Lopez, Johnny Manuel v. The State of Texas--Appeal from 212th District Court of Galveston County

Affirmed and Memorandum Opinion filed January 23, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01235-CR

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JOHNNY MANUEL LOPEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 212th District Court

Galveston County, Texas

Trial Court Cause No. 97CR1910

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

In a single point of error, Johnny Lopez appeals his conviction for murder for remuneration. Specifically, he contends the trial court erred in failing to suppress his confession because the police (1) failed to timely and adequately inform his mother about his arrest; (2) took his confession in her absence; and (3) questioned him after taking him to the juvenile detention center. We affirm.

Facts

Appellant, 16 years old, participated in the murder of Curtis Holder for a $50,000 payment. League City Police Officer Charles Slade, with two other detectives, took appellant into custody for questioning about the crime at 11:40 a.m. on June 3, 1997. They arrived at the police department at 12:20 p.m., and Officer Slade placed appellant in a juvenile processing office, while a dispatcher called appellant s mother, Angie Lopez. Officer Slade testified that when Mrs. Lopez returned the telephone call at 2:00 p.m., he explained why her son was being held for questioning. Because she had no available transportation, he arranged for a police car to pick her up. Mrs. Lopez testified that she was not contacted by a police dispatcher and that Officer Slade did not explain why her son was at the police station. Instead, she stated she was told only to come to the police station as soon as possible.

Meanwhile, police showed appellant photographs of his accomplice and the victim s wife. Police discovered that appellant was in possession of a gold money clip, which belonged to the victim. At 2:13 p.m., they took appellant before Magistrate Judge Foster, who warned appellant and informed him of his rights. Then, at 3:18 p.m., appellant gave his first statement. Although appellant did not implicate himself, the police returned him to the magistrate for further warnings, which were completed at 4:15 p.m.

By this time, police were nearing the six-hour limit under section 52.025(d) of the Family Code to detain appellant in a juvenile processing office. Thus, they delivered appellant to Sergeant Gary Ratliff at 4:17 p.m. for transport to Galveston County s juvenile detention center. Before his transport, appellant was permitted to speak with his mother, who had just arrived. Afterwards, appellant admitted to Sergeant Ratliff that he had messed up and, when asked, stated that he wished to give a second statement.

Sergeant Ratliff left the police station with appellant at 5:40 p.m., arrived at the juvenile detention center at 6:05 p.m., and returned to the police station with appellant at 6:36

p.m. By this time, appellant s mother had already gone home. Upon return to the police station, the magistrate administered warnings and advised appellant regarding his rights. Appellant gave his second statement from 7:48 p.m. until 9:00 p.m., this time fully confessing his part in the crime.

Family Code Violations

  Appellant contends that police took his confession in violation of sections 52.02(a), 52.02(b), and 52.025(c) of the Family Code. Tex. Fam. Code Ann. 52.02(a); 52.02(b); 52.025(c) (Vernon Supp. 2002) (setting forth procedures for parental notification and release or detention of juvenile held in processing center). Accordingly, he argues that the trial court should have suppressed the statement. However, appellant did not complain of any violation of sections 52.02 and 52.025 in his written motion to suppress or at the trial court hearing. Therefore, appellant waives review under these grounds. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); Jeffley v. State 38 S.W.3d 847, 853 (Tex. App. Houston [14th Dist.], 2001 pet ref d.); Davis v. State, 22 S.W.3d 8, 11 (Tex. App. Houston [14th Dist.] 2000, no pet.) (holding a motion to suppress which states one legal theory cannot be used to support a different legal theory on appeal). Appellant raised violation of section 51.09 of the Family Code in his motion to suppress, but he did not raise this issue on appeal. Having failed to preserve any alleged error, appellant presents nothing for review. Tex. R. App. P. 33.1. Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed January 23, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).