Cantu v. State

785 S.W.2d 1, 1990 Tex. App. LEXIS 595, 1990 WL 29335
CourtCourt of Appeals of Texas
DecidedFebruary 12, 1990
DocketNos. 05-88-01194-CR, 05-88-01195-CR
StatusPublished
Cited by5 cases

This text of 785 S.W.2d 1 (Cantu v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cantu v. State, 785 S.W.2d 1, 1990 Tex. App. LEXIS 595, 1990 WL 29335 (Tex. Ct. App. 1990).

Opinion

OPINION

ROWE, Justice.

Felix Edward Cantu was convicted by a jury on two counts of the offense of aggravated sexual assault. The jury assessed punishment enhanced by two prior felony convictions at ninety-nine years’ confinement in the Texas Department of Corrections and a fine of $5,000. In his first point of error, appellant contends that the trial court committed reversible error by admitting the testimony of a Department of Human Services (DHS) investigator as to statements made by appellant. We agree and remand the cause to the trial court for a new trial.

An officer with the Grand Prairie Police Department arrested appellant and charged him with two counts of the offense of indecency with a child. The arrest and charge were based on information obtained from an offense report and affidavits of the complaining witnesses supplied by Dallas County Child Welfare. The affidavits stated that appellant had sexually abused M. and A., the youngest daughters of his girlfriend Angie with whom appellant lived. At the time of his arrest, the police officers gave Miranda1 warnings to appellant. While in Custody at the Dallas County jail, appellant contacted Barbara Anderson, an intake investigator for the DHS who had been referred to the family.

Anderson filed a civil proceeding and received temporary managing conservator-ship of the sisters and another child in the family who were then placed with their father. It was also Anderson’s job to further investigate the charges against appellant and the family situation for the purpose of protecting the children. As part of [2]*2this investigation, Anderson interviewed the members of the family. Anderson had attempted unsuccessfully to interview appellant prior to his arrest. When appellant contacted her, Anderson went to the jail to interview him. Francesca Ramos, a DHS worker taking over the case, accompanied Anderson.

Anderson testified that she did not give appellant Miranda warnings. During the interview, appellant admitted to Anderson that he had been having sex with M., the sixteen-year-old sister, since she was thirteen years old but stated that M. requested it and willingly participated. He also stated that he had touched A., the twelve-year-old sister, over her panties when she was nine years old.

A. testified that appellant put his fingers inside of her vagina when she was nine years old. She stated that this continued three or four times a week until she was ten years old. M. testified that appellant had sex with her when she was twelve years old. She stated that appellant continued to have sexual intercourse with her once a week until she was fourteen years old excluding a period of about eighteen months when appellant left the house.

Francesca Ramos testified that Angie harassed her daughters in an attempt to make them drop the charges against appellant. She further stated that Angie had been supportive of appellant and not of her daughters in counseling and throughout the proceedings.

The medical examiner testified that A.’s hymen was completely disrupted, indicating penetration far enough into the vaginal cavity to stretch the hymen and cause it to tear. M.’s hymen was totally disrupted, indicating full vaginal penetration, probably more than twenty-five or thirty times.

In his first point of error, appellant contends that his statements to Anderson were the result of custodial interrogation and therefore inadmissible. We agree. Furthermore, we conclude that the introduction of the statements constituted reversible error.

The United States Supreme Court defines custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In Texas, non-law enforcement personnel may engage in custodial interrogation. Cates v. State, 776 S.W.2d 170, 174 (Tex.Crim.App.1989) (DHS investigator); McCrory v. State, 643 S.W.2d 725, 733-34 (Tex.Crim.App.1982) (forensic psychiatrist). In Cates, the Texas Court of Criminal Appeals held inadmissible statements made by a defendant to a DHS investigator without prior Miranda warnings where the defendant was in custody for the offense of injury to a child and his statements were elicited in direct response to questions propounded by an investigator responsible for investigating the allegation of child abuse and turning her findings over to the proper authorities for prosecution. Cates, 776 S.W.2d at 174. The court remanded the case to the court of appeals for a determination of whether the introduction of appellant’s statement was harmless. Id.

Anderson testified that she did not give Miranda warnings or any other warning to appellant indicating that his statements to her could be used as evidence against him. Without Miranda warnings, statements obtained from custodial interrogation are inadmissible. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Therefore, the first question is whether appellant’s statements were the result of custodial interrogation. If so, then the statements are inadmissible, and the next question is whether the introduction of the statements at trial was harmless.

The Court of Criminal Appeals in Cates determined that the DHS investigator was engaging in custodial interrogation because (1) the defendant was in custody on the charge of injury to a child; (2) the DHS worker was investigating the charge of injury to a child; and (3) the DHS investigator was required by law to turn her findings over to the appropriate police agency for prosecution. Cates, 776 S.W.2d [3]*3at 173-74. The starting point for the court was whether the “record as a whole ... clearly established] that the defendant’s statement ‘resulted from a calculated practice’ which all agents of the State present or involved knew was reasonably likely to evoke an incriminating response.” Id. at 172 (quoting McCrory, 643 S.W.2d at 734).

As in Cates, appellant was in custody in the Dallas County jail on charges of indecency to a child when he talked to the DHS worker. Anderson had been investigating the allegations of sexual abuse. She had been unable to interview appellant as part of that investigation prior to arrest, even though she had attempted to contact appellant through Angie and several other people. Appellant called her from jail. Anderson went to the jail and questioned him. Francesca Ramos, the ongoing case worker, accompanied Anderson to the jail. Even though Anderson, as the intake investigator, had turned the case over to Ramos, Anderson talked with appellant at the jail. Appellant told Anderson that he had touched A. over her panties and that he had had sexual intercourse with M. Appellant also made a written statement which was notarized. Anderson testified that she did not tell appellant what to write. Anderson gave appellant’s statement to Francesca Ramos, and it went into the record that was turned over to the police authorities. At trial Anderson testified as to what appellant told her. Additionally, his written statement was admitted into evidence.

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Bluebook (online)
785 S.W.2d 1, 1990 Tex. App. LEXIS 595, 1990 WL 29335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cantu-v-state-texapp-1990.