### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00080- CV

In the Matte r of C. M. A.

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT NO. JV014 08, H ONO RAB LE JO HN Y OUNGB LOO D, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A j u ry found that appellant C.M.A., a juvenile, had committed the offe nses of burglar y of a habitation and agg ravated s exual assault of a child. Ba sed on the j ury ’s fi n d i n gs, the district court adjudicate d C.M.A. delinquent and committed him t o confinement in the Texas J uvenile J ustice Depa rtment for an indeterminate period of time not to exceed the time when he shall be 19 y ear s of ag e. I n two issues on appea l, C.M.A. asser ts that the district court abused its discretion in denying a motion to suppress conce rning statements he had made to authorities tending to impli cate himself in both offense s. We will affirm the district cour t’s judgme nt.

BACK GR OUND I n considering th e m o t i o n to suppress, the district court hear d evidenc e from
two witnesses: Deputy J ohnny Be athar d of the Milam County Sheriff’ s Offic e, who had interviewe d C.M.A. conce rning both offe nses, on separ ate date s fo r eac h; and Robert Hollas, an investiga tor wi t h C h i ld Protective Service s who was prese nt during the interview rela ting to the alleg ed sex offe nse. Both Be athar d and Hollas testified at t h e h ea ring on the motion to suppress and ag ainat trial, and C.M.A. re- urg ed his motion to suppress follow i n g t heir rele vant trial testimony

. The

district court denied the motion to suppress on both occa sions—following the suppression hear ing and ag ain during trial. Acc ording ly , the following fac tual summary is taken from the evidenc e that the district court c onsidered at both the suppression hear ing a nd at trial. 1 Acc ording to the evidenc e prese nted, at the time o f t h e i n t ervie ws, C.M.A. was fourtee n y ear s old and attended Milano Hig h School. Both interviews took place at the high school, in a room inside the principal’s office that Be athar d descr ibed as “a counselor’ s office ” that is “set up like a confe renc e room,” and that Hollas descr ibed as “par t of a brea

k room or something.” At the suppression hear ing, Be athar d descr ibed the siz e of the room as “probably 25 to 30 fee t long by about 15 to 20 fee t wide.” Be at h ar d t est ified that the room had windows, along with an 2 “obser vation window in the door” to the room. Be athar d added that the room had a “big table like

a confe renc e room has” and that, during both interviews, C.M.A. was seate d at the table. Acc ording to Be athar d, C.M.A. was sea ted closest to the door in both interview s.

During the first interview—the one in which Be artha rd but not Hollas participa ted—B eatha

rd indicated that he was seated ac ro s s the table from C.M.A. I n the second

I n revie wing a trial court’s ruling on a mot i o n t o suppress, “we g ener ally consider only 1 evidenc e adduce d at the suppression hear ing beca use the ruling was based on it rathe r than evidenc e introduced la ter.” Rachal v. State , 917 S.W .2d 799, 809 (Tex. Crim. App. 1996). “Howe ver, this g ener al rule is inapplicable wher e, as in t h i s ca s e, the suppression issue has been consensua lly re- litigated by the parties during trial on the m erits.” Id

. “Where the S tate raises the i ssue at trial either without objection or with subsequent participa tion in the inquiry by the defe nse, the defe ndant has made an elec tion to re- open the evidenc e, and consideration of the rele vant trial t es t i m o n y is appropr iate in our re view.” Id

. At trial, Be athar d descr ibed t he dim ensi o n s of t he room as “approxim ately 20 to 30 fee t 2 long by about ten to 15 fe et wide.” 2interview, acc ording to Hollas, Hollas was seate d acr oss the table from C.M.A., while Be athar d was

“off to the side” but also seate d at the table. Be athar d further testified that prior to both interviews, C.M.A. was escor

ted to the room by school personne l (either the principal or t h e p ri n cipal’s

secr etar y ), the door to the room was closed but rema ined unlocked, and C.M.A. was not handcuf fed. 3 The first interview, the one rela ting to th e b u rg lary char g e, occur

red on September 28, 2 0 11. Acc ording to Be athar d, he had rec eived information that C.M.A. may have participa t ed i n the burg l ar y wi t h another juvenile, and he wanted to speak to C.M.A. about the proper ty that had alleg edly

been stolen. B eatha

rd testified that, at the beg inning of the interview, he introduced him s el f to C.M.A. (eve n though, acc ording to Be athar d, C.M.A. “alr eady knew who [Beatha rd] was” ), “spoke with him a littl e bit, advised him that I neede d to speak with him, that he wasn’t

4 under arr est and he didn’t have to talk to me if he didn’t wish to.” Be athar d also testified that he had tol d C.M.A. that he was fre e to leave the room, b u t , acc ording to Be athar d, C.M.A. informed him that he was willing to speak to him. When as k ed t o d es cribe his own appea ranc e during the interview, Be athar d testified that he was five fee t, eig ht inches tall a nd weig hed approximately 2 1 0 p o u n d s . Be athar d could not rec all whether he was dresse d in his uniform or in plainclothes
at the time of th e i n t erview, but he did reme mber that he was wea ring both his badg e and his firea rm (altho u gh n o testimony was elicited as to whether the firea rm was visible to C.M.A.). Be athar d acknow ledg ed that, at the time of the interview, C.M.A wa s a s u s p ect in the burg lary

Be athar d ag ree d with d ef en s e counsel’s char acte rization that C.M.A. was “take n out of 3 class and told to come ta lk to” Be athar d. I t is unclea

r from the rec ord how C.M.A. “alr eady knew” Be athar d. Howeve r, at the 4 dispositi on phase of

the trial, C.M.A.’s mother testified tha t Be athar d was he r nephe w. 3and that Be athar d had communicated t h at s u s p i cion to C.M.A. Be athar d explained that afte r the

interview was complete, C.M.A. was allowed to return to class. The interview lasted approximately thirty minutes. The int er v i ew re lating to the sexual-assault char g e, the one in which both Be athar d and Hollas wer e prese nt, occur red on October 25, 2011. Be athar d and Hollas had rec eived information that C.M. A. h ad s exually assaulted a ten-y ear -old child, and they had interviewe d the alleg ed victim befor e speaking with C

. M

. A. Acc ording to Hollas, the interview with C.M.A. took place at approximate l y 1 0 :55 a.m., while the interview with the alleg ed victim had occur red

ear lier that same morning

. When asked to descr ibe his own appea ranc e during the interview, Hollas testified that he wa s six fee t, two inches tall, weig hed appr ox imately 260 pounds, and that, during the interview, he was wea ring “blue jeans and a shirt.” Hollas believed that Be athar d was wea ring h i s u n iform and his badg e at the t ime of t he int ervie w. Hollas further testified t hat t hey “we re all
seate d” during the interview and that at no point during the i n terview did C.M.A. ask t o leave the
room, g o to the bathroom, g et a drink of water , or speak with his pare nts. When defe nse counsel sug g ested that C.M.A. was not in the room “of his own free will and acc ord” beca use “somebody broug ht him there ,” Hollas testified, “Well, they didn’t drag him there

. He walked in.” Ho l l as also testified t hat t he int er v i ew “l as t ed about 15 minutes, 20 minutes, may be.” When asked if, at any time dur ing the interview, any body had threa tened C.M.A., pr omised him any thing in order to g et him to make a statement, or denied him “basic nece ssities,” Hol l as testified, “No.” Be athar d testified similarly

.

Be athar d and Hol l as b oth testified that, at the time of the second interview, they considere d C.M.A. a suspect in t h e s ex u al-assault case and that they had communicated their 4suspicion to C.M.A. Be athar d testified that, at the beg inning of the interview, he told C.M.A. that he

was not under arr est. This time, howeve r, acc ording to Be athar d, C.M.A. was not informed that he

was “fr ee to leave ” the room during the interview. Neve rtheless, at the conclusion of the interview, C.M.A. was ag ain allowed to return to class. After the interview was completed, but befor e C.M.A. left the room, Be athar d advised C.M.A. that Be athar d “nee ded to contac t [C .M.A.’s] juvenile office r

. . . to discuss if we wer e g oing to look at having him detained ag ain on [t he sexual-assault offe nse]

or if this wa s go i n g to be broug ht up in his [delinquency ] hear ing that was alre ady schedule d.” C

. M

. A. was arr ested for the sexual-assault offe nse later that day , afte r Be athar d had obtai n ed an

arr est war rant. C.M.A.’s statements, which tended to implicate him in the offe nses, wer e admitted into evidenc e, and the jury subsequently found that C.M.A. had committed the offe nses as alleg ed. Ba sed on the j ury ’s findi ng s, the di strict court a djudicated C.M.A. delinquent and committed him to the Texas J uvenile Just ice De partment a s noted above . This appea l followed.

STANDARD OF REVIEW We revie w a trial court’s ruling on a motion to suppress for abuse of discretion. State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006) ; In re R.H.J. , 79 S.W .3d 1, 6 (Tex. 2002). I n other words, we will “ overturn the trial court’s ruling only if it is outside the zone of rea sonable disag ree ment.” Martinez v. State , 348 S.W .3d 919, 922 (Tex. Crim. App. 2011). On the other hand, “[ w]e will sustain the trial court’s ruling if that ruling is ‘re asonably supported by t h e re co rd and is corr ect on any theory of law applicable to the case .’” Valtierra v. State , 310 S.W .3d 442, 448 (Tex. Crim. App. 2010) (quoting Dixon , 206 S.W .3d at 590). We must view the evidenc e in the light

5most favor able to the trial court’s ruling

. State v. Garcia-Cantu , 253 S.W .3d 236, 241 (Tex. Crim.

App. 2008). “Thus, the party that preva iled in the trial court is aff orded the strong est leg itimate view of the evidenc e and all rea sonable infere nces that may be draw n from that evidenc e.” Id

. When, as here , the rec ord is silent on the rea sons for the trial court’s ruling , i

. e. , t h ere are no expli cit fac t finding s, and neither party timely reque sted finding s and conclusions from the trial court, we are to imply the nece ssary fac t finding s that would support the trial court’s ruling if the evidenc e supports those finding s. Garcia-Cantu , 253 S.W .3d at 241. Support for the implied finding s usually must

come only from the evidenc e p roduce d during the hear ing on the motion to suppress. Gutierrez

v. State , 221 S.W .3d 680, 687 (Tex. Crim. App. 2007). Howeve r, when the suppre s s i o n i s s u e i s relitig ated at trial, as it was here , the ap p el l at e co urt must consider the evidenc e from both the suppression hea

ring and the tria l. Id

. When revie wing a motion to s uppress in a juvenile case , we are to use the same bifu rc at ed s t andar d applicable to the review of suppression m otions in adult criminal cases. See R.J.H. , 79 S.W .3d at 6 ; In re A.M. , 333 S.W .3d 411, 414-15 (Tex. App.—Eastland 2011, pet. denied) ; In re D.G

. , 96 S.W .3d 465, 467 (Tex. App.—Austin 2002, no pet.). We g ive almost total defe renc e to a trial court’s deter mination of historical fac ts and mix ed questions of law and fac t (explicit or, as here , implied) that rely upon the cre dibilit y of a witness, but apply a de novo standard of revie w to pure questions o f l aw an d m ix ed questions of law and fac t that do not depend

on cre dibilit y deter

minations. Martinez , 348 S.W .3d at 922 (citing Guzman v. State , 955 S.W .2d 85, 87-89 (Te x . Crim. App. 1997)); see R.H .J. , 79 S.W .3d at 6-7.

6ANALYSIS The Texas Family Code g overns the admissibili ty of statements made by juveniles. See Tex. Fam. Code § 51.095. Gene rally , statements made by juveniles are admissible in evidenc e only if the statement shows that the chil d has, at some time befor e the making of the statement,

re ce i ved from a mag istrate a war ning that: (i) the child may rema in silent and not make an y statement at all and that any sta t em en t that the child makes may be used in evidenc e ag ainst the child; (ii) the child has the rig ht to have an attorney prese nt to advise the chi l d either prior to any questioning or during the questioning; (iii) if the child is unable to employ an attorney , the child has the rig ht to have an attorney appointed to counsel with the child befor e or during any interviews with peac e office rs or attorney s repr ese n t i ng the state; and (iv) the child has the rig ht to terminate the interview at any time. Id

. § 51.095(a) (1), (5). Howeve r, these admonishments are not require d if, at the time the statement is made, the juvenile is not being subjected to custodial interrog ation. See id

. § 51.095(b), (d); see also Martinez v. State , 131 S.W .3d 22, 32 (Tex. App.—San Antonio 2003,

no pet.) (“[A] statement which is not the product of custodial interrog ation is not require d to be suppressed, e ven whe n the juvenile does not r ece ive the statutory admonishments.”). I n this case, beca use it is undisputed that C.M.A. did not rec eive the require d statutory admonishments prior
t o m aking his statements, the dispositi ve issue is whether C.M.A. was in custody at the tim e h e was intervie wed.

“I n making the custody deter mination, the primary question is whether a rea sonable person would p er ce i v e t he detention to be a restra int on his movement ‘comparable to

. . . formal

arr est,’ g iven all the objective circ umstances.” Stat e v. Or tiz , 382 S.W .3d 367, 372 (Tex. Crim. App. 2012) (quoting Berke mer v. McCarty , 468 U.S. 420, 441 (1984))

. Stated an o t h er way , “[a] 7person is in custody if, under the totality of t he circumst an ce s , a reasonable person would believe

his fre edom of movement was restra ined to the deg ree associate d with a formal arr est.” Stansbury

v. Calif ornia , 511 U.S. 318, 322 (1994 ); Do wthit t v. State , 931 S.W .2d 244, 254-55 (Tex. Crim. App. 1996); Bartlett v. State , 249 S.W .3d 658, 668 (Tex. App.

— Au s t i n 2 0 0 8 , pet. ref ’d). I n evalua ting whether a rea s o n ab le person would believe his fre edom has been restra ined to the deg ree of a formal arr est, we are to look only to the objective fac ts surrounding the detention. Ortiz , 382 S.W .3d at 372 (citing Dowthitt , 931 S.W .2d at 255). “The subjective beliefs of t he detaining office r are not included i n t h e calc ulation of whether a suspect is in custody .” Id

. at 372-73. Howeve r, “if the office r manife sts his belief to the detainee that he is a suspec t, then that office r’s subjective belief become s rele vant t o t h e d eter mination of whether a rea sonable person in the detainee ’s position would believe he is in custody .” Id

. at 373. On the other hand, “any undisclosed subjective belief of the suspect that he is g uilty of an offe nse should not be taken into consideration—the rea sonable pe rson standar d presuppose s an ‘innoce nt person.’” Id

.

When the person being questioned is a juvenile, the above analy sis i s slightly modified. The juvenile’s ag e must be taken into consideration in the “re asonable -per son” analy sis,

so long as the child’s ag e is known t o t h e o ff icer at the time of questioning, as it was here

. See J.D.B. v. North Carolina , 131 S. Ct. 2394, 2406 (2011). “ This is not t o say that a child’s a g e will b e a d et erminative, or even a signific ant, fac tor in ever y case .” Id

. “I t is, howeve r, a rea lity th at courts can n o t s i m p l y ignor e.” Id

. There fore , as this Court has previously held, the standard for deter mining whether a juvenile is in custody is “ whether , based upon the objective c ircumstance s,

a re as o n ab le child of the same ag e would believe [hi s] fre edom of movement was signific antly restric ted.” In re L.M. , 993 S.W .2d 276, 289 (Tex. App.—Austin 1999, pet. denied). 8I n this case , there are some fac ts and circ umstances that the district court might have

found an d whi ch sug g est that a rea sonable fourtee n-y ear -old would believe that his fre edom of
movement had been signific antly restric ted. The evidenc e summarized above tends to show that in both interviews, C.M.A. was removed from class and told to g o t o t h e principal’s office —a place wher e a rea sonable fourtee n-y ear -old student might fee l at least s o m e deg ree of restra int—and

escor ted t o a room within the principal’s office by either the principal or the principal’s secre tary , either of whom a rea sonable fourtee n-y ear-o l d student might view as an authority fig ure. Once inside the room, the door was closed, and C.M.A. was questioned by a sheriff ’s deputy who may or may not have been wea

ring his uniform, but wh o wa s at t h e very least wea ring his badg e and his firea rm (althoug h, aga i n , there was no evidenc e prese nted on whether or how the firea rm was display ed to C.M.A.), and was informed by the deputy that he was a s u s p ec t in two serious crimes—bur g lary in the first interview and sexual a ssault of a child in the second interview. Also, during the second interview, the deputy was acc ompanied by an investiga tor from Child Protective Service s, and C.M.A. was told during this interview that the deputy and the investigator had alre ady spoken with the alleg ed victim. Moreove r, during the second interview, both B eatha rd and Hollas testified t hat t hey did not inform C

. M.A. that he was fre e to terminate the interview and leave the

room at any time. I n summary , there was evidenc e that C.M.A., a fourtee n-y ear -old child, was alone 5

I n his br ief, C.M.A. a lso a rgues that another circ umstance that we should c onsider in our 5 analy sis is that C.M.A., acc ording to the trial testimony of a school counselor, was “on meds.” Ho we v er, the counselor also testified that she did not know the “spec ifics” of the medicine t h at C.M.A. was taking or why he was taking it, and there is no evidenc e in the rec ord as t o wh ether C.M.A. was under the influence of the u n s p ec i fi ed medicine during the interviews, or, even if he was, how such medicine would aff ect a rea sonable fourtee n-y ear -old’s belief of whether his fre edom of movement wa s signific antly restric ted. 9in a closed room inside the principal’s office during the first interview wi t h o n e adult authority

fig ure, and during the second interview with two adult authority fig ures, and was being questioned by the adult authority

fig ures a bout their suspicion that he had c ommitt ed ser ious crimes. Howeve r, in this case , there are additional fac ts and circ umstances that, v i ewe d throug h our applicable standard of revie w, support the district c ourt’s conclusion that a rea sonable fourtee n-y ear -old in C.M.A.’s position would not believe that his fre edom of movement was restra ined to the deg ree associate d with a forma l arre st. First, there was evidenc e that during both interviews, C.M.A. was expressly told that he was not under arr est. During the first interview, there

was likewise evidenc e that C.M.A. was also told that he did not need to speak with Be athar d and was fre e to leave the room at any time. Although this information was not expressly convey ed to C.M.A. during the second interview, the district court could have rea sonably inferr ed that such information was implicitly

convey ed whe n C.M.A. was told that he wa s not under ar rest, and the district court could have further rea sonably inferr ed that a rea sonab l e fo urtee n-y ear -old would believe that he had the same fre edom to leave during the second int er v i ew that he had during the first interview, espec ially since Be athar d was ag ain conducting the interview and Be athar d had allowed C.M.A. to return to class following the first interview . Also, acc ording to Be athar d, C.M.A. “alre ady knew” him prior to the first interview, which, the district court could have rea sonably inferr ed, would have made a rea sonable fourtee n-y ear -old fee l less restra ined around Be athar d than he wo u ld have felt around other law enfor ceme nt office rs whom he did not know. Additionally , the room in which the interviews took place was not an int err og ation roo m at a police st ation, but was described instead

as “set up like a confe renc e room” that was approximately 25 to 30 fee t long and 15 to 20 fee t wide. The room ha d windows, and the door to the room also had what wa s descr ibed as a n “obser vation 10windo w. ” Although the door was closed during the interviews, it was not locked. The room

contained what was descr ibed as a “big table,” and, during the interviews, C.M.A. was seate d on the side of the table that was closest to the door. Moreove r, Be athar d and Hollas also testified that they

wer e seate d at the table during the interviews, but not on the same side of the table as C.M.A., which, the district court could have rea sonably inf e r r e d , would make a rea sonable fourtee n-y ear -old fee l less
restra ined. Additionally , the evidenc e, when viewed in the light most favor able to the district court’s ruling , tends to show that C.M.A. was not handcuf fed during either interview, he had not been

escor ted to the room by law enfor ceme nt office rs, he was not denied “basic nece ssities” during the interviews, and he was not threatene d or promised a ny thing dur ing the interviews. And, a lthough C.M.A.’s pare nts wer e not prese nt during the i nterviews , t h e ev i d ence tends to show that C.M.A. did not ask to speak with his pare nts. The evidence also tends to show that C.M.A. did not ask to leave the room, g o to t h e b athroom, or g et a drink of water during either interview. Finally , the first interview lasted approximately thirty minutes, while the second interview lasted approximately
t we n t y minutes, and once the interviews wer e completed, C.M.A. was allowed to return to class. Ba sed on this and other evidenc e, the district court could have rea sonably inferr ed that the interviews

were not so long or so intimi dating as to make a rea sonable fourtee n-y ear -old believe that his fre edom of movement had been signific antly restric ted. See Meadoux v. State , 307 S.W .3d 401, 409- 12 (Tex. App.—San Antonio 2009), aff’d on other grounds , 325 S

. W

. 3d 189 (Tex. Crim. App. 2010); In re M

.R.R. , 2 S.W .3d 319, 323-25 (Te x . App.—San Antonio 1999, no pet.). We are to sustain the trial court’s ruling if it is “re asonably supported by the rec ord,” and we can overturn t h e ru l i n g only if it is “outside the zone of rea sonable disag ree ment.” See Martinez , 348 S.W .3d at 922; Valtierra , 310 S.W .3d at 448. Ba sed on the totality of the objective 11circ umstances summarized above, and viewing the evidenc e and all rea s o n able infere nces

t h er ef rom in the light most favor able to the suppression ruling , the district court’s deter minati o n that a rea sonable fourtee n-y ear -old would not have believed that his fre edom o f m o v ement was signific antly restri ct ed d u ri ng either the first or second interview was “re asonably supported by the rec ord” and was not “outside the zo n e o f rea sonable disag ree ment.” Acc ording ly , we cannot conclude that the trial court abused its discretion in deny ing the motion to suppress on the g round that C.M.A. was not in custody duri n g eit her interview. We overr ule C.M.A.’s first and second points of e rror .
CONCLUSION

We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and F ield Affir med Filed: Jul y

2, 2013

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