Pham v. State

MARGARET GARNER MIRABAL, Justice (Assigned),

dissenting.

A jury found appellant, John Tuy Pham, guilty of murder and assessed punishment at confinement for life.1 By opinion dated December 28, 2000, we reversed the judgment and remanded the cause. Pham v. State, 36 S.W.3d 199, 205 (Tex.App.-Houston [1st Dist.] 2000), vacated and remanded, 72 S.W.3d 346 (Tex.Crim.App.2002). The specific reason for the remand of this case to us is stated in the Court of Criminal Appeals’s opinion as follows:

Recently, in Gonzales v. State, 67 S.W.3d 910 (Tex.Crim.App.2002), we ... concluded that before a juvenile’s written statement can be excluded, there must be a causal connection between the Family Code violation and the making of the statement. Id. at 912. The Court of Appeals in the instant case did not have the benefit of our opinion in Gonzales.

72 S.W.3d at 346. Accordingly, the court remanded this case to us for reconsideration in light of Gonzales. Id.

DISCUSSION

Gonzales states that article 38.23(a) of the Texas Code of Criminal Procedure provides the proper mechanism for excluding evidence in violation of the Family Code. Gonzales, 67 S.W.3d at 913; see Tex.Code CRiM. PRoc. Ann. art. 38.23(a) (Vernon Supp.2004). In our original Pham opinion, we acknowledged that whether or not the juvenile’s written statement should be excluded was to be determined under article 38.23(a). Pham, 36 S.W.3d at 202 n. 2, 205.2 In Gonzales, the court noted that “an exclusionary analysis under article 38.23(a) necessarily entails a causal connection analysis” and pointed to Comer3 as an example of a similar case in which a causal connection analysis had been performed. Gonzales, 67 S.W.3d at 913 n. 8. In our original Pham opinion, we carefully followed the same causal connection analysis utilized by Comer. Pham, 36 S.W.3d at 204-05. I note that the Court of Criminal Appeals also pointed to the Comer analysis as an example of an appropriate article 38.23 causal connection analysis in Roquemore v. State, 60 S.W.3d 862, 870 (Tex.Crim.App.2001), and that the Roque-more opinion cited our original Pham opinion with approval. Id. at 869.

I further note that in our original opinion, we pointed to the evidence that appellant’s parents were not notified about appellant’s arrest until almost 10 p.m. and that it was not until the following morning that they found out why appellant had *633been arrested. Id. at 201.4 Appellant’s parents should have been promptly notified shortly after their son’s arrest at 2:35 in the afternoon so that they could have had an opportunity to join appellant at the juvenile processing office and could have arranged for an attorney to join appellant at the juvenile processing office if they had wished.

Family Code subsection 52.025(c) specifically provides as follows: “A child may not be left unattended in a juvenile processing office and is entitled to be accompanied by the child’s parent, guardian, or other custodian or by the child’s attorney.” Tex. Fam.Code Ann. § 52.025(c) (Vernon 2002). As the court in Comer concluded, I likewise conclude that we cannot say with any degree of confidence that if appellant had had access to his parents or his attorney, he would still have chosen to confess to the crime. See Comer, 776 S.W.2d at 197. Accordingly, applying the same causal connection analysis utilized by Comer, which the Court of Criminal Appeals cited as an example of an appropriate article 38.23 causal connection analysis in Gonzales and Roquemore, I conclude that appellant’s statement should have been suppressed under article 38.23 of the Texas Code of Criminal Procedure.

For the foregoing reasons, and the reasons stated in our original Pham opinion, which I incorporate by reference, I would reverse the judgment and remand the cause to the trial court for further proceedings.

. Appellant was a juvenile who was certified to stand trial as an adult.

. In our original Pham opinion, we stated, "Illegally obtained evidence is inadmissible against an accused,” citing Code of Criminal Procedure article 38.23(a). Pham, 36 S.W.3d at 202. We further noted in footnote two of the opinion that "[t]he Texas Family Code expressly makes Chapter 38 of the Texas Code of Criminal Procedure applicable to juvenile proceedings.” Id. at 202 n. 2 (citing Tex.Fam.Code Ann. § 51.17(c) (Vernon 2002)). We then concluded: "Accordingly, appellant’s statement should have been suppressed under article 38.23 of the Texas Code of Criminal Procedure." Id. at 205.

.Comer v. State, 776 S.W.2d 191 (Tex.Crim.App.1989).

. The evidence shows that the parents were not given an explanation, even though subsection 52.02(b) requires the officer promptly to give "a statement of the reason for taking the child into custody,” in addition to notice that the child is in custody. Tex. Fam.Code Ann. § 52.02(b) (Vernon 2002); see Hampton v. State, 86 S.W.3d 603, 609 (Tex.Crim.App.2002).