TORRES, SEBASTIAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0018-22 & PD-0019-22
THE STATE OF TEXAS
v.
SEBASTIAN TORRES, Appellee
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
HIDALGO COUNTY
NEWELL, J., filed a concurring opinion.
I agree with the court of appeals that the statement at issue in
this case should have been suppressed. However, I disagree with the
interpretation of the statute that the Court relies on to justify the same
conclusion. The Court fails to adequately address the State’s textual
argument, and ultimately avoids a much simpler resolution of this
case. Rather than interpret the ambiguous phrase “uses the
Torres Concurring — 2
procedure” in the statute to essentially mean “starts the procedure,” I
would focus instead on where the “procedure” at issue broke down.
The problem in this case is that the officers failed to bring the juvenile
and the recording of the juvenile’s statement back to the magistrate
judge despite the judge’s recorded request. This violation of the
Family Code requires suppression under Article 38.23 of the Code of
Criminal Procedure under the facts of this case without regard to
whether the magistrate merely started or completely used the
“procedure.” 1
As alluded to above, the Court does not adequately address the
State’s position that a magistrate does not “use” a procedure by
merely initiating it. There is textual support for this position in the
operative sentence at issue in Family Code § 51.095(f).2 That statute
targets the magistrate’s determination that the juvenile has given a
statement voluntarily. This determination necessarily comes at the
end of the “procedure” at issue, providing support for the State’s
argument that the statute requires use of the entire procedure not just
1
See Gonzales v. State, 67 S.W.3d 910, 913 (Tex. Crim. App. 2002) (recognizing that
Article 38.23(a) provides the proper mechanism for excluding evidence in violation of the
Family Code) (citing Baptist Vie Le v. State, 993 S.W.2d 650, 656 n. 14 (Tex. Crim. App.
1999)); see also Comer v. State, 776 S.W.2d 191, 196 (Tex. Crim. App. 1986) (holding that
evidence obtained in violation of the Family Code should have been suppressed pursuant to
Article 38.23(a)).
2
Tex. Fam. Code Ann. § 51.095(f).
Torres Concurring — 3
the beginning. Indeed, the statute was obviously designed to exclude
a juvenile’s involuntary statement after a magistrate determines that
the statement was involuntary even though the statute was written
more broadly than necessary to accomplish that goal.
Further, this voluntariness determination seems to be the textual
focus of the statute given that other parts of the procedure can be
skipped. For example, even though the magistrate may request that
the recording of the statement be returned to him after it is made
there is no requirement that the magistrate actually view it.3 And,
under the text of the statute, the magistrate is not required to speak
with the juvenile to make a voluntariness determination.4 The text of
§ 51.095(f) only requires the magistrate make a voluntariness
determination and reduce it to writing after the juvenile and his
recorded statement are brought back to the magistrate.5 Again, this
supports the State’s contention that the “procedure” referred to in the
text of the statute necessarily includes a voluntariness determination,
not merely a request to start the process to make one.
3
See id.
4
Id. (“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.”).
5
Id.
Torres Concurring — 4
Interpreting the phrase “uses the procedure” to mean “starting
the procedure” has unintended consequences as well. This
interpretation means that once a magistrate makes the request, the
magistrate loses discretion despite the discretionary nature of the
statute. As the court of appeals held below, “[o]nce the magistrate
decides to follow the procedure, the statute explicitly makes
admissibility conditional on the magistrate’s finding of voluntariness.” 6
This means that an otherwise voluntary statement must be excluded
even in situations where the magistrate changes his or her mind about
“using the procedure.”
Rather than interpret an ambiguous phrase in the statute to
place the burden on the magistrate to ensure that his or her lawful
orders are carried out, I would focus instead on the real breakdown in
procedure in this case. There is no question that § 51.095(f) required
the officers in this case to return the juvenile and the recording of the
juvenile’s statement to the magistrate after the officers had taken the
juvenile’s statement. This violation of the Family Code can be
addressed through resort to a different Family Code provision.
6
State v. Torres, 639 S.W.3d 791, 799 (Tex. App.—Corpus Christi 2021).
Torres Concurring — 5
Family Code § 51.17 provides that Chapter 38 of the Code of
Criminal Procedure applies in a judicial proceeding under this title.7
We have held that Article 38.23 can apply to violations of the Family
Code in juvenile cases when the text of the statute does not provide
an independent exclusionary basis. 8 Though § 51.095(f) provides an
independent basis for exclusion when a magistrate “uses the
procedure” outlined in that section, it does not provide a basis for
exclusion when the magistrate does not use the procedure. Under
those circumstances, Article 38.23 would necessarily apply. Applying
Article 38.23 in this case justifies the trial court’s order suppressing
the juvenile’s statement.9
With these thoughts, I concur in the Court’s judgment.
Filed: April 19, 2023
Publish
7
Tex. Fam. Code Ann. § 51.17(c).
8
Gonzales, 67 S.W.3d at 912-13 (recognizing that § 52.02(b) of the Family Code does not
contain an independent exclusionary mechanism but that a statement taken in violation of §
52.02(b) could be excluded under Article 38.23(a) if there is a causal connection between
the violation and the statement).
9
Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990) (a trial judge’s decision
regarding the suppression of evidence will be upheld if correct on any theory of law
applicable to the case).