Petree v. State

¶1dissenting.

¶2I dissent. The majority has written at great length to demonstrate that the conduct of which appellant was charged is repulsive. However, that matter is not in issue; the requirement of a fair and impartial trial in full compliance with the provisions of the law is never diluted simply because the offense is perceived as particularly heinous.

¶3Likewise, the majority has gone to some length in an effort to demonstrate that appellant’s confession was voluntary. This conclusion again begs the issue: Did the authorities comply with the black letters of the statute? Plainly, they did not. The confession was inadmissible; its use in evidence requires reversal of the conviction.

¶4Specifically, the statute clearly requires that the accused juvenile appear twice before the magistrate. Although not entirely clear, it is the apparent intendment of section 51.09(a)(1) of the Texas Family Code that the first appearance be made as soon as the juvenile is identified as a probable suspect and before serious interrogation is commenced. Thereafter, if the magistrate permits the interrogation and if the interrogation produces a confession that is reduced to writing, a second trip before the magistrate is required, at which time the juvenile must receive a second set of warnings. Only after the second set of warnings have been given may the juvenile’s signature be taken; this must be done in the presence of the magistrate and outside the presence of any law enforcement personnel.

¶5This is the only view supported by the history of the legislation. Before 1975, section 51.09 made the confession of a juvenile inadmissible unless an attorney was present at the interrogation and also witnessed the signature of the juvenile. Lovell v. State, 525 S.W.2d 511, 513 (Tex.Crim.App.1975). Furthermore, strict compliance with the statute was required. Id. at 515 (“The confession, having been taken in violation of Section 51.09, is inadmissible as a matter of law.”).

¶6The statute was amended in 1975 in response to complaints by law enforcement authorities that its requirements exceeded constitutional minimums and made juvenile confessions practically impossible to attain. Instead, the legislature substituted the current requirement that the juvenile be brought before the magistrate twice. Carter v. State, 650 S.W.2d 793, 798-99 (Tex.Crim.App.1983) (Clinton, J. concurring).

¶7In the case at hand, appellant was interrogated at length before he was taken in front of the magistrate, a violation of the statute no matter how uncoerced and permissive. When appellant confessed, the officers caused him to write out his confession in his own handwriting before the magistrate arrived, another violation of the statute. Appellant was then presented to the magistrate in the first instance accompanied by his confession as a fait accom-pli. The magistrate, after giving the statutory warnings and being assured that the confession was voluntary, witnessed appellant’s signature outside the presence of the officers. Although appellant’s post-confession appearance was entirely regular, no amount of fairness in the second appearance before the magistrate can remedy the complete omission of a pre-confession appearance.

¶8The majority has misstated the issue of the case.1 The central issue is whether the *515statutory command for two trips before the magistrate was observed. Admittedly, it was not. The subsidiary issue is whether the failure to observe the two-trip requirement precludes admission of the confession. Plainly, if the statute is to be given the role that was intended by the legislature, the confession must be excluded. The legislative history states:

Title III of the Family Code was enacted in 1973 with the stated purpose of assuring a fair hearing in which the constitutional and other legal rights of the parties are recognized and enforced. Y.T.C.A., Family Code, Section 51.01. The Legislature was aware of the admonitions of the United States Court in Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), that the admissions and confessions made by a child require careful inquiry and special caution, and in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that the juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and prepare to submit it. The child “requires the guiding hand of counsel at every step of the proceedings against him.” The Gault decision extended the constitutional right to remain silent, and thereby to resist compulsory self-incrimination, to children. Title III of the Family Code is an enactment of the above concepts; it determines and protects the best interest of the child, assures the constitutional and other legal rights of the child are recognized and enforced, and permits waiver of the child’s rights only under certain conditions. In re R.E.J., 511 S.W.2d 347 (Tex.Civ.App. — Houston [1st Dist.] 1974). The Family Code underscores its protections by providing that, in the adjudication hearing provided by Title III, an extrajudicial statement which was obtained without fulfilling the requirements of this title or of the Constitution of this State or the United States may not be used in such hearing. Y.T.C.A., Family Code, Section 54.03(e). This section augments Section 51.09 but does not limit it. See In re F.G., 511 S.W.2d 370 (Tex.Civ.App. — Amarillo 1974). Since the enactment of the Family Code, the courts have concluded that the Legislature obviously provided a safeguard for children, including the right to silence and an absolute right to an attorney during custodial interrogations, unless with an attorney the child waives that right in accordance with the terms of the statute. The “waiver” executed without the child’s attorney is a nullity.

¶9Lovell, 525 S.W.2d at 514. Admittedly, Lovellwas addressing the pre-1975 version of section 51.09 requiring the presence of an attorney during interrogation of the juvenile. However, the policy considerations underlying the original and the revised statute are the same — the protection of juveniles. No matter how extensive the showing of voluntariness, nothing obscures the fact that this juvenile did not receive the two-appearance protection extended to him by the statute. For us to brush aside this fundamental defect in the proceedings is to invite future omissions to follow the command of the law.

¶10The only significant question raised by this case is whether the subsequent authority of Griffin v. State, 765 S.W.2d 422 (Tex.Crim.App.1989), has sounded a retreat from Lovell’s, declaration of principle as quoted above. Griffindeals with the double confession problem, whether a prior confession obtained in the absence of legal requirements or proper legal form affects a subsequent confession that, standing alone, suffers from no impediment. Griffinis presently inapplicable because here, there *516was no second confession and the required pre-confession appearance before the magistrate never occurred.2

¶11I refuse to join in the unstated but necessarily implicit holding of our majority to the effect that if the post-confession trip before the magistrate is fair and exhibits voluntary action on the part of the juvenile, the statutory requirement of a preliminary trip before serious interrogation begins may be disregarded as superfluous. With respect to those of tender age, the law requires both pre-confession and post-confession appearances before the magistrate. I therefore dissent. The case should be reversed and remanded for a new trial that does not rely upon the unlawfully secured confession.