Vasquez v. State

• Decision Date: 27 October 1983
• Docket Number: No. 01-81-0345-CR,01-81-0345-CR
• Citation: 663 S.W.2d 16
• Parties: Michael VASQUEZ, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 16

663 S.W.2d 16

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

No. 01-81-0345-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Oct. 27, 1983.

Allen Isbell, Houston, for appellant.

Timothy G. Taft, Houston, for appellee.

Before JACK SMITH, BULLOCK and COHEN, JJ.

OPINION

JACK SMITH, Justice.

The appellant was convicted of capital murder and received a sentence of life imprisonment. Because he was a 16-year old minor at the time the offense occurred, the appellant was under the jurisdiction of the juvenile court. After a certification hearing, the appellant was ordered transferred to the district court, where he was later indicted for capital murder.

He contends that his conviction is void because, (1) he was not properly served with notice of the juvenile certification hearing; (2) that his confession should not have been admitted because the magistrate's certification did not comply with the applicable provisions of the family code; (3) that his confession should not have been admitted because it was the fruit of an illegal arrest; and, (4) a cigarette lighter allegedly belonging to the victim should not have been admitted into evidence because it was obtained as a result of an illegal arrest.

On October 3, 1978, Mary Dabney and Lynn Reeves Palmer went to a restaurant for drinks with friends after work. They arrived at the restaurant at about 5:30 p.m. and remained there until approximately 10:30 p.m.

As the two ladies left the restaurant and proceeded to the parking lot to obtain their car, Ms. Dabney noticed a young man standing between two cars. As they proceeded on they heard footsteps behind them and when they turned to look, they saw a young Latin American male behind them. At that time, the young man turned off in another direction. When they reached the car, Ms. Dabney started to unlock the door when she heard Ms. Palmer scream, "Mary, he stabbed me. I'm bleeding". As Ms. Dabney looked up, she was confronted by a man, wielding a knife, who demanded her purse. She surrendered her purse to him and he departed, running through the parking lot.

Ms. Dabney assisted Ms. Palmer to the restaurant where Ms. Palmer was treated for shock until an ambulance arrived. While waiting for the ambulance, Ms. Dabney gave a description of the attacker to a waitress. The waitress and other employees later told police officers that the description indicated that the attacker was Mike Vasquez, a former employee of the restaurant, who had been seen at the restaurant earlier that evening. Ms. Palmer later died as a result of complications from the knife wound.

Detective Rush, of the Hedwig Police Department, testified that he arrived at the restaurant between 10:30 p.m. and 11:00 p.m. He stated that other officers were already taking statements from employees and customers, and he was directed to follow the ambulance to the hospital. Upon arriving at the hospital, Detective Rush was refused permission to interview Ms. Palmer. However, he was able to interview Ms. Dabney who described the attacker as a young, Latin American male, approximately 5'7"' to 5'9"' tall, of medium build, with collar length black hair. Ms. Dabney also told him that the attacker was wearing a blue shirt with a yellow design around the collar.

Detective Rush obtained the name, Michael Vasquez, from another police officer who told him he had obtained the name from the restaurant manager. On the following day, Detective Rush and Chief Jones, located an address on a Michael Vasquez from the files of the Houston Police Department. They arrived at that address about 3:00 to 3:30 p.m. and were directed to the house in which Michael Vasquez was living. They then set up surveillance and waited for the appellant to arrive.

The young man who had informed the officers of the house where Michael Vasquez resided, also told the officers that Vasquez would be back shortly in a particular type truck. When the described truck arrived at the residence under surveillance, the appellant, one other male, two females and a baby got out. The officers approached the group and identified themselves as police officers. At this point, one of the males, who the officers described as obviously intoxicated, began verbally abusing the officers. Chief Jones asked the loud one for his name but received no response. He then asked the appellant for his name, whereupon the male who had verbally abused the officers, said "Don't tell them, Mike". Jones then asked the appellant if he was Michael Vasquez and the appellant said "yes". The appellant matched the physical description which the officers had and was wearing the same type shirt that Ms. Dabney had described to the police on the night of the stabbing. The appellant also had a large hunting knife on his belt.

The officers then tried to separate the appellant from the others, who were all becoming verbally abusive. Jones relieved the appellant of his knife and took him to the police car. As Jones placed the appellant in the car, Detective Rush noticed that the appellant threw away a small object. Detective Rush retrieved the object, which was a gold lighter bearing the initials LRP, which was identified at trial by Ms. Dabney as belonging to Ms. Palmer. The officers then made a call for help to the Houston Police Department in an effort to maintain the status quo.

The appellant had observed Rush retrieve the lighter and show it to Jones and as Rush got into the back seat with the appellant, prior to any questioning, the appellant volunteered the statement that he knew they had him because of the lighter.

When the Houston Officers arrived, Jones talked to them briefly and then drove Rush and the appellant back to Hedwig Village. As they drove away the appellant was advised he was under arrest and given his juvenile warnings. The appellant waived his rights and talked freely about the offense. As they proceeded along the way, the appellant pointed out the service station where he had dumped the purses after looting them. These purses had been turned over to the Houston Police Department by the manager of the service station who found them early that morning. Jones was able later to locate the purses based on the appellant's statement.

When they arrived at the Hedwig Village police station, Judge Neil McKay gave the appellant the required juvenile warnings outside the presence of the police officers. Appellant then dictated a confession to Detective Rush. When the confession was reduced to writing, Judge McKay, in private, again gave the appellant the required warnings after which the appellant signed the confession.

In his first ground of error, the appellant asserts he was not served with notice of the juvenile court's transfer hearing on January 4, 1979. He argues that because of lack of notice, the juvenile court was without jurisdiction to transfer him to the adult court. As a result, he asserts the indictment would be void and the adult court would be without jurisdiction to try the appellant for capital murder. He concedes that he was served with notice of a December 4, transfer hearing, but contends that no one came to that hearing and the actual hearing was not held until a month later.

The record reflects that appellant was properly served with notice of a December 4 transfer hearing and all parties appeared on that date. In fact, the appellant was twice served with a summons to the December 4 discretionary transfer hearing. The second summons was served because Ms. Palmer had died, and the allegations in the State's petition for transfer were changed from aggravated robbery to capital murder.

At the December 4 hearing, appellant's counsel moved to withdraw as attorney for the appellant because the appellant's father had promised to retain him and thereafter failed to communicate with him. The court granted counsel's motion to withdraw, appointed a new attorney to represent appellant, and reset the hearing to December 18. The case was again reset to January 4.

Appellant concedes that both summons met the requirements of the family code. We note that when the court appointed another attorney, the court was required to reset the case as the family code requires the court to give counsel at least 10 days notice to prepare for the hearing. Tex.Fam.Code Ann. § 51.10(h) (Vernon 1975).

Once the juvenile court obtains jurisdiction over the juvenile by proper service, the court's jurisdiction is not lost by ordering a continuance in the case. In re Appeal of B.Y., 585 S.W.2d 349 (Tex.Civ.App.--El Paso 1979, no writ). In the instant case the continuance was granted for appellant's benefit and at his counsel's request. Under these circumstances it was not necessary to re-serve the appellant.

The second summons was served on the appellant because of the death of his victim. It has been held that a change in a petition is not required unless the change is of major import. See, B.R.D. v. State, 575 S.W.2d 126 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). In the instant case, because the change was of major import, i.e., from aggravated robbery to capital murder, the appellant was served with a summons giving him notice of this major change.

By resetting the hearing in the case at bar, the court insured the appellant that he would be represented by counsel, statutory notice requirements would be met, and that all diagnostic studies could be completed. Appellant and his parents were present at the hearing, and the appellant does not claim that he was harmed or surprised by the court's action. The appellant's first ground of error is overruled.

In his second ground of error, the appellant asserts that the court erred in admitting his confession into evidence. He alleges that the confession was inadmissible because the magistrate's certification did not comply with the requirements of the Texas Family Code. Sec. 51.09 of the code contains the warning requirements for juvenile...