers went to the Ruiz residence, where they met

Humberto, Alan, and appellant, who was sixteen years old. The three boys agreed to speak to the

officers and were taken to the downtown police station, where they arrived between 1:30 and 2:00

p.m., according to the officer’s testimony at the suppression hearing. The officers also testified that
 It is clear that the Ruizes not only incriminated appellant, but they also minimized their 1

own involvement in the shooting. There is evidence that the police allowed the Ruizes to leave the

station on Saturday because there was no probable cause to hold them. By the time the police

learned that they had played a culpable role in the shooting, the Ruiz family had fled to Mexico.

Some months later, the three siblings returned to Austin and were arrested. They were awaiting trial

for Briseno’s murder at the time of appellant’s trial.

Appellant testified that he was taken to the police station at 12:30 p.m. and told that he was

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being detained because he “did not have a license.” Appellant said that he asked to call his parents,

but the officers would not allow it. Appellant also testified that he was not allowed to call his

parents after he was returned to the police station and placed in the juvenile processing office.

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they were not then aware of appellant’s involvement in the shooting. Appellant was not under arrest

or restraint, and he was allowed to wait in the lobby while the Ruiz brothers were being questioned.

Later that afternoon, Pamela Ruiz was also brought to the police station, accompanied

by her mother. At trial, a police officer testified that when Pamela walked past appellant, who was

still sitting in the lobby, she did a “doubletake.”

Shortly after 4:00 p.m., appellant left the police station and walked to a nearby

convenience store, where he called a friend for a ride. Meanwhile, statements by the Ruiz siblings

gave investigators reason to believe that appellant was the person who had fired the shots that killed

Briseno and wounded Cantu. Officers began to look for appellant and found him at the convenience 1

store. Detective Armando Balderama testified that at 4:50 p.m., appellant was returned to the police

station, advised that he was under arrest, and placed in an interview room that was designated as a

juvenile processing office. See Tex. Fam. Code Ann. § 52.025(a) (West 2002).2

Balderama testified that he asked appellant if he wanted his parents to be notified.

Appellant said that he did. Balderama tried to call appellant’s mother, but he got no answer.

Balderama successfully called appellant’s father and told him that appellant was about to be
 Appellant’s mother testified that this call came from Rodriguez. The officer testified, 3

however, that he had no further conversations on Saturday with members of appellant’s family after

appellant’s mother left the police station.

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transferred to the Gardner-Betts juvenile detention facility. Appellant was then taken to another

location to await transfer. While they were waiting, appellant asked Balderama “how long I thought

he was going to have to . . . remain in jail.” Balderama told appellant that “he was getting ahead of

himself, that he needed to wait and see.” Appellant’s question to Balderama is the first of the three

statements that appellant urges should have been suppressed.

Detective Frank Rodriguez testified that minutes after appellant was returned to the

police station and placed in the interview room, he encountered appellant’s mother and brother in

the downstairs lobby. They asked the officer for appellant’s whereabouts, and he told them that

appellant had been detained for a crime that had been committed the day before. Appellant’s mother

responded that the police should also arrest Alan Ruiz because appellant had been with him all day

on Friday. Rodriguez testified that he needed to go back upstairs where the interviews were taking

place, so he excused himself but told appellant’s mother that he would be “right back.” Rodriguez

said that when he later returned to the lobby, appellant’s mother and brother were gone.

Appellant’s mother testified that she went to the police station at 2:00 p.m. after

receiving a telephone call from Alan Ruiz saying that appellant had been arrested. She said that

Rodriguez told her that appellant was being questioned and that she could not see him. She testified

that after she returned to her home, a police officer called her and told her that appellant was being

charged with murder, that she could not see him, and that he was going to be taken to Gardner-Betts.

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5

She said that she made no effort to see appellant that day because she did not have permission to

do so.

Richard Bratton was the intake officer at Gardner-Betts on the evening of September

24, 2005. Bratton testified that upon appellant’s arrival, he advised appellant of his rights while in

detention and called his family. Bratton spoke to a person who he believed was appellant’s brother,

who was in turn speaking to appellant’s mother in Spanish. Bratton told appellant’s family some

of the details of the offense for which appellant had been arrested, explained appellant’s rights, and

informed them of the visitation hours at the facility. Appellant’s family was not able to visit him at

Gardner-Betts that night because the intake process was not completed until after 9:00 p.m., when

visitation ended.

Sunday, September 25

At 11:00 a.m. Sunday morning, Rodriguez and another officer, Hector Reveles,

transported appellant from Gardner-Betts to the police station so that he could be advised of his

rights by a magistrate. See id. § 51.095(a) (West Supp. 2006). Rodriguez and Reveles testified that

appellant was not questioned during the drive, but that appellant asked Reveles if the police “wanted

the gun” or wanted to know “where the gun was.” Reveles said that he told appellant that they

would “talk about that later.” Appellant’s question regarding the gun is the second statement that

he sought to have suppressed.

After being advised of his rights by the magistrate, appellant was taken to the juvenile

processing office. He refused to give the officers a statement and asked to speak to his parents.

There was no telephone in the room, so Rodriguez dialed the number on his cell phone, gave the
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phone to appellant, and stepped outside. Through a microphone located in the room, Rodriguez

heard appellant tell his mother that he had fired two shots but had not hit anyone, and that Alan Ruiz

had fired the fatal shots. This is the last of the three challenged statements.

The trial

The juvenile court waived its jurisdiction and transferred appellant to district court

for trial. See id. § 54.02 (West 2002). At the trial, Cantu identified appellant as the front passenger

in the Accord and as the person who shot him and Briseno. Jose Ortiz, another student who

witnessed the shooting, also identified appellant as the front passenger and shooter. Both Cantu and

Ortiz were certain that the driver of the car had not fired the shots. Another bystander, Esteban

Zuniga, did not identify appellant, but he did testify (with some equivocation during crossexamination) that the front passenger was the person who fired the shots.

Juan Soliz, one of the back seat passengers in the Accord, identified the other

occupants of the vehicle. He said Humberto Ruiz told him that Pamela was having trouble with

Briseno and Cantu at school. As the car approached the bus stop, Alan Ruiz took a pistol out of the

console between the front seats and handed it to appellant. When the car stopped, appellant called

out to Briseno, “Are youBloods?” Briseno said, “No.” Appellant then asked Alan Ruiz if he should

“[g]ive it to them.” Alan said that he should, and appellant began firing. Soliz testified that Alan

did not threaten appellant or otherwise force him to shoot. Soliz said that he was certain that Alan

Ruiz did not fire the gun, but he was not sure whether or not Humberto Ruiz had fired the weapon.

Soliz also testified that on the day after the shooting, after learning that one of the victims had died,

appellant said “it was good so they will not mess with them again.”
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Although they did not testify, there was evidence that two other witnesses to the

shooting identified someone other than appellant as the shooter. Rodriguez testified that Victor

Saramiento, another passenger in the Accord, gave a statement to the police that was consistent with

what appellant told his mother; that is, that Alan Ruiz had fired the fatal shots. Rodriguez also

testified that Elvia Hernandez, who lived near the scene of the shooting, told officers that she was

sitting on her porch when the shooting occurred and that the “back passenger” had fired the shots.

In his own testimony, appellant acknowledged being the front passenger in the

Accord. He said that after he accepted a ride from Alan Ruiz, Ruiz showed him a pistol in the

console and told him that “he had to kill two students who were in school because theywere messing

with his sister.” After picking up the other passengers at the school, Ruiz followed the bus. As they

drove, Ruiz handed the pistol to appellant and told him, “You’re going to kill him.” When appellant

protested, Ruiz said, “Okay. Well, just tell him—ask him some questions, things I want to know.”

When Briseno got off the bus, Pamela Ruiz pointed and said, “Look, it’s him.” At Alan Ruiz’s

insistence, appellant asked Briseno if he was a Blood. Briseno denied it. Pamela Ruiz said, “He’s

telling lies. He’s the one that was messing with me.” Then she said, “Kill him. Kill him.” With

that, Alan Ruiz reached across appellant and began firing. According to appellant, Ruiz then handed

the pistol to him and ordered him to shoot. Appellant testified that he was afraid of Ruiz, and that

he fired two shots into the air.

The court’s jury charge included an instruction on the law of parties. See Tex. Penal

Code Ann. §§ 7.01, .02 (West 2003). The charge authorized appellant’s conviction for murder if the
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jury found that appellant, acting alone or with others as a party, caused Briseno’s death. Appellant

does not challenge the sufficiency of the evidence to sustain the jury’s verdict.

STATEMENTS TO OFFICERS

In point of error one, appellant contends that the officers who took him into custody

on the afternoon of September 24 failed to promptly notify his parents. See id. § 52.02(b)(1)

(West Supp. 2006) (providing that person taking child into custody shall promptly give notice of

action and statement of reason to child’s parent, guardian, or custodian). In point of error two,

appellant further contends that he was not allowed to have his parents with him in the juvenile

processing office. See id. § 52.025(c) (West 2002) (providing that child detained in juvenile

processing office is entitled to be accompanied by parent, guardian, custodian, or attorney).

Appellant argues that his question to Balderama about how long he would remain in jail was the

inadmissible fruit of these violations. See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005)

(exclusionary rule). In point of error three, appellant contends that his remark to Reveles regarding

the gun should also have been suppressed as the product of these juvenile code violations.

Section 52.02(b)(1)

The failure to comply with the section 52.02(b)(1) notice requirement will render

inadmissible any subsequent statement by the child that is obtained as a result of the statutory

violation. Horton, 78 S.W.3d at 705 (citing Gonzales v. State, 67 S.W.3d 910, 913 (Tex. Crim. App.

2002)). Appellant did not allege a violation of that section in his motion to suppress, he did not

mention the statute at the suppression hearing, and he did not cite the statute in his post-hearing
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memorandum of law to the trial court. See Hill v. State, 78 S.W.3d 374, 382 (Tex. App.—Tyler

2001, pet. ref’d); Tex. R. App. P. 33.1(a).

Assuming the issue is properly before us, no violation of section 52.02(b)(1) is

shown. The juvenile code does not define what is meant by “prompt” notification. Whether the

statute has been complied with must be determined under the circumstances of the particular case.

Ray v. State, 176 S.W.3d 544, 548 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); Vann v. State,

93 S.W.3d 182, 185 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Among the factors to

consider are the length of time the juvenile was in custody before notice was given, whether notice

was given before or after the police obtained a statement from the juvenile, the ease with which the

police were ultimately able to contact the appropriate adult, and what the police did during the period

of delay. Vann, 93 S.W.3d at 185. We defer to the trial court’s findings of historical fact, but we

review de novo the court’s application of the law to those facts. In re C.R., 995 S.W.2d 778, 782

(Tex. App.—Austin 1999, pet. denied).

In C.R., the juvenile was taken into custody by the police at 11:00 p.m. Id. at 782.

After his mother twice called the police station to learn what was happening to her son, she was

called by an officer at 1:00 a.m. and told that her son was not in custody, that he was “helping” the

officers “on a job,” and that it was not necessary for her to come to the station. Id. In fact, the

juvenile was being questioned about his involvement in a murder. Id. at 780. At 5:00 a.m.,

the juvenile’s mother was notified that he had been taken to the juvenile detention facility. Id. at

782. The mother’s testimony was not refuted by the State’s witnesses; in fact, the officer who

questioned the juvenile conceded that he had made no effort to contact her. Id. This Court
 Because we view the evidence in the light most favorable to the trial court’s ruling, we

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infer that the court did not believe appellant’s testimony at the suppression hearing that he was taken

into custody at 12:30.

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concluded that the State had failed to show that the juvenile’s statement was taken in compliance

with section 52.02(b). Id. at 783.

The facts before us in this cause are considerably different. Although the testimony

regarding the relevant time frame was not detailed to the minute, it is clear that only a short time

passed between appellant being taken into custody and the notification of his parents. Balderama

testified that he called appellant’s father and notified him that appellant was in custodyminutes after

appellant was placed in the juvenile processing office. Rodriguez testified that he encountered 4

appellant’s mother in the police station lobby minutes after appellant was arrested and told her that

appellant had been detained for a crime committed the previous day. Finally, appellant’s mother

testified that a police officer called her after she returned home and told her that appellant had been

arrested for murder. The evidence reflects that appellant was not questioned by the police before

notice of his arrest was given to his parents, and the challenged statements were made after notice

was given. Appellant argues that Balderama’s telephone call to his father and Rodriguez’s statement

to his mother in the lobby did not comply with section 52.02(a)(1) because neither officer said that

appellant was being investigated for murder. See id. According to appellant’s mother, however, an

officer called her soon after she returned home and told her that appellant had been arrested for

murder. And unlike C.R., there is no evidence that the police misled appellant’s parents about his

status or attempted to question him before his parents were properly notified.
 Appellant testified that he was not told that he had a right to have his parents with him. 5

He was not asked and did not say whether he would have invoked that right. Appellant does not

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We conclude that appellant’s parents were promptly notified as required by section

52.02(b)(1). See Ray, 176 S.W.3d at 550-51 (holding that notice to parents over eight hours after

arrest was prompt where officers had diligently sought to contact parents without success); Vann,

93 S.W.3d at 185 (holding that notice to custodian two-and-a-half hours after arrest was prompt);

In re J.B.J., 86 S.W.3d 810, 815-16 (Tex. App.—Beaumont 2002, no pet.) (holding that notice to

parents one-and-a-half hours after arrest and after repeated attempts was prompt); Hill, 78 S.W.3d

at 383-84 (holding that notice to parents over four hours after arrest was not prompt where officers

made no effort to contact parents earlier, before juvenile made statement).

Section 52.025(c)

A child being held in a juvenile processing office may not be left unattended and is

entitled to be accompanied by his parent. Tex. Fam. Code Ann. § 52.025(c). The statute does

not require that a parent be present, however. See Leonard v. State, No. 01-93-01066-CR, 1997

Tex. App. LEXIS 51, at *3 (Tex. App.—Houston [1st Dist.] Jan. 9, 1997, no pet.) (not designated

for publication). The record before us supports a finding that appellant did not ask for his parents

and that appellant’s parents did not ask to be present.

Rodriguez testified that appellant was monitored for the entire time that he was held

in the juvenile processing office and that he never asked to have his parents with him. Balderama

testified to the same effect. Even appellant, who testified that he asked to speak to his parents, did

not testify that he wanted one or both of them to be present with him in the processing office. The 5
contend that the police were obligated to advise him of his right to have his parents present, and we

express no opinion regarding that issue.

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evidence supports the trial court’s implied finding that appellant did not request the presence of his

parents in the processing office.

There is no evidence that appellant’s father asked to speak to or be with his son while

he was detained in the processing office. Appellant’s mother testified that she asked to see appellant

while she was at the police station on the afternoon he was arrested, but this request was denied. Her

testimony was contradicted by Rodriguez, who testified that appellant’s mother did not ask to see

her son before leaving the police station. The trial court, as trier of fact at the suppression hearing,

could reasonably conclude from the officers’ testimony that neither of appellant’s parents asked to

be with appellant while he was detained in the processing office.

Causal connection

Even if appellant’s parents were not promptly notified of his arrest or appellant was

denied the right to have his parents with him in the juvenile processing office on Saturday afternoon,

no causal connection has been shown between these alleged violations and appellant’s statements

to the two officers. See Gonzales, 67 S.W.3d at 913 (holding that suppression required only when

there is causal connection between violation of parental notice requirement and receipt of juvenile’s

statement). Neither statement was made while appellant was in the juvenile processing office, and

thus his parents would not have been present. This distinguishes the instant case from State

v. Simpson, 105 S.W.3d 238 (Tex. App.—Tyler 2003, no pet.), on which appellant relies. In

Simpson, a juvenile was interrogated and gave a written confession to participating in a capital
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murder before his parents were notified, more than forty-eight hours following his arrest. Id. at 240.

The court found a causal connection between the lack of notice and the statement, saying that there

was “nothing in the record to indicate that either of [Simpson’s] parents would have advised [him]

to make or sign a statement implicating himself in the commission of capital murder” had they been

present during the interrogation. Id. at 243.

Appellant hypothesizes that if his parents had come to the juvenile processing office,

they would have advised him against making any statements or having any conversations with the

police. Accepting this hypothesis as true, we are not persuaded that this advice would have deterred

appellant from making the two statements at issue. The trial court found that the statements were not

the products of interrogation, and the evidence supports this finding. In fact, the evidence reflects

that on both occasions, appellant and the officers were not even engaged in conversation when he

spontaneously made the challenged remarks. We find no causal connection between the two

statements and the officers’ alleged failure to promptly notify appellant’s parents of his arrest and

the alleged denial of appellant’s right to have his parents with him in the juvenile processing office.

Harmless error

Even if appellant’s rights under the juvenile code were violated and even if there were

a causal connection between these violations and appellant’s statements to the officers, we conclude

that the admission of the statements did not affect appellant’s substantial rights. See Tex. R. App.

P. 44.2(b). Appellant’s question to Balderama inquiring how long he would have to remain in jail

showed that appellant was curious about the seriousness of his situation. This curiosity is

understandable and not particularly incriminating. The statement to Reveles regarding the gun was
14

a more serious matter because it implicitly showed that appellant had some knowledge about the

shooting and the weapon. Still, the statement does not necessarily compel the conclusion that

appellant was guilty of the murder. Appellant could have been offering to disclose information he

had learned from someone else, such as Alan Ruiz.

In any event, appellant’s involvement in the shooting was not a contested issue at his

trial; only the nature of that involvement was in question. In his own trial testimony, appellant

admitted being in the car and firing two shots, albeit into the air. Even if the challenged statements

had not been admitted, appellant would have had little choice but to admit his involvement in light

of the eyewitness testimony identifying him as the front passenger and his mother’s statement to the

police that appellant had spent the day of the shooting with Alan Ruiz. In light of appellant’s

testimony, any error in the admission of appellant’s question to Balderama regarding how much time

he might spend in jail and his question to Reveles as to whether the police wanted the gun may be

disregarded as harmless. These remarks to the officers merely confirmed what appellant did not

contest: that he was present in the car from which the shots were fired.

STATEMENTS TO MOTHER

In his fourth point of error, appellant contends that Rodriguez unlawfully

eavesdropped on his telephone conversation with his mother on Sunday afternoon, September 25,

after he had been taken before the magistrate. He argues that the use of a hidden microphone to

listen to his conversation violated his reasonable expectation of privacy under the Fourth

Amendment. He further argues that the officer’s conduct constituted an unlawful, unauthorized
15

interception of an oral communication. See Tex. Code Crim. Proc. Ann. art. 18.20 (West Supp.

2006).

Fourth Amendment

The Fourth Amendment serves to safeguard an individual’s privacy from

unreasonable governmental intrusions. Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App.

1993). A defendant may challenge the admission of evidence obtained by governmental intrusion

only if he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois, 439 U.S.

128, 143 (1978). To determine whether a person had a reasonable expectation of privacy, it must

be determined whether the person exhibited a subjective expectation of privacy and, if so, whether

that subjective expectation is one that society is willing to recognize as reasonable. Smith

v. Maryland, 442 U.S. 735, 740 (1979). In this case, appellant exhibited a subjective expectation

of privacy while speaking to his mother; the question presented is whether this expectation

was reasonable.

Whether a subjective expectation of privacy is one that society recognizes as

reasonable is a question of law. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

Among the factors to consider in answering this question are whether the accused: had a property

or possessory interest in the place invaded; was legitimately in the place invaded; had complete

dominion or control and the right to exclude others; took normal precautions customarily taken by

those seeking privacy; put the place to some private use; and has a claim of privacy consistent

with historical notions. Calloway v. State, 743 S.W.2d 645, 651 (Tex. Crim. App. 1988). A

consideration of these factors leads us to conclude that appellant did not have a reasonable
There was no telephone in the interview room. Therefore, we assume that there was no 6

sign warning that telephone calls from the room were monitored.

16

expectation of privacy in the police interview room that doubled as the juvenile processing office.

6

Appellant had no property or possessory interest in the office, no dominion or control of the office,

and no right to exclude others from the office. Appellant was legitimately in the office only in the

sense that he had been lawfully taken into custody by the police. Although appellant put the office

to a private use, there is no evidence that he asked Rodriguez to leave the room or took any

precautions to ensure his privacy. Finally, appellant’s claim of privacy in a police station interview

room is not consistent with historical notions of privacy.

A similar case was recently considered by the court of criminal appeals. In State

v. Scheineman, Scheineman and his co-defendant were arrested and placed in separate interview

rooms. 77 S.W.3d 810, 811 (Tex. Crim. App. 2002). The co-defendant asked a deputy if he could

speak alone with Scheineman. Id. The deputy agreed, moved Scheineman into the room occupied

by the co-defendant, and left the two of them alone. Id. The two men then discussed their criminal

conduct while, unbeknownst to them, officers monitored and recorded their conversation. Id.

Scheineman argued that the deputy’s conduct had “lulled” him and his co-defendant into believing

that their conversation was private and thereby gave them a legitimate expectation of privacy. Id.

The court of criminal appeals disagreed. The court observed that a loss of privacy is an inherent

incident of confinement, whether in a jail cell or a police station interview room. Id. at 813. After

noting that there was no evidence that the deputy had given the two defendants any verbal assurance

of privacy, the court held that society is not prepared to recognize a legitimate expectation of privacy
17

in a conversation between two arrestees in a county law enforcement building, even if the arrestees

are the only persons present and subjectively believe that they are unobserved. Id.

The evidence before us shows that Rodriguez dialed appellant’s mother’s telephone

number, handed appellant the cell phone, and left the room. Appellant argues this conduct “tricked”

him into believing that his telephone conversation with his mother was private. But as in

Scheineman, there is no evidence that the officer gave appellant any express assurance that what he

said to his mother would not be heard by others. The evidence supports the trial court’s finding that

Rodriguez did not engage in any dishonesty or deliberately mislead appellant into believing that the

conversation was private. Although appellant’s juvenile status may have entitled him to rights and

considerations not afforded adults under the same circumstances, we do not believe that society is

prepared to accept as reasonable appellant’s subjective belief that he could sit in a police interview

room and discuss on the telephone his role in a murder for which he had been arrested without being

overheard by the police, at least in the absence of any evidence of police conduct intended to give

appellant the impression that his conversation would be private.

Article 18.20

Appellant’s contention that article 18.20 was violated was not raised below. No

violation of the statute is shown in any case. An “oral communication” subject to the statute is

one that is “uttered by a person exhibiting an expectation that the communication is not subject to

interception under circumstances justifying that expectation.” Tex. Code Crim. Proc. Ann. art.

18.20, § 1(2). We have held that article 18.20 protects persons engaged in oral communications

under circumstances justifying an expectation of privacy. Meyer v. State, 78 S.W.3d 505, 509
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(Tex. App.—Austin 2002, pet. ref’d) (also holding that defendant did not have reasonable

expectation of privacy in back seat of patrol car). Because appellant did not have a reasonable

expectation of privacy under the circumstances shown, he was not justified in the expectation that

his statements would not be intercepted. See id.

Harmless error

As recounted by Rodriguez in his testimony at trial, appellant’s statements to his

mother over the telephone were entirely consistent with appellant’s own testimony. According to

Rodriguez, appellant told his mother that he had fired two shots that did not hit anyone, and that

Alan Ruiz had fired the shots that struck the two victims. Appellant testified to the same facts.

Defense counsel argued to the jury that the statements appellant made to his mother tended to

corroborate his trial testimony by showing that he had consistently told the same story. Under the

circumstances, if Rodriguez violated appellant’s Fourth Amendment or statutory rights by listening

to appellant’s conversation with his mother, we are satisfied beyond a reasonable doubt that the

admission of appellant’s statements during that conversation did not contribute to his conviction or

punishment. See Tex. R. App. P. 44.2(a). 

CONCLUSION

Viewing the record in the light most favorable to the trial court’s rulings, we conclude

that appellant’s parents were promptlynotified after he was taken into custodyand that appellant was

not denied the right to have his parents with him while he was being held in the juvenile processing

office. Moreover, there is no showing of a causal connection between the alleged violations and the
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spontaneous statements appellant made to the officers. Finally, any error in the admission of these

statements was harmless. Points of error one, two, and three are overruled.

Appellant did not have a reasonable expectation of privacy in the juvenile processing

office, and the officer did not violate the Fourth Amendment by listening to the statements appellant

made to his mother during their telephone conversation. For the same reason, article 18.20 was not

violated. And because the statements appellant made to his mother during the conversation were

consistent with appellant’s trial testimony, any error in the admission of the statements was harmless.

Point of error four is overruled.

The judgment of conviction is affirmed.

__________________________________________

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed

Filed: August 21, 2007

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