Vasquez v. State

• Decision Date: 02 October 1991
• Docket Number: No. 053-84,053-84
• Citation: 816 S.W.2d 750
• Parties: Michael VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 750

816 S.W.2d 750

Michael VASQUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 053-84.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 2, 1991.

Allen C. Isbell, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft and George Lambright, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

Appellant's motion for rehearing for discretionary review denied.

CLINTON, Judge, dissenting on Denial of Appellant's Motion for Rehearing.

Appellant was a juvenile when taken into custody by law enforcement officers without an arrest warrant but with probable cause to believe he had committed the offense of capital murder; he was tried as a "certified adult" but denied his claim that some evidentiary materials proffered by the State were fruits of an illegal warrantless arrest. The court of appeals affirmed the judgment of conviction. Vasquez v. State, 663 S.W.2d 16 (Tex.App.--Houston [1st] 1983); in a plurality opinion this Court affirmed that judgment. Vasquez v. State, 739 S.W.2d 37 (Tex.Cr.App 1987). ¹

In his motion for rehearing appellant presents two grounds, the first of which (as paraphrased) directly challenges the reasoning of the plurality opinion in affirming the judgment, viz:

The opinion is wrong in holding that a 'certified adult' is not entitled to the protection of Article 14.04, V.A.C.C.P. from a warrantless arrest that is vouchsafed to every adult.

Motion at 2. We should grant rehearing solely on that ground. ²

"A minor has the same constitutional right to be secure in his person from unreasonable seizures as has an adult. The 14th Amendment and the Bill of Rights protect minors as well as adults. In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967); Continental Casualty Co. v. Miller, 135 S.W.2d 501 (Waco Civ.App.1940, n.w.h.)."

Ciulla v. State, 434 S.W.2d 948, at 950 (Tex.Civ.App.--Houston [1st] 1968), no writ history; Lanes v. State, 711 S.W.2d 403, at 405 (Tex.App.--Beaumont 1986), reversed on other grounds, Lanes v. State, 767 S.W.2d 789 (Tex.Cr.App.1989) (constitutional probable cause requirements apply fully to juvenile arrest). In re R.C.M. v. State, 660 S.W.2d 552, at 553 (Tex.App.--San Antonio 1983), refused n.r.e.

As with those constitutional rights, so also Article 14.04, V.A.C.C.P., like the three preceding articles authorizing the warrantless arrest of an "offender," is no respecter of persons. Regardless of age, one is arrested "when [one] has been actually placed under restraint or taken into custody by an officer[.]" Article 15.22, V.A.C.C.P.

The question in this cause is whether a "child" as defined in V.T.C.A. Family Code, § 51.02(1), is stripped of those rights and protections in a criminal prosecution for a felony offense after waiver and transfer proceedings in a juvenile court, all flowing from a warrantless arrest by law enforcement officers for an offense arising from the same transaction. There is a dearth of caselaw under previous legislation addressing this issue, probably because a child was believed not to possess many rights in juvenile proceedings until the Supreme Court confirmed a broad panoply of protections in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). See, e.g., Ciulla v. State, 434 S.W.2d 948 (Tex.Civ.App.--Houston [1st] 1968), no writ history (illegal warrantless arrest of juvenile for traffic violation tainted fruits of ensuing search); Leach v. State, 428 S.W.2d 817 (Tex.Civ.App.--Houston [14th] 1968), no writ history (unwarned inculpatory admissions not admissible); Choate v. State, 425 S.W.2d 706 (Tex.Civ.App.--Houston [1st] 1968), no writ history (inculpatory statements before waiver of privilege against self incrimination inadmissible); cf. Ballard v. State, 192 S.W.2d 329 (Tex.Civ.App.--Amarillo 1946), no writ history; In re Fisher, 184 S.W.2d 519 (Tex.Civ.App.--Amarillo 1944), no writ history. Therefore, the answer must be found in Title 3 of the Family Code in light of legislative history and developments leading to its enactment. ³

V.T.C.A. Family Code, § 52.01(a), expressly authorizes a law enforcement officer--"a peace officer as defined by Article 2.12, [V.A.C.C.P.]," id., § 51.02(8)--to take a child into custody without an order of a juvenile court in two situations, viz:

"(2) pursuant to the laws of arrest;

(3) ... if there are reasonable grounds to believe that the child has engaged in delinquent conduct or conduct indicating a need for supervision;"

At the time appellant was taken into custody the conduct described in subsection (3) was prescribed in terms set out in the margin. ⁴

As to subsection (a)(2), Dawson, op. cit., ante, n. 3, explains that means "a child may be taken into custody under the same circumstances that a law-enforcement officer is authorized to arrest an adult." Id., at 540. See In re S.E.B., 514 S.W.2d 948, at 950 (Tex.Civ.App.--El Paso 1974) no writ history (upholding warrantless arrest of juvenile under Article 14.01, V.A.C.C.P.). Manifestly, the law enforcement officers took appellant into custody "pursuant to the laws of arrest," and the only germane purported authority for doing so is Article 14.04, supra. ⁵

As to subsection (a)(3), Dawson points out:

"... The United States Constitution requires certain evidentiary bases to exist before an adult may be taken into custody for criminal conduct. Subsection (a)(3) is intended to authorize taking a child into custody for noncriminal conduct indicating a need for supervision if these same bases are met."

Id., at 540. ⁶

The next subsection of § 52.01 is subsection (b), viz:

"(b) The taking of a child into custody is not an arrest except for the purpose of determining the validity of taking him into custody or the validity of a search under the laws and constitution of this state or of the United States."

Dawson derived this from and says it is substantially the same as the provision in section 13 of the Uniform Juvenile Court Act.

"... It is designed to shelter the child from the stigmatizing effects of an arrest, while providing him with the legal protections that surround the arrest of adults. These include the right to exclude evidence seized pursuant to an unlawful arrest...."

Id., at 540.

In this jurisdiction the rationale and purpose of "delinquent child" laws have always been to promote and to protect the care, safety and welfare of the child consonant with interests of the state. See n. 3, ante. And, just as decisions on the civil side under prior laws insisted, ante, at 752, so also § 51.01(5) dictates that Title 3 shall be construed "to provide a simple judicial procedure ... in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced." But once the Legislature determined that the public interest was not being served by vesting juvenile courts with exclusive jurisdiction over delinquent children, and finally resolved the contradictions in concurrent judicial authority to deal with children charged with serious penal offenses in favor of a waiver by the juvenile court and transfer of the "certified adult" to the criminal court, the erstwhile "delinquent child" was moved to a judicial environment where other policy considerations somewhat shifted the balance of interests involved.

The Texas juvenile justice system contemplates that where the prescribed preliminary investigation results in a determination that further proceedings are authorized and warranted, a prosecuting attorney must elect whether to file a petition for an adjudication or transfer hearing. § 53.04(a); Dawson, at 563. In the latter proceeding, as applicable here, the juvenile court may waive its jurisdiction and transfer a child for criminal proceedings if the child is alleged to have violated a penal law of the grade of felony when he was fifteen years of age or older at the time of the offense "and no adjudication hearing has been conducted concerning that offense," and after hearing the court determines that for reasons prescribed "the welfare of the community requires criminal proceedings." § 54.02(a). ⁷

A transfer hearing should be held first because an adjudicatory hearing bars trial for same crime on transfer. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). An adjudication hearing must honor certain rights and privileges guaranteed to the child, viz:

".... 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 a adjudication hearing. * * * * Evidence illegally seized or obtained is inadmissible in an adjudication proceeding."

§ 54.03(e). Those same judicial decisions reviewing alleged errors in adjudication hearings, ante, at 752, demonstrate these rights are to be enforced in an adjudication proceeding; see also Matter of D.M.G.H. 553 S.W.2d 827 (Tex.App.--El Paso 1977), no writ history (failure to comply with § 52.02(a) taints confession). But when waiver of jurisdiction and transfer preempt adjudication, there is nothing in the legislative history to suggest an intent that a juvenile lose rights and privileges vouchsafed in an adjudication hearing when transferred to a district court for criminal prosecution as an adult. To the contrary, as the draftsman himself has reported, subsection (b) of § 52.01 is designed to provide juveniles with "the legal protections that surround the arrest of adults, [including] the right to exclude evidence seized pursuant to an unlawful arrest," Dawson, supra, at 540. Without an adjudication proceeding, however, the only forum in which to claim those protections is the criminal court. And, as this Court has held, "Upon his transfer for criminal proceedings, treating appellant as an adult in accordance with V.T.C.A. Family Code, § 54.02(h), means that his confession, if illegally taken, could not have been admitted...