In the Matter of K.M.C.--Appeal from 73rd Judicial District Court of Bexar County

No. 04-98-00039-CV
IN THE MATTER OF K.M.C.
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 97-JUV-01712
Honorable Andy Mireles, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 10, 1999

AFFIRMED AS REFORMED

A jury found K.M.C. engaged in delinquent conduct by committing aggravated robbery, and the trial court assessed a determinate sentence of fifteen years. K.M.C. appeals arguing: (1) the trial court failed to properly admonish her before trial; (2) the trial court erred in failing to suppress her oral statement; (3) the evidence is factually insufficient to support the jury's finding; (4) the State's closing argument deprived her of her right to a fair and impartial trial; and (5) the trial court erred in failing to reform the adjudication and disposition orders as agreed. We delete the deadly weapon finding and otherwise affirm the trial court's judgment.

Factual and Procedural Background

While waiting for his car to get washed, Borg Hansen met Jessica Longoria. During the ensuing conversation, Longoria offered to have sex with Hansen for money. Hansen gave Longoria his card and left. The next day, after receiving a phone call from Longoria, Hansen agreed to meet her at a local restaurant. Upon arriving, Hansen saw Longoria sitting at a table with another girl, later identified as K.M.C. Hansen sat down and the three negotiated the price he would pay for sex with the two girls. After they reached an agreement and finished eating, Hansen drove Longoria and K.M.C. back to his house. Once there, the girls roamed around the house, looking into various rooms. Hansen, Longoria, and K.M.C. eventually went upstairs into the master bedroom, where Hansen proceeded to play a pornographic video. However, before any sexual acts were initiated, Longoria and K.M.C. left the bedroom and went into Hansen's front yard. At that point Hansen decided that he had made a mistake and asked the girls to get into his car. Hansen returned Longoria and K.M.C. to the restaurant, at which point the girls asked him for money. When he refused, the girls indicated that they knew where he lived and were willing to blackmail him. Hansen returned home alone.

Hansen had not been home more than twenty minutes when the doorbell rang. He came around the outside of the house to find Longoria and K.M.C., accompanied by Charles Cameron. Longoria asked Hansen if she could retrieve a lighter she had left in his house. Hansen said he would look for it. But, as he was walking back into the house, Cameron beat Hansen about the head and stabbed him in the back. Longoria, who was also carrying a knife, also beat Hansen. Hansen then watched as Cameron, Longoria, and a fourth individual, Robert Kennedy, took some items from his house and destroyed other items. Hansen attempted to get to the front door several times, but Cameron kept dragging him back.

Cameron took Hansen upstairs to the walk-in closet in the master bedroom. Longoria was also in the master bedroom taking Hansen's wife's jewelry. As Cameron was looking through the closet and Longoria was looking through the dresser, Hansen grabbed his gun in the closet and walked back into the bedroom. Hansen then told Longoria and Cameron to drop their knives. Longoria lurched toward Hansen with her knife and Hansen shot her. Cameron then dropped his knife, picked up Longoria and left the house. Kennedy drove Cameron, Longoria, and K.M.C. to a nearby gas station. When the police arrived, K.M.C. and Cameron were standing next to Longoria's body. K.M.C. was arrested and later adjudicated delinquent for committing aggravated robbery.

Admonishment

At the beginning of a juvenile adjudication hearing, the juvenile court judge is required to "explain to the child and his parent, guardian, or guardian ad litem the allegations made against the child." Tex. Fam. Code Ann. 54.03(b)(1) (Vernon 1996). The trial court cannot meet these requirements by delegating its responsibility to the prosecutor in the case. In re K.L.C., 990 S.W.2d 242, 243-44 (Tex. 1999). However, any error committed by the trial court in delegating its responsibilities to the prosecutor can be rendered harmless if the prosecutor read the petition "at the direction of and in the presence of the trial court," and the petition was "sufficiently clear and direct to explain the allegations against the juvenile." Id. at 244.

Here, the trial court personally informed K.M.C. of her privilege against self-incrimination, her rights to counsel and a jury trial, and the consequences of the proceedings. The trial judge also made clear that he wanted K.M.C. to "understand the charges that are pending against you," and that he would have the prosecutor read the charges out loud to her. The trial court then asked the prosecutor "what are the charges against [K.M.C.]," and the prosecutor read the relevant portion of the petition. The petition clearly stated the charge, detailing the date, victim, type of weapon used against the victim, and property stolen. K.M.C. then acknowledged she had heard the charges and had no questions regarding them. We therefore hold any error the trial court committed in failing to explain the allegations against K.M.C. was rendered harmless by the fact that the petition was read by the prosecution at the behest and in the presence of the court, and the petition was clear enough to explain the aggravated robbery charges against K.M.C. See id.

Motion to Suppress

In her second point of error, K.M.C. argues the trial court erred in denying her motion to suppress a statement she made while in police custody because the statement did not fit within any of the exceptions in section 51.095 of the Texas Family Code. We disagree.

Standard of Review

We review a trial court's denial of a motion to suppress under the abuse of discretion standard. In re S.J., 977 S.W.2d 147, 151 (Tex. App.--San Antonio 1998, no pet.). Under this standard, we give the trial court's resolution of questions of historical fact substantial deference as long as they are supported by the record, but we review its rulings on questions of law and its application of the law to the facts de novo, unless the "ultimate resolution of [the] question[] turns on an evaluation of credibility or demeanor." Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).

Discussion

After the police arrested K.M.C. and read the Miranda warnings, they took her to the juvenile offices in the San Antonio Police Department and placed her in an interview room. Officer Billy Rutland went into the room and made sure K.M.C. was comfortable. He then read K.M.C. her rights again and asked her if she wanted to make a statement. When K.M.C. indicated she did, Officer Rutland explained to her that she had to visit with a magistrate before he could take her statement. Officer Rutland then drove K.M.C. to the magistrate's office less than a mile away only to discover no magistrate judge was available. Consequently, Rutland drove K.M.C. back to the police station and took her to the same investigation room in which she had been before. Rutland asked K.M.C. if she wanted anything to drink and retrieved some cigarettes for her.

At one point, without any questioning from Rutland, K.M.C. began talking about the robbery. She told Rutland she had had a relationship with Longoria, and Longoria told her about a man she had met who offered her money for sex. K.M.C. said they developed a plan to meet the man (Hansen) and "get money from him without having the sex with him." K.M.C. admitted she and Longoria met Hansen at a restaurant and went to his house. But, when he started to try to touch them, he would not give them money, so they "got mad and took off." When they got back to the restaurant, K.M.C. said she paged her friend Cameron. K.M.C. further stated that when Cameron and Kennedy arrived at the restaurant and spoke with the girls, they all became angry, particularly Cameron, who wanted to hurt Hansen. So, Cameron, Longoria, Kennedy, and K.M.C. went back to Hansen's house. K.M.C. admitted they went into the house and began tearing it up. She also saw Longoria and Kennedy taking some of Hansen's things, but she claimed she did not take anything. Furthermore, while she said she knew Cameron had a knife, she claimed she did not see him stab Hansen. Later, she saw Cameron come out of the house dragging Longoria and she knew Longoria had been shot. At that point, Rutland asked her "how she knew what had happened to [Longoria]," and K.M.C. responded that Cameron told her. According to Rutland, this was the first question he asked K.M.C. Prior to that question, K.M.C. had been "just talking," and Rutland "just was listening." Furthermore, Rutland could not specifically remember asking K.M.C. any questions other than how she knew Longoria had been shot. After answering Rutland's question, K.M.C. went on to explain that Kennedy drove all of them to a nearby gas station where the police picked them up. When K.M.C. finished talking about the incident, Rutland took her back to the magistrate's office. After speaking with a magistrate, K.M.C. decided not to give a statement without her attorney. K.M.C. apologized to Rutland because she had promised him a statement.

Before trial, K.M.C. moved to suppress evidence of the oral statement she made to Rutland, arguing it was the result of custodial interrogation and did not fall within any of the categories of admissible statements in section 51.095 of the Texas Family Code. The State argued K.M.C.'s statement was not the result of custodial interrogation but a spontaneous outburst not in response to any type of interrogation and thus admissible. See Tex. Fam. Code Ann. 51.095(b)(1) (Vernon Supp. 1998). The trial court agreed and allowed Rutland to testify regarding K.M.C.'s entire oral statement. K.M.C. argues on appeal that Rutland took several actions that amounted to interrogation: (1) Rutland placed himself in the same room where he had previously interrogated K.M.C.; (2) he made sure K.M.C. was comfortable; (3) he was concerned about the lapse of time since she said she would make a statement; (4) he was confident that he would get a statement from K.M.C.; and (5) he questioned K.M.C. about how she knew Longoria had been shot.

Section 51.095 does not bar the admission of statements that are not made in response to custodial interrogation. Id. The parties agree K.M.C. was in custody when she gave her statement, but they disagree whether her statement stemmed from interrogation. "Interrogation" is not only "express questioning, but also any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). An "incriminating response" is "any response--whether inculpatory or exculpatory--that the prosecution may seek to introduce at trial." Id. at n.5.

K.M.C. argues when she was placed in the interrogation room for a second time her statement "was a continuation of [Rutland's] custodial interrogation" from when they were first in the room. However, the record fails to show interrogation ever began. Rutland warned K.M.C. of her rights and asked her whether she would like to make a statement. When she responded that she did, Rutland clearly delayed interrogation until K.M.C. could be magistrated. Furthermore, to the extent Rutland's question "would you like to make a statement?" amounted to interrogation, K.M.C.'s statement was too far removed in substance and in time from the question to constitute a response to the question.(1) Therefore, K.M.C.'s statement did not stem from any earlier interrogation. See Etheridge v. State, 903 S.W.2d 1, 15 (Tex. Crim. App. 1994) (statement that went beyond scope of officer's inquiry was not the result of custodial interrogation), cert. denied, 516 U.S. 920 (1995); Longoria v. State, 763 S.W.2d 597, 599-600 (Tex. App.--Corpus Christi 1988, no pet.).

Furthermore, Rutland's acts of removing K.M.C.'s handcuffs, giving her cigarettes, letting her use the restroom, and asking her if she needed anything to drink were not actions that Rutland should have known were reasonably likely to elicit incriminating statements from K.M.C.. And Rutland's thoughts and concerns amounted to neither "words" nor "actions" that could be construed as interrogation. Finally, while Rutland did ask K.M.C. to explain one statement, any error in admitting K.M.C.'s subsequent response was harmless in light of the fact that K.M.C. had already made much more damaging and incriminating statements that were admissible. See Tex. R. App. P. 44.1(a); c.f. Cox v. State, 843 S.W.2d 698, 702 (Tex. App.--Corpus Christi 1992, pet. ref'd). Therefore, we overrule K.M.C.'s second point of error.

Factual Sufficiency

Under her third point of error, K.M.C. argues the evidence was factually insufficient to support the jury's finding.

Standard of Review

When reviewing a factual insufficiency challenge, we consider all of the evidence and set aside the verdict only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); In re A.C., 949 S.W.2d 388, 389-90 (Tex. App.--San Antonio 1997, no writ).

Discussion

A person commits the offense of aggravated robbery "if he commits robbery as defined in Section 29.02, and he uses or exhibits a deadly weapon." Tex. Pen. Code Ann. 29.03(a)(2) (Vernon 1994). A person commits robbery, when "in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Id. 29.02(a)(2). Theft is the unlawful appropriation of property with the intent to deprive the owner of the property. Id. 31.03(a). Under the law of parties, a person is criminally responsible as a party to an offense if the offense is committed by someone for whom she is criminally responsible. Id. 7.01(a). "A person is criminally responsible for an offense committed by the conduct of another if[,] acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. 7.02(a)(2).

K.M.C. correctly points out there is no evidence K.M.C. took anything from the house or saw Cameron stab Hansen. Nonetheless, we hold there is factually sufficient evidence to support a finding that K.M.C. was criminally responsible as a party to the aggravated robbery of Hansen. K.M.C. admitted she and Longoria planned to get money from Hansen. When they first went to his house, they looked around several of the rooms. After Hansen returned K.M.C. and Longoria to the restaurant, the girls warned Hansen that they knew where he lived and attempted to blackmail him. K.M.C. then paged her friend, Cameron, who met them at the restaurant. K.M.C. and the others became angry and went back to the house. K.M.C. knew Cameron had a knife. Cameron attacked Hansen with the knife, and he and Longoria both beat him. Hansen testified he was afraid for his life. K.M.C. entered the house and took part in damaging Hansen's home. Longoria, Cameron, and Kennedy each took items out of Hansen's home. K.M.C. joined the others as they left with bags full of Hansen's property. In light of this evidence, we hold the evidence is factually sufficient to support the jury's finding. See Dudik v. State, 994 S.W.2d 267, 269-71 (Tex. App.--Houston [14th Dist.] 1999, no pet. h.).

Jury Argument

K.M.C. argues in her fourth point of error that the trial court erred in allowing the State to make the following incurable remarks to the jury during closing argument:

This is your opportunity to make a difference in [K.M.C.'s] life. You want to save her life? Then you find her guilty of this offense so that she can get the supervision she needs so that she can start being held accountable for her actions so somebody can make her go to school and get her education and hopefully turn her into something better than she was six months ago. This is her one chance, and this is your chance to make a difference.

However, K.M.C. waived any error caused by the admission of the prosecutor's argument by failing to object at trial. See In re C.O.S., 988 S.W.2d 760, 765-66 (Tex. 1999); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997). Therefore, we overrule K.M.C.'s fourth point of error.

Deadly Weapon Finding

In her final point of error, K.M.C. argues the trial court erred in failing to reform the disposition order to reflect that she did not use or exhibit a deadly weapon. We agree.

The trial court found in its order of disposition that K.M.C. "did use and exhibited a (deadly weapon/firearm) during the commission of the delinquent conduct or during the immediate flight from the commission of the delinquent conduct." To support this finding there must be some evidence K.M.C. personally used or exhibited a weapon. In re A.F., 895 S.W.2d 481, 486 (Tex. App.--Austin 1995, no writ); see Tex. Fam. Code Ann. 54.04(g) (Vernon 1996). There is no such evidence. The trial court thus indicated it would reform the disposition order to delete its deadly weapon finding. But the record does not reflect any change. We therefore sustain K.M.C.'s fifth point of error and reform the disposition order to delete the trial court's finding that K.M.C. used and exhibited a deadly weapon. See In re A.F., 895 S.W.2d at 486-87.

We affirm the judgment as reformed.

Sarah B. Duncan, Justice

Do not publish

1. Roughly forty-five minutes passed from the time Rutland initially spoke with K.M.C. to the time she finished telling him about the robbery.