By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
False claim by juvenile that he is 17
waives Family Code interrogation protections (00-2-27)
On June 1, 2000, the Houston Fourteenth District Court of Appeals held that
when a juvenile falsely claimed to police to be 17 years of age and his physical
appearance corroborated that claim, he waived the protections of the Family Code
for the interrogation of juveniles.
00-2-27. Childs v. State, ___ S.W.3d ___, No. 14-98-00531-CR, 2000 WL 702768,
2000 Tex.App.Lexis ___ (Tex.App.--Houston [14th Dist.] 6/1/00)[Texas Juvenile
Law 275 (4th Ed. 1996)].
Facts: Tommy Maverick Childs, appellant, was certified to stand trial as an
adult and was convicted of capital murder in the robbery-slaying of a cab
driver. Because he was a juvenile at the time of the offense, his punishment was
automatically assessed at life in prison. In nine points of error he contends
the trial court erred in not suppressing his second and third statements,
questions the sufficiency of the evidence and argues the jury should have been
instructed on the lesser included offense of murder.
In his third through eighth points of error appellant complains of the
sufficiency of the evidence to support his conviction. We will therefore
summarize the evidence heard by the jury.
In the early morning hours of February 5,1997, Dewayne Lewis walked to the bus
stop to get a taxi that his mother had called. He saw Kevin Collins, a person
that he knew from the neighborhood, at the bus stop at the corner of Calumet and
Live Oak. Collins agreed to go with him to get something to eat. In a few
minutes, appellant walked up and asked to join them. Appellant told Lewis that
he was going to rob the first cab that came by. Lewis, who was on probation,
told him that he would "kick his ass" if he did. Appellant said he was
kidding and did not even have a gun. Lewis did not see a gun.
When the cab arrived, appellant got in the front seat, Lewis got in the back
seat behind the appellant and Collins got in the back seat behind Cisroe Taylor,
the taxi driver. Appellant and Taylor were talking in a way that led Lewis to
believe they knew one another. Appellant wanted Taylor to go to the Bayou
Landing Apartments so he could buy marijuana. Lewis argued with him but
appellant persuaded Taylor to drive to the back side of the apartments.
Appellant got out and the others remained in the cab. Appellant returned, opened
the front passenger door, leaned over, and pointed a gun at Taylor. He told the
driver to give him all his money and the keys. Lewis said "what the
f--wrong with you" and jumped out of the cab. Collins also got out of the
cab. Appellant ordered Taylor out of the cab, grabbed the microphone and threw
it out of the passenger side of the car.
As Taylor got out of the car, he asked Lewis to please ask appellant not to
shoot him. Lewis told the appellant not to shoot and even told him that the
police were coming. Appellant paid no attention and kept the gun pointed at
Taylor. Lewis walked away from the cab, around a corner, and heard two shots
fired. Lewis ran home. The next day he ran into the appellant and asked him if
he had shot Taylor. Appellant admitted to shooting Taylor, but said that he
believed that the driver was going for a gun because as he was getting out of
the cab, he had one hand up and the other hand under the seat.
Houston Police Officer Roger Mahoney said Taylor was found about 7 a.m. the next
morning, sitting in the driver's seat of his cab with his left foot on the
pavement. His radio microphone was found about 20 feet from the passenger side
of the cab.
Houston Police Officer Jay Hammerly recovered a five-shot pistol from under the
cab driver's seat, and said one bullet was recovered from the back seat.
Dr. Tommy Brown of the Harris County medical examiner's office said Taylor died
from a gunshot wound to the back which struck his heart. Brown said the bullet
traveled from left to right on a rising trajectory and lodged behind the
victim's breastbone.
Michael Lyons, a firearms examiner with the Houston Police Department, said the
two recovered bullets and the two recovered shell casings were all fired from
the same weapon. The bullets would not have fit the five-shot pistol found under
Taylor's seat.
Appellant testified on his own behalf. He said he was with Dewayne Lewis and
Kevin Collins on the day of the robbery when they flagged down the cab. He went
to buy marijuana at one of the apartments; when he came back, he saw Collins,
seated in the back seat, with a stranglehold on Taylor, in the front seat. He
said that when he saw Taylor pulling a gun from under the seat of the cab, he
pulled a gun and pulled the trigger twice. Appellant said he did not intend to
shoot Taylor and did not mean to kill Taylor, but that he was afraid for his own
safety when he saw Taylor pulling out a gun.
Childs also said he told the officers he was an adult because he knew he was
wanted on a juvenile arrest warrant.
Held: Affirmed.
Opinion Text: In his first and second points of error appellant claims that the
court erred in failing to suppress his second and third written statements
because they were not taken in compliance with the Family Code.
During the hearing on appellant's motion to suppress, Houston police officer
Jeffrey Wayne Holmes testified that he received a call from a confidential
informant about the murder of Taylor. Based on the information he received from
Smith, he went to the Calumet and Live Oak area where he patrols, and began
looking for a person that fit the description and had the name
"Tommy." He recognized the appellant from the description given to him
and approached appellant. (Holmes testified that he met appellant a few days
before when he responded to a disturbance call.) Appellant told him that his
name was Eric. Officer Holmes, suspecting that this was a false name, asked him
if his name was Tommy. Appellant finally admitted that Tommy was his real name,
but told the officers that he was 17 years of age.
Officer Holmes asked appellant if he would talk to some investigators in
homicide about a murder case; appellant said he had no problem with that. The
officer then read him his Miranda rights as a precaution. He told appellant that
he was not in custody, or under arrest, but he had to place handcuffs on him
because it was department policy. Appellant said he had no problem with the
handcuffs. When they arrived at the homicide division, Officer Holmes turned
appellant over to Officer C.P. Abbondandolo, the handcuffs were taken off, and
appellant was again told that he was not in custody or under arrest.
Abbondandolo said he was on the scene of the murder on February 6, 1997, and
developed no suspects. Holmes brought the appellant to him and was told that the
appellant's last name was Carrier. Appellant's handcuffs were taken off and he
was told that he was not under arrest. Appellant gave his date of birth as
7-3-79; at the time, this would make him 18 years of age. Abbondandolo looked
the appellant up on the computer under the name of Carrier but found nothing. He
then asked for appellant's mother's name; appellant identified her as Brenda
Childs. He denied knowing anything about the murder.
Another officer, Ken Vacharis, began talking with the appellant while
Abbondandolo talked with Lewis, who came voluntarily to give a statement. Lewis'
statement did not support the appellant's statement. Abbondandolo told Vacharis
what Lewis had told him.
Vacharis testified that he spoke with the appellant in the interview room, told
him that he was not in custody or under arrest. He was not in uniform, nor did
he have a weapon. He checked the name that appellant had given him on the
computer and found that appellant had given him the wrong name. He accessed the
juvenile records and asked for help. When he re-entered the interview room after
attempting to confirm the appellant's name, appellant told him that he was
involved in a robbery-murder with two other "home-boys." Vacharis
asked him if he wanted to put this in writing and appellant agreed. Vacharis
then advised him of his rights. He was brought in at 5:00 p.m. and the statement
was taken at 5:25 p.m. Vacharis considered that appellant was in custody after
he gave this first written statement and he advised the appellant of this.
Vacharis had still not heard from the juvenile division. He believed he was
dealing with an adult. They completed the statement at 5:50 p.m.
Abbondandolo had given Vacharis certain information that he had obtained from
another witness. He discussed this information with the appellant. As a result
of this discussion, the appellant elected to make a second statement. He started
this second statement at 6:38 p.m. and finished at 7:00 P.M. He had all his
warnings and was considered in custody. The officers believed that the appellant
was an adult when he made his second statement.
After appellant completed the second statement, Vacharis heard from the Juvenile
Division, gave them the appellant's mother's name, and learned that they had a
listing for Tommy Childs who was age 15. There was a pick-up order for him
because of a probation violation. He talked with the appellant again and
appellant denied that he was Tommy Childs. The officer told him that they would
have to have him fingerprinted to establish his identity. At this point the
appellant admitted that he was Tommy Childs and that he was fifteen years old.
When the officers learned that Tommy Childs was a juvenile, they immediately
took him to the magistrate's office. The magistrate took him into his chambers
without anyone else present and gave the appellant his juvenile warnings in
accordance with the Family Code.
After appellant received his warnings from the magistrate, he was turned over to
Sergeant Robertson, who took the third statement. After taking the juvenile
statement they returned to the court and appellant was given his second warning
and signed the statement before the magistrate.
Travis Lewis, the magistrate, testified that he had given the appellant his
juvenile warnings and had also certified the time that the appellant had given
the statement. The magistrate read the statement and then had appellant read it
to him. The appellant signed the statement in his presence and there was no
indication that the appellant did not understand the warnings or what he signed.
At a suppression hearing, the trial court is the sole trier of fact and judge of
the credibility of the witnesses and the weight to be given their testimony. See
Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); In re L.R., 975
S.W.2d 656, 658 (Tex.App.--San Antonio 1998, no pet.). Consequently, we view the
evidence in the light most favorable to the trial court's ruling and afford
almost total deference to its findings if they are supported by the record. See
Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); In re A.D.D., 974 S.W.2d
299, 305 (Tex.App.--San Antonio 1998, no pet.). When the resolution of the
suppression issue does not turn upon an evaluation of credibility or demeanor,
we review de novo the trial court's determination of the applicable law, as well
as its application of the law to the facts. See Guzman, 955 S.W.2d at 89; In re
A.D.D., 974 S.W.2d at 305.
Because Childs was a juvenile at the time he made his statement, the Texas
Family Code governs its admissibility. Comer v. State, 776 S.W.2d 191, 196
(Tex.Crim.App.1989); Williams v. State, 995 S.W.2d 754, 757 (Tex.App.-San
Antonio 1999, no pet. h.). The code provides that a written statement made by a
juvenile while in custody is not admissible unless certain waivers are made in
the presence of a magistrate. See Tex. Fam.Code Ann. § 51.09(b)(1)(G) (Vernon
1996) (now found at Tex. Fam.Code Ann. § 51.095(a)(1)(C) (Vernon Supp.2000)).
As a preliminary matter, we find the third statement was taken in compliance
with the Family Code and therefore overrule appellant's second point of error.
However, the State concedes, as it must, that the second statement was not taken
in compliance with the Family Code. The State argues that appellant waived the
extra protections embodied in the Family Code by lying about his age and
identity.
Properly resolving this point of error requires resolving what type of right is
implicated. If the right is waiveable, we must next determine whether
appellant's actions worked an effective waiver.
There are three categories of rights. The first set of rights are those that are
considered so fundamental that implementation of these requirements is not
optional and cannot, therefore, be waived or forfeited by the parties. See Marin
v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993). The second category of rights
are those that must be implemented by the system unless expressly waived. Marin,
851 S.W.2d at 278-79. The third set of rights are those that the trial court has
no duty to enforce unless requested, and the law of procedural default applies.
See Marin, 851 S.W.2d at 279. This analysis has been explicitly endorsed and
extended to the juvenile offender context. See In re C.O.S., 988 S.W.2d 760
(Tex.1999).
We find that the rights the appellant claims were violated would fall within the
second category of rights, which must be implemented by the system unless
waived. See In the Matter of G.A.T., 2000 WL 330046 (Tex.App.-Houston [14 th
Dist.] March 30, 2000, no pet. h.). In G.A.T., we found that a juvenile
suspect's inaction in not asserting his right to be taken to a juvenile
processing area does not waive this right. A different situation is presented in
our case, however. It was not appellant's inaction which caused the de facto
waiver of his right to be held as a juvenile; rather, it was his affirmative
action in misleading officers as to his identity and age that led to the taint
of his second statement. And Texas courts have historically taken a dim view of
such claims.
Waiver is defined as "the intentional or volunatry relinquishment of a
known right, or such conduct as warrants an inference of the relinquishment of
such right." BLACK'S LAW DICTIONARY 1580 (6 th Ed.1990); see also Johnson
v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461 (1938);
Marin, 851 S.W.2d at 279.
Texas appellate courts, confronted with the question of juveniles who lie about
their ages to law-enforcement personnel, have consistently held against the
juvenile. See Williams v. State, 995 S.W.2d 753 (Tex.App.-San Antonio 1999, no
pet. h.); In the Matter of D.M., 611 S.W.2d 880 (Tex.App.-Amarillo 1980, no
writ).
In Williams, appellant was arrested on theft charges and gave his older
brother's name and date of birth. Based on this information, officers booked him
into the Bexar County Jail. Williams, 995 S.W.2d at 758. An officer who
suspected he was a juvenile, and suspected he was involved in a shooting,
convinced Williams to give a statement; he was taken to a magistrate and given
his juvenile warnings, although the statement was taken in a homicide office.
Id. The court held that this statement was admissible, even though the dictates
of the Family Code were not followed. Id. at 758-759. In a footnote, the court
found that Williams presented a less compelling case for exclusion of the
statement because the dictates of the Family Code were in large part defeated by
his own misrepresentations. Id. at 759, fn. 3.
In D.M., appellant was arrested and charged as an adult; it was later discovered
that he had concealed his true age. Id., 611 S.W.2d at 885. On appeal D.M.
argued that, because he was treated as an adult until his true age was fixed,
had so abridged the protections provided him under the Family Code that further
proceedings should be barred. Id. at 886. The court disagreed:
"Conformably, it cannot be reasonably said that one, who negates the
operation of the Texas Family Code guarantees by misrepresenting his age, is
entitled to claim the benefit of the guarantees during the period of his
misrepresentation." Id. at 886.
The record supports the fact that the officers had no reason to believe that the
appellant was not an adult. The appellant said he was 17 while he was actually
15. In fact, appellant's second statement began with the assertion that "My
name is TOMMY RAY CARRIER. I am 17 years old." (emphasis in original) The
trial court was able to view the appellant and the appellant's pictures and find
that the officers' conclusion that appellant appeared to be 17 was reasonable.
Further, the officers' main concern was that appellant might not have given them
his correct name. On finding his correct name, the police were able to determine
that he was a juvenile and from that point the record reveals that he was
treated as a juvenile. We find that the appellant's own action in expressly
claiming that he was an adult, in deceiving the police and failing to inform
them of his right name and age, affirmatively and expressly waived his rights to
be treated as a juvenile during the taking of his second statement.
Further, based on this record, the appellant was given all rights provided to a
juvenile by statute in connection with the taking of his third statement. The
record demonstrates that appellant signed the third statement and voluntarily
waived his rights in the presence of a magistrate as required by statute. The
trial court did not err in overruling appellant's motion to suppress the third
statement. Appellant's first and second points of error are overruled.
CONCURRING AND DISSENTING O P I N I O N
Ross A. Sears Justice
I concur with the result reached by the majority, but respectfully dissent from
the finding that appellant waived his right to be brought before a magistrate to
be warned of his rights before any confession or statement can be used against
him. The police are not at fault because appellant lied about his age. However,
none of the cases cited in the opinion dealt with a statement taken before the
accused received the juvenile warnings and rights from a magistrate. I believe
the consitutional and legislative safeguards would be severely eroded if a
juvenile can "knowingly" waive rights before a magistrate advises him
of those rights. I have found no authority on this precise issue. Therefore, I
would find the use of the second statement at trial was error. I would further
find such error to be harmless because statement number three was taken after a
magistrate advised appellant of his rights and after the magistrate determined
that appellant understood those rights.