In re H.V.

• Decision Date: 17 November 2005
• Docket Number: No. 2-04-029-CV.,2-04-029-CV.
• Citation: 179 S.W.3d 746
• Parties: In the Matter of H.V.
• Court: Texas Supreme Court

179 S.W.3d 746

In the Matter of H.V.

No. 2-04-029-CV.

Court of Appeals of Texas, Fort Worth.

November 17, 2005.

COPYRIGHT MATERIAL OMITTED

Tim Curry, Crim. D.A., Charles M. Mallin, Asst. Crim. D.A. and Chief of the Appellate Division, Anne E. Swenson, David M. Curl, Jim Hudson, Asst. Crim. D.As., Fort Worth, for Appellant (State).

Landrith & Kulesz, L.L.P., M. Shawn Matlock, Arlington, for Appellee.

PANEL B: HOLMAN, WALKER, and McCOY, JJ.

OPINION ON REHEARING

SUE WALKER, Justice.

Following the issuance of our original opinion, the State filed a motion for rehearing arguing that we erred in our analysis of the State's second issue by drawing a distinction between a custodial statement made voluntarily in the accidental absence of Miranda warnings (an accidentally unwarned statement) and a custodial statement made after a suspect had invoked his right to counsel and questioning nonetheless continued (a post failure-to-honor-a-request-for-counsel statement). Because we hold that, in determining the applicability of the fruit-of-the-poisonous-tree doctrine, a distinction does exist between these two types of statements, we deny the State's motion for rehearing. We nonetheless withdraw our prior opinion and judgment and substitute this one to address the issues raised in the State's motion, to clarify the standard of review we applied in addressing the State's first issue, and to clarify certain facts.

I. INTRODUCTION

This is an interlocutory appeal by the State from the juvenile court's order granting a motion to suppress a confession and a gun obtained as a result of that confession.¹ In three points, the State contends that (1) Appellee H.V.'s second written statement should not have been suppressed because H.V. did not make an unequivocal request for counsel, (2) there was no justification for suppression of the firearm as alleged "fruit" of H.V.'s second written statement, and (3) section 52.02 of the Texas Family Code did not provide a basis to suppress either H.V.'s second written statement or the fruit of that statement. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On September 10, 2003, police began investigating the death of Daniel Oltmanns, a North Crowley High School student, whose body was found at a construction site. Daniel's wounds revealed that he had been shot in the head with a small caliber gun.

The next day, police and school administrators began interviewing students at North Crowley High School about the incident. A student at another high school notified the police that H.V. had purchased a gun a few days before the victim was shot.² On September 12, 2003, an officer questioned H.V. at the high school, and H.V. stated that he thought that Daniel might have owed somebody money for drugs and that this debt may have caused his death.

Detective Cheryl Johnson said that she wanted to take H.V. from school to the Youth Division and question him, and he agreed to go. Upon arrival, Municipal Judge Alicia Johnson read H.V. the Miranda³ warnings. Judge Johnson completed a "Warning to Child Offender" form which listed the Miranda warnings, and she and H.V. both signed it. H.V.'s only concern was that his parents did not know where he was, so Detective Johnson made an effort to contact H.V.'s parents. Detective Johnson then interrogated H.V. regarding the gun. H.V. executed a written statement — his first written statement, which was not suppressed — admitting that he had purchased a gun but stating that he had returned it to the seller before Daniel's body was found. Detective Johnson did not believe H.V. and suspected that the gun was at H.V.'s house. After H.V. and Judge Johnson signed H.V.'s completed statement, Detective Johnson took H.V. back to North Crowley High School and then drove to H.V.'s house, where she had requested that Officer Petrovic meet her.⁴

By the time the police arrived at H.V.'s house, H.V. was home from school, and H.V.'s father was home also.⁵ Police asked for consent to search the home. Officer Petrovic translated for Detective Johnson as she introduced herself to H.V.'s father, explained that she was investigating the murder of Daniel Oltmanns, stated that officers had spoken with H.V. that morning and that he had admitted to having bought a gun, and said that she would like to search the house for the gun. H.V.'s father initially gave his consent but then spoke to his wife by phone and withdrew his permission to search the house. The police secured the residence while Detective Johnson went to obtain a search warrant.

The officers securing the house told H.V. and his father that they could not reenter the house. Despite this instruction, H.V. and his father tried a couple of times to gain access to the house but then left in a pickup truck. Later, an off-duty officer, who lived near H.V., spotted H.V. jumping over H.V.'s backyard fence. H.V. was carrying a rolled-up piece of carpet, and the off-duty officer told H.V. to drop the carpet and return to the front yard.⁶ H.V. complied. The officers securing the house noticed that the carpet appeared to have blood on it. They arrested H.V. for tampering with evidence, handcuffed him, and placed him in the back of a patrol unit. H.V. spent approximately ninety minutes in the patrol car before he arrived at the juvenile processing office downtown. Before being transported to the juvenile processing office, H.V. made a spontaneous statement: "I didn't kill anyone. He shot himself with my gun."⁷

After H.V. arrived at the juvenile processing office, he was interviewed by Municipal Judge Bendslev at around 7:30 p.m. and was given Miranda warnings. Judge Bendslev completed the "Warning to Child Offender" form setting forth the Miranda warnings in connection with H.V.'s second written statement. That form, unlike the warning form provided by Judge Johnson in connection with H.V.'s first written statement, is not signed by H.V.

Judge Bendslev appeared as a witness at the hearing on H.V.'s motion to suppress. She testified as follows:

Q. Okay, and at this point, you read him his rights: He had the right to remain silent, right to an attorney, okay?

A. (Nods affirmatively).

Q. And it's at this point when he said he didn't know; he would have to call his mom?

. . . .

A. He said, I want to call my mother.

Q. Okay.

A. I want her to ask for an attorney.

Q. Okay, and you said that he could not call his mother?

A. I said at that point I was in the process of giving him his magistrate warnings, and that calling his mother was not an option at that time.

Q. Okay, and you again advised him that he could ask for an attorney, make a statement, or not make a statement?

A. That's correct.

Q. And it's at this point that he said, but I'm only 16?

A. That's correct.

Q. As in, I'm only 16; I don't know how to contact an attorney?

A. No, I think he — I'm not sure what he meant when he said that. I mean, my impression was that he thought because of his age that he wasn't allowed to ask for an attorney, and I indicated to him that that was not a problem, that he was 16 and he could ask for an attorney if he wanted to ask for an attorney.

Q. And is it possible that he simply did not know the manner in which one goes about contacting an attorney?

A. It's possible. [Emphasis added.]

Judge Bendslev testified that, after H.V. said he wanted to talk to his mother, he wanted her to ask for an attorney,

I told him, we also had a brief conversation, he asked, well, I explained to him that if he chose not to make a statement at that time, that was fine, that he was currently being held in custody for tampering with physical evidence, and that he was . . . under investigation for murder, and that if he wanted to speak to his mother, that he would be taken back down to the Juvenile facility at that time. I said, I don't know what timeframe would be involved as far as your being able to see your mother.

Thereafter, H.V. agreed to make a statement, and Detective Carroll sat down to talk with H.V. about Daniel's death. H.V. inquired about the "worst-case scenario" of what could happen to him, and Detective Carroll said that was for the court to decide. H.V. then gave his version of the events surrounding Daniel's death, stating that it was an accident and that Daniel had shot himself. H.V. drew a diagram of where he had disposed of the gun, and police subsequently located it. After H.V. signed his statement, along with the judge, police secured a warrant to arrest him for murder.

Based on the above testimony, the trial court made the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. On September 12, 2003, Fort Worth Police officers attempted to secure a search warrant for the Respondent's residence. During that time, the Respondent and his father were advised not to re-enter the residence pending the search. Respondent was arrested after exiting his residence with a rug.

2. Respondent was placed in the back of a patrol car for approximately one hour. He was later taken out to remove his handcuffs. The Respondent was then placed back into the patrol car for approximately another thirty minutes before being transported to the Fort Worth Police Department to be interviewed by Detective Carroll. At no point while Respondent was in the patrol car was any attempt made by Fort Worth Police to contact Respondent's parents as required by Texas Family Code Section 52.02.

3. Upon arrival, Fort Worth Magistrate Judge Gabrielle Bendslev interviewed the Respondent, and advised him of the warning required by Texas Family Code Section 51.095.

4. In response to questioning by Judge Bendslev regarding an attorney, the Respondent advised that he was only sixteen, that he did not know how to obtain an attorney, and that he wanted to contact his mother because he "wanted his mother to ask for an attorney."

5. Judge Bendslev advised the Respondent that he was not entitled to contact his mother at that time.

6....