Gonzales v. State , 2003 Tex. App. LEXIS 10072 ( 2003 )

EN BANC OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS

TIM TAFT, Justice.

Having been certified to be tried as an adult for capital murder, appellant, Chance Derrick Gonzales, pled guilty to murder after the trial court had denied a motion to suppress his written confession. Pursuant to a plea-bargain agreement, the trial court assessed punishment at 45 year's in prison. This Court originally affirmed the trial court’s judgment. On rehearing, on November 4, 1999, this Court reversed the trial court’s judgment in an opinion withdrawing and superseding its first opinion. See Gonzales v. State, 9 S.W.3d 267 (Tex.App.-Houston [1st Dist.] 1999) (Gonzales I). The Texas Court of Criminal Appeals reversed this Court’s judgment, holding that we failed to consider whether there was a causal connection between the violation of Section 52.02(b) of the Family Code,¹ requiring the prompt notification of parents after taking a juvenile into custody, and the acquisition of appellant’s confession. Gonzales v. State, 67 S.W.3d 910, 913-14 (Tex.Crim.App.2002) (Gonzales II). That court remanded the cause for us to determine the existence, if any, of a causal connection. Id. We affirm.

Facts

On February 18, 1996, appellant, then a juvenile, shot and killed a convenience store clerk during an attempted robbery. The police investigators received information from a confidential informant, which information eventually led them to appellant, who was identified as the shooter. On March 8, 1996, appellant was found at a house, where he and several other juveniles were having a party, and was taken into custody between midnight and 1:30 a.m. Appellant was taken to a juvenile processing office, where he was placed in a room by himself for 20 to 30 minutes, while the arresting officers picked up a surveillance videotape of a beer theft involving appellant at a different convenience store on the night of the murder. Officers then took appellant to the homicide division of the sheriffs department at 610 Lockwood in Houston, another designated juvenile processing office, around 2:30 a.m. Appellant was given his warnings in the car on the way to the Lockwood office. Appellant was kept at the Lockwood office for approximately 40 to 45 minutes while one of the officers located a municipal judge in the area.

The officers then took appellant to the municipal judge’s chambers, arriving there about 3:35 a.m. Between 3:39 a.m. and 3:49 a.m., the municipal judge gave appellant the warnings required by the Family Code and then left appellant alone with the officers in the judge’s office. The officers then took appellant’s written statement. After the statement was completed, the judge returned to his chambers, and the officers left appellant alone with the judge. At 4:42 a.m., the judge began his determination that appellant had knowingly and voluntarily given his written statement. The judge completed his determination and witnessed the execution of the statement at 5:11 a.m.

Causal-Connection Requirement

As part of his second point of error, appellant contends that his confession should have been suppressed because the police did not comply with Family Code requirements. Section 52.02(b) of the Family Code 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) (Vernon Supp.2004). Appellant’s complaint focuses on the failure to notify his parents promptly.

This day, in a case raising the same issue, we have held that, when a juvenile seeks to suppress a confession given after a 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 show a violation of the statutory requirement and a causal connection between that violation and the ensuing confession. See Pham v. State, No. 01-99-00631-CR, 125 S.W.3d 622, 627-628, 2003 WL 22807944, *4-*5 (Tex.App.-Houston [1st Dist.] Nov. 26, 2003, no pet. h.). Once the defendant meets his burden, the State must then shoulder the burden of demonstrating attenuation of the taint. Id.

In its original brief, the State argued that appellant had not shown a causal connection between the delay in notifying appellant’s parents and appellant’s decision to give a statement. On remand, appellant argues that this causal connection must be determined by reference to the attenuation standard. Having held in Pham that the initial burden is on the defendant to show a causal connection, we look to appellant to meet this burden. See id. Appellant points to no evidence in the record demonstrating a causal connection between the failure to notify his parents and his decision to give a statement to the police, and we have found no such evidence. Accordingly, we overrule that portion of appellant’s second point of error complaining of the police’s failure to notify appellant’s parents.

Conclusion

Having addressed and overruled appellant’s remaining contentions in our original opinion, Gonzales I, 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, and PRICE.

Justice KEYES, joined by Justice PRICE, dissenting.

1 . Tex. Fam.Code Ann. § 52.02(b) (Vernon Supp. 2004).