D.Z., In Interest of

• Decision Date: 16 December 1993
• Docket Number: No. 13-93-052-CV,13-93-052-CV
• Citation: 869 S.W.2d 561
• Parties: In the INTEREST OF D.Z.
• Court: Texas Court of Appeals

Page 561

869 S.W.2d 561

In the INTEREST OF D.Z.

No. 13-93-052-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 16, 1993.

Rehearing Overruled Jan. 28, 1994.

Jaime E. Carrillo, Carls P. Morin, Kingsville, for appellant.

Pete De La Garza, County Atty., Kingsville, for appellee.

Before SEERDEN, C.J., and DORSEY and YANEZ, JJ.

OPINION

SEERDEN, Chief Justice.

This is a juvenile court action in which the State proceeded against D.Z., a child, under determinate sentencing provisions. ¹ A jury found D.Z. used a deadly weapon and was guilty of capital murder. The jury also found that D.Z. needed rehabilitation, and assessed a determinate sentence of thirty-five years. By two points of error, D.Z. alleges that the State did not follow the controlling Family Code provisions when taking his confession, thus, the confession was improperly admitted at his adjudication. D.Z. seeks a new disposition. We reverse and remand for a new disposition hearing.

FACTS

The record reflects that the court held two suppression hearings related to appellant's confession. The evidence related to the taking of appellant's confession, shows that on Saturday, June 27, 1992, Lieutenant Hays, in charge of the Detective Division of the Kingsville Police Department, telephoned the county's designated juvenile official, Ruben Ramos and advised that she had information that D.Z. was involved in this offense. After reviewing the officer's information, Ramos authorized Kingsville police detective Munoz and Lieutenant Hays to pick up D.Z. for questioning. The officers then went to D.Z.'s home, told him that they wanted to talk with him, and asked him to accompany them to the police station. He agreed. The officers also asked D.Z.'s mother, Mrs. Salinas, to follow them.

At approximately 5:17 p.m., the three arrived at the Detective Division. Mrs. Salinas arrived a few minutes later. Upon arrival, Munoz escorted D.Z. to his office and Hays went to the secretary's office to call the clerk to arrange for a magistrate to come and administer the statutory, Family Code section 51.09(b)(1) warnings to D.Z. Hays also called Officer Ramos about ten minutes after they arrived at the Detective Division. Hays testified that Ramos arrived between 5:45 p.m. and 5:50 p.m., about thirty minutes after her initial contact with D.Z. Hays explained that D.Z. remained in Munoz's office alone with Munoz while waiting for Ramos and the magistrate to arrive. Mrs. Salinas was not with her son in Munoz's office. She remained with Hays who explained to her the nature of the investigation of her son.

While alone in his office with D.Z., Munoz read D.Z. Miranda warnings which both signed at 5:18 p.m. After reading D.Z. his Miranda warnings, and while he and D.Z. were alone in Munoz's office awaiting the judge's arrival, D.Z. began talking about his involvement in the beating. Munoz and D.Z. remained in Munoz's office alone for about forty-five minutes until Judge Bigger arrived at 6:00 p.m. to give D.Z. his Section 51.09(b)(1) warnings. Munoz explained at the suppression hearing that before D.Z. received his statutory warnings from Judge Bigger he had admitted his involvement in the beating but that there was no writing made of D.Z.'s statements before D.Z. received his statutory warnings.

Judge Bigger arrived at the police station just before 6:00 p.m. and went to Munoz's office. As he entered alone to speak with D.Z., Munoz left the room. Judge Bigger gave D.Z. the Magistrate's Warnings to Juvenile, in accordance with Family Code section 51.09(b)(1), which both signed at 6:00 p.m., and then Judge Bigger left Munoz's office.

After Judge Bigger left, Munoz returned to his office and he and D.Z. remained alone in his office from approximately 6:00 p.m. until 6:55 p.m. Munoz testified that he and D.Z. worked on his confession and during that time Munoz typed out D.Z.'s confession statement. Judge Bigger testified that Munoz presented him with the type-written confession at 6:55 p.m.

Judge Bigger then entered Munoz's office and discussed the confession with D.Z. alone. During this meeting, Judge Bigger determined that D.Z. was competent to make a statement. D.Z. signed a Juvenile Rights Acknowledgement and Voluntary Statement in the presence of Judge Bigger only. Judge Bigger determined that D.Z. was aware of his waiver of rights and understood them. After D.Z. signed the statement, Mrs. Salinas went into Munoz's office and talked with her son. Ramos transferred D.Z. to a Juvenile Detention Center about 7:30 p.m.

We note that although the designated juvenile officer, Ruben Ramos, was present in the Detective Division from approximately 6:45 p.m. until he transferred D.Z. to the detention facility at 7:30 p.m., there is no evidence that he ever talked with D.Z. or that D.Z. ever appeared before him.

DELIVERY OF JUVENILE TO COURT

By point two, D.Z. contends that the State did not comply with Family Code section 52.02 because he was taken to detective Munoz's office rather than to a designated juvenile processing office. Thus, he asserts that his confession was obtained erroneously and should have been suppressed. D.Z. asks that we reverse and remand his disposition for further proceedings.

The State responds that from the record, it might be surmised that Hayes controlled the activities of all detectives and utilization of the premises. The State asserts that because Hays immediately contacted and summoned Ramos, the juvenile officer, to the Detective Division that the State complied fully with the Family Code provisions when detaining D.Z. Finally, the State asserts that if using Munoz's office constituted a violation of section 52.02 such a violation would not result in the inadmissability of D.Z.'s statement.

By enacting Title 3 of the Family Code, the Legislature set out a statutory procedure covering the arrest, trial, and disposition of juveniles accused of delinquency. Police officers, courts, and others involved with these juveniles are bound to comply with the detailed and explicit procedures enacted by the Legislature in the code. In re D.M.G.H., 553 S.W.2d 827, 828 (Tex.App.--El Paso 1977, no writ).

When an officer deems it necessary to take a child into custody, Family Code section 52.02(a) dictates what he must do. Id. at 193; State v. Langley, 852 S.W.2d 708 (Tex.App.--Corpus Christi 1993, pet. ref'd). Section 52.02(a) provides as follows:

a person taking a child into custody, without unnecessary delay and without first taking the child to any place other than a juvenile processing office designated under Section 52.025 of this code shall do one of the following ... (2) bring the child before the office or official designated by the juvenile court if there is probable cause to believe that the child engaged in delinquent conduct or conduct indicating a need for supervision; ....

Tex.Fam.Code Ann. § 52.02(a) (Vernon Supp.1993) (emphasis ours). After officers follow the provisions of section 52.02, the decision about whether to detain the child further is to be made, not by law enforcement personnel, but rather by the intake or other authorized officer of the court, with investigative aid of law enforcement officers when requested, or by the juvenile court itself. Comer v. State, 776 S.W.2d 191, 194 (Tex.Crim.App.1989). The Comer court noted that with two exceptions the Legislature intended to restrict involvement of law enforcement officers to the initial seizure and prompt release or commitment of the juvenile offender in accordance with 52.02. ² Id. at 195. Neither exception applies to the facts before us.

The Comer court determined that the Legislature intended that the officer designated by the juvenile court make the initial decision whether to subject a child to custodial interrogation. Id. at 196. The court noted that the designated individual could take a statement himself, consistent with section 51.09(b)(1), at the detention facility, or, pursuant to section 52.04(b), he could refer the child back to the custody of law enforcement officers to take the statement. Id. Evidence illegally seized or obtained is inadmissable in an adjudication hearing. Tex.Fam.Code Ann. § 54.03(e) (Vernon 1986).

At the first suppression hearing, Lieutenant Hays and Officer Ramos testified that the Detective Division was an officially designated juvenile processing office. At the second suppression hearing, a copy of minutes from a juvenile board meeting, which both sides stipulated was a true and correct copy of the meeting minutes, showed that the designated juvenile processing office in the Detective Division of the Kingsville Police Department was actually the "Detectives Building--Chief of Detectives Office." The record of the second suppression hearing reflects that the Juvenile Board designated the following rooms as juvenile interrogation rooms: 1) Sheriff Department-Room across from Keith Bray's Office; 2) Riviera County Building--Patrolman Office; 3) Police Department Main Office--Conference Room; 4) Detectives Building--Chief of Detectives Office; and 5) the Police Annex--Conference Room. Detective Munoz testified that there is no one in the Detective Division with the title "Chief of Detectives." He explained that the person in charge of the detective division is Lieutenant Hays. Therefore, he testified, Lieutenant Hays's office would be the designated office for juvenile interrogation at the Detectives Building. Munoz explained that Hays's office is located on the same floor across the lobby from Munoz's office. When asked why D.Z. was taken to Munoz's office, Munoz stated that Hays was doing other things in her office.

Additionally, the evidence shows that Officer Ramos spoke with Lieutenant Hays early in the afternoon and instructed her to "pick up" D.Z. Hays testified that Ramos arrived at the Detective Division at 5:45 p.m. while Ramos testified he arrived at 3:10 p.m. Regardless of his arrival time, the State does not show that D.Z. ever...