In re B.B.

567 S.W.3d 786
CourtCourt of Appeals of Texas
DecidedDecember 19, 2018
DocketNo. 04-18-00108-CV
StatusPublished
Cited by4 cases

This text of 567 S.W.3d 786 (In re B.B.) 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
In re B.B., 567 S.W.3d 786 (Tex. Ct. App. 2018).

Opinion

Prior to obtaining a written statement from respondent, Magistrate Oliver gave respondent a warning that the respondent may remain silent and not make any statement at all and that any statement that he makes may be used in evidence against him; that respondent has the right to have an attorney present to advise respondent either prior to any questioning or during the questioning; that if respondent is unable to employ an attorney, the child has the right to have an attorney appointed to counsel with the child before or during any interviews *789with peace officers or attorneys representing the state; and that the respondent has the right to terminate the interview at any time. Magistrate Oliver then consulted with Detective Derosa concerning the questioning of respondent. Detective Derosa gave Magistrate Oliver a list of questions Detective Derosa was interested in having answered by respondent.
Magistrate Oliver questioned respondent based on the list of questions from Detective Derosa and instructed respondent to think about those questions prior to writing his statement. Respondent provided a written statement to Magistrate Oliver, who then shared it with Detective Derosa. Detective Derosa asked Magistrate Oliver to ask the respondent some additional questions. Respondent added to his written statement.
Prior to signing said written statement, Magistrate Oliver went over respondent's statement with him and questioned respondent as to whether this was in fact his statement, that he understands the nature and contents of the statement, and that the respondent is signing the statement voluntarily. Respondent then signed his statement. Magistrate Oliver certified that he examined the respondent independent of any law enforcement officer or prosecuting attorney, except as required to ensure the personal safety of the magistrate or other court personnel and [ ] determined that the respondent understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights.

Based on the foregoing findings, the trial court entered the following conclusions of law:

Magistrate Oliver's questioning of respondent with the list of questions provided by Detective Derosa prior to respondent providing a written statement operated to remove the protection of taking a child before a magistrate, prior to giving a written statement.
Magistrate Oliver's actions in questioning respondent about what should be included in respondent's statement, place Magistrate Oliver in the position of law enforcement, rather than a neutral and detached magistrate.
Respondent's written statement obtained after his formal arrest does not comply with § 51.095 of the Texas Family Code.

Based on its conclusion that the written statement was obtained in violation of section 51.095, the trial court signed a written order granting B.B.'s motion to suppress. The State appeals.

STANDARD OF REVIEW

When reviewing a trial court's ruling on a motion to suppress in a juvenile case, we employ the standard of review used in criminal cases. In re S.C. , 523 S.W.3d 279, 282 (Tex. App.-San Antonio 2017, pet. denied) ; In re M.I.S. , 498 S.W.3d 123, 130 (Tex. App.-Houston [1st Dist.] 2016, no pet.). Under that bifurcated standard, we defer to the trial court's resolution of historical facts that are supported by the record as the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. In re S.C. , 523 S.W.3d at 282 ; In re M.I.S. , 498 S.W.3d at 130. We review the trial court's conclusions of law applying the law to the facts de novo. In re S.C. , 523 S.W.3d at 282 ; In re M.I.S. , 498 S.W.3d at 130.

*790DISCUSSION

Under section 51.095, before a juvenile's written statement is taken, the juvenile must have received express statutory warnings from a magistrate, including that "if the [juvenile] is unable to employ an attorney, the [juvenile] has the right to have an attorney appointed to counsel with the [juvenile] before or during any interviews with peace officers or attorneys representing the state " and "has the right to terminate the interview at any time." TEX. FAM. CODE ANN. § 51.095(a)(1)(A)(iii), (iv) (emphasis added). In addition, "the statement must be signed in the presence of a magistrate by the [juvenile] with no law enforcement officer or prosecuting attorney present" except if otherwise necessary for personal safety. Id. § 51.095(a)(1)(B)(i). Finally, "the magistrate must be fully convinced that the [juvenile] understands the nature and contents of the statement and that the [juvenile] is signing the same voluntarily, and if a statement is taken, the magistrate must sign a written statement verifying the foregoing requisites have been met." Id. § 51.095(a)(1)(B)(ii). Each of these statutory requirements illustrate the Texas Legislature contemplated the magistrate would remain neutral and provide a protective check on the questioning of a juvenile in order to ensure the voluntariness of a juvenile's statement. Cf. Missouri v. McNeely , 569 U.S. 141, 155, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (noting "neutral magistrate judge's essential role as a check on police discretion").

Texas courts have repeatedly held strict compliance with section 51.095 is necessary. Roquemore v. State , 60 S.W.3d 862, 868 (Tex. Crim. App. 2001) ; Ray v. State , 176 S.W.3d 544, 548 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) ; In re J.M.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Emanuel Ochoa v. the State of Texas
Court of Appeals of Texas, 2023
the State of Texas v. Sebastian Torres
Court of Appeals of Texas, 2021
in the Matter of J.A.M.
Court of Appeals of Texas, 2020

Cite This Page — Counsel Stack

Bluebook (online)
567 S.W.3d 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bb-texapp-2018.