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Click here for the full text of this decision FACTS:The appellant was inside a department store while the store’s loss prevention supervisor watched her through security cameras. The appellant wore an empty backpack, selected seven items of clothing without apparent regard to price or size, and entered a fitting room. The supervisor followed appellant to the fitting room area. Appellant left the fitting room with a full backpack and only two items of clothing in her hands. However, the missing five items were not left in the fitting room or in adjacent areas. When appellant exited the store, the supervisor asked her to come to the loss prevention office. Appellant agreed. Inside the office, the appellant removed five items of clothing bearing the department store’s tags from her backpack. The appellant had no receipt for the items. The supervisor told appellant it was the manager’s decision whether to prosecute for theft and asked appellant to make a written statement. The supervisor and another employee witnessed appellant make a written statement wherein appellant admitted taking the merchandise without paying. After the written statement was given, the Houston Police Department was called and appellant was arrested. Before trial, appellant’s motion to suppress her written statement was denied. HOLDING:Affirmed. Texas Code of Criminal Procedure Article 38.22 makes inadmissible written statements facially devoid of Miranda warnings produced as a result of custodial interrogation. In Bass v. State, the Court of Criminal Appeals analyzed Article 38.22 and concluded the term “custodial interrogation” was intended by the legislature to be construed consistently with its meaning under the Fifth Amendment of the U.S. Constitution. In Miranda v. Arizona, the U.S. Supreme Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The appellant does not contend the supervisor is a law enforcement officer. Accordingly, the “safeguards attendant to custodial interrogation do not come into play unless the person to whom the statements are made is acting as an agent of law enforcement pursuant to a police practice.” Macias v. State, 733 S.W.2d 192 (Tex. Crim. App. 1987), cert. denied, 484 U.S. 1079 (1988) (citing Paez, 681 S.W.2d at 37). Moreover, appellant’s statement was not the result of custodial interrogation because the supervisor was not acting at the request of police officers to elicit incriminating information from appellant. Arnold v. State, 659 S.W.2d 45 (Tex. App. – Houston [14th Dist.] 1983, no pet.). Statements which are not the “result of” or do not “stem from” custodial interrogation are admissible under Article 38.22 on the question of guilt and not merely to impeach a defendant who testifies. Chambliss v. State, 647 S.W.2d 257 (Tex. Crim. App. 1983). A written statement that does not include Miranda warnings will be inadmissible under Article 38.22 if it was made while under custodial interrogation, or, stated another way, if both: 1. the questioning was initiated by law enforcement officials; and 2. appellant was in custody or deprived of freedom in a significant way. In this case, the statements complained of were made to employees of the department store who worked in the loss prevention office. Private citizens, even security guards, are not ordinarily considered “law enforcement officers.” See Ortiz v. State, 727 S.W.2d 37, 38-39 (Tex. App. – San Antonio 1987, pet. ref’d); Lambert v. State, 625 S.W.2d 31 (Tex. App. – San Antonio 1981, no pet.). The record reflects no evidence that any of the employees were law enforcement officers or agents of law enforcement pursuant to a police practice. Law enforcement officials did not initiate, know of, or acquiesce in the store’s employees efforts to obtain appellant’s statement, and the record reflects that the store employees obtained the statement to further the store’s needs in preventing theft, not for law enforcement purposes. Even the appellant recognizes in her brief the store employees were not law enforcement officials. The court holds that appellant’s written statement was not made as a result of custodial interrogation. Thus, Miranda warnings were not required on the face of the statement. The appellant contends the moment the employee made a citizen’s arrest pursuant to Article 18.16 of the Criminal Code, she became an agent of the state. As her only authority, appellant cites two cases, neither of which was decided in the past 75 years but were decided before the seminal Miranda case. The court is unpersuaded that these cases require private citizens to apply the modern day safeguards of Miranda. Because the written statement was not the result of a custodial interrogation, the statement was admissible under Article 38.22 of the Texas Code of Criminal Procedure. The court finds no unlawful acts committed by the store employees; therefore, Article 38.23 which applies to “all persons” does not offer a ground for suppressing the evidence. The court concludes the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and that contrary evidence was not strong enough to conclude the reasonable doubt standard could not be met. OPINION:Anderson, J.; Anderson, Hudson and Frost, JJ.

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