IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 337-01

 

MARIE LISETTE GARCIA VEGA, Appellant


v.



THE STATE OF TEXAS






ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

HIDALGO COUNTY


Cochran, J., filed a concurring opinion in which womack and holcomb, J.J., joined.

O P I N I O N



In 2001, the Texas Legislature amended Article 38.22 of the Texas Code of Criminal Procedure. That amendment provided that Texas courts may admit an accused's custodial statement that was obtained in another state in compliance with that state's laws, even though the taking of the statement did not comply with all of the requirements of Article 38.22. Presumably, that legislative change was a reaction to this Court's opinion in Davidson v. State, 25 S.W.3d 183 (Tex. Crim. App. 2000). The amendment reflects the common sense notion that we cannot (and should not) expect police officers in other jurisdictions to know and apply Texas confession law when they take a suspect's statement in their own jurisdiction. Those officers should, instead, comply with the applicable laws of their own jurisdiction. (1) If they do so, article 38.23, section 8 explicitly permits Texas courts to admit the resulting statements.

Although the Legislature amended the Code of Criminal Procedure to effect this change, it did not amend the corresponding Family Code provision concerning the admissibility of a juvenile's statements. (2) We can speculate about its reasons, but the fact remains that the Legislature did not amend Family Code section 51.09 to provide for the admissibility of a juvenile's custodial statements taken in compliance with another jurisdiction's law concerning a juvenile's statements. Until and unless the Legislature acts, we should follow the applicable Family Code provisions and our previous choice-of-law decisions.

Therefore, I join the Court's opinion.

Cochran, J.

Filed: June 26, 2002

Publish







1. See, e.g., Robert O. Dawson, Texas Juvenile Law 43 (5th ed. 2001 Supp.) ("it seems a much more sensible rule to judge the admissibility of a statement in accordance with the circumstances in existence at the time and place of questioning than later retroactively in accordance with the law of the forum state").

2. The same rationale that led the Legislature to amend Article 38.22 might well apply to the taking of a juvenile's statements. Perhaps the Legislature simply overlooked the juvenile's confession statute. Or perhaps the Legislature intended that its Section 8 amendment to article 38.22 also apply to statements given by juveniles in foreign jurisdictions who are later certified to stand trial as adults, because Section 8 of article 38.22 begins with the statement:



Notwithstanding any other provision of this article, a written, oral, or sign language statement of an accused made as a result of a custodial interrogation is admissible against the accused in a criminal proceeding in this state if ...



Tex. Code Crim. Proc. art. 38.22 8 (Vernon Supp. 2001) (emphasis added). See Dawson, supra at 44 (suggesting that section 8 of article 38.22 "effectively abrogates [court of appeals' decision in] Vega, but leaves unchanged the possibility that a court may follow Vega in a juvenile case in which the child was not certified to criminal court for prosecution as an adult").

In any event, this provision applies only to the admission of statements made on or after September 1, 2001. Appellant gave her statement to Illinois police on December 28, 1994. Thus even if the Legislature intended for this provision to apply to statements made by a juvenile who is later certified to stand trial as an adult, it would not apply to appellant's statement, which she made more than five years before the amendment's effective date.