          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-01-00527-CR




                                      Bryan Scott Horton, Appellant

                                                       v.

                                       The State of Texas, Appellee




        FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
                 NO. 7125, HONORABLE JOE CARROLL, JUDGE PRESIDING




                 Appellant Bryan Scott Horton and another sixteen-year-old boy, Jeremy Keith Coffey,

murdered a sixteen-year-old girl in her home, apparently because they wanted to take her father=s pistol.

Appellant and Coffey were taken into custody three days after the murder and, within hours, appellant

confessed. Appellant, after being certified for trial as an adult, waived his right to trial by jury. The district

court found him guilty of murder and sentenced him to imprisonment for forty years.1 See Tex. Pen. Code

Ann. ' 19.02(b)(1) (West 1994). In five points of error, appellant contends the district court erred by

overruling the motion to suppress his confession. We will affirm the conviction.




   1
      Coffey was also tried as an adult. A jury found him guilty of murder and imposed punishment of
life imprisonment. Coffey=s conviction was affirmed by this Court. Coffey v. State, No. 03-01-00342-
CR, 2002 Tex. App. LEXIS 2049 (Tex. App.CAustin Mar. 21, 2002, no pet.) (not designated for
publication).
                We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion.

Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In this review, we defer to the district

court=s factual determinations but review de novo the court=s application of the law to the facts. Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Where the district court did not make explicit findings

of fact, we review the evidence in the light most favorable to the court=s ruling and assume the court made

findings that are supported by the record and buttress its conclusion. Carmouche v. State, 10 S.W.3d

323, 327-28 (Tex. Crim. App. 2000).


Testimony at Suppression Hearing

                Acting on information linking appellant and Coffey to the murder, Texas Ranger Fred

Cummings and Lampasas County Sheriff=s Investigator David Whitis drove to Harker Heights, where

appellant lived with his aunt, Patty Craddock. The officers told Craddock they wanted to question

appellant regarding his involvement in a murder. Craddock told the officers that appellant was with Coffey.

The officers telephoned this information to Lampasas County Sheriff Gordon Morris and Investigator Doug

Kahlstrom, who were at that time waiting outside the Copperas Cove apartment where Coffey lived with his

mother. At about 11:30 p.m., an automobile matching the description the officers had been given drove into

the apartment parking lot, stopped briefly, and then started to leave. Morris and Kahlstrom stopped the

car, which was driven by Coffey, and took Coffey and appellant into custody. Kahlstrom testified that he

advised appellant and Coffey of their rights. See Miranda v. Arizona, 384 U.S. 436 (1966); see also Tex.

Code Crim. Proc. Ann. art. 38.22 (West 1979 & Supp. 2002).




                                                     2
                 Morris called Cummings and Whitis, who were still at the Craddock residence, and told

them that appellant and Coffey were in custody. Cummings testified that he told Craddock what had

happened and advised her that appellant would first be taken to the Lampasas County Sheriff=s office and

then to the juvenile detention center in Killeen. Cummings also told Craddock that appellant was going to

be questioned and that she had the right to be present. According to Cummings, Craddock said she would

wait to speak with appellant at the detention center.

                 Approximately one hour after appellant and Coffey were taken into custody, they arrived

with Morris and Kahlstrom at the Lampasas County Jail. Appellant was taken to the sheriff=s conference

room. Linda Rich, the Lampasas County Juvenile Probation Officer, came to the jail, met with appellant in

the conference room, and filled out the ACaseworker-4 intake which is information we have to have for the

computer to enter the juvenile into the computer.@ At this point, it was 2:20 a.m. Rich then called

appellant=s mother in San Angelo and Craddock in Harker Heights. Rich told both women that appellant

was in custody for murder and that a detention hearing would probably be held later that day.

                 After completing the juvenile intake procedure, Rich turned appellant over to Morris and

Kahlstrom for questioning. See Tex. Fam. Code Ann. ' 52.04(b) (West Supp. 2002). Morris testified that

after he and Kahlstrom reentered the conference room, AI advised him of his rights using the Miranda card. .

. . And we basically told Mr. Horton that we knew what had happened to [the victim], and he cried and

told us his side of the story.@

                 Justice of the Peace Frances Porter arrived at the jail after appellant made his oral statement

to the officers. She went to the investigators= office where she met appellant and, with no one else present,


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administered the prescribed juvenile warnings.2 Tex. Fam. Code Ann. ' 51.095(a)(1)(A) (West Supp.

2002). Judge Porter=s Amagistrate=s juvenile warning@ was signed by appellant at 4:23 a.m. The judge then

left the investigators= office and Kahlstrom returned. At this point, appellant gave Kahlstrom the written

confession that was the subject of the motion to suppress. After the statement was typed, Judge Porter

returned to the room and questioned appellant to determine whether he understood the nature and contents

of the statement and was acting voluntarily. Appellant signed the statement in the judge=s presence at 5:22

a.m. Judge Porter signed her Amagistrate=s juvenile verification and certification form@ at 5:35 a.m.

                Craddock testified that the officers told her that appellant would not be questioned until he

was taken to the juvenile detention center in Killeen. She said she told the officers that she wanted to be

present for any questioning.

                Appellant testified that he had been Ahuffing@ gasoline on the night he was taken into

custody. He said that he was not advised of his rights either at Coffey=s residence or at the sheriff=s office

before he made his oral statement. Appellant claimed that he would not have made the oral statement had

he been advised of his rights. Appellant initially claimed that he was not advised of his rights by Judge

Porter until after he gave the written statement, but he later said that he may have met with the magistrate

before the statement was given.




   2
     It is not clear from the record when appellant was taken from the conference room to the
investigators= office.




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Discussion

                 By his first point of error, appellant contends his written statement should have been

suppressed because neither of the officers who took him into custody notified his parent or custodian as

required by law. A person taking a child into custody must promptly notify the child=s parent, guardian, or

custodian, and explain the reason for this action. Tex. Fam. Code Ann. ' 52.02(b)(1) (West Supp. 2002).

The failure to comply with the section 52.02(b) notice requirement will render inadmissible any subsequent

statement by the child obtained as a result of the statutory violation. Gonzales v. State, 67 S.W.3d 910,

913 (Tex. Crim. App. 2002).

                 Appellant argues that section 52.02(b) was violated because neither Morris nor Kahlstrom,

the two officers who took him into custody, personally notified either Craddock or his mother. Instead, the

testimony shows that moments after appellant was taken into custody, Sheriff Morris called the officers at

Craddock=s residence and told them that appellant was in custody. These officers, Cummings and Whitis,

in turn told Craddock that appellant was in custody for murder. Appellant cites no authority holding that the

statutory notice may not be given in the manner shown here. It would unreasonably elevate form over

substance to hold that section 52.02(b) was not satisfied merely because the required notice was not

personally given by Morris, but by a second officer acting on Morris=s behalf. Because we conclude that

appellant=s custodian was properly notified in accord with section 52.02(b), we need not decide whether

the later notice to appellant=s mother was adequate. Point of error one is overruled.

                 Next, appellant asserts that his written statement should have been suppressed because it

was tainted by his earlier oral statement. It is undisputed that the earlier, unrecorded oral statement was not


                                                      5
admissible. See Tex. Fam. Code Ann. ' 51.095(a)(5) (West Supp. 2002). Relying on what has been

called the Acat-out-of-the-bag@ theory, appellant argues that the psychological pressure of the oral

confession, which he was not told could not be used against him, broke his resolve to remain silent and

rendered the subsequent written statement involuntary under the Due Process Clause. See Griffin v. State,

765 S.W.2d 422, 428 (Tex. Crim. App. 1989); In re R.J.H., 28 S.W.3d 250, 252 (Tex. App.CAustin

2000, pet. granted); U.S. Const. amend. XIV.

                Making a confession under circumstances that preclude its use does not perpetually disable

the confessor from making a usable one after those circumstances have been removed. Griffin, 765

S.W.2d at 428 (quoting United States v. Bayer, 331 U.S. 532, 541 (1947)). It has never been held that

the psychological impact of the voluntary disclosure of a guilty secret qualifies as State compulsion or

compromises the voluntariness of a subsequent informed waiver of the right to remain silent. Id. at 429

(quoting Oregon v. Elstad, 470 U.S. 298, 312 (1985)). The effect of giving a statutorily inadmissible

statement on the voluntariness of a subsequent statement is determined from the totality of the

circumstances, with the State bearing the burden of proving voluntariness by a preponderance of the

evidence. Id. at 429-30; In re J.T.H., 779 S.W.2d 954, 958 (Tex. App.CAustin 1989, no writ).

                Morris and Kahlstrom testified that appellant was advised of his Miranda rights both at the

time he was taken into custody and immediately before he gave his oral statement. Although appellant

denied this in his own testimony, we defer to the district court=s implicit finding that the Miranda warnings

were given. Appellant does not otherwise contend that the oral statement was involuntary. Thus, the

inadmissibility of the oral confession resulted solely from alleged statutory noncompliance.


                                                     6
                 Judge Porter testified without contradiction that she fully admonished appellant before he

made the written statement, that appellant appeared to understand the nature of the statement, and that he

voluntarily signed the statement in her presence. Appellant does not dispute that the statutory requisites for

the admission of the written statement were satisfied. See Tex. Fam. Code Ann. ' 51.095(a)(1) (West

Supp. 2002). Appellant did not testify or offer other evidence that he would not have given the written

statement had he not previously made the oral confession.

                 R.J.H., on which appellant relies, is distinguishable. In that case, a juvenile gave a written

custodial statement, later determined to be inadmissible, implicating himself and another person in a burglary.

R.J.H., 28 S.W.3d at 251. The juvenile subsequently made several noncustodial oral statements to the

police seeking to exonerate the other person and to accept sole responsibility for the burglary. Id. Finding

a Adirect causal connection@ between the juvenile=s inadmissible written statement and the later oral

statements, this Court concluded that the earlier statement had tainted the later statements and rendered

them involuntary under the Due Process Clause. Id. at 254. The record now before us does not reflect a

causal connection between appellant=s inadmissible oral statement and his later written statement. In fact, on

substantially similar records, both the court of criminal appeals and this Court have upheld the admission of

a written statement given by a juvenile who had earlier given an inadmissible oral statement. See Griffin,

765 S.W.2d at 430-31; J.T.H., 779 S.W.2d at 958-59.

                 We hold that the State sustained its burden of proving that appellant=s written statement was

voluntary. Point of error two is overruled.




                                                      7
                In his third point of error, appellant contends his written statement should have been

suppressed because the sheriff=s conference room in which he gave his oral statement was not a designated

juvenile processing office. See Tex. Fam. Code Ann. ' 52.025(a) (West Supp. 2002) (juvenile board may

designate office or room for temporary detention of child taken into custody). A child who is taken into

custody may be detained in a juvenile processing office for up to six hours. Id. ' 52.025(d). A juvenile

processing office may be used to receive a statement from the child. Id. ' 52.025(b).

                At the suppression hearing, the State introduced in evidence an order of the Lampasas

County Juvenile Board dated April 11, 1996, designating the conference room and investigation office at the

Lampasas County Jail as juvenile processing offices. Appellant introduced an order of the board dated

September 15, 2000, designating the investigation offices at the county jail and at the Lampasas Police

Department, together with the conference room at the county juvenile probation office, as juvenile

processing offices. Appellant urges that the September 15, 2000, order superceded the April 11, 1996,

order, and therefore the sheriff=s conference room was not a juvenile processing office on the night appellant

gave his oral statement.

                Assuming that the conference room was not a designated juvenile processing office, no

basis for suppressing appellant=s written statement is shown. The failure to promptly take a child to a

juvenile processing office or other place specified by Texas Family Code section 52.02(a) does not

necessarily render inadmissible any subsequent statement given by the child. See Comer v. State, 776

S.W.2d 191, 196 (Tex. Crim. App. 1989); Gonzales, 67 S.W.3d at 913; Tex. Fam. Code Ann. '

52.02(a) (West Supp. 2002). There must be a causal connection between the statutory violation and the


                                                      8
receipt of the statement. Gonzales, 67 S.W.3d at 913; see Tex. Code Crim. Proc. Ann. art. 38.23(a)

(West Supp. 2002).

                 Once again, the opinion on which appellant relies is distinguishable. In Baptist Vie Le v.

State, 993 S.W.2d 650, 653 (Tex. Crim. App. 1999), a juvenile gave a statement while being detained at

the police homicide division, which was not a juvenile processing office, juvenile detention facility, or other

designated office or official. Id. at 654-55. The court concluded that under the circumstances shown, the

statement was obtained in violation of the family code and therefore should have been suppressed pursuant

to article 38.23(a). Id. at 656. In contrast to Baptist Vie Le, it is undisputed that appellant=s written

statement was taken in a juvenile processing office. The only statement taken in the arguably unapproved

location was the earlier oral statement that was not admitted in evidence. Assuming that there was a causal

connection between the failure to detain appellant in a designated juvenile processing office and the receipt

of appellant=s oral statement, the only alleged connection between the oral statement and the later written

statement is the Acat-out-of-the-bag@ theory previously discussed and found inapplicable. There is no

showing that the written statement was obtained by reason of the alleged family code violation and hence no

basis for excluding the statement from evidence. Point of error three is overruled.

                 In his fourth point of error, appellant contends his written statement should have been

suppressed because he was not taken before a magistrate in the county of his arrest as required by the code

of criminal procedure. Tex. Code Crim. Proc. Ann. art. 14.06(a) (West Supp. 2002). Appellant concedes

he knows of no authority holding that article 14.06(a) is applicable to juveniles. The court of criminal

appeals has stated that issues involving the substantive rights of pretransfer juveniles, such as the legality of a


                                                        9
detention or a confession, are controlled by the applicable provisions of the family code even when raised in

the criminal forum. Comer, 776 S.W.2d at 196 (quoting Griffin, 765 S.W.2d at 427). In any event,

noncompliance with article 14.06(a) will not vitiate an otherwise voluntary confession if the person arrested

was properly advised of his Miranda rights. Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App.

1992). Point of error four is overruled.

                In what he designates his fifth point of error, appellant asserts that he was harmed by the

errors discussed in points one through four. Because there was no error, further discussion of point five is

unnecessary.

                The judgment of conviction is affirmed.




                                                  __________________________________________

                                                  Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: May 31, 2002

Publish




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