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


Johnson, J., joined by Holland, J. dissenting.



D I S S E N T I N G  O P I N I O N



I respectfully dissent. Section 52.02(a) of the Texas Family Code provides that a child taken into custody must be taken, without " unnecessary delay," to a juvenile processing office. The majority characterizes the delay in this case as de minimis and appears to hold that, as a general matter, a delay of forty-five to fifty minutes is "necessary" when due to police efforts to save a victim's life and secure a crime scene. Ante, at ___ (slip op. at 6-8). If the officers in this case were necessarily involved in such activities, the majority's holding would stand up to scrutiny. The record shows, however, that this is not the case.

It is true that the delay here was significantly shorter than in other cases in which unnecessary delay was found. Comer v. State, 776 S.W.2d 191 (Tex. Crim. App. 1989) (delay of about three hours); In re D.M.G.H., 553 S.W.2d 827 (Tex. Civ. App. 1977, no writ) (delay of almost ten hours). However, as both the majority and the court of appeals note, whether there was an "unnecessary delay" in taking a minor to a juvenile processing center is a determination which must be made on a case-by-case basis. Ante, at ___ (slip op. at 6); Contreras v. State, 998 S.W.2d 656, 660 (Tex. App.--Amarillo 1999). Yet, the majority fails to make its determination on this basis. The evidence, as set out in the record of this case, demonstrates that the delay was unnecessary. (1)

According to the testimony presented at trial, Officers Farren and Coleman were the first officers to arrive on the scene. At about 3:00 a.m., they got out of their vehicles and were approached by appellant. After appellant made incriminating statements to the officers, the officers decided that she should be transported to the Juvenile Division of the Police Department. Appellant was taken to the officers' car and searched using a wand metal-detector. Officer Heaster and his partner, Officer Wertz, arrived at the scene at about 3:05 a.m. Appellant was placed in their patrol car. Employees of the Fire Department were already at the scene and were attempting to treat the victim when Charles Olsen and his partner, employees of Amarillo Medical Services, arrived at the scene and began treating the victim. Officer Haley collected evidence, and photographed, videotaped, and did a sketch of the crime scene.

Heaster testified that he went inside the residence briefly to try to assist with first aid, but he did not stay because the Fire Department and Amarillo Medical Services were already present and working on the victim. Within a few minutes, the victim was taken from the scene. Heaster then spent ten to fifteen minutes taking photographs inside the residence and searching the area from where appellant had been seen coming. Heaster and another officer, Sergeant Trupe, went to the school grounds across from the residence and spent about another three to five minutes searching for any possible evidence. Heaster then spoke with appellant's sister for a minute or less and then went back to his patrol car. He searched appellant and then took her to the Juvenile Division. However, Heaster also testified that "mainly" his duty was to sit with appellant in the patrol car.

Although there was testimony that some of the officers attempted to help treat the victim, it is clear that trained medical personnel were at the scene and treating the victim early on. There were at least six officers on the scene, with at least four present within five minutes of the first contact with appellant, and it is clear that the police were familiar with the requirements of 52.02. Considering the number of officers at the scene(6), the number of police vehicles at the scene (4-5), the early arrival of paramedics, the fact that part of the delay included a search of school grounds across from the scene, and Heaster's testimony that he merely sat with appellant in the patrol car for some period of time, the delay between when appellant was taken into custody (about 3:05 a.m.) and when she was finally transported from the scene (about 3:46 a.m.) to the Juvenile Division (about 3:55 a.m.) cannot be justified as "necessary." Given all the evidence, I cannot say that the court of appeals erred in holding that the delay in taking appellant to the Juvenile Division was unnecessary.

I would affirm the judgment of the court of appeals. I dissent.

Johnson, J.











Date Delivered: June 27, 2001



Publish

1. The majority asserts that I have "misapplie[d] the standard of review by viewing the evidence in the light least favorable to the trial court's ruling . . . ." Ante, at ___ (slip op. at 8-9). To the contrary, by accepting as true everything testified to by the state's witnesses in support of the claim of "necessary delay," I have applied the appropriate standard of "in the light most favorable to the trial court's ruling."