IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1682-99

DANA MARIE CONTRERAS, Appellant


v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

POTTER COUNTY


Hervey, J., delivered the opinion of the Court, joined by Keller, P.J., Womack, Keasler, and Holcomb, J.J. Price, J., concurs in the judgment of the Court. Meyers, J., filed a dissenting opinion. Johnson, J., filed a dissenting opinion, joined by Holland, J.

O P I N I O N









A jury convicted the appellant of murder and sentenced her to 40 years confinement. At the time of the offense, the appellant was a fifteen-year-old juvenile; she was certified and tried as an adult in district court. Finding that her written statement was taken in violation of the Texas Family Code and was therefore inadmissible, the Court of Appeals reversed the judgment of the trial court and remanded the case for further proceedings. See Contreras v. State, 998 S.W.2d 656, 657 (Tex.App.- Amarillo 1999, pet. granted). We find the trial court properly admitted the appellant's statement and, therefore reverse the judgment of the Court of Appeals.

Viewed in the light most favorable to the trial court's ruling admitting the appellant's written statement, (1) the evidence shows that appellant murdered her "stepfather" in the early morning hours of January 11, 1996, by stabbing him in the chest with a carving knife as he lay sleeping in bed. The police arrived at the residence at approximately 3 a.m. in response to a 911 call placed by the appellant. The appellant approached police from a field and said that she "stabbed him" after an officer asked her what had happened. The police arrested the appellant and placed her in the back of a patrol car and transported her to a duly designated juvenile office about 45 to 50 minutes after the arrest. The Court of Appeals's analysis of the delay in transporting the appellant focused on this forty-five minute period.

During this period, the police made attempts to save the victim's life, and they "secured the scene." The police did not interrogate or attempt to obtain a written statement from the appellant during this time.

The officer in charge of the crime scene, Farren, testified that trying to save the victim's life and "securing the scene" were police priorities.

A. Our first priority is to determine whether, in fact, a crime has been committed. Once we determine a crime has been committed, then it would be the--after giving assistance to anybody who needs aid, then we would secure the scene.

This officer testified that "securing the scene" included taking steps to preserve "all the evidence at that scene" and to insure the appellant's safety and the safety of the police officers present at the scene.

Q. Let me back up a second. Have you testified in front of this jury about going back to [appellant], shining a flashlight on her hands?



A. No, sir, I have not.



Q. Did that happen that night?



A. Yes, sir, it did.



Q. Do you remember what time that happened?



A. It was probably, oh, probably 25 minutes after we arrived. Once I had her secured in the back of the patrol car, we went ahead and approached the house. Once we determined that it was safe to enter the house, we entered and we discovered the victim in the condition he was in. We called for an ambulance to go ahead and come into the location. From viewing the victim, it was obvious that he was in very critical condition. At that time, we made a determination that we would begin first aid on the victim, moved the victim from the bed and began to do CPR on the victim. Probably three to five minutes later, the fire department arrived. They took over the first aid to the victim.



At that time, it was determined that [appellant] should be transported down to the Juvenile Division for further processing. But before we did so, I wanted [appellant] checked for any additional weapons or any other physical evidence that might connect her to this crime.

This officer testified that "securing the scene" also included taking steps to prevent the destruction of evidence.

Q. Now, you had an occasion to have a discourse with [appellant] later about some gloves; is that correct?



A. Well, after we got inside the scene and discovered what we had and after her [oral] statement that she had stabbed him, we--a decision was made that she should be transported to the Juvenile Division of the Amarillo Police Department. Prior to her being transported, I wanted her searched for any additional weapons for not only our safety, but her safety, and if she had any further evidence on her, including any blood that might have been transferred from the knife or the victim onto her. I wanted to make sure that wasn't destroyed either by simply wiping it off or wetting her hands with her tongue or any possible way she could destroy this evidence.



So we had her removed from the car. She--a metal detector wand was used to scan her for any additional metal objects, one, because she was a female, and two, because she was a juvenile.



At that time, I asked her to show me her hands, at which time she put out her hands. I shined a flashlight over them and she said, 'Oh, no, I was wearing gloves.'

Appellant gave a voluntary, written statement after the police transported her to a juvenile office. The trial court admitted this written statement into evidence.

The Court of Appeals held that the 45 to 50 minutes it took the police to transport the arrested appellant from the crime scene to a juvenile office was an "unnecessary delay" and, therefore, violated Section 52.02(a)(2) of the Texas Family Code. (2) See Contreras, S.W.2d at 661. The Court of Appeals decided that the police "investigating the stabbing" was "an inadequate justification for the delay in transporting [appellant] to a duly designated juvenile office." See id.

The Court of Appeals also found that admission of appellant's written statement harmed her because it was inconsistent with her necessity defense at trial and, therefore, could have contributed to the trial court's decision to deny appellant's requested jury instruction on this defense. See id. at 661-64. This, according to the Court of Appeals, compromised "the integrity of the process leading to [appellant's] conviction." See id. at 664; but cf. Harris v. New York, 91 S.Ct. 643, 645-46 (1971) (shield provided by prophylactic rule requiring exclusion of voluntary and reliable statements "cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances").

Despite the harm standard the Court of Appeals purported to apply, whether the admission of the appellant's written statement had a "substantial or injurious effect" or a "very slight effect" on the jury's verdict, the Court of Appeals could not say the content of the written statement had no effect upon the jury in its determination of guilt. See Contereas, 998 S.W.2d at 661.

We granted the State's petition for discretionary review to decide: 1) whether the Court of Appeals erred in determining that the appellant's written statement was inadmissible because she was not transported "without unnecessary delay" to a juvenile processing office; and 2) whether the Court of Appeals erred in finding harm in the admission of said statement. Because we find that the Appellant was transported to a designated juvenile facility without unnecessary delay, we find it unnecessary to address the second ground for review.

Laws governing juveniles accused of delinquency have been enacted by the Legislature and are set out in Title 3 of the Family Code. See Matter of D.M.G.H., 553 S.W.2d 827, 828 (Tex.Civ.App.-El Paso 1977, no writ). That title of the Family Code is designed to serve the dual role of protecting the public while insulating children from the taint of criminality. See Comer v. State, 776 S.W.2d 191, 193 (Tex.Crim.App. 1989). "Police officers, Courts, and others involved in the handling of juveniles are bound to comply with the detailed and explicit procedures enacted by the Legislature in that Code." See Matter of D.M.G.H., 553 S.W.2d at 828. "Where the officer deems it necessary to take the child into custody, 52.02(a)...dictates what he must then do 'without unnecessary delay[.]'" See Comer, 776 S.W.2d at 194; see also Baptist Vie Le v. State, 993 S.W.2d 650, 655 (Tex.Crim.App. 1999)(officers must follow "very specific actions" set up by the Legislature in dealing with juveniles; this case also explicitly reaffirms Comer); see also Anthony v. State, 954 S.W.2d 132, 134 (Tex.App.-San Antonio 1997)(when detaining juveniles, officers must follow 52.02); see also Matter of R.R., 931 S.W.2d 11, 14 (Tex.App.-Corpus Christi 1996, no writ)(stating that those dealing with juveniles are "bound" by the Family Code's "explicit procedures"); see also State v. Langley, 852 S.W.2d 708, 709 (Tex.App.-Corpus Christi 1993, pet. ref'd)(stating that the Texas Family Code dictates what officers must do when delivering juveniles to the court).

In Comer, a sixteen year old juvenile was arrested at 6:24 p.m., driven to a police station to pick up some forms, taken to the home of a Justice of the Peace to have warnings administered, returned to the police station where a written statement was taken, returned to the home of the Justice of the Peace to have the statement signed, and finally, at approximately 9:30 p.m., he was taken to a juvenile detention center. See Comer, 776 S.W.2d at 192-93. The Comer court found that this police action violated Family Code 52.02(a) and as a result, the statement taken should not have been admitted into evidence. See id. at 196-97. While the rules in Comer apply when juveniles are taken into custody, the facts before us are distinguishable- no interrogation of the juvenile took place before Family Code 52.02(a) compliance had been met by the officers involved and officers "immediately" determined that compliance with 52.02(a) was necessary. There were no attempts by the police to interrogate the appellant and no police action taken that could be construed as coercive before they complied with the requirements of 52.02(a) of the Family Code.

Section 52.02(a)(2) requiring the police to transport an arrested juvenile to a designated juvenile office without "unnecessary delay" by its very terms contemplates that "necessary" delay is permissible. This can only be determined on a case by case basis. The issue that we address de novo in this case is whether the 45 to 50 minute delay attributable to police efforts to save the victim's life and to police efforts to "secure the scene" is a "necessary" delay. See Guzman, 955 S.W.2d at 88-90 (Courts of Appeals decisions in cases like this may be reviewed de novo by this Court).

We hold that the de minimis 45 to 50 minute delay in this case attributable to these police efforts is a "necessary" delay. No one should dispute that delay attributable to trying to save the victim's life was a "necessary" delay. The Court of Appeals failed to factor this into its analysis of the "unnecessary delay" issue. See Contreras, 998 S.W.2d at 661 (deciding only that police "investigating the stabbing" was inadequate justification for the delay).

Characterizing the delay as attributable only to the police "investigating the stabbing" does not thoroughly account for the record evidence. The evidence supports a finding that the delay in this case was also attributable to the police "securing the scene." The trial court could have reasonably inferred from the testimony set out above that "securing the scene" was "necessary" to preserve the integrity of the crime scene and to prevent the destruction of evidence. This legitimate and necessary police activity of "securing the scene" likewise justifies the de minimis delay in this case.

Our decision in this case is consistent with Family Code policies discussed in this Court's decision in Comer. Unlike Comer where the police interrogated the arrested juvenile suspect for three hours before the police complied with relevant Section 52.02 Family Code provisions, the police in this case "immediately" decided upon the appellant's arrest that compliance with these statutory provisions was required. See Comer, 776 S.W.2d at 193-94, 196 (Section 52.02 Family Code provisions must be complied with "immediately" upon taking a juvenile into custody).

Police involvement with the appellant was narrowly circumscribed to "securing the scene" which was necessary and legitimate police activity. See id. at 196 (Family Code provisions intend to narrowly circumscribe police involvement with arrested juveniles). The police did not stray beyond "securing the scene" by interrogating and attempting to obtain a statement from appellant during the 45 to 50 minutes that she was detained in the back of the patrol car. A contrary decision would fail to properly weigh the "competing purposes" in cases like this. See id. at 193 (discussing Family Code's "competing purposes").

Judge Johnson's dissenting opinion misapplies the standard of review by viewing the evidence in the light least favorable to the trial court's ruling admitting appellant's statement. The dissenting opinion does this by focusing on evidence that arguably does not support the trial court's ruling and by ignoring evidence that supports the trial court's ruling.

For example, the dissenting opinion discounts what it characterizes as "testimony that some of the officers attempted to help treat the victim," and emphasizes some testimony "that trained medical personnel were at the scene and treating the victim early on." Contreras, slip op. at 3 (Johnson, J., dissenting). This, however, in no way undermines a finding that some of the delay was due to police efforts to save the victim's life. Moreover, the evidence set out in the dissenting opinion about what the police were doing at the crime scene arguably lends support to a finding that these were police efforts to "secure the scene." Examples of this are photographing the crime scene and searching the field for weapons to prevent their possible loss.

Notwithstanding this, the record in this case is not at all clear about which officer was doing what at which time. Even the dissenting opinion cannot determine from this record the number of police vehicles at the scene. See Contreras, slip op. at 3. What is clear, however, is that the testimony of the officer in charge of the crime scene, Farren, supports findings that the entire delay was attributable to police efforts to save the victim's life and to "secure the scene" which included steps to prevent the destruction of evidence and to provide for the safety of appellant and the officers at the scene. The dissenting opinion does not discuss Farren's testimony and it makes no claim that Farren's testimony fails to support these findings even though it does acknowledge that efforts to "secure the scene" and to save the victim's life is a necessary delay.

The judgment of the Court of Appeals is reversed and this case is remanded there for further proceedings consistent with this opinion.

HERVEY, J.



Delivered: June 27, 2001

Publish.

1. See State v. Ballard, 987 S.W.2d 889, 891 (Tex.Cr.App. 1999) citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App. 1997)(setting out appellate standard of review in cases like this).

2. Section 52.02(a)(2), in relevant part, required the police to take the arrested appellant to the designated juvenile office "without unnecessary delay."