Lola Padgett and Michael Dunn v. City of Madisonville, Texas

Lola Padgett and Michael Dunn v. City of Madisonville IN THE TENTH COURT OF APPEALS No. 10-02-199-CV      LOLA PADGETT      AND MICHAEL DUNN,                                                                               Appellants      v.      CITY OF MADISONVILLE, TEXAS,                                                                               Appellee From the 278th District Court Madison County, Texas Trial Court # 01-95910278-10                                                                                                                 MEMORANDUM OPINION                                                                                                                       Lola Padgett rented a home that became damaged when sewage from the city-owned sewer line back-flowed into the residence. Padgett and the property’s owner, Michael Dunn, sued the City of Madisonville for nuisance, nuisance-per-se, and inverse condemnation. The City filed a de facto plea to the jurisdiction based on governmental immunity, which the trial court granted.       Padgett and Dunn contend in two issues that the trial court erred in granting the City’s plea to the jurisdiction, or, in the alternative, prematurely granted the plea. We reverse in part, affirm in part, and remand to the trial court for further proceedings. Inverse Condemnation and Nuisance Claims       What actually caused the backup in the sewage line, whether the City knew of the problems, whether it intentionally or negligently failed to correct the cause of the backup, and whether the condition rose to the level of a nuisance or an unconstitutional taking are not known. Based on the current state of the law in this district, we hold that the trial court erred in granting the City’s plea to the jurisdiction regarding the inverse condemnation and nuisance claims. See Cozby v. City of Waco, 110 S.W.3d 32 (Tex. App.—Waco 2002, no pet.); Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826 (Tex. App.—Waco 1993, writ denied). We recognize that an inverse condemnation case on these issues, which could modify our analysis, is currently pending review by the Texas Supreme Court. See Sabine River Authority of Texas v. Hughes, 92 S.W.3d 640 (Tex. App.—Beaumont 2002, pet. granted). But on the precedent currently binding on this court, Padgett and Dunn’s first issue is sustained, in part. Nuisance-per-se       Padgett and Dunn also allege a nuisance-per-se cause of action against the City based on section 341.011 of the Health and Safety Code. That section provides that “[e]ach of the following is a public health nuisance: (5) sewage, human excreta, wastewater, garbage, or other organic wastes deposited, stored, discharged, or exposed in such a way as to be a potential instrument or medium in disease transmission to a person or between persons. . . .” Tex. Health & Safety Code Ann. § 341.011 (5) (Vernon 2001).       While we agree that the sewage was discharged in such a way as to violate the statute, we disagree that the City can be held liable for a nuisance per se based upon a violation of the statute alone. “The acts of the government are not nuisances per se.” City of Addison v. Dallas Indep. Sch. Dist., 632 S.W.2d 771, 773 (Tex. App.—Dallas 1982, writ ref’d n.r.e.). Further, the parties point out no language in the statute, nor did we find any, that indicates a “clear and unambiguous” waiver of immunity in the statute. See Gen. Servs. Commn. v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex. 2001). Padgett and Dunn alleged facts in their petition that affirmatively negate the existence of jurisdiction with regard to their nuisance-per-se claim against the City. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Cozby, 110 S.W.3d at 36. Thus, the trial court did not err in granting the City’s plea to the jurisdiction on that claim. Issue one is overruled, in part.       Because of our disposition of issue one, we need not consider issue two. Conclusion        The trial court erred in granting the plea to the jurisdiction regarding Padgett’s and Dunn’s inverse condemnation and nuisance claims; therefore, we reverse that part of the trial court’s judgment and remand for further proceedings. The trial court did not err in granting the plea to the jurisdiction regarding the nuisance-per-se claim; therefore, we affirm that part of the trial court’s judgment.                                                                                TOM GRAY                                                                    Chief Justice Before Chief Justice Gray,           Justice Vance, and           Justice Reyna (Justice Vance concurring) Affirmed in part, reversed and remanded in part Opinion delivered and filed February 11, 2004 [CV06] We review a trial court’s ruling on a motion to suppress evidence in a juvenile proceeding under a bifurcated standard of review. See In re R.J.H., 79 S.W.3d 1, 6-7 (Tex. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Best v. State, 118 S.W.3d 857, 861-62 (Tex. App.—Fort Worth 2003, no pet.). However, we review de novo a trial court’s rulings on application-of-law-to-fact questions that do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53. DISCUSSION M.G. contends that the trial court erred in overruling his motion to suppress his videotaped statements because the statements were the result of custodial interrogation, yet he had not been advised of his rights, which violated the Fifth and Fourteenth Amendments to the United States Constitution; Article 1, Sections 9 and 10 of the Texas Constitution; and section 51.095 of the Texas Family Code. In response, the State acknowledges that M.G. was not given the statutory warnings required by Texas Family Code section 51.095 but contends that the statements were nevertheless admissible because they did not arise from custodial interrogation. See Tex. Fam. Code Ann. § 51.095(b)(1), (d) (Vernon 2009). Alternatively, the State argues that any error in admitting M.G.’s videotaped statements before the jury was harmless. Custodial Interrogation             “Custodial interrogation” means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In cases involving adults, “[a] person is in ‘custody’ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322-25, 114 S.Ct. 1528, 1528-30, 128 L.Ed.2d 293, 298-99 (1994)). When the person involved is a minor, the court’s inquiry is whether, based on the objective circumstances, a reasonable child of the same age would believe his freedom of movement was significantly restricted. In re D.A.R., 73 S.W.3d 505, 510 (Tex. App.—El Paso 2002, no pet.); In re L.M., 993 S.W.2d 276, 289 (Tex. App.—Austin 1999, pet. denied).            The Court of Criminal Appeals has recognized four factors relevant to determining custody: (1) probable cause to arrest, (2) subjective intent of the police, (3) focus of the investigation, and (4) subjective belief of the defendant. Dowthitt, 931 S.W.2d at 254. However, “factors two and four have become irrelevant except to the extent that they may be manifested in the words or actions of law enforcement officials; the custody determination is based entirely upon objective circumstances.” Id. Station-house questioning does not, in and of itself, constitute custody. Id. at 255. The following four general situations may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Id. Concerning the first three situations, the restriction on freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. Concerning the fourth situation, the officers’ knowledge of probable cause must be manifested to the suspect. Id. Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers. Id. Custody is thus established in the fourth situation if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. Id. When the circumstances show that the individual acts upon the invitation or request of the police and there are no threats, express or implied, that he will be forcibly taken, then that person is not in custody at that time. Dancy v. State, 728 S.W.2d 772, 778-79 (Tex. Crim. App. 1987); In re M.R.R., 2 S.W.3d 319, 324 (Tex. App.—San Antonio 1999, no pet.). However, the mere fact that an interrogation begins as non-custodial does not prevent it from later becoming custodial; police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation. Dowthitt, 931 S.W.2d at 255.            Detective Caldwell had asked M.G.’s mother, who is also the mother of the alleged victim, if she would mind bringing M.G. to Scotty’s House and then from Scotty’s House to the police department.  But Detective Caldwell never directly asked M.G. whether he was willing to talk to her until he was already at the police department. At that time, M.G. had just finished being interviewed at Scotty’s House. Furthermore, once M.G. was at the police department and agreed to talk to Detective Caldwell, at Detective Caldwell’s suggestion, he was isolated from his mother and then led through the detectives’ area to an interview room, where he sat alone with Caldwell. The room was small. Detective Caldwell sat very close to M.G. while questioning him and appeared to be, at least in part, between M.G. and the door. Detective Caldwell never informed him of any of his rights under the Texas Family Code, and she was not sure if she told him that he was free to leave. Instead, Detective Caldwell made it clear that M.G. was the focus of the investigation involving the sexual assault of his brother. Despite M.G.’s denials, Detective Caldwell repeatedly asked M.G. if he had sexually assaulted his brother. At some point, M.G. became teary-eyed. Nevertheless, Detective Caldwell continued to press him for truthful statements, telling him that she knew that he was not being completely honest during the Scotty’s House interview. She also stressed to him several times that they had found a shirt in his bedroom with potential DNA evidence on it and brought his mother into the interview room, not for M.G.’s benefit, but only to allow Detective Caldwell to take DNA cheek swabs from him. After all this, M.G. finally gave a statement inculpating himself in the sexual assault. Based on the circumstances outlined above, we conclude that a reasonable eleven-year-old child would have believed that his freedom of movement had been significantly restricted at some point after Detective Caldwell began to press M.G. for a truthful statement. See Jeffley v. State, 38 S.W.3d 847, 856-58 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (consensual non-custodial questioning of fifteen-year-old who had willingly accompanied detective to the police station escalated into custodial interrogation after police officer began pressing her for truthful statement; the eighth-grader sat alone, without parent or lawyer present or accessible, in police station with police officer who never informed her she was free to leave, never informed her of her rights under Family Code, and never made arrangements for her to return home, as promised); L.M., 993 S.W.2d at 290-91 (eleven-year-old was in custody when she made her statements even though she was informed at beginning of interview of her right to remain silent, right to attorney, and right to terminate interview; interview was conducted in children’s shelter where she was temporarily staying, she was not told she was free to leave interview room or children’s shelter, she was isolated and alone during interrogation, and she was focus of investigation). Harm            We consider next whether the trial court’s error was harmful under Texas Rule of Appellate Procedure 44.2, which governs error in criminal cases. See Tex. R. App. P. 44.2. Under Rule 44.2, the nature of the error controls the standard under which it will be evaluated. See id.; Jeffley, 38 S.W.3d at 858. Constitutional error requires reversal of a judgment of conviction or punishment unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). If the error is non-constitutional, it must be disregarded unless it affects substantial rights. Tex. R. App. P. 44.2(b). The improper admission of a statement in response to custodial interrogation implicates the constitutional right against self-incrimination; therefore, we employ the harm analysis mandated by Rule 44.2(a). D.A.R., 73 S.W.3d at 513; Jeffley, 38 S.W.3d at 858; see Tex. R. App. P. 44.2(a).            The State argues that any error in admitting M.G.’s videotaped statements before the jury was harmless because the jury had already heard M.G.’s mother testify, without objection, that M.G. admitted to her that he had assaulted his brother J.G. However, M.G.’s mother also testified that, on several separate occasions, J.G. said that “Daddy” had touched him inappropriately. Although she explained this by stating that M.G. told her that he would tell J.G. that he was “Daddy,” Rogelio testified that J.G. called him “Daddy” and that he had been alone with J.G. for approximately one hour every weekday afternoon. M.G.’s mother also testified that Rogelio continued to live in the house even after J.G. first accused him.  Moreover, during its closing argument, the State emphasized M.G.’s videotaped confession. Thus, we cannot conclude beyond a reasonable doubt that the error did not contribute to M.G.’s conviction.            We sustain M.G.’s sole point. CONCLUSION            We reverse the judgment of the trial court and remand for further proceedings.  REX D. DAVIS Justice  Before Chief Justice Gray, Justice Reyna, and Justice Davis Reversed and remanded Opinion delivered and filed August 11, 2010 [CV06] [1] Detective Caldwell testified at trial that Scotty’s House is the local child advocacy center where child victims are interviewed. [2] M.G.’s mother testified at trial that Rogelio was her live-in boyfriend during that time.