the State of Texas v. Sebastian Torres ( 2021 )


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  •               NUMBERS 13-20-00101-CR & 13-20-00102-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    THE STATE OF TEXAS,                                                                       Appellant,
    v.
    SEBASTIAN TORRES,                                                                          Appellee.
    On appeal from the 398th District Court
    of Hidalgo County, Texas.
    OPINION
    Before Chief Justice Contreras and Justices Hinojosa and Silva
    Opinion by Chief Justice Contreras
    Appellee Sebastian Torres was charged by indictment with murder, a first-degree
    felony (Count I); tampering with a human corpse, a second-degree felony (Count II); and
    tampering with physical evidence, a third-degree felony (Count III). 1 See TEX. PENAL CODE
    1   Counts I and II were originally filed in the 229th District Court of Starr County but were later
    ANN. §§ 19.02(b)(1), 37.09(c), (d)(1). The trial court granted appellee’s motion to
    suppress a recorded oral statement he made to police on grounds that it did not comply
    with § 51.095 of the Texas Family Code. See TEX. FAM. CODE ANN. § 51.095. Appellant,
    the State of Texas, argues by three issues that the trial court erred. We affirm.
    I.      BACKGROUND
    On August 11, 2017, Starr County Sheriff’s Office deputies arrested appellee, born
    in 2001, as part of their investigation into the disappearance of 17-year-old Chayse
    Olivarez. According to a form signed by Justice of the Peace Jesus Barrera Jr., appellee
    was given statutory Miranda warnings at 8:13 p.m. at the sheriff’s office, but appellee
    initially refused to make a statement, and he was taken to the Starr County Juvenile
    Center. Later, appellee was brought back to the sheriff’s office, and Barrera once again
    administered the statutory Miranda warnings to appellee at 12:23 a.m. the following day.
    This time, appellee signed his name next to the following statement on the statutory
    warning form: “I acknowledge that I was given the above warning and I understand my
    rights as explained to me in the warning. I WAIVE these rights and agree to be interviewed
    by law enforcement officers.”
    Both warning forms signed by Barrera contain a check next to the following
    statement:      “OPTIONAL         DIRECTIVE:        APPLICABLE          ONLY       TO     RECORDED
    STATEMENTS: Pursuant to Section 51.095(f), Family Code, I am requesting that the
    officer return you and the recording of your statement to me at the conclusion of the
    transferred to 398th District Court of Hidalgo County, trial court cause number CR-1776-10-I. These counts
    are addressed in appellate cause number 13-20-00101-CR.
    Count III was filed in trial court cause number CR-1789-19-I; this count is addressed in appellate
    cause number 13-20-00102-CR.
    2
    process of questioning so that I can determine whether it was given voluntarily.”
    Having obtained a written waiver of appellee’s rights, police proceeded to interview
    appellee at the sheriff’s office. Police then took appellee to walk through the suspected
    crime scene and continued the interview there. Both parts of the interview were recorded
    by Investigator Dario Marquez’s bodycam. According to the State, during the interview,
    appellee revealed the location of Olivarez’s dead body, the condition the body would be
    found in, and in what container the body would be found. 2 However, after the interview
    concluded, Barrera did not meet with appellee or review his recorded statement to
    determine whether it was made voluntarily.
    Appellee moved to suppress his recorded statement. At a hearing on November
    22, 2019, Barrera testified that he left the sheriff’s office after signing the first warning
    form on August 11, 2017, then returned to the sheriff’s office at the request of an assistant
    district attorney at around 11:50 p.m. When asked whether appellee agreed to give a
    statement to police upon signing the second warning form, Barrera said: “[Appellee]
    signed that he would give a statement [sic].” The prosecutor then asked Barrera: “Did you
    ask that [appellee] be brought back to you after he had provided that statement?” Barrera
    replied: “No, sir.” Barrera explained that he is normally “in the room” or watching a live
    video feed when police interrogate a juvenile, but in this case, he “was going to see a
    video later.” Barrera stated that he stayed at the sheriff’s office until 4:00 a.m. the next
    morning. When asked why he stayed, Barrera testified: “I don’t remember, sir. I’m thinking
    2 Marquez’s interview of appellee was conducted mainly in Spanish, and the State attached an
    unverified translated transcript of the interview to its trial court brief in opposition to the motion to suppress.
    The State does not direct this Court to any particular point in the video or the 259-page transcript in which
    appellee provided the information described above. Nevertheless, appellee does not dispute that his
    recorded statement to police included this information.
    3
    maybe they asked me to stay behind if they needed something from the magistrate or to,
    like, review the video, which it wasn’t prepared until later.” Barrera said he “ran into
    [appellee] in the hall” of the sheriff’s office when he left at around 4:00 a.m., and appellee
    was handcuffed at the time. However, Barrera testified he never reviewed the video
    recording of appellee’s encounter with police, and he never determined that appellee’s
    statement to police was voluntary.
    On cross-examination, Barrera acknowledged that he checked the “Optional
    Directive” box on both warning forms and that he read its contents aloud to appellee at
    the beginning of the recorded interview. Defense counsel asked Barrera “if you invoke
    that, then you’re obligated to bring him back, aren’t you?” Barrera replied, “I don’t
    remember that, sir.” He conceded that the reason he waited at the sheriff’s office until
    4:00 a.m. was “to be called to—to go over it.”
    Marquez testified that he conducted the interview with appellee in two parts, at the
    sheriff’s office and then at the alleged crime scene. Two recordings, denoted as State’s
    Exhibits 3 and 4, were entered into evidence.
    In both cause numbers, the trial court granted the motion to suppress and later
    entered the following findings of fact and conclusions of law:
    Fact 1:              On August 11, 2017 at approximately 8:00 or 8:30 PM,
    the Defendant, Sebastian Torres, was arrested. Mr.
    Torres was 16 years old at the time of his arrest.
    Conclusion 1:        Under the law, Sebastian Torres was a juvenile.
    Sec[tion] 51.02(2), Texas Family Code.
    Fact 2:              Sebastian Torres was brought before a magistrate and
    was admonished. He refused to give any statements.
    Then, he was detained in the Starr County juvenile
    detention facility.
    Fact 3:              Approximately three and a half to four hours later, the
    4
    magistrate was called by an officer stating that the
    juvenile wanted to communicate and cooperate. The
    magistrate was called upon to give him the warnings
    for the second time.
    Fact 4:         Sebastian Torres was in custody at all times when
    interrogated.
    Fact 5:         After the second visit with the magistrate, Sebastian
    Torres was interrogated twice, once in a room and
    once at an alleged crime scene.
    Fact 6:         The two interrogations were videotaped. One
    interrogation video was dated August 12, 2017, 12:26
    A.M. The other was dated August 12, 2017, 4:19 A.M.
    Fact 7:         In both instances when Sebastian Torres was brought
    before the magistrate, the magistrate used a form to
    make a record of the event.
    Fact 8:         In both instances, the magistrate requested in writing
    that law enforcement officers bring Sebastian Torres
    back to him at the conclusion of the process of
    questioning so that he could determine whether
    Sebastian Torres voluntarily participated. This request
    was in accordance with [§] 51.095(f), Texas Family
    Code.
    Conclusion 2:   The admissibility of a statement made by a juvenile is
    governed by [§] 51.095, Texas Family Code. [Meadoux
    v. State, 
    307 S.W.3d 401
     (Tex. App.—San Antonio
    2009), aff’d, 
    325 S.W.3d 189
     (Tex. Crim. App. 2010)].
    Conclusion 3:   Section 51.095(f), Texas Family Code gives the
    magistrate discretion. But if the magistrate requests
    that the child be returned to him after questioning and
    this is not done, the child’s statement is not admissible.
    Section 51.095(f), Texas Family Code.
    Conclusion 4:   In reviewing [§] 51.095(f), Texas Family Code and
    applicable case law, there must be strict compliance
    when conducting a custodial interrogation of a juvenile.
    [In re B.B., 
    567 S.W.3d 786
    , 790 (Tex. App.—San
    Antonio 2018, no pet.) (citing 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., No. 06-04-00008-CV,
    
    2004 WL 1968644
    , at *3 (Tex. App.—Texarkana Sept.
    5
    8, 2004, no pet.) (mem. op.); In re J.B.J., 
    86 S.W.3d 810
    , 815 (Tex. App.—Beaumont 2002, no pet.))].
    Fact 9:              After interrogating Sebastian Torres twice and video
    recording the interrogations, law enforcement officers
    did not ever bring him back to the magistrate along with
    the video recordings, despite the fact that the
    magistrate had requested in writing that this be done.
    The magistrate never made a finding that Sebastian
    Torres participated in the custodial interrogations
    voluntarily.
    Conclusion: 4 [sic] The magistrate invoked but the law enforcement
    officers did not comply with the plain language of
    [§] 51.095(f), Texas Family Code.
    Since the State did not comply with [§] 51.095(f) of the
    Texas Family Code when it took the two statements in
    question from Sebastian Torres, a juvenile, both
    statements became inadmissible under the statute and
    at this time will be suppressed for this trial.
    These appeals followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (permitting the
    State to appeal an order granting a motion to suppress evidence in a criminal case).
    II.    DISCUSSION
    The State lists the following three issues in its appellate briefs:
    1.     Whether the State of Texas complied with [§] 51.095 of the Texas
    Family Code and properly warned Sebastian Torres of his Miranda
    rights and if Sebastian Torres was properly warned did he knowingly
    and voluntarily waive those rights.
    2.     Whether the follow up procedure of a juvenile’s oral custodial
    recorded statement regarding voluntariness set out in [§] 51.095(f)
    of the Texas Family Code is mandatory or discretionary.
    3.     Whether a juvenile’s statement is admissible notwithstanding any of
    the provisions of [§] 51.09 if the juvenile’s statement contains facts
    and/or circumstances that are found to be true.
    We address the issues together.
    6
    A.     Standard of Review
    We review a trial court’s ruling on a motion to suppress evidence for an abuse of
    discretion under a bifurcated standard. Wells v. State, 
    611 S.W.3d 396
    , 405 (Tex. Crim.
    App. 2020). When the trial court makes express findings of fact in a suppression hearing,
    we afford almost total deference to those findings as long as they are supported by the
    record. State v. Granville, 
    423 S.W.3d 399
    , 404 (Tex. Crim. App. 2014). The same
    standard is applied when reviewing the trial judge’s application of law to questions of fact
    when resolution of those questions depends on an assessment of credibility and
    demeanor. Wells, 611 S.W.3d at 405; Johnson v. State, 
    414 S.W.3d 184
    , 192 (Tex. Crim.
    App. 2013). On the other hand, mixed questions of law and fact which do not hinge on
    assessments of credibility or demeanor are reviewed de novo. Wells, 611 S.W.3d at 405–
    06. Pure questions of law, such as statutory interpretation, are also reviewed de novo.
    Tha Dang Nguyen v. State, 
    359 S.W.3d 636
    , 641 (Tex. Crim. App. 2012). We will sustain
    the trial court’s ruling if it is correct under any applicable theory of law. Wells, 611 S.W.3d
    at 405–06.
    B.     Applicable Law
    Because appellee was a juvenile at the time of his arrest, the Juvenile Justice
    Code, codified in Title 3 of the Texas Family Code, governs his substantive rights. See
    Comer v. State, 
    776 S.W.2d 191
    , 196 (Tex. Crim. App. 1989) (holding that issues
    involving the substantive rights of pre-transfer juveniles are governed by the family code).
    This includes § 51.09, which provides that a child between the ages of ten and seventeen
    may waive any constitutional or statutory right if:
    (1)    the waiver is made by the child and the attorney for the child;
    (2)    the child and the attorney waiving the right are informed of and
    7
    understand the right and the possible consequences of waiving it;
    (3)     the waiver is voluntary; and
    (4)     the waiver is made in writing or in court proceedings that are
    recorded.
    TEX. FAM. CODE ANN. § 51.09. Section 51.095 further provides, in relevant part, as follows:
    (a)     Notwithstanding Section 51.09, the statement of a child is admissible
    in evidence in any future proceeding concerning the matter about
    which the statement was given if:
    ....
    (2)        the statement is made orally and the child makes a statement
    of facts or circumstances that are found to be true and tend to
    establish the child’s guilt, such as the finding of secreted or
    stolen property, or the instrument with which the child states
    the offense was committed;
    . . . or
    (5)        subject to Subsection (f), the statement is made orally under
    a circumstance described by Subsection (d) and the
    statement is recorded by an electronic recording device,
    including a device that records images, and:
    (A)   before making the statement, the child is given the
    warning described by Subdivision (1)(A)[ 3] by a
    magistrate, the warning is a part of the recording, and
    the child knowingly, intelligently, and voluntarily waives
    each right stated in the warning;
    3 Section 51.095(a)(1)(A) states that, for a written statement of a child to be admissible, the
    statement must show that a magistrate has given the child the following warnings before the statement was
    made:
    (i)     the child may remain silent and not make any statement at all and that any
    statement that the child makes may be used in evidence against the child;
    (ii)    the child has the right to have an attorney present to advise the child either prior
    to any questioning or during the questioning;
    (iii)   if the child 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 with
    peace officers or attorneys representing the state; and
    (iv)    the child has the right to terminate the interview at any time[.]
    TEX. FAM. CODE ANN. § 51.095(a)(1)(A).
    8
    (B)    the recording device is capable of making an accurate
    recording, the operator of the device is competent to
    use the device, the recording is accurate, and the
    recording has not been altered;
    (C)    each voice on the recording is identified; and
    (D)    not later than the 20th day before the date of the
    proceeding, the attorney representing the child is given
    a complete and accurate copy of each recording of the
    child made under this subdivision.
    ....
    (d)    Subsections (a)(1) and (a)(5) apply to the statement of a child made:
    (1)    while the child is in a detention facility or other place of
    confinement; [or]
    (2)    while the child is in the custody of an officer[.]
    ....
    (f)    A magistrate who provides the warnings required by Subsection
    (a)(5) for a recorded statement may at the time the warnings are
    provided request by speaking on the recording that the officer return
    the child and the recording to the magistrate at the conclusion of the
    process of questioning. The magistrate may then view the
    recording with the child or have the child view the recording to
    enable the magistrate to determine whether the child's
    statements were given voluntarily. The magistrate’s determination
    of voluntariness shall be reduced to writing and signed and dated by
    the magistrate. If a magistrate uses the procedure described by
    this subsection, a child’s statement is not admissible unless the
    magistrate determines that the statement was given voluntarily.
    Id. § 51.095 (emphasis added).
    C.    Analysis
    The underlying facts relevant to the motion to suppress are largely undisputed. In
    particular, there is no dispute that the oral statements of appellee captured on Marquez’s
    bodycam video were made while appellee was “in the custody of an officer.” See id.
    § 51.095(d)(2). Further, there is no dispute that the requirements of § 51.095(a)(5) have
    9
    been satisfied with respect to the video recording, including the requirement that appellee
    be administered statutory Miranda-type warnings prior to making the statements and that
    the warnings be made part of the recording. See id. § 51.095(a)(5). And it is undisputed
    that, although Barrera asked for appellee to be returned to him so that appellee’s oral
    statements could be reviewed for voluntariness, appellee was not returned to him, Barrera
    never reviewed the statements, and Barrera never made a determination that they were
    given voluntarily. See id. § 51.095(f).
    As noted, § 51.095(f) provides that a child’s oral statement is inadmissible “[i]f a
    magistrate uses the procedure described by” that subsection but the magistrate does not
    “determine that the statement was given voluntarily.” Id. Thus, the sole question
    presented in these appeals is: Did Barrera “use[] the procedure described by”
    § 51.095(f)? If so, the trial court properly granted the motion to suppress.
    The parties do not cite any cases examining whether the § 51.095(f) “procedure”
    has been “used” in any particular factual scenario, and we find none. In general, when a
    statute’s language is clear and unambiguous, we will give effect to its plain meaning
    unless that interpretation would lead to absurd consequences that the legislature could
    not have intended. Dobbs v. State, 
    434 S.W.3d 166
    , 170 (Tex. Crim. App. 2014).
    Particularly with respect to the juvenile justice provisions in Title 3 of the family code, the
    Texas Court of Criminal Appeals has “established a policy of strict compliance.”
    Roquemore, 
    60 S.W.3d at 870
    .
    According to its plain meaning, § 51.095(f) applies whenever a magistrate
    “provides the warnings required by Subsection (a)(5) for a recorded statement” by a child.
    TEX. FAM. CODE ANN. § 51.095(f). In such a situation, the magistrate is given discretion to
    10
    do two things: First, it “may . . . request by speaking on the recording that the officer return
    the child and the recording to the magistrate at the conclusion of the process of
    questioning.” Id. Second, if the magistrate decides to make such a request, the magistrate
    “may then view the recording with the child or have the child view the recording” to
    determine whether the statements were given voluntarily. Id.
    Here, it is undisputed that Barrera made the spoken request on the recording, as
    contemplated in the first part of § 51.095(f). To make his intentions absolutely clear,
    Barrera also twice checked the box on the waiver form indicating that he wished to have
    appellee and the recording returned to him so that he could evaluate the voluntariness of
    appellee’s statements. 4 Barrera then waited at the sheriff’s office for several hours
    overnight so that he could complete this procedure. Barrera did not ultimately “view the
    recording with the child or have the child view the recording,” as contemplated in the
    second part of the statute, but nothing in the record indicates that Barrera ever withdrew
    his decision to invoke the statutory procedure. Under these circumstances, we conclude
    that Barrera “use[d] the procedure described in” § 51.095(f); therefore, the fact that he did
    not make a determination of voluntariness rendered the subject statements inadmissible.
    The State emphasizes in its second issue that, unlike the part of the statute
    pertaining to written statements by a child, the rules for oral statements do not always
    require a magistrate to review the statement for voluntariness before the statement will
    be admitted. Compare id. § 51.095(a)(1)(B)(ii), (D) (providing that a child’s written
    statement is admissible only if the magistrate: (1) “signs a written statement verifying” that
    4  As noted, at the suppression hearing, Barrera initially denied that he asked for appellee to be
    brought back to him so that appellee’s statement could be reviewed for voluntariness. However, Barrera
    admitted that he checked the “Optional Directive” box, which explicitly contained that request. We therefore
    defer to the trial court’s finding that Barrera “invoked” the § 51.095(f) procedure.
    11
    “the child understands the nature and contents of the statement and that the child is
    signing the same voluntarily”; and (2) “certifies that the magistrate has . . . determined
    that the child understands the nature and contents of the statement and has knowingly,
    intelligently, and voluntarily waived” the rights set forth in the warnings) with id. § 51.095(f)
    (“The magistrate may then view the recording with the child or have the child view the
    recording to enable the magistrate to determine whether the child’s statements were
    given voluntarily.” (Emphasis added)). It is true that the magistrate does have the initial
    discretion to decide whether to follow the procedure set forth in § 51.095(f). However,
    once the magistrate decides to follow the procedure, the statute explicitly makes
    admissibility conditional on the magistrate’s finding of voluntariness.
    By its third issue, the State contends that, even if Barrera “used the procedure
    described” in § 51.095(f), appellee’s statements should still have been admitted pursuant
    to subsection (a)(2) of § 51.095. See id. § 51.095(a)(2) (stating that a child’s oral
    statement is admissible if it is a “statement of facts or circumstances that are found to be
    true and tend to establish the child’s guilt”). 5 We disagree. As noted, the plain language
    of § 51.095(f) requires the magistrate to find voluntariness as a precondition to
    admissibility whenever the procedure set forth in that subsection is “use[d],” without
    regard to whether the statement may be otherwise admissible under some other
    subsection. See id. § 51.095(f). In any event, there was no testimony adduced at the
    suppression hearing from which the trial court could have determined that appellee’s
    recorded statements were “found to be true.” Although Marquez testified that he
    5 Appellee argues that § 51.095(a)(2) “only applies when the oral statement is a statement that is
    not the product of custodial interrogation.” We assume but do not decide, for purposes of this opinion, that
    § 51.095(a)(2) may theoretically apply to statements made during a custodial interrogation.
    12
    interviewed appellee, he did not testify as to the content of appellee’s statements, nor did
    he testify that appellee’s statements were found to be true. The State does not direct us
    to any specific evidence from which the trial court could have inferred that the
    § 51.095(a)(2) exception applied. 6
    For the foregoing reasons, we conclude that the trial court did not abuse its
    discretion in granting appellee’s motion to suppress. We overrule the State’s issues.
    III.    CONCLUSION
    The Texas Legislature enacted the Juvenile Justice Code “to provide for the
    protection of the public and public safety” and “to provide a simple judicial procedure
    through which . . . the parties are assured a fair hearing and their constitutional and other
    legal rights recognized and enforced.” Id. § 51.01(1), (6). To achieve this goal, § 51.095(f)
    allows a magistrate to demand the ability to review a juvenile’s statement to determine
    whether it was given voluntarily—but if the magistrate does so, the statement is
    inadmissible if the magistrate does not affirmatively find that the statement was voluntary.
    Although there is nothing in the record of this case indicating appellee’s statement was
    not voluntary, we must strictly construe the statute, see Roquemore, 
    60 S.W.3d at 870,
    and we are thereby compelled to conclude that the statement is inadmissible. We note
    that this could lead to an unjust result, in that an incriminating statement which is
    voluntarily made—and thus passes constitutional muster—may nevertheless be excluded
    due only to the magistrate’s invocation of the specific procedure set forth in the statute.
    Such a result, while required by the statute’s language, would not advance the purposes
    6 At oral argument, the State’s counsel conceded that there was no testimony at the suppression
    hearing explicitly providing that appellee’s statements during his interview were found to be true.
    13
    of the statute. See TEX. FAM. CODE ANN. § 51.01(1), (6). We urge the Legislature to amend
    the statute to reflect that a statement will be admissible if it is adjudged at any point to be
    voluntarily made, regardless of whether the magistrate chose to invoke the procedure set
    forth in § 51.095(f).
    The trial court’s judgments are affirmed.
    DORI CONTRERAS
    Chief Justice
    Publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed on the
    21st day of December, 2021.
    14
    

Document Info

Docket Number: 13-20-00102-CR

Filed Date: 12/21/2021

Precedential Status: Precedential

Modified Date: 12/27/2021