Meagan Rena Work v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00961-CR

Meagan Rena Work, Appellant

v.

The State of Texas, Appellee

FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-14-301864, THE HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Meagan Rena Work was indicted for multiple offenses related to the

death of her two-year-old son, C.T. In cause number D-1-DC-14-302145, she was charged with

first-degree injury to a child causing serious bodily injury. See Tex. Penal Code § 22.04(a)(1),

(e). In cause number D-1-DC-14-302146, she was charged with first-degree injury to a child by

omission causing serious bodily injury. See id. § 22.04(a)(1), (b)(1), (e). In cause number

D-1-DC-14-301864, she was charged with two counts of second-degree tampering with physical

evidence, a human corpse. See id. § 37.09(c), (d)(1). Pursuant to a plea-bargain agreement,

appellant entered an open plea of guilty to the injury to a child by omission causing serious

bodily injury charged in cause number D-1-DC-14-302146 and the two counts of tampering with

physical evidence, a human corpse, charged in cause number D-1-DC-14-301864. As part of the

plea-bargain agreement, the injury to a child causing serious bodily injury charged in cause

number D-1-DC-14-302145 was dismissed. The trial court found appellant guilty of all three offenses and, after hearing punishment evidence, sentenced appellant to confinement in the

Texas Department of Criminal Justice for thirty years for the injury to a child by omission and

twenty years for each of the tampering offenses, see id. §§ 12.32, 12.33, ordering the sentences

to be served concurrently, see id. § 3.03(a). In four points of error on appeal, appellant contends

that the trial court abused its discretion in denying her second amended motion to suppress the

statements that she made to the investigating officers. We will affirm.

BACKGROUND

Factual Background1

On the evening of September 10, 2014, Kevin Freed, a patrol officer with the

Cedar Park Police Department, met with a concerned citizen who had come to the police station

to make “an outcry about the welfare of a young child” because she believed the young boy,

two-year-old C.T., was missing and had been abused. The citizen showed the officer

photographs depicting the child with significant injuries that appeared, to the officer, to be

inflicted rather than naturally occurring. Officer Freed conferred with his supervisors, and they

determined that a welfare check on the child was warranted.

Officers eventually found the child’s mother, appellant, at around 10:00 p.m. later

that night at a residence on Cypress Lane, but C.T. was not with her. When the officers tried to

ascertain the boy’s location, appellant indicated that her son was with her friend in Sachse, which

she said was a city outside of Houston.2 The officers contacted Sachse Police to follow up on

1 The facts recited are taken from the testimony and other evidence presented at the suppression hearing. 2 The record reflects that Sachse, Texas, is a city in the Garland/Plano area, not a suburb of Houston. The Cedar Park officers testified that they were aware of this fact. 2 appellant’s information—to go to the friend’s home, find C.T., and conduct a welfare check on

him. The Sachse Police went to the friend’s house and discovered that C.T. was not there. They

conveyed that information to the Cedar Park Police, along with information that appellant had

texted her friend, while the Sachse Police were there, instructing her friend to tell the police that

C.T. was there. The Cedar Park officers confronted appellant with the fact that her son was not

at her friend’s home in Sachse, but appellant insisted that she had taken C.T. to her friend’s

house outside of Houston. The police remained unable to ascertain the child’s location or

condition. After contacting the on-call detective, a decision was made to transport appellant to

the Cedar Park police station to further the investigation.3

They arrived at the Cedar Park police station a few minutes after 11:00 p.m. (on

September 10th), and appellant was taken to the “soft interview” room, which is a room with a

“laid back environment” used for interviewing witnesses and victims, particularly children, that

has a loveseat and toys. Christopher Dailey, a detective with the Cedar Park Police Department,

began interviewing appellant around midnight. He informed her that she was “not under arrest”

but was “not free to leave.” He then gave her Miranda warnings, see Miranda v. Arizona,

384 U.S. 436, 478–79 (1966) (holding that prior to custodial interrogation, law enforcement

officers must advise accused of certain constitutionally protected rights to secure Fifth

Amendment privilege against self-incrimination), which appellant indicated that she understood.

Appellant first repeated the Sachse story previously given to the patrol officers at the Cypress

Lane residence—that she had dropped C.T. off with her friend in Sachse. However, about

3 Over the course of the next few days, as the investigation evolved, appellant was held in multiple locations, interviewed by officers from several law-enforcement agencies, and arrested—at different times—for various offenses. During the course of the investigation, which involved continuous attempts to find C.T., appellant’s explanation about what happened to her son changed several times. 3 forty-five minutes into the interview, appellant admitted that she had lied about Sachse and said

that C.T. had been kidnapped from her truck outside a truck stop in Austin the week before.

After getting further information about that incident, Detective Dailey left the interview room.

Appellant was left alone in the soft-interview room for almost an hour, during

which time she moved to the loveseat to lie down. Detective Dailey returned with a map of the

area that appellant had described, and she pointed out the location where C.T. had been

kidnapped. The detective again left the room at about 2:30 a.m. (on September 11th), asking

appellant before he left if she needed to use the restroom. She said that she did, and the detective

found an officer to escort her to the restroom. After her restroom break, appellant returned to the

loveseat. Detective Dailey, his fellow detectives and officers, and officers from other

law-enforcement agencies coordinated to follow up on the information that appellant had

provided as well as to investigate other sources for information.

Detective Dailey returned just after 3:00 a.m. for about five minutes and asked

appellant a few additional questions. Appellant asked the detective if they had “figured anything

out or talked to anybody” who had information that could help them find C.T. When he told her

that they were “still working on it,” she asked, “You still don’t know anything?” The detective

told her that he would “let [her] know.” While the police efforts to find C.T. were ongoing,

appellant slept on the loveseat. As part of their efforts, police obtained search warrants for

appellant’s truck, which they considered to be a crime scene based on appellant’s statement that

C.T. had been kidnapped from there, and appellant’s cell phone in order to gain possible

information to assist in locating C.T.

About one and a half hours later, in the early morning hours of September 11th,

Lieutenant Chanse Thomas, another detective with the Cedar Park Police Department, joined

4 Detective Dailey in interviewing appellant. They woke up appellant at approximately 4:20 a.m.

and asked her if they could “talk to [her] a little bit more.” She said, “Yeah.” She told them that

she was not feeling good and felt like throwing up. Lieutenant Thomas offered her the trashcan,

and she explained that “that’s why [she] had it.”4 She did not indicate that she needed medical

assistance or say that she could not talk to them because she was not feeling well. Detective

Dailey asked appellant if she was hungry; she said that she was not and confirmed that she still

had water.5 He then again gave appellant Miranda warnings since the lieutenant had joined the

interview. Appellant orally confirmed her understanding of each of the constitutional rights.

Detective Dailey asked appellant if she “still want[ed] to talk to [them],” and she said, “Yes, sir.”

Lieutenant Thomas then asked appellant if she was hungry or if “food might help [her].” They

briefly discussed her pregnancy, and appellant told them that she was four months pregnant.

Lieutenant Thomas again asked appellant if she was hungry, and she said that she was “not really

hungry.” He told her that if she got hungry to let them know “so [they] [could] go get something

for [her].” In the ensuing interview, appellant persisted in her story that C.T. had been

kidnapped from her truck. A few minutes before 5:00 a.m., the lieutenant again asked appellant

if she wanted something to eat, and she declined. He asked if she was sure, offering “something

from Jack-in-the-Box, Whataburger, anything like that,” and she confirmed that she did not want

anything to eat. He also offered appellant water but noted, as she indicated, that she already had

some water. The detectives then left the interview room. A few minutes after they left, appellant

vomited intermittently for about five minutes into the trashcan.

4 The record indicates that, at some point after Detective Dailey left the room at around 3:10 a.m., appellant moved the trashcan close to her. 5 The record reflects that, before being taken to the soft-interview room, appellant had been provided water. 5 About twenty minutes later, at 5:18 a.m., the detectives returned and confronted

appellant with the fact that the information that she had provided about the kidnapping conflicted

with information that the various law-enforcement officers had gathered in their efforts to find

C.T. They informed her that officers had talked with her boyfriend, Michael Turner, in the San

Saba County Jail, and he had told them that she let C.T. go with some people at a Chick-Fil-A.

Appellant then described giving C.T. away to a man and woman, unknown to her, in a

Chick-Fil-A parking lot at the beginning of August. She told the detectives that she was on the

side of the road with C.T. asking for money and a place to stay when a man and woman pulled

over into the Chick-Fil-A parking lot. She said they discussed her situation, prayed together,

shared a meal, and then she gave C.T. to them. Appellant did not know their names, because she

did not ask, and said that they were “not from around here.” She described the couple, gave the

approximate ages of two children the couple had with them, and described their car. She told the

detectives that they could get the footage from the security camera at the Chick-Fil-A to confirm

her story and get information about the couple’s car. The detectives left the interview room at

5:55 a.m.

They returned over an hour later, at approximately 7:12 a.m., and woke up

appellant who was asleep on the loveseat. Lieutenant Thomas again offered appellant something

to eat, which she again declined. The detectives informed appellant that they were unable to

confirm her story; other officers did not locate video footage from the Chick-Fil-A security

camera showing a woman and child (appellant and C.T.) as she had described. The detectives

confronted her with the “farfetched” nature of her story, but she continued to insist that she had

given C.T. to this couple. She provided further details of the encounter with the couple and

described what C.T. was wearing when she gave him away. The detectives again expressed their

6 doubt about the Chick-Fil-A story and implored appellant to tell the truth about what had

happened so they could find C.T. After about an hour, the interview concluded. Detective

Dailey offered appellant water and a restroom break, which she indicated that she needed, and

Lieutenant Thomas offered her a breakfast taco, which she accepted. The lieutenant brought the

taco, and appellant was escorted to the restroom. After she returned, she did not unwrap or eat

the taco. Instead, she left the food untouched on the table and returned to the loveseat.

Appellant remained in the soft-interview room alone, resting on the loveseat, until Detective

Dailey returned at 8:48 a.m. and informed her that she was going to be charged with child

abandonment.6 Appellant asked some questions about what would happen to her—if she would

stay in jail until her son was found, if there was a way to bond out, and if she would get a trial.

The detective informed her that the answers to those questions were “beyond [his] scope”

because those were decisions that would be made by others.

Detective Dailey then brought in social workers from Child Protective Services

(CPS) who spoke with appellant. Appellant repeated the Chick-Fil-A story to the CPS workers.

When asked if “something bad happen[ed] to C.T.,” appellant explicitly denied that anything bad

had happened to her son and insisted that she was telling the truth. The detectives, who were

also present in the interview room, confronted appellant with inconsistencies between what she

had just told the CPS workers and what she had previously told them. One of the CPS workers

expressed to appellant that she found her story about giving C.T. away to strangers at

Chick-Fil-A difficult to believe. She also conveyed to appellant that everyone was concerned

about C.T. and wanted to find him and ascertain if he was safe. After appellant once again

6 The record reflects that the detective prepared a complaint, which was notarized, but no arrest warrant or commitment order was issued. 7 insisted that she was telling the truth and “had told [them] everything,” the CPS worker asked if

appellant had any questions, and appellant responded that she did not. At 9:44 a.m., the

detectives and the CPS workers left the interview room.

Appellant remained in the soft-interview room alone for the next five hours, and

the record indicates that appellant slept during the interim. At approximately 3:11 p.m.,

Detective Dailey returned. He asked appellant if she had rested, and she indicated that she had,

expressing surprise that it was afternoon. He asked appellant if she wanted something to eat,

offering her “pizza or something,” and water. Appellant said that she would “try” the pizza and

asked to go the restroom. The detective left to get a female officer to escort her to the restroom.

While she was waiting for the escort, another officer entered the room and asked appellant if she

wanted some pizza. She explained that the detective was already arranging it. After the

restroom break, appellant was provided the pizza, which was cold, and a cup of water. She

picked at the pizza, eating only one or two bites. Appellant remained at the table for the next

half hour but did not eat.

At one point, at about 3:47 p.m., she retrieved the trashcan and positioned herself

over it. She burped (or heaved) once but did not appear to actually vomit. A few minutes later, a

uniformed officer entered the room and asked appellant if she was “doing alright.” She

responded, “Yeah,” but complained that she had dropped her bracelet. She located her bracelet

and retrieved the trashcan, holding it as she sat in the chair. She positioned herself over the

trashcan, but she did not vomit or heave further at that time. Ten minutes later, the officer

offered appellant more water, which she declined. She remained positioned over the trashcan,

heaving or spitting into the trashcan a few times, until, at about 4:10 p.m., Detective Dailey

returned. He asked appellant if she was “doing alright.” She said, “Yeah,” but that she was

8 “sick” and “queasy really bad.” Seeing the trashcan, he asked if she had been “sick” again, and

appellant said that she was “cramping” and “[felt] sick.” Appellant did not ask for medical

attention. The detective asked appellant if she wanted more water, which she declined. He then

informed her that they needed to ask her further questions but had to switch rooms.

Appellant was taken to the “hard interview” room (the normal suspect-

interrogation room) to meet with Robert Gutierrez, an FBI agent from San Antonio. When she

walked into the room, appellant was crying. Agent Gutierrez asked her why she was crying. She

told him that she was “hurting really bad” and “cramping really bad.” The agent sought

clarification about her condition and asked if this was due to her menstrual cycle. Appellant

informed him that she was pregnant. He immediately asked if she needed medical assistance,

which she declined, saying that she was “okay.” He indicated that he was “serious” about

getting her medical attention, and she repeated that she was “okay.”

The agent advised appellant of her constitutional rights, and she signed a form at

4:14 p.m. indicating that she understood the Miranda warnings and her rights. He then explained

the polygraph exam to her and asked if that was something that she would agree to do if it was

needed. Appellant equivocated in her response, saying, “Um, yeah, but . . . I mean, yeah.”

Agent Gutierrez sought to clarify her response, asking her what questions he could answer for

her “up front.” Appellant said that she did not know if she “need[ed] to try to talk to a lawyer or

what.” The agent responded, “Tell you what. We can talk about this here in a little bit — this

aspect” as he set aside the polygraph paperwork. He next asked appellant if she had any health

issues other than her pregnancy. She said, “No,” but then said that she was “borderline diabetic.”

He asked if she took medication for that, and appellant said, “No.” He then asked her if she had

slept today, and she responded that she had. He asked her if she felt rested and “felt okay,” and

9 she said, “Yes.” Agent Gutierrez then obtained general background information from appellant

and explained the FBI’s involvement in the situation. He told her that local, state, and federal

law-enforcement officers had an obligation to find C.T. Appellant explained the reasons that she

had given different stories about what happened to C.T. and repeated the Chick-Fil-A story to the

FBI agent.

After talking with appellant for about an hour, Agent Gutierrez reintroduced the

idea of appellant taking a polygraph. At approximately 5:20 p.m., he explained to appellant her

rights related to the polygraph, and appellant signed a consent to an interview with polygraph,

agreeing to submit to a polygraph examination. The agent asked appellant how she was feeling,

and appellant said that she was “okay.” He noted appellant’s hand on her side and told her that

he needed to understand how she was feeling. Appellant said she was cramping, and they

discussed her pregnancy. Appellant explained that she “passed out regularly,” was “constantly

sick,” and “cramp[ed] all the time.” Agent Gutierrez expressed that he “was not a doctor” and

that he was relying on appellant to communicate her status to him. Appellant said that she was

hurting but did not ask for, or express a need for, immediate medical attention. The agent

offered appellant a restroom break, which she declined. He briefly left the room to confer with

other officers. When he returned, he asked appellant how she was doing, and she said that she

was “okay.” They continued to discuss appellant’s story that she gave C.T. away to a couple at

Chick-Fil-A. At approximately 6:15 p.m., Agent Gutierrez offered appellant a break and asked

her if she needed to go to the restroom, and she indicated that she did.

Agent Gutierrez left the room to get a female officer to escort appellant to the

restroom. While he was out of the room, appellant retrieved the trashcan, positioned herself over

it, and vomited a small amount. When Agent Gutierrez returned, he noticed the trashcan and

10 asked appellant if she had vomited. She confirmed that she had. He asked her how she was

feeling, and she said, “Okay.” He offered her water, which she accepted, and he left to get it.

When he returned with the water, they discussed how she was feeling. He expressed that he

could not tell how she was feeling by looking at her and again told her that it was “up to her” to

communicate how she was feeling. She conveyed that she was “okay” and, further, that she was

“okay” to do a practice polygraph, which began at approximately 6:36 p.m. After the practice

polygraph, appellant told Agent Gutierrez that she was comfortable continuing with further

relevant questions. The polygraph began at approximately 6:45 p.m. and lasted about

twenty-five minutes. Agent Gutierrez then again left the room to confer with other officers.

While he was out of the room, appellant positioned herself over the trashcan but did not vomit.

When the agent returned, he again asked appellant how she was doing, and she again said that

she was “okay.” He asked if she was still feeling “the same,” and she said that she was feeling

“shaky.” He advised her to take a drink of water, which she did. She then indicated that she

was “okay.”

Agent Gutierrez then sat down with appellant and, at about 7:12 p.m., informed

appellant that she was “not passing” the polygraph. He explained that law enforcement needed

to find C.T. For approximately the next hour, the agent reviewed the details of appellant’s

Chick-Fil-A story with her. He implored appellant to be honest and repeatedly attempted to

obtain additional information from her that would assist them in locating C.T. At 8:35 p.m.,

appellant was offered, and took, a restroom break. Agent Gutierrez again left the room. On his

return, he offered appellant a drink, which she declined. He again asked appellant how she

was feeling, and she again said that she was “okay.” The interview resumed, and appellant

revealed that she and Turner had planned to give C.T. away “to someone.” At around 9:00 p.m.,

11 Agent Gutierrez offered appellant an energy bar, which she accepted. She ate a few bites,

explaining to Agent Gutierrez that she had tried to eat earlier but felt sick. The interview

continued, and appellant adamantly insisted that nothing had happened to C.T.

At approximately 9:20 p.m., Lieutenant Thomas entered the room with an officer

who took a sample of appellant’s DNA by buccal swab. The lieutenant informed appellant that

they were going to put information out on the media to try to find C.T. He then formally arrested

her for endangering a child at 9:22 p.m. He expressed that law enforcement had concerns that

C.T. was “seriously injured” and, one last time, implored appellant to consider telling them the

truth. Lieutenant Thomas and Agent Gutierrez left the room, and appellant was then left with a

uniformed officer to await transport to the jail. The officer saw the trashcan and asked appellant

if she had vomited. She confirmed that she had earlier, and he asked why. She said that she was

sick. He asked if she was still sick, and she told him that she was “just pregnant.” Appellant left

the hard-interview room at 9:47 p.m.

She was transported to the Williamson County Jail, where she was booked into

the jail at approximately 10:20 p.m. (on September 11th) and charged with the felony offense of

abandoning or endangering a child. She was not booked into the jail for any other offense. The

record reflects that appellant was seen by medical personnel approximately fifteen minutes later.

The medical intake screening forms in the jail medical records, one of which appellant signed,

indicate that appellant was four months pregnant with a high-risk pregnancy and that she

responded “no” when asked if she was “currently experiencing pain.” The intake evaluation

form reflects that appellant was demonstrating “no acute distress” at that time. The record also

reflects that, for the duration of her stay in the Williamson County Jail, appellant was housed in

the infirmary in a “medical cell,” which had a bunk, shower, toilet, and desk.

12 Throughout the night, law-enforcement officers from multiple agencies continued

their investigation and their efforts to find C.T. As part of those efforts, officers repeatedly

interviewed Turner in jail. Eventually, Turner admitted that C.T. was dead and led officers to a

location in Travis County where he and appellant had buried the two-year-old child. Police

recovered a child’s body buried at that location.

At approximately 4:40 a.m. on September 12th, after police had recovered the

child’s body (which they believed to be C.T. but had not yet confirmed), appellant was

interviewed at the Williamson County Jail by Anthony Nelson, a detective from the Austin

Police Department, and Lieutenant Thomas. Before the interview began, Detective Nelson gave

appellant Miranda warnings, and she orally confirmed that she understood her rights; she agreed

to talk with the detectives. Appellant initially repeated the Chick-Fil-A story—that she had

given C.T. to the couple at Chick-Fil-A—until the detectives confronted her with the fact that

they knew that C.T. was dead, that Turner had taken them to the burial site in Southeast Austin,

and that they had found C.T.’s body. Appellant then told the detectives that C.T. had died after

having a seizure. She explained that C.T. had a seizure “for no reason” and that she and Turner

had taken him to the hospital but did not go inside because they feared authorities would take

C.T. because of injuries on his body, which she claimed were inflicted by her father several

weeks before the seizure. Appellant told the detectives that they sat outside the hospital for

about an hour while C.T. was seizing, but that he started looking better so they returned to their

motel room and went to bed. She said that when she woke up, C.T. was dead.

During the interview, appellant described a “fluid-filled” bump that C.T. had on

his forehead above his eye, which worsened over time to the extent that the child’s nose and eye

had also swelled. She attributed the bump to C.T. being injured, though she did not know how or

13 by whom, approximately two weeks before his death while C.T. was with her father, who was

watching C.T. while appellant was at work. Appellant also told the detectives that Turner had

buried C.T. but later dug up the child’s body, and the two of them found a different burial site

where Turner again buried C.T. The interview lasted approximately two and a half hours, ending

at about 7:00 a.m. At no point during the interview did appellant express discomfort, exhibit

nausea, or vomit.

Testimony from the suppression hearing reflects that, throughout the day (of

September 12th), discussions took place between the Cedar Park Police Department and the

Williamson County District Attorney’s Office about dropping the charge of abandoning a child

against appellant because, as Detective Nelson explained,

The charges that she was held for in Williamson County, being abandoning the child, were false, and we all knew they were false because now we know the child’s body is in the ground in a grave in Austin, Travis County, Texas. So we could not in good conscience allow those charges in Williamson County to go forward. So she was going to be charged [by the Austin Police Department] with tampering with physical evidence, [for] burying her child.

Later that evening (of September 12th), at approximately 6:40, appellant was

transported from the Williamson County Jail to the Travis County Jail by officers from the

Austin Police Department. At that time, less than twenty-four hours after appellant was booked

into the Williamson County Jail for abandoning a child and less than forty-eight hours after

Detective Dailey informed her that she was not free to leave in the soft-interview room—all

Williamson County charges were disposed of.7 When the APD officers met appellant at the jail,

7 Defendant’s Exhibit #3, the Williamson County Prisoner Transfer Information Sheet, which was admitted during the original suppression hearing, reflects that “All Williamson County Charges are disposed of” and that the inmate did not need to return to Williamson County. In addition, the comments section of the form specified “Do Not Return.” 14 she had an insulin tube with her, given to her by the Williamson County Jail medical personnel.

When one of the transporting officers asked what she had, appellant explained that it was insulin.

The officer then asked if she was diabetic, and appellant told the officer that she was

“borderline” Type I diabetic but was “not insulin dependent.” Before placing her in the patrol

car, the transporting officers informed appellant that she was under arrest for “tampering with

evidence” and advised her that the child-abandonment charge had already been dropped.

During the transport to the Travis County Jail, in response to questions from the

transporting officers, appellant provided information about C.T.’s medical records, which was

then given to the medical examiner to assist in identifying the body recovered from the burial site

in Southeast Austin. Appellant was booked into the Travis County Jail at approximately 8:30

that evening (of September 12th). She was taken to the jail nurse upon her arrival, and after a

medical intake evaluation indicated dehydration and high ketone levels, she was taken to

Brackenridge Hospital where she was treated for nausea and vomiting, dehydration, and high

ketone levels. She arrived at the hospital at around 10:00 p.m. She was given fluids to rehydrate

her and clear the ketones from her system (through urination) and was given medication for

nausea and vomiting. Appellant was discharged from the hospital several hours later, at around

2:00 a.m. (on September 13th), and was returned to the Travis County Jail.

Later that day (of September 13th), at around 3:00 p.m., appellant was transported

from the Travis County Jail to the Austin Police Department for another interview with Detective

Nelson who was joined by APD detective Ray Tynes. Once in the interview room, Detective

Nelson offered appellant a snack, which she accepted, and he provided her with pretzels and a

drink. He once again gave appellant Miranda warnings, advising her again of her constitutional

rights. She orally indicated that she understood her rights and that she wanted to talk with the

15 detectives. Appellant repeated the seizure story except this time she blamed Turner for C.T.’s

head injury, claiming that he had caused C.T.’s head to hit the air-conditioning unit inside the

motel room before the seizure. She explained that Turner had put C.T. in “time out,” which

involved making the two-year-old child stand on a chair and remain standing while looking up at

the ceiling. She said that C.T. had failed to keep his head up and stand straight, so Tuner had

“whupped” C.T. The child fell and hit his chin and then his head on the AC unit. According to

appellant, after that, C.T.’s chin was bruised and his head “swelled up so fast” and “kept growing

and growing.” Nevertheless, Turner made the child continue to stand in time out after he had

been injured. When they left the motel room an hour and a half later, they tried to walk C.T. out

to the truck, but the child could not walk and “would fall over.” Appellant carried C.T. to the

truck; he was crying, he was “really sleepy,” and his nose was bleeding. They drove to Turner’s

place of employment. Turner went inside while appellant stayed in the truck with her son.

Appellant told the detectives that, at that point, C.T. started seizing. She screamed for help, and

Turner came out of the business. He got in the truck, and they drove off.

Appellant admitted to the detectives that she thought that her son needed medical

attention at that time because “he was definitely not acting normal.” However, she and Turner

decided not to take C.T. to the hospital because C.T. was bruised,8 and Turner was afraid he

would go to prison, and she feared that CPS would take her son away from her. Instead, they

took C.T. back to their motel room where, over the next twelve hours, his condition worsened.

Appellant explained that her son was unresponsive—his eyes were open but “he wasn’t there . . .

his eyes were hollow”—and he was “completely limp.” He could not walk, could not talk (he

8 Appellant explained that C.T. was bruised across his lower back, buttocks, and thighs from Turner “whupping” him. 16 only moaned), and could not drink (the water just dribbled out of his mouth). Appellant said that

she laid on the bed with C.T. and held him all night until she fell asleep for about thirty minutes.

When she woke up, C.T. was dead.

Appellant said that they stayed in the motel room that day, and then she helped

Turner bury C.T. that night. Appellant said, however, that she felt that C.T. was not buried deep

enough so she made Turner “unbury” her son, and they returned to the motel with the child’s

body that night. They stayed in the motel until the following evening. They left just as it

was getting dark and buried C.T. in Southeast Austin—at the location where police later

recovered the child’s body. At the end of the interview, which lasted about two and a half hours,

Detective Nelson offered appellant some water, which she declined, and a restroom break. She

returned from the restroom break at 5:30 p.m. with an additional snack (more pretzels) provided

by the detectives. She remained in the interrogation room by herself until she left at 5:52 p.m.

and was returned to the Travis County Jail. At no point during the interview did appellant

express discomfort, exhibit nausea, or vomit.

At 1:45 a.m. on September 14, 2014—approximately thirty-one hours after

appellant was arrested at the Williamson County Jail for tampering with physical evidence and

about twenty-nine hours after she was booked in to the Travis County Jail for that offense—an

arrest warrant was issued for appellant, charging her with tampering with physical evidence for

her role in concealing C.T.’s body by burying it. Approximately one and a half hours later, at

3:26 a.m., appellant was taken before a magistrate for the charge of tampering with physical

evidence—approximately thirty-three hours after appellant was arrested for that offense. After

further investigation by the Austin Police Department, additional arrest warrants charging

17 appellant with injury to a child and injury to a child by omission were issued on October 24, 2014.

She was arrested for those offenses that same day.

Procedural Background

Appellant was subsequently indicted for injury to a child causing serious bodily

injury (for inflicting C.T.’s head injury), injury to a child by omission causing serious bodily

injury (for failing to obtain medical treatment for C.T.), and two counts of tampering with

physical evidence (for her role in burying C.T.’s body twice). Appellant filed a pretrial motion

to suppress evidence in which she sought the suppression of, among other things, all of the

statements that she made to law-enforcement officers, contending that they were the result of an

unlawful seizure of her person.

The trial court conducted a four-day hearing on the motion and issued a written

order granting the motion in part and denying it in part. The trial court suppressed only the

statements that appellant made to law-enforcement officials from the time she was placed in the

“soft interview” room at the Cedar Park police station and told she was not free to leave until she

was released from the hospital and returned to the Travis County Jail because, the trial court

concluded, those statements were the result of an unlawful arrest.9 The State appealed the trial

court’s suppression order.

On appeal, this Court reversed the trial court’s order, concluding that:

As noted previously, the trial court’s historical fact findings regarding the interaction between law enforcement officers and [appellant] are supported by the

9 The trial court concluded that the taint of the unlawful arrest had been sufficiently attenuated upon her release from the hospital and, thus, did not suppress any statements that appellant made to law-enforcement officers after that. 18 record.[10] These facts support the trial court’s conclusion that [appellant] was arrested when she was detained in the “soft interview” room at the police station and told she was not free to leave. However, nothing in the record supports the trial court’s conclusion that the arrest was unlawful. The conclusion about the illegality of the warrantless arrest does not flow from the court’s fact findings. The undisputed facts and circumstances—that [appellant] lied to the police officers about C.T.’s location when they were investigating his status as a missing, and possibly injured, child—gave the officers probable cause to believe that [appellant] had committed the offense of false report regarding a missing child. Furthermore, [appellant’s] commission of that offense in the presence of the officers gave them the authority to arrest her without a warrant. Probable cause to arrest and the statutory authority to make that arrest rendered [appellant]’s arrest lawful. Therefore, the trial court’s conclusion that [appellant]’s arrest was unlawful is not supported by the record.

State v. Work, Nos. 03-15-00730-CR, 03-15-00731-CR, & 03-15-00732-CR, 2016 WL 7335846,

at *9 (Tex. App.—Austin Dec. 16, 2016, pet. ref’d) (mem. op., not designated for publication).

Accordingly, we held that the trial court abused its discretion in granting, in part, appellant’s

motion to suppress her statements. Id. We reversed the trial court’s suppression order and

remanded the causes to the trial court for further proceedings. Id.

After the case was remanded, appellant filed a second amended motion to

suppress seeking to suppress, among other things, the statements that she made to investigating

officers.11 Based on this Court’s conclusion that appellant had been arrested for false report

10 In the opinion, we set forth only the fact findings relevant and necessary to this Court’s consideration of the custody issue and specifically held, “These historical fact findings are supported by the record.” State v. Work, Nos. 03-15-00730-CR, 03-15-00731-CR, & 03-15-00732-CR, 2016 WL 7335846, at *5 (Tex. App.—Austin Dec. 16, 2016, pet. ref’d) (mem. op., not designated for publication). This holding—that the record supported the trial court’s historical facts findings—was limited to those fact findings set forth in the opinion as part of our review of the custody issue. Id. 11 Appellant filed three separate motions relating to the suppression of evidence, including her statements to investigators. At the hearing, appellant pursued only her second amended motion to suppress, which, she informed the trial court, incorporated all the issues raised in the three motions. 19 regarding a missing child at the point that Detective Dailey told her that she was not free to leave

when they were in the soft-interview room, appellant argued that the failure to take her to a

magistrate in a timely manner following that arrest required the suppression of her statements. In

addition, she argued that her statements were involuntarily made because purported

misstatements of the law by investigators rendered the repeatedly given Miranda warnings

“void” and, thus, her statements should be suppressed.

The trial court conducted a three-day hearing; no evidence was offered or

admitted, the parties simply presented argument based on the evidence adduced at the previous

suppression hearing, of which the trial court took judicial notice, and this Court’s opinion. At

the conclusion of the hearing, the trial court denied appellant’s second amended motion to

suppress evidence. The trial court later entered findings of fact and conclusions of law in an

order denying appellant’s motion,12 which concluded:

The State failed to comply with Article 15.17, TCCP. There was a causal connection between that delay and statements made by Meagan Work. However, Work was properly warned of her Miranda rights on five occasions. Despite multiple factors to the contrary, after careful consideration of the totality of the circumstances, the Court concludes Work’s statements were voluntary. In accordance with Cantu v. State, the motion to suppress those statements is hereby denied.

Subsequently, pursuant to a plea-bargain agreement, appellant entered an open

plea of guilty to the first-degree injury to a child by omission causing serious bodily and the two

12 In these findings, the trial court noted that the parties stipulated that the evidence adduced at the original suppression hearing be considered for appellant’s second amended motion to suppress. The trial court also incorporated its prior findings of fact “as upheld by the Third Court” into the fact findings on the subsequent motion. As we noted in footnote 10, however, the fact findings that this Court upheld in its prior opinion were limited to those set forth in the opinion as part of our review of the custody issue.

20 counts of second-degree tampering with physical evidence, a human corpse.13 After a three-day

punishment hearing, the trial court sentenced appellant to confinement in the Texas Department

of Criminal Justice for thirty years for the injury to a child by omission and twenty years for each

tampering with physical evidence, ordering the sentences to be served concurrently. This appeal

challenging the trial court’s denial of appellant’s second amended motion to suppress her

statements followed.14

STANDARD OF REVIEW

We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion, State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018); Furr v. State,

499 S.W.3d 872, 877 (Tex. Crim. App. 2016), applying a bifurcated standard of review, State v.

Arellano, 600 S.W.3d 53, 57 (Tex. Crim. App. 2020); Lerma v. State, 543 S.W.3d 184, 189–90

(Tex. Crim. App. 2018). We afford almost total deference to the trial court’s findings of

historical fact and determinations of mixed questions of law and fact that turn on credibility and

demeanor if they are reasonably supported by the record. Arellano, 600 S.W.3d at 57; Sims

v. State, 569 S.W.3d 634, 640 (Tex. Crim. App.), cert. denied, 39 S.CT. 2749 (2019). We

review de novo a trial court’s determination of legal questions and its application of the law to

13 The convictions for the two counts of tampering with physical evidence charged in cause number D-1-DC-14-301864 are the subject the instant appeal. The Court of Criminal Appeals granted appellant an out-of-time appeal in cause number D-1-DC-14-301864 when notice of appeal was not timely filed in that cause. The conviction for injury to a child by omission charged in cause number D-1-DC-14-302146 is the subject of the appeal in cause number 03-18-00815-CR pending in this Court. 14 In cause number D-1-DC-14-302146, appellant filed a motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 28.1(c). 21 facts that do not turn upon a determination of witness credibility and demeanor. Arellano,

600 S.W.3d at 57; Sims, 569 S.W.3d at 640.

In our review, we must view the evidence in the light most favorable to the trial

court’s ruling. State v. Garcia, 569 S.W.3d 142, 152 (Tex. Crim. App. 2018); Furr, 499 S.W.3d

at 877. “The prevailing party is afforded the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from it.” Wade v. State, 422 S.W.3d 661, 666–67 (Tex.

Crim. App. 2013); State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). When the

trial court makes express findings of fact, as it did here, we determine whether the evidence,

viewed in the light most favorable to the trial court’s ruling, supports the fact findings. Garcia,

569 S.W.3d at 153; Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We

overturn the trial court’s ruling only if it is arbitrary, unreasonable, or “outside the zone of

reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); State

v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Further, we will uphold the ruling if it

is correct on any theory of law applicable to the case that is reasonably supported by the record.

Arellano, 600 S.W.3d at 57–58; State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019).

DISCUSSION

In four points of error, appellant challenges the trial court’s denial of her second

amended motion to suppress the statements that she made to investigating officers during her

custodial interrogation before she was taken to a magistrate. In her first point of error, appellant

contends that her statements should have been suppressed because they were involuntarily made.

In her second point of error, she argues that her statements should have been suppressed because

law-enforcement officers failed to take her to a magistrate without unnecessary delay in violation

22 of article 15.17 of the Code of Criminal Procedure.15 In her third point of error, appellant

maintains that her statements should have been suppressed because she was denied the

opportunity to be released from custody on the misdemeanor on a personal bond pursuant to

article 17.033 of the Code of Criminal Procedure. Finally, in her fourth point of error, she

asserts that her statements should have been suppressed because the alleged failure to take her

before a magistrate in a timely manner as statutorily required denied her “the protection afforded

her by the Fourth Amendment.”

Delay Before Being Taken to Magistrate

Appellant argues that the statements that she made to investigating officers during

her custodial interrogation should have been suppressed because law-enforcement officers

delayed taking her before a magistrate and thus violated the statutory provisions requiring that an

arrestee be taken before a magistrate without unnecessary delay.

Article 14.06 of the Code of Criminal Procedure requires that upon making an

arrest, “the person making the arrest or the person having custody of the person arrested shall

take the person arrested or have him taken without unnecessary delay, but not later than 48 hours

after the person is arrested, before the magistrate[.]” Tex. Code Crim. Proc. art. 14.06(a). On

being taken before a magistrate, the magistrate “shall immediately perform the duties described

15 We note that the parties and the trial court refer to article 15.17 when addressing the failure to take appellant before a magistrate in a timely manner. However, because appellant was arrested without a warrant, the applicable statutory provision regarding taking appellant before a magistrate is article 14.06 of the Code of Criminal Procedure, which governs arrests made without a warrant and incorporates the duties of a magistrate set forth in article 15.17(a). See Tex. Code Crim. Proc. arts. 14.06(a), 15.17(a). Given the similarity of the language used in these statutes—both require an arrestee to be brought before a magistrate “without unnecessary delay, but not later than 48 hours after the person is arrested”—this discrepancy does not impact our analysis. 23 in Article 15.17 of [the Code of Criminal Procedure,]” which include informing the accused in

“clear language” of the accusation against him, of his rights to retain counsel, to remain silent, to

have an attorney present during questioning, to terminate the interview at any time, to request the

appointment of counsel, and to an examining trial. Id. art. 15.17(a). The magistrate shall also

inform the person arrested that he is not required to make a statement and that any statement

made by him may be used against him. Id.

What constitutes “unnecessary delay” in taking an arrestee before a

magistrate depends on the facts of each case and varies with the circumstances. Moya v. State,

426 S.W.3d 259, 263 (Tex. App.—Texarkana 2013, no pet.); Ontiveros v. State, 890 S.W.2d 919,

929 (Tex. App.—El Paso 1994, no pet.); Niehouse v. State, 761 S.W.2d 491, 494 (Tex. App.—

Dallas 1988, no pet.); see Gilbert v. State, 284 S.W.2d 906, 907 (Tex. Crim. App. 1955).

The length of detention must be considered along with other matters such as accessibility of the magistrate, the facilities involved, the unavoidable administrative duties of the officers making the arrest, the intervention of a Sunday or holiday, the physical or mental condition of the person detained, a delay occasioned by the voluntary act of the accused freeing himself of the burden of guilt, and the time spent in further inquiry and investigation to corroborate the statements made by an accused.

Niehouse, 761 S.W.2d at 494; accord Shea v. State, No. 05-04-00685-CR, 2005 WL 1744936, at

*1 (Tex. App.—Dallas July 26, 2005, no pet.) (mem. op., not designated for publication); see

Gilbert, 284 S.W.2d at 907.

Concerning the delay in this case, the trial court made the following fact findings:

Work was arrested at 12:02 AM on September 11, 2014 when she was placed in the “soft interview room” and told she was not free to leave. As previously found, CPPD officers began drafting applications for search warrants within two hours of Work’s arrival at CPPD headquarters. Sometime before 5:00 AM on September 11th, officers of the Cedar Park Police Department (CPPD) presented

24 an affidavit to a Williamson County magistrate seeking issuance of a search warrant for Work’s truck and cell phone. The affidavit alleged there was probable cause to believe Work had committed the offense of child endangerment. The warrant was signed at 5:01 AM, September 11, 2014.

Work was eventually taken before a Travis County magistrate at 3:26 am on September 14, 2014, roughly 75 hours after her arrest. . . .

The evidence demonstrates Work was not taken before a magistrate without unnecessary delay. Specifically, as demonstrated by the first search warrant application and warrant, there was a magistrate available. CPPD had the time and opportunity to prepare a probable cause affidavit for a search warrant and therefore could have easily prepared an application for an arrest warrant and taken Work before a magistrate at the same time. Therefore, the delay was not occasioned by reasonable investigative and processing procedures nor was it due to the search for the missing child.

The evidence demonstrates Work was not taken before a magistrate within 48 hours.

As previously found by the Court, the evidence demonstrates Work was not taken before a magistrate “of the county where the accused was arrested” (Williamson County).

The State failed to comply with Art. 15.17. This arrest was for a Class “C” misdemeanor, an offense which carries a maximum fine of $500 and no jail time. The period of the delay was unreasonable. The delay is particularly egregious after 48 hours have passed. . . .

Relying on these findings, appellant asserts that “unnecessary delay” occurred because she was

taken into custody at 11:00 p.m. on September 10th but not taken before a magistrate until

3:26 a.m. on September 14th.16 However, while the record supports some of the trial court’s fact

findings, it does not support the court’s ultimate fact finding and resulting legal conclusion—or

appellant’s contention—that the police failed to comply with the statute requiring appellant to be

taken before a magistrate “without unnecessary delay.”

16 Appellant asserts that she was taken into custody when she left the Cyprus Lane residence with officers at approximately 11:00 p.m., but that was not the trial court’s finding nor was it this Court’s conclusion in our previous opinion. 25 It is true that, as this Court previously held, appellant was arrested on

September 11, 2014—at the point she was informed in the “soft interview” room that she was

not free to leave (which was, as the trial court found, at approximately 12:02 a.m.)—for a Class

C misdemeanor offense. See Tex. Penal Code § 37.081(b) (establishing that offense of false

report regarding missing child is Class C misdemeanor). It is also true that appellant was taken

before a magistrate “roughly 75 hours” after she was first arrested. However, the record

demonstrates that appellant was not in custody for the misdemeanor offense for which she was

arrested throughout that seventy-five-hour period.

The record demonstrates that appellant was arrested for the felony offense of

abandoning a child when Detective Dailey informed her at 8:48 the morning of September 11th

that she was going to be charged with child abandonment and she was already not free to leave.

See Tex. Code Crim. Proc. art. 15.22 (explaining that person is arrested when he or she “has been

actually placed under restraint or taken into custody”); see also Tex. Penal Code § 22.041(d)(2)

(establishing that offense of abandoning child is third-degree felony “if the actor abandoned the

child without intent to return for the child”). The record further demonstrates that appellant was

formally arrested by Lieutenant Thomas at approximately 9:22 the night of September 11th for

the felony offense of abandoning a child.

Moreover, the record reflects that when appellant was booked into the Williamson

County Jail, she was charged only with the felony child-abandonment charge; she was not

charged with the Class C misdemeanor of false report regarding missing child. Thus, the record

reflects that, less than twenty-four hours after her initial Class C arrest, appellant was no longer

in custody for the Class C offense. Thus, this offense was no longer a charge, or an “accusation

against [her],” see Tex. Code Crim. Proc. art. 15.17(a), that required an appearance before a

26 magistrate in Williamson County. Furthermore, the record shows that when appellant left

the Williamson County Jail at approximately 6:40 p.m. the following day, September 12th, the

Williamson County child-abandonment charge had also been dropped. Thus, less than

forty-eight hours after being arrested for the felony child-abandonment offense, this offense was

no longer a charge, or “accusation against [her],” see id., that required presentation before a

magistrate in Williamson County.

Even if appellant remained in custody for the Class C offense after being booked

into the jail on, and charged with, only the felony offense—which does not logically follow since

she was not booked into the jail on, or charged with, the Class C offense—the record reflects that

less than forty-eight hours after being taken into custody on Williamson County charges, all

Williamson County charges had been disposed of. The record does not demonstrate that the

investigating officers who arrested or had custody of appellant for either false report regarding a

missing child or for abandoning a child failed to take appellant before a magistrate “not later than

48 hours after [appellant was] arrested,” see id. art. 14.06(a), for either of those “accusation[s]

against [her],” see id. art. 15.17(a).

Furthermore, the record demonstrates that appellant was arrested at the

Williamson County Jail by Austin police officers for tampering with physical evidence at

approximately 6:40 the evening of September 12th, was transported to Austin, and booked into

the Travis County Jail at approximately 8:30 the night of September 12th. She appeared before

the magistrate for the charge of tampering with physical evidence at 3:26 the morning of

September 14th—approximately thirty-three hours after her arrest for that offense at the

Williamson County Jail and thirty-one hours after being booked into the Travis County Jail for

that offense. Thus, the record does not demonstrate that the investigating officers who arrested

27 or had custody of appellant for tampering with physical evidence failed to take appellant before a

magistrate “not later than 48 hours after [appellant was] arrested,” see id. arts. 14.06(a), 15.17(a),

for that “accusation against [her],” see id. art. 15.17(a).

The record does not establish that appellant was arrested for or in custody for any

offense more than forty-eight hours before being taken before a magistrate for that offense or

before being released from custody for that offense, which eliminated the need to be brought

before a magistrate since the “accusation against [her]” ceased to exist. Consequently, the trial

court’s fact finding that “[t]he evidence demonstrates Work was not taken before a magistrate

within 48 hours” is not supported by the record.

Concerning the trial court’s fact finding that the issuance of search warrants in the

early morning hours of September 11th demonstrated the availability of a magistrate, the record

supports the finding that, at the time the search warrant was signed, a magistrate was available.

However, the availability of a magistrate does not necessarily render a delay in taking an arrestee

before a magistrate “unnecessary.” See, e.g., Jenkins v. State, 912 S.W.2d 793, 807 (Tex. Crim.

App. 1993) (holding that sixteen-hour delay was not unnecessary delay in taking defendant

before magistrate even though magistrate was available during that sixteen-hour period).

Magistrate availability is but one factor to consider. See Gilbert, 284 S.W.2d at 907; Shea,

2005 WL 1744936, at *1; Niehouse, 761 S.W.2d at 494.

Regarding the trial court’s fact finding that the process of seeking and obtaining

the search warrants demonstrated that the delay in taking appellant before a magistrate was not

“occasioned by reasonable investigative . . . procedures nor was it due to the search for the

missing child,” the trial court appears to conflate the issue of magistrate availability with

conducting an investigation. The record reflects that the search warrants were obtained after

28 appellant had told police that she had left C.T. alone in her truck, that C.T. had been taken from

her truck, and that she did not report his kidnapping. Testimony from the officers at the

suppression hearing—and the trial court made no findings that such testimony was not

credible17—showed that police believed the truck to be a possible crime scene that might yield

information helpful to locating C.T. Further, the testimony reflected that the search warrants

were obtained in a coordinated police effort to find potential information about C.T.’s

whereabouts. The trial court seems to suggest that the ongoing investigative efforts to find C.T.

at the time the search warrants were issued were “unreasonable.” However, at the time that

CPPD obtained the search warrants, C.T. was still missing. “Investigation is not an unnecessary

delay.” Gonzalez v. State, — S.W.3d —, No. AP-77,066, 2020 WL 6482409, at *27 (Tex. Crim.

App. Nov. 4, 2020); see Moya, 426 S.W.3d at 263 (holding that continuing police investigation

does not constitute “unnecessary delay” under article 15.17).

The record demonstrates that at the time the search warrants were sought and

obtained, multiple police officers were exploring various sources of information, including

interviewing appellant, Turner, and the Cypress Lane residents; attempting to locate appellant’s

friends and family or anyone with possible information; and following up on the limited

information that appellant had provided. See, e.g., Gonzalez, 2020 WL 6482409, at *27

(concluding that delay in taking appellant to magistrate was not unnecessary “because

investigation was ongoing after appellant’s arrest” for capital murder; specifically, “in the

17 We acknowledge that the trial court is the sole trier of fact at a suppression hearing and thus free to make credibility assessments of the witnesses. See Ramirez-Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017); State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); see also Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (“The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.”). 29 interim between appellant’s arrest and appearance before magistrate, ‘police were searching his

house and truck, and [the detective] was interviewing appellant’s wife and talking to other

investigators’”). The officers tasked with seeking information, even by search warrant, were not

the same officers who had arrested or who had custody of appellant. The fact that different

officers obtained search warrants, which may have been part of an investigation of a crime that

appellant had perpetrated, as the trial court found, does not negate the fact that there was an

ongoing investigation into C.T.’s location and condition. Given the situation facing police at that

time, we cannot conclude that the record supports a finding that investigative efforts to find a

missing and possibly injured two-year-old child were “unreasonable.”

Nevertheless, assuming without deciding that a delay that does not exceed the

statutory limit of forty-eight hours can violate articles 14.06(a) and 15.17(a), and further

assuming that the delay involved in appellant’s appearance before a magistrate in this case was

unnecessary and unreasonable, as the trial court found and concluded, the Court of Criminal

Appeals has consistently held that the failure to bring an arrestee before a magistrate in a timely

manner does not invalidate a confession absent proof of a causal connection between the delay

and the confession. Jones v. State, 944 S.W.2d 642, 649 n.10 (Tex. Crim. App. 1996); Cantu

v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992); Self v. State, 709 S.W.2d 662, 666–67

(Tex. Crim. App. 1986); Waller v. State, 648 S.W.2d 308, 311 (Tex. Crim. App. 1983); Hester

v. State, 544 S.W.2d 129, 135 (Tex. Crim. App. 1976); Schultz v. State, 510 S.W.2d 940, 943

(Tex. Crim. App. 1974); Easley v. State, 448 S.W.2d 490, 492 (Tex. Crim. App. 1970); Hughes

v. State, 409 S.W.2d 416, 417 (Tex. Crim. App. 1966); Creswell v. State, 387 S.W.2d 887, 890

(Tex. Crim. App. 1965); Collins v. State, 352 S.W.2d 841, 844 (Tex. Crim. App. 1961);

Golemon v. State, 247 S.W.2d 119, 124 (Tex. Crim. App. 1952); Dimery v. State, 240 S.W.2d 293,

30 295 (Tex. Crim. App. 1951); see Rocha v. State, 16 S.W.3d 1, 29–30 (Tex. Crim. App. 2000)

(Holland, J., concurring) (recognizing that Court of Criminal Appeals “has consistently held that

violations of Art. 15.17 ‘[do] not automatically invalidate a confession’ because the statute

relates to the duties of the arresting officer and magistrate” (internal citation omitted)); Williams

v. State, 692 S.W.2d 671, 675–76 (Tex. Crim. App. 1984) (observing that “[i]t is well

established” that article 15.17 “relates to the duties of the arresting officer and the magistrate,

and failure to comply with the statute does not automatically invalidate a confession”).

Regarding a causal connection between the delay in taking appellant before a

magistrate and the statements that she made to various investigating officers, the trial

court found:

As previously found by the Court, “[l]aw enforcement’s purpose in holding Defendant in an incognito [the Court previously said “incognito” but intended to say “incommunicado”] status was to isolate her and make her available for repeated questioning to the benefit of their investigation.” In short, the delay was to facilitate interrogation; CPPD and APD did interrogate Work and she answered. Res ipsa loquitur (“the thing speaks for itself”). The evidence thus demonstrates a causal connection between the delay and Work’s statements.

The record does not support the trial court’s fact findings that the purpose of law enforcement

was to “isolate” appellant and keep her “incommunicado.”

While the initial CPPD patrol officer explained that the reason for moving

appellant from the Cypress Lane residence to the police station was to take her to “a more

controlled area” to further the investigation, nothing suggests that the police decision to move

from a residence at 10:00 at night to an interview room at the police station was intended to

isolate appellant or render her unable to communicate with others. At that point, the record

reflects, appellant was the primary source of information in police attempts to find a missing and

31 possibly injured young child. Admittedly, the record indicates, through comments that

investigators made to appellant, that they kept her in the soft-interview room to facilitate the

investigation—that is, so they could follow up with her about information gleaned during the

course of their investigation. However, it would be expected that, as the principal source of

information, appellant would be kept available during such a crucial time in the investigation.

The testimony at the suppression hearing established that “when it comes to a missing child

investigation,” “time is of the essence” and it is important to have “resources available” to be

utilized in recovery efforts. The record does not reflect that police actions making appellant—a

critical source of information—available to assist with investigative efforts to recover C.T. were

done with improper intent, as the trial court’s findings suggest.

Further, the record does not reflect that appellant was held “incommunicado”—

that is, that she was not able or not allowed to communicate with others. See, e.g., Merriam-

Webster Online Dictionary, https://www.merriam-webster.com/dictionary/incommunicado

(defining “incommunicado” as “in a situation or state not allowing communication”);

https://www.dictionary.com/browse/incommunicado (defining “incommunicado” as “deprived of

any communication with others”). In fact, the record demonstrates that appellant had her cell

phone with her in the soft-interview room.18 In addition, the record shows that not only did

appellant have access to her phone, she also spoke with CPS workers, medical personnel at both

jails, and hospital personnel. Further, the record does not reflect that appellant, at any point,

18 At the beginning of the interview with Detective Dailey, appellant explained to him that the officer who escorted her to the soft-interview room plugged her cell phone in “just in case it would work so that [she] could call anybody if [she] needed to.” The detective reviewed the contact log in appellant’s phone and, at one point, discussed making a recorded call to appellant’s friend in Sachse, who was giving information to police that appellant disputed. Appellant’s cell phone remained with appellant during the time she was in the soft-interview room. 32 asked to contact “outside” people but was denied the request. Nor does the record indicate that

friends or family tried, at any time, to see appellant or speak with her but were prevented from

doing so. While the evidence showed that appellant’s communication was limited—as expected

of a person in custody—it does not show that she was wholly deprived of communication

with others.

Ultimately, the trial court found a causal connection based on a series of facts—

that there was a delay in taking appellant before a magistrate, that “the delay was to facilitate

interrogation,” that interrogation occurred, and that appellant made statements during the

interrogation—and the torts negligence doctrine of res ipsa loquitur. See Res Ipsa Loquitur,

Black’s Law Dictionary (11th ed. 2019) (defining “res ipsa loquitur” as “[t]he doctrine providing

that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of

negligence that establishes a prima facie case”). This legal doctrine has no applicability here.

As we noted above, the Court of Criminal Appeals has specifically (and repeatedly) required

proof that the delay in the failure to take an arrestee before a magistrate caused the statements to

be made. Jones, 944 S.W.2d at 649 n.10; Cantu, 842 S.W.2d at 680; Self, 709 S.W.2d at 666–

67; Waller, 648 S.W.2d at 311; Hester, 544 S.W.2d at 135; Schultz, 510 S.W.2d at 943; Easley,

448 S.W.2d at 492; Hughes, 409 S.W.2d at 417; Creswell, 387 S.W.2d at 890; Collins,

352 S.W.2d at 844; Golemon, 247 S.W.2d at 124; Dimery, 240 S.W.2d at 295. Moreover,

the defendant bears the burden of establishing that causal connection. Serrano v. State,

No. 03-14-00516-CR, 2015 WL 6835463, at *3 (Tex. App.—Austin Nov. 6, 2015, no pet.)

(mem. op., not designated for publication); Moya, 426 S.W.3d at 262–64; Weaver v. State,

265 S.W.3d 523, 536 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d); Fletcher v. State,

960 S.W.2d 694, 701 (Tex. App.—Tyler 1997, no pet.); State v. Vogel, 852 S.W.2d 567, 570

33 (Tex. App.—Dallas 1992, pet. ref’d); see Cantu, 842 S.W.2d at 679; Wagner v. State,

687 S.W.2d 303, 307 (Tex. Crim. App. 1984).

The record here contains no evidence of a causal connection between the delay in

bringing appellant before a magistrate and any of her statements to the various investigating

officers. During the hearing on appellant’s second amended motion to suppress, appellant

acknowledged that her burden was “to show that [she] would have acted differently had she been

magistrated [sic].” She then contended that a single reference to seeing a magistrate, together

with two discussions about having an attorney, met that burden.19 However, to suggest that

asking about seeing a magistrate in that context—that is, seeking information about the potential

upcoming process—is pure speculation. Appellant’s question did not constitute evidence that

appellant would not have talked to law-enforcement investigators if she had been given the

opportunity to meet with a magistrate before (or during) the interviews. Appellant did not testify

at the suppression hearing, and nothing in the video recordings of the various interviews or

the testimony presented during the original suppression hearing established that appellant

would have “acted differently had she been magistrated [sic].” See, e.g., Shadrick v. State,

491 S.W.2d 681, 683–84 (Tex. Crim. App. 1973) (“The record is entirely silent of any evidence

that [the] failure to take him before a magistrate caused appellant to confess.”); Dimery,

240 S.W.2d at 295 (“In the instant case there is an absence of any testimony suggesting a causal

19 The record reflects one brief mention of seeing a magistrate when Agent Gutierrez prepared appellant for the polygraph. Appellant asked him if, “after all of this,” she was under arrest because “[the detective] said something earlier about child abandonment or something.” At that point, the agent apologized to appellant for mistakenly telling her earlier in their interview that she was not under arrest. In the ensuing discussion, appellant asked if she would “just have to sit in jail until it’s all resolved” and if she could “see a magistrate some way.” Agent Gutierrez explained his role in the investigation, that of a fact finder, and said that he could not explain the process of the decision makers, which would depend on her cooperation and “how it would play out.” 34 connection between the arrest and failure to take appellant before a magistrate and the making of

the confession.”). Thus, appellant failed to sustain her burden of presenting evidence to

demonstrate a causal link between the delay at issue and her statements to the investigators. See

Cantu, 842 S.W.2d at 680 (holding that defendant failed to show causal connection between

failure to take him before magistrate and statements he gave to police); Boyd v. State,

811 S.W.2d 105, 124–25 (Tex. Crim. App. 1991) (concluding that appellant failed to

demonstrate any causal connection between his statement and failure of authorities to take him

before magistrate); Shadrick, 491 S.W.2d at 683–84 (concluding that no causal connection was

shown in absence of evidence that failure to take appellant before magistrate caused him to

confess, even with delay of ten or eleven days). The trial court abused its discretion in

concluding otherwise.

Moreover, an unreasonable delay in presenting an arrestee before a magistrate

will not vitiate an otherwise voluntary statement if the arrestee was properly advised of his (or

her) Miranda rights.20 Cantu, 842 S.W.2d at 680; Boyd, 811 S.W.2d at 125; see Jones,

944 S.W.2d at 650 n.10; Von Byrd v. State, 569 S.W.2d 883, 893 (Tex. Crim. App. 1978). In

this case, appellant was given Miranda warnings and advised of her rights on five separate

occasions and, each time, indicated that she understood her rights:

20 We note that some decisions of the Court of Criminal Appeals indicate that the failure to timely take an arrestee before a magistrate does not invalidate a confession if the arrestee has been given proper warnings without stating the caveat that the confession is “otherwise voluntary.” See Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); Self v. State, 709 S.W.2d 662, 667 (Tex. Crim. App. 1986); Von Byrd v. State, 569 S.W.2d 883, 893 (Tex. Crim. App. 1978); Easley v. State, 454 S.W.2d 758, 760–61 (Tex. Crim. App. 1970). We cite to cases indicating that the delay in bringing an arrestee before a magistrate will not invalidate an “otherwise voluntary” statement because appellant asserts in her first point of error that her statements to the investigating officers were involuntary and challenges the trial court’s fact findings and legal conclusions to the contrary. 35 • She was first read Miranda warnings and advised of her rights by Detective Dailey when he initially met with her in the soft-interview room at the Cedar Park police station before he began interviewing her. Appellant communicated that she understood her rights, by nodding her head or orally indicating such, and agreed to talk with the detective.

• Appellant was next given Miranda warnings when she was again advised of her rights by Detective Dailey when Lieutenant Thomas joined the interview approximately five hours later. Appellant orally confirmed that she understood her rights and expressed that she wanted to talk with the detectives.

• Appellant was given Miranda warnings the third time by Agent Gutierrez when she met with him in the suspect-interrogation room. She conveyed her understanding of her rights by signing the Miranda form. She then agreed to talk with the agent.

• She was given Miranda warnings the fourth time by Detective Nelson when he met with appellant at the Williamson County Jail. She orally affirmed that she understood her rights and agreed to talk with the detectives.

• Finally, appellant was given Miranda warnings again by Detective Nelson when he interviewed her at the Austin police station. She again orally communicated that she understood her rights and agreed to talk with the detectives.

Given that the record contains evidence that appellant was properly admonished of her Miranda

rights prior to giving her statements, the issue then is whether appellant’s statements were

“otherwise voluntary.”

Voluntariness of Statements

The Fifth Amendment privilege against self-incrimination prohibits the

government from compelling a criminal suspect to bear witness against himself. Pecina v. State,

361 S.W.3d 68, 74–75 (Tex. Crim. App. 2012); see U.S. Const. amend. V (stating that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself”). “The Fifth

Amendment right against self-incrimination is satisfied only when a defendant’s statements are

given voluntarily.” Vasquez v. State, 411 S.W.3d 918, 919 (Tex. Crim. App. 2013); see Tex.

Code Crim. Proc. art. 38.21 (providing that statements “freely and voluntarily made without

36 compulsion or persuasion” are admissible). A defendant may claim that her statement was

involuntary and thus inadmissible under three different theories: (1) that it was made in violation

of the Due Process Clause; (2) that it does not comply with the dictates of Miranda, as expanded

in Article 38.22, sections 2 and 3; and (3) that it was involuntary under Article 38.22, section 6

of the Code of Criminal Procedure—also known as “general involuntariness.” Oursbourn,

259 S.W.3d 159, 169 (Tex. Crim. App. 2008); Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim.

App. 1996).

A statement is obtained in violation of constitutional due process—and therefore

“involuntary”—only if the statement is causally related to objectively coercive government

misconduct of such a nature that any statement made was unlikely to have been the product of an

essentially free and unconstrained choice. Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim.

App. 2010); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); see Colorado

v. Connelly, 479 U.S. 157, 163–64 (1986); Oursbourn, 259 S.W.3d at 169–71; see also Lopez

v. State, — S.W.3d —, No. PD-0956-19, 2020 WL 6479197, at *6 (Tex. Crim. App. Nov. 4, 2020)

(explaining that to prevail on due-process “involuntary confession” claim, “a defendant must

show (1) that police engaged in activity that was objectively coercive, (2) that the statement is

causally related to the coercive government misconduct, and (3) that the coercion overbore the

defendant’s will”); Contreras, 312 S.W.3d at 574 (explaining that coercive government

misconduct renders statement involuntary if defendant’s “will has been overborne and

his capacity for self-determination critically impaired” (quoting Schneckloth v. Bustamonte,

412 U.S. 218, 225 (1973))).

37 Regarding the dictates of Miranda and article 38.22, the Court of Criminal

Appeals has held that “[t]here are two facets to any inquiry” regarding the adequacy of a waiver

of an accused’s Miranda rights:

First, the waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Second the waiver must be made “with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.”

Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011) (quoting Ripkowski v. State,

61 S.W.3d 378, 384 (Tex. Crim. App. 2001)). For a waiver of a Miranda right to be involuntary

“there must be some element of official intimidation, coercion, or deception.” Id. (citing

Connelly, 479 U.S. at 169–70; Oursbourn, 259 S.W.3d at 170). However, a claim that a waiver

of the article 38.22 statutory rights is involuntary “need not be predicated on police

overreaching.” Leza, 351 S.W.3d at 352 (quoting Oursbourn, 259 S.W.3d at 172). Such a claim

of involuntariness can involve police overreaching but can also involve inquiries into the

accused’s state of mind that are not relevant to due process claims. Oursbourn, 259 S.W.3d at

172; see Leza, 351 S.W.3d at 352 (“Circumstances unattributable to the police that nevertheless

adversely impact an accused’s ability to resist reasonable police entreaties to waive his statutory

rights . . . are ‘factors’ in the voluntariness inquiry, though they ‘are usually not enough, by

themselves, to render a statement inadmissible under Article 38.22.’” (quoting Oursbourn,

259 S.W.3d at 173)).

Likewise, claims of “general involuntariness” “can be, but need not be, predicated

on police overreaching.” Lopez, 2020 WL 6479197, at *7 (quoting Oursbourn, 259 S.W.3d at

172). Such claims can involve “‘sweeping inquiries into the state of mind of a criminal

defendant who has confessed’ . . . that are not of themselves relevant to due process claims.” Id. 38 (quoting Oursbourn, 259 S.W.3d at 172). “This is because Section 6 [of article 38.22] protects

suspects from themselves” rather than from law-enforcement officials. Id.; see Oursbourn,

259 S.W.3d at 172 (“But Section 6 of that article may also be construed as protecting people

from themselves because the focus is upon whether the defendant voluntarily made the

statement. Period.”).

The determination as to whether a statement was voluntarily made must be

analyzed by examining the totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279,

285–86 (1991); Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007); see Lopez,

2020 WL 6479197, at *6 (observing that “involuntariness” of statement “is reviewed under the

Due Process Clause and articles 38.21 and 38.22 by examining the totality of the circumstances

surrounding the [statement]”); Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010)

(explaining that evaluation of whether appellant knowingly, intelligently, and voluntarily waived

Miranda rights before giving statement utilizes “[t]he ‘totality-of-the-circumstances approach’

[that] requires the consideration of ‘all the circumstances surrounding the interrogation,’

including the defendant’s experience, background, and conduct” (quoting Fare v. Michael C.,

442 U.S. 707, 725 (1979))).

Relevant factors to consider when determining whether a statement is voluntary

include, but are not limited to: whether the defendant was advised of his constitutional rights

(given Miranda warnings or statutory warnings); the defendant’s age, intelligence level, and

education; the conditions under which the defendant was questioned—i.e., length of detention,

duration of questioning, environment, and access to restroom facilities and food; physical or

mental impairment of the defendant, such as intoxication, illness, the influence of medication or

drugs, and mental impairment or other disabilities; and whether physical punishment for

39 the failure to provide a statement, such as the deprivation of food or sleep, was used. Watts

v. State, No. 03-12-00480-CR, 2013 WL 4516187, at *2 (Tex. App.—Austin Aug. 20, 2013,

no pet.) (mem. op., not designated for publication); see Schneckloth, 412 U.S. at 226; Lopez,

2020 WL 6479197, at *7; Oursbourn, 259 S.W.3d at 172–73.

Concerning the voluntariness of appellant’s statements, the trial court made the

following fact findings, which the court stated were “indicative of the lack of a free, knowing

and voluntary relinquishment of her Miranda rights”:

Work was young (20 years of age), homeless[,] and pregnant. She was about four months into a high[-]risk pregnancy for which she was under a physician’s care. She was intermittently ill during the questioning. The police became aware of her pregnancy and complications but did not provide medical attention for the pregnancy complications for several days. She was not afforded access to her medication. . . .

Work was held incommunicado for a significant period of time.

The room in which she was confined for the first 26 hours had no provisions for sleeping, no restroom and no ability to turn out the lights.

She was under constant armed surveillance.

She was awakened in the middle of the night for questioning.

During the first 26 hours of questioning, she was provided with no food other than one taco (hardly appropriate for a person suffering from pregnancy complications).

The offense for which she was under arrest and held was a misdemeanor punishable by a fine only.

The police told her she was not under arrest.

The police falsely informed her they were authorized to take a buccal swab.

Work was questioned by multiple officers over the span of three days.

On several occasions, Work inquired about an attorney or about seeing a judge. When she first asked about an attorney, the officer informed her that obtaining an attorney was her responsibility, a false statement which ignored the fact that an 40 attorney would be appointed for her due to her obvious indigency. A subsequent inquiry by Work was met with the response “Let’s put that aside for now.”

The trial court made additional fact findings, which the court stated “tend[ed] to

support a finding that the statements made by [appellant] were voluntary”:

During the initial consensual encounter at her temporary residence, Work answered questions asked by the police without hesitation.

Work was advised of her Miranda rights five times during four days of questioning by three different law enforcement agencies. After each warning she again answered questions without hesitation.

Work’s inquiries regarding the assistance of counsel and being taken before a magistrate were not unequivocal assertions of her right to counsel or her right to remain silent.

There is no evidence of threats or inducements. There is no evidence that she was under the influence of alcohol or drugs during questioning. There is no evidence that she lacked mental capacity or suffered from any mental illness.

The evidence strongly suggests that Work voluntarily answered questions in furtherance of her attempts to perpetrate her false narrative concerning her son’s disappearance.

Relying on the trial court’s fact findings indicative of involuntariness but

challenging the court’s fact findings supporting voluntariness, appellant contends that law

enforcement “failed to adequately address [her] personal and medical needs” during the

interviews; “continually lied and misinformed [her]” during the interviews, which resulted in her

“confusion and lack of comprehension regarding her legal rights”; and delayed taking her to a

magistrate “for almost 75 hours” after arresting her without a warrant for a Class C misdemeanor

and, during that time, she was “unable to make outside contact and [was] continually kept under

guard.” These factors, she claims, rendered her statements involuntary.

41 A review of the record demonstrates that some, but not all, of the trial court’s fact

findings that the court characterized as indicative of involuntariness are supported by the record.

Moreover, in some instances those findings supported by the record do not accurately present the

record. The fact findings that the court characterized as indicative of voluntariness are, for the

most part, supported by the record, although, again, some of those findings with record support

do not accurately present the record.21

While the record reflects that appellant was twenty years old, the record does not

reflect that appellant was immature or inexperienced. The record reflects that she was educated

through the eleventh grade and then obtained her G.E.D. She participated throughout the

interviews, answering questions appropriately and occasionally asking questions of her own.

Her answers followed logically from the flow of the interviews. She was articulate and was able

21 Generally, reviewing courts “should apply a deferential review to a trial court’s determination of historical facts, even when the evidence on which that determination is based includes an electronic recording.” Baiza v. State, 502 S.W.3d 801, 802 (Tex. Crim. App. 2016). However, although reviewing courts “must defer to the trial judge’s factual finding on whether a witness actually saw what was depicted on a videotape or heard what was said during a recorded conversation,” appellate courts “may review de novo ‘indisputable visual evidence’ contained in a videotape.” State v. Duran, 396 S.W.3d 563, 570–71 (Tex. Crim. App. 2013) (internal citation omitted); see Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (observing that “the nature of the evidence presented in the videotape does not pivot ‘on an evaluation of credibility and demeanor’”). As Judge Price once explained:

The main reason [reviewing courts] defer to a trial judge’s findings is that [the judge] is in a better position to determine credibility . . . by seeing and hearing a witness testify. We often say that because we have only a cold record, reviewing courts do not have the best vantage point from which to make factual determinations.

Hall v. State, 160 S.W.3d 24, 40 (Tex. Crim. App. 2004) (Price, J., concurring). Here, we are not reviewing the trial court’s fact findings based on a review of simply a “cold record.” Rather, we are watching the same video recordings of the various interviews that the trial judge watched. The trial judge was not in an appreciably better position to review the evidence of the police conduct or appellant’s behavior. See Carmouche, 10 S.W.3d 331–32 (recognizing that electronic recording may speak for itself). 42 to easily and effectively communicate with the investigators. In fact, throughout the interviews,

appellant demonstrated a high level of sophistication. Nothing in the record indicates that

appellant’s age rendered, or contributed to rendering, her statements involuntary.

Although the record establishes that appellant was four months pregnant with a

high-risk pregnancy at the time of her interviews, the basis for that status is unclear, though the

record reflects that appellant was “borderline diabetic” and that she had been diagnosed with

GERD (heartburn) and hyperemesis gravidarum (“a lot” of nausea and vomiting during

pregnancy). However, while the record shows that she suffered with nausea “during

questioning,” she did not actually vomit in the presence of any of the investigators, or any other

officers, or while being questioned by any of them. The record does not reflect that her

pregnancy symptoms adversely impacted her ability to participate in the interviews. Moreover,

appellant was repeatedly asked how she was doing and how she was feeling, and, while she

described various pregnancy symptoms, she repeatedly told law enforcement that she was

“okay.” She did, at one point, indicate that she was cramping, but when Agent Gutierrez sought

to clarify her condition, she explained that she “cramped all the time.” Furthermore, when he

explicitly asked if she needed medical assistance, she declined, saying that she was “okay.”

Appellant did not at any time request medical attention or ask to discontinue questioning because

she was not feeling well.

Further, the record does not reflect, as the trial court’s findings suggest and

appellant seems to contend, that appellant was deprived of medical attention for “pregnancy

complications for several days.” After repeatedly asserting that she was “okay” throughout the

interviews and declining the offer of medical attention, appellant was taken to see medical

personnel shortly after being booked into the Williamson County Jail. At that time, she reported

43 that she was not “currently experiencing pain,” and the evaluation established that she was

demonstrating “no acute distress.” She remained in the infirmary throughout her stay in that jail.

Although she was not given medication for nausea while at the Williamson County Jail, the

record does not show that appellant “was not afforded access to her medication.” Rather, the

record shows that promethazine, the medication prescribed to appellant for nausea and vomiting,

is “an as-needed medication” that would have been given “only if she had asked.” Also, while

no blood-sugar checks were done because “she had no complaints as far as any blood sugar

related issues,” appellant was given insulin to take with her when she left the jail. In addition, on

being booked into the Travis County Jail, appellant was taken to the jail nurse who, after

consulting with the on-call physician, recommended that appellant be taken to the hospital.

Appellant was immediately transported to the hospital where she received treatment (fluids) to

address her dehydration and ketoacidosis (the high ketone levels that resulted from dehydration)

and was given medicine for nausea and vomiting.

Contrary to appellant’s contention and the trial court’s suggestion, nothing in the

record shows that appellant was, at any time, deprived of needed medical attention. She did not

request medical assistance during the interviews and, on one occasion, declined medical

assistance when it was offered. She was housed in the infirmary at the Williamson County Jail;

the record does not indicate that she made any medical complaints—related to her pregnancy or

diabetes or otherwise—that were not addressed. Further, appellant received medical attention at

the Travis County Jail, which included transportation to the hospital for treatment when her

condition warranted such care.

Moreover, appellant’s medical expert (a VA nurse who reviewed appellant’s

medical records) testified at the suppression hearing that, while mental acuity can be affected by

44 dehydration, those issues, such as “confusion,” occur if a person’s mean arterial blood pressure

(MAP) is below 60, and appellant did not exhibit those levels. The nurse opined that

hyperemesis gravidarum can be “a serious issue” and even life threatening “when you’re

vomiting all the time,” but the record does not demonstrate that appellant’s condition reached

that level of severity. The nurse’s testimony indicated that continuous vomiting would result in

someone being “not coherent” and “not carrying on an intelligent conversion.” While appellant

suffered nausea and several bouts of vomiting, the record demonstrates that she remained

coherent throughout her interactions with law enforcement. Furthermore, while her difficulty

eating and drinking resulted in dehydration and ketoacidosis, the nurse confirmed that someone

experiencing ketoacidosis “can still carry on a conversation” and “can make a conscious

decision,” and that that condition would not prevent someone from understanding the situation or

what was happening. The record does not support appellant’s contention that her medical issues,

even at the point that they required medical attention (which was then provided), rendered her

statements involuntary.

We have already determined that the trial court’s fact finding that appellant was

held “incommunicado” is not supported by the record, and we do not repeat that discussion here

except to note that while appellant was alone “for a significant period of time” when officers left

the interview rooms, they did so in order to follow up on information that she provided in their

efforts to find C.T. As for appellant’s contention that she was “unable” to “make a call of her

own,” we again note that the record reflects that appellant’s cell phone was in the soft-interview

room with her. Also, her contention that she was “unable to make outside contact” is refuted by

the evidence demonstrating that she had contact with CPS workers, medical personnel at both

jails, and hospital personnel as well as by the lack of evidence showing that she was, at any time,

45 denied a request to contact friends or family or that such individuals were prevented from seeing

or speaking with appellant.

While the trial court’s fact finding that the soft-interview room “had no provisions

for sleeping” is supported by the record to the extent that the room did not have a bed, the record

reflects that the room had a loveseat and that appellant slept on it on several occasions. Also,

while the room did not have a restroom, appellant was repeatedly asked if she needed to use the

restroom and was taken when she responded affirmatively as well as any time that she asked to

go to the restroom. Furthermore, while the lights remained on in the soft-interview room while

appellant was in it, no evidence in the record demonstrated that there was “no ability to turn out

the lights.”

The trial court’s fact finding that appellant “was awakened in the middle of the

night for questioning” is supported by the record, but we note that on the occasion that she was

awakened during the first night that she was in custody, officers sought to question appellant

further about information obtained during their follow-up efforts in attempting to locate C.T.

The record does not reflect that waking up appellant was based on any intent to deprive her of

sleep. Notwithstanding the perhaps less-than-ideal sleeping accommodations, and given the

situation and circumstances, nothing in the record demonstrates that appellant was deprived of

sleep. In fact, upon being asked, appellant reported several times to officers that she had slept.

Regarding the trial court’s fact finding that appellant “was under constant armed

surveillance” and appellant’s contention that she was “continually kept under guard,” we simply

note, as we concluded in our pretrial opinion, that appellant was in custody. She was being

monitored while in the soft-interview room but did not have an armed officer present in the room

with her at all times. She was in the presence of armed officers only when those officers were

46 investigators interviewing her or when officers were transporting her. Further, appellant was, on

repeated occasions, left alone in both interview rooms. Also, nothing in the record suggests that

appellant was under “armed surveillance” during the times that she was housed at either the

Williamson County Jail or the Travis County Jail. The record demonstrates that appellant was

under suicide watch at both jails, due to the nature of the charges and the publicity involved, but

such monitoring was done outside the cell. The trial court and appellant seem to equate, or at

least conflate, simply being in custody with being under armed guard.

The record does not support the trial court’s fact finding that during the first

twenty-six hours of questioning, appellant “was provided with no food other than one taco.”

Though the record reflects that appellant was provided a breakfast taco, which she did not eat,

the record shows that, also during that time frame, she was provided pizza, of which she only ate

a few bites, and an energy bar. More importantly, the record demonstrates that appellant was

asked numerous times throughout that period of questioning if she was hungry and if she wanted

something to eat, and she repeatedly declined the offers of food. The record does not reflect that

appellant was deprived of nourishment as the trial court’s fact finding (and comment) suggests.

Furthermore, the record refutes appellant’s similar contention that during the three

days that she was interrogated, she was “provided with very little food” consisting of only the

taco, pizza, and energy bar. In addition to the repeated offers of food and the food provided that

we described above, the record reflects that a “pregnancy diet” was ordered for appellant in the

Williamson County Jail, and nothing shows that she was not provided meals consistent with that

order during her stay in that jail.22 In fact, the record reflects that she was given lunch on

22 The medical sergeant from the Williamson County Jail testified about the times that meals were provided in the jail and explained that if an inmate missed a meal because he was not 47 September 12th along with a prenatal vitamin. Nor does the record indicate that appellant was

denied meals while in the Travis County Jail on September 13th. Appellant’s medical expert

opined that appellant was “eating correctly” while at that jail. Additionally, the record shows

that at the beginning of her interview with APD detectives that afternoon, Detective Nelson

provided appellant a snack (pretzels and a drink). She was also provided an additional snack

(more pretzels) at the end of that interview before she was returned to the jail. Overall, nothing

in the record shows that appellant was deprived of nourishment.

The trial court’s fact finding that “[t]he offense for which she was under arrest

and held was a misdemeanor punishable by a fine only” is supported by the record but is only

accurate in part. As discussed previously, while appellant was arrested for the Class C

misdemeanor offense of false report regarding a missing child, the record reflects that she was

“held” for that offense (or for that offense alone) for less than twenty-four hours. She was then

“held” on the felony child-abandonment offense and then “held” on the felony tampering-with-

physical-evidence offense. As also discussed previously, the record refutes any statutory

violation based on appellant’s contention that she was “held in custody for almost 75 hours

without being taken to a magistrate after being arrested without a warrant for a class C

misdemeanor” as the record demonstrates that appellant was not held for more than forty-eight

hours after being arrested for any offense.

The trial court’s fact finding that the “police told [appellant] she was not under

arrest” is true with respect to Detective Dailey’s initial comment, which was immediately

followed by his statement informing her that she was not free to leave, and Agent Gutierrez’s

in his cell, the meal would be held or, in the alternative, the inmate would be provided a sack lunch with a sandwich and a fruit. 48 initial mistaken comment to appellant, which he later corrected with an apology explaining that

he was unaware of all the circumstances. However, the record demonstrates that Detective

Dailey informed appellant on the morning of September 11th that she was going to be charged

with child-abandonment. In addition, when Lieutenant Thomas formally arrested appellant for

abandoning or endangering a child that night, he told her that she was under arrest for that

offense. Likewise, when APD officers picked appellant up from the Williamson County Jail to

transport her to Austin, they arrested her for tampering with physical evidence and told her that

she was under arrest for that offense. Further, contrary to appellant’s assertion, the record does

not show that appellant asked “repeatedly” whether she was under arrest. Rather, the record

reflects that she asked that question one time of Agent Gutierrez. The FBI agent, who was not

present when Detective Dailey told appellant that she was not free to leave or when he told her

that she would be charged with child-abandonment, explained the various law-enforcement roles

and that the arrest decision would be made by others and, thus, told appellant that he did not

know. Given the evolving nature of the investigation, the involvement of multiple law-

enforcement agencies, and the various offenses and arrests, the record does not support

appellant’s contention that law enforcement “lied” to her, “misinformed” her, or “withheld”

information from her about her custody status.

The record demonstrates that CPPD obtained a DNA sample from appellant by

buccal swab when she was in the soft-interview room. The trial court found that “[t]he police

falsely informed her they were authorized to take a buccal swab.” However, the record

demonstrates that during his interview with appellant, Agent Gutierrez told appellant, “One of

the things that we need to do here is . . . they have to take a swab of your mouth for DNA,” and

appellant responded, “Okay.” A few minutes later, Lieutenant Thomas entered the room and

49 asked the FBI agent if he had “asked her about the swab,” and Agent Gutierrez said, “Yeah.”

Lieutenant Thomas then thanked appellant and told her they “appreciate[d] it.” When appellant

asked “[w]hat’s it for exactly,” the detective explained that “[i]t’s evidence gathering, just

standard procedure, for the most part” and again expressed his appreciation to her. Appellant

then asked the uniformed officer taking the swab if “this is something that everybody does.” The

officer told appellant that “[i]t’s just part of the procedure that we do for evidence purposes.”

The record suggests that the officers perhaps miscommunicated about obtaining appellant’s

consent to take the DNA sample and reflects that law-enforcement officers conveyed to appellant

that obtaining her DNA sample was a standard part of evidence gathering. It does not, however,

show that anyone “falsely informed her they were authorized to take a buccal swab.”

The trial court’s fact finding that “Work was questioned by multiple officers over

the span of three days” is supported by the record. However, the record demonstrates that the

questioning was not continuous and included multiple breaks, some spanning hours, when she

was left alone in the soft-interview room and the suspect-interrogation room as well as the

periods during which she was at the jails. Furthermore, we note that the record reflects that the

search for missing C.T. was a massive law-enforcement effort involving numerous officers and

multiple law-enforcement agencies, including local police, local sheriff’s deputies, the FBI, and

the state police. As the information evolved, additional officers became involved in the

investigation and, consequently, the questioning.

Finally, the record supports only part of the trial court’s fact findings—and

appellant’s contentions—as to appellant asking about getting an attorney or seeing a judge. The

first mention of an attorney happened about forty-five minutes into the initial interview with

Detective Dailey. The detective explained to appellant that they were doing what they could to

50 try to find C.T. and asked her if she had any questions for him. She said, “No,” but then asked

him, “If I ask for a lawyer . . . would he come here tonight and sit here with us . . . how does that

work?” Detective Dailey asked her if she wanted a lawyer, and she said that she did not know.

She complained that she did not know what was going on, and the detective explained that they

were trying to find C.T. He then told her, “[I]f you want to talk to an attorney, that’s something

that you’re going to have to initiate and find an attorney to call, but if that’s what you want to do,

you need to let me know.” Appellant then asked, “Well, didn’t you say something like I could

get a court appointed one?” The detective confirmed, saying, “Right.” Appellant then asked,

“And I can do that tonight or I would have to go to jail and wait?” At that point, the detective’s

phone rang, and he left the room. When he returned, Detective Dailey explicitly asked appellant

if she was asking for an attorney. She responded that she did not know. The trial court found

that the detective falsely informed appellant that obtaining an attorney was her responsibility.

However, the substance of appellant’s questioning was if she could have a lawyer with her at that

moment (that is, that night), and the information given to her was correct. Taken in context, the

detective’s comments, while perhaps poorly phrased, indicated that an appointed attorney would

not be available to be with her in the interview room at that time but that she could contact an

attorney (retained) to be present. We cannot concluded that this information was “false.” More

importantly, the detective asked appellant several times if she wanted a lawyer or was asking for

one and correctly conveyed that if she wanted one, she needed to let him know. She did not.

The second time appellant mentioned a lawyer was during the interview with

Agent Gutierrez when he asked her if she would agree to a polygraph. Appellant gave a hesitant

and equivocal response, and Agent Gutierrez sought to clarify her response and asked her what

questions he could answer for her. She then expressed that she did not know if she “need[ed] to

51 try to talk to a lawyer or what.” In context, the comment indicated that appellant was unsure if

she needed to consult a lawyer before taking a polygraph. The agent responded, “Tell you what.

We can talk about this here in a little bit — this aspect” as he set aside the polygraph paperwork.

In his testimony at the suppression hearing, Agent Gutierrez explained that he understood

appellant’s comment to be “rhetorical” or an “equivocation,” and clarified that the matter he was

setting aside was the polygraph. The trial court did not make a finding that the agent was not

credible in this testimony. Furthermore, the video of that exchange does not support the trial

court’s finding that appellant made an “inquiry” about getting a lawyer or that the FBI agent

responded with a comment to set aside that inquiry.

The only reference to “seeing a judge” was when appellant sought information

from Agent Gutierrez about what would happen to her until the situation was “all resolved.” She

asked if she would “just have to sit in jail until it’s all resolved” and if she could “see a

magistrate some way.” She did not, as the trial court’s finding suggests, ask to see a judge and

have that request ignored or denied. Rather, appellant asked about the process—that is, what

would happen to her during the course of the investigation while law-enforcement officers

looked for her son—and Agent Gutierrez’s response conveyed that, given the evolving situation,

he did not know.

Further, the record does not support appellant’s contention that she was confused

or did not understand her legal rights. The portions of the record that appellant cites, including

those just discussed concerning getting an attorney and seeing a magistrate as well as a question

about possibly bonding out, do not demonstrate “confusion” or a “lack of comprehension.”

Rather, they reflect questions about the process and uncertainty about what would happen to her

given the situation. Appellant did not testify at the suppression hearing nor provide any other

52 evidence showing that she was confused by what law-enforcement officers told her or that she

did not understand her rights. In fact, the evidence showed her repeated confirmation, in

response to the numerous Miranda warnings given, that she understood her rights.

Concerning appellant’s challenge to the trial court’s fact findings that supported

the voluntariness of her statements, we note that the entirety of the record demonstrates that

appellant answered questions—throughout the questioning at the Cypress Lane residence, at the

Cedar Park police station, at the Williamson County Jail, at the Austin police station, and during

the various transports between locations—“without hesitation” as the trial court found. Further,

as we previously noted, the record demonstrates that appellant was given Miranda warnings on

five separate occasions and that, each time, she indicated that she understood her rights. As just

discussed, the record does not support appellant’s assertions to the contrary—that she was

confused about or did not comprehend her rights. Also, as our earlier discussion about the trial

court’s fact findings concerning appellant’s “inquiries” about an attorney or magistrate shows,

appellant made no unequivocal assertion of her right to counsel. Moreover, the record reflects

that appellant did not, at any time, invoke her right to remain silent. Nor did she, at any time,

seek to terminate the interview. Also, the record supports the trial court’s findings that no

evidence in the record demonstrates any threat or inducement by law enforcement, shows that

appellant was under the influence of alcohol or drugs during any of the questioning, or indicates

that appellant lacked mental capacity or suffered from any mental illness.

Ultimately, the trial court concluded: “Work was properly warned of her

Miranda rights on five occasions. Despite multiple factors to the contrary, after careful

consideration of the totality of the circumstances, the Court concludes Work’s statements were

voluntary.” Reviewing the record and considering the relevant factors, we agree with the trial

53 court’s conclusion that, based on the totality of the circumstances, appellant’s statements to the

various investigators were voluntarily made.

In sum, even if appellant—who was not arrested for and then held on any charge

for more than forty-eight hours before being released on the charge or being taken before a

magistrate—was not taken before a magistrate “without unnecessary delay” in violation of article

14.06, the record contains no evidence establishing a causal connection between the delay in

taking appellant before a magistrate and her statements to investigating officers. Moreover, the

record demonstrates that appellant was properly given her Miranda warnings on five separate

occasions prior to making statements to various investigators and reflects that appellant’s

statements were voluntarily made. Accordingly, we overrule appellant’s first and second points

of error.

Release on Bond

Appellant also contends that her statements should have been suppressed because

she was denied the opportunity to be released on a personal bond as required by article 17.033(a)

of the Code of Criminal Procedure, which provides that

a person who is arrested without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $5,000, not later than the 24th hour after the person’s arrest if the person was arrested for a misdemeanor and a magistrate has not determined whether probable cause exists to believe that the person committed the offense. If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.

Tex. Code Crim. Proc. art. 17.033(a).

Although the trial court commented during the hearing on appellant’s second

amended motion to suppress that the “ordinary course of procedure” in Travis County was for

54 the magistrate setting the bond on a Class C misdemeanor to release the arrested defendant “on

their own recognizance” after setting the bond, appellant made no assertions that the failure to

comply with article 17.033(a) required suppression of her statements—in either her second

amended motion to suppress or at the hearing on that motion. Further, the trial court made no

fact findings related to article 17.033(a) or appellant’s inability to obtain release under that

statute; nor did the trial court render any conclusions about the purported violation of the statute

or resolve the suppression issue on that basis.

Assuming without deciding that this complaint has been preserved for appellate

review, see Tex. R. App. P. 33.1(a), the record reflects, as we have already observed, that

appellant was released from custody on the Class C misdemeanor offense less than twenty-fours

after her arrest for that offense when she was not booked into the jail on that offense. Moreover,

the record demonstrates that less than nine hours after her arrest for the Class C offense,

appellant was also arrested for the felony child-abandonment offense when, at 8:38 the morning

of September 11th, Detective Dailey informed her that she would be charged with child

abandonment, and she was already not free to leave. Thus, within the twenty-four-hour period

initiated by her Class C arrest, appellant was in custody on a felony offense. Thus, article

17.033(a) was inapplicable to appellant’s situation. We overrule appellant’s third point of error.

Fourth Amendment Claim

Finally, citing to Gerstein v. Pugh, 420 U.S. 103, 117 (1975), appellant argues—

as she did in her second amended motion to suppress and at the hearing on that motion—that her

“prolonged detention” without being taken before a magistrate violated the Fourth Amendment

of the United States Constitution because she was denied the right to receive the protection of a

55 judicial probable-cause determination meant to be provided by a neutral magistrate. She

maintains that “[t]he point of Article 15.17 is the same as that of the Fourth Amendment to the

United States Constitution. To provide the protection of neutral magistrate.” Concerning this

purported Fourth Amendment violation, the trial court concluded that “the Texas rule that ‘delay

in bringing an arrestee before a magistrate will not invalidate an otherwise voluntary confession

if the arrestee was properly advised of his Miranda rights prior to making the statement’

comports with the requirements of the Fourth Amendment.”

“Under Gerstein, warrantless arrests are permitted but persons arrested without a

warrant must promptly be brought before a neutral magistrate for a judicial determination of

probable cause.” County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991) (citing Gerstein,

420 U.S. at 114); see Sorto v. State, 173 S.W.3d 469, 486 (Tex. Crim. App. 2005) (recognizing

“Fourth Amendment requirement that a person arrested without warrant be given a ‘prompt’

judicial determination of probable cause to permit further detention”). However, the purpose of

article 15.17 “is to comply with constitutional and statutory requirements that an accused person

be promptly and fully informed of the accusation against him, as well as his legal rights,

including his Miranda rights and his right to reasonable bail.” Sorto, 173 S.W.3d at 486; see

McGee v. Estelle, 625 F.2d 1206, 1209 (5th Cir. 1980). “Articles 14.06 and 15.17 concern only

the presentment of an accused before a magistrate in order to apprise the accused of his various

rights. . . . [N]owhere in these Code provisions is a requirement that a probable cause

[determination] be made promptly, or at all.” Cantu, 842 S.W.2d at 680 n.10.

Appellant’s argument conflates the duties of a magistrate under article 15.17 with

the judicial probable-cause determination by a magistrate required by the Fourth Amendment.

Given this distinction, we cannot conclude that the delay in taking appellant before a magistrate

56 violated appellant’s Fourth Amendment right to a probable-cause determination by a magistrate.

Nor can we conclude that the trial court abused its discretion by concluding that Texas law

regarding a delay in taking an arrestee before a magistrate—that such a delay will not vitiate an

otherwise voluntary statement if the arrestee was properly advised of his rights before making

the statement—“comports with the requirements of the Fourth Amendment.” We overrule

appellant’s fourth point of error.

CONCLUSION

For the foregoing reasons, we conclude that the trial court did not abuse its

discretion by denying appellant’s second amended motion to suppress. Accordingly, we affirm

the trial court’s judgments of conviction.

__________________________________________ Melissa Goodwin, Justice

Before Justices Goodwin, Triana, and Smith

Affirmed

Filed: December 31, 2020

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