By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Non-custodial oral request to amend
inadmissible written statement is itself inadmissible as a fruit of prior
statement (99-3-42)
On August 26, 1999, the Austin Court of Appeals held that when a juvenile
signed a written statement that was custodial and inadmissible (because juvenile
was not taken before a magistrate) and later, while not in custody, attempted to
amend the written statement to take sole responsibility for the offense, the
oral requests, although non-custodial, were inadmissible because they were a
fruit of the prior, inadmissible written statement.
99-3-42. In the Matter of R.J.H., ___ S.W.2d ___, No. 03-98-00654-CV, 1999 WL
645073, 1999 Tex.App.Lexis ___ (Tex.App.-Austin 8/26/99)[Texas Juvenile Law (4th
Edition 1996)].
Facts: Following appellant's plea of true to the State's petition alleging that
he committed the offense of burglary of a habitation, the 98th District Court,
sitting as the Juvenile Court of Travis County, adjudicated appellant to have
engaged in delinquent conduct by committing the pleaded-to offense. Appellant
was placed on "intensive supervision probation" for one year. Pursuant
to an agreement with the State, appellant appeals the denial of his pre-trial
motion to suppress. We will reverse the delinquency adjudication and remand the
cause to the trial court.
Appellant, a minor, was a passenger in a car driven by his adult cousin, Pedro
Ybarra, when Department of Public Safety Officer Michael Scheffler initiated a
traffic stop. Scheffler discovered Ybarra was driving without a driver's license
and placed him under arrest. Pursuant to a search of the vehicle incident to the
arrest, Scheffler discovered what he believed to be stolen property. Scheffler
contacted the Austin Police Department from the scene and confirmed that the
property in the vehicle matched the description of property stolen from a
residence the previous day.
Appellant was handcuffed and transported to the DPS Capitol District Office,
where he was taken to Corporal Elder's office. Elder held appellant while he
contacted the juvenile's father; upon the father's arrival, Elder read appellant
his Miranda warnings and began questioning him. Eventually, appellant signed a
written statement confessing to his involvement in the burglary as follows:
Ybarra and appellant went searching for an unoccupied house with the intention
of committing burglary. While Ybarra waited in the car, appellant broke the lock
on a window of the chosen home. He then opened the door and motioned for Ybarra
to join him. The two gathered various electronic items, CD's, and a set of golf
clubs, and loaded the property into the car.
After giving his written confession, appellant was released to the custody of
his father. In the days following his release, appellant spoke to Elder on
several occasions, each time indicating he wished to revise his written
statement to exonerate Ybarra by accepting sole responsibility for the burglary.
Appellant also told Elder he would lead Elder to the stolen property not yet
recovered, although this promise was never carried out.
The State eventually filed a petition alleging that appellant had engaged in
delinquent conduct by committing burglary of a habitation. Appellant filed a
pre-trial motion to suppress any statements made by him related to the burglary,
written or oral. The trial court agreed the written confession should be
excluded from evidence, finding that it was taken in violation of the provisions
of the Family Code outlining the requirements for obtaining a written statement
from a juvenile. However, the trial court found that appellant was not in
custody when he made the subsequent oral statements relating his wish to revise
his written statement; the court therefore refused to suppress these statements.
Appellant thereafter pleaded true to the allegation that he had committed
burglary of a habitation pursuant to an agreement allowing him to appeal the
partial denial of his motion to suppress. The trial court rendered an
adjudication of delinquency for committing the charged offense and placed
appellant on intensive-supervision probation. In a single point of error,
appellant challenges the partial denial of his motion to suppress.
Held: Reversed and remanded.
Opinion Text: Generally, an appellate court reviews a trial court's ruling on a
motion to suppress for abuse of discretion. See Guzman v. State, 955 S.W.2d 85,
89 (Tex.Crim.App.1997). However, when presented with a pure question of law
based on undisputed facts, a de novo review is proper. See Oles v. State, 965
S.W.2d 641, 643 (Tex.App.--Houston [1st Dist.] 1998, no pet.) (citing Guzman,
955 S.W.2d at 89). The parties in this case do not dispute the historical facts
as found by the trial court. Appellant disputes only the trial court's
application of the law to those facts. Since this appeal presents a question of
law based on undisputed facts, we will conduct a de novo review. See Loesch v.
State, 958 S.W.2d 830, 831-32 (Tex.Crim.App.1997).
In his sole point of error, appellant asserts that the trial court erroneously
refused to suppress his statements made to Elder in the days following his
initial release. Appellant argues these subsequent statements were
"tainted" by the prior illegally obtained written statement, and thus
were involuntary within the meaning of the Due Process Clause of the United
States Constitution. See U.S. Const. amend. V.
The argument that a prior inadmissible statement can taint a subsequent
statement has been referred to as the "cat out of the bag" theory. See
Griffin v. State, 765 S.W.2d 422 (Tex.Crim.App.1989). It is based on the notion
that once a defendant has confessed, but is not aware the confession cannot be
used against him, he may feel he has nothing to lose by making additional
incriminating statements; so burdened by the psychological pressure of the first
confession, his resolve to remain silent may be broken, rendering any subsequent
statements involuntary under the federal due process clause.
In Griffin, the court of criminal appeals severely limited the application of
the "cat out of the bag" theory. See Rodriguez v. State, 968 S.W.2d
554, 557 (Tex.App.--Houston [14th Dist.] 1998, no pet.). Nonetheless, the court
refused to eliminate the theory altogether; instead, the court applied a
"totality of the circumstances" test to determine what effect giving a
statutorily inadmissible statement had on the voluntariness of a subsequent
statement. See Griffin, 765 S.W.2d at 427, 430-31; see also Rodriguez, 968
S.W.2d at 558; In re J.T.H., 779 S.W.2d 954, 958 (Tex.App.--Austin 1989, no
writ).
Griffin involved a juvenile who was arrested and given her Miranda warnings
before orally implicating herself in a murder. She was then taken to a
magistrate to receive the required juvenile warnings, and subsequently signed a
written statement. Griffin argued that the voluntariness of her written
statement was compromised by the initial inadmissible oral confession. The court
of criminal appeals held that, because of the lack of "more definite
evidence" that the prior statement "played an actual role in
[Griffin's] volitional processes," the trial court could not be faulted
"for its finding that the State had sustained its burden to prove her
subsequent written confession was voluntary under the Due Process Clause."
Griffin, 765 S.W.2d at 431. In so holding, the court noted that the "mere
possibility" of a "psychological disadvantage" is not enough to
rebut an otherwise adequate showing of voluntariness. Id. at 430. Nevertheless,
the court went on to state:
Certainly ... had appellant actually testified she would not have given the
written confession but for the earlier oral one, a fact issue would have been
raised. In that event, it would behoove the State to produce some evidence the
oral statement was admissible, and the trial court would then have been required
to factor this evidence into its determination of due process voluntariness,
under the totality of the circumstances test. To this extent, the
"cat-out-of-the-bag" still lives. Assuming the trial court found the
first statement inadmissible, two other factors would then militate in
appellant's favor in this analysis. First, appellant's youth could certainly
make her "but/for" claim appear more plausible than it would be coming
from an adult. Secondly, not only was appellant not told her prior oral
statement could not be used against her before she signed her written
confession; in fact, she was positively told, as part of the Miranda warning,
that her prior statement would be so used.
Id. (citations omitted).
We turn to the application of the Griffin rationale to the instant case. The
uncontroverted evidence shows that, on several occasions following his initial
release, appellant made statements to Officer Elder in which he sought to place
all the blame for the burglary on himself. These statements were made in the
context of a request that Elder allow appellant to revise his earlier written
confession. The connection between the prior inadmissible statement and the
subsequent statements is thus undeniable; the statements requesting a revision
of the earlier written statement obviously would not have been made but for the
existence of the earlier statement. This direct connection shows that the prior
statement played an actual role in appellant's volitional processes. See
Griffin, 765 S.W.2d at 431. Reviewing the totality of the circumstances
surrounding the statements at issue, we think it likely that appellant, having
already confessed, felt he had nothing to lose by taking all the blame and
exonerating his cousin.
Other factors also mitigate in favor of appellant. First, he is a minor, making
his "but-for" argument more plausible. See id. Second, as part of the
Miranda warnings given to appellant prior to his signing the written confession,
appellant was affirmatively told that his written confession would be used
against him. See id. We believe that the record shows that, under the totality
of the circumstances, appellant's subsequent statements were involuntary under
the federal Due Process Clause. In addition, our review of the record reveals no
evidence offered by the State to sustain its burden to prove that the subsequent
statements were not the product of a psychological disadvantage, and thus
voluntary.
We recognize that there is no presumption that giving an inadmissible statement
prior to an admissible statement renders the second statement involuntary for
purposes of federal due process. See Rodriguez, 968 S.W.2d at 558; In re J.T.H.,
779 S.W.2d at 958-59. We apply no such presumption. Instead, we conduct a
thorough review of the record and apply the analysis found in Griffin to the
evidence contained therein. Given (1) the connection between the earlier
inadmissible statement and the later statements, indicating that appellant would
not have made the latter but for the former; (2) appellant's juvenile status;
(3) appellant's belief that the written statement would be used against him; and
(4) the complete absence of evidence by the State to meet its burden to prove
voluntariness, we conclude that, under the totality of the circumstances,
appellant's statements to Elder requesting a revision of his written statement
were not voluntary under the federal Due Process Clause. Accordingly, the trial
court erred in denying appellant's motion to suppress these statements. The
point of error is sustained.
Having found the trial court erred in denying appellant's motion to suppress the
statements indicating appellant's desire to amend his written confession, we
reverse the judgment of delinquency and remand the cause to the trial court for
further proceedings.