By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Oral statement given in Oklahomaa governed by
that law; no showing Texas written statement was product of Oklahoma oral
statement (99-3-32)
On August 12, 1999, the Dallas Court of Appeals held that the admissibility
in a Texas court of an oral confession made to a Texas peace officer in an
automobile in Oklahoma on the way back to Texas was governed by Oklahoma law,
which requires the presence of a friendly adult during interrogation. The
juvenile later gave a proper written statement in Texas. The Court of Appeals
held the written statement was admissible because there was no showing it was a
product of the inadmissible oral statement.
99-3-32. In the Matter of D.M., UNPUBLISHED, No. 05-97-00455-CV, 1999 WL 605591,
1999 Tex.App.Lexis ___ (Tex.App.—Dallas 8/12/99)[Texas Juvenile Law (4th
Edition 1996)].
Facts: A jury found that D.M., a juvenile, engaged in delinquent conduct by
committing capital murder. Based on the jury's findings at the disposition
hearing, the trial court imposed a forty-year determinate sentence. Appellant
presents eighteen issues on appeal. For reasons that follow, we affirm the trial
court's judgment.
In late August of 1996, at the age of thirteen, appellant fatally shot his
adoptive mother in the head at their home. He took steps to make the murder look
like the work of an intruder, including leaving a note on his mother's back from
his "kidnapper." Appellant then took his mother's car and left. The
next day, police in Muskogee, Oklahoma stopped the car. Appellant's thirteen-
year-old girlfriend was driving, and appellant was asleep in the backseat. The
car contained some of the deceased's belongings, including her purse, credit
cards, and wedding ring. Police also found a revolver, later revealed to be the
murder weapon, under the passenger's seat. Muskogee police read appellant his
Miranda rights and took him into custody.
After the Dallas Police Department was informed of appellant's arrest, Detective
Randy Loboda and another detective drove to Muskogee. Appellant was released
into their custody. On the ride back to Dallas, Detective Loboda determined that
appellant had not been the victim of a kidnapping and then read appellant his
Miranda rights. Appellant admitted that he shot his mother. Appellant's oral
confession was not admitted into evidence at trial.
Upon arrival in Dallas, the police took appellant to the Youth Division of the
Dallas Police Department. Appellant gave police a written statement, which was
admitted into evidence at the adjudication hearing. In the statement, appellant
said he had a fight with his mother on the night of the offense. She was mad at
him for not cleaning his room. She hit him with a belt and told him he could not
go to a party at school that night. Later, while his mother was sleeping in the
living room, appellant got a gun from her room. He fired the gun at her, but
missed. She woke up, and appellant pulled the trigger again. Appellant stated
that he was "getting tired of [his] mom abusing [him] and [he] was scared
everyday that she would abuse [him] or do something worse."
Held: Affirmed.
Opinion Text: Appellant's seventh through tenth issues involve the admissibility
of his written confession. In his seventh and eighth issues, he contends that
his written confession was inadmissible because it was the direct product of his
oral confession, which was made in violation of Oklahoma law.
During the car ride back to Texas, and while still in Oklahoma, Detective Loboda
read appellant his Miranda rights. Loboda asked appellant if he understood each
of the warnings. Appellant indicated he understood his rights and even asked a
question about his right to terminate the interview. He then orally confessed to
shooting his mother. Loboda believed appellant understood his rights.
Once in Dallas, the officers brought appellant before a magistrate. The police
did not tell the magistrate about the oral confession. The magistrate met with
appellant outside the presence of the detectives. The magistrate had an
"informal conversation" with appellant to assess his abilities. The
magistrate then went over the warnings required by former section 51.09(b)(1) of
the family code, including appellant's right to remain silent and right to an
attorney and the possible punishment. The magistrate then released appellant to
speak with Detective Loboda. Appellant dictated a statement to Loboda. After
doing so, appellant was taken back before the magistrate, who went over the
required warnings again. Appellant then signed a written statement, indicating
he did not want to consult with a lawyer and that he understood his rights and
voluntarily waived them. After the magistrate went over appellant's written
confession with him, appellant signed the confession. In the magistrate's
opinion, appellant voluntarily made the statement.
Initially, we must consider whether the police were required to comply with
Texas law or with Oklahoma law in obtaining appellant's oral confession in
Oklahoma. In Oklahoma, no information gained by custodial interrogation of a
child under sixteen shall be admissible unless the custodial interrogation is
done in the presence of the parents, guardian, attorney, or legal custodian of
the child. [FN28]
FN28. Okla. Stat. Ann. tit. 10, § 7303-3.1(A) (West 1998).
In Tompkins v. State, the court of criminal appeals applied the law of the situs
in considering whether a psychologist could testify about statements made to her
by a defendant while the defendant was incarcerated in another state. [FN29]
Accordingly, we conclude that Oklahoma law governs the admissibility of
appellant's oral confession. Under Oklahoma law, appellant's oral confession was
inadmissible. Indeed, appellant's oral confession was not admitted into evidence
at trial.
FN29. Tompkins v. State, 774 S.W.2d 195, 215-16 (Tex.Crim.App.1987).
However, appellant asserts the admission of his written confession, made after
he returned to Dallas, violated his federal right to due process and his Fifth
Amendment privilege against self-incrimination because the confession was the
product of his inadmissible oral confession. This theory of inadmissibility has
been referred to as the "cat-out-of-the-bag" theory, which has been
described as follows:
Of course, after an accused has once let the cat out of the bag by confessing,
no matter what the inducement, he is never thereafter free from the
psychological and practical disadvantages of having confessed. He can never get
the cat back in the bag. The secret is out for good. In such a sense, a later
confession always may be looked upon as the fruit of the first. But this Court
has never gone so far as to hold that making a confession under circumstances
which preclude its use, perpetually disables the confessor from making a usable
one after those conditions have been removed. [FN30]
FN30. Griffin v. State, 765 S.W.2d 422, 428 (Tex.Crim.App.1989) (quoting United
States v. Bayer, 331 U.S. 532, 540- 41 (1947)).
Once a defendant challenges the voluntariness of a confession, the State carries
the burden of proving the confession was given voluntarily. In considering
whether appellant's second confession was voluntary under the Due Process
Clause, we examine the totality of the circumstances. Voluntariness of the
waiver of Fifth Amendment rights is also gleaned from the totality of the
circumstances. Voluntariness in either context may be established by a
preponderance of the evidence.
The court of criminal appeals considered the "cat-out-of-the-bag"
theory in Griffin v. State, a case with facts similar to this one. There, police
arrested a sixteen-year-old for murder and read her Miranda rights to her. The
juvenile made an oral statement implicating herself as a party to the murder.
The oral statement was inadmissible because the police had not admonished the
juvenile pursuant to family code section 51.09. After making the oral statement,
the juvenile was taken before a magistrate who administered the warnings
contained in section 51.09(b)(1). The magistrate determined that the juvenile
understood the warnings. The magistrate was not told of the juvenile's oral
statement. The juvenile then gave a written confession. Afterwards, a second
magistrate, who also was unaware of the juvenile's oral statement, advised the
juvenile in accordance with section 51.09. He reviewed her statement with her,
and she signed it in his presence. He determined that the juvenile voluntarily
made the written statement.
The court of criminal appeals stated that the "cat-out-of-the-bag"
theory had "some intuitive behavioral validity." But there was no
evidence that the juvenile would not have given the written confession but for
the earlier oral confession. The court held that the mere possibility that such
a "psychological disadvantage" was at work, absent some evidentiary
corroboration, was insufficient to rebut the State's otherwise adequate showing
of voluntariness.
Here, as in Griffin, the State established compliance with both Miranda and
section 51.09(b)(1) before appellant's written statement was taken. Appellant
does not claim his prior oral statement itself was coerced. Appellant was given
Miranda warnings before his oral confession and thus was informed that he could
choose not to speak. The State presented the testimony of the magistrate who met
with appellant before and after appellant made his written statement. Like
Griffin, the magistrate was unaware of appellant's earlier oral statement. In
the magistrate's opinion, appellant's written statement was voluntary. There is
no evidence that, but for the oral confession, appellant would not have given
the written confession. As in Griffin, the mere possibility that appellant was
at a psychological disadvantage due to his earlier statement is insufficient to
rebut the State's showing of voluntariness. We conclude the trial court did not
err in admitting appellant's written statement into evidence. We overrule
appellant's seventh and eighth issues.
In his ninth issue, appellant contends that the confession of a thirteen-year-
old is per se involuntary. Appellant acknowledges that he did not raise this
issue at trial. He contends, however, that admission of the confession of a
thirteen-year-old constitutes fundamental error. The court of criminal appeals
has said that a juvenile's age is a relevant factor when examining the totality
of the circumstances to determine the voluntariness of a confession. But age is
just a factor and no more. We cannot hold that it was fundamental error to admit
the confession of a thirteen-year-old. We overrule appellant's ninth issue.
In his tenth issue, appellant contends that admission of his written confession
violated the Texas Constitution's privilege against self- incrimination. He
contends that article one, section ten of the Texas Constitution affords greater
protection than the Fifth Amendment. Appellant did not raise this objection at
trial and, therefore, has waived this issue. Nevertheless, appellant's argument
is without merit. He contends the text of the Texas clause indicates that it is
a broader guarantee of rights. Article one, section ten provides: "[The
accused] shall not be compelled to give evidence against himself." The
Fifth Amendment provides: "No person ... shall be compelled in any criminal
case to be a witness against himself." The court of criminal appeals has
rejected the argument, based on differences in language, that article one,
section ten provides broader protection than the Fifth Amendment. [FN46]
Accordingly, we overrule appellant's tenth issue.
FN46. Thomas v. State, 723 S.W.2d 696, 702-03 (Tex.Crim.App.1986).
VICTIM IMPACT TESTIMONY
In his thirteenth issue, appellant contends that the admission of victim impact
testimony at the disposition hearing violated his state due process rights.
Appellant complains of victim impact testimony given by Linda Larkins and
Richard Larkins. They testified in specific terms about the deceased's good
character and the effect her death had on their family. No objections were made
to their testimony. Nevertheless, appellant contends admission of the testimony
was fundamental error.
The parties do not discuss section 57.002 of the family code in their briefs.
Section 57.002 permits victim impact testimony at a juvenile's disposition
hearing:
A victim, guardian of a victim, or close relative of a deceased victim is
entitled to the following rights within the juvenile justice system:
....
(5) the right to provide pertinent information to a juvenile court conducting a
disposition hearing concerning the impact of the offense on the victim and the
victim's family by testimony, written statement, or any other manner before the
court renders its disposition.
In the absence of briefing on this issue, we refuse to address whether there was
any possible error in the admission of the victim impact testimony in this case.
We conclude admission of the testimony was not fundamental error. We overrule
appellant's thirteenth issue.
CRUEL AND UNUSUAL PUNISHMENT
In his fourteenth issue, appellant contends that his forty-year determinate
sentence is cruel and unusual punishment under the Eighth Amendment because he
committed the offense at the age of thirteen. Appellant did not object at trial
on this basis. A claim that a particular sentence inflicts cruel and unusual
punishment is waived if not presented to the trial court.
Further, assuming appellant preserved error, we question whether this issue is
ripe for review. Under the determinate sentencing law, juveniles who have been
adjudicated delinquent for capital murder, or several other serious offenses,
may receive a determinate sentence of up to forty years' confinement. The
juvenile serves the first portion of his sentence at the Texas Youth Commission
(TYC) with a possible transfer to the Texas Department of Criminal Justice (TDCJ)
to serve the balance of the sentence. Appellant could be released from the TYC
under supervision without being transferred to the TDCJ. Because appellant may
serve no time at all in the TDCJ, his claim that a forty-year sentence is cruel
and unusual is premature.
In any event, appellant's Eighth Amendment issue is without merit. This Court
has held that a sentence within the range authorized by statute is not cruel or
unusual and is not excessive. We overrule appellant's fourteenth issue.
RIGHT TO COUNSEL
Appellant's sixteenth, seventeenth, and eighteenth issues concern his right to
counsel during custodial interrogation. Appellant asserts that the Sixth
Amendment compels Texas to provide counsel for juveniles before attempting
custodial interrogation. He also contends that the Fifth Amendment prohibits
taking a custodial statement from a thirteen-year-old without first appointing
counsel and obtaining counsel's permission. Appellant maintains he was too young
to waive his right to counsel. Appellant acknowledges he did not object on these
grounds in the trial court, but claims that the error is fundamental.
Appellant cites no cases, and we have found none, in which a court has held
that, when a juvenile waives his right to counsel, failure to provide counsel
before custodial interrogation is automatically a violation of the Fifth or
Sixth Amendment. We decline to hold that the failure to obtain counsel for
appellant before custodial interrogation was fundamental error. We overrule
appellant's sixteenth, seventeenth, and eighteenth issues.