Becky Elizondo v. State ( 2011 )

NO. 07-10-00213-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 7, 2011
BECKY ELIZONDO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2009-454,835; HONORABLE LARRY B. "RUSTY" LADD, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION
Appellant Becky Elizondo appeals from her jury conviction of the offense of theft
in an amount of $50 to $500 and the resulting sentence of thirty days in the Lubbock
County Jail. Through one issue, she argues the trial court erred in failing to grant her
motion to suppress her confession. We will affirm.
Background
On March 18, 2009, appellant and her friend Linda walked into an Old Navy store
in Lubbock. A loss prevention officer for the store, Mora, saw the women arrive. He
noticed Linda was carrying a flat purse. Mora watched the two, and eventually saw
Linda, with appellant at her side, put items of merchandise in her purse. He intercepted
the two after they passed the registers and walked out of the store without paying for
the items. He asked them to return to the store, and took them to the manager’s office,
where Linda produced the items from her purse.
Mora gave appellant a document entitled “Gap Inc. Civil Demand Notice.”1 He
asked her to read and sign it if she agreed with it. The document contained the
statement, “I, Becky Abajo Elizondo, have admitted to the theft of merchandise/cash
valued at $65.00 from GAP INC., Store No. 6220, located at 6249 Slide Rd. I also
hereby acknowledge that my detention on this date was reasonable.” Appellant
completed the form and signed and dated it. Mora took photographs of appellant and
the stolen clothing, and had a store clerk print a receipt reflecting the value of the
merchandise.
Appellant was in the store manager’s office about an hour. Mora then called
Lubbock police, who came to the store and arrested appellant and Linda. Sometime
before trial, an investigator with the district attorney’s office contacted Mora and
received from him a copy of his report that included the civil demand notice.
Appellant filed a motion to suppress the civil demand notice obtained by Mora.
The trial court heard the motion at the beginning of trial. Mora testified at the hearing.
The civil demand notice, the photographs, and the receipt were received as evidence at
the suppression hearing. The trial court denied appellant’s motion to suppress and
1
Appellant’s brief explains that Old Navy stores are affiliated with Gap, Inc.
2
made findings of fact and conclusions of law on the record. The case proceeded to trial
and appellant was found guilty and sentenced as noted. This appeal followed.
Analysis
Through her sole issue, appellant argues the trial court erred in failing to grant
her motion to suppress her confession because it was obtained in violation of the Fifth
and Fourteenth Amendments to the United States Constitution, Article I, Section 10 of
the Texas Constitution and article 38.22 of the Texas Code of Criminal Procedure. U.S.
Const. amends. V, XIV; Tex. Const. art. 1, § 10; Tex. Code Crim. Proc. Ann. art. 38.22
(West 2010).
Applicable Law
A trial court's ruling on a motion to suppress a confession is reviewed on an
abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.
2002). In determining whether the trial court abused its discretion we give "almost total
deference to a trial court's determination of the historical facts" and review the court's
application of the law to the facts de novo. Guzman v. State, 955 S.W.2d 85, 88-89
(Tex.Crim.App. 1997). If the issue involves the credibility of a witness, such that the
demeanor of the witness is important, then greater deference will be given to the trial
court's ruling on that issue. Guzman, 955 S.W.2d at 87. In a motion to suppress
hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.
Crim. App. 2000). Accordingly, the trial court may believe or disbelieve all or any part of
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a witness's testimony, even if that testimony is not controverted. Id. We will uphold the
trial court's ruling on a motion to suppress if that ruling was supported by the record and
was correct under any theory of law applicable to the case. Id. at 856.
As here, when the trial court makes findings of fact and conclusions of law with
its ruling on a motion to suppress, an appellate court does not engage in its own factual
review, but determines only whether the record supports the trial court's fact findings.
Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Unless the trial court
abused its discretion by making a finding not supported by the record, we will defer to
the trial court's fact findings and not disturb the findings on appeal. Cantu v. State, 817
S.W.2d 74, 77 (Tex.Crim.App. 1991). On appellate review, we address only the
question of whether the trial court properly applied the law to the facts. Romero, 800
S.W.2d at 543.
Although appellant’s stated issue includes references to the United States and
Texas constitutions, her argument focuses on the requirements of article 38.22 of the
Texas Code of Criminal Procedure. Her argument is that the store loss prevention
officer Mora was acting as an agent of the State when he obtained her signature on the
civil demand notice, and article 38.22, § 2 precluded its admission as evidence against
her. Article 38.22 makes inadmissible in criminal proceedings a written statement
resulting from custodial interrogation unless the statement contains the statutory
4
Miranda2 warnings. Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West 2010); Oriji v.
State, 150 S.W.3d 833, 836 (Tex.App.—Houston [14th Dist.] 2004, pet. ref’d).
The term "custodial interrogation" in article 38.22 is to be construed consistently
with its meaning under the Fifth Amendment to the United States Constitution. Bass v.
State, 723 S.W.2d 687, 690-91 (Tex.Crim.App. 1986). In Miranda, the United States
Supreme Court defined custodial interrogation as "questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way." Miranda, 384 U.S. at 444; Escamilla v.
State, 143 S.W.3d 814, 824-25 (Tex.Crim.App. 2004); Paez v. State, 681 S.W.2d 34,
36-37 (Tex.Crim.App. 1984) (holding article 38.22 does not apply to non-law
enforcement personnel who are not government agents). Accordingly, the "safeguards
attendant to custodial interrogation do not come into play unless the person to whom
the statements are made is acting as an agent of law enforcement pursuant to a police
practice." Macias v. State, 733 S.W.2d 192, 195 (Tex.Crim.App. 1987); Oriji, 150
S.W.3d at 837. Statements made by the accused that do not stem from a custodial
interrogation are admissible under article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22,
§ 5 (West 2010).
Private citizens, even security guards, ordinarily are not regarded as law
enforcement officers and thus cannot engage in custodial interrogation under article
38.22. Oriji, 150 S.W.3d at 836, citing Ortiz v. State, 727 S.W.3d 37, 38-39 (Tex.App.—
2
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694
(1966).
5
San Antonio 1987, pet. ref’d). But a private citizen may act as an agent of law
enforcement officers so as to become bound by the restrictions of article 38.22.
Wilkerson v. State, 173 S.W.3d 521, 529-30 (Tex.Crim.App. 2005) (person, “whether
CPS caseworker, teacher, preacher, probation officer, or mere family friend” proven to
be working for or on behalf of the police by interrogating another in custody, “is bound
by all constitutional and statutory confession rules, including Miranda and Article
38.22”).3
In this context, the term “agency” reflects a consensual relationship existing
between two persons or parties where one of them is acting for or on behalf of the
other. Wilkerson, 173 S.W.3d 529. The law does not presume an agency relationship,
and the person alleging its existence has the burden of proving it. Id.
Oriji involved facts similar to those at bar. The defendant gave a written
statement admitting theft to a Foley’s Department Store loss prevention officer. 150
S.W.3d at 835. After her motion to suppress the statement was denied in her
subsequent prosecution for theft, the defendant argued on appeal that article 38.22
required Miranda warnings even for statements taken by private store security
personnel. Rejecting her argument, the court found no evidence that any of the Foley’s
employees were agents of law enforcement pursuant to a police practice when they
obtained the statement. Id. at 837. The court said the statement was not the result of
3
See Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981)
(Miranda applied to custodial statements of defendant to psychiatrist appointed by court
to determine mental competency, when psychiatrist testified for the State during
punishment phase).
6
custodial interrogation because the Foley’s loss prevention officer was not acting at the
request of police officers to elicit incriminating information from the defendant. Id. at
836. If further found law enforcement officers “did not initiate, know of, or acquiesce in”
the store employees’ efforts to obtain the defendant’s statement, and found the store
employees “obtained the statement to further the store’s needs in preventing theft, not
for law enforcement purposes.” Accordingly, the court found, the defendant’s written
statement to the store employees was not inadmissible under article 38.22. Id. at 837.
Appellant attempts to distinguish Oriji, and argues that here, police and the
district attorney were aware of the practices of Old Navy and other retailers to obtain
written admissions from shoplifters without providing Miranda warnings and that
prosecutors repeatedly made use of them as evidence in theft prosecutions.4
Appellant’s argument focuses on the relationship between law enforcement authorities
and Mora. See Wilkerson, 173 S.W.3d at 530 (courts reviewing asserted agency
relationship should first examine that between police and the asserted agent).
The trial court’s findings included one reading: “The District Attorney’s Office is
aware of the practice of obtaining civil demand notices and sent their investigator to Old
Navy to acquire the document before trial.” The record supports the finding, but we
agree with the trial court it does not lead to a conclusion Mora was acting as the agent
of law enforcement when he obtained the civil demand notice from appellant.
4
Appellant also contends the evidence she was held in the store manager’s
office for an hour requires the conclusion her interrogation by Mora was custodial.
Because we agree with the trial court that Mora was not acting as an agent of law
enforcement officers, we do not address the circumstances of appellant’s detention.
7
Neither the police nor the district attorney’s office was aware of Mora’s
conversation with appellant until after it was completed and they were not involved in
Mora’s investigation in any way. See Oriji, 150 S.W.3d at 837; Franklin v. State, No.01-
05-01129-CR, 2007 Tex.App. LEXIS 2675, at * 16 (Tex.App.—Houston [1st Dist.] April
5, 2007, pet. ref’d) (mem. op., not designated for publication) (finding one conducting
search not acting as government agent, under Fourth Amendment analysis). No
evidence indicates Mora or his employer had any agreement with or received
instructions from any government official regarding his questioning of appellant. See
Manns v. State, 122 S.W.3d 171, 183-84 (Tex.Crim.App. 2003) (under Sixth
Amendment analysis, to qualify as government agent, informant must at least have
some sort of agreement with, or act under instructions from, government official);
Macias, 733 S.W.2d at 195 (informant not acting as agent because, inter alia, he was
never asked to question the defendant or to report his discoveries to anyone). Nor is
there any evidence showing police were present during the interview, provided Mora
with the questions to ask appellant, or provided implicit or explicit instructions to get
certain information from her. Wilkerson, 173 S.W.3d at 530. The record does not
reflect a relationship between Mora and law enforcement authorities by which the
authorities were “using” Mora for their own purposes. Id. Said another way, Mora did
not obtain appellant’s statement “pursuant to a police practice." Macias, 733 S.W.2d at
195; see Vanegas v. State, No. 02-08-0356-CR, 2009 Tex.App. LEXIS 7907, at *32-33
(Tex.App.—Fort Worth Oct. 8, 2009, no pet.) (mem. op., not designated for publication)
(court found no evidence to indicate civilian “in cahoots” with law enforcement); Hines v.
State, No. 14-04-01124-CR, 2006 Tex.App. LEXIS 3256 (Tex.App.—Houston [14th Dist.]
8
April 13, 2006, no pet.) (mem. op., not designated for publication) (law enforcement
officers did not initiate, know of, or acquiesce in Wal-Mart employees’ efforts to obtain
statement from defendant).
We cannot agree the general awareness of police or prosecutors that retailers
take non-Mirandized statements from shoplifters, even if accompanied by a common
practice to obtain and introduce the statements at trial, renders the store employees the
agents of law enforcement when they take the statements. The government’s willing
acceptance of information provided through selfish motives by an inmate informant did
not make the informant the government’s agent under the Sixth Amendment in Manns,
122 S.W.3d at 189, and the same is true here. As with the selfishly-motivated inmate,
the element missing is the instruction or request from the government. See id. at 183-
84. That the State has come to expect such cooperation from retailers does not change
the result. See id. at 184-86.
Under the analysis in Wilkerson, we secondly look at the record concerning
Mora’s actions and perceptions. 173 S.W.3d at 530. This factor in the analysis
examines the asserted government agent’s reasons for taking action and the goals of
the actions. It leads to the question whether Mora believed he was acting as an agent
of law enforcement. Id. While Mora testified he called police immediately after
speaking with appellant, this action is insufficient to make him an agent of police. Id. at
533.
Mora’s actions with regard to appellant were required by his employment. He
testified Gap, Inc. had a written policy requiring that a civil demand notice be completed
9
any time the prevention officer had contact with persons committing theft in their stores.
Mora said if the suspect refuses to sign the notice he would note the refusal on the
completed notice, but said he gets a signed demand notice 99% of the time.5 He
testified the store keeps these documents “for our record” but would turn them over to
the police or the district attorney on request.6
Mora stated the purpose of obtaining the signed civil demand notice is to “seek
punitive damages” or “monetary damages.” He also acknowledged Gap, Inc.’s policy
manual states that other purposes include maintaining “a good rapport” with law
enforcement, preventing “defense attorneys” from discrediting the store employee’s
testimony, and helping prosecutors obtain convictions.
The evidence thus shows that Mora, as an Old Navy loss prevention officer,
acted with mixed motives when he obtained appellant’s signature on the civil demand
notice. The signed notice served the store’s purposes of facilitating the return of its
merchandise and protecting it from liability for its detention of appellant, while providing
a basis for any civil action the store might pursue.
That the store voluntarily provided to police and to the District Attorney the
incriminating information it had obtained from appellant does not alone distinguish it
from any other crime victim who cooperates with authorities. But Mora’s testimony and
5
Mora said that during his almost three years at Old Navy he had never
mistakenly accused a customer of shoplifting.
6
Mora also testified he showed his report, including the completed civil demand
notice, to police officers when they arrived at the store in response to his call.
10
the retailer’s policy manual make clear that obtaining a shoplifter’s signature on the
notice also served the store’s purpose of “helping prosecutors obtain convictions.” In
Wilkerson, the Court of Criminal Appeals posed the question, “Were the questions [to
the defendant] aimed at gaining information and evidence for a criminal prosecution, or
were they related to some other goal?” Wilkerson, 173 S.W.3d at 530. Here, the
answers are “yes, and yes.” Given this evidence, the trial court reasonably could have
concluded that Mora did not believe he was acting as an agent of law enforcement, but
was serving his employer’s interests, even if those interests included facilitating the
criminal prosecution of shoplifters. Old Navy’s motive to aid in the prosecution of
shoplifters does not make it the State’s agent when it obtains statements later provided
to prosecutors.
Lastly, we examine the record for evidence of appellant’s perceptions of the
encounter. Appellant did not testify so we have no direct evidence whether she
believed she was talking to someone cloaked with the authority of law enforcement. We
thus consider the likely beliefs of a reasonable person in appellant’s position. Wilkerson,
173 S.W.3d at 530-31. Mora was not in uniform7 and said he identified himself to
appellant and Linda as a loss prevention officer for the store. He testified he stopped
the women outside the store, told them he needed to “talk to them about the stuff in the
purse,” and “asked them to step back in the store.”
7
Mora testified he is not a peace officer. He indicated he wears “T-shirt, jeans,
tennis shoes.”
11
Appellant signed the civil demand notice stating her detention by Mora was
reasonable, and she does not argue the interview was so menacing as to intimidate her
into making a false statement. Id.; see In re Deborah C., 635 P.2d 446 (Cal. 1981)
(discussing lesser risks of coercive atmosphere in questioning by store detectives). A
female store manager was with appellant and Mora in the store office during their
encounter. The evidence supports a conclusion a reasonable person in appellant’s
position would have believed Mora was exactly what he said, a store loss prevention
officer, not an agent of law enforcement. Id.
As noted, custodial interrogation under Miranda is that initiated by law
enforcement officers. Miranda, 384 U.S. at 444. Our ultimate inquiry here is whether
Mora was acting as an “instrumentality” or “conduit” for the police or prosecution when
he obtained appellant’s signature on the civil demand notice. Wilkerson, 173 S.W.3d at
531. The trial court concluded he was not, and the record supports the trial court’s
conclusion. Accordingly, we resolve appellant’s sole issue against her and affirm the
judgment of the trial court.
James T. Campbell
Justice
Publish.
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