*1 (Tex.1994). nary circumstances will be considered. conditionally We therefore is case, plaintiffs this have alternative sue the writ of mandamus. information sources available. For exam-
ple, meetings the LRB’s tran-
scribed, array and a wide of documentary
information provided plain- has been
tiffs, including materials the State of Texas Department
submitted to the of Justice to
support preclearance under section 5 of Act, Voting Rights 42 U.S.C. 1973c. ROQUEMORE, Howard Earl plaintiffs The alleged have neither nor Jr., Appellant, any extraordinary demonstrated circum- might justify stance that ap- what would v. pear to unprecedented almost incur- of Texas. STATE legislative immunity. sion into No. 722-00. support position, To their plaintiffs cite a of number cases which officials Texas, Court Criminal have testified about redistricting efforts. En Banc. Upham,
See Seamon v.
F.Supp. 704 Bush v.
Martin, (S.D.Tex.1966). F.Supp. legislative immunity, privi-
But like other
leges, may be waived. Burtnick v. Mc-
Lean, (4th Cir.1996). 76 F.3d
There no indication the cases the
plaintiffs rely upon legislative immuni-
ty Here, voluntarily was not waived.2 legislative
there has been no waiver record,
immunity. Accordingly, on this
LRB members and their aides are entitled protection.
to the doctrine’s
III. Conclusion hold that the trial court abused in denying its discretion the relators’ mo J., Womack, Holcomb, con- J. and quash. party tion to A adequate has no separate opinions. curred filed remedy by appeal when the trial court Keller, P.J., erroneously privi opin- orders the disclosure of dissented filed J.J., leged Hervey, information. TransAmerican Natu ion in which Keasler and Flores, Corp. joined. ral Gas only ing depositions private
2. Our research has revealed
one in-
citizen members
person acting
legisla-
Advisory
stance which
in a
Governor's
Committee on redistrict-
capacity
compelled
testify.
ing).
per-
tive
has been
We do not find this isolated case
(allow-
Marylanders,
OPINION PRICE, J., opinion delivered the MEYERS, JOHNSON, Court which HOLCOMB, COCHRAN, J.J., joined *3 WOMACK, J., in II-A and Part of which joined. requires Code section juvenile
that once an officer takes a into custody, the officer must do of one six unnecessary enumerated acts without de- lay and taking without first any place juvenile processing other than a office. Article 38.23 of the Code Crimi- requires suppression nal Procedure if section followed. in The officers this case obtained a confes- sion and property recovered stolen after taking appellant custody into but be- him taking processing fore to a office. must determine whether the We in admitting testimony trial court erred regarding the oral statements and testimo- ny concerning recovery prop- of stolen erty. appellant’s hold that because the We oral statements were not the result of interrogation custodial and made were en office, juvenile processing route to a properly trial testimony court admitted re- garding the oral statements. also hold that, appellant because the was not first juvenile processing taken to a office before recovered, the stolen 52.02(a)1 was not followed and the trial admitting court erred evidence concern- ing recovery property. of the stolen Accordingly, judgment we reverse the Appeals the Court of and remand the case analysis. for a harm Burkholder, III, Houston, Henry L. for Appellant. J. FACTS DA, Houston, Curry, Alan Asst. This case arises from two armed robber- ' State. suppress ies in Houston. At a motion to
hearing, that he Officer Garcia testified appel- and Officer Heimann went appellant 1. All into custo- references to sections of the time the was taken 51.09(d)(2) dy refer to the Texas Code as unless otherwise indicated. issuing written suppress tion to without ap- home to take the grandparent’s lant’s robbery. pellant custody into for armed its rationale. findings explaining of fact or explained appellant’s Garcia uncle jury regarding before the Garcia testified appellant brought out from back oral both statements appellant room and that uncle told the recovery property. that he needed cover himself because argu raised the same people pointing finger him. were appeal. The Court ments on direct appellant that he un- Garcia told the conviction, Roque affirmed gas robbery, placed for a der arrest station (Tex. 400-01 more car, pro- *4 2000) (op. on App. [1st Dist.] the appellant to read his Miranda ceeded — Houston and the reh’g), that the confession holding warnings. stolen offer to the officers to the take appellant testified that the Garcia said voluntary and property were statements cooperate po- that to he wanted interrogation. not the result of custodial ap- further that lice. Garcia testified State, 191 Because 776 S.W.2d Comer pellant admitted that and two he section (Tex.Crim.App.1989), interpreted gas men had robbed woman at a station custody inter require to both and offered to the officers and take to rogation, concluded the Court property. explained stolen Garcia house, to appellant nearby operate led them did not to pictures the officers some concerning where recovered testimony exclude the officer’s receipt a credit card and bore the appellant’s Roquemore, statements. robbery of a name victim. Garcia stated Ap 11 S.W.3d at 399-400. The Court that, they the property, after recovered that, peals also held even section took appellant juve- the officers followed, re testimony about the was nile division. to the answer State’s covery properly property of stolen was cross-examination, question on Garcia esti- Ap at 400. admitted. Id. The Court that, they mated from the time took the held peals its facts and limited Comer appellant into time custody they to the that, there was evidence of because no property, recovered between and and improper impact by the officers elapsed. minutes had unnecessary delay, no because there was hearing, appellant At the argued exclusion was unwarranted. Id. testimony concerning oral his state- granted review determine wheth- recovery and the prop- ments of the stolen describing testimony appellant’s er erty suppressed should be because he was concerning testimony oral and statements unnecessary delay not taken without property2 recovery stolen first juvenile processing was not taken to a suppressed should under section office, in violation Code 52.02(a).3 trial court denied the mo- in-custody 2. to Officer property The recovered was never offered at oral statements made Garcia, child, Only testimony trial. of Officer Garcia where the was a describing pre- the recovered immediately questioned upon being into taken jury. sented custody, and where was not processing re- taken office as to a granted ground we The exact on which re- quired by law.” “The committed view was: trial court revers- failing suppress error in ible II. ignated code, DISCUSSION under Section 52.025 of this shall following do one of the [enumerated In reviewing sup a motion to 26, 1991, May Leg., acts].”4 Act of 72d press, give great to a deference trial R.S., 495, 1,§ ch. 1991 Tex. Gen. Laws court’s determination of historical facts. (amended 1999) (current 1738, 1738-39 85, See Guzman v. 52.02(a) (Ver- § version (Tex.Crim.App.1997). questions Mixed Tex. Fam.Code non Supp.2001)).5 Former Code credibility law fact that turn on the 51.09(d)(2)read, “This and demeanor of a section does witness are reviewed standard, not preclude under the the admission of a statement almost-total-deference questions mixed of law and fact that made the child if: ... the statement do not turn on credibility and demean- does not stem from custodial interroga- or of a witness are reviewed de novo. Id. May 27,1991, R.S., tion.” Act of Leg., 72d Also, we examine light the evidence ch. 1991 Tex. Gen. Laws most favorable to the trial ruling. (amended 1999) (current court’s version Ballard, (Tex. State v. 51.095(b)(1) (Vernon (cid:127)Tex. Fam.Code Crim.App.1999). the trial When court Supp.2001)).6 fact, *5 findings does file we assume appellant argues The that because he implicit findings that the trial court made juvenile was not taken to a processing support that ruling, long its so as those making office before statements to Garcia implied findings supported by are the rec and recovering property, before Ross, ord. State v. the trial suppressing court erred (Tex.Crim.App.2000). If the decision is testimony. Garcia’s relies any theory applicable correct under of law proposi- on our decision in for Comer the case, ruling the will be sustained. tion that Family provisions the Code’s Id. at 855-56. strictly should be followed. juvenile Because the a at was Comer, In question: the reviewed arrest, provisions the time of his the by juvenile whether a written statement a Family involving Code control issues the suppressed should be when section appellant’s rights. substantive See 52.02(a) had not been followed but the (holding at that issues appeared statement admissible under involving rights pre- the substantive 51.09(b)(1). section The facts that were juveniles governed by transfer are the Code). elapsed three hours had from the time 52.02(a), Section the arrest, custody Comer was taken into until he was time of the read rele- transported juvenile center. part: person taking vant “A child to a detention a into interval, custody, In the taken to a unnecessary delay without and Comer was justice taking any place peace without first the child to where he received the juvenile other than a processing appropriate Family office des- Code admonishments. Taking Transportation child to the crime scene or the ter 724 of the Texas Code. Tex. 52.02(c), (d). location of stolen is not one of the § Fam.Code 52.02(a). options § listed. See Tex. Fam.Code of section 51.09 deals 6.The current version 5. The statute has been amended so that an juvenile's rights. waiver of a Tex. may bring officer a a child to secure detention § 51.095 deals with 51.09. Section Fam.Code facility provided by as section Tex. 51.120. admissibility juvenile’s of a statements. 52.02(a)(4). Also, legislature Fam.Code 51.095. Tex. Fam.Code (c) (d), added subsections and which deal specimens Chap- with blood and breath under Le, we writing Baptist made a full confession in In Vie reviewed Comer justice peace. complied a officer question: before whether 52.02(a) he section when took time-period three-hour held that the We directly and then magistrate to a unnecessary delay and that to the homicide division. 993 S.W.2d inadmissible, not- written statement was (Tex.Crim.App.1999). The facts were 51.09(b)(1). withstanding section See custody taken into that at 196. We noted magistrate. Baptist a and then taken to Three of Title Code contained transported Le then the Hous- Vie was competing protect public “the interests: Department gave where a ton Police he from the acts of while unlawful children concomitantly insulating those children written statement. stigma criminality provid-
from the held the statement should We ing their Id. welfare edification.” suppressed nothing because vein, at 193. the same there is tension record indicated that the Houston Police between section and section designated by was an office Department 51.09(b)(1).7 We resolved the tension juvenile court under section requiring provisions of section emphasized id. at 654-55. 52.02(a) be interrogation followed before language was both 51.09(b)(1) under permitted. mandatory. See id. 655. “The clear necessary deems it ‘Where officer very specific Legislature has forth ac- set custody, take the child into tions which law enforcement officer must ... dictates must then what he do ‘without juvenile.... arresting take when [W]e unnecessary delay taking and without first *6 ” ignore Legislature’s not manda- the anywhere the child else.’ Id. at 194. We provisions ju- the tory regarding arrest of reasoned 8 contemplates that “Title that Id. our veniles.” We reaffirmed decision initially once he has found cause to take and that the legislature Comer noted into custody the child the deci- makes to intended involvement be restrict- sion to refer him the intake ... a officer prompt the initial release ed to seizure law enforcement officer ulti- relinquishes juvenile. (quot- or commitment of the Id. mate control over the func- investigative Comer, 194-95). 776 at Be- ing S.W.2d tion of the case.” Id. at 196. In other cause the evidence was obtained viola- words, legislature’s it was that intent 52.02(a), of section we held it was tion designated by “the officer not to suppress error confession court make initial decision whether analysis. for a harm id. at remanded subject a interrogation.” child to custodial (“[The 52.02(a)’s required was to do officer] 655-56 Id. Because provisions followed, options of the five listed in section one illegali- were not and the taint of 52.02(a) unnecessary Tak- delay.’ ‘without ty dissipated, had we found a violation [Baptist Le to the homicide divi- ing Vie] of article 38.23 of the Code of Criminal for anal- did not one of these five Procedure and remanded a harm sion constitute ysis. options.”). See id. at 196-97. offense, place Comer’s or in the custo-
7. At
time of
or other
of confinement
19, 1975,
51.09(b)(1)
May
part
dy
read in relevant
that a writ-
of an officer....” Act
R.S.,
693, 9,§
by
Leg.,
"is
1975
Gen.
ten statement
a child
admissible
63th
ch.
Tex.
(amended 1999) (current
concerning
any
proceeding
2154
evidence in
future
Laws
51.095(a)(1) (Ver-
§
matter
which the
was
version at Tex. Fam.Code
about
statement
facility
Supp.2001));
at 195.
given if ...
child is in a
non
detention
Le,
Baptist
Comer and
Vie
it is clear
176. A statement
policy
this Court established a
of otherwise admissible under section 51.09
compliance
strict
with the
may
Code
be found to be
inadmissible
provisions, especially
requirements
of section
are not
Baptist
will adhere
Comer and
LeVie
followed. See
51.09(b)). A. Oral Statements According testimony Garcia’s In applying principles, the above we can- the motion to suppress hearing, Garcia agree argument car, placed appellant the squad into that the oral statements should appellant told the that he under ar was suppressed because section rest, warnings. and read him Miranda not followed. hearing warnings, After his Miranda appellant cooperate said that he wanted to 51.09(d)(2), Under section if a and then made the oral statements.8 statement does not stem from a custodial appellant made the statements moments interrogation, the statement is admissible. placed after he in the car and had 27, 1991, R.S., May See Act of Leg., 72d warnings. received his Miranda The oral § ch.593 1991 Tex. Gen. Laws any were not the result of statements (amended 1999) (current version at questions or conduct Garcia. Further 51.095(b)(1)); Tex. Fam.Code Tex. cf. more, any there is no indication of delay (allowing art. 38.22 Crim. Proc.Code between time Garcia took the admission of that do not statements stem custody into and the time the statements interrogation); from custodial Jones v. testimony made. The were indicates that (Tex.Crim.App. sponta made the statements 1990) (holding voluntary statements *7 neously voluntarily while en route to interroga that do not arise from custodial juvenile the division. Amendment). tions do not the Fifth violate A custodial interrogation testimony, occurs when a Based on the trial Garcia’s in custody exposed appel- defendant is and is “to court free to that was conclude the any part words or actions on the being lant made the oral statements while police police] transported juvenile ... that should know to a office without [the reasonably likely unnecessary delay. are to elicit an incrimina See Tex. Fam.Code Innis, 52.02(a); Ross, ting response.” § Rhode at 855. The Island 32 S.W.3d 291, 300-01, 1682, supports theory 446 U.S. 100 S.Ct. 64 record the that the state- Jones, (1980); freely L.Ed.2d 297 795 at ments were made and were not the police interrogation. or actions the Act Words result custodial See R.S., 1, 27,1991, § normally custody, May Leg., 72d ch.593 attend an arrest and (amended 2129, informing as a of his Mi 1991 Tex. Gen. Laws 2130 such defendant 1999) (current a at Tex. Fam.Code rights, randa do not constitute custodial version Innis, Innis, 300, 51.095(b)(1)); interrogation. § at 446 U.S. at U.S. Jones, Ross, 1682; 174, 301, 1682; at 32 S.W.3d S.Ct. 795 S.W.2d S.Ct. property's 8. The then said that he could take the officers to the stolen location. 52.02(a); prop- See Tex. Fam.Code ing We hold that the trial court office. 855-56. suppress testimony By re- at 194-95. the erly refused to 776 S.W.2d statute, oral statements. not garding the defendant’s it is language clear question a of whether the officer merely Recovery Property B. of Stolen options enumerated did one of six Although testimony regarding unnecessary delay, but also wheth- without admitted, properly oral statements was to juvenile any took the other er the officer concerning recovery 52.02(a); testimony place first.9 Tex. Fam.Code property the stolen was allowed before 776 S.W.2d 194-95. The
jury
violation of the
Code.
case,
the trial
de-
In this
because
court
argues
requires
section
State
suppress,
implied
the motion to
nied
immediately do one
neither that an officer
complied
finding is
the officers
a
the six
acts nor that
enumerated
record, however,
immediately
juvenile
juvenile be taken
to a
finding.
support
this
Garcia’s
does not
rather,
office;
only
the statute
processing
that the
did
testimony established
officers
do
these
requires that the officer
one of
juvenile
take the
to
divi-
unnecessary delay. Be
options without
any
place.
going
sion without
recovering
cause
suggestion,
and because
In a
involving
similar case
delay
min
only twenty
twenty-five
52.02(b),
Ap
First Court of
the Houston
duration,
delay
utes in
unnec
was not
opinion
on
in Russell v.
peals relied
our
therefore,
essary;
the evidence was admis State,
(Tex.Crim.App.
717 S.W.2d
disagree
sible. We
evidence was
1986),
C.R.,
and on
re
admissible.
denied),10
1999,pet.
(TexApp.
— Austin
produces
hold that once the defendant
agree
do
State that section
52.02(b)violation, the
of a section
52.02(a) does
that a
offi-
require
the State
prove
burden then shifts to
immediately
cer
do one
the enumerated
52.02(b). Tuy
compliance with section
acts or that
taken
immediate-
Pham v.
201-02
ly
juvenile processing
key
to a
office. The
2000, no
(Tex.App
Dist.]
[1st
timing
unneces-
questions
without
. —Houston
Although
Tuy
the issue
Pham
pet.).
But,
sary delay.
requires
52.02(b),
around section
we see
centered
simply acting
more than
without unneces-
why
analysis would not also
no reason
this
sary delay.
require-
The statute has three
52.02(a). Therefore, once
apply to section
ments once
custo-
taken into
1)
juvenile produces
evidence that section
dy:
officer
do one of six
*8
52.02(a)
2)
violated,
the
then
acts;
burden
unnecessary
enumerated
without
3)
compliance
to the
to show
with
delay;
taking
first
the child shifts
State
without
52.02(a).
Id.;
any place
juvenile
Baptist
a
Vie
proeess-
to
other than
section
See
cf.
offense,
52.02(a)
options an
has once he has taken
9. At the time of the
section
seven
officer
subsections,
custody. We also
op-
child into
note that
five
which
had
contained
52.02(c)
exception
an
to
provides
tions of the
once he
taken the
section
officer
had
52.02(a).
complying with section
custody.
Baptist Vie Le
child into
We said in
taking
juvenile
a
section 52.025
juvenile processing
ex-
office was in essence
C.R.
on article 38.23 to
10. In re
relied
Le,
option.
Baptist
pressly
sixth
Vie
hold that the State bears
burden
52.02(b).
compliance
showing
with section
at 653. The current version of section
C.R.,
subsections,
S.W.2d at 783.
has
so
are now
In re
six
there
Le, 993
at 654-56 (noting
S.W.2d
that a
len property is not enumerated. Because
suppressed
statement
should have been
appellant
transported
was not
to the
when the
compliance
record did not show
juvenile
being
division “without first
taken
52.02(a),
with
remanding
any
place,”
other
the officers violated
analysis
harm
when the evidence
ad
52.02(a).11 Comer,
776 S.W.2d at
mitted in violation of article 38.23 of the
196-97.
Procedure).
Code Criminal
Here,
appellant
and the State elicit-
Article 38.23
ed the same
hearing.
evidence at the
This
Having found a violation of section
evidence showed that the officers
took
52.02(a),
determine whether ex
appellant
to recover the
proper-
stolen
appropriate.
clusion is
ty
him
they transported
juve-
before
to the
Cf.
fact,
(holding
S.W.2d at 197
nile division.
In
evidence
the State admitted
appellant
suppressed
officers took the
to the
should have been
under article
juvenile
they
division after
recovered the
38.23 where
say
this Court could not
Ill,
property.
stolen
Ct. R. vol.
at 446.
confidence
had the
only
evidence elicited
the State
promptly
juvenile facility
taken to
“he
established that
was not would still have chosen to confess his
transported
to the
division “with-
crime.”).
requires
Article 38.23
exclu
being
out first
any
place.”
taken to
other
sion
evidence
or
“obtained
officer
Accordingly, the record
not support
does
person
any
other
provisions
violation of
implied
finding that section
of the Constitution or laws of the State of
Ross,
was followed. See
871 location going that first to the of obtained at time12 con Accordingly, evidence clearly property.14 There is a the had not been violated. property recovery cerning recovery the the stolen connection13 causal between suppressed.15 Tex.Code of should have been property illegality of the stolen and the Here, course, of Crim.App.1995)). consequence appel- had taken the the 12. Of the officers directly illegal recovery to the division and then was the of lant detour gone property clearly property; illegally to recover the them- in stolen acted the officers selves, they would in full compli- obtaining have acted the evidence. Similarly, law. ance with the under the "in- Furthermore, disagree we with the dissent’s discovery” announced evitable doctrine vio- evidence "in distinction between obtained in Supreme the United States Court Nix v. "during opposed lation a violation of” as Williams, 431, 448, 2501, U.S. S.Ct. 467 104 State, v. 598 850 of.” Ebarb S.W.2d (1984), testimony concerning 81 L.Ed.2d reh’ing), (Tex.Crim.App.1980) (op. we held on recovery property of the stolen would be gun suppressed a have been under that should exception to the admissible under this Fourth though given article Even Ebarb had 38.23. Court, exclusionary This Amendment rule. (which permission her was to search car however, held statutory has that the Texas found), gun where we held that exclusionary rule article codified in 38.23 her, police illegally detained and the con- had discovery” not contain "inevitable does recovery gun's result of sent and the were the exception. Daugherty, 931 S.W.2d Ebarb, illegal that detention. 598 S.W.2d 271-73. That issue us. is not before 844-45, just easily said in 850. It could as during Ebarb that the evidence was obtained Presiding Judge Keller’s dissent is wide of law, gun a that is was found violation of argues when she there the mark was no detention, during illegal in vio- instead of connection causal between the detour and the Respectfully, "during lation a viola- of law. recovery says of the evidence. The dissent is a tion” or “in violation” semantic distinc- during that the evidence was recovered difference; tion act without a if the detour, appellant’s coop- but that the desire to evidence, obtaining illegally that evi- in then recovery property. erate caused the is the law for dence obtained violation of focusing improperly The dissent on the purposes Mayorga, 901 of article 38.23. brushing cooperate desire to S.W.2d at 946. illegality over the or violation of law. The officers were not authorized to first take previously we rec- 14. In because had property appel- to the at the stolen ognized if the that a confession admissible desire, lant's in fact the law forbids this con- illegal taint of an detention is so attenuated anything, may If duct. the desire can confession not be considered caused the officers But to violate law. law, did an obtained in violation of the we (the purpose violating when the the law analysis. attenuation of taint detour) property, is to recover the stolen Here, however, S.W.2d we need not at 196. anything fail to see how there can be analysis do an attenuation of taint because than a causal connection between the viola- argument. State did not raise the concerning of law and the tion evidence very property. way, stolen Stated another Appeals 15. We that the Court did not note recovery concerning the sto- expressly article The Court discuss consequence as a len obtained Appeals say that if was a "literal did there unlawfully taking ap- of the officers 52.02(a), rigid" such violation of section pellant property. to the Janecka v. stolen Cf. sup- State, violation did warrant automatic (Tex.Crim.App. S.W.2d pression. Roquemore, 11 at 400. The 1996) (holding "any pursuant evidence seized purpose of Court of reasoned that the the warrant was 'obtained' as conse- improper impact is to reduce quence perjury.”); of his Chavez custody. (Keller, no on a Id. Because (Tex.Crim.App.2000) ap- J., ("In by taking the improper impact occurred concurring) order for Article 38.23 to pellant property, illegally stolen apply, 'the officers act obtain- ”) disagree Id. We with the existing (citing implicated. was not ing evidence of an offense.’ (Tex. v.Mayorga, Appeals. Court State *10 38.23(a); to the location property, of the Ceim. PRO. art. Tex. Fam.Code 52.02(a). § option unavailable under section This evidence was obtained violation of We also note that the Court of and is therefore inadmissi- facts; Appeals limited Comer to its a writ 38.23(a); ble. Tex.Ceim. art. Proc.Code approxi ten statement taken from a child Le, Baptist Vie 656. mately compliance three hours before Because the Court of found no Code is inadmissible. Ro See error, it analysis. did not do a harm We quemore, 11 400. The remand the case for consideration of this seeks to Code strike balance between the issue. competing public safety interests of and
child welfare. See
776 S.W.2d at
WOMACK, J.,
concurring
filed a
193. This
in part by
balance is struck
opinion.
limiting
investigative
function of the
police. See
will
effect to its
re
KELLER, P.J.,
dissenting
filed a
quiring
compliance.
Baptist
strict
Vie
KEASLER,
opinion in
Le,
which
and
CONCLUSION prevented by Exigen- the criminal law.1 testimony regarding recovery justify investigations cies that otherwise improperly proscriptions al- violate the would lowed because the was taken Fourth Amendment2 and the Self-incrimi- George designed prevent.” If evidence is obtained in violation of E. Dix & Texas, laws of and there ais causal connec- Robert O. Dawson, Texas Practice: Criminal evidence, (2001). tion between the violation and 13.322 Practice and Procedure suppressed. disapprove Appeals's analysis. that evidence should be of the Court of Tex.Code 38.23(a); Daugherty, art. Crim. Pro. 1. See Tex Penal 9.22. S.W.2d at 270. "Neither Comer nor article Code suggestion support 38.23 that evidence [the] " protect preserve life subject suppression 'The need to or or otherwise is rendered injury justification avoid serious for what admissible an examination of the details of statutory suggest illegal exigency that the viola- would be otherwise absent an violation ” Arizona, dangers emergency.’ Mincey tion did not raise the the statute was or 437 U.S.
873
State,
1999),
v.
191
nation
of the Fifth Amendment.3
and Comer
Clause
Le,
Baptist
In
Vie
(Tex.Crim.App.1989).
the need
required
balancing
What is
Fami-
did “remind
officers
to en- we
exception against
the need
Baptist
requirements.”
strict
ly
com-
Code’s
statutory
force
or constitutional
However,
Le,
we
S.W.2d at 655.
Vie
993
mand.
that some
certainly
imply
did not mean to
preserve
to
the need
evidence
While
than
strictly
more
should be enforced
laws
cir-
may
exigency
an
in some
constitute
Legisla-
by
All laws enacted
others.
cumstances,4 there is no
here
indication
equal
equal dignity
are of
and deserve
ture
proper-
to retrieve
the need
wrong
Hence,
clearly
enforcement.
it is
ty
urgent
or that it could not have
which
suggest that this Court can choose
taking
been
than
met
means
(or less) compliance.
more
require
laws
juvenile
place
it
located
where was
comments,
join
respectfully
I
these
With
him to
taking
division.
before
opinion of
Court.
Family
The harm
52.02
clearly
out-
prevent
Code seeks to
KELLER, P.J.,
dissenting
filed a
weighed by any exigency. I
that the
agree
in which
opinion
KEASLER
case,
statute must be enforced in this
HERYEY, JJ., joined.
strictly
gener-
that it
in
observed
explaining why testimony
In
about the
al.
only
point
I
out that
write
in
should
physical evidence
this case
have
may
prevail
every
oth-
against
statute
upon
suppressed,
the Court relies
society
er
need of
another case.
explaining why
language
Comer1
HOLCOMB, J.,
in that
should have been
evidence
case
concurring
filed a
The
said:
suppressed.
Comer court
opinion.
say
any degree
of confi-
cannot
majority opinion
states that we have
that, had appellant
dence
been trans-
“clear[ly]”
policy
“established a
of strict
custody of
ported “forthwith” to the
compliance
with the
Code”
... he
facility
detention
would
states further
“continue
will
his
still have chosen to confess
crime.
require
compliance
strict
Comer, then,
open
Code.” I am uncertain
a door
why these state-
Court left
majority opin-
included
if the
ments were
to the admission
evidence
child
really
ion or
these
mean.
to confess his
what
statements
“would still
chosen
words,
Neither of the cases
the ma-
In other
evidence should
relied on
crime.”
jority
if
court can
compliance,”
suppressed
appellate
even mentioned “strict
not be
“clearly”
much
policy
say
less
established a
with confidence that
compliance.”
Baptist
“strict
Le v.
have been
even the child
Vie
would
obtained
State,
(Tex.Crim.App.
the deten-
993
650
had been taken “forthwith” to
Quarles,
649, 657,
385, 392,
2408,
S.Ct.
290
v.
467 U.S.
104
98
57 L.Ed.2d
New York
States,
2626,
(1984).
(1978)
Wayne
(quoting
v. United
81 L.Ed.2d
S.Ct.
234, 241,
205,
U.S.App.
D.C.
318 F.2d
(1963)
J.)).
Santana,
Burger,
(opinion of
427 U.S.
4. See United States v.
(1976); Cupp
96 S.Ct.
L.Ed.2d
U.S.
Murphy, 412
93 S.Ct.
3. "We
answers to
conclude
need for
(1973).
questions
posing
L.Ed.2d 900
in a situation
a threat to the
outweighs
public safety
pro-
the need for the
(Tex.Crim.
phylactic
protecting
rule
the Fifth Amend-
Comer v.
Article 38.23
this case was not
violation of
obtained
No evidence obtained
an officer or
the law.
person
any provi-
other
violation of
sions of the
or
Constitution
laws
disagreement
I have another
with the
Texas,
State of
or of the
or
Constitution
opinion.
Court’s
The Court makes an ex-
America,
laws of the United States of
ception
holding
to its
52.02 is to be
against
shall be admitted in
strictly by allowing
pos-
construed
for the
any
accused on the trial of
criminal case.
sibility that evidence would be admissible
if
I
exigent
there were
circumstances.
do
“in
Obtained
violation of’ does not mean
exception.
know
source
this
a
“during
obtained
violation.” It means
“exigent
have never held that there is an
obtained “because of violation.”2 As the
said,
exception
require-
circumstances”
Court of
“The exclusionary
applicable
rule is
ments of either
52.02 or article 38.23. It
to those violations that
saying
seems the Court is
that if it
purpose
are related to the
of the exclusion-
were
ary
police
really,
really necessary,
rule-deterrence of unlawful
ac-
we would
judicial
tivity
integrity.”3
strictly
That court
those statutes.
I find no
enforce
State,
contending
Roquemore
2.
that this distinction is mean-
3.
11 S.W.3d
2000).
State,
(Tex.App.
ingless,
Dist.]
upon
[1
the Court relies
Ebarb v.
—Houston
(Tex.Crim.App.l979)(opinion
case today, it that evidence say, as does in violation of
inadmissible obtained anywhere else” taking the child
“without *13 52.02(a), holding §of then
language all apply to cases.
should
Moreover, per- exigent circumstances of evidence this Court
mit the introduction obtained violation
finds to have been 52.02, should assume then we exigent circum-
trial court found such implied finding. and defer to that
stances reasonably have be- trial court could confessing offender of-
lieved that when crime, it to evidence of a police
fers to lead irresponsible for the
would be you.” always
say, “No thank There exigency collecting degree
some when why police go to crime
evidence-that waiting a week promptly
scenes instead
or two.
I dissent. respectfully Clyde RUSSELL,
Ex Lee Parte
Applicant.
No. 74101. Texas,
Court Criminal
En Banc.
Nov. Russell,
Clyde Pro Se. Lee Lehman, District Assistant Jennifer L. Worth, Attorney, Fort for State.