Opinion filed July 16, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-14-00064-CR

__________

THE STATE OF TEXAS, Appellant

V.

LISA ANN PETERSEN, Appellee

On Appeal from the County Court at Law

Midland County, Texas

Trial Court Cause No. 142727

O P I N I O N

This is a shoplifting case. Appellee, Lisa Ann Petersen, was charged with the 

offense of theft of property valued at an amount greater than or equal to fifty dollars 

but less than five hundred dollars, a Class B misdemeanor. See TEX. PENAL CODE 

ANN. § 31.03(a), (e)(2)(A)(i) (West Supp. 2014). She filed a motion to suppress 

evidence of her statements to “Midland Police Department and/or any persons acting 

as agents of the Midland Police Department.” She alleged that her statements in 
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response to questioning by police officers and a store security guard should be 

suppressed because they were given without Miranda warnings. See Miranda v. 

Arizona, 384 U.S. 436, 444 (1966). After conducting a pretrial hearing on the motion 

to suppress, the trial court granted the motion by written order. The State of Texas 

brings this interlocutory appeal of the trial court’s order granting the motion to 

suppress. We reverse and remand.

Background Facts

Appellee was shopping in a Wal-Mart in Midland. The store’s lossprevention officer, Moses Cortez, noticed that Appellee placed several items in 

shopping bags and then placed the bags in her shopping cart. Cortez watched 

Appellee pay for one item and then walk through the registers without paying for the 

rest of her items. Cortez stopped Appellee right before the exit, identified himself 

as a security guard, and showed her his “Wal-Mart badge.” Cortez said that he told 

Appellee that the police were on their way. Appellee stayed at the scene at Cortez’s 

instruction. Cortez began asking Appellee questions. Cortez testified that Appellee 

“admitted to theft,” but he could not recall her exact words. Cortez did not make a 

recording of Appellee’s oral statement, and he did not give her any Miranda

warnings.

The pretrial hearing on the motion to suppress focused on Appellee’s 

statements to Cortez. In orally granting the motion to suppress, the trial court ruled 

that “any statements made by the Defendant at this time prior to the arrest were 

custodial in nature. And I believe that they are inadmissible.” The trial court 

subsequently entered a written order suppressing the statements made by Appellee. 

The State then filed an interlocutory appeal of the trial court’s written order granting 

the motion to suppress.
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Analysis

In its sole issue, the State argues that the trial court erred when it granted 

Appellee’s motion to suppress. We note at the outset that the State has limited rights 

of appeal in criminal cases. See TEX.CODE CRIM. PROC. ANN. art. 44.01 (West Supp. 

2014). The State is entitled to appeal an order of a court in a criminal case that grants 

a motion to suppress evidence if jeopardy has not attached and if the elected 

prosecutor certifies to the trial court that the appeal is not taken for the purpose of

delay and that the suppressed evidence is of substantial importance to the case. Id.

art. 44.01(a)(5). The elected district attorney for Midland County personally signed 

the notice of appeal filed in this case certifying the matters required to invoke this 

court’s jurisdiction to review the trial court’s interlocutory order granting the motion 

to suppress. See State v. Redus, 445 S.W.3d 151, 154–55 (Tex. Crim. App. 2014). 

A trial court’s ruling on a suppression motion is reviewed on appeal for an 

abuse of discretion, with almost complete deference given to its determination of 

historical facts, especially if those are based on an assessment of credibility and 

demeanor. See Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013)

(citing Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). The same 

deference is afforded the trial court with respect to its rulings on application of the 

law to questions of fact and to mixed questions of law and fact, if resolution of those 

questions depends on an evaluation of credibility. Id. For mixed questions of law 

and fact that do not fall within that category, a reviewing court may conduct a de 

novo review. Id. We review de novo a trial court’s application of the law to the 

facts. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013); Valtierra v. 

State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Regardless of whether the trial 

court granted or denied the motion, appellate courts view the evidence in the light 

most favorable to the ruling. Wade, 422 S.W.3d at 666; State v. Woodard, 341 

S.W.3d 404, 410 (Tex. Crim. App. 2011). If the trial court makes express findings 
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of fact, as the court did in this case, we review the evidence in the light most 

favorable to the trial court’s ruling and determine whether the evidence supports 

these factual findings. Valtierra, 310 S.W.3d at 447.

The State challenges the trial court’s implicit determination that Cortez was 

an agent of law enforcement when Appellee made statements to him purportedly 

admitting the theft. In Wilkerson v. State, the Texas Court of Criminal Appeals 

addressed the question of whether an agency relationship existed between law 

enforcement and non-law enforcement agents in order to determine if Miranda

warnings were required. Wilkerson v. State, 173 S.W.3d 521 (Tex. Crim. App. 

2005). To determine if an agency relationship exists, appellate courts must examine 

the entire record and consider three factors: (1) the relationship between the police 

and the potential police agent, (2) the interviewer’s actions and perceptions, and 

(3) the defendant’s perceptions of the encounter. Id. at 530–31. This test helps 

courts determine whether the interviewer was acting as an instrumentality or was “in 

cahoots” with the police or prosecution. Elizondo v. State, 382 S.W.3d 389, 394 

(Tex. Crim. App. 2012) (citing Wilkerson, 173 S.W.3d at 531).

Wilkerson involved a CPS investigator that interviewed a father who was in 

police custody for injury to a child. Wilkerson, 173 S.W.3d at 523. The CPS worker 

needed to discuss the placement of the father’s children in foster care and did not 

give Miranda warnings prior to speaking with the father. Id. During the interview, 

the father acknowledged spanking his son, and this information was included in the 

CPS report that was forwarded to the police. Id. The court held that non-law

enforcement state agents are required to give Miranda warnings only when acting in 

tandem with the police to gather evidence for a criminal prosecution. Id. 

Accordingly, the facts in Wilkerson are very different from the facts in this appeal.

In Elizondo, the Court of Criminal Appeals applied the test that it had adopted 

in Wilkerson and addressed the question of whether a retail store’s loss-prevention 
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officer was required to give Miranda warnings. Elizondo, 382 S.W.3d at 394–95. 

The court began its analysis by noting that the law does not presume an agency 

relationship and that the party alleging such a relationship has the burden of proving 

that it exists. Id. at 395 (citing Wilkerson, 173 S.W.3d at 529). The court then 

applied the three Wilkerson factors to the facts of the case. Id.

Elizondo involved a loss-prevention officer employed by Old Navy. Id. at 

391. After observing the defendant leave the store without paying for items, the 

loss-prevention officer intercepted her outside the store and asked her to return to 

the store with him. Id. The loss-prevention officer and a manager of the store took 

the defendant to a manager’s office and retrieved the stolen items from her purse. 

Id. at 391–92. The loss-prevention officer then presented the defendant with a 

document entitled “GAP INC. CIVIL DEMAND NOTICE.” Id. at 391. The 

document contained an admission of theft, wherein the defendant “admitted to the 

theft of” items from the store, admitted the value of the stolen items, and declared

that her detention was reasonable. Id. The defendant signed the document and a 

store receipt reflecting the value of the items taken. Id. The loss-prevention officer 

testified that these events were the “typical protocol” for theft at Old Navy. Id. He 

then called the Lubbock Police Department, after which officers arrived and arrested 

the defendant for theft. Id. The district attorney’s office subsequently obtained a 

copy of Old Navy’s records pertaining to the theft, including the civil demand notice 

signed by the defendant. Id. The defendant moved to suppress the civil demand 

notice on the ground that the loss-prevention officer did not give Miranda warnings 

to her prior to obtaining the statement. Id.

The loss-prevention officer in Elizondo testified that he had worked for Old 

Navy for three years and that he had never worked in law enforcement. Id. He 

obtained written confessions in “99%” of his encounters with accused shoplifters,

and those confessions were kept for the store’s records. Id. However, the store 
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would give a copy to the police or a prosecutor upon request. Id. He also testified 

that the store’s primary purpose for obtaining written confessions from accused 

shoplifters was for “punitive or monetary damages” associated with the shoplifting. 

Id. at 391–92.

With respect to the first Wilkerson factor of examining the relationship 

between the police and the potential police agent, the court in Elizondo determined 

that there was no indication of a calculated practice between the police and the 

store’s loss-prevention staff even though the police may have been aware of the 

store’s practice of obtaining signed statements from accused shoplifters. Id. at 395. 

In reaching this determination, the court noted that the police had not been contacted 

when the loss-prevention officer obtained the statement, “so they clearly did not 

instruct [the loss-prevention officer] to get specific information or give him questions 

to ask [the defendant].” Id. (emphasis added). The second Wilkerson factor focuses 

on the interviewer’s actions and perceptions. Id. The court in Elizondo determined 

that the purpose of the loss-prevention officer’s interview was to adhere to the store’s 

policies rather than acting as a police agent. Id. The third Wilkerson factor focuses 

on the defendant’s perception of the encounter. The court in Elizondo noted that, if 

there is nothing in the record regarding the defendant’s perception, the court is 

required to consider whether a reasonable person in the defendant’s position would 

believe that the loss-prevention officer was a law enforcement agent. Id. at 396. The 

court concluded that a reasonable person in the defendant’s position would not have 

believed that the loss-prevention officer was a law enforcement agent because he 

was not wearing a uniform and he identified himself as a loss-prevention officer for 

Old Navy. Id. “There was nothing in the record indicating that [the loss-prevention 

officer] appeared to [the defendant] to be cloaked with the actual or apparent 

authority of the police.” Id.
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As was the case in Elizondo, the resolution of this appeal is governed by an 

application of the Wilkerson factors to the facts in this case to determine if an agency 

relationship existed between Cortez and the police. The trial court did not make an 

explicit finding of an agency relationship. However, the trial court entered the 

following written findings of fact that are relevant to our analysis:

Findings of Fact

. . . .

5. The state announced its intention to utilize admission of 

[Appellee’s] statements prior to her arrest by security personnel for 

Walmart, Moses Cortez under the shop keeper privilege and that her 

statements were voluntary and spontaneous and not the result of

custodial interrogation.

6. Walmart security officer Cortez watched [Appellee] place 

items into shopping bags and proceed[] through the cashier’s line 

without paying for some of the items she had placed in her shopping 

cart.

7. Prior to stopping [Appellee] before she left the store premises, 

security officer Cortez had already made the determination to prosecute 

[Appellee] as a shop lifter [sic].

8. Security officer Cortez stopped [Appellee] before the exits of 

the Walmart store building.

9. Security officer Cortez admits [Appellee] never left the store 

before his apprehension of [Appellee].

10. Security officer Cortez identified himself and showed 

[Appellee] his Walmart badge.

11. Security officer Cortez admits that he already called the 

police as a result of his prior decision to prosecute [Appellee] for theft 

before her stop and apprehension.

12. Security officer Cortez informed [Appellee] that the police 

were on their way after [Appellee’s] initial stop and detention.

13. Security officer Cortez admits that [Appellee] stayed at the 

store pursuant to his instructions.
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14. Security officer Cortez indicates [Appellee] “admitted to 

theft”; and further indicates he does not recall statements [Appellee] 

told him after apprehension that made security officer Cortez conclude 

[Appellee] admitted to theft.

We note that the most significant finding of fact would appear to be Finding of Fact 

No. 11, wherein the court found that Cortez called the police before stopping 

Appellee. While Cortez subsequently disagreed with this testimony when 

questioned by the prosecutor, his earlier testimony supported the trial court’s finding 

that he contacted the police prior to his detention of Appellee. Accordingly, we are 

bound by this finding. See Valtierra, 310 S.W.3d at 447. The court in Elizondo

relied on the fact that Old Navy’s loss-prevention officer had not called the police 

when he questioned the defendant. Even though Finding of Fact No. 11 is 

distinguishable from the facts in Elizondo, we conclude that it is not controlling.

The first Wilkerson factor examines the relationship between the police and 

the potential police agent. There was no finding of a “calculated practice” between 

the Midland police and Cortez or any evidence in that regard. Elizondo, 382 S.W.3d 

at 395. While the trial court found that Cortez contacted the police before detaining 

Appellee, there was no evidence that the police instructed him to obtain a statement 

from Appellee, which was significant to the court’s analysis in Elizondo—citing the 

fact that the Old Navy loss-prevention officer had not contacted the police before 

obtaining the statement from the defendant. Accordingly, we conclude that the first 

factor weighs against a finding of an agency relationship.

The second part of the Wilkerson test focuses on the interviewer’s actions and 

perceptions to evaluate the purpose of the interview. Wilkerson, 173 S.W.3d at 530. 

The trial court found that, “[p]rior to stopping defendant before she left the store 

premises, security officer Cortez had already made the determination to prosecute 

defendant as a shop lifter [sic].” The record supports this finding. Cortez was asked,

“[W]hy were you stopping her? What was your intention?” Cortez responded, 
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“Prosecution.” Unlike the situation in Elizondo, there was no evidence that Cortez 

questioned Appellee in accordance with store policy. Thus, his purpose in 

interviewing Appellee was to prosecute her for theft. Accordingly, this factor 

weighs in favor of an agency finding.

The third Wilkerson factor focuses on the defendant’s perception of the 

encounter. As was the case in Elizondo, there is nothing in the record regarding 

Appellee’s perception. Accordingly, we are required to consider whether a 

reasonable person in Appellee’s position would have believed that Cortez was a law

enforcement agent. We conclude that a reasonable person would not have believed 

that Cortez was a law enforcement agent. The trial court found that Cortez 

“identified himself and showed [Appellee] his Walmart badge.” In reliance upon 

similar findings, the Court of Criminal Appeals in Elizondo determined that there 

was nothing in the record indicating that the loss-prevention officer appeared to the 

defendant to be cloaked with the actual or apparent authority of the police. Elizondo,

382 S.W.3d at 396. Thus, this factor also weighs against a finding of agency.

After giving deference to the trial court’s written findings of fact, we have 

determined that two of the three Wilkerson factors weigh against a finding that 

Cortez was an agent of law enforcement. We further conclude that the trial court 

abused its discretion in granting Appellee’s motion to suppress all statements that 

Appellee made to either Cortez or the police.

1

 Our conclusion is based in large part 

on the fact that Appellee had the burden of establishing an agency relationship 

between Cortez and the police. However, only one of the Wilkerson factors weighs

 

1The trial court also suppressed any statements that Appellee may have made to the police. 

However, the trial court did not receive any testimony about her statements to police officers. In this regard, 

it appears that the trial court made the determination that any statement occurring after Cortez’s encounter 

with Appellee should be suppressed.
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in her favor. Additionally, we disagree with the trial court’s conclusion that 

Appellee was in custody when Cortez questioned her.

Miranda warnings are only required when police conduct a custodial 

interrogation of a suspect. Id. at 394. A person is in “custody” if, under the 

circumstances, “a reasonable person would believe that his freedom of movement 

was restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 

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

318, 322–25 (1994)). The reasonable person standard presupposes the person is 

innocent. Dowthitt, 931 S.W.2d at 254. Cortez’s questioning of Appellee occurred 

near the exit doors of the Wal-Mart. Cortez had not asked to move to another 

location within the store and had not physically restrained Appellee’s movement. 

Accordingly, we disagree with the trial court’s conclusion that Appellee was in 

custody when Cortez encountered her.

Appellee raises the contention that the trial court’s act of granting the motion 

to suppress constituted harmless error. She bases this contention on the allegation 

that the State “cannot prevail on its prosecution due to insufficient evidence that a 

crime was committed by [Appellee].” It appears that Appellee is asserting that she 

could not have been prosecuted for shoplifting because she had not completely 

exited the store. She additionally argues that Cortez could not recall her exact 

statements.

We are precluded from engaging in the inquiry that Appellee requests us to 

make. The elected district attorney certified in the notice of appeal that the excluded 

evidence “is of substantial importance in this case.” The defendant is not permitted 

to challenge the verity of the prosecutor’s certification of “substantial importance.” 

Redus, 445 S.W.3d at 156 n.16 (“[O]nce the government certifies that the evidence 

is a substantial proof of a material fact, a reviewing court may not review ‘the 

substantiality or the materiality’ of the evidence.” (quoting State v. Chupik, 343 
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S.W.3d 144, 146 (Tex. Crim. App. 2011)) (internal quotation marks omitted)). 

Furthermore, in the pretrial setting, there is neither constitutional nor statutory 

authority for a defendant to test, or for a trial court to determine, the sufficiency of 

the evidence to support or defeat an element alleged in the charging instrument. 

Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005). We sustain the State’s 

sole issue.

This Court’s Ruling

We reverse the order of the trial court granting Appellee’s motion to suppress 

evidence, and we remand this cause to the trial court for further proceedings 

consistent with this opinion.

JOHN M. BAILEY 

JUSTICE

July 16, 2015

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.