text:
    In the Matter of D.J.C., Appellant.
    No. 01-07-01092-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 24, 2009.
    Rehearing Overruled Nov. 12, 2009.

      Stacey Holley Valdez, Laird Valdez, LLP, Houston, TX, for Appellant.
    B. Warren Goodson Jr., Assistant Criminal District Attorney, Kurt Sistrunk, Criminal District Attorney, Galveston County, Galveston, TX, for Appellee.
    Panel consists of Justices KEYES, HANKS, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

A jury found it true that juvenile appellant D.J.C. engaged in delinquent conduct by committing aggravated sexual assault. The trial court signed a disposition order sentencing appellant to probation for one month in the custody of his grandmother and seven hours of community supervision. In two points of error, appellant argues (1) that the trial court erred in denying his motion to suppress because his statement to police was obtained in violation of Texas Family Code statutes governing juvenile statements and (2) that the trial court erred in restricting his voir dire questions, thereby violating his constitutional rights.

We conclude that the police failed to follow certain Family Code provisions required when obtaining a statement from a minor and that admission of appellant’s statements was not harmless error. We therefore reverse the judgment of the trial court and remand for a new trial.

Background

On February 14, 2006, appellant D.J.C., a sixteen-year-old male, and the complainant, M.I.F., a thirteen-year-old female, had a sexual encounter in the complainant’s home in Galveston, Texas. On March 31, 2006, the complainant told a case worker with Child Protective Services that she had had a sexual encounter with appellant. Galveston Police Department (“GPD”) Officer C. Garcia was assigned to investigate M.I.F.’s complaint. On June 21, 2006, Officer Garcia went to appellant’s home and talked to appellant and his grandmother. Officer Garcia told them that appellant was a suspect in a crime and the focus of an investigation. Officer Garcia requested that appellant’s grandmother bring him to the GPD station and that “it would be best for him to cooperate.” Officer Garcia left appellant’s home.

In response to Officer Garcia’s request, appellant and his grandmother later went to the police station. Officer Garcia led appellant to an interview room on the second floor of the police station. Officer Garcia testified that he knew very little about juvenile detention and did not know whether the interview room met the requirements of a designated juvenile detention center. He also testified that the police department had a designated juvenile section “but it wasn’t equipped with the video equipment at the time,” and so he did not use it. Therefore, Officer Garcia took appellant’s statement in the interview room used for questioning both adult and juvenile subjects. Appellant’s grandmother, who was his legal guardian, asked to be present with appellant in the interview room, but police denied her request. Officer Garcia turned on a video camera and left the interview room. A Galveston municipal court judge then entered the interview room and read appellant his rights, including his right to counsel, right to remain silent during the interview, and right to terminate the interview at any time. The magistrate also warned appellant that “you don’t have to make this statement to anyone. And anything you say can be used against you.” However, he did not warn appellant his statement could be used “in evidence” against him. Appellant’s grandmother was not present when the magistrate read him these rights.

After the judge read appellant his rights, Officer Garcia returned to the interview room. Officer Garcia told appellant he was a suspect in an offense of having sex with a thirteen-year-old child. After Officer Garcia questioned appellant for fifteen to twenty minutes, appellant confessed to having sex with the complainant. Garcia arrested him immediately after the interview.

At trial, appellant moved to suppress his confession. The trial court excused the jury and convened a hearing on appellant’s motion to suppress. At the hearing, Officer Garcia testified that he led appellant to the interview room “used routinely to interview all criminal suspects.” He testified that he was armed and that the door was locked. He testified that he did not know what constituted a juvenile processing office and that he did not “routinely investigate juvenile crimes.” He testified that his supervisor “advised me [the interview room] was mandated as a juvenile interview room.” However, he also testified that the room was used for the interrogation of both adult and juvenile suspects and that he used that room because there was no videotape in the designated juvenile interview room at that time. The State played the video recording of Officer Garcia’s interview with appellant. At the end of the hearing, the trial court ruled that appellant was not in custody at the time of his confession and denied appellant’s motion to suppress.

Appellant testified that the judge told him at least twice that he could leave the interview room at any time. In addition, appellant testified that he told Officer Garcia that he was not afraid to leave the interview room at any time. Appellant also testified that he did not fully understand the warnings the judge gave him prior to his interview. He stated that he and his grandmother drove to the police station “[bjecause the officer came to our house and told us that I need to give a statement.” He further testified, in relevant part:

[Counsel]: Okay. And when you were in the room when the Judge was telling you those warnings, did you feel like you could just get up and walk out the door?
[Appellant]: Not really.
[Counsel]: Did you understand that when he told you that the statement could be used against you, did you understand that that meant in court?
[Appellant]: No.
[Counsel]: Did you understand that that meant they were charging you with a crime as a result of the statement?
[Appellant]: No, ma’am.
[Counsel]: Did you even know that this was a crime at this point?
[Appellant]: If I knew I was going to get in trouble for what I said, I wouldn’t have went.
[Counsel]: You didn’t understand that you were waiving your right, did you?
[Appellant]: No, ma’am.

The State also introduced testimony from the complainant. The complainant testified that she did not remember whether she had sex on February 14, 2006 with appellant. She testified that she “[didn’t] know if it was 2005 or 2006.” She also testified that she was thirteen years old and appellant was sixteen years old on February 14, 2006. She testified that she and appellant had sex at her house. She also testified that she told investigators that she and appellant had sex at his house but she did not know the address. She could not remember whether she or appellant brought a condom when they had sex. She also testified that she told investigators that she brought a condom for appellant when they had sex.

The jury found true that appellant had engaged in delinquent conduct by committing aggravated sexual assault against the complainant. On November 1, 2007, the trial court signed a disposition order placing appellant on one month’s probation and seven hours of community service work.

Motion to Suppress

In his first point of error, appellant argues that the trial court erred in denying his motion to suppress his video-recorded confession because the confession was made under circumstances that violated several Texas Family Code sections governing juvenile confessions.

A. Standard of Review of Motion to Suppress

When a defendant is a juvenile at the time of his arrest, the provisions of the Texas Family Code control issues involving his substantive rights. Roquemore v. State, 60 S.W.3d 862, 866 (Tex.Crim.App.2001). Therefore, we determine the admissibility of a statement of a juvenile in delinquency proceedings in accordance with section 54.03(e) of the Family Code, which provides that “[a]n extrajudicial statement which was obtained without fulfilling the requirements of this title or of the Constitution of this state or of the United States, may not be used in an adjudication hearing.” Tex. Fam.Code. Ann. § 54.03(e) (Vernon 2008).

The Texas Supreme Court has classified juvenile adjudication proceedings as “quasi criminal” because, although proceedings under the Family Code are generally governed by the Texas Rules of Civil Procedure, an exception is made “for the burden of proof to be borne by the state in adjudicating a child to be delinquent or in need of supervision under Section 54.03(f) [governing judicial determinations at adjudication hearings] or otherwise when in conflict with a provision of this title” and because, “[ejxcept as otherwise provided by this title, the Texas Rules of Evidence apply to criminal cases and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal procedure, apply in a judicial proceeding under this title.” Tex. Fam.Code Ann. § 51.17(a), (c) (Vernon 2008); In re B.L.D. & B.R.D., 113 S.W.3d 340, 351 (Tex.2003) (citing Tex. Fam.Code Ann. § 51.17(c)); In re U.G., 128 S.W.3d 797, 799-800 (Tex.App.Corpus Christi 2004, pet. denied). Thus, we review a trial court’s ruling on a motion to suppress the statement of a juvenile in an adjudication proceeding under the same abuse of discretion standard as a motion to suppress the statement of an adult in a criminal proceeding. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); In re J.A.B., 281 S.W.3d 62, 65 (Tex.App.-El Paso 2008, no pet.).

When reviewing the trial court’s ruling on a motion to suppress, we view the evidence in the light most favorable to the trial court’s ruling. State v. Iduarte, 268 S.W.3d 544, 548 (Tex.Crim.App.2008); In re J.A.B., 281 S.W.3d at 65. When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those findings. Iduarte, 268 S.W.3d at 548; In re J.A.B., 281 S.W.3d at 65. We review the trial court’s legal rulings de novo. Id-uarte, 268 S.W.3d at 548; In re J.A.B., 281 S.W.3d at 65. We uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case. Iduarte, 268 S.W.3d at 548; In re J.A.B., 281 S.W.3d at 65. We afford a great deal of deference to a trial judge’s rulings on questions of historical fact, and also on rulings that both apply the law to facts and turn on an evaluation of credibility and demeanor. Iduarte, 268 S.W.3d at 548; In re J.A.B., 281 S.W.3d at 65. Nonetheless, mixed questions of law and fact may be reviewed de novo when they do not depend on credibility or disputed facts. Iduarte, 268 S.W.3d at 548; In re J.A.B., 281 S.W.3d at 65. Likewise, mixed questions of law and fact that are not based on evaluations of credibility or demeanor, such as the question of whether an interrogation is custodial, are reviewed de novo. In re J.A.B., 281 S.W.3d at 65.

B. Custodial Interrogation of a Juvenile

Appellant contends that his interrogation by Officer Garcia constituted custodial interrogation in violation of the United States Constitution and Texas Family Code provisions governing the admissibility of statements made by juveniles and that his confession should have been suppressed under the Family Code. See Tex. Fam.Code Ann. § 51.095 (Vernon 2008) (governing “Admissibility of a Statement of a Child”); § 54.03(e). The State argues that appellant was not in custody when his confession was made, and therefore, the Texas Family Code sections governing juvenile confessions do not apply and the statement was admissible under article 38.23 of the Texas Code of Criminal Procedure. We first determine, therefore, whether appellant was in custody when he made his statement to Officer Garcia.

Custodial interrogation is questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom in any significant way. See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-30, 128 L.Ed.2d 293 (1994); Cannon v. State, 691 S.W.2d 664, 671 (Tex.Crim.App.1985); Martinez v. State, 131 S.W.3d 22, 32 (Tex.App.-San Antonio 2003, no pet.). “A custodial interrogation occurs when a defendant is in custody and is exposed ‘to any words or actions on the part of the police ... that [the police] should know are reasonably likely to elicit an incriminating response.’ ” Roquemore v. State, 60 S.W.3d at 868 (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980)). A child is in custody if, under the objective circumstances, a reasonable child of the same age would believe his freedom of movement was significantly restricted. In re U.G., 128 S.W.3d at 799; Jeffley v. State, 38 S.W.3d 847, 855 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd).

A two-step analysis is employed in a juvenile delinquency proceeding to determine whether an individual is in custody. In re M.R.R., 2 S.W.3d 319, 323 (Tex.App.-San Antonio 1999, no pet.). First, the court examines all the circumstances surrounding the interrogation to determine whether there was a formal arrest or restraint of freedom of movement to the degree associated with a formal arrest. Stansbury, 511 U.S. at 322, 114 S.Ct. at 1528-29; In re M.R.R., 2 S.W.3d at 323. This initial determination focuses on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. Stansbury, 511 U.S. at 322, 114 S.Ct. at 1529; In re M.R.R., 2 S.W.3d at 323. Second, the court considers whether, in light of the given circumstances, a reasonable person would have felt he or she was at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995); In re M.R.R., 2 S.W.3d at 323. Factors relevant to a determination of custody include (1) probable cause to arrest; (2) focus of the investigation; (3) subjective intent of the police; and (4) subjective belief of the defendant. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996); In re J.A.B., 281 S.W.3d at 65; In re M.R.R., 2 S.W.3d at 323. Because the determination of custody is based on entirely objective circumstances, whether the law enforcement officials had the subjective intent to arrest is irrelevant unless that intent is somehow communicated to the suspect. Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529; Dowthitt, 931 S.W.2d at 254; Jeffley, 38 S.W.3d at 855; In re M.R.R., 2 S.W.3d at 323.

The following situations generally 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; or (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Dowthitt, 931 S.W.2d at 255; Jeffley, 38 S.W.3d at 855.

Being the focus of an investigation does not amount to being in custody. Meek v. State, 790 S.W.2d 618, 621 (Tex.Crim.App.1990); Martinez, 131 S.W.3d at 32. Station house questioning does not, in and of itself, constitute custody. Dowthitt, 931 S.W.2d at 255; Jeffley, 38 S.W.3d at 855. “Words or actions by the police that normally attend an arrest and custody, such as informing a defendant of his Miranda rights, do not constitute a custodial interrogation.” Ro-quemore, 60 S.W.3d at 868. 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); Martinez, 131 S.W.3d at 32.

“The mere fact that an interrogation begins as non-custodial, however, 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; Jeffley, 38 S.W.3d at 856. A juvenile may be in custody when the juvenile is interrogated alone by an armed police officer in an enclosed office. See In re D.A.R., 73 S.W.3d 505, 511-12 (Tex.App.-El Paso 2002, no pet.).

Here, appellant came to the police station with his grandmother after Officer Garcia came to his home to request that he come to the police station. Officer Garcia testified that he told appellant’s grandmother that appellant was a suspect in a crime and the focus of a police investigation. Officer Garcia also testified that he asked appellant “for his cooperation, if he would give a voluntary statement as to the allegations that were made against him.” He also testified that he told appellant that “it would be best for him to cooperate” but that he made no representations as to why it would be best for appellant to cooperate.

Officer Garcia, while wearing his firearm, took appellant to an interview room used in interrogations of both adult and juvenile subjects. He denied appellant’s grandmother’s request to remain in the room during his interrogation of appellant. Officer Garcia then left the room and had a magistrate come in to issue appellant warnings about appellant’s right to remain silent, right to counsel, and right to terminate the interview at any time in the absence of appellant’s grandmother, who was appellant’s legal guardian and an adult. After appellant received the magistrate’s warnings, Officer Garcia returned to the room, which he testified was locked, and asked appellant about the aggravated sexual assault. Appellant was thus alone in a locked room used for the interrogation of adult, as well as juvenile, criminal defendants with an armed police officer at the time he made the statement to Officer Garcia. Appellant was arrested immediately after he gave his statement.

We conclude that by excluding appellant’s grandmother from the interview room, despite her express request to be present, having the magistrate judge read appellant his rights, then returning to the interview room and locking it, Officer Garcia signaled a change in the nature of the interview. See Jeffley, 38 S.W.3d at 856; Dowthitt, 931 S.W.2d at 255 (stating that “mere fact that an interrogation begins as non-custodial does not prevent custody from arising later; police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation”). Under the first step of the custody analysis, we hold that there was restraint of freedom of movement to the degree associated with a formal arrest. See Stansbury, 511 U.S. at 322, 114 S.Ct. at 1528-29; see also In re M.R.R., 2 S.W.3d at 323; see also In re D.A.R., 73 S.W.3d at 511.

We also conclude that, in light of the given circumstances, a juvenile of appellant’s age could reasonably have felt he was not at liberty to terminate the interview and leave. See Thompson, 516 U.S. at 112, 116 S.Ct. 457; In re M.R.R., 2 S.W.3d at 323. Appellant testified that the magistrate told him he could leave the interview room at any time. He also testified that he told Officer Garcia that he was unafraid to leave the interview room at any time. But he also testified that he did “not really” feel that he could leave. Furthermore, because the door was locked, appellant was not objectively “free” to leave. Appellant further testified that he did not understand that he could be charged with a crime as a result of his statement and that his statement could be used “in evidence” against him. See Tex. Fam.Code Ann. § 51.095(a)(1)(A) (Vernon 2008) (setting out warnings that must be given for admissibility of custodial statement of child, including statement that “the child may remain silent and not make any statement at all and that any statement that the child may be used in evidence against the child”). In light of all the circumstances, we hold that a reasonable child would not have felt he or she was at liberty to terminate the interrogation and leave. See Keohane, 516 U.S. at 112, 116 S.Ct. at 465; Dowthitt, 931 S.W.2d at 255; Jeffley, 38 S.W.3d at 855; In re M.R.R., 2 S.W.3d at 323; cf. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 2150, 158 L.Ed.2d 938 (2004) (juvenile defendant’s being allowed to leave at end of “non-Mirandized interview” was fact that “weigh[ed] against a finding that [defendant] was in custody”).

We hold that appellant was in custody at the time he made his statement and, therefore, the provisions in the Family Code governing the admissibility of the custodial statement of a juvenile apply.

C. Family Code Restrictions on Custodial Interrogation of a Juvenile

Appellant contends that his custodial statement was inadmissible because it failed to fulfill several requirements of the Family Code. See Tex. Fam.Code Ann. § 54.03(e). Specifically, appellant contends that (1) his statement was not taken in a designated juvenile processing center, as required by sections 52.02(a) and 52.025(a) of the Family Code; (2) his grandmother was excluded from the interview room despite her request to be present, in violation of section 52.025(c) of the Code; and (3) his video-recorded statement did not comply with section 52.025(b)(5) of the Code, which requires that an electronically recorded statement of a juvenile received in a designated juvenile processing center comply with Family Code sections 51.095(a)(1), (2), (3) or (5), because it did not comply with sections 51.095(a)(1)(A) and (a)(5), governing the warnings to be given a juvenile prior to the taking of his statement.

1. Violation of Family Code Sections 52.02(a) and 52.025(a) by Failure to Take Statement in a Designated Juvenile Processiny Center

Appellant first contends that his statement was not taken in a designated juvenile processing center, as required by sections 52.02(a) and 52.025(a) of the Family Code.

a. Procedures for taking a child into custody under Family Code section 52.02(a)

Section 52.02(a) of the Texas Family Code governs procedures that must be followed when a juvenile is taken into custody. In re D.Z., 869 S.W.2d 561, 564 (Tex.App.-Corpus Christi 1994, writ denied). The Court of Criminal Appeals has “established a policy of strict compliance with the Family Code, especially section 52.02(a).” Roquemore, 60 S.W.3d at 868; Baptist Vie Le v. State, 993 S.W.2d 650, 655-56 (Tex.Crim.App.1999); Comer v. State, 776 S.W.2d 191, 196-97 (Tex.Crim. App.1989).

Section 52.02(a) provides in relevant part:

(a) [A ] person taking a child into custody, without unnecessary delay and without first taking the child to any place other than a juvenile processing office designated under Section 52.025, shall do one of the following:
(1) release the child to a parent, guardian, custodian of the child, or other responsible adult upon that person’s promise to bring the child before the juvenile court as requested by the court.
(2) bring the child before the office or official designated by the juvenile board if there is probable cause to believe that the child engaged in delinquent conduct, conduct indicating a need for supervision, or conduct that violates a condition of probation imposed by the juvenile court;
(3) bring the child to a detention facility designated by the juvenile board;
(4) bring the child to a secure detention facility as provided by Section
51.12a);
(5) bring the child to a medical facility if the child is believed to suffer from a serious physical condition or illness that requires prompt treatment;
(6) dispose of the case under Section 52.03;

See Tex. Fam.Code. Ann. § 52.02(a) (emphasis added); Baptist Vie Le, 993 S.W.2d at 652-53.

Under section 52.02(a), an officer who has taken a child into custody may only bring the child to a “designated juvenile processing office under section 52.025,” or, alternatively: (1) release the child to a parent; (2) bring the child before the office or official designated by the juvenile court; (3) bring him to a detention facility designated by the juvenile board; (4) bring him to a juvenile detention facility; (5) bring him to a medical facility; or (6) dispose of the case. Baptist Vie Le, 993 S.W.2d at 652-53. When a law enforcement officer deems it necessary to take a juvenile into custody, the Family Code requires that without unnecessary delay and without first taking him anywhere else except a juvenile processing office, the officer must bring the juvenile before the office designated by the juvenile court or bring him to a detention facility designated by the juvenile court. In re D.Z., 869 S.W.2d at 564; Comer, 776 S.W.2d at 194. Once the officer has found cause initially to take the juvenile into custody and makes a decision to refer him to the intake officer or other designated authority, he relinquishes ultimate control over the investigative function of the case. See Baptist Vie Le, 993 S.W.2d at 654; In re D.Z., 869 S.W.2d at 564. Thus, with each of the options in section 52.02(a), except the option of taking the child to a designated juvenile processing office, the officer’s involvement in the case ceases. Baptist Vie Le, 993 S.W.2d at 654; see In re D.Z., 869 S.W.2d at 564.

When police officers fail to comply with the requirements of Family Code section 52.02(a), 52.12, and 52.025, governing the taking of a child into custody and the taking of the statement of a child in a juvenile processing office, a statement obtained from a juvenile by the investigating officer may violate his rights as a juvenile under the Family Code and thus be inadmissible at trial. See Tex. Fam.Code Ann. § 54.03(e); In re U.G., 128 S.W.3d at 799 (holding juvenile’s statement inadmissible when, after being placed in custody, police took juvenile to police station and held juvenile in area where adult suspects were held instead of taking juvenile “to a juvenile processing office or any of the places listed as an alternative” in section 52.02 and placing juvenile in specifically designated office for juveniles). This is so even if the statement would otherwise be admissible as a custodial statement of a child under section 51.095 of the Family Code, governing the admissibility of a statement of a child. See Tex. Fam.Code Ann. § 51.095; Roquemore, 60 S.W.3d at 868; Comer, 776 S.W.2d at 195-96; Marsh v. State, 140 S.W.3d 901, 907 (Tex.App.Houston [14th Dist.] 2005, pet. ref d).

Here, Officer Garcia did not exercise any of the options provided by Family Code subsections 52.02(a)(l)-(6) that would have terminated his involvement in appellant’s case. Therefore, he was authorized by section 52.02(a) only to take appellant to a “designated juvenile processing office” in compliance with Family Code section 52.025. See Tex. Fam.Code. Ann. § 52.02(a); Baptist Vie Le, 993 S.W.2d at 654.

b. Procedures for taking the statement of a juvenile in a designated juvenile processing office under Family Code section 52.025(a)

Section 52.025, governing juvenile processing offices, provides, in relevant part:

(a) The juvenile court may designate an office or a room, which may be located in a police facility or sheriffs offices, as the juvenile processing office for the temporary detention of a child taken into custody under Section 52.01. The office may not be a cell or holding facility used for detentions other than detentions under this section. The juvenile board by written order may prescribe the conditions of the designation and limit the activities that may occur in the office during the temporary detention.
(b) A child may be detained in a juvenile processing office only for:
(1) the return of the child to the custody of a [parent or guardian] ...;
(2) the completion of essential forms and records required by the juvenile court or this title;
(3) the photographing and fingerprinting of the child ...;
(h) the issuance of warnings to the child as required or permitted by this title; or
(5) the receipt of a statement by the child under Section 51.095(a)(1), (2), (3), or (5).
(c) A child may not be left unattended in a juvenile processing office and is entitled to be accompanied by the child’s parent, guardian or by the child’s attorney.
(d) A child may not be detained in a juvenile processing office for longer than six hours.

Tex. Fam.Code. Ann. § 52.025 (emphasis added); see Baptist Vie Le, 993 S.W.2d at 653.

A “juvenile processing office” is “little more that a temporary stop for completing necessary paperwork pursuant to the arrest.” Baptist Vie Le, 993 S.W.2d at 654. Under the plain language of section 52.025(b), it may be used only for (1) the return of the child to a parent or guardian; (2) the completion of forms or records; (3) photographing and fingerprinting if the child; (4) the issuance of warnings; and (5) the receipt of a statement in compliance with section 51.095(a)(1), (2), (3), or (5) of the Family Code. Tex. Fam.Code. Ann. § 52.025(b).

Moreover, under the plain language of section 52.025(a), while a “designated juvenile processing office” may be a room located in a police station, it may not be a room that is “used for detentions other than detentions under this section.” Tex. Fam.Code. Ann. § 52.025(a); Baptist Vie Le, 993 S.W.2d at 653-54 (taking juvenile arrested for murder to homicide division of police department violated Family Code requirements for handling child taken into custody). If, after taking a juvenile into custody, authorities do not take him to either a juvenile processing office or a statutorily designated alternative for questioning, but rather obtain a statement from the juvenile in an area used to interview adult suspects, that statement is inadmissible. Baptist Vie Le, 993 S.W.2d at 654-56; In re U.G., 128 S.W.3d at 799; see Tex. Fam.Code Ann. § 52.02(a); Salas v. State, 756 S.W.2d 832, 834-35 (Tex.App.-Corpus Christi 1988, no pet.) (holding statement inadmissible when, instead of following section 52.02, officers took juvenile first to police station where they obtained signed, written statement from him before taking him to appropriate juvenile detention center); see also Roquemore, 60 S.W.3d at 868; Marsh, 140 S.W.3d at 907 (holding that statement of child that meets admissibility requirements of section 51.095 “may be nonetheless inadmissible” when provisions in sections of Family Code “dictating the necessary procedures for taking the child’s statement, are violated,” specifically section 52.025(b)); In re D.Z., 869 S.W.2d at 564 (holding that statement illegally seized or obtained in violation of Family Code provisions governing custodial interrogation is inadmissible in adjudication hearing under section 54.03(e) of Family Code).

Here, Officer Garcia took appellant into custody and interrogated him in an interview room used to interrogate both adult and juvenile subjects. Officer Garcia testified that the room was “used routinely to interview all criminal suspects,” and that “adults get interviewed in this room as well.” He also testified that the police department had a designated juvenile section “but it wasn’t equipped with the video equipment at the time,” and so he did not use it. Officer Garcia testified that he did not know what constituted a juvenile processing office and that he did not “routinely investigate juvenile crimes,” but that his supervisor “advised me [that the interview room] was mandated as a juvenile interview room.” We conclude that the evidence shows that the State violated sections 52.02(a) and 52.025(a) by not taking appellant’s custodial statement in a designated juvenile processing office.

Once a defendant produces evidence of a section 52.02(a) or (b) violation, the burden shifts to the State to prove compliance with that section. Roquemore, 60 S.W.3d at 869; see also Tex. Fam.Code Ann. §§ 51.17(a), 54.03(f) (Vernon 2008) (providing that State bears burden of proving requirements for finding of delinquency in adjudication proceedings by competent evidence). Here, the State failed to carry its burden. The evidence shows that the interview room used by Officer Garcia was “used routinely to interview all criminal subjects,” and there is no more than a scintilla of evidence in the record that the interview room was a designated juvenile processing office, as provided in section 52.02(a).

We conclude that, in taking appellant’s custodial statement, the State violated the statutory requirements in Texas Family Code sections 52.02(a) and 52.025(a) requiring that a juvenile’s custodial statement be taken only in a proper place. See Tex. Fam.Code. Ann. §§ 52.02(a), 52.025(a); Baptist Vie Le, 993 S.W.2d at 654-55.

2. Exclusion of Appellant’s Legal Guardian in Violation of Section 52.025(c) of the Family Code

Appellant next contends that his legal guardian, his grandmother, was excluded from the locked interview room in which Officer Garcia interrogated appellant, despite her express request to be present, in violation of section 52.025() of the Family Code, which states, “A child may not be left unattended in a juvenile processing office and is entitled to be accompanied by the child’s parent, guardian, or the child’s attorney.” Tex. FauCode Ann. § 52.025(c).

The record shows that appellant’s grandmother, who was his legal guardian, accompanied appellant to the GPD station. When Officer Garcia took appellant into the interview room for questioning, she asked to be present with appellant, but Officer Garcia denied her request and excluded her from the interview room.

We hold that the State violated section 52.025(c)’s requirement that a child in custody in a juvenile processing center “is entitled to be accompanied by the child’s parent, guardian, or the child’s attorney.” See Tex. Fam.Code Ann. § 52.025(c).

3. Failure to Warn that Statement of Juvenile May Be Used “In Evidence” Against Him in Violation of Sections 52.025(b)(5) and 51.095(a)(1)(A) and (a)(5) of the Family Code

Finally, appellant contends that the State violated section 52.025(b)(5) of the Family Code by failing to comply with sections 51.095(a)(1)(A) and (a)(5) in taking his statement after taking him into custody. See Tex. Fam.Code Ann. § 52.025(b)(5). Appellant contends that the magistrate who gave him his warnings prior to his electronically recorded statement failed to warn him that his statement could be used “in evidence” against him, in violation of sections 51.095(a)(1)(A) and (a)(5) of the Family Code, thereby violating section 52.025(b)(5) of the Code and rendering his statement inadmissible under section 53.04.

Section 51.095 of the Family Code provides means for assuring the voluntariness, hence the admissibility, of a juvenile’s custodial statement. See Tex. Fam.Code Ann. § 51.095. It states, in relevant part:

(a) Notwithstanding Section 51.09, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
(1) the statement is made in writing under a circumstance described by Subsection (d) and:
(A) the statement shows that the child has at some time before the making of the statement received from a magistrate a warning that:
(i) the child may remain silent and not make any statement at all and that any statement that the child may be used in evidence against the child;
(ii) the child has the right to have an attorney present to advise the child either prior to any questioning or during the questioning;
(iii) the child is unable to employ an attorney, the child has the right to have an attorney appointed to counsel with the child before or during any interviews with peace officers or attorneys representing the state; and
(iv) the child has the right to terminate the interview at any time;
(5) subject to Subsection(f), the statement is made orally under a circumstance described by Subsection (d) and the statement is recorded by an electronic recording device, including a device that records images, and;
(A) before making the statement, the child is given the warnings described by Subsection (1)(A) by a magistrate, the warning is a part of the recording, and the child knowingly, intelligently, and voluntarily waives each right stated in the warning;
(d) Subsections (a)(1) and (a)(5) apply to the statement of a child made:
(1) while the child is in a detention facility or other place of confinement; [or]
(2) while the child is in the custody of an officer ... [.]

Tex. Fam.Code. Ann. § 51.095 (emphasis added). As stated above, any statement of a juvenile taken in violation of the provisions of the Family Code governing the substantial rights of a juvenile in custody is inadmissible under section 53.04(e) of the Family Code. See Tex. Fam.Code. Ann. § 53.04(e).

Appellant’s statement was electronically recorded. The video recording shows that the municipal court judge whom Officer Garcia asked to read appellant his rights entered the interview room and warned appellant about his right to counsel, his right to remain silent during the interview, and his right to terminate the interview at any time. The magistrate also warned appellant that “you don’t have to make this statement to anyone. And anything you say can be used against you.” However, he did not warn appellant that his statement could be used “in evidence ” against him. Appellant contends that this omission is a direct violation of section 51.095(a)(1)(A), which must be followed if a statement is electronically recorded under section 51.095(a)(5). Specifically, section 51.095(a)(1)(A) provides that a statement made by a child is admissible only if, inter alia, “the child has at some time before the making of the statement received from the magistrate a warning that the child may remain silent and not make any statement at all and that any statement the child makes may be used in evidence against [him].” Tex. Fam.Code Ann. § 51.095(a)(1)(A) (emphasis added); see also § 51.095(a)(5).

In Sosa v. State, the Court of Criminal Appeals held that a warning of rights made to any adult defendant that differs only slightly from the language of the statute governing the admissibility of evidence — in that case, article 38.22 of the Code of Criminal Procedure — complies with the statute as long as it conveys its exact meaning. 769 S.W.2d 909, 915-16 (Tex.Crim.App.1989) (holding that defendant’s written statement was voluntarily made when he was read his rights three times during course of evening in accordance with Miranda and article 38.22 and on each occasion defendant acknowledged that he understood his rights, that he wished to waive them, and that he wished to talk with FBI agents). Subsequent criminal cases, many unpublished and therefore of no precedential value, have defined the “substantial compliance” standard set in Sosa differently in different contexts, but none of them in the juvenile context. See, e.g., Rutherford v. State, 129 S.W.3d 221, 226 (Tex.App.-Dallas 2004, no pet.) (finding substantial compliance with article 38.22 where orally administered warnings added to beginning “if I am unable to hire a lawyer” instead of “if [I] am unable to employ a lawyer”); Gonzalez v. State, 967 S.W.2d 457, 459 (Tex.App.-Fort Worth 1998, no pet.) (finding substantial compliance where Spanish translation of statutory DUI warning substituted for “that refusal [to give a specimen] may be admissible in a subsequent prosecution,” in Tex.Rev.Civ. Stat. Ann. art. 67011-5 § 2(b) (Vernon 1977), the words “tál acción puede usarse en su contra en el futuro,” which the parties translated as “[i]f you refuse the analysis that action can be used against you in the future”); Williams v. State, 883 S.W.2d 317, 320 (Tex.App.-Dallas, 1994, pet.ref d) (holding that phrase “I know I have the right to remain silent” together with phrase “and knowing that anything I say may be used against me” substantially complied with article 38.22 warnings even though warnings failed to advise accused that his statement could be used against him “at his trial” or “in court” because it advised him his statement could be used against him “in any type of context not just those mentioned in article 38.22, subsection 2(a)(1) and (2)”).

We find that the case closest to the instant ease, however, is State v. Subke, 918 S.W.2d 11 (Tex.App.-Dallas 1995, pet. refd), decided the year after Williams. In Subke, the defendant was given the warning at the beginning of his video-recorded statement that “[y]ou have the right to remain silent and not make any statement at all and that any statement you make will be used against you at trial.” Id. at 13. The court held that because article 38.22 specifically provided that the accused must be warned that “he has the right to remain silent and not to make a statement at all and that any statement he makes maybe used against him at his trial” and also provided that the accused must be warned that “any statement he makes maybe used as evidence against him in court,” the failure to give the accused both warnings rendered his statement inadmissible. Id. at 14-15 (emphasis added). The court held that “the Legislature deliberately placed both warnings ... in the statute to inform the accused of his rights.” Id. at 15.

Here, the magistrate failed to warn appellant that his video-recorded statement could be used in evidence against him, and nothing else in the warnings alerted appellant that his statement could be used in a hearing to adjudicate juvenile delinquency. Moreover, the record shows that appellant did not understand that he could be charged with a crime as a result of his statement or that his statement could be used in evidence against him at a hearing to adjudicate juvenile delinquency. The State produced no evidence that appellant understood the warnings given him and their implications.

We hold that the warnings given appellant did not substantially comply with the warnings required to advise him of his rights. Thus appellant’s statement was taken in violation of sections 51.095(a)(1)(A) and (a)(5) of the Family Code and, therefore, in violation of section 52.025(b)(5) of the Code. See Tex. Fam. Code Ann. § 52.025(b)(5).

Because appellant’s electronically recorded custodial statement was taken in violation of sections 52.02(a), 52.025(a), (b)(5), and (c), and 51.095(a)(1)(A) and (a)(5) of the Family Code, and thus violated appellant’s substantial rights, we hold that the statement was inadmissible in his juvenile adjudication hearing under section 54.03 of the Code. See Tex. Fam.Code Ann. § 54.03(e); see also Roquemore, 60 S.W.3d at 869; Comer, 776 S.W.2d at 195-96; Marsh, 140 S.W.3d at 907.

We sustain appellant’s first point of error.

D. Harm Analysis

When the statement of a juvenile is obtained in violation of Family Code section 52.02(a) — much less in violation of multiple rights conferred by sections 52.02(a), 52.025, and 51.095 — it must be suppressed and a harm analysis done. See Roquemore, 60 S.W.3d at 867-68; Baptist Vie Le, 993 S.W.2d at 656.

We use the criminal standard of reversible error in a juvenile delinquency proceeding, requiring the State to bear the burden of proving delinquent conduct under the more stringent beyond a reasonable doubt standard rather than under the civil standard. See Tex. Fam.Code Ann. § 51.17(a), (c); In re B.L.D., 113 S.W.3d at 351; In re U.G., 128 S.W.3d at 799-800; In re D.Z., 869 S.W.2d at 566. Because the improper admission of the statement of a juvenile in response to custodial interrogation implicates the constitutional right against self-incrimination, it is constitutional error to admit the statement into evidence. Marsh, 140 S.W.3d at 908; see also In re U.G., 128 S.W.3d at 800. Under the standard for reviewing constitutional error in criminal cases, we reverse the trial court’s ruling unless the record establishes beyond a reasonable doubt that the erroneous admission of the statement did not contribute to the defendant’s conviction or punishment. Tex.R.App. P. 44.2(a); Franklin v. State, 138 S.W.3d 351, 354-55 (Tex.Crim.App.2004); Marsh, 140 S.W.3d at 908; In re U.G., 128 S.W.3d at 800.

Here, the only evidence against appellant other than his improperly admitted electronically recorded statement was the complainant’s testimony. The complainant testified that she lied to appellant about her age. She testified that she did not remember whether she had sex on February 14, 2006 with appellant. She testified that she “[didn’t] know if it was 2005 or 2006.” She testified that she and appellant had sex at her house. She also testified that she told investigators that she and appellant had sex at his house, but she did not know the address of appellant’s house. The State did not present any other evidence or testimony.

The complainant’s testimony was inconsistent and contradictory. The State had no other proof. We cannot, therefore, determine beyond a reasonable doubt that the erroneous admission of appellant’s statement, in which he confessed to having sex with the complainant, did not contribute to his conviction. See Tex.R.App. P. 44.2(a). We hold that the trial court’s error in admitting appellant’s illegally obtained statement was harmful error requiring reversal of his conviction.

Because we have sustained appellant’s first point of error and have concluded that the error was harmful and requires reversal of his conviction, we need not address his second point of error.

Conclusion

We reverse the judgment of the trial court and remand for further proceedings in accordance with this opinion.

      . A statement of a juvenile that is not the product of custodial interrogation is not required to be suppressed by section 51.095 of the Family Code. See Tex. Fam Code Ann. § 51.095(d)(2) (Vernon 2008); Martinez v. State, 131 S.W.3d 22, 32 (Tex.App.-San Antonio, no pet.). However, even in the absence of custody, due process may be violated by the admission of a confession that was not voluntarily given. Martinez, 131 S.W.3d at 35; see Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995).
      Article 38.23 of the Texas Code of Criminal Procedure, governing "Evidence not to be used” in criminal actions provides:
      (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
      (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
      Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

      . Section 51.12(j) provides that, except under circumstances not relevant here, a child may be detained only in a juvenile processing office in compliance with Section 52.025. See Tex. Fam.Code Ann. § 51.12(j) (Vernon 2008).

      . Section 52.03 provides that "[a] law-enforcement officer authorized by [the Family Code] to take a child into custody may dispose of the case without referral to juvenile court” under certain circumstances, but that ‘‘[n]o disposition authorized by this section may involve “keeping the child in law-enforcement custody.” See Tex. Fam.Code Ann. § 52.03 (Vernon 2008).

      . See Tex. Fam.Code Ann. § 52.01(a)(3)(A) (Vernon 2008) (providing circumstances under which "a child may be taken into custody,” including "by a law enforcement officer ... if there is probable cause to believe that the child has engaged in ... (A) conduct that violates a penal law of this state or (B) delinquent conduct necessitating supervision”).

      . Section 51.09 of the Family Code provides that, "[ujnless a contrary intent clearly appears elsewhere in this title,” a child may waive any right granted by the Family Code “or by the constitution or laws of this state or the United States” in proceedings under the Family Code if:
      (1)the waiver is made by the child and the attorney for the child;
      (2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
      (3) the waiver is voluntary; and
      (4) the waiver is made in writing or in court proceedings that are recorded.
      Tex. Fam.Code Ann. § 51.09.

      . Article 38.22 requires warnings to the accused in a criminal trial that:
      (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at this trial;
      (2) any statement he makes may be used as evidence against him in court;
      (3) he has the right to have a lawyer present to advise him prior to and during any questioning;
      (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
      (5) he has the right to terminate the interview at any time].]
      Tex.Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    KM-TIMBERCREEK, LLC, commonly known as KMI Yorktown, LP, as The Property Owners and The Property Owners, Appellants, v. HARRIS COUNTY APPRAISAL DISTRICT, Appellee.
    No. 01-08-00689-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 15, 2009.

      Hugh L. McKenney, McKenney & Associates, P.C., Houston, TX, for Appellants.
    G. Todd Stewart, Olson & Olson, L.L.P., Janice N. Rich, Houston, TX, for Appel-lees.
    Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
   OPINION

JANE BLAND, Justice.

KM-Timbercreek, LLC (“Timber-creek”), appeals from the trial court’s order granting Harris County Appraisal District’s (“HCAD”) plea to the jurisdiction and denying a Rule 28 motion filed by the initial plaintiff, KMI Yorktown, LP (‘Yorktown”), to substitute the “true name” of Timbercreek for that of Yorktown as plaintiff. After pursuing an administrative protest of HCAD’s 2007 valuation of the property, Yorktown sued to challenge the Appraisal Review Board’s (“the Board”) Order Determining Protest. HCAD discovered that Timbercreek, and not Yorktown, was the record legal owner of the property on January 1, 2007, and thus Timbercreek was the proper party to pursue a protest. HCAD subsequently filed a plea to the jurisdiction, alleging Yorktown lacked standing to seek judicial review of the Board’s order. Tim-bercreek challenges the trial court’s order, contending that: (1) both Yorktown and Timbercreek have standing to seek judicial review of the Board’s order; (2) Section 42.21(e) of the Texas Tax Code allows the amendment of a timely filed petition to correct or change the name of a party; and (3) Yorktown is the “common name” of Timbercreek, and thus the “true name” of Timbercreek may be substituted as the plaintiff pursuant to Texas Rule of Civil Procedure 28. We conclude that Yorktown was not the record owner of the property on January 1, 2007, and Timber-creek did not complete the administrative protest process before the Board; thus, neither entity had standing to petition for judicial review of the 2007 valuation. We further conclude that no evidence in the record indicates that Yorktown is a “common name” for Timbercreek; thus, the trial court did not err in refusing to allow substitution under Rule 28. We therefore affirm.

Background

The property at issue is located at 0 Highway 6 North in Houston. Yorktown sold the property to Timbercreek by special warranty deed on November 1, 2006. Therefore, on January 1, 2007, Timber-creek was the record legal owner of the property. Despite this change in ownership, HCAD mailed Yorktown a Notice of Appraised Value on April 25, 2007. Yorktown subsequently filed a protest with HCAD’s Appraisal Review Board. On July 27, 2007, the Board issued an Order Determining Protest, mailed to O’Connor & Associates, Yorktown’s designated agent for the protest process, ordering a reduction in the appraised value of the property. Timbercreek never intervened nor appeared in Yorktown’s protest, and did not file its own protest of the initial appraised value with the Board. Pursuant to section 42.21(a) of the Texas Tax Code, Yorktown timely petitioned the trial court for review of the Board order on September 13, 2007. Yorktown’s original petition included several assertions that it owned the property. In attached responses to Rule 194 disclosures, Yorktown stated that “KMI Yorktown, LP” was the correct name of the plaintiff and it knew of no other potential parties to the suit. In its proposed trial preparation order, Yorktown included a proposed finding of fact that it was the owner of the property on January 1 of each of the tax years in question. Nine months later, on June 19, 2008, HCAD filed a plea to the jurisdiction, arguing that since Timbercreek was the record owner of the property on January 1, 2007, Yorktown lacked standing to seek judicial review of the Board’s order under the Texas Tax Code. See Tex. Tax Code Ann. § 42.01 (Vernon 2008), § 42.21(a) (Vernon Supp. 2009).

In response to HCAD’s plea to the jurisdiction, Yorktown moved to allow for substitution of the “true name” of Timber-creek as plaintiff for the “common name” of Yorktown, used by HCAD in its records and correspondence, pursuant to Texas Rule of Civil Procedure 28. According to Yorktown, Timbercreek, acting under its “common name” of Yorktown, protested the Board’s order and timely filed suit for review of the order, and thus had standing to pursue judicial review. The trial court granted HCAD’s plea to the jurisdiction, denied Yorktown’s Rule 28 motion, and dismissed the case for want of jurisdiction.

Discussion

Standard of Review

Standing is a necessary component of subject-matter jurisdiction and subject-matter jurisdiction is necessary for a court to decide a particular case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). If the plaintiff can cure the jurisdictional defect by amending its pleadings, then the opponent properly raises the jurisdictional challenge through special exceptions. See Washington v. Fort Bend Indep. Sch. Dist., 892 S.W.2d 156, 159 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (“If a jurisdictional defect can be cured by amendment it should be challenged by either a plea in abatement or special exceptions.”). If the trial court grants special exceptions, it should then afford the plaintiff the opportunity to amend its pleadings. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). If, however, the jurisdictional defect cannot be cured by amendment, a party may file a plea to the jurisdiction, and, if the trial court finds the plea meritorious, it may grant it without allowing the plaintiff an opportunity to amend. See Brown, 80 S.W.3d at 555; Washington, 892 S.W.2d at 159; see also Blue, 34 S.W.3d at 554 (“The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction.”). A trial court decides a plea to the jurisdiction by reviewing the pleadings as well as any evidence relevant to the jurisdictional inquiry. Blue, 34 S.W.3d at 555. We review a trial court’s ruling on a plea to the jurisdiction de novo, construing the pleadings liberally in favor of the plaintiffs while considering the pleader’s intent. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex.2004).

Standing to Seek Judicial Review of the Board’s Order Determining Protest

Chapter 41 of the Texas Tax Code (“the Code”) bestows upon property owners the right to protest the appraised value of their property to the local appraisal review board. See Tex. Tax Code Ann. §§ 41.41-.47 (Vernon 2008). Rights under the Code are premised upon ownership of the property at issue. See Roll Bren Fund VI, LP v. HCAD, No. 01-07-00321-CV, 2008 WL 525799, at *2-3, 2008 Tex. App. LEXIS 1521, at *8-9 (Tex.App.Houston [1st Dist.] Feb. 28, 2008, pet. denied) (mem. op.) (citing Tex. Tax Code Ann. §§ 32.07(a), 41.41(a)(1), 41.412(a) (Vernon 2008)). Chapter 42 of the Code provides the right to seek judicial review of an adverse protest determination by the appraisal review board. See Tex. Tax Code Ann. §§ 42.01-.031 (Vernon 2008) (providing a right of appeal to the property owner, certain lessees, the chief appraiser, the county, and the taxing unit). Aside from the few specific exceptions enumerated in Chapter 42, the property owner’is the only entity with standing to appeal an appraisal review board order to the district court. Id.; see also Tourneau Houston, Inc. v. HCAD, 24 S.W.3d 907, 909 (Tex.App.Houston [1st Dist.] 2000, no pet.) (“As a general rule, only an owner may protest before the [Appraisal Review Board] and sue in court for relief’).

Section 42.21(a) of the Code specifies the procedural requirements that a party seeking judicial review of an appraisal review board order must meet:

A party who appeals as provided by this chapter must file a petition for review with the district court within 45 days after the party received notice that a final order has been entered from which an appeal may be had. Failure to timely file a petition for review bars any appeal under this chapter.

Tex. Tax Code Ann. § 42.21(a) (emphasis added). We recently analyzed the standing requirements of section 42.21(a) in Koll Bren. See 2008 WL 525799, at ⅞3, 2008 Tex.App. LEXIS 1521, at *10. Although section 42.21(a) does not explicitly say who may be a “party,” it does describe a party as one “who appeals as provided by this chapter,” meaning Chapter 42 of the Tax Code. Id. Section 42.01, “Right of Appeal by Property Owner,” specifically states that “[a] property owner is entitled to appeal ... an order of the appraisal review board determining ... a protest by the property owner.” Tex. Tax Code Ann. § 42.01(1)(A) (emphasis added). We concluded that the Code requires property ownership for two distinct rights: (1) the right to protest an initial appraisement before the appraisal review board; and (2) the right to appeal the appraisal review board’s determination to a district court. See Koll Bren, 2008 WL 525799, at *3, 2008 Tex.App. LEXIS 1521, at *10-11. As a result, for a party to be entitled to judicial review, the party must be the record legal owner of the property and must protest the initial valuation to the appraisal review board. See id. at *3, 2008 Tex. App. LEXIS 1521, at *11.

In Roll Bren, we further determined that the Code entitles three categories of parties to seek judicial review: (1) owners of the property; (2) properly designated agents of the owner pursuant to section 1.11; and (3) certain lessees meeting the criteria of section 41.413. See id. If a plaintiff seeking judicial review does not fall into one of these three categories, then they have “neither a legal right to enforce, nor any real controversy at issue, and, therefore, no standing under the Code.” Id. (citations omitted); see also MHCB (USA) Leas. & Fin. Corp. v. Galveston Cent. Appraisal Dist., 249 S.W.3d 68, 78 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

A. Yorktown's Standing to Seek Judicial Review

In its original petition, Yorktown asserted that it owned the subject property; it made no mention of Timbercreek. After HCAD filed its plea to the jurisdiction, Yorktown filed a “Supplemental Rule 28 Motion and Supplemental Response to Defendant’s Plea to the Jurisdiction,” acknowledging that the property owner on January 1, 2007, and the party responsible for paying the assessed taxes, was Timber-creek. Yorktown never claimed to be a designated agent or a lessee of Timber-creek. Since Yorktown is neither an agent nor a lessee of the property owner and it was not the actual property owner on January 1, 2007, Yorktown has no legal right to either protest the valuation or to seek judicial review of the Board’s determination of the protest. Yorktown therefore lacks standing to appeal under section 42.21(a). See Koll Bren, 2008 WL 525799, at *3-4, 2008 Tex.App. LEXIS 1521, at *12.

B. Timbercreek's Standing to Seek Judicial Review

Timbercreek, as the record owner of the subject property on January 1, 2007, had standing to protest the initial appraised value of the property. See Tex. Tax Code Ann. § 41.41(a). Despite this right and Timbercreek’s argument on appeal that it “prosecuted the administrative process,” Timbercreek never filed a protest of valuation with the Board or intervened in Yorktown’s pending protest. As a result, the Board never determined a valuation protest brought by the actual property owner. No protest proceeding exists on which Timberereek, as the property owner, can premise a right of appeal to the district court. See Koll Bren, 2008 WL 525799, at *4, 2008 Tex.App. LEXIS 1521, at *13; see also BACM 2002 PB2 Westpark Dr. LP v. HCAD, No. 14-08-00493-CV, 2009 WL 2145922, at *3-4, 2009 Tex.App. LEXIS 5528, at *10-11 (Tex.App.-Houston [14th Dist.] June 21, 2009, no pet. h.) (mem. op.); Mei Hsu Acquisition Corp. a/k/a Plaza at 610 Commons, Inc. v. HCAD, No. 01-08-00690-CV, 2009 WL 3152152, at *3, 2009 Tex.App. LEXIS 7727, at *8 (Tex.App.-Houston [1st Dist.] Oct. 1, 2009, no pet. h.) (mem. op.) (citing Roll Bren, 2008 WL 525799, at *2, 2008 Tex.App. LEXIS 1521, at *7).

Section 42.09 of the Code provides that Code procedures for adjudicating a valuation protest are the exclusive remedies available to a property owner. See Tex. Tax Code Ann. § 42.09(a) (Vernon 2008); Gregg County Appraisal Dist. v. Laidlaw Waste Sys., Inc., 907 S.W.2d 12, 16 (Tex.App.-Tyler 1995, writ denied). Failure to comply with the Code requirements, such as not protesting the initial valuation before the appraisal review board, deprives the reviewing district court of jurisdiction. See Roll Bren, 2008 WL 525799, at *4, 2008 Tex.App. LEXIS 1521, at *13 (citing Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006)). Since Timberereek failed to protest the initial valuation before the appraisal review board, the Board never determined a protest by Timberereek as the property owner. Thus Timberereek, like Yorktown, has “[no] legal right to enforce, nor any real controversy to determine,” and lacks standing to seek judicial review under section 42.21(a). Id. at *4-5, 2008 Tex.App. LEXIS 1521, at *14.

Additionally, the Texas Supreme Court has held that an administrative decision by the appraisal review board is final if not appealed to the district court within forty-five days after the party received notice of the board’s order. See Rourk, 194 S.W.3d at 502; see also Tex. Tax Code Ann. § 42.21(a). This administrative process is exclusive: a property owner’s failure to pursue administrative review of the initial valuation before the appraisal review board “deprives the courts of jurisdiction to decide most matters relating to ad valorem taxes.” Rourk, 194 S.W.3d at 502. Since no proper party appealed to the district court within forty-five days, “the trial court never acquired subject-matter jurisdiction, and the Board’s valuation became final when those 45 days expired.” Koll Bren, 2008 WL 525799, at *5, 2008 Tex.App. LEXIS 1521, at *16; see also Mei Hsu, 2009 WL 3152152, at *2-3, 2009 Tex.App. LEXIS 7727, at *7.

The Fourteenth Court of Appeals previously has held that the failure to join a necessary party, such as the property owner, to a suit for judicial review within the forty-five day window is “fatal to judicial review under section 42.21.” Taufiq ex rel. Patrick O’Connor & Assocs., Inc. v. HCAD, 6 S.W.3d 652, 654 (Tex.App.-Houston. [14th Dist.] 1999, no pet.). Even if Timberereek pursued an administrative protest, making it a proper party to seek judicial review, Yorktown did not move under Rule 28 to substitute Timberereek as the “true plaintiff’ until July 3, 2008, a date well beyond the forty-five day window.

Use of Section 4.2.21(e) to Change Yorktown to Timberereek

Like Roll Bren, BACM, and Plaza before it, Timberereek contends that the trial court has jurisdiction over the dispute since section 42.21(e)(1) of the Code allows a party to amend timely filed petitions for review to correct or change the name of a party. See Tex. Tax Code Ann. § 42.21(e)(1); Koll Bren, 2008 WL 525799, at *4-5, 2008 Tex.App. LEXIS 1521, at *14; BACM, 2009 WL 2145922, at *5, 2009 Tex.App. LEXIS 5528, at *14; Mei Hsu, 2009 WL 3152152, at *2, 2009 Tex.App. LEXIS 7727, at *5. Both this court and the Fourteenth Court of Appeals have rejected this argument. Section 42.21(e) specifies that only petitions that are “timely filed under Subsection (a) or amended under Subsection (c)” may later be amended to change or correct a party’s name. See Tex. Tax Code Ann. § 42.21(e) (emphasis added). To seek judicial review under Subsection (a), the plaintiff must be a “party who appeals as provided by [Chapter 42],” meaning the plaintiff must be the property owner, a properly designated agent, or a lessee. Koll Bren, BACM, Plaza and Yorktown all timely filed petitions for review within the forty-five day window. But none of these parties owned the relevant property on January 1 of the tax year at issue, and thus all lacked standing to seek judicial review. See Koll Bren, 2008 WL 525799, at *3-4, 2008 Tex.App. LEXIS 1521, at *12; BACM, 2009 WL 2145922, at *3-4, 2009 Tex.App. LEXIS 5528, at *10; Mei Hsu, 2009 WL 3152152, at *3, 2009 Tex.App. LEXIS 7727, at *8. Since no proper party appealed the appraisal review board’s determination within forty-five days, the trial court never acquired subject-matter jurisdiction and the Board’s order became final after the expiration of forty-five days. See Koll Bren, 2008 WL 525799, at *5, 2008 Tex. App. LEXIS 1521, at *16 (citing Rourk, 194 S.W.3d at 502); see also Mei Hsu, 2009 WL 3152152, at *2-3, Tex.App. LEXIS 7727, at *7 (“Here, like Koll Bren Fund, Plaza was not a proper party to bring the suit below and, no proper party having appealed to the district court within 45 days, the trial court properly dismissed the suit for review for want of jurisdiction.”).

Timbercreek also argues that since suit was brought in the name of “KMI Yorktown, LP as the property owner and the property owners,” the suit encompasses Timbercreek, the record legal owner of the property, as a plaintiff. The Fourteenth Court of Appeals addressed the effect of styling the case in this manner in BACM. Bringing suit in this manner still presupposes that the actual property owners are proper parties to file suit. See BACM, 2009 WL 2145922, at *5-6, 2009 Tex.App. LEXIS 5528, at *16. Timbercreek, however, failed to exhaust administrative remedies by protesting the valuation of the property before the appraisal review board and thus, it failed to satisfy the jurisdictional prerequisites to seek judicial review. See id.

Substitution Pursuant to Rule 28

Timbercreek contends that the trial court had jurisdiction to decide the case since Texas Rule of Civil Procedure 28 allows a plaintiff to sue in its assumed or “common” name, and its “true name” may be substituted later in the proceeding. According to Timbercreek, since HCAD’s records and correspondence refer to the owner of the property as “KMI Yorktown, LP” and not “KM-Timbercreek, LLC,” Yorktown is the “common name” of Tim-bercreek. Rule 28 provides:

Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on motion by any party or on the court’s own motion the true name may be substituted.

Tex.R. Civ. P. 28.

For a party to take advantage of Rule 28 and sue in its common name, “there must bé a showing that the named entity is in fact doing business under that common name.” Seidler v. Morgan; 277 S.W.3d 549, 553 (Tex.App.-Texarkana 2009, pet. denied) (emphasis added). For example, although others may commonly and informally use the name of the premises location to refer to a particular entity, this does not mean that the entity is “doing business under” the premises name as an assumed or common name. Id. Whether an entity does business under an assumed or common name is a question of fact for the trial court-. Sixth RMA Partners, L.P. a/k/a/ RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex.2003). The trial court made no explicit finding on whether Yorktown is Timbercreek’s common name, and neither party requested findings of fact on this or any other issue. When neither party requests findings of fact and conclusions of law, we imply all fact findings necessary to support the trial court’s judgment. Id. A party can challenge implied fact findings for legal sufficiency. We construe Timbercreek’s contention that the trial court erred in denying a Rule 28 substitution as a legal sufficiency challenge. See id. (“Although Sibley does not expressly present this contention as a legal sufficiency challenge to the implied finding of fact ... we will construe it as such.”). In reviewing this point, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We must credit favorable evidence if a reasonable fact-finder could do so and we must disregard contrary evidence unless a reasonable fact-finder could not. Id. at 827.

Timbercreek offered no evidence that it was doing business under the Yorktown name. Timbercreek contends that the references to Yorktown as the property owner in HCAD’s records indicate that Yorktown is Timbercreek’s common name. This argument ignores the specific language used in Rule 28, which frames the appropriate inquiry as not whether HCAD refers to or addresses an entity by a particular name, but whether that entity actually does business under the common name. Although HCAD’s appraisal records, account information, property tax statements, notice of appraised value, and order determining protest might be some evidence that HCAD refers to Timber-creek as Yorktown, without more, it is not evidence that Timbercreek conducts its business under the common name of Yorktown. See also BACM, 2009 WL 2145922, at *6-7, 2009 Tex.App. LEXIS 5528, at *19-20 (reaching the same conclusion when HCAD’s designation of BACM as the property owner instead of Parkwest Place in its records was the sole evidence of common name). In contrast, the Texas Supreme Court found sufficient evidence of operation under an assumed name in Sixth RMA Partners. The appellants in that case produced evidence that:

Sixth RMA did not have its own stationery and that ‘RMA Partners, L.P.’ letterhead was used for all the various RMA partnerships. Demand notices to note holders and referrals to collection attorneys were made on the same generic ‘RMA Partners, L.P.’ letterhead, which set forth the Columbus, Georgia business address. Further, payments on notes owned by Sixth RMA were made to ‘RMA Partners, L.P.’ and an accounting was performed to distribute funds to Sixth RMA.

Ill S.W.3d at 52. The Supreme Court considered this showing as some evidence that Sixth RMA Partners conducted business under the name RMA Partners, LP. Id.

Neither Timbercreek nor Yorktown presented comparable evidence. See id.; see also Mei Hsu, 2009 WL 3152152, at *4-5, 2009 Tex.App. LEXIS 7727, at *11-12 (holding that Plaza was not the common name of Mei Hsu when the record reflected only that Plaza sold the property to Mei Hsu three years prior to the valuation protest). Here, HCAD’s continued designation of Yorktown as the property owner instead of Timbercreek was entirely unilateral. There is no evidence in the record that Timbercreek held itself out as Yorktown or requested that HCAD refer to it as Yorktown in the appraisal records. In a similar case involving Chapter 42 of the Tax Code, we held that HCAD’s designation of one entity as an agent for another entity was inadequate to actually create the agency relationship needed for standing to protest an appraisal. See Tourneau Houston, Inc., 24 S.W.3d at 909 (“HCAD cannot designate an agent for Tourneau, Inc. Only the owner, Tourneau, Inc. can do that.”). Similarly, HCAD, by its actions alone, cannot decide that Timbercreek does business under the common name of Yorktown; only Timbercreek can establish whether it will operate its business under an assumed or common name.

We hold that there is no evidence to support Timbercreek’s contention that Yorktown is its “common name.” Thus, legally sufficient evidence supports the trial court’s implied finding that Timbercreek does not conduct business under the common name of Yorktown. We hold that the trial court did not err in denying Yorktown’s Rule 28 motion.

Since we hold that Yorktown is not the common name of Timbercreek and that the two are separate legal entities, neither Yorktown nor Timbercreek had standing to seek judicial review of the Board’s order determining protest. Yorktown, the entity that completed the administrative protest process before the Board, did not own the property on January 1, 2007. Timber-creek, the record legal owner on January 1, never completed the protest process. Since neither entity completed both requirements, we hold that neither entity had standing to seek judicial review.

Conclusion

Yorktown was not the record owner of the property on January 1, 2007, and Tim-bercreek did not complete the administrative protest before HCAD’s appraisal review board. Accordingly, we hold that neither entity had standing to seek judicial review of the Board’s order determining protest. We further hold that legally sufficient evidence exists to support the trial court’s implied finding that Timbercreek did not do business under the “common name” of Yorktown, and thus the trial court correctly rejected Yorktown’s Rule 28 motion to substitute Timbercreek as the plaintiff. We therefore affirm the judgment of the trial court.

      . Yorktown's original petition and notice of appeal list both the Harris County Appraisal District and the Appraisal Review Board of HCAD as defendants. However, the record does not indicate that the Board appeared in the trial court. HCAD represents that the Board was neither served, nor did it appear. An appraisal review board is not a necessary party to a petition for judicial review of the board’s order. Tex. Tax Code Ann. § 42.21(b) (Vernon Supp.2009). Since the Board is not a necessary party, and the record does not affirmatively demonstrate that the Board was served or that it appeared, we hold that HCAD is the only appellee properly before this court. We also hold that the judgment of dismissal is final despite not disposing of appellant’s claims against the Board. See In re Sheppard, 193 S.W.3d 181, 187 (Tex.App.Houston [1st Dist.] 2006, orig. proceeding) (holding that judgment expressly disposing of served defendants, but not unserved defendants, is final for purposes of appeal) (citing Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex.1962)).

      . We note that while this appeal was pending, the Texas Legislature amended section 42.21(a) to extend the time to file a petition for review from forty-five days to sixty days from the board's order, effective June 19, 2009. See Tex. H.B. 986, 81st Leg., R.S. (2009) (enrolled version). Although we decide this case under the law in effect at the time of Yorktown’s appeal to the district court in September 2007, we also note that Timber-creek, the true property owner, did not attempt to join as plaintiff until June 2008, well after both the did forty-five-day and the new sixty-day window.

      . Timbercreek also cites to Texas Rule of Civil Procedure 37 for the proposition that patties may be substituted or added as necessary. Rule 37 provides that ‘‘[b]efore a case is called for trial, additional parties, necessary or proper parties to the suit, may be brought in ... upon such terms as the court may prescribe.” Tex.R. Civ. P. 37. This rule cannot be used to circumvent the requirement that plaintiffs have standing, and thus are proper parties, to bring suit. See Koll Bren Fund VI, LP v. HCAD, No. 01-07-00321-CV, 2008 WL 525799, at *3, 2008 Tex.App. LEXIS 1521, at *10-11 (Tex.App.-Houston [1st Dist.] Feb. 28, 2008, pet. denied) (mem. op.). As mentioned above, since Timbercreek failed to exhaust its administrative remedies, it lacked standing and was not a proper party to file suit. Tim-bercreek cannot successfully rely upon Rule 37 to permit substitution.