Pham v. State , 2003 Tex. App. LEXIS 10073 ( 2003 )

EN BANC OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS

TIM TAFT, Justice.

A jury found appellant, John Tuy Pham, guilty of murder and assessed punishment at life in prison. This Court reversed the conviction because the trial court had erred in admitting appellant’s confession. Pham v. State, 36 S.W.3d 199 (Tex.App.-Houston [1st Dist.] 2000) (Pham I). On petition for discretionary review, the Court of Criminal Appeals vacated our judgment and remanded the cause for reconsideration in light of Gonzales v. State, 67 S.W.3d 910 (Tex.Crim.App.2002). Pham v. State, 72 S.W.3d 346 (Tex.Crim.App. 2002) (Pham II). We apply Gonzales by considering whether there was a causal connection between (1) the failure to notify appellant’s parents of his custody and whereabouts and (2) the acquisition of appellant’s confession. We also address (1) whether appellant preserved his complaint that the trial court should have suppressed his oral statement because he was not taken to a juvenile processing office without unnecessary delay; (2) whether the trial court reversibly erred in refusing appellant’s requested jury instructions regarding the admissibility of appellant’s illegally taken oral confession; and (3) whether the trial court abused its discretion in excluding expert testimony regarding the impact or desirability of probation versus incarceration. We affirm.

Facts

Appellant was a 16-year-old high school junior when he became a suspect in a drive-by shooting that had resulted in the death of the complainant, Dung Van Ha. Houston Police Department officers went to appellant’s school and took him into custody about 2:35 p.m. The officers were told by a school security guard that the principal would contact appellant’s family and that the guard himself would contact appellant’s brother. The officers took appellant to be warned by a magistrate about 3:35 p.m. Appellant was then taken to the downtown police station and questioned by an investigator. About 4:38 p.m., appellant admitted having fired a .45-caliber weapon at the car that the complainant was driving. The officers who had taken appellant into custody then took appellant to a juvenile facility be processed, fingerprinted, and photographed.

The first notification of appellant’s family was made by an officer at the juvenile processing facility. The officer spoke to appellant’s sister around 8:15 p.m. Someone from the Juvenile Probation Department contacted appellant’s father about 9:50 p.m. It was not until the following day that appellant’s parents went to see appellant and found out why he had been taken into custody.

Requirement of Causal Connection Between Failure to Notify Parents and Child’s Ensuing Confession

In his first and second points of error, appellant contends that his confession should have been suppressed pursuant to article 38.28 of the Code of Criminal Procedure (the Texas statutory exclusionary rule) because the police did not comply with section 52.02(b) of the Family Code. See Tex.Code Crim. PROC. Ann. art. 38.23(a) (Vernon Supp.2004); Tex. Fam.Code Ann. § 52.02(b) (Vernon Supp.2004). Section 52.02(b) requires that a person taking a child into custody promptly give notice of the person’s action, and a statement of the reason for taking the child into custody, to the child’s parent, guardian, or custodian and to the office or official designated by the juvenile board. Tex. Fam.Code Ann. § 52.02(b). Appellant’s complaint focuses on the failure to notify his parents promptly.

In Pham I, we held that the officers failed to notify appellant’s parents promptly. Id., 36 S.W.3d at 203-04. A juvenile’s written statement obtained after a violation of section 52.02(b) of the Family Code is not automatically inadmissible, however. See Gonzales, 67 S.W.3d at 912-13. If evidence obtained in violation of the Family Code is to be excluded, article 38.23 of the Code of Criminal Procedure is the proper mechanism for exclusion. Id. Article 38.23(a) provides that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas ... shall be admitted in evidence.... ” TexCode Crim. PROC. Ann. art. 38.23(a). Evidence is not obtained in violation of a provision of law if there is no causal connection between the illegal conduct and the acquisition of evidence. Gonzales, 67 S.W.3d at 912. Therefore, in light of article 38.23(a), before a juvenile’s written statement can be excluded, there must be a causal connection between the violation of section 52.02(b) and the making of the statement. See id.

In our original opinion, we conducted a taint-attenuation analysis, tracking Comer v. State, 776 S.W.2d 191 (Tex.Crim.App.1989). See Pham I, 36 S.W.3d at 204-05. This was apparently an insufficient analysis to avoid a remand for reconsideration in light of Gonzales. Therefore, at the outset, we determine whether causal connection and attenuation of the taint constitute separate analyses.

A. Whether Causal Connection and Attenuation of the Taint Involve Separate Analyses

The case most clearly demonstrating separate analyses for causal connection and attenuation of the taint, and the order in which they are to be undertaken, is Roquemore v. State, 60 S.W.3d 862 (Tex.Crim.App.2001). In Roquemore, the Court of Criminal Appeals first found a causal connection between the recovery of the stolen property and the illegality of the police conduct. Id. at 871. The Court found it unnecessary, however, to proceed to an attenuation-of-the-taint analysis because the State did not raise the argument. Id. at n. 14.

Based on Roquemore, and based on the fact that our attenuation-of-the-taint analysis in Pham I was found inadequate to satisfy a Gonzales causal-connection analysis, we conclude that there are separate analyses for causal connection and attenuation of the taint. Based on Roque-more, we also conclude that the causal-connection analysis precedes the attenuation-of-the-taint analysis. We next determine who has the burden in a causal-connection analysis.

B. Who Has the Burden

1. Causal connection

No direct authority establishes who has the burden of proving a causal connection between a Family Code violation and a juvenile defendant’s statement. The Court of Criminal Appeals has directed us to conduct a causal-connection analysis, but has not set out whether the State or the defendant has the burden of proof. Not surprisingly, both parties have argued that the other party should have the burden.

Appellant argues that the burden of disproving a causal connection lies with the State. Appellant relies on (1) an analogy to how the burden shifts to the State to show compliance with a statute once the accused has raised some evidence of a violation; (2) an analogy to the State’s ultimate burden of proving that the volun-tariness of a confession; and (3) a commentator’s observation that Gonzales recognized with approval a statement from Comer that appeared to conclude that the evidence failed to show the lack of a causal connection between the statutory violation and the making of the statement. We agree with appellant that, once a defendant raises some evidence of a Family Code violation, the State then has the burden of proving compliance with the statute. Roquemore, 60 S.W.3d at 869. This does not resolve the issue of who has the burden of proving a causal connection between the violation of the statute and the ensuing statement, however. We also agree with appellant that the State has the ultimate burden of proving that a statement is admissible under an attenuation-of-the-taint analysis, just as the State has the ultimate burden of proving a confession is voluntary, but the issue before us is who has the initial burden regarding a causal connection, not who has the ultimate burden of persuasion. Finally, the practice commentary cited by appellant does not address the issue of who has the initial burden regarding causal connection.

The State argues that placing the burden on appellant to demonstrate a causal connection is proper because (1) inadmissibility is not established by violation of a statute alone, but only upon a showing of a causal connection between the violation and the ensuing confession and (2) it is well settled that the failure to take an arrestee before a magistrate promptly will not invalidate a confession unless there is proof of a causal connection between the delay and the confession. The State cites Cantu v. State for the latter proposition. See id., 842 S.W.2d 667 (Tex.Crim.App. 1992). In Cantu, the Court of Criminal Appeals looked to the appellant to demonstrate a connection between the violation of the statute and the confession. Id. at 680.

We agree with the State that it is appropriate to look to analogous circumstances involving a violation of a statute after which evidence, primarily a confession, is obtained. There are many cases holding that, absent a showing of a causal connection between the failure to take an accused before a magistrate promptly, as required by statute, and the accused’s ensuing confession, the validity of the confession is not affected. See, e.g., Boyd v. State, 811 S.W.2d 105, 124 (Tex.Crim.App.1991). The appellant is generally expected to make the showing. Id. at 125 (“Appellant fails to demonstrate any causal connection between his statement and the failure of the authorities to take him before a magistrate.”); Schultz v. State, 510 S.W.2d 940, 943 (Tex.Crim.App.1974) (“[A]ppellant must show a causal connection between [the failure to take appellant before a magistrate] and his confession.”); Shadrick v. State, 491 S.W.2d 681, 684 (Tex.Crim.App.1973) (same). This Court has also held that it is a defendant’s burden to show a causal connection between the failure to take him before a magistrate and a subsequent confession in order to obtain suppression of the confession. See Bonner v. State, 804 S.W.2d 580, 582 (Tex.App.Houston [1st Dist.] 1991, pet. ref'd); Straughter v. State, 801 S.W.2d 607, 610 (Tex.App.-Houston [1st Dist.] 1990, no pet.). In another analogous situation, this Court has placed the burden on the defendant to show a causal connection between an improper warning and a decision to submit to a breath test. See Schafer v. State, 95 S.W.3d 452, 455 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd).

We see no reason to apply a different burden regarding the causal-connection analysis between violations of the Family Code requirement to notify a juvenile’s parents and a subsequent statement. This is particularly appropriate where the Court of Criminal Appeals has held that evidence is not obtained in violation of the law if there is no causal connection between the illegal conduct and the acquisition of the evidence. See Gonzales, 67 S.W.3d at 912.

Moreover, as a practical matter, it is reasonable to place the burden on the defendant to produce evidence to which only the defendant has access. The defendant alone has access to his own thought processes, and the defendant has much better access to his own parents, who are likely to be much more cooperative with their accused child and his attorney than with the State. See, e.g., State v. Simpson, 105 S.W.3d 238, 242-43 (Tex.App.-Tyler 2003, no pet. h.) (relying on testimony of juvenile defendant’s mother that she and her husband waited to take action concerning the defendant, having confidence that police would contact them if the child had been taken into custody). On the other hand, it is more reasonable to place the burden on the State to show attenuation of the taint because the State has control of the detention and interrogation process so that it may engage in conduct that dissipates and neutralizes the taint from any unlawful police conduct.

Accordingly, we conclude that the burden is on the juvenile defendant to show some evidence of a causal connection between the failure to notify the juvenile detainee’s parents and an ensuing confession.

2. Attenuation of the taint

As pointed out above, the Roque-more court looked to the State to establish attenuation of the taint. Id., 60 S.W.3d at 871 n. 14. The parties do not even argue about this proposition. We conclude that it is the State’s burden to demonstrate attenuation of the taint, once a causal connection is shown between police illegality and the recovery of evidence.

C. Summary

For the foregoing reasons, we hold that, when a juvenile defendant seeks to suppress a confession given after the failure to notify the juvenile’s parents promptly of the juvenile’s whereabouts and the reason for taking the juvenile into custody, the burden is initially upon the defendant to raise the issue by producing evidence of a violation of the statutory requirement. Roquemore, 60 S.W.3d at 869. The burden then shifts to the State to prove compliance with the statute. Id. Because a violation of the statute is not alone sufficient to require exclusion of the confession, the burden then reverts to the defendant to produce evidence of a causal connection between the statutory violation and the ensuing confession. Cf. Cantu, 842 S.W.2d at 680. Once the defendant meets this burden, the State must then shoulder the burden of either disproving a causal connection or demonstrating attenuation of the taint. See GeoRGE E. Dix & RobeRt 0. Dawson, 41 Texas Criminal PRActice & PROCEDURE § 13.339, at 29 (2d ed. Supp. 2003) (“Most likely, however, a defendant challenging evidence must show a causal connection between the section 52.02 illegality and the obtaining of the evidence. If this is shown, the State may raise and undertake to establish that the taint of the illegality was attenuated by the time the challenged evidence was obtained.”). Because we addressed the violation of the statute in our original opinion, holding that the statute requiring parental notification was violated, it is unnecessary to repeat that analysis in this opinion. We thus proceed directly to a causal-connection analysis.

D. Causal-Connection Analysis

Despite arguing that it was the State’s burden to negate a causal connection, appellant maintains that the causal link was clear and obvious in this case. First, appellant anticipates that the State will argue that the short length of time that appellant was detained before giving the confession negates any causal link. Appellant urges us to reject what he characterizes as a facially-appealing argument because it would reward police officers for quickly obtaining confessions in disregard of statutory requirements. Appellant argues that a causal connection was shown by the limitless, potentially different outcomes that might have resulted if appellant’s parents had been promptly notified. Appellant argues that (1) his parents might have arranged counsel for him; (2) they might have intervened with the investigators; (3) they might have arranged for appellant to be interviewed in a less coercive setting; (4) they might have advised appellant not to make any statement; or (5) any of a multitude of possibilities might have transpired. The State argues that there is no evidence of any causal connection, citing a recent case from the Fourteenth Court of Appeals. See Vann v. State, 93 S.W.3d 182, 185-86 (Tex.App.Houston [14th Dist.] 2002, pet. ref d) (finding no causal link between two-and-one-half hour delay in notifying defendant’s cousin and making of defendant’s written statement, when cousin was present at detention and arrest and at station during time that defendant confessed).

Regarding what effect the failure to notify appellant’s parents promptly had upon his decision to confess, the record does not yield any evidence whatsoever. There is no evidence as to what appellant’s parents would have done if they had been notified more promptly. There is no evidence that appellant was aware that his parents were supposed to be notified or that he was aware that they were not more promptly notified. There is no evidence that appellant asked to speak with his parents. To the contrary, there is evidence he did not ask for his parents “or anything like that.” It is noteworthy that, upon being notified at 9:50 p.m., appellant’s parents did not immediately attempt to contact appellant or an attorney. Instead, they waited until the following day to visit appellant. There is also evidence that appellant did not ask to speak to an attorney when given his rights, including his right to consult with counsel.

Because appellant had the burden of producing evidence of a causal connection, and because appellant produced no evidence, but only speculation, of what might have happened, we conclude that appellant has not met his burden. It is, thus, unnecessary to conduct an attenuation-of-the-taint analysis.

We overrule appellant’s first and second points of error.

Failure to Take Detained Juvenile Without Unnecessary Delay to an Office or Official Designated by the Juvenile Court

In his third and fourth points of error, appellant contends that the trial court reversibly erred in denying appellant’s motion to suppress his oral statement because it was taken in violation of section 52.02(a) of the Texas Family Code. See Tex. Fam.Code Ann. § 52.02(a) (Vernon Supp.2004). Appellant argues that he was not taken to a juvenile processing office as designated by section 52.025(a) of the Texas Family Code and that he was not taken without unnecessary delay to an office or official properly designated by the juvenile court, as required by section 52.02(a)(2) of the Texas Family Code. See id. §§ 52.02(a)(2), 52.025(a) (Vernon 2002 & Supp.2004). Specifically, appellant argues that, even if the entire police station at 1200 Travis is a designated facility, appellant was not taken to an office inside designated exclusively for processing juveniles.

The Texas Family Code requires that, without unnecessary delay, a detained juvenile be released to his parents (etc.), brought before the office or official designated by the juvenile court, brought to a juvenile detention facility, or brought to a medical facility under certain conditions, but the Code provides an exception to allow a detained juvenile first to be taken to a juvenile processing office. Id. § 52.02(a). A juvenile processing office is defined in section 52.025 of the Texas Family Code as an office or room designated by the juvenile board for the temporary detention of a juvenile in order to return the child to his parent or custodian (etc.), to complete required paper work, to photograph and to fingerprint, to issue warnings, or to receive a statement by the juvenile. Id. § 52.025(a), (b).

Appellant acknowledges that there was conflicting testimony supporting the trial court’s conclusion of law that appellant’s statement was taken in a designated juvenile processing office. Appellant claims that this case is controlled by Baptist Vie Le v. State, in which the juvenile defendant was taken to the same place that appellant was taken and that place was held not to be a designated juvenile processing office. Id., 993 S.W.2d 650, 654-55 (Tex.Crim.App.1999). In Baptist Vie Le, however, there was nothing in the record to indicate that the homicide division of the Houston Police Department was a designated juvenile processing office. Id. at 654.

Nevertheless, appellant argues that, even if the homicide division was a designated juvenile processing office, appellant was not taken to a particular room designated only for processing juveniles. Appellant relies on Anthony v. State for the proposition that, even though a police station is designated a facility for processing juveniles, the police must use an area designated exclusively for juveniles in order to protect the juvenile from the stigma of criminality or exposure to adult offenders. Id., 954 S.W.2d 182, 135-36 (Tex.App.-San Antonio 1997, no pet.), overruled on other grounds by Gonzales, 67 S.W.3d at 912-18, 912 n. 6 (holding that violation of Family Code does not automatically lead to exclusion of evidence). The State argues that appellant did not present this specific complaint to the trial court so as to preserve error on appeal. Appellant filed a written motion to suppress evidence. The motion specified both article 38.23 of the Texas Code of Criminal Procedure and section 52.02(b) of the Texas Family Code, but it did not mention section 52.02(a) or section 52.025 of the Texas Family Code or complain about the failure to take appellant to a designated juvenile processing office. Diming arguments presented in support of his motion to suppress, after having presented evidence, appellant again did not mention sections 52.02(a) or 52.025 or, in any way, allude to the failure of the police to take appellant to a designated juvenile processing office, much less one that was used exclusively for processing juveniles. Accordingly, we overrule appellant’s third and fourth points of error because we conclude that he failed to preserve them by objecting on those grounds below. See Tex.R.App. P. 33.1(a)(1)(A).

Refusing Jury Instruction to Disregard Illegally Taken Confession

In his fifth point of error, appellant contends that the trial court reversibly erred in refusing his requested jury instruction regarding the admissibility of his illegally taken oral confession. Appellant appears to include both the rejection of his request for a jury instruction pursuant to article 38.23 of the Code of Criminal Procedure (Texas statutory exclusionary rule) and section 52.02(b) of the Texas Family Code (failure to notify parents promptly). Appellant argues that he was entitled to the instruction because the evidence, from both the State and the defense, showed that appellant’s parents were not promptly notified.

The State points out, as did the trial court below, that there was no controverted evidence regarding the issue. It is well settled that a defendant is entitled to an evidence-excluding instruction to the jury only when the evidence raises a factual issue for the jury to resolve. Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App.1996). Accordingly, we overrule appellant’s fifth point of error.

Exclusion of Expert Testimony Regarding Probation Suitability

In his sixth point of error, appellant contends that the trial court abused its discretion in excluding the testimony of Dr. Beth Pelz regarding appellant. Appellant argues that Dr. Pelz’s testimony that appellant would not have benefitted from long-term incarceration was admissible pursuant to rule 702 of the Texas Rules of Evidence. See Tex.R. Evid. 702. Appellant claims that the testimony would have assisted the jury in determining appellant’s sentence.

When this case was tried, and even when the parties filed their briefs, this Court had not yet decided Peters v. State, 31 S.W.3d 704 (Tex.App.-Houston [1st Dist.] 2000, pet. ref d). In Peters, we held that suitability for probation can be relevant to the jury’s recommendation of punishment, provided that it is helpful to the jury in determining the appropriate sentence. Id at 719. We pointed out to the bench and bar that important changes in article 37.07, section 3(a) of the Texas Code of Criminal Procedure¹ may make evidence admissible, despite much ease law holding similar evidence per se inadmissible under the prior and more restrictive version of that statute. Id. at 722. We were speaking of the very case law upon which the State is relying here.

During the trial of this case, the State requested a hearing outside the presence of the jury to determine the admissibility of Dr. Pelz’s testimony as an expert. Defense counsel first presented Dr. Pelz’s credentials, which included expertise in the sociology of gangs. Initially, when the trial court asked if defense counsel was presenting Dr. Pelz to give her opinion as to whether appellant should get probation, defense counsel emphatically denied that she could give her opinion as to whether or not appellant should get probation. After defense counsel presented some testimony, and a couple of attempts at a proffer, the trial court expressed concern about what the exact nature of Dr. Pelz’s testimony would be. Finally, defense counsel stated that Dr. Pelz would give three expert opinions: (1) that, based on everything Dr. Pelz knew, appellant would be a good candidate for probation; (2) that incarceration in the penitentiary for a person of appellant’s maturity, coupled with his gang affiliation, would have a long-standing, detrimental impact on appellant, not serving society’s purpose; and (3) that her observation of appellant showed him to be an immature individual who had been impacted by gang-type activities and individuals in the gang. After further examination and cross-examination, the prosecutor stated that he had no objection to Dr. Pelz’s testifying about the impact of gangs on a person of appellant’s maturity.

The trial court ruled that Dr. Pelz’s qualifications and professional background were impressive, but in regard to Dr. Pelz’s stating her opinions about appellant’s suitability for probation and the adverse effect of incarceration, the trial court found that nothing had been presented to show that Dr. Pelz’s findings or opinions were accepted as valid in the scientific community, that they were grounded on any particularly rehable scientific procedure, or that they were reliable. The trial court concluded that, given the speculative nature of Dr. Pelz’s opinions, they were entirely too nebulous and speculative to assist the jury. The trial court ruled that Dr. Pelz’s opinions as to the desirability of probation and the impact of incarceration would not be admissible, but that her opinions as to appellant’s maturity and attraction to gangs would be admissible.

It is noteworthy that, although the State relied upon the old line of cases that we held in Peters were supplanted by statutory changes, the trial court here acknowledged appellant’s argument at trial that the State’s authority predated the new rules of evidence relative to expert opinions. The trial court did not base its ruling on the old line of cases, but, rather, upon an application of the rules of evidence concerning expert opinions, their reliability, and their ability to assist the jury to determine an issue in the case.

Here, the trial court performed its duty to determine whether the expert opinions in question would be helpful to the jury in determining the appropriate sentence in this case.² See Peters, 31 S.W.3d at 718 (quoting Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App.2000)). We hold that the trial court’s obviously conscientious efforts in this case were well within the zone of reasonable disagreement so as not to constitute an abuse of discretion. See Hankton v. State, 23 S.W.3d 540, 546-47 (Tex.App.-Houston [1st Dist.] 2000, pet. refd).

Accordingly, we overrule appellant’s sixth point of error.

Conclusion

We affirm the judgment of the trial court.

En banc consideration was requested.

A majority of the Justices of the Court voted for en banc consideration.

The en banc Court consists of Chief Justice RADACK and Justices HEDGES, TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, HIGLEY, MIRABAL, and DUGGAN.

Justice KEYES, joined by Justices MIRABAL and DUGGAN, dissenting.

Justice MIRABAL, joined by Justices KEYES and DUGGAN, dissenting.

1 . Tex Code Crim. Proc Ann. art. 37.07, § 3(a)(1) (Vernon Supp.2004).

2 . Although some of the trial court's remarks appeared to be more appropriate to a "hard science” or "soft science” reliability determination, the trial court’s ultimate holding was that Dr. Pelz's opinions would not be helpful to the jury, anticipating our decision in Peters.