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


Johnson, J., filed a concurring opinion.

C O N C U R R I N G  O P I N I O N



I concur in the judgment of the majority. I would differentiate the violation in this case from the violations in Vie Le v. State, 993 S.W.2d 650 (Tex. Crim. App. 1999) and Roquemore v. State, 60 S.W. 3d 862 (Tex. Crim. App. 2001). In Vie Le, the statement was obtained at the homicide department, which was not one of the places in which the taking of a statement from a juvenile was permitted. It was therefore obtained in violation of the Family Code 52.02(a). We noted that "the Legislature intended to restrict involvement of law enforcement officers to



the initial seizure and prompt release or commitment of the juvenile offender [in accordance with 52.02(a)] . . . ." Vie Le at 655, quoting Comer v. State, 776 S.W.2d 191, 195 (Tex. Crim. App. 1989). The Family Code sections at issue, 52.02(a) and 52.025, expressed that intent by limiting where law enforcement could take the child, when, and for what purpose. It is reasonable to conclude that the narrow limits on law enforcement involvement were a legislative effort to balance the competing interests of society's protection from the criminal acts of juveniles and the juvenile's protection from the use of coercion to obtain a statement. See, e.g., Comer at 193, 196. A violation of the Family Code that raises an issue as to the voluntariness of a statement by a juvenile because of possibly coercive conditions which produced that statement, implicates the standards set out in 51.095.

In Roquemore, the challenged statement was not the result of custodial questioning or, indeed, any questioning at all. Roquemore at 868 ("The oral statements were not the result of any questions or conduct by [the police officer]."). The provisions of 51.095 did not, therefore, apply. As to the stolen property, we found a violation of 52.02(a) and its apparent expression of legislative intent to restrict involvement of law enforcement officers to the initial seizure and prompt release or commitment of the juvenile offender.

Section 51.095 sets out what must be done before the statement of a juvenile will be admissible: "the statement of a child is admissible in evidence . . . if: . . . ." The reasonable inference is then that if the stated conditions are not met, the statement of the child will not be admissible. There is a clear legislative intent to suppress the statement if the state violates the statute.

On the other hand, in this case the alleged violation of 52.02(b) was of a legislative





instruction which does not regulate the involvement of law enforcement officers in the initial seizure and prompt release or commitment of the juvenile offender. There is, therefore, no implication of the provisions of 51.095 and no clear legislative intent to suppress the statement under that section if the state violates the notification requirement. The evaluation of the admissibility of a statement obtained without notice, or attempted notice, to the enumerated persons and agencies must therefore be done under the requirements of Tex. Code Crim. Proc. 38.23, as mandated by Tex. Fam. Code Ann. 51.17.



Johnson, J.



Date Filed: February 13, 2002

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