Marie Lisette Garcia Vega v. State

NUMBER 13-98-044-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARIE LISETTE GARCIA VEGA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 92nd District Court

of Hidalgo County, Texas

OPINION ON REMAND

Before Justices Yañez, Rodriguez, and Hinojosa (1)

Opinion on Remand by Justice Rodriguez

Appellant, Marie Lisette Garcia Vega, a juvenile, was tried as an adult in Hidalgo

County. A jury found her guilty of the offenses of capital murder, aggravated

kidnaping, and aggravated robbery. Because the State did not seek the death penalty

for the capital murder, the trial court assessed her punishment at life imprisonment for

capital murder. The jury assessed punishment at twenty years' imprisonment for

aggravated kidnaping and twenty years' imprisonment for aggravated robbery. On

remand, we affirm.

I. Background

In late December 1994, Vega, who was sixteen at the time, and her boyfriend,

nineteen-year-old Jaime Nonn, were implicated in a capital murder in Starr County,

Texas. They had fled to Chicago, Illinois. On December 28, 1994, Vega and Nonn

were arrested by the Chicago police after Starr County deputies advised the Chicago

Police Department that Texas warrants had been issued for the two suspects. Both

Nonn (2) and Vega gave statements in Illinois. The trial court overruled Vega's motion

to suppress the written statement she made to the Illinois authorities.

On direct appeal following the convictions, Vega raised eighteen issues, thirteen

of which complained of the trial court's admission of her written statement obtained

in Illinois by Illinois law enforcement officers. Vega also complained that the trial court

erred by admitting evidence of extraneous offenses and giving an inappropriate limiting

instruction regarding the extraneous offenses. Relying on Davidson v. State , 25

S.W.3d 183 (Tex. Crim. App. 2000) (en banc), a panel of this Court held that the trial

court abused its discretion when it admitted Vega's Illinois statement into evidence.

See Vega v. State , 32 S.W.3d 897, 906 (Tex. App.-Corpus Christi 2000), reversed

and remanded , 84 S.W.3d 613 (Tex. Crim. App. 2002) (en banc). We reversed all

three judgments of the trial court and remanded for a new trial. Id .

On the State's petition for discretionary review, the Texas Court of Criminal

Appeals held that this case is not a Davidson case by statute, circumstances, or

command to "strictly construe," and that Davidson is inapplicable here. (3) Vega v.

State , 84 S.W.3d 613, 616 (Tex. Crim. App. 2002) (en banc). The court also

concluded that "[b]ecause appellant was a juvenile at the time she gave her statement,

its admissibility must be determined under Title 3 of the Family Code." Id . And we

are not to "strictly" construe Title 3 because the legislature did not so mandate. Id .

Additionally, although Vega and the State take the position that the issue on remand

is the review of the fairness factor in a conflict-of-laws analysis, we believe that the

court of criminal appeals has decided that issue. In its opinion, the court determined

that procedural issues in this case were governed by the law of Texas, the forum

state, and that substantive issues were also governed by Texas law because the

conflict-of-law schemes of both Illinois and Texas militate for such application. (4) See

id . at 617; see also id . at 621 (Keller, J., dissenting).

The court of criminal appeals remanded this case for an analysis, but not for our

analysis of how fairness should be factored into a conflict-of-laws analysis. Rather,

we have been charged to analyze how the absence of a magistrate impacts the

fairness to the parties, with our focus being on the purpose expressed in section 51.01

of the family code: "to provide a simple judicial procedure through which the

provisions of this title are executed and enforced and in which the parties are assured

a fair hearing and their constitutional and other legal rights recognized and enforced." (5)

Id . at 619; see Acts 1973, 63rd Leg., p. 1460, ch. 554, § 1, eff. Sept. 1, 1973

(current version at Tex. Fam. Code Ann. § 51.01 (6) (Vernon 2002)).

As stated in our original opinion,

[t]his appears to be a case of first impression in the state of Texas. This

case presents the issue of whether a sister state's law enforcement

officers must adhere to Texas's scheme of processing juvenile offenders

for a statement taken by those officers to be admissible against the

juvenile in a Texas court.

Vega , 32 S.W.3d at 900 . On remand, however, as directed by the court of criminal

appeals, we will not apply Davidson ; we will apply Texas law--specifically, Title 3 of

the Texas Family Code--but we will not apply it strictly; and we will analyze fairness

to the parties focusing on the purpose of section 51.01.

II. Admissibility of Vega's Written Illinois Statement

In her first thirteen issues, Vega argues that, because her written statement was

not procured in conformance with the Texas Family Code, it should have been

excluded. The trial court denied Vega's motion to suppress her statement.

A. Standard of Review

When reviewing a trial court's ruling on a motion to suppress, we give almost

total deference to a trial court's determination of facts supported by the record and its

rulings on application of law to fact, or "mixed" questions of law, when those fact

findings involve an evaluation of the credibility and demeanor of witnesses. Maestras

v. State , 987 S.W.2d 59, 62 (Tex. Crim. App. 1999); Guzman v. State , 955 S.W.2d

85, 89 (Tex. Crim. App. 1997) (en banc). However, we review de novo mixed

questions of law and fact that do not turn on an evaluation of credibility and

demeanor. Maestras , 987 S.W.2d at 62 ; Guzman , 955 S.W.2d at 89 . In this case,

because there is no disagreement about the facts surrounding Vega's statement given

to the Chicago police or the credibility of the witnesses in this case, the trial court's

ruling on these matters did not involve an assessment of the credibility and demeanor

of the witnesses. See Ramirez v. State , 44 S.W.3d 107, 109 (Tex. App.-Austin

2001, no pet.). Therefore, we will conduct a de novo review of the denial of Vega's

motion to suppress.

B. Analysis

1. Issues Determined by the Court of Criminal Appeals

Before remanding to this Court, the court of criminal appeals examined issues

one, two, three, four, eight, and twelve--Vega's complaints regarding the facility in

which she was detained, unauthorized officers making detention decisions, and

warnings allegedly not given. See Vega , 84 S.W. at 615-18. Generally, as to these

issues, the court determined that "[i]t is undisputed that, while correct under Illinois

law, the procedures followed in obtaining [Vega's] statement, as well as the format

of the statement itself, were not in compliance with Title 3 of the Texas Family Code."

Id . at 615. However, "Illinois authorities, by following Illinois law, also complied with

Texas law to the extent necessary to carry out Texas's intended purpose and public

policy." Id . at 618. Finding compliance, the court of criminal appeals decided in the

State's favor on issues one, two, three, four, eight, and twelve.

More specifically, by issues one, two, and eight, Vega complained of the Illinois

facility where she was detained, urging violations of sections 52.02, 52.025, and

51.12. (6) Vega contended that she was not taken without unnecessary delay to a place

designated in this code section, that the Chicago police failed to interview her in an

approved juvenile processing office, and that she was not detained in a facility

approved by Texas authorities. Addressing these issues, the court of criminal appeals

noted that Vega was taken to an equivalent Illinois facility and concluded that "[t]o

hold that such actions were not sufficient to satisfy Texas's concerns would make

impossible any apprehension of a Texas juvenile offender any place outside of Texas

and would not advance Texas public policy as expressed in § 51.01." See id . at 617-18.

By her third issue, Vega urged that the Chicago police failed to have an

authorized officer of the Texas juvenile court decide whether Vega should be further

detained. See id . at 618. The court of criminal appeals found, however, that there

is no such requirement in the Texas Family Code. See id. It concluded the "Chicago

police arrested [Vega] under a Texas warrant that included a no-bond condition," and,

thus, "Illinois authorities had no discretion to release her." Id . (citing 705 Ill. Comp.

Stat. 405/5-8 (1994)).

In issue four, Vega contended that her written statement did not contain all of

the warnings required by section 51.09. (7) However, the court of criminal appeals

found that Vega did receive the warnings, essentially the Miranda warnings, at least

three times. Id . Additionally, she "was informed of Illinois law, which while

technically incorrect, accurately conveyed the possibility of being treated as an adult

when accused of murder." Id .

Finally, in issue twelve, Vega complained that she was detained in an area

where adults arrested for, or charged with, a crime are detained, in violation of section

51.12. (8) From the language of the statute, the court of criminal appeals determined

that "[a] reasonable inference is that the legislature intended to prohibit putting a

juvenile into circumstances in which the juvenile might be victimized by adult

offenders." Id . "Vega was held in an interrogation room. She was at all times kept

separate from adult offenders." Id .

Having been resolved by the court of criminal appeals, these issues are not now

before this Court.

2. Issues Remanded by the Court of Criminal Appeals

The court of criminal appeals has remanded the following issues for our review:

Issue five: Vega's written statement does not contain a certificate by a

magistrate that Vega knowingly, intelligently and voluntarily waived her

rights before making the statement as required by section 51.09; (9)

Issue six: Vega was never advised of her rights by a magistrate before

being interrogated as set out in section 51.09; (10)

Issue seven: Vega was never presented before a magistrate at any time

before giving her statement as provided for in section 51.09; (11)

Issue nine: Vega was detained for more than six hours before the

conclusion of her statement in violation of section 52.025; (12)

Issue ten: Vega's statement was not signed in the presence of a

magistrate with no law enforcement officer present as required by

section 51.09; (13)

Issue eleven: Vega's statement was signed in the presence of at least

one law enforcement official who was armed in violation of section

51.09; (14) and

Issue thirteen: Vega was improperly left unattended in the interview in

violation of section 52.025. (15)

In remanding these issues, the court of criminal appeals determined that the

following circumstances violated provisions of Title 3:

Vega arrived at the police station at about 10:45 a.m. Her written

statement was signed at about 9:40 p.m. As permitted by Illinois law,

the youth officer who presided at the signing was an armed police

officer. Vega was left alone in the interrogation room for several periods

before she was taken to the juvenile holding facility. From the record at

hand, it appears that Vega was not taken before a magistrate.

Vega , 84 S.W.3d at 618 . The court further concluded, however, that a violation of

the family code, in this particular case, did not necessarily dispose of the issue of

admissibility. Id .

a. Absence of a Magistrate

We first address the five issues that complain of the absence of a

magistrate--issues five, six, seven, ten, and eleven. (16) The version of section 51.09

in effect at the relevant time provided in part:

(a) Unless a contrary intent clearly appears elsewhere in this title, any

right granted to a child by this title or by the constitution or laws of this

state or the United States may be waived in proceedings under this title

if:

(1) the waiver is made by the child and the attorney for the child;

(2) the child and the attorney waiving the right are informed of and

understand the right and the possible consequences of waiving it;

(3) the waiver is voluntary; and

(4) the waiver is made in writing or in court proceedings that are

recorded.

(b) Notwithstanding any of the provisions of Subsection (a) of this

section, the statement of a child is admissible in evidence in any future

proceeding concerning the matter about which the statement was given

if:

(1) when the child is in a detention facility or other place of confinement

or in the custody of an officer, the statement is made in writing and the

statement shows that the child has at some time prior to the making

thereof received from a magistrate a warning that:

(A) the child may remain silent and not make any statement at all and

that any statement the child makes may be used in evidence against the

child;

(B) the child has the right to have an attorney present to advise the child

either prior to any questioning or during the questioning;

(C) if the child is unable to employ an attorney, the child has the right to

have an attorney to counsel with the child prior to or during any

interviews with peace officers or attorneys representing the state;

(D) the child has the right to terminate the interview at any time;

(E) if the child is 15 years of age or older at the time of the violation of

a penal law of the grade of felony the juvenile court may waive its

jurisdiction and the child may be tried as an adult;

(F) the child may be sentenced to commitment in the Texas Youth

Commission with a transfer to the institutional division of the Texas

Department of Criminal Justice for a term not to exceed 30 years if the

child is found to have engaged in delinquent conduct, alleged in a petition

approved by a grand jury, that included:

(1) murder;

(2) capital murder;

(3) aggravated kidnaping;

(4) aggravated sexual assault;

(5) deadly assault on a law enforcement officer, corrections officer, court

participant or probation personnel; or

(6) attempted capital murder; and

(G) the statement must be signed in the presence of a magistrate by the

child with no law enforcement officer or prosecuting attorney present ,

except that a magistrate may require a bailiff or a law enforcement

officer if a bailiff is not available to be present if the magistrate

determines that the presence of the bailiff or law enforcement officer is

necessary for the personal safety of the magistrate or other court

personnel, provided that the bailiff or law enforcement officer may not

carry a weapon in the presence of the child . The magistrate must be fully

convinced that the child understands the nature and contents of the

statement and that the child is signing the same voluntarily. If such a

statement is taken, the magistrate shall sign a written statement verifying

the foregoing requisites have been met .

The child must knowingly, intelligently and voluntarily waive these rights

prior to and during the making of the statement and sign the statement

in the presence of a magistrate who must certify that he has examined

the child independent of any law enforcement officer or prosecuting

attorney , except as required to ensure the personal safety of the

magistrate or other court personnel, and has determined that the child

understands the nature and contents of the statement and has

knowingly, intelligently and voluntarily waived these rights .

Act of May 22, 1991, 72nd Leg., ch. 429, § 1, eff. Sept. 1, 1991; Act of May 24,

1991, 72nd Leg., ch. 557, § 1, eff. Sept. 1, 1991; Act of May 27, 1991, 72nd Leg.,

ch. 593, § 1, eff. Aug. 26, 1991 (emphasis added) (current version at Tex. Code Crim.

Proc. Ann. § 51.09 (Vernon 2002), § 51.095 (Vernon Supp. 2006)).

On remand, the court of criminal appeals has directed this Court to analyze the

effect of the absence of a magistrate on the admissibility of the challenged statement

in a context of fairness to the parties, focusing on the purpose expressed in section

51.01 of the family code, which is "to provide a simple judicial procedure through

which the provisions of this title are executed and enforced and in which the parties

are assured a fair hearing and their constitutional and other legal rights recognized and

enforced." Vega , 84 S.W.3d at 619 (quoting Acts 1973, 63rd Leg., p. 1460, ch.

554, § 1, eff. Sept. 1, 1973).

Our analysis begins with the word, "fair." It is not defined by statute; therefore,

we must give the language its plain and ordinary meaning. See Tex. Gov't Code Ann.

§ 312.002 (a) (Vernon 2005); In re Kasschau , 11 S.W.3d 305, 311 (Tex.

App.-Houston [14th Dist.] 1999, no pet.); Nevarez v. State , 767 S.W.2d 766, 768

(Tex. Crim. App. 1989) (en banc). Black's Law Dictionary defines "fair" as "1.

Impartial; just; equitable; disinterested," and "2. Free of bias or prejudice." Black's

Law Dictionary 505 (8th ed. 2004). The Supreme Court of Wyoming clarifies the

definition by comparing "fair" with the following similar terms:

FAIR, the most general of the terms, implies a disposition in a person or

group to achieve a fitting and right balance of claims or considerations

that is free from undue favoritism even to oneself, or implies a quality or

result in an action befitting such a disposition.

* * * * * *

JUST stresses, more than FAIR, a disposition to conform with or

conformity with the standard of what is right, true, or lawful, despite

strong, esp. personal, influences tending to subvert that conformity . . .

(a just statement of the facts) . . . .

* * * * *

IMPARTIAL stresses an absence of favor or prejudice in judgment.

Casteel v. News-Record, Inc ., 875 P.2d 21, 24 (Wyo. 1994) (emphasis added) (citing

Webster's Third New International Dictionary (1971)). The ordinary and obvious

meaning of fair does not require that the process, which in this case is the process

utilized to obtain Vega's statement, be precise or accurate. See id . (concluding that

the meaning of fair does not require the report to be true or accurate). What is

required is that the process have the qualities of impartiality and honesty. See id . It

is a process that is free from prejudice, favoritism, and self-interest. See id . These

parameters help define what is a fitting and right balance of considerations. Therefore,

determining fairness to Vega and the State, we ask whether the process of taking

Vega's statement in Illinois in the absence of a magistrate was exercised and enforced

in a manner that achieved a fitting and right balance of considerations such that both

parties were assured a fair hearing where the parties' legal rights were recognized and

enforced.

In order to identify Vega's considerations, we must review the responsibilities

of the magistrate as set out in section 51.09 of the family code. (17) Under section

51.09, the magistrate is to ascertain whether the accused juvenile wishes to waive her

constitutional rights. Hill v. State , 78 S.W.3d 374, 386 (Tex. App.-Tyler 2001, pet.

ref'd). Section 51.09 provides that the magistrate must provide appropriate warnings

to the juvenile before the making of the statement. (18) See Act of May 22, 1991, 72nd

Leg., ch. 429, § 1, eff. Sept. 1, 1991; Act of May 24, 1991, 72nd Leg., ch. 557, §

1, eff. Sept. 1, 1991; Act of May 27, 1991, 72nd Leg., ch. 593, § 1, eff. Aug. 26,

1991. The statement must be signed in the presence of the magistrate with no law

enforcement officer or prosecuting attorney present except for a bailiff or law

enforcement officer who is unarmed, if the magistrate determines it necessary. Id .;

see Berkemer v. McCarty , 468 U.S. 420, 438 (1984) ("The authority of an armed,

uniformed officer exerts some pressure to respond to questions."); Ancira v. State,

516 S.W.2d 924, 926 (Tex. Crim. App. 1974) (holding that potential for compulsion

existed when an armed officer interviewed a suspect who was detained inside a police

vehicle). Additionally, the magistrate must certify that she has determined "that the

child understands the nature and contents of the statement and has knowingly,

intelligently, and voluntarily waived these rights." See Act of May 22, 1991, 72nd

Leg., ch. 429, § 1, eff. Sept. 1, 1991; Act of May 24, 1991, 72nd Leg., ch. 557, §

1, eff. Sept. 1, 1991; Act of May 27, 1991, 72nd Leg., ch. 593, § 1, eff. Aug. 26,

1991.

Therefore, under section 51.09, Vega's considerations involve her legal right to

have her constitutional rights thoroughly explained so that any waiver of those rights

is made voluntarily and uncoerced, and knowingly and intelligently. (19) See id . An

additional consideration under section 51.09 is to reduce the impact of armed law

enforcement personnel on Vega. See id . Also, under section 51.01, Vega's

considerations include being assured that a fair hearing will result from the simple

judicial procedure through which this statutory right is recognized, executed, and

enforced. See Acts 1973, 63rd Leg., p. 1460, ch. 554, § 1, eff. Sept. 1, 1973.

(1) Voluntary and Uncoerced

A voluntary statement is the product of a free and deliberate choice rather than

intimidation, coercion, or deception. See Moran v. Burbine , 475 U.S. 412, 421

(1986). A court must examine the totality of the circumstances surrounding the

interrogation to determine if a confession was voluntary and uncoerced. See id. ;

Ashcraft v. State , 934 S.W.2d 727, 738 (Tex. App.-Corpus Christi 1996, pet. ref'd).

At the motion to suppress hearing, Detective Gregory Biochi testified that he

issued Miranda warnings to Vega during her first interview with law enforcement

officers at 12:45 p.m. Vega did not ask for an attorney or seek to remain silent;

instead, she agreed to talk. Assistant State's Attorney Michael Falagario interviewed

Vega at 3:30 p.m. ASA Falagario testified that he advised Vega of her rights and

explained that he was a prosecutor, an attorney assisting the police, and not Vega's

attorney. Vega said that she understood who he was. ASA Falagario testified that

he spoke to Vega alone to make sure she was being treated "okay," that she did not

need anything, and that she had no complaints. He explained to Vega the possibilities

concerning giving a statement. Vega said that she had been treated well, and agreed

to give a handwritten statement. After Vega agreed to make a statement, ASA

Falagario left the interview room in order to take a statement from Nonn and did not

return until 7:30 p.m. when he took Vega's statement.

Chicago Police Youth Officer Linda Paraday introduced herself to Vega at

approximately 4:00 p.m. and read Vega her rights. Youth Officer Paraday also

informed Vega that she would be tried as an adult. Vega replied that she had heard

those warnings before. Youth Officer Paraday talked with Vega while they waited for

ASA Falagario, and she explained to Vega that she was there for her if she needed

anything. Youth Officer Paraday testified that she wore a weapon under her blazer,

but it was not visible to Vega.

When ASA Falagario returned to the interview room at 7:30 p.m., he again

asked Vega if she wanted to give a statement. Vega indicated that she wanted to give

a handwritten statement. ASA Falagario read the written warnings on the statement

form to Vega, and he also included the warning that she would be tried as an adult.

Vega never said that she wanted to remain silent or asked for an attorney and, instead,

agreed to talk to the prosecutor. ASA Falagario explained that he was going to write

down what Vega was saying as she told him what had happened. He also told Vega

he would make any changes, corrections, or additions she wanted. The following

written warnings were given:

I understand that I have the right to remain silent and that anything I say

can be used against me in a court of law. I understand that I have the

right to talk to a lawyer and have him present with me during

questioning, and if I cannot afford to hire a lawyer one will be appointed

by the court to represent me before any questioning. I understand that

although I am 16 years [sic] I will be tried as an adult.

Understanding these rights, I wish to give a statement.

After saying that she understood the above warnings and wanted to make a

statement, Vega signed on the line below the warnings. ASA Falagario wrote out

Vega's statement as Vega told him what happened. Youth Officer Paraday, who was

present when Vega made her statement, noted that a detective interrupted the taking

of the statement to inform them that Vega's mother had called. The State's attorney

asked Vega if she wanted to talk to her mother, and, after Vega said that she wanted

to do so, Youth Officer Paraday took Vega to a phone. Vega did not ask to stop or to

be given an attorney after talking with her mother. She, instead, continued with the

statement.

When ASA Falagario finished writing the statement, Vega read the warnings and

the first paragraph of the statement aloud. ASA Falagario read the rest of the

statement as Vega followed along. Vega requested changes and corrections to the

statement, which ASA Falagario made. After Vega was satisfied with the changes

and corrections, she signed each page of the statement. Youth Officer Paraday

testified that no one used any tricks, coercion, or promises to get Vega to sign the

statement.

Considering all of the testimony in the record, the totality of the circumstances

surrounding Vega's interrogation suggests that her statement was the product of a

free and deliberate choice rather than intimidation, coercion, or deception. See Moran ,

475 U.S. at 421 . Vega's rights were explained to her. In addition, before making her

statement, Vega was read the written warnings on the statement, stated that she

understood the warnings, and signed on the line below the warnings. Vega never

invoked her right to remain silent or to seek counsel. ASA Falagario and Youth Officer

Paraday testified that they each spoke with Vega privately and asked if she was being

treated okay and if she needed anything. During these discussions, Vega did not make

any indication that she was treated unfairly or was coerced in any way. Vega was

also allowed to speak with her mother before signing the statement. Furthermore,

because Youth Officer Paraday's weapon was not visible to Vega, its presence during

the making of the statement does not suggest coercion. Accordingly, we conclude

that Vega's statement was voluntary and uncoerced.

(2) Knowingly and Intelligently

To knowingly and intelligently abandon a constitutional right, the accused must

be aware of both the nature of the right being abandoned and the consequences of the

decision to abandon it. See id . A court must examine the totality of the

circumstances surrounding the interrogation to determine if the accused had the

requisite level of comprehension to knowingly and intelligently abandon a constitutional

right. See id. ; Ashcraft , 934 S.W.2d at 738 .

In addition to the facts set out above, Youth Officer Paraday testified that Vega

appeared very bright and rather calm and matter-of-fact. Vega indicated that she

understood the warnings. She also had the opportunity to read warnings aloud before

she signed the statement.

Considering all of the testimony in the record, the totality of the circumstances

surrounding the interrogation suggests that Vega was aware of both the nature of the

rights that she abandoned and the consequences of the decision to abandon those

rights. See Moran , 475 U.S. at 421 . We therefore conclude that Vega made her

statement knowingly and intelligently.

Accordingly, Vega's legal rights were explained to her so that her statement

was made voluntarily, uncoerced, knowingly, and intelligently. We cannot conclude

that Vega's considerations were affected by the absence of a magistrate. The

procedures utilized were sufficient to carry out the underlying purpose of the Texas

requirements. We therefore conclude that Vega's constitutional and other legal rights

were recognized and enforced, and she was assured a fair hearing as directed by

section 51.01 of the family code.

Vega contends that Texas law enforcement officers should have explained the

provisions of the Texas Family Code to the Illinois authorities so that they would

employ the correct procedures. However, this would have placed an extreme burden

on the Texas and Illinois authorities. Out-of-state law enforcement personnel are not

expected to learn and apply the intricacies of Texas statutory law or vice versa. It

would be nearly impossible for Texas authorities to fully explain the necessary

procedures to be followed when questioning a juvenile to authorities in every state that

may apprehend a juvenile for a crime committed in Texas. Also, Texas law

enforcement officers have no control over the actions of authorities in other states.

Finally, as noted by the court of criminal appeals, since the identified violations of the

Texas Family Code were committed by Illinois law enforcement officers, excluding

Vega's statement would not deter Illinois law enforcement officers from future

violations because the Illinois police will continue to comply with their own laws and

procedures. See Vega , 84 S.W. at 619 (citing State v. Mayorga , 901 S.W.2d 943,

946 (Tex. Crim. App. 1995)). A ruling that the statement was properly admitted is

most consistent with principles of "fairness" to all involved. The circumstances

surrounding the taking of Vega's statement, although in violation of Texas statutes,

upheld the constitutional rights the Texas procedures were designed to protect.

Vega argues that the Texas officials should have advised the Illinois authorities

of Texas's procedures for taking juvenile statements. This ignores a number of

practical concerns at the time, including the lack of any clear precedent concerning

which state's procedures should apply. She asserts that said officers should have so

analyzed a complex legal issue that this Court is still reviewing. This argument also

ignores significant practical concerns, such as the need to not only decide that Texas

law applies, but rather to also convince the Illinois authorities, including a magistrate,

to follow Texas law rather than Illinois law. It also does not recognize that an Illinois

magistrate would have had to educate himself concerning the role a magistrate plays

under Texas juvenile law and also that the magistrate and everyone else involved

would have had to then properly carry out their unfamiliar role under said law.

Vega contends that a plain reading of section 51.09 evinces a desire by the

legislature to protect juveniles' rights and elevate those rights above those accorded

an adult. She contends that the legislature intended to protect children from coercion,

and that the presence of a magistrate is a safeguard against the waiver of a juvenile's

rights by those minors who lack the experience or judgment to waive them. We

believe, however, that Vega's statutory rights were protected when, in the absence

of a magistrate, Illinois authorities spoke with Vega and determined that she not only

understood the nature and contents of her statement, but that she was also signing

it knowingly, intelligently, and voluntarily. Vega was afforded the procedural

safeguards of the family code.

The Texas provisions are not constitutionally mandated; they were added to

provide a mechanism to make sure that a juvenile's right against self-incrimination was

protected when an attorney was not present during questioning. The underlying

purposes of the Texas requirements were accomplished and Vega's constitutional

rights upheld. The process of taking Vega's statement in Illinois in the absence of a

magistrate was exercised and enforced in a manner that achieved a fitting and right

balance of considerations such that both parties were assured a fair hearing where the

parties' legal rights were recognized and enforced. While the process was not precise

and violations of the Texas Family Code occurred, based on the record before us, the

process was fair to both Vega and the State. It was impartial, honest, and free from

prejudice, undue favoritism, and self-interest. See Casteel , 875 P.2d at 24 . It

achieved a fitting and right balance of considerations. Id .

Our evaluation of the "fairness" issue compels a conclusion that Vega's

statement was properly admitted under Texas law. Accordingly, we conclude the trial

court correctly determined that those actions adequately protected Vega,

notwithstanding the absence of the magistrate, making the statement admissible.

Thus, the trial court did not err in denying her motion to suppress. We overrule issues

five, six, seven, ten, and eleven.

b. Section 52.025 Violations

In issues nine and thirteen, Vega contends that her statement should be

suppressed because the Illinois authorities violated section 52.025 of the family code.

Specifically, she contends that she was detained more than six hours before the

conclusion of her statement, (20) and that she was improperly left unattended in the

interview room. (21) See Acts 1991, 72nd Leg., ch. 495, § 2, eff. Sept. 1, 1991

(current version at Tex. Fam. Code Ann. § 52.025 (Vernon 2002)). The court of

criminal appeals agreed that these circumstances violated provisions of Title 3,

specifically those found in section 52.025. See Vega , 84 S.W.3d at 619 .

However, unlike section 51.095(a) discussed above, section 52.025 is not an

independent exclusionary statute. Gonzales v. State , 67 S.W.3d 910, 912 (Tex. Crim.

App. 2002). Therefore, as the court of criminal appeals explained in Gonzales , in order

for a juvenile's written statement to be suppressed because of a section 52.025

violation, there must be some exclusionary mechanism. Id . That mechanism is

section 51.17 of the family code which provides that "Chapter 38, Code of Criminal

Procedure, applies in a judicial proceeding under this title." Id . Thus, at the direction

of the Gonzales Court, "if evidence is to be excluded because of a section 52.025

violation, it must be excluded through the operation of article 38.23(a)." Id .

Article 38.23(a) provides that "[n]o evidence obtained by an officer or

other person in violation of any provisions of the Constitution or laws of

the State of Texas . . . shall be admitted in evidence." Our decisions

have established that evidence is not "obtained . . . in violation" of a

provision of law if there is no causal connection between the illegal

conduct and the acquisition of the evidence.

Id. The defendant has the burden to show a causal connection between that violation

and her ensuing confession. Gonzales v. State , 125 S.W.3d 616, 619 (Tex.

App.--Houston [1st Dist.] 2003) (en banc), aff'd sub nom. Pham v. State , 175

S.W.3d 767 (Tex. Crim. App. 2005).

Here, Vega had the burden to prove that the violations of section 52.025

caused her to make her statement. Although Vega acknowledges the causal

connection requirement, she has not claimed that these violations caused her to give

her statement. Further, even had she raised this contention, Vega points to no

evidence in the record demonstrating a causal connection between the violations and

her decision to give a statement to the police, and we have found none. Accordingly,

we overrule issues nine and thirteen.

III. Illinois Law

By her fourteenth issue, Vega complains that, should this Court determine that

Illinois law rather than Texas law should govern the admissibility of the instant

statement, the trial court erred in overruling Vega's motion to suppress evidence

because the authorities did not comply with Illinois law in taking her statement. As

set out above, the court of criminal appeals determined that Texas law, not Illinois law,

applies. Vega , 84 S.W.3d at 617 ; see also id . at 621 (Keller, J., dissenting).

Therefore, we find it unnecessary to address this issue. See Tex. R. App. P. 47.1.

IV. Arrest Warrant and Supporting Affidavit

By her fifteenth issue, Vega contends that the trial court erred in overruling her

motion to suppress evidence because the arrest warrant and supporting affidavit were

not introduced into evidence and because the State failed to present facts otherwise

justifying her detention, in violation of the Fourth Amendment to the United States

Constitution. By issue sixteen, Vega brings the same contention alleging a violation

of article I, section 9 of the Texas Constitution, and article 38.23 of the Texas Code

of Criminal Procedure.

A trial judge is the sole trier of fact at a suppression hearing and thus

evaluates witness testimony and credibility. Maxwell v. State , 73

S.W.3d 278, 281 (Tex. Crim. App. 2002) (citing Allridge v. State , 850

S.W.2d 471, 493 (Tex. Crim. App. 1991)). When we review a trial

court's ruling on a motion to suppress, we give great deference to the

trial court's determination of historical facts while reviewing the court's

application of the law de novo. Maxwell , 73 S.W.3d at 281 (citing

Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)). The

appellate court must view the evidence in a light most favorable to the

trial court's ruling when the trial court does not file any findings of fact.

Id . When, as here, no such findings of fact were made, the appellate

court will assume that the trial court made implicit findings of fact that

support its ruling, as long as the findings are supported by the record.

Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) [(en

banc)].

Torres v. State , 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).

Vega argues that the testimony adduced at the motion to suppress hearing

failed to show any facts or circumstances under which Vega was wanted in Texas,

and the warrant and supporting affidavit were never introduced; thus, the State failed

to sustain its burden of proof. However, at the suppression hearing in this case, the

"LEADS" message received by the Illinois police from Starr County, Texas, that noted

Vega and Nonn had outstanding warrants in Texas for aggravated kidnaping and

murder was read into the record. Detective Chernikovich testified that at

approximately 11:30 a.m. on the day Vega was picked up, he was faxed copies of the

warrants, the affidavits reporting the warrants for arrest, and an incident report

regarding an abandoned vehicle that contained a deceased victim. Detective

Chernikovich also testified that he had a conversation with a Texas officer, in which

he "had mentioned that they had obtained some pawnshop receipts with Jaime Nunn's

[sic] signature on it [sic]." Moreover, under section 52.01(a)(3) of the Texas Family

Code, in effect at the time of the arrest, a child could be taken into custody by a law-enforcement officer if there were reasonable grounds to believe that the child had

engaged in conduct that violated a penal law of this State or delinquent conduct or

conduct indicating a need for supervision. See Acts 1993, 73rd Leg., ch. 115, § 2,

eff. May 11, 1993 (current version at Tex. Fam. Code Ann. § 52.01 (a)(3)(A), (B)

(Vernon Supp. 2006)). Giving great deference to the trial court's determination of

historical facts, reviewing the court's application of the law de novo , and viewing the

evidence in a light most favorable to the trial court's ruling, see Torres , 182 S.W.3d

at 902 , we conclude that the trial court did not err in denying Vega's motion to

suppress on this basis. We overrule issues fifteen and sixteen.

V. Rule 404(b) and 403 Objections to Extraneous Offense Testimony

In issue seventeen, Vega contends that the trial court erred in admitting

evidence of extraneous offenses in violation of Texas Rules of Evidence 404(b) and

403--that the extraneous offense evidence was irrelevant and that the probative

value, if any, was substantially outweighed by the danger of unfair prejudice. See Tex.

R. Evid. 403, 404(b). Vega contends that the admission of testimony regarding her

use of drugs and alcohol, having sex with an older man, running away from home, and

being a liar, was harmful--that it effectively diverted the jury's attention from the

issues in this case. Vega asserts that these errors affected her substantial rights;

depriving her of a fair trial at the guilt/innocence and punishment phases, a trial that

resulted in an automatic life sentence for capital murder and twenty-year sentences

for aggravated robbery and aggravated kidnaping. See Tex. R. App. P. 44.2(b).

A. The Law

When reviewing a trial court's ruling on the admission of evidence, an

appellate court applies an abuse of discretion standard of review.

Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

(op. on reh'g) [(en banc)]. A trial court abuses its discretion when its

decision lies outside the zone of reasonable disagreement. Green v.

State , 934 S.W.2d 92, 101-102 (Tex. Crim. App. 1996).

Casey v. State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).

Evidence that does not have relevance apart from character conformity

is inadmissible. Tex. R. Evid. 404(b). Extraneous-offense evidence is not

inadmissible under Rule 404(b) if the extraneous-offense evidence is

relevant to a fact of consequence apart from its tendency to show

conduct in conformity with character. Johnston v. State , 145 S.W.3d

215 (Tex. Crim. App. 2004). Extraneous-offense evidence is not

inadmissible under Rule 404(b) when it is offered to rebut an affirmative

defense or a defensive issue that negates one of the elements of the

crime. Id .; Powell v. State , 63 S.W.3d 435, 438-440 (Tex. Crim. App.

2001).

Id . Once a trial court determines the uncharged misconduct evidence is not barred

under rule 404(b), the opponent of the evidence may further object under rule

403--that the probative value of the evidence is substantially outweighed by the

danger of unfair prejudice. Id . Once a rule 403 objection is made, the trial court

balances:

(1) the inherent probative force of the proffered item of evidence along

with (2) the proponent's need for that evidence against (3) any tendency

of the evidence to suggest decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main

issues, (5) any tendency of the evidence to be given undue weight by a

jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time or repeat evidence already

admitted.

Id . (citing Gigliobianco v. State , 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)

(noting the factors may blend together in practice)).

B. Challenge to Testimony

On direct examination, Vega testified that she used drugs and alcohol, came

from an erratic family background, lied about being pregnant, had been raped the night

before her crime spree, and that her husband, an older man, was abusive. Through

her testimony Vega suggested, as the defense claimed, that her state of mind was one

of helplessness, that she was essentially under Nonn's control. Vega also testified

that she loved Nonn, that he was always there for her, and that she forgave him.

During cross-examination, the State again elicited testimony from Vega regarding drug

and alcohol use, having sex with an older man, her alleged pregnancy, running away

from home, and being a liar.

After Vega objected to the State's questions on the basis of rules 403 and

404(b), in a bench conference outside the presence of the jury, the State addressed

the trial court as follows:

[The defense] put on this witness [appellant], and they have gone on and

testified about her history from here to eternity. We're seeking to correct

misimpressions they've laid as to what this girl was doing at the time.

The only thing she was doing was drugs. It's not our case-in-chief. It's

their witness, they put her on. She's subject to cross-examination.

We're cross-examining her.

The State continued, "They've raised this issue about some kind of mental state that

she was in at the time this happened, and if she was using drugs at the time, that

goes to her mental state." The trial court then stated, "I'm going to allow it in."

C. Rule 404(b) Objection

As the State represented to the trial court, the testimony elicited by the State

was to rebut Vega's claim that she did not make her own choices in life. She chose

to marry an older man and, thus, had sex with an older man. Vega ran away from

home. She put her maturity, sophistication, and independence at issue by claiming she

was under Nonn's control. The evidence established that Vega could escape from

situations she did not want to be in; that she was not helpless and not under the

control of another; and that she could make her own choices at the time in question.

See Johnston , 145 S.W.3d at 219 . Further, the fact that Vega lied about being

pregnant, which "necessitated" a marriage, went to Vega's ability to tell the truth; the

use of drugs went to Vega's then-existing state of mind. The evidence was also

offered to rebut a defensive issue that negates one of the elements of the

crime--intent. Id .; Powell , 63 S.W.3d at 438-40 ; see Tex. Penal Code Ann. § 19.03

(Vernon Supp. 2006), §§ 20.04, 29.03 (Vernon 2003) (setting out intent as an

element of each offense).

We conclude that the trial court's decision that the evidence was relevant lies

within the zone of reasonable disagreement. See Montgomery , 810 S.W.2d at 291 ;

see also Tex. R. Evid. 404(b). The extraneous-offense evidence was relevant to a fact

of consequence apart from its tendency to show conduct in conformity with character.

Thus, we conclude the trial court's determination that the evidence was relevant was

not an abuse of discretion. See Montgomery , 810 S.W.2d at 291 .

D. Rule 403 Objection

Vega cites to Crank v. State , 761 S.W.2d 328, 341 (Tex. Crim. App. 1988),

overruled on other grounds , Alford v. State , 866 S.W.2d 619 , 624 n.8 (Tex. Crim.

App. 1993) (en banc), for the well-settled proposition that evidence of extraneous

offenses is "inherently prejudicial, tends to confuse the issues in the case, and forces

the accused to defend himself against charges which he had not been notified would

be brought against him." Without more, Vega contends only that, through extraneous-offense testimony elicited by the State regarding her being a criminal generally, her

substantial rights were affected. See Tex. R. App. P. 38.1(h) (providing that this Court

will only consider contentions that are supported by clear and concise arguments with

appropriate citations to authorities and to the record). Nonetheless, we cannot

determine that Vega was prejudiced, that the issues were confused, and that she was

forced to defend herself against charges against which she had not been notified,

when Vega testified to the same matters on direct examination. We conclude the trial

court did not abuse its discretion when it determined that the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice.

Accordingly, we overrule Vega's seventeenth issue.

VI. Limiting Instruction for Extraneous Offense Testimony

By her eighteenth issue, Vega contends the trial court erred when it instructed

the jury that it could "consider the extraneous offenses in determining the maturity,

sophistication and independence of Appellant in connection with the offense." Vega

argues that the instruction was inappropriate because those bases were not relevant

to any material issue in the case. However, Vega testified to the same matters on

direct examination. Vega put her maturity, sophistication, and independence at issue

by claiming she was under Nonn's control. Thus, it became a material issue. The jury

was instructed for what purposes it could consider the extraneous offenses.

"Generally, we presume the jury follows the trial court's instructions and that a limiting

instruction cures any harm." Moore v. State , 882 S.W.2d 844, 847 (Tex. Crim. App.

1994) (en banc). Therefore, even if the trial court erred in allowing any of the

testimony into evidence, any error was harmless because the instruction, which we

presume the jury followed, identified material issues for which the evidence could be

considered under rule 404(b). Moreover, Vega offers no evidence rebutting the above

presumption. See Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)

(providing that the presumption may be rebutted, but only by evidence that the jury

disregarded the judge's instructions). Rather, Vega only appears to suggest that her

sentence was excessive because she received an automatic life sentence for capital

murder, and twenty-year sentences for aggravated robbery and aggravated kidnaping.

We overrule Vega's eighteenth issue.

VII. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion on Remand delivered and

filed this 9th day of August, 2007.

1. Justice Federico G. Hinojosa, Jr., whose term ended on December 31, 2006, not participating.

2. Nonn was later convicted, and his conviction was upheld by this Court and the court of criminal

appeals. See Nonn v. State , 117 S.W.3d 874, 875, 883 (Tex. Crim. App. 2003) (setting out history

of case and affirming).

3. The Vega Court summarized its holding in Davidson as follows:

[B]ecause art. 38.22 § 3(a) of the Texas Code of Criminal Procedure was procedural in

nature, a trial judge is required to apply Texas law to determine the admissibility of an

oral confession obtained in another state. [The Davidson Court] also held that because

the mandatory requirement of art. 38.22 §3(a), that an oral custodial statement must

be recorded before it can be used against a defendant, was not followed by the

authorities in Montana, appellant's oral confession was inadmissible at his Texas trial.

Vega v. State , 84 S.W.3d 613, 616 (Tex. Crim. App. 2002) ( en banc) (citing Davidson v. State , 25

S.W.3d 183 , 185-86 n.2 (Tex. Crim. App. 2000)). In Vega , the court of criminal appeals concluded

Davidson did not apply because (1) the challenged statement was written and, thus, did not violate the

provisions of article 38.22, and (2) "pursuant to the Code Construction Act, the sections of the Family

Code relevant to confessions prevail over art[icle] 38.22." Id .

4. The court of criminal appeals reasoned that the question of which directives in Title 3 are

substantive and which are procedural is not relevant because, if procedural in nature, the issues are

governed by the laws of the forum state, or Texas in this instance, and, if substantive in nature, the

conflict-of-law schemes of both Illinois and Texas militate for the application of Texas substantive law.

See Vega , 84 S.W.3d at 617 . The court arrived at its Texas substantive law conclusion by considering

five factors Texas courts review in determining which forum has the most significant relationship to the

case and by deciding that four of the five factors, including (1) where the injury or unlawful conduct

occurred, (2) the place where the relationship between the parties is the strongest, (3) the number and

nature of contacts that the non-forum state has with the parties and with the transaction involved, and

(4) the relative materiality of the evidence that is sought to be excluded, favor Texas law, and that only

resolution of the issue of fairness, the fifth factor, was not obvious. See id. (citing Restatement

(Second) of Conflict of Laws §§ 6, 145 (1971); Gonzalez , 45 S.W.3d 101 , 104 n.4 (Tex. Crim. App.

2001) (citing Restatement (Second) of Conflict of Laws § 139 (1971)). Because Illinois has a similar

method of determining which state has the most significant relationship to the case, the court of criminal

appeals determined that all of the Illinois factors also favored application of Texas law to the substantive

issues. See id .

5. In 1994, section 51.01 read as follows:

This title shall be construed to effectuate the following public purposes:

(1) to provide for the care, the protection, and the wholesome moral,

mental, and physical development of children coming within its

provisions;

(2) to protect the welfare of the community and to control the

commission of unlawful acts by children;

(3) consistent with the protection of the public interest, to remove the

children committing unlawful acts the taint of criminality and the

consequences of criminal behavior and to substitute a program of

treatment, training, and rehabilitation;

(4) to achieve the foregoing purposes in a family environment whenever

possible, separating the child from his parents only when necessary for

his welfare or in the interest of public safety and when a child is

removed from his family, to give him the care that should be provided

by parents; and

(5) to provide a simple judicial procedure through which the provisions

of this title are executed and enforced and in which the parties are

assured a fair hearing and their constitutional and other legal rights

recognized and enforced.

Acts 1973, 63rd Leg., p. 1460, ch. 554, § 1, eff. Sept. 1, 1973 (current version at Tex. Fam. Code

Ann. § 51.01 (Vernon 2002)). The court of criminal appeals asks only that we focus on subsection (5).

Id . Therefore, we will limit our review to the purpose expressed in that subsection.

6. Now Tex. Fam. Code Ann. §52.02 (a) (Vernon Supp. 2006), §§ 52.025 & 51.12 (Vernon 2002).

7. Now Tex. Fam. Code Ann. § 51.095 (Vernon Supp. 2006).

8. Now Tex. Fam. Code Ann. § 51.12 (a) (Vernon 2002).

9. Now Tex. Fam. Code Ann. § 51.095 (a)(1)(D) (Vernon Supp. 2006).

10. Now Tex. Fam. Code Ann. § 51.095 (a)(1)(A) (Vernon Supp. 2006).

11. Now Tex. Fam. Code Ann. § 51.095 (a)(1)(A)-(C) (Vernon Supp. 2006).

12. Now Tex. Fam. Code Ann. § 52.025 (d) (Vernon 2002).

13. Now Tex. Fam. Code Ann. § 51.095 (a)(1)(B)(i) (Vernon Supp. 2006).

14. Now Tex. Fam. Code Ann. § 51.095 (a)(1)(B)(i) (Vernon Supp. 2006).

15. Now Tex. Fam. Code Ann. § 52.025 (c) (Vernon 2002).

16. Issues nine and thirteen involve violations of section 52.025 of the family code and will be

addressed separately.

17. For convenience, we will refer only to section 51.09 as it was written at the time Vega gave

her statement.

18. In reviewing Vega's fourth issue, the court of criminal appeals determined that the warnings

Vega received were sufficient to comply with Texas law to the extent necessary to carry out Texas's

intended purpose and public policy. Therefore, we do not address the sufficiency of the Miranda

warnings; rather, we address the absence of a magistrate during the warnings.

19. While arguing that provisions of the family code were violated, Vega does not contend that her

constitutional rights were violated.

20. Now Tex. Fam. Code Ann. § 52.025 (d) (Vernon 2002).

21. Now Tex. Fam. Code Ann. § 52.025 (c) (Vernon 2002).