Vasquez v. State

• Decision Date: 21 October 1987
• Docket Number: No. 053-84,053-84
• Citation: 739 S.W.2d 37
• Parties: Michael VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 37

739 S.W.2d 37

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

No. 053-84.

Court of Criminal Appeals of Texas En Banc.

Oct. 21, 1987.

Rehearing Pending

Larry P. Urquhart, court appointed on appeal, Brenham, Allen C. Isbell, on appeal only Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft and George Lambright, Asst. District

Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

After appellant was certified as an adult, he was convicted of capital murder and assessed a mandatory life sentence. V.T.C.A., Penal Code, Section 8.07(d). On direct appeal, he contended that his confession and a monogramed cigarette lighter belonging to the deceased were improperly admitted into evidence as both were fruits of an illegal warrantless arrest. The Court of Appeals for the First Supreme Judicial District affirmed the conviction holding that the warrantless detention of appellant under V.T.C.A., Family Code, Section 52.01 did not violate either federal or state constitutional and statutory guarantees or requirements. Vasquez v. State, 663 S.W.2d 16 (Tex.App.--Houston [1st] 1983). We granted appellant's petition for discretionary review to determine whether Section 52.01 impermissibly entitles a juvenile certified to be prosecuted as an adult fewer protections under the laws of arrest and search than other adults coming within the purview of Chapter 14 of the Texas Code of Criminal Procedure. We will affirm.

The record reflects that on the evening of October 3, 1978, Lynn Palmer and a friend, Mary Dabney, left a Houston area restaurant and proceeded to a parking lot behind the restaurant to obtain their car. Dabney testified at trial that a young Latin American male appeared to be following them but when the two women turned to look the man turned off in another direction. Reaching the car, Dabney was in the process of unlocking her door when she heard Palmer scream, "Mary, he stabbed me. I'm bleeding." Dabney looked up to see Palmer at the rear passenger side of the car holding her stomach. A Latin male came around the rear of the driver's side of the vehicle toward Dabney brandishing a large knife and demanded her purse. Dabney gave the man her purse and he ran off.

While waiting for an ambulance to take Palmer to the hospital, Dabney gave a description of the assailant to a restaurant employee who, along with other employees, later informed the police that the description matched that of appellant, a former bus boy at the restaurant. Appellant was placed at the scene of the crime by several employees a short time before the incident took place. At trial, Dabney was not able to positively identify appellant as the assailant.

Detective Rush, of the Hedwig Village Police Department, testified that he arrived at the restaurant within one half hour after the incident occurred. He was directed by other officers on the scene to the hospital where Palmer had been taken. Due to Palmer's condition, Rush was denied permission to interview her but was able to interview Dabney. She gave Rush a detailed description of the assailant and the clothing he was wearing at the time of the attack.

Rush obtained appellant's name from another officer who had in turn been given appellant's name by the restaurant manager as matching Dabney's physical description of the assailant. The following afternoon Rush and Chief Jones, of the Hedwig Village Police Department, located a possible address where appellant might be found. A young man living a few houses away from that address directed the officers to what was later determined to be the residence of appellant's girlfriend and also informed the police that appellant would be back shortly in a particular model truck.

Rush and Jones set up surveillance on the house to await appellant's return. Appellant arrived in the described truck, accompanied by another male, two females and a baby. The officers approached the group as they exited the vehicle and identified themselves as police officers. Appellant matched the physical description given by Dabney the night before, was wearing similar clothing and wore a large hunting knife on his belt. Contrary to the loud exhortations of his male acquaintance, appellant admitted his identity to the officers.

Due to the developing hostile situation, the officers then separated appellant from the other individuals who were becoming verbally abusive. Jones relieved appellant of his knife and escorted him to the police car. As appellant was placed into the rear of the vehicle by Jones, Rush observed appellant toss a small object into another yard. Rush retrieved the object, a gold cigarette lighter bearing the initials L.R.P. After seeing Rush retrieve the lighter, appellant volunteered the statement that he knew they "had him" because of the lighter. At trial Dabney identified the lighter as belonging to Palmer.

Rush and Jones called for additional backup to quiet what had become an explosive situation. After other units arrived, the two officers left with appellant, advising him that he was under "arrest" and reading him his juvenile rights. ¹ Despite the warnings, appellant talked freely about the incident on the way to the police station, even pointing out the service station where he had dumped Palmer and Dabney's purses after looting them. Jones was able later to locate the purses based on appellant's statements and a statement taken from Dabney the following morning.

At the Hedwig Village police station, a magistrate gave appellant the required juvenile warnings and determined the juvenile's competency outside the presence of any officers. Appellant then dictated a confession to Detective Rush. After the confession was reduced to writing, the magistrate, in private, again gave appellant the required warnings and discussed appellant's statement with him, after which appellant signed the confession. See V.T.C.A., Family Code, Section 51.09(b).

Appellant was twice served with notice of a transfer hearing, the second summons giving notice that Palmer had died of injuries sustained in the attack and the corresponding change of allegations in the State's transfer petition from aggravated robbery to capital murder. The juvenile court subsequently certified appellant as an adult and a proper transfer order to State district court was entered, effectively "arresting" appellant as an adult suspect. See V.T.C.A., Family Code, Section 54.02(h).

At trial, appellant's confession and the cigarette lighter retrieved at the scene of appellant's detention were admitted into evidence over defense objection. On direct appeal, appellant argued that the confession and lighter should have been suppressed as both were fruits of his illegal warrantless arrest. Appellant's claim rested on the proposition that, as he was tried as an adult, his initial detention had to meet the requirements of Article 14.04 of the Texas Code of Criminal Procedure but that the State failed to demonstrate that the arrest came within that statutory exception to the general warrant requirement.

The appeals court first determined that an apparent conflict exists between Article 14.04, supra, and Family Code Section 52.01. Construing the two provisions with regard to the Code Construction Act, the appeals court held Section 52.01, supra, to be the more specific statute pertaining to the arrest of minors. Vasquez v. State, supra; see V.T.C.S. Government Code, Section 311.001 et seq. Applying the same construction principles to what it termed an apparent conflict between the provisions of Section 52.01(a)(2) and (3) and (b), supra, the appeals court was of the opinion that a child may be taken into custody if he meets any one of the four criteria of Section 52.01(a), supra. Finally, turning its attention to appellant's contention that his arrest violated the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution, that court concluded that no Fourth Amendment violation occurred since there was probable cause for the arrest, the less stringent detention requirements for children did not violate principles of equal protection or due process, and that appellant was entitled to no greater protection under Article I, Section 9 of the Constitution than under the Fourth Amendment. Vasquez v. State, supra, citing Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983).

In his sole ground for review, appellant contends that the appeals court erred in determining that a juvenile certified to be prosecuted as an adult "is entitled to fewer protections under the law of arrest and search than a similarly situated adult" by virtue of V.T.C.A., Family code, Section 52.01. Appellant correctly points out that, had he been arrested as an adult, his warrantless seizure would have been in violation of Article 14.04 of the Code of Criminal Procedure since the State was unable to demonstrate that some enumerated exception to the general warrant requirement applied.

At first blush appellant's argument appears meritorious, bringing into question fundamental issues of due process and equal protection. Upon further reflection, however, it becomes apparent that appellant's claim is based upon a faulty premise. Appellant would have this Court examine his "arrest" as a juvenile not at the time he was taken into custody but only after he was certified as an adult and the cause transferred to criminal district court. In arguing that he was denied the protection afforded other adults, appellant ignores the reality that his detention arose outside the adult criminal justice system.

Article 14.04, supra, states:

"Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that...