Petree v. State

• Decision Date: 30 August 1989
• Docket Number: No. 05-87-01326-CR,05-87-01326-CR
• Citation: 778 S.W.2d 507
• Parties: Lloyd George PETREE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 507

778 S.W.2d 507

Lloyd George PETREE, Appellant, v. The STATE of Texas, Appellee.

No. 05-87-01326-CR.

Court of Appeals of Texas Dallas.

Aug. 30, 1989.

Discretionary Review Refused Nov. 29, 1989.

Denver G. McCarty, John H. Hagler, Dallas, for appellant.

Sharon Batjer, Dallas, for appellee.

Before HOWELL, LAGARDE and WHITTINGTON, JJ.

LAGARDE, Justice.

Lloyd George Petree, a juvenile at the time of the offense, appeals his conviction for the offense of aggravated sexual assault of a child under fourteen years of age. Punishment was assessed at ten years' confinement, probated for ten years. In two points of error, appellant maintains that: (1) his written statement was not admissible since he had not been advised of his rights by a magistrate prior to the making of the statement; and (2) the evidence is insufficient to support his conviction. We overrule both points of error and affirm.

Because appellant challenges the sufficiency of the evidence in addition to the admissibility of the confession, we will review the facts of the case prior to our discussion of appellant's two points of error. Appellant, age fifteen, lived next door to the five-year-old complainant, her parents, and complainant's three siblings. During the summer of 1986, appellant was hired by complainant's parents to babysit their four children from approximately 3:00 p.m. to 6:00 p.m. while the parents were at work. On August 1, 1986, appellant babysat the four children, and when complainant's mother arrived home from work between 6:00 and 6:15 p.m., she found blood on a washcloth and on the commode. After further investigation, she discovered that complainant had on two pairs of underwear and that both had blood on them. Complainant's mother also found blood on other items of complainant's clothing. When questioned, complainant told her mother that appellant hurt her. There were fingerprint bruises on the complainant's stomach and bruises on her bottom. Because complainant's legs were soiled with blood, complainant's mother had to give her a bath in order to determine the source of the blood. Complainant's mother called the child's father at work and informed him of the situation. When complainant's father came home, he asked a neighbor, a registered nurse, to come over to look at the complainant. The nurse advised the parents to take the complainant to the hospital.

Complainant testified that appellant spanked her with a "stick" that had things "like thorns" on it. She stated that it hurt when he spanked her and that she cried. After he spanked her, he got something that she thought was a pen and got it up to her "private parts in the front." Her pants were off at the time, and it went inside her "privates." Then appellant and complainant went into the bathroom. Appellant told complainant to pull her pants down, and appellant pulled his pants down. Appellant made complainant "suck on his privates," and appellant "peed" in her mouth.

Dr. Benjamin John Rodriguez testified that he examined complainant on August 1, 1986, and that because it appeared that complainant had been sexually abused, he transferred complainant to Parkland Memorial Hospital, which is equipped to preserve the chain of evidence related to sexual abuse cases.

Dr. Norman Gant, M.D., testified that he examined complainant when she was brought to the hospital on August 1, 1986. He testified that she was bleeding rather heavily from the vagina. It was estimated that she lost 35-40% of the blood in her body. Due to the heavy bleeding, Dr. Gant immediately scheduled her for surgery. He noted that complainant's clothing was blood-soaked and that she had bruises in the shape of, or that "fit," someone's hand and fingerprints, and these bruises were located on the lower part of the right side of her abdomen. Bruises were also found on either side of her labia and on the lower, outer part of her left buttock. Dr. Gant noticed an abrasion between the rectum and the vagina and that complainant's hymen was lacerated. Another laceration extended almost the full length of the vagina (approximately two inches). Dr. Gant testified that this laceration was consistent with the type of damage caused by a blunt object because the laceration was more like a tear than a straight line. Dr. Gant stated that a finger or pen could have caused the damage, but he thought it was probably a finger. Dr. Gant stated that he was informed that the incident occurred between 3:00 p.m. and 5:00 p.m. and that he concluded that the time estimate was consistent with the rate at which complainant was bleeding.

On August 1, 1986, after complainant's parents had filed a complaint against appellant, Officer George Cowan and another officer of the Cedar Hill Police Department went to appellant's home. No one was home, so they left a note for appellant's parents to contact the police department. When appellant did not return home that night, his parents filed a "runaway report" with the police department. The next day, appellant's pastor, Father Lynn Bauman, after hearing that appellant was wanted by the police, called and talked to one of the investigating officers, and he subsequently spoke with appellant on the phone. On August 3, 1986, appellant voluntarily surrendered himself to the police.

In his first point of error, appellant argues that his written statement was not admissible since he had not been advised of his rights by a magistrate prior to making the statement. Appellant contends that at the hearing on the motion to suppress, the testimony showed that he had been detained at the Cedar Hill Police Station for approximately two hours during which time he was interrogated by police officers; that undisputed testimony further showed that he wrote out a written statement concerning the commission of this offense prior to the time that he was admonished of his rights by the magistrate; and that the testimony showed that the magistrate advised him of his rights under the provisions of section 51.09 of the Texas Family Code ¹ after the written statement had been taken and reduced to writing.

Appellant asserts that the issue presented is whether his written statement should have been suppressed in light of the provisions of section 51.09. ² Section 51.09 provides, in pertinent part:

(b) Notwithstanding any of the provisions of Subsection (a) of this section, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:

(1) when the child is in a detention facility or other place of confinement or in the custody of any officer, the statement is made in writing and the statement shows that the child has at some time prior to the making thereof received from a magistrate a warning that:

(A) he may remain silent and not make any statement at all and that any statement he makes may be used in evidence against him;

(B) he has the right to have any attorney present to advise him either prior to any questioning or during the questioning;

(C) if he is unable to employ an attorney, he has the right to have an attorney to counsel with him prior to or during any interviews with peace officers or attorneys representing the state;

(D) he has the right to terminate the interview at any time;

(E) if he is 15 years of age or older at the time of the violation of a penal law of the grade of felony the juvenile court may waive its jurisdiction and he may be tried as an adult; and

(F) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present. The magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily. If such a statement is taken, the magistrate shall sign a written statement verifying the foregoing requisites have been met.

The child must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement and sign the statement in the presence of a magistrate who must certify that he has examined the child independent of any law enforcement officer or prosecuting attorney and determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights.

(Emphasis added.) Appellant urges that section 51.09 clearly requires that the magistrate admonish a juvenile prior to the interrogation and taking of the written statement.

In support of his contention, appellant cites Carter v. State, 650 S.W.2d 793, 799 (Tex.Crim.App.1983). In a concurring opinion in Carter, Justice Clinton, relying on the legislative history of the amendments to section 51.09(b), states:

In sum, the statutory scheme for taking a confession from a child outside the presence of and without concurrence from his lawyer is that he first be warned of his rights by a magistrate and then, once a confession is obtained, that he sign it in front of a magistrate upon a determination that those rights were properly waived.

Id. at 799. Appellant maintains that this language is further supported by this Court's opinion in Rodriguez v. State, 699 S.W.2d 358, 359 (Tex.App.--Dallas 1985, no pet.), in which this Court stated: "For a juvenile to make a valid waiver of his rights, a self-incriminating statement must be written down and signed by the juvenile after a magistrate follows the procedures set out in section 51.09(b)(1)" (emphasis original). See also Adams v. State, 636 S.W.2d 447, 448-50 (Tex.App.--Houston [1st Dist.] 1981, pet. ref'd). Finally, appellant argues that the subsequent warnings by the magistrate do not purge the written confession of its initial taint; such subsequent warnings fail to render a written confession admissible because the "cat" is "out of the bag" or the "secret is out for good." See R.C.S. v. State, 546 S.W.2d 939, 946 (Tex.Civ.App.--San Antonio 1977, no...