IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 47-00

 

CHANCE DERRICK GONZALES, Appellant


v.



THE STATE OF TEXAS






ON THE STATE'S PETITION FOR DISCRETIONARY

REVIEW FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY


Holcomb, J., delivered the opinion of the Court, in which Meyers, Price, Womack, Hervey, and Cochran, JJ., joined. Johnson, J., filed a concurring opinion. Keasler, J., filed a concurring opinion. Keller, P.J., filed a dissenting opinion.

OPINION





Texas Family Code 52.02(b) requires a police officer taking a juvenile into custody to promptly notify the juvenile's parents. (1) The issue presented in this case is whether the First Court of Appeals erred in holding that appellant's written statement was automatically inadmissible because his parents were not notified in accordance with Family Code 52.02(b). We hold that the First Court of Appeals erred.



Relevant Facts



On February 18, 1996, appellant, Chance Derrick Gonzales, shot and killed a convenience store clerk in Houston during a botched attempt to steal beer. Appellant, who was fifteen years old at the time, was later arrested and taken to a designated juvenile processing center. (2) En route, the arresting officers gave appellant the Miranda warnings. (3) Upon arrival, the officers took appellant's written statement, in compliance with Texas Family Code 51.095(a). (4)

The entire process, from the moment of appellant's arrest until his later release to the juvenile detention facility, lasted about five hours. The arresting officer made no attempt to notify appellant's parents. Furthermore, the record suggests that appellant's parents were not notified of his arrest until he was processed into the juvenile detention facility, five to six hours after he was initially taken into custody.

After the juvenile court waived its jurisdiction over appellant, a Harris County grand jury indicted him for capital murder. See Tex. Pen. Code 19.03(a)(2). Appellant later filed a motion to suppress his written statement on the ground it was obtained in violation of Texas Family Code 52.02(b). More specifically, appellant argued that his confession must be suppressed because the police did not promptly notify his parents that he was in custody. At the conclusion of the suppression hearing, the trial court denied appellant's motion. Appellant then pled guilty to the lesser included offense of murder.

On appeal, appellant reiterated his argument that his statement must be suppressed. The First Court of Appeals agreed with appellant and held that the trial court erred in refusing to suppress the statement. "Although we find that the requirements of [Texas Family Code] section 51.095(a)(1)(A) were met, we must conclude the appellant's confession was inadmissible because of the violation of Family Code section 52.02(b)." Gonzales v. State, 9 S.W.3d 267, 271 (Tex.App.- Houston [1st Dist.] 1999). We granted the State's petition for discretionary review to determine whether the Court of Appeals erred. See Tex. R. App. Proc. 66.3(b).

In its brief to this Court, the State argues that a juvenile's written statement should not be subject to suppression without some showing of a causal connection between the failure to notify the juvenile's parents and the juvenile's execution of a written statement.



Analysis





In order for a juvenile's written statement to be suppressed because of a violation of 52.02(b), there must be some exclusionary mechanism. Unlike 51.095(a), 52.02(b) is not an independent exclusionary statute. Texas Family Code 51.17, however, provides that "Chapter 38, Code of Criminal Procedure, appl[ies] in a judicial proceeding under this title." Thus, if evidence is to be excluded because of a 52.02(b) violation, it must be excluded through the operation of Article 38.23(a).

Article 38.23(a) provides that "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas ... shall be admitted in evidence." Our decisions have established that evidence is not "obtained ... in violation" of a provision of law if there is no causal connection between the illegal conduct and the acquisition of the evidence. Roquemore v. State, __ S.W.3d__, slip op. (Tex.Crim.App. No. 722-00, delivered November 14, 2001); Chavez v. State, 9 S.W.3d 817 (Tex.Crim.App. 2000); State v. Daugherty, 931 S.W.2d 268, 269 (Tex.Crim.App. 1996); Johnson v. State, 871 S.W.2d 744, 750 (Tex.Crim.App. 1994). (5)

In light of Article 38.23(a), the State argues, and we agree, that before a juvenile's written statement can be excluded, there must be a causal connection between the Family Code violation and the making of the statement. Here, the Court of Appeals did not discuss the requirements of Article 38.23(a). Instead, the court held simply that the confession was automatically inadmissible because of the police officers' failure to notify appellant's parents, in violation of Texas Family Code 52.02(b). (6) The court relied on our decision in Baptist Vie Le v. State, 993 S.W.2d 650 (Tex.Crim.App. 1999).

In Baptist Vie Le, we considered whether a violation of Texas Family Code 52.02(a) required the suppression of an otherwise admissible statement. That section essentially provides that once a juvenile is taken into custody, he must either be taken, without unnecessary delay, to a juvenile processing center or there must be compliance with one of the other statutory options. (7) In that case, the officers took the juvenile to the homicide division of the police department, where they obtained a statement from him. The homicide division was not a juvenile processing center, nor did taking him there satisfy one of the other statutory options. Thus, we held that the statement was inadmissible since the officers failed to comply with the Family Code.

In Baptist Vie Le, we did not automatically exclude the evidence. Rather, we recognized that Article 38.23(a) provides the proper mechanism for excluding evidence obtained in violation of the Family Code. Baptist Vie Le, 993 S.W. 2d at 656 n.14. Moreover, nothing in Baptist Vie Le did or could alter the statutory requirements of Article 38.23(a). See Chavez, 9 S.W.3d at 819-820; Daugherty, 931 S.W.2d at 269; Johnson, 871 S.W.2d at 750. Furthermore, Baptist Vie Le relied on and reaffirmed our previous decision in Comer v. State, 776 S.W. 2d 191 (Tex.Crim.App. 1989).

In Comer we recognized - and our subsequent holdings in Rouquemore, Chavez, Johnson, and Daugherty clarified - that an exclusionary analysis under Article 38.23(a) necessarily entails a causal connection analysis. (8) There, the appellant argued that his confession should have been suppressed because the police officer failed to comply with Family Code 52.02(a). (9) We concluded that detaining a juvenile for approximately three hours to obtain his confession violated the 52.02(a) requirement that a juvenile be taken immediately to either an authorized officer of the juvenile court or to a juvenile detention center. However, we made it clear that a violation of 52.02(a) does not necessarily make a statement given by the child inadmissible. Comer, 776 S.W. 2d at 196. (10) We further held that if evidence obtained in violation of the Family Code is to be excluded, Article 38.23(a) is the proper mechanism for exclusion. Id. at 196.

In the instant case, the Court of Appeals failed to consider whether there was a causal connection between the illegality and the acquisition of the evidence. Therefore, we vacate the judgment of the Court of Appeals and remand the cause to that court for further proceedings consistent with this opinion. (11)



DELIVERED FEBRUARY 13, 2002

PUBLISH



1. Texas Family Code 52.02(b) provides:



(b) A person taking a child into custody shall promptly give notice of his action and a statement of the reason for taking the child into custody, to:

(1) the child's parent, guardian, or custodian; and

(2) the office or official designated by the juvenile court.

2. See Tex. Fam. Code 52.02(a) (" Except as provided by Subsection (c), 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 ....").

3. Miranda v. Arizona, 384 U.S. 436 (1966).

4. Texas Family Code 51.095(a) provides that "the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if " certain procedural requirements are followed. The requirements are essentially that the statement be in writing, a magistrate warn the child of his rights (to have an attorney present, to remain silent, to have an attorney appointed, to terminate the interview), the statement be signed in the presence of a magistrate who is fully convinced that the child is knowingly and voluntarily making the statement and waiving his rights, and finally, the magistrate must certify that he examined the child outside the presence of law enforcement officers. Here, it is not argued, nor is there any question, that the requirements of 51.095(a) were followed.

5. G. Dix & R. Dawson, 40 Texas Criminal Practice and Procedure 4.57 (2d ed. 2001) ("Article 38.23(a)'s requirement that the challenged evidence have been obtained in violation of the law can be fairly read as imposing some sort of requirement of a causal relationship between the violation of the legal requirement and the "obtain[ing]" or acquisition of the evidence at issue.") (emphasis in original).

6. Many of the lower courts, including the Court of Appeals here, have assumed that a violation of the Family Code automatically leads to the exclusion of evidence. See, e.g., Anthony v. State, 954 S.W. 2d 132, 136 (Tex. App.- San Antonio 1997, no pet.) ("An officer detaining a juvenile must comply with each of the provisions of the Family code . . . Violation of these statutes renders illegally obtained evidence inadmissible." ). This is not true. Evidence can only be excluded through the operation of an exclusionary mechanism, either Article 38.23(a) or some other exclusionary statute.

7. Texas Family Code 52.02(a) provides the following options:



(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 court if there is probable cause to believe that the child engaged in delinquent conduct or conduct indicating a need for supervision;



(3) bring the child to a detention facility designated by the juvenile court;



(4) bring the child to a secure detention facility as provided by Section 51.12(j);



(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; or



(6) dispose of the case under Section 52.03.

8. We implicitly held that a "causal connection" analysis is appropriate. We stated that "[w]e cannot say with any degree of confidence that had [Comer] been transported 'forthwith' to the custody of the juvenile detention facility, where he may have had access to, if not counsel, at least his parents, ... he would have still chosen to confess his crime." Comer, 776 S.W. 2d at 197. See G. Dix & R. Dawson, 41 Texas Criminal Practice and Procedure 13.339 (2d ed. 2001) ("This [statement in Comer] appears to be a conclusion that the evidence fails to show the lack of a causal connection between the statutory violation and the making of the statement.").

9. At the time we wrote Comer, 52.02 stated that persons taking a juvenile into custody must take certain steps "without unnecessary delay and without first taking the child anywhere else." The Legislature subsequently modified the statute to read: "without unnecessary delay and without first taking the child to any place other than a juvenile processing office designated under Section 52.025."

10. "We have also held that an otherwise valid confession following a detention that is illegal as a matter of state law will not be excludable under Article 38.23 ... where it is determined that the taint of the illegality has dissipated by the time the confession was taken." Comer, 776 S.W.2d at 196.

11. What is before us today is the Court of Appeals' opinion on rehearing. The Court of Appeals' opinion on original submission held that the Family Code violation here "does not provide a grounds (sic) to exclude the appellant's confession, because [Family Code] section 51.095(a)(1)(A) addresses the proper procedure for obtaining a written statement from a juvenile." Gonzales, 9 S.W.3d at 271. That statement seems to be a holding that section 51.095(a) "trumps" Article 38.23(a), i.e., if a juvenile's statement is admissible under section 51.095(a), then it cannot be excluded by operation of Article 38.23(a). It is unnecessary to address this issue, and our decision today should not be read as foreclosing consideration of this issue in a future case.