By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Fifty minute delay in bringing child to proper
authorities invalidates confession and requires reversal of criminal conviction
(99-3-15).
On July 5, 1999, the Amarillo Court of Appeals on motion for rehearing held
that a 50 minute delay in bringing a child in custody to the proper juvenile
authorities made her confession inadmissible. Under the circumstances, admitting
it into evidence was harmful error requiring reversal of the criminal
conviction.
99-3-15. Contreras v. State, ___ S.W.2d ___, No. 07-97-0487-CR, 1999 WL 452111,
1999 Tex.App.Lexis ___ (Tex.App.—Amarillo 7/5/99)(opinion on rehearing)[Texas
Juvenile Law (4th Edition 1996)].
Facts: See ¶ 99-2-25 for statement of the facts.
This is the Court of Appeals’ opinion on rehearing. The first issue discussed
in the original opinion—whether the State must plead and prove that the court
sitting as a juvenile has been designated to so sit—remains unchanged by this
opinion on rehearing. See ¶ 99-2-25 for a discussion of that issue.
The second issue on rehearing—whether delay in bringing the juvenile to the
proper authorities results in reversal for admission of an inadmissible
confession—was changed because in the court’s original opinion, it concluded
that admission of the confession was harmless error, while on rehearing it
concludes that the error was harmful and requires reversal of the adjudication
of delinquency. Thus ¶ 99-2-26 is changed by this opinion on rehearing.
Only the second issue is included here.
Held: Reversed and remanded.
Opinion Text: In her second issue, appellant challenges the admission of her
written statement into evidence. In doing so, she claims its admission violated
sections 51.09, 52.02, and 52.025 of the Family Code, as well as violating
Article 1, section 10 of the Texas Constitution and the Fifth Amendment to the
Federal Constitution. Specifically, she argues the officers violated section
52.02 of the Family Code because they failed to take her immediately to a
juvenile detention facility or a juvenile processing office. Additionally, she
asserts that although Judge Clayton and Judge Miller are magistrates, they are
not juvenile judges acting under the authority of the Juvenile Justice Code.
Moreover, she claims, there is nothing in the record that shows they had been
appointed by the Potter County Juvenile Board to receive children taken into
custody or that the board had authorized them to give juvenile warnings.
In considering this second issue, our first task must be to decide if the length
of time between appellant's detention and her arrival at the juvenile processing
office violated section 52.02(a) of the Family Code. At the time with which we
are concerned, the statute read:
§ 52.02. Release or Delivery to Court
(a) A person taking a child into custody, without unnecessary delay and without
first taking the child to any place other than a juvenile processing office
designated under Section 52.025 of this code, shall do one of the following:
(1) release the child to a parent, guardian, custodian of the child, or other
responsible adult upon that person's promise to bring the child before the
juvenile court as requested by the court;
(2) bring the child before the office or official designated by the juvenile
court if there is probable cause to believe that the child engaged in delinquent
conduct or conduct indicating a need for supervision;
(3) bring the child to a detention facility designated by the juvenile court;
(4) bring the child to a medical facility if the child is believed to suffer
from a serious physical condition or illness that requires prompt treatment; or
(5) dispose of the case under section 52.03 of this Code.
Tex. Fam.Code Ann. § 52.02(a) (Vernon 1996).
Without citation of relevant authority other than the statutory language
"unnecessary delay," appellant argues that the 50 minutes she sat in
the patrol car at the scene before she was taken to a juvenile processing office
violated that statutory requirement. The State responds that the delay was
unavoidable because the officers were engaged in attending to the victim and
obtaining preliminary information from witnesses. Thus, it reasons, because of
these circumstances, the delay was not "unnecessary" within the
purview of the statute. See Littlefield v. State, 720 S.W.2d 254 (Tex.App.--Beaumont
1986, pet. ref'd).
It is the rule, of course, that when a police officer deems it necessary to take
a child into custody, the procedures specified in the Family Code must be
followed. In the Matter of R.R., 931 S.W.2d 11, 14 (Tex.App.--Corpus Christi
1996, no writ). Because of its subjective nature, determining whether an
"unnecessary delay" occurred must be on a case-by-case basis. Thus,
the decisions of other courts are helpful to us in conducting our analysis.
In Comer v. State, 776 S.W.2d 191 (Tex.Crim.App.1989), the juvenile was arrested
at his home at 6:24 p.m. After a brief stop at a departmental office to pick up
necessary waiver and statement forms, officers took him to the home of a justice
of the peace, arriving there shortly after 7:00 p.m. Pursuant to Family Code
requirements, the juvenile was warned by the justice of the peace and then
returned by the officers to the sheriff's department by 7:30 p.m. Once at the
sheriff's department, the juvenile gave a full written confession. At 9:16 p.m.,
the juvenile was returned to the justice of the peace's home where he, with the
officers in the next room, signed the confession. The high court held that the
approximate three-hour period of time it took to secure the confession violated
section 52.02(a); thus, the confession was not admissible. Id. at 196.
In In the Matter of D.M.G.H. 553 S.W.2d 827, 828 (Tex.Civ.App.--El Paso 1977, no
writ), the court also held a juvenile confession inadmissible. In that case, a
pregnant 16-year-old juvenile was arrested around 12:30 p.m., held in custody at
a police substation until 7:25 p.m., then taken before a magistrate, and was not
delivered to a juvenile detention facility until 10:20 p.m. During this time
period, no meals were given to the juvenile. The State's rationale for the delay
was that "fifteen pages of No. 1 police reports were being filled
out," and it was also time consuming to take the juvenile to the detention
facility. The court held this rationale insufficient to justify the delay. Id.
at 828.
In this case, the juvenile was taken into custody about 3:00 a.m. and was placed
in the police car at that time. However, she was not taken to the juvenile
processing office until some 45 or 50 minutes later. The written statement was
not completed until 9:30 a.m. That the officers were investigating the stabbing
is an inadequate justification for the delay in transporting her to a duly
designated juvenile office. Under the strict requirements of section 52.02 of
the Juvenile Code, we cannot hold that she was taken to the juvenile facility
without the "unnecessary delay" prohibited by the Code. Accordingly,
we must hold appellant's written confession was inadmissible.
Having determined the written confession was inadmissible, we must next
determine if its admission requires reversal. Appellant contends that the
admission of the confession was "constitutional error" within the
purview of Rule of Appellate Procedure 44.2(a), which requires that in such
instances reversal is required unless the reviewing court "determines
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment." Appellant cites no legal authority for that proposition and we
have found none. The record before us demonstrates that prior to the making of
the written confession, appellant was given all warnings constitutionally
required. Nothing in the record indicates nor does appellant claim that the
confession was induced by improper coercion or other improper inducements. In
sum, if appellant had been an adult, under this record, the confession would
have been admissible. The only reason it was not admissible was because the
statutory 52.02 "unnecessary delay" requirement was not met. Thus, we
conclude, because the error was statutory rather than a lack of compliance with
constitutional prerequisites, the effect of the error must be analyzed under
Rule of Appellate Procedure 44.2(b), which provides:
(b) Other Errors. Any other error, [FN3] defect, irregularity, or variance that
does not affect substantial rights must be disregarded.
Tex.R.App. P. 44.2(b) (Vernon 1999).
FN3. Apart from constitutional error.
Therefore, we must next determine if the admission of the confession affected a
substantial right of appellant. Our Court of Criminal Appeals has explicated
that a substantial right is affected "when the error had a substantial and
injurious effect or influence in determining the jury's verdict." King v.
State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. U.S., 328
U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). Determining whether
an error had a substantial and injurious effect on a verdict is not an easy task
for a reviewing court and, of necessity, must be made on a case-by- case basis.
Our Rule 44.2(b) was taken from Federal Rule of Criminal Procedure 52(a) without
substantive change. That being true, cases which have interpreted the federal
rule are helpful to us. The seminal case concerning non- constitutional error is
the one cited and relied upon by the King court, namely Kotteakos v. U.S.,
supra. In that case, the Supreme Court explained the analysis to be applied by
the reviewing court is that if it is sure after reviewing the record that the
error did not influence the jury, or "had but a very slight effect,"
the verdict must stand. Kotteakos, 328 U.S. at 764-65.
Additionally, in making our analysis, we must keep in mind that in doing so, we
should not focus upon the propriety of the outcome but upon the integrity of the
process leading to conviction. See Harris v. State, 790 S.W.2d 568, 587
(Tex.Crim.App.1989). In that connection, we note that appellant's oral
confession, which we believe was admissible, did not give any of the details or
reasons why she did so, but was merely a statement that she had stabbed Winegar.
However, her written confession contained a detailed recitation of the events
leading up to Winegar's death. That being so, we must consider the collateral
implications of those details.
Because of its importance to our decision, we set out appellant's entire written
confession. It is as follows:
My name is Dana Marie Contreras. I am 15 years old. My date of birth is 1/23/80.
I live at 904 N. Florida, Amarillo. My phone number is 376-9935. I am a student
at Tascosa High School. I am in the 10th grade. Yesterday, January 10, 1996, I
got home from school and fixed myself something to eat. I live at home with my
mom, Kena [sic] Andrews, my sister, Sueleta [sic] Andrews, and my mom's
boyfriend, Neal Winegar. After getting something to eat I went to my room. I did
some of my homework. I fell asleep for a couple of hours. After waking up, I
went out to the living room to be with the family. I was watching TV. Neal was
on the phone. My mother was sitting there, talking with Neal as he talked on the
phone. I do not know where my little sister was at. I really did not talk to
them. I just sat there. I fixed myself something to eat. After I finished
eating, I went to my room. I just stayed in my room listening to my radio. A
little while later, I decided to go [sic] the laundry. I needed clothes for
school. I put the clothes in the washer and went back to my room. I changed out
purses for the one I was going to carry. When the washer was done, I put the
clothes in the dryer. I cleaned my shoes while the clothes were drying. My mom
and Neal were watching TV while I was doing all of this. I was trying to figure
out what clothes to wear. My mom was now in the bedroom and Neal was in the
living room. I got out the ironing board and was ironing my clothes to wear to
school. Neal went to the bathroom. When he went by my room, Neal told me that I
needed to go to bed. This made me mad when he did this to me. [I] went ahead and
finished my pants. Neal went into the bedroom and told my mother. My mother went
to the bathroom and then stopped by to see me. She stood in the doorway getting
on to me, [for] getting smart with Neal. She left and went back to the bedroom.
I could head [sic] her and Neal talking. I could not hear all they were saying.
I had finished the ironing and was in bed. I was laying there thinking. I could
still hear my mom and Neal talking. I could not hear all they were saying. They
were up for a long time. I was thinking about Neal and the things he does to
make me mad. I was wondering if they had a letter a friend had written to me.
They had been reading my letters from him. I got up and went to the kitchen. I
got a drink of water. There was a knife sitting there on the cabinet. I got a
drink of water. I took the water and the knife back to my room. The knife was a
carving knife. I took the knife to the room and sat it on a chair. I got back
into bed. My mom and Neal were still awake in the bedroom. I was just laying in
bed thinking. I was waiting for them to go to bed so I could go and do this. My
mother got up, went to the bathroom, turned off the radio in my little sister's
room, and then came into my room. She turned off the light in my room. She
doesn't normally come into my room. I was awake, but rolled over so she could
not see that I was awake. She went back to the bedroom. It is like 2 in the
morning now. I waited until things got quiet. I got up and put the mask on. I
went to my little sister's room and tucked her in. She kind of woke up. I
covered her up. I left her room and was shutting her door. She told me to leave
it open. I went back to my room and turned on my light. I found some gloves
under the chair in my room. I put the gloves on and grabbed the knife. I went
into the living room and petted the cat. I was listening to see if mom and Neal
were still awake. I could not hear much. Finally I could hear that my mother was
asleep. When I heard that my mother was asleep, I went into the bedroom. I had
pulled the mask down. I was wearing the mask and gloves so I would not get any
blood on me. I went over to the right side of the bed. This is where Neal was
sleeping. I looked at the clock and it was 2:51. When I walked in the room, Neal
was laying on his stomach. He rolled over. I thought that he was going to wake
up. I stopped to see if he was going to wake up. I heard him start snoring. I
went up to the bed. I was thinking that I was not going to put up with it any
more. I stabbed him in the chest area with the carving knife. I left the knife
in him. I went to leave the room. I heard Neal gasp and left the room. I tried
to close the door but there were some clothes in the way. I went to the living
room and picked up the phone. I dialed 911 and set the phone down on the chair.
I did not talk on the phone. I went to my room and took the gloves and mask off.
I just dropped them as I walked. I could hear my mother talking. I went and shut
my little sister's door to her room. I went outside and walked over to the
school. I sat down on the steps and just watched the house. Finally the light
came on in the house. The porch light came on and someone opened the door. I saw
the police cars pull up. I walked over to them. They asked me if this is where
the call had come from. I told them it was. They asked me who had called and I
told them that I had. They asked me about guns in the house. I told them some
hunting rifles were in the house. They walked off to the house. Two more
officers came up to me. They asked me who had stabbed him. I said, "I
did." They asked me to have a seat in the police car. They left me there
and went into the house. I am giving this statement willingly and voluntarily.
No promises or threats have been made to me. I have read the above and it is
true and correct to the best of my knowledge.
At trial, appellant testified that she stabbed Winegar "[b]ecause I didn't
want him to be with my little sister and I didn't want him to come into my room
anymore. I wanted him to stop." She requested, and was denied, a charge on
necessity. Relevant to the trial court's denial of that defense, among other
incriminating statements in her written confession, appellant said she waited
until Winegar was asleep, so that she "could go and do this." She also
stated that she had gotten a knife out of the kitchen earlier and set it down in
her room which, at the least, was a strong indication of premeditation and also
bore upon the question of necessity. Finally, in her statement, while Winegar
was asleep and as she approached his bed, right before she stabbed him, she said
she "was not going to put up with it any more."
The necessity defense is codified in our Penal Code section 9.22. In relevant
part, it provides that conduct is justified if "the actor reasonably
believes the conduct is immediately necessary to avoid imminent harm." Tex.
Penal Code Ann. § 9.22(1) (Vernon 1994). To be entitled to submission of the
defense, a defendant must present some evidence of his reasonable belief of and
affirmative evidence of imminent harm. A generalized fear of harm is not
sufficient to raise the issue of imminent harm. Brazelton v. State, 947 S.W.2d
644, 648 (Tex.App.--Fort Worth 1997, no pet.). Appellant's trial defense was
conducted upon the theory that Winegar was forcing himself sexually upon her
sister. At trial, she averred that she heard Winegar enter her sister's bedroom
and shut the door, and she then heard the bed springs pop and thought Winegar
was in her sister's bed. Because of these things, she thought her action was
immediately necessary to protect both herself and her sister. Dr. Anthony Arden,
a defense witness, testified that in his professional opinion, appellant
reasonably believed her conduct was necessary to avoid imminent harm to herself
and her sister.
As a general rule, determination of the reasonableness of an accused's belief is
a question of fact, Fitzgerald v. State, 782 S.W.2d 876, 885
(Tex.Crim.App.1990), and should be viewed from the accused's standpoint at the
time he acted. Juarez v. State, 886 S.W.2d 511, 514 (Tex.App.--Houston [1st
Dist.] 1994, pet. ref'd). A defendant is entitled to submission of an
affirmative defensive instruction on every issue raised by the evidence,
regardless of whether the evidence is strong, feeble, unimpeached, or
contradicted. Sanders v. State, 707 S.W.2d 78, 80 (Tex.Crim.App.1986).
As contrasted to appellant's trial testimony, the written statement makes no
reference to any immediate need for protection and, as we have noted, gives
impetus to a conclusion that the stabbing was not the result of any immediate
necessity for protection, but was actually undertaken after ample time for
reflection. In the face of the defense testimony, we cannot say that the content
of the written confession was not relied upon by the trial judge in denying the
necessity defense, nor can we say that it did not have any effect upon the jury
in making its decision as to the guilt of appellant. In sum, we cannot say its
admission did not affect a substantial right of appellant. Appellant's second
point is sustained.
Because the sustention of appellant's second point will require a reversal of
the trial court's judgment, there is no necessity to discuss the other issues
presented by appellant in her original appeal and in her motion for rehearing.
Accordingly, appellant's motion for rehearing is granted, our original opinion
is withdrawn and this opinion substituted. For the reasons we have stated, the
judgment of the trial court is reversed and the cause remanded for further
proceedings consistent with this opinion.