Section 51.095 is the functional equivalent of Article 38.22 of the Texas Code of Criminal Procedure for juvenile offenders. The principal difference, of course, is that ?51.095 applies only to juvenile offenders.
However, although juvenile court is full of kids, not all kids are equal in the eyes of juvenile confession law. A "child" is defined by Section 51.02(2) of the Texas Family Code to be between the ages of 10 and 17, and 17 or older, but not 18 if the allegations stem from acts committed before the juvenile turned 17. This distinction determines which section applies.
A child's statement is governed by ?51.095 only if one of three criteria are met: 1.) the child is in a detention facility or other place of confinement, 2.) the child is in the custody of an officer, or 3.) during or after the interrogation of the child by an officer if the child is in possession of the Department of Protective and Regulatory and suspected of a crime.
Custodial interrogation is the questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of their freedom in any significant way. A child is in custody if, under the objective circumstances, a reasonable child of the same age would believe his freedom of movement was restrained to the degree associated with a formal arrest.
The issue of custody is as important to the admissibility of a juvenile's statement as it is in adult court. Texas Family Code ? 52.01(b) states "The taking of a child into custody is not an arrest except for the purpose of determining the validity of taking him into custody or the validity of a search under the laws and constitution of this state or of the United States." This language extends the same constitutional protections to juveniles as afforded to adult suspects even though the Family Code uses different terminology for purposes of custody.
Custodial Interrogation - Continued
The courts utilize a two-step analysis to determine the issue of custody. The court will first examine all of the circumstances surrounding the interrogation to determine whether there was a formal arrest or restraint on freedom of movement to the degree associated with a formal arrest. This is an objective analysis, and does not focus on the subjective beliefs of either the interrogating officers or the individual being questioned. The second step of the analysis is the consideration of whether a reasonable person would have felt free to terminate the interview and leave. See, Stansbury v. California, 511 U.S. 318 (1994); Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App. 1996).
Custodial Interrogation - Conitnued
There exist four factors generally considered by courts in making this determination: (1) the existence of probable cause at the time of questioning; (2) the subjective intent of law enforcement; (3) the investigation's focus; and (4) the subjective belief of the defendant. With that said, the subjective intent of both law enforcement and the defendant are relevant only to the extent that the intent may be manifested by the words or actions of law enforcement. The determination of custody is to be determined solely on objective circumstances. See, In the Matter of D.A.R., 73 S.W.2d 505 (Tex.App.-El Paso, 2002).
When the circumstances show that the individual acts upon the invitation or request of the police and there are no threats, express or implied, that he will be taken, then that person is not in custody at the time. Merely being the subject of police investigation is not sufficient to constitute custody.
In addition to the analysis associated with custodial interrogation, a separate analysis must be performed in order for a statement to be admissible. That secondary, yet equally important analysis is that of the voluntariness of the statement.
All statements which the State attempts to use against a juvenile must be voluntary. If the circumstances indicated that the juvenile defendant was threatened, coerced, or promised something in exchange for his confession, or if he was incapable of understanding his rights and warnings, the trial court must exclude the confession as involuntary. Diaz v. State, 04-00-00025-CR, (Tex.App.-San Antonio, 2001). A statement is also not voluntary if there was "official, coercive conduct of such a nature that any statement obtained was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995).
Texas Family Code Section 51.095
The confession statute requires that warnings be given to the child by a magistrate. Magistrate is defined in Article 2.09 of the Texas Code of Criminal Procedure. They include, the justices of the Supreme Court, the judges of the Court of Criminal Appeals, the justices of the Court of Appeals, the judges of the District Courts, some magistrates appointed by District and County Courts, some criminal law hearing officers (in Harris County), county judges, judges of the county courts at law, judges of the county criminal courts, the judges of statutory probate courts, the masters appointed by the judges of the statutory probate courts, justices of the peace, mayors and recorders and judges of the municipal courts of incorporated cities or towns.
Texas Family Code Section 51.095 - Continued
Although there is no mention of Miranda warnings within the statute, because the Miranda warnings are of constitutional nature, they must be provided before any oral statement could conceivably be admissible. The Court of Criminal Appeals held that the lack of such a requirement within the statute does not diminish the constitutional nature of Miranda. Meza v. State, 577 S.W.2d 705 (Tex.Crim.App., 1979).
Section 51.095(a)(3) allows for the admission of res gestae statements or otherwise known as excited utterances. The obvious rationale being the statements are not the product of interrogation, rather they are spontaneously made. Due to this spontaneity, they are deemed to be particularly genuine.
Texas Family Code Section 51.095 - Oral Confessions
Section 51.095(a)(2) allows for the admission of an oral statement if the statement is of facts or circumstances that are found to be true and tend to establish the child's guilt. This most commonly occurs when the child, while giving a statement to an officer, directs the officer to some inculpatory physical evidence. [Derivative Evidence will be more fully discussed later in the paper.]
Texas Family Code Section 51.095 - Oral Confessions - Continued
The phrase "found to be true" means something "the police are unaware [of] at the time of the confession [and is] later, after the confession, found to be true." Romero v. State, 800 S.W.2d 539, 544-45 (Tex.Crim.App. 1990). Additionally, if any one of the assertions the defendant makes is found to be true and establishes guilty, then the oral statement becomes admissible in its entirety. See, Baldree v. State, 784 S.W.2d 676 (Tex.Crim.App. 1989); see also, Marini v. State, 593 S.W.2d 709 (Tex.Crim.App. 1980). However, an oral statement that inculpates a juvenile or only corroborates that the of
Texas Family Code Section 51.095(a)(5) provides for the admissibility of an oral statement if, when the child is in a detention facility or other place of confinement or the custody of an officer, the statement is recorded and the child is given the statutory warnings on the recording, and it further appears the waiver is made knowingly, intelligently, and voluntarily. But note that the warnings must still be given by the magistrate as required by ?51.095(a)(1)(A). In this scenario, the magistrate may, but is not required to have the officer return with the video and the child to make a voluntariness determination. If this procedure is used, the statement is still not admissible unless the magistrate makes a determination of voluntariness. The attorney for the juvenile must be given a complete and accurate copy of the recording not later than the 20th day before the date of the proceeding.
Tape-recorded Statements - Continued
In Avila v. State, the juvenile gave a videotaped statement and drew officers a map regarding his involvement in a murder. The child stated on the video that he understood that he was not in custody and that he was free to leave at any time. The court held that the child was not in custody and thus the statutory warnings were not required. Avila v. State, UNPUBLISHED, 2004 WL 1414034, No. 11-02-00255-CR, (Tex.App.-Eastland, 2004).
The juvenile confession statute appears to allow for the taking of a statement of a juvenile even when the juvenile is represented by an attorney. While ?51.09 (Waiver of Rights) requires that a child cannot waive a right without the agreement of his attorney, ?51.095 begins with "Notwithstanding Section 51.09..." As a result, a juvenile can waive his right to counsel both before and after he is being represented by counsel.
Attorney Involvement - Continued
n Vega v. State, the juvenile gave a statement and was being held in the juvenile detention facility. An investigator took Vega from the detention center, pursuant to court order, for the purpose of going to a medical exam. The investigator testified that Vega, on his own initiative indicated a desire to amend the statement he had previously given. After being properly warned again, the amended statement was reduced to writing and signed by the juvenile. The juvenile court had appointed an attorney to represent Vega prior to his giving the amended statement