Mitchell Mavoides v. State

                             NUMBER 13-04-00079-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

MITCHELL MAVOIDES,                                                                    Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 117th District Court of Nueces County, Texas.

                                MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Hinojosa and Yañez

                            Memorandum Opinion by Justice Yañez

Appellant, Mitchell Mavoides, was indicted on April 3, 2003, on three counts of capital murder,^[1] two counts of aggravated kidnapping,^[2] two counts of aggravated robbery,^[3] one count of burglary of a habitation,^[4] and one count of tampering with evidence.^[5]  After a jury trial, appellant was found guilty on all counts except tampering with evidence, and was sentenced by the trial court on January 29, 2004, to life imprisonment for capital murder, twenty-five years for aggravated kidnapping and aggravated robbery, and ten years for burglary.  On February 11, 2004, appellant timely filed his notice of appeal.  The trial court has certified that this is not a plea-bargain case, and the defendant has the right of appeal.^[6]    We affirm.

Background

In early February 2003, the Corpus Christi Police Department received a missing persons report from family members of Mr. and Ms. Weldon Parker, an elderly couple.  After an initial investigation, police received information that appellant and another individual, Donald Wilcox, an ex-convict, may have been involved in the Parkers= disappearance. On February 11, 2003, authorities discovered the Parkers= corpses in a grassy field.  Mr. and Ms. Parker had been shot multiple times in the head, and were lying face down, with their hands bound by ligatures.  On that same day, police arrested appellant, who was fifteen years old at the time of the homicides, on suspicion of capital murder.  After appellant was taken into custody, he was taken to a juvenile processing area, and shortly thereafter, advised of his rights by a magistrate.  Approximately two hours later, without any prior notification to appellant=s parents, detectives obtained a written statement from appellant implicating him in the homicides.  After being in custody for approximately two days, police notified appellant=s father concerning the allegations.    

Issues on Appeal

In his first issue, appellant contends the juvenile court lacked jurisdiction to transfer his case to adult criminal court because the State failed to comply with juvenile notice requirements set forth in section 53.04(d)(3) of the Texas Family Code. In a second issue, appellant similarly complains that the State failed to satisfy notice requirements of the family code because his mother was not served.^[7]  In his third issue, he contends the adult criminal court erred in admitting appellant=s statements because the authorities failed to notify his parents concerning the allegations against him, as required by section 52.02(b) of the family code.  In appellant=s fourth issue, he complains that the court improperly denied his requested jury instruction regarding the admissibility of his statement under section 52.02(b) of the family code. 

Analysis

In appellant=s first and second issues, he argues that the State=s petition for discretionary transfer to adult criminal court failed to state that appellant=s mother, Martha Horton, does not reside or cannot be found in the state, or that her place of residence is unknown in violation of section 53.04(d)(3) of the family code.^[8]  Appellant also argues that the State failed to serve his mother with a copy of the summons and petition, as required by the family code.

Section 54.02(b) of the family code provides, in relevant part, that A[t]he petition and notice requirements of Sections 53.04, . . ., [and] 53.06. . . must be satisfied.@^[9]   Section 53.04(d) provides, in pertinent part, that

(d) The petition must state:

   (1) with reasonable particularity the time, place, and manner of the

   acts alleged and the penal law or standard of conduct allegedly

   violated by the acts;

   (2) the name, age, and residence address, if known, of the child who is

   the subject of the petition;

   (3) the names and residence addresses, if known, of the parent,

   guardian, or custodian of the child and of the child's spouse, if any;

   (4) if the child's parent, guardian, or custodian does not reside or

   cannot be found in the state, or if their places of residence are

   unknown, the name and residence address of any known adult relative

   residing in the county or, if there is none, the name and residence

   address of the known adult relative residing nearest to the location of

   the court; . . .^[10]

The petition requirements of section 53.04(d) of the family code are mandatory.^[11]  Additionally, section 53.06(a)(2) requires the juvenile court to direct issuance of the summons to the child=s parent, guardian, or custodian.^[12]  The issuance of a summons to either of the child's parents is sufficient to comply with section 53.06.^[13]

On March 10, 2003, the State filed a petition for discretionary transfer to adult criminal court, alleging the name and address of appellant=s father as AHarry Mavoides, 4630 Blundell, Corpus Christi, Texas.@  However, the petition did not include any information concerning the identity or whereabouts of appellant=s mother.  The record reflects that a summons was served on appellant=s father on March 12, 2003, notifying him of a March 28, 2003 juvenile court hearing concerning the petition.  Additionally, on March 19, 2003, appellant=s mother was served with a copy of the summons.  At the hearing, the State=s attorney, appellant, his trial counsel, and his father made an appearance.  The trial court inquired whether all appropriate parties had been served, and the State represented that they had, without any objection by appellant or his trial counsel.  After hearing arguments from the State and counsel for appellant, the court waived jurisdiction and transferred the case to adult criminal court, by order signed April 1, 2003. 

Section 53.06(a)(2) specifies Aparent@ in the singular as a proper party summoned, and lists parent along with Aguardian, or custodian@ in the disjunctive.^[14]  Similarly, section 53.04(d)(3) refers to Aparent@ in the singular as a proper party for purposes of the petition.^[15]  Based on our review of the language contained in section 53.04(d)(3), we conclude the statute does not require that both parents be named in the petition.^[16]  Because the petition contained the name and address of appellant=s father, we find that the State satisfied the requirements of section 53.04(d)(3).^[17]  Further, because appellant's father was present at the certification hearing pursuant to the summons that was properly issued and served on him, we conclude the requirements of section 53.06(a)(2) were satisfied.^[18]  Accordingly, appellant=s first and second issues are overruled.

Regarding appellant=s third issue concerning the adult criminal court=s admission of appellant=s statement, a trial court has broad discretion in determining the admissibility of evidence, and its ruling on a motion to suppress will not be set aside without a showing of abuse of discretion.^[19]  Only when the trial court's decision is so wrong as to lie outside of the zone of reasonable disagreement will the decision be reversed.^[20]

The Texas Family Code sets out detailed procedures for the detention and arrest of juveniles accused of delinquency, with which police officers and courts are bound to comply.^[21]  Section 52.02 provides that a person taking a child into custody must immediately bring that child to a designated juvenile processing office or to one of several listed alternative sites.^[22]  Additionally, section 52.02(b) provides that  a person taking a child into custody shall promptly give notice of the person's action and a statement of the reason for taking the child into custody, to the child's parent, guardian, or custodian, and the office or official designated by the juvenile board.^[23]  Appellate courts have considered the following factors in determining whether parental notification was Aprompt:@  (1) the length of time the juvenile had been in custody before police notified a parent, guardian, or custodian; (2) whether notification occurred after police obtained a statement; (3) the ease with which the police were ultimately able to contact the appropriate adult; and (4) what the police did during the period of delay.^[24]  Efforts at compliance with the requirements of the family code have  been closely scrutinized by Texas courts in the past.^[25]  Any violations of the family code will render evidence subsequently obtained from the child inadmissible.^[26]

At a pretrial suppression hearing, Detectives Stimmler and Revis, who were investigating the Parkers= homicide, testified that they received information from two female informants indicating that appellant may have been involved in the homicides.  Officers Tovar and Gomez testified that they assisted with appellant=s initial arrest, which occurred at approximately 10:50 p.m.  The detectives also testified that after appellant was arrested, he was transported to the police station=s designated juvenile processing floor, where they asked him for information regarding his parents= whereabouts.  According to the detectives, appellant told them he was unaware of his parents= specific whereabouts.  Judge Medary testified that she arrived at the station at approximately 11:30 p.m., asked appellant about his parents= whereabouts, and subsequently read him his rights.  According to Judge Medary, appellant told her that his father was somewhere in Corpus Christi, though he was unsure of his father=s specific whereabouts.  As to his mother, appellant informed Judge Medary that she lived in New York but he was unsure as to how to contact her.   Approximately three hours after appellant was taken into custody, and prior to any parental notification by authorities, he  signed a statement admitting his involvement in the crime, but denying that he killed the Parkers.  Approximately two days later, authorities located and notified his father concerning the charges against appellant. 

The record demonstrates that the detectives involved in the detention and interrogation of appellant did not strictly adhere to the requirements of section 52.02(b).^[27]  Detectives knew appellant=s father resided in Corpus Christi, and that his mother resided in New York.  Nonetheless, Detective Stimmler made no attempt to contact appellant=s mother prior to obtaining appellant=s statement, nor did he ask appellant whether he desired to contact his mother. Additionally, detectives did not try to contact appellant=s father between the time of appellant=s arrest and when he provided them with a statement.  Appellant=s parents testified that had they been properly notified, they would have insisted that appellant consult an attorney prior to being interviewed by police.  Although appellant was properly transported to an appropriate juvenile facility, there was an unjustifiable delay in notifying his parents, which, based on the attendant facts of this case, was inexcusable. Because the statement was obtained as a result of the detectives= violation of parental notification requirements, the statement was inadmissible at trial.^[28]  Therefore, the court abused its discretion in allowing the statement of appellant to be used against him at trial.^[29]  This Court must determine whether the admission of appellant=s statement constitutes reversible error. 

A court of appeals must reverse a judgment based on an error such as this unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment of the defendant.^[30]

At trial, other than the improperly admitted statement and appellant=s rebuttal testimony, the State introduced substantial evidence that implicated appellant in the homicides.  Celso Ramos, an inmate who was incarcerated with appellant, testified that appellant told him of his involvement in the homicides.  According to Ramos, appellant told him that he was the one who shot Ms. Parker.  Gregory Crum, an acquaintance of appellant, also testified that appellant told him that he took a vehicle and $1500 from a man, tied the man up, put him in the truck, and later shot him.  Considering other evidence tying appellant to the homicides, in particular, testimony of two independent witnesses, we conclude, despite admission of the improper statement, that the error did not contribute to the conviction or punishment of appellant.^[31]  Appellant=s third issue is overruled.    

In his fourth issue, appellant complains that the court improperly denied his request for a jury instruction regarding the admissibility of his statement.   We have already concluded that police obtained appellant=s statement in violation of the family code=s notification requirements.  Assuming, without deciding, that the court erred in its subsequent denial of appellant=s jury instruction, in light of the additional evidence presented by the State, in particular, the testimony of Ramos and Crum, we conclude error, if any, was harmless.^[32]  Accordingly, we overrule appellant=s fourth issue.

Conclusion

Because all of appellant=s complaints on appeal have been overruled, we affirm the

judgment of the trial court.

___________________________

LINDA REYNA YAÑEZ

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed

this the 13th day of July, 2006.

---

^[1] See Tex. Pen. Code Ann. '' 19.03(a)(2) and (7)(A) (Vernon 2003).

^[2] See id. ' 20.04(b).

^[3] See id. ' 29.03(a)(2).

^[4] See id. ' 30.02(a)(1).

^[5] See id. ' 37.09(d)(1).

^[6]  See Tex. R. App. P. 25.2(a)(2).

^[7] Because appellant=s first and second issues both challenge the propriety of the court=s jurisdiction, we will address them in a single issue.                          

^[8] See Tex. Fam. Code Ann. '' 54.02(b), 53.04(d)(3) (Vernon 2005).

^[9] See id. ' 54.02(b).

^[10] See id. ' 53.04(d)(3).

^[11] In re Edwards, 644 S.W.2d 815, 820 (Tex. App.BCorpus Christi 1982, writ ref=d n.r.e.) (citing In the Matter of W.L.C., 562 S.W.2d 454, 455 (Tex. 1978)).

^[12] See Tex. Fam. Code Ann. ' 53.06(a)(2) (Vernon 2005).

^[13]  In re Edwards, 644 S.W.2d at 818.

^[14] See Tex. Fam. Code Ann. ' 53.06(a)(2) (Vernon 2005).

^[15] See id. ' 53.04(d)(3).

^[16] See id.; In the Matter of P.C., 858 S.W.2d 6, 7-8 (Tex. App.BHouston [1st Dist.] 1993, no pet.) (concluding statutory reference to Aparent@ in the singular did not require that both parents be summoned).

^[17] See Tex. Fam. Code Ann. ' 53.04(d)(3).

^[18] See id. ' 53.06(a)(2); In re Edwards, 644 S.W.2d at 818; In the Matter of P.C., 858 S.W.2d at 7-8.

^[19] Almaguer v. State, 960 S.W.2d 172, 173‑74 (Tex. App.BCorpus Christi 1997, no pet.).

^[20] Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).

^[21] Tex. Fam. Code Ann. '' 52.01‑026 (Vernon Supp. 2005); In re D.Z., 869 S.W.2d 561, 564 (Tex. App.BCorpus Christi 1993, writ denied). 

^[22]  Tex. Fam. Code Ann. ' 52.02 (Vernon Supp. 2005); Anthony v. State, 954 S.W.2d 132, 136 (Tex. App.BSan Antonio 1997, no pet.).

^[23] Tex. Fam. Code Ann. ' 52.02(b) (Vernon Supp. 2005).

^[24] See Vann v. State, 93 S.W.3d 182, 184 (Tex. App.BHouston [14 th Dist.] 2002, pet.ref=d).

^[25] See, e.g., Anthony, 954 S.W.2d at 135; In re R.R., 931 S.W.2d 11, 13‑14 (Tex. App.BCorpus Christi 1996, no writ); In re D.Z., 869 S.W.2d at 563‑65.

^[26] Tex. Fam. Code Ann. ' 54.03(e) (Vernon Supp. 2005).

^[27] Tex. Fam. Code Ann. ' 52.02(b).

^[28] See id.; In re U. G., 128 S.W.3d 797, 799 (Tex. App.BCorpus Christi 2004, pet. denied) (concluding court abused its discretion in admitting juvenile statement because authorities failed to adhere to strict requirements of section 52.02). 

^[29] Tex. Fam. Code Ann. ' 52.02(b); In re U. G., 128 S.W.3d at 799.

^[30]  See Tex. R. App. P. 44.2(a).

^[31] See id.

^[32] See Tex. R. App. P. 44.2(a).