Cates v. State

170

Ms. Green had been the courtroom dur- testimony. Mr. Luna's The State con- CATES, Appellant, William Curtis tended were unaware of Ms. potential Green’s as a witness until she approached following them Luna’s testimo- Texas, Appellee. The STATE of ny. The trial court overruled No. 031-88. objection. Ms. Green testified that she was one of Court of Appeals Texas, Criminal two women in a tan passed colored car that En Banc. Officer Bock pulled while he had someone Being personal over. Bock’s, friend 7, June 1989. she called his passed. name out as she Rehearing 13, Sept. Denied Appellant contends that it was an abuse of discretion to Ms. testify, allow Green to present in the during courtroom testimony of other witnesses. long

It has been held ruling that the the trial objection court on an to a witness testifying when he has remained in the having placed

courtroom after been under upon “rule” not be relied as a ground for reversal unless an abuse of shown; discretion is contrary and until the shown, has presumed it will be appeal that properly discretion was exer- State, 236,

cised. Webb v. 766 S.W.2d 240 (Tex.Cr.App.1989); State, n. 2 Day v. 451 508, S.W.2d (Tex.Cr.App.1970) citing 509 State, Davidson v. 386 S.W.2d (Tex.Cr.App.1965); Owens v.

S.W.2d (Tex.Cr.App.1974). case, In the instant Ms. had Green been summoned as a witness and was not chief,

connected with the State’s case in but rather became a necessary witness due during

to events good trial. The faith of prosecutor questioned. is not See Ow- ens, supra at 273.

We further note that the State was not negligent failing place under Green identity

the rule since her was not discover- ed until sometime after Mr. Luna testified. Therefore, find that we has failed

to show a clear abuse discretion. Point

of error number seven is overruled.

Judgment of the trial court is affirmed.

TEAGUE, J., concurs the result. product was a of “cus

oral confession not interrogation” consequently todial prophylactic warnings enunciated Mi in Arizona, 436, randa v. 384 U.S. 86 S.Ct. (1966), 1602, unneces 16 L.Ed.2d were State, sary. See: Cates v. 748 S.W.2d 1987). will vacate (Tex.App. Dallas, We — appeals. judgment court appellant’s The facts relevant sole appel- that after ground for review reveal 27, February had been arrested on lant offense, instant while Vatsis, County Jail, Joanna an the Dallas investigator Department the Texas with (hereinafter DHR), Human Resources 4, 1986, March interviewed able to obtain admissions from and was him introduced in the State’s which were The case in chief. record is clear that interview, place took while which LeNoir, Dallas, appel- Molly Meredith incarcerated, no Miranda appellant was lant. warnings The trial were administered. Vance, Atty., Dist. Pamela Sul- appellant’s suppress John court denied motion to Berdanier, Dallas, Atty., Asst. Dist. affirming livan and in its action his statements Huttash, Austin, for Atty., State’s appeals Robert concluded that Vatsis the court the State. not a law enforcement officer within interrogation”

the definition “custodial Supreme by the United States as defined Arizona, supra, at Miranda v. Court. ON APPELLANT’S PETITION OPINION at 1612.1 86 S.Ct. REVIEW FOR DISCRETIONARY State, Relying on v. 681 S.W.2d DUNCAN, Judge. appeals con- (Tex.Cr.App.1984), court of dispositive jury of issue in the case Appellant was convicted a cluded that an pursuant Penal Vatsis to a child to V.T.C.A. was whether injury Code, assessed enforcement 22.04. trial court of law § In also punishment years practice. supra, ten in the at confinement DHR, investigator this Department of Texas Corrections volved ap- following by case $2,000.00. granted appel its case We Court fine of interroga- adopted the discretionary proach review to “custodial petition lant’s McCrory analysis appeals cor announced tion” determine (Tex.Cr.App.1982). 643 S.W.2d 725 in its determination that rect Miranda, way. procedural significant safe- As for the the Court stated: fully guards employed, to be unless other ef- holding spelled some will be out with Our pages are inform accused specificity but brief- fective means devised to in &e which follow prosecution right ly persons this: and to assure stated it it of their of silence statements, it, exculpatory or incul- opportunity use whether exercise a continuous interroga- stemming patory, from custodial following required. Prior measures are demonstrates the defendant unless it tion of questioning, person any must warned procedural safeguards effective to the use silent, right any has a remain that he against privilege self-incrimination. secure the By may be used as evi- he does make statement interrogation, question- we mean custodial him, right against he has a and that dence after officers initiated attorney, presence of an either retained custody or other- person has been taken into appointed. [Footnote omitted] deprived of his of action freedom wise It is obvious that employment by The appeals court of reached the same per DHR does not se invest one with conclusion as we did in Paez: the record the status of a law enforcement officer or support did not finding that Vatsis was police agent. Rather, the record as a of law enforcement. whole clearly must establish that the defen disagree. We “ dant’s statement ‘resulted from a calcu Central to the Paez decision was the fact practice’ lated agents which all of the State investigator the DHR func- present or involved knew was reasonably tioning in her investigative role as likely to incriminating evoke an response defined in the Family Texas Code.2 Ac- id., from ...” McCrory, at Simply cordingly, we concluded that she was not put, the record must establish that when acting as one whose business was to ferret the admissions, made the the out criminal child abuse and then it employee utilizing DHR was her capacity to the local agency. law enforcement so accomplish as to what the could Rather, attempting to locate a lawfully accomplished have themselves. child, home for the defendant’s when dur- Moreover, in we also noted that in ing the course of that interview the defen- resolving this issue one must also consider dant incriminating made statements. The employee whether the DHR was known conversation in Paez between the DHR in- personnel law enforcement and whether it vestigator and the reasonably likely was defendant was for that this individual the would purpose evoke or elicit an distinct incriminating proceeding re a civil court sponse meaning within the involving parent-child Miranda relationship. Arizona, supra, and Rhode Island v. In Comparing the extant circumstances of nis, 291, 1682, 446 U.S. 100 S.Ct. 64 Paez to the instant dichotomy case the (1980). L.Ed.2d 297 With this in standard apparent. The record in Paez revealed the mind, investigator we concluded in following: Paez was not an of law enforcement (1) Vera, investigator, the DHR was not conducting officers as she was not a child conducting an of child investigation, gone abuse but had to the abuse relative to the defendant’s children hospital to see the defendant who awas attempting nor was she to interview the client, to well-being determine the concerning defendant murder defendant’s although children. husband aor criminal offense which was charged husband, with the murder of her charges basis of the criminal undergo interrogation” did not “custodial conviction that case. because the record indicated that the DHR employee (2) Although was not an law enforce the defendant was custo- (at ment as we used that term in McCrory. dy hospital) with the (b) Chapter 2. As of the date of reports trial 34 of All must contain the name and Family pertinent child, Code set out the duties of a address of the the name and address of investigator: child abuse person responsible the child, for the care of the Report: available, § 34.02. Contents of to Whom Made any pertinent other (a)Nonaccusatory reports reflecting the re- information. . porter’s belief that a child has been or bewill (c) reports by any All received local or state neglected, abused or neglect, or has died of abuse or agency law enforcement shall be referred to compulsory has school violated Department the Texas of Human Services or occassions, attendance laws on three or more agency designated by the court to be has, occasions, or voluntarily on three or more responsible protection of children. home absent from his without department designated agency or imme- parent guardian consent of his or for a sub- diately notify appropriate shall state or length stantial of time or without the intent to agency any report local law enforcement return shall be made to local or state law receives, other than from a law enforcement agency, addition shall be agency, suspected concerns abuse or made to: neglect of a child or death of a child from (1) Department of Human Ser- The Texas neglect. or vices; or (2) agency designated by the court to be responsible protection children. husband, investigator DHR has the of her not ac- Whether a murder power to arrest is a factor which should be cused, charged suspected or of child considered; however, answer, positive abuse. dispositive. In negative, certainly is not (3) The interview conducted between Smith, 101 S.Ct. Estelle v. U.S. investigator defendant and the DHR (1981), 68 L.Ed.2d 359 United interrogation initiated to extract or Supreme Court held that a criminal States incriminating gather from information defendant, psychiat- initiates a who neither the defendant. attempts nor to introduce ric evaluation (4) The defendant not the evidence, may compelled psychiatric not be investigation. focus of a DHR respond psychiatrist if his state- subjudice presents The facts of the case capital against used him at a ments can be significantly different situation for al- sentencing proceeding. Grigson, Dr. though Vatsis was not at the behest pretrial psychia- court ordered sponte, sua surrogate or as a for another more tradi- trist, certainly not a traditional law agency, capacity a tional in her as the possessed enforcement officer with investigator op- law, DHR nevertheless yet it power of arrest under Texas erating as an enforcement in law concluded that a criminal defendant custody interroga- the State of Texas. The record is clear in and faced with while appellant figure psychiatrist, in a tion from the court ordered was the central procedural safeguards the of Miranda investigation concerning criminal were essential. and indeed had arrested for the abuse present in the Dallas offense and was regards The same is true with to Vatsis. County Jail at the time of the interview. Although power she did not have Appellant’s arrest had resulted from infor- arrest, agent of law by provided mation Vatsis as well as pursuing in enforcement. Her function examining interviews of the child and the child abuser was for the enforcement Appellant in jail medical doctor. had been Although it is the Texas child laws. abuse charges days five on child abuse at the responsibility not the of the DHR investi- spoke ques- time Vatsis with him and the offender, it gators to arrest the child abuse propounded tions to him were calculated to responsibility to discover child is their incriminating responses relevant to evoke appropriate po- and it to the charges. pending investigators’ agency. is also the lice It pro- obligation such this one to in cases as The counters that the record both State pro- necessary to vide the documentation suppress and at trial in- at the motion alleged of the offender. cure the arrest testimony cludes of Vatsis wherein she un- gathered by Vatsis Here the evidence equivocally not a declared she was appellant was in- jail to the interview of officer in event enforcement and that in arrest. strumental power did not to arrest since she have a member of the law she could Further, undisputed appellant it is community. We find neither interrogated custody by Vat- was in when argument persuasive. As this Court ob- propounded to the questions sis and McCrory supra, in capaci- served so in her official appellant “[t]he was done cases expected to decide investigator. courts cannot be The fact that ty a DHR self-serving appel- state- solely authority basis to arrest lacked the Vatsis interrogat- reality the defendant or the by ments not detract from the lant does Id., Smith, ing paid at 733. See officer.” situation. Vatsis was State Question express purpose Mi- of discover- Applying Texas for the Threshold allegations of child ing, investigating inter- constitutes custodial randa: what findings (1974). abuse, turning her over to rogation?, 25 S.C.L.Rev. prose- responsible for the proper authority declarations are insufficient Thus Vatsis’s offender. of the child abuse decision. cution provide us for a basis Essential to our conclusion is the App.1984), fact sufficiently has damaged simply Vatsis conducting a what was stated and held in Paez to the routine solving interview to assist her in extent longer that Paez is no prece valid problem the abuse within the family unit. dent in this area of our law. Rather, it is evident that she was conduct- The primary join reason that do not ing a criminal and officially majority opinion in the fact that it lies fails operating to assist police agencies those hold, to expressly big print, bold for all responsible enforcing the State’s crimi- see, the world to that when caseworkers nal laws. Vatsis representing “professionals,” for TDHR and such as Texas, party State of interest teachers, investigate school a com- prosecution. This is evident as the plaint against parent, a natural the lawful record interrogation indicates that after the guardian, or the lawful custodian of a child appellant she immediately reported his committing child abuse or child personnel. statements to law enforcement they are then functional noted, appellant As was in cus peace officers, of certified tody for the injury child, offense of to a should be held to the same standards that investigator Vatsis as a DHR was investi peace certified officers must adhere to gating offense, and the statements elic “suspect” when interview a ited from response in direct were express crime. At least this kind of hold- questions propounded to the to him Vat- give profession- would caseworkers and sis. Prior interrogation, appel teachers, nurses, als such as school doc- lant should have proce been afforded the tors, day-care employees, and other safeguard provided dural under Miranda. individuals, guidance and sufficient His statements were therefore inadmissi bright they line rule I believe that could ble. with, give live and would also our courts a easily deciding

It must rule that can now be determined if the be used intro- of duction statement whether statements the “accused” to was harm- less. professionals, We will therefore remand this caseworkers or case to and other government appeals analysis court of for a harm employees primar- who aré not pursuant 81(b)(2). Tex.R.App.Pro. ily Ac- with enforcement of the crimi- cordingly, judgment State, we vacate the of the nal of laws this are or admissible appeals of and remand this cause to inadmissible evidence at the accused’s trial. proceeding that court for further However, consist- majority opinion, has the albeit opinion. ent with this implicitly, actually approved the rule I adopted advocate be in this should TEAGUE, Judge, concurring only in area of the law? the result. majority opinion leads me to con- agree I holding majority with the in the notwithstanding today, clude that after opinion Appeals, that the Dallas Court of provisions Chapter Family 34 of the State, see (Tex.App.- Cates v. 748 S.W.2d 9 Code, pro- if a caseworker for TDHR or a 1987), sustaining 5th erred the trial fessional, teacher, such as a school is some- judge’s decision to admit into evidence parent, how made aware that a natural Cates, statements that William Curtis guardian, or of a lawful lawful custodian appellant, henceforth made to Joanna Vat- suspected committing child is sis, Vatsis, henceforth a caseworker em- or child unless the case- ployed by Department the Texas of Human professional willing or the is worker Resources, Therefore, henceforth TDHR. position gun assume the of a certified I concur. officer, badge wearing carrying, peace willing perform I like a “real I also concur because find that al is further in- though opinion police perform officer must when majority does not ex life” crime, terviewing “suspect” pressly majority opin this Court’s overrule (Tex.Cr. State, ion 681 34 individual is “off-limits” to the caseworker of Paez v. S.W.2d words, professional. or the In other if the Paez also holds that this is true even when professional caseworker or at that time gives the “client” the “Mi- caseworker equivalent is as the functional of a warnings, randa” and even when the officer, peace per- certified he or she must actually “client” then under arrest just peace form like a certified officer must custody committing an perform But, under those circumstances. is not related either to child offense that if the caseworker adheres to what the ma- neglect. In abuse or child when holds, jority opinion states he or defendant made statement doing job will for which he or caseworker, TDHR she was then in the do, employed Chap- custody policewomen uniformed in a of two Family ter 34 of the Code.1 And there lies hospital, room at a the function- which was the dilemma for the caseworker. cell, regular jail al of a where impression, was under the as Justices gunshot being she was then held for the Stewart, Stephens, and Baker of the Dallas wounds that she had inflicted on her hus- Appeals apparently Court also were band, who died as a result of the wounds approve opinion when voted to being she inflicted. She was also Appeals the Dallas Court of in Cates v. gunshot treated for wounds that her hus- State, 1987), (Tex.App.-5th 748 S.W.2d 9 band had inflicted on her. This Court ruled State, also see v. Davis S.W.2d her statements to the caseworker were ad- 1985) (Tex.App.-5th (Appellant’s p.d.r. re- missible evidence. fused, State, Tex.Cr.App. see Davis v. State, distinguished McCroy 0736-87, 3, 1985), P.D.R. No. December (Tex.Cr.App.1982),upon S.W.2d 725 that this Court’s decision of Paez was majority opinion principal- in this cause making final word when it comes to ly McCroy relies. ruled that a statement determination whether an accused’s state- psychiatrist that a obtained from a defen- ment to a caseworker for TDHR was ad- dant was inadmissible evidence because missible inadmissible evidence. part plan evidence showed “a on the of the this expressly Court held that as pyschia- Dr. to use Holbrook [the long TDHR, although as a case worker for police instrumentality in as a trist] employee an terrogation McCroy so [the defendant] does not act as “an enforce- that the statements made to Dr. Holbrook (em- “pursuant police practice,” ment to a though police them- were as made to the phasis supplied), any statement selves.” caseworker obtains from one of his or her cause, “clients,” might Appeals In this the Court of cor- suspect be a as a rectly following: “A investigation result of the discerned the state caseworker’s case, acting neglect employee a child or child is not must as an be subject interrogation. pursuant police prac- custodial law enforcement to a investigate Chapter Family provides, employed 34 of the Code inter who is cases in which neglect “Anyperson having alia: cause to believe that a either child abuse or child has occurred presently suspected occurring. physical The child’s or mental health or welfare or is adversely neglect by by by "to make a be affected abuse or caseworker is mandated statute care, custody, thorough investigation promptly,” ostensibly person responsible ei- for the child’s immediately report or to or welfare shall in accordance with ther to exonerate the accused [this] (My emphasis.) whether the situation is serious Section 34.02 of this Code.” determine enough subjects being steps report so that can be taken to remove Failure to an individual to course, part committing place. of the charged Class B child to a “safe” Of and convicted of of in- should consist § § misdemeanor offense. See 34.07. 34.02 caseworker's alia, parents terviewing individu- provides, report be both natural or the inter that such shall care, responsible whether that any al for the child’s made to local or state law enforcement If, person from the agency, is the accused or not. in addition shall be made to TDHR. investigation, caseworker draws the conclu- professional to make A has 48 hours which filed, charges report should be sion that criminal and must make a written an oral report to the days caseworker shall submit his or her to a local or State law enforce- within 5 court, juvenile as well as the or the district agency. of a caseworker ment In the instance TDHR, agency. employee appropriate enforcement for that individual is a State safeguards officers, tice police before the attendant to cus- are not police certified to be interrogation play. officers, todial come into Only do not wear a police certified offi- under these circumstances do en- non-law badge, gun, cer’s or police the usual offi- personnel agents forcement become of the trappings, usually cer’s but conduct them- purposes distinguishing State for custo- much like police selves bona fide officers interrogation dial from non-custodial inter- might investigat- act when it comes to their (First rogation.” emphasis supplied; sec- involving cases child abuse or child original ond in opinion.) they give even the extent that the “client” the warnings, “Miranda” do Paez, caseworker, aware that her making not control in “client,” determination defendant, in police custo- whether a defendant’s statement to a case- husband, dy allegedly killing went worker is admissible evidence. Under hospital, where the defendant was only it is when the is arrest, caseworker then under formal to see the defen- “acting dant, of law enforcement apparently to determine whether the police children, practice young defendant’s before who were not safeguards sex, attendant opinion age identified in the custodial interro- as to or gation come into being opinion play. Only were taken care of. under those circumstances expressly implicitly per- Paez also does not or do non-law agents or sonnel why pur- reflect indicate the defendant and become of the State for poses distinguishing interroga- her husband had been the caseworker’s custodial past, why interrogation.” “clients” or tion from casework- noncustodial well-being Thus, er was concerned about the under even the caseworker looks, walks, location of the defendant’s children. As to and talks like a “real life” former, appears officer, that the caseworker police unless the caseworker went there because of either child abuse or legitimate police then of a behalf neglect past. that had occurred in the agency when he or she interviews latter, opinion As to the does not either “client,” purposes of “custodial interro- expressly implicitly or reflect or indicate gation,” the caseworker is not a offi- just exactly where the children were cer or the functional of a located, being or whether were then officer, worker, only but is then a social taken care of friends or relatives of the statements obtained from the caseworker, however, family. The was not “client” become evidence in the admissible “police agent,” in the form of a nor defendant, trial of the no matter what of- part any plan part was she on the committing, he is fense police when she went to interview the de- might he situated when the state- where fendant. The defendant’s statements ments were obtained. the caseworker were ruled admissible evi- instance, undisputed In this it is dence this Court. caseworker, Vatsis, the TDHR was not a Thus, Paez, under or not a de- whether officer,” “police simply a TDHR but was fendant’s statement to a caseworker doing job the that she was as- caseworker TDHR is admissible evidence is determined TDHR, is, signed investigat- to do that the is on the basis of whether caseworker ing appellant a case that indicated that part plan by legitimate police offi- of a the bodily in- unlawfully inflicted serious have in- cials to use the caseworker to obtain unequivo- jury his natural child. Vatsis on criminating the accused. statements from spoke with cally testified that when finding supported by If such the evi- acting police appellant she was not dence, the statement is inadmissible evi- acting on behalf of officer and was not dence; not, if it then becomes admissible legitimate police agency, but was some But, opin- today’s majority does evidence. doing investi- only as a social worker comport holdings? those ion with possible gative for use civil work involving parent-child rela- proceedings factors such as TDHR case- Under Paez, why holding in tionship. Under the qualified are not trained or to be workers During from the interview that Vatsis had aren’t the statements Yatsis obtained appellant appellant, very damaging he made admissible evidence? and with Vatsis, incriminating statements to who did of this cause show that Yatsis facts warnings give not him the “Miranda” but when someone notified became involved him did not have to talk that he with told TDHR caseworker should investi- injuries oc- her about how the child’s had victim, alleged gate condition of the Although or had been inflicted. curred child, appellant’s who was natural which not appellant told that he did have Vatsis by going Vatsis did to the residence where her, expressed appellant to talk with when thereafter, Soon child was located. keep family together, to his a desire Vatsis Vatsis, child, appeared with him commendable but that told that was injured, seriously to have been him help for her if he be harder to would drove, hospital, child’s not to a but mother Appellant not talk to her. thereafter did Appellant follow to Vatsis’ office. was to agreed be to interviewed Vatsis. Vatsis However, them to the office. he did not explain pending appellant to asked By up show at Vatsis’ office. the time him, charge against after criminal which office, child arrived at Vatsis’ the child was incriminating appellant made the admis- pain. in extreme An sum- ambulance was to Vatsis. sions transported to a moned and child was Legitimate hospital for treatment. from appeals The court of concluded Vat- soon ar- were notified officers testimony Vatsis not sis’ “was hospital, appellant rived at the after which during her of law enforcement arrested, location, for was but at another therefore, appellant; ap- conversation with allegedly committing the offense of unlaw- pellant’s admissions did [Vatsis] fully causing injury a child. Vatsis interrogation. from stem custodial Conse- representative of formed mother that a require- quently, there no need for was filing TDHR in order would be a civil suit 38.22 or Miranda to be ments article gain child, custody lawful testimony. met to admission of her filed. subsequently lawsuit was The record 681 S.W.2d at 38.” See conclusion, clearly supports this and under Thereafter, appellant Vatsis visited ad- should have been statements County Appellant the Dallas Jail. evidence. missible injury child then incarcerated on the charge. purpose Vatsis testified however, majority opinion, This Court’s jail in going appellant to the to visit with testimony that Vat- concludes from Vatsis’ appellant interview obtain agent of “operating as an law sis was much could what information as she about Texas” enforcement in the State of when happened had child so that she could This appellant’s statements. she obtained might possible prepare for a civil suit that majority’s fol- flows from the conclusion terminate, permanent- temporarily either (1) inter- lowing Vatsis reasons: when appellant’s right custody of the ly, to have he appellant when spoke with viewed terminated, child, and, custody if jail, was then “central appellant conditions, any, on make decisions what in a concern- figure visiting might later placed abuse”; (2) “had his child. offense”; (3) ap- present arrested for the County Jail at pellant me “was in the Dallas testimony it clear to makes

Vatsis’ interview”; (4) appellant’s time of the at enforce- jail that she was pro- from information had resulted was not there arrest purposes; ment that she as inter- offi- well vided a bona fide law [Vatsis] examining medi- of child and the cial; at the the not there views and that doctor”; propounded (5) questions “the legitimate cal request law enforcement [appellant] calculated to [by were Paez, why the aren’t Vatsis] officer. Under incriminating relevant to responses evoke criminating Vatsis obtained statements charges”; (6) pending evidence? appellant “[Vatsis] from admissible conducting investigation a criminal and of- evidence, “On the basis of this the inter ficially operating to assist those view was not a interrogation’ ‘custodial agencies responsible enforcing required which warnings. Miranda Cf. laws”; (7) State’s criminal “[Vatsis], after Payne State, (Tex.Cr. v. 579 S.W.2d 932 interviewing appellant,] immediately re- App.1979) (holding general questioning by ported [appellant’s] statements to the au- probation interroga officer not a ‘custodial thorities”; (8) self-serving “[Vatsis’ tion’.)” (81). previously pointed out, As declarations, namely, that she was not a this Court refused the petition defendant’s law enforcement officer and that she was discretionary Davis, review in thus im not a member of the law enforcement com- plicitly approving holding of the court munity] are totally provide insufficient to appeals. us awith basis for a decision [that recently, Just in Wicker v. ‘acting of law enforcement S.W.2d (Tex.Cr.App.1987), majority pursuant police practice before the Court, of this amazingly did not even sageguards attendant to custodial interro- mention opinion, although Paez in its gation play’].” come into issue involved facts which concerned anoth- I ask: Isn’t this type the same of reason er TDHR caseworker who had interviewed ing that the Appeals Fort Worth Court of “client”, upheld similar statements that unpublished opinion Paez, used in its see the defendant in that cause had made to State, Tex.App.2nd, Paez v. No. 2-83-263- appeal caseworker. The issue con- CR, 9, 1983), November when it ruled that admissibility cerned the of both oral state- statements that the defendant in that cause ments that the “client” had made to the made to the TDHR caseworker inad were caseworker as well as a written statement missible evidence because were the that gave defendant the caseworker. interrogation?” But, result of “custodial incriminating. Both statements were At reject didn’t this Court that kind of reason time, the defendant was not under in its decision of when it reversed or in police custody. copy arrest A lawful judgment of the Fort Worth Court of eventually the written statement Appeals? reached Attorney’s the District Office. Also, isn’t this the same kind of reason Charges against were thereafter filed ing that Appeals the Dallas Court of used upholding defendant. the admissibility reject Davis to the same kind of com of the defendant’s statements to the case- plaint appellant makes in this cause? In worker, majority opinion concluded that Davis, the child was taken to Parkland gave when the defendant his written state- Hospital by Memorial the defendant and caseworker, ment to the he was not “in others. Examination revealed that custody.” majority opinion also con- suffering child was from severe malnutri “Assuming arguendo cluded: [the tion, abuse, due to child was an of the State caseworker] injury defendant, to the child which (footnote deleted), we are unable to distin- treating physicians caused the to contact guish Mathiason, Oregon this case from County Dallas Child Welfare so that supra, U.S. 97 S.Ct. [429 investigate possible could civil or (1977)] Supreme L.Ed.2d 714 wherein the violations of the law. A TDHR caseworker Court concluded that no custodial interro- investigation commenced and interviewed gation had occurred hold ... [W]e defendant, certainly in who was then custody was not in when he made “accusatory” stage process. As oral his statements casework- [sic] [the cause, in this the caseworker testified that The statement was admissible er]. [sic] the reason she conducted interview was 38.22, (787). supra.” to Article in her whether to assist her Under that a rational and proceedings to re believe or not to initiate civil that, easily can conclude reasonable mind move the victim from the defendant’s cus when it comes to a TDHR caseworker who tody, and was not done for criminal law appeals an individual who is then sus- purposes. The court concluded: interviews committing if is pected neglect either child or the caseworker somehow made aware abuse, individual, figure in either or that the “client” is “the central a child before concerning child formally he has been after with neglect]”, charges have committing abuse child arrested for some child [or and/or against offense, might been or be filed the “client” neglect or child there is no offense, committing allegedly that un- requirement give to case-worker willing less the is to assume caseworker warnings “client” the Miranda unless certified, carrying, position gun of a agent acting is an of a case-worker as badge officer, wearing police and is further agency legitimate law enforcement and is willing like perform police a real officer to acting pursuant legitimate police also to a perform interviewing he is a must when instance, practice. this there is no evi- “suspect,” “client” is limits” to the “off category; into either dence that Vatsis falls If not caseworker. the caseworker is will- fact, point all of the on this is evidence to assume functional Paez, undisputed. the evidence in Under officer, real she will police a life then he or support is to clearly this cause sufficient acting agent as of law be deemed to be finding that interviewed when Vatsis practice, to police a appellant when he was incarcerated she testifies, even he or she and such testi- acting any legit- as an mony disputed, is neither contradicted nor agency and imate law enforcement that he she not then or acting pursuant legitimate prac- ato agency pursu- of a law enforcement tice, a simply but was caseworker practice. ant to a and com- Also see expected for TDHR is to act as a matter Ramos, pare v. 367 Pa.Su- Commonwealth Therefore, statutory law. under 84, (1987), per. A.2d 465 is a McCrory, notwithstanding that appel- that supports “white horse” case jail, was then incarcerated in lant’s contention. during to admissions Vatsis interview interrogation. not stem from custodial I that this is did conclude such nebulous Consequently, there no it amounts no standard at under standard that to requirements guiding all in TDHR or need for the of Art. 38.22 or caseworkers for nurses, doctors, teachers, day-care em- to to Miranda be satisfied the admis- statute, to ployees, come within the testimony sion of her into evidence who before they should do when confronted with jury. what All a similar situation. of these individu- pause briefly point out that Estelle als, they when have cause to that believe Smith, 101 S.Ct. U.S. neglect- may be or child has or abused (1981), clearly inapplicable L.Ed.2d 359 is ed, make required are an oral nothing the issue because there is in the agency local or law enforcement State might reflect record before us that or indi- suspect after first within 48 hours cate that the that Vatsis had with interview may or or that the child has been be abused appel- or appellant was court ordered that Teachers, neglected. like casework- TDHR lant’s conversation Vatsis was not vol- ers, us are of the Let employees State. untary. cause to assume a schoolteacher has out, previously pointed As since has been one of students believe that given the everytime this Court has been neglected fa- or or abused or overrule what opportunity restrict However, the teacher ther the child. Paez, concerning held admit- stated and con- questions her belief. She has about ting into evidence defendant’s statements suspicions. about her fronts the father caseworker, it has declined to to a TDHR interview, During she concludes so. do really not have cause to believe did caseworkers, or may had been be abused should TDHR her student How cases, suspi- neglect neglected. Now that teacher’s vestigate child abuse or favorably resolved today’s opinion? appears It cions have been majority view father, still the teacher majority opinion, today’s under benefit to me that required report suspicions her former stances, “clients” who are then incarcerat- well as what she learned or concluded from jail facility ed should not be inter- the interview with the father? What if by you viewed if there is the possibility during the interview the father makes in- might that the State attempt later to have criminating statements to the school teach- admitted into evidence statements Unquestionably, er? the teacher is re- you. “client” makes to quired, law, as a matter of this to a local or State law enforcement agency. CAMPBELL, Judge, concurring. Will the statements that the father made to I wholeheartedly agree with the majority the school teacher be admissible in court? treatment of the core issue in this case. Rather than leave TDHR caseworkers The facts in the instant case clearly are professionals and such as school teachers distinguishable from those in Paez grasping law, what must do under our 34 (Tex.Crim.App.1984). S.W.2d As when either the parent natural or lawful has been stated an author with some guardian of a suspected being child is knowledge considerable Anglo-Ameri- guilty of child abuse or child I jurisprudence: can would hold that if it can be concluded that “The only decided case stands for a professional caseworker or the point actually necessary judgment. the functional of a certified Anything officer, opinion else peace is dictum. then that individual must act Even if the rule carefully laid just like a real down officer must act under would lead to the decision in circumstances, the same or the case and similar and will to, unmistakably be held to the meant the case is appel- same standards that ‘distinguishable’ still you apply late courts can distin- “real life” offi- guish cers. it on either the facts or the issue.” Llewellyn, Transactions, Commercial I majority opinion find that the has broad pp. (1946).” 16-17 implications. instance, only this we are dealing with a TDHR caseworker who in- I solely purpose write of exam- parent terviewed a natural who was then in ining “concurring” opinion the other in this jail having after with commit- case. Judge Teague What is it that “con- ting a criminal offense on his natural child. legal curs” in? principle princi- What However, majority opinion ap- can be ples majority contained in opinion are plied involving probation to situations and “concurring” opinion? embraced his officers, parole employees, and other State distinguish- Does he find the decision Paez perhaps employees, non-State are who No, able from the instant case? primarily charged with enforcement of Judge Teague Does indeed! conclude that statute, a criminal their interview holding governs disposition custody.” “clients” who are “in Also indeed, of the instant case? Yes he does! Ringel, see Ar- Searches and Seizures: Judge Teague In fact concludes that the 26.05(b). Confessions, rests and 26.5 and § clearly record supports Ap- the Court of conclusion, peals in its “and under Paez the majority opinion

Given states what statements should have been admissible ev- holds, as well as what it does not state Teague, J., Concurring, slip op. idence.” at hold, say governmental employees, I yet majority opinion And finds that caseworkers, “profession- as TDHR such appellant’s statements were inadmissible. als,” Family as that term is defined in the Code, portend Judge Teague Does this finds officers, officers, probation parole Presiding Judge comfort in investigators, McCormick’s welfare fraud other Dissenting Opinion? Nay, nay! Methinks government personnel primari- who are not Judge Teague (along finds succor ly charged with crimi- concluding paragraph you willing appellant) in the nal statutes: Unless are opinion. com- perform just peace majority like a certified officer With these ments, join opinion. perform majority must under like or similar circum- I McCORMICK, Presiding Judge,

dissenting. Appeals was

Believing the Court of correct, vote that completely would improvidently petition in this cause was granted. must, therefore, judg- dissent to the this Court.

ment of WHITE, JJ., join this DAVIS dissent. DRINKARD, Gerry Appellant,

Richard Texas, Appellee. STATE No. 69660. Texas, Appeals of of Criminal Court En Banc. 14, 1989. June Rehearing Sept. Denied appeal O’Brien, appointed

Doug Houston, appellant. only, Holmes, Jr., Atty. and Wil- Dist. B. John Gotschall, Delmore, III & Glenn liam J. Houston, Hut- Attys., Robert Dist. Asst. Austin, State. tash, Atty., State’s

OPINION

McCORMICK, Presiding Judge. convicted Gerry Drinkard was Richard capital murder. of the offense by jury trial, the stage of the punishment At the findings both affirmative jury returned sentenced appellant was issues and special

Case Details

Case Name: Cates v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 7, 1989

Citation: 776 S.W.2d 170

Docket Number: 031-88

Court Abbreviation: Tex. Crim. App.