
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-382 CV

____________________


IN THE MATTER OF J.B.J., A JUVENILE




On Appeal from the County Court at Law Number Three
Montgomery County, Texas

Trial Cause No. 01-01-449-JV




OPINION

	The trial court adjudicated a fourteen year old juvenile as having engaged in
delinquent conduct -- the second degree felony offense of indecency with a child -- and
sentenced him to probation until the age of eighteen.  See Tex. Pen. Code Ann. §
21.11(a), (d) (Vernon Supp. 2002).  On appeal, appellant ("JBJ") contends the trial court
erred in failing to suppress a confession he made while in custody.  The issue in this case
is whether the parents of the juvenile were promptly notified after he was taken into
custody as required by Section 52.02(b)(1) of the Texas Family Code.    
Facts

	Detective Page of the Montgomery County Sheriff's Department testified that on
November 22, 2000, she received a report containing allegations of criminal conduct by
JBJ, a juvenile, against a five year old child ("SW").  On January 8, 2001, Detective
Page, along with another detective from the  Montgomery County Sheriff's Department,
went to the school security office and asked to speak with JBJ.  School officials called JBJ
to the school's police office.  Detective Page testified she then told JBJ she had a report
of his involvement in inappropriate touching of SW and asked him if he would come with
her because she wanted to speak with him.  JBJ responded "yes."  Officer Tammy Trott,
an employee of the Conroe Independent School District Police, testified that Detective
Page's interview of JBJ at the school's security office was "very brief because basically
he confessed to what she asked." 
	Upon leaving the school,  the two Sheriff Department detectives transported JBJ by
car to the office of Judge Spikes, a justice of the peace.  Judge Spikes provided JBJ his
juvenile warnings pursuant to the requirements of the Family Code.  See Tex. Fam. Code
Ann. § 51.095 (Vernon Supp. 2002).   After the initial warnings were given, Detective
Page took JBJ to an empty office at the detective bureau  and spoke with him.  It was then
that JBJ made a written confession.  Once the written statement was completed, Page took
JBJ back to Judge Spikes.  With only himself and JBJ in the room, Judge Spikes completed
the statutory warnings required for the admissibility of a statement of a juvenile.  See Tex.
Fam. Code Ann. § 51.095(a)(1)(B) (Vernon Supp. 2002).  Detective Page testified that
she then took JBJ to the ID Division and had him fingerprinted.  At that point,  he was
taken to the juvenile facility and released to the authorities there.   
	Officer Trott described the efforts made to contact JBJ's parents.  She explained that
the school has phone numbers in the computer system -- both residence and work numbers. 
Trott told Detective Page she would try to contact JBJ's mother.  JBJ gave Trott a
residence number and told her that his mother would be out.  Trott began making phone
calls to try to reach the mother.  Before the detectives left the school with JBJ,  Trott told
Detective Page  that  she (Trott) would continue her efforts to reach a parent  until contact
was made.  For approximately an hour, Trott made six attempts to call the mother but was
unable to reach her.  Since the mother had not returned home, Trott then tried the father's
work number.  She reached a secretary, who  indicated she would have the father call
back.  JBJ's father returned Trott's call in five or ten minutes, and Trott explained to him
why his son had been taken into custody.  Later that afternoon, the mother, who was very
upset, contacted Trott and told Trott never to speak to JBJ again.  
	The State filed a petition asking that JBJ be adjudicated as a child engaged in
delinquent conduct.  Appellant filed a motion to suppress all oral and written statements
he had made in reference to the case. At the suppression hearing, there was, in addition
to the evidence recounted above, testimony regarding the following time chronology
surrounding the making of the written statement:  
	(1) Detective Page picked JBJ up at school at 10:40 a.m. and arrived at the
sheriff's department a couple of minutes before 11 a.m.   
	(2) Judge Spikes gave JBJ the first warnings at 11:05 a.m.   
	(3) Page took JBJ to her office (across the hall from Judge Spikes' office),
where JBJ completed his statement by 12:30 p.m.  
	(4) At approximately 12:22 p.m., while Page was in the interview with JBJ,
a phone call came for Page from JBJ's mother.  However, Page did not
know of the mother's call until after the interview and statement were
completed.   
	(5)  JBJ was taken to the juvenile facility around 1:15 p.m.    
	(6) Around 1:30 p.m. Page learned the mother had telephoned, and at that
time Page returned her call and informed her of the allegations against JBJ
and his confession.   

From the record as a whole, it appears there was an approximate one and one-half hour
time period between the juvenile's being taken into custody and the notification of the
father.  
	The trial court denied the motion to suppress, and, based on an agreed statement of
facts and stipulation of evidence, ultimately adjudicated JBJ as having engaged in
delinquent conduct by committing the offense of indecency with a child.  Pursuant to Tex.
Fam. Code Ann. § 56.01(n)(2) (Vernon Supp. 2002), the juvenile has a statutory right
under certain circumstances to appeal the denial of the motion to suppress, regardless of
his subsequent stipulation.      
 Standard of Review

	As with a motion to suppress in an adult criminal case, we review a motion to
suppress in a juvenile delinquency proceeding under an abuse of discretion standard.  See
In the Matter of R.J.H., 45 Tex. Sup. Ct. J. 732, 2001 WL 1873054, at *3 (May 30,
2002).  When there are no findings of fact, an appellate court reviews the record in the
light most favorable to the trial judge's ruling.  Id.  A reviewing court defers to the trial
court's findings of historical fact but, considering all of the surrounding circumstances,
determines de novo the application of law to the facts.  See id. 
Requirements of Texas Family Code

	Under Texas law, a person taking a child into custody must promptly notify the
child's parent, guardian, or custodian of that fact and of the reason for taking the child into
custody.  See Tex. Fam. Code Ann. § 52.02(b)(1) (Vernon Supp. 2002).  JBJ contends
the officers took him into custody upon leaving the school, which the State concedes, and
failed to promptly notify a parent, a point that the State challenges.  JBJ claims that the
violation of the statute renders his confession inadmissible, and that the trial court should
have granted his motion to suppress. 
	The juvenile has the burden to raise non-compliance with the Family Code's
requirements.  See Hill v. State, No. 12-00-00172-CR, 2001 WL 493275, at *7 (Tex. App.
--Tyler 2001, May 9, 2001, pet. ref'd).  Once the juvenile raises the issue, the State has
the burden to demonstrate compliance.  See In re C.R., 995 S.W.2d 778, 783 (Tex. App.--Austin 1999, pet. denied).  
Application of Law to the Facts

	JBJ  claims the officers violated Section 52.02(b)(1).  No violation of his
constitutional rights or of any other statutory provision is claimed on appeal. (1) JBJ argues
only that a parent was not "promptly notified" when he was taken into custody, and for
that reason his confession should have been suppressed.  We are required to decide
whether an approximate hour and a half time frame meets the prompt notification
requirement of the Texas Family Code.
	The Family Code does not provide us with a definition of "promptly" in this
context.  We look first to the meaning of "promptly" as the word is commonly used.  See
Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998).  The adjective "prompt" generally
means "ready and quick to act as occasion demands; immediately or instantly at hand." 
See Webster's New Universal Unabridged Dictionary 1441 (2nd ed. 1983). Black's
Law Dictionary defines the adverb "promptly" as doing  something "without delay" and
"with reasonable speed."  See Black's Law Dictionary 1214 (6th ed.1990).  These
definitions suggest the meaning of the word "promptly" in Section 52.02(b) includes
consideration of what is reasonable speed under the circumstances.    
	We note that the words "prompt" or "promptly" are employed in other sections of
the Juvenile Justice Code.  For example, on referral of a child's case to the office
designated by the juvenile court, the office shall promptly give notice of the referral and
a statement of the reason for the referral to the child's parents.  Tex. Fam. Code Ann.
§ 52.04(d) (Vernon Supp. 2002).  In Section 53.01, the Code provides that "[w]hen
custody of a child is given to the office or official designated by the juvenile board, the
intake officer, probation officer, or other person authorized by the court shall promptly
give notice of the whereabouts of the child and a statement of the reason the child was
taken into custody to the child's parent, guardian, or custodian unless the notice given
under Section 52.02(b) provided fair notice of the child's present whereabouts."  Tex.
Fam. Code Ann. § 53.01(c) (Vernon Supp. 2002).  In Section 53.012(a), the prosecutor
is required to promptly review the circumstances and allegations of a referral. Tex. Fam.
Code Ann. § 53.012(a) (Vernon 1996).  
	In contrast to these uses of the word "promptly," the Juvenile Justice Code also
contains a section that provides that a detention hearing, subject to certain exceptions, shall
be held  "promptly, but not later than the second working day after the child is taken into
custody[.]"    See Tex. Fam. Code Ann. § 54.01(a) (Vernon Supp. 2002). The fact that
the parental notification provision, Section 52.02(b), gives no specific time deadline
suggests that a determination of whether notification was "promptly" given requires
consideration of  the circumstances of the specific case.  See Roquemore v. State, 60
S.W.3d 862, 870 n.11 (Tex. Crim. App. 2001) (A strict interpretation of Section 52.02
would not necessarily foreclose a case where exigent circumstances would apply).  We
believe courts must determine what constitutes prompt parental notification as required by
Section 52.02(b)(1) by determining whether, considering the circumstances of the
particular case, the notification was with reasonable speed.  See generally Vann v. State,
No. 14-01-00544-CR, 2002 WL 1462901, at *2 (Tex. App.--Houston [14th Dist.] June 27,
2002, no pet h.).  
	In Vann, the court cited the following four factors that have been considered by
other courts in determining whether parental notification was prompt under the
circumstances of a particular case: (1) the length of time the juvenile was in custody before
the police notified a parent, guardian, or custodian; (2) whether notification occurred after
the police obtained a statement; (3) the ease with which the police were ultimately able to
contact the appropriate adult; and (4) what the police did during the period of delay.  Id.
at *2.  We note some of the factors considered by other courts seem targeted at assessing
whether the parental notification attempts were made in good faith or were reasonable
under the circumstances.  In determining whether parental notification was given with
reasonable speed under the circumstances, we believe the factors noted in Vann are
relevant considerations.    
	The Court of Criminal Appeals has emphasized the necessity of strict compliance
with the Texas Family Code provisions regarding juveniles.  See Baptist Vie Le v. State,
993 S.W.2d 650, 656 (Tex. Crim. App. 1999) (The Court "remind[ed] police officers of
the Family Code's strict requirements" regarding juveniles.).  Specifically, the parental
notification requirement of Section 52.02(b) has been the subject of court decisions in
criminal cases, where courts generally have strictly applied the requirement.  See Gonzales
v. State, 67 S.W.3d 910 (Tex. Crim. App. 2002) (because of violation of section 52.02(a),
case remanded for causal connection analysis by court of appeals); Pham v. State, 72
S.W.3d 346 (Tex. Crim. App. 2002) (remanding  for causal connection analysis because
of section 52.02(b) violation).  And we note that violation of the parental notification
requirement, along with its effect on the admissibility of confessions of juveniles, has also
been the subject recently of various courts of appeals decisions.  See Vann, 2002 WL
1462901; State v. Simpson, 51 S.W.3d 633 (Tex. App.--Tyler 2000), judgment vacated
and remanded, 74 S.W.3d 408 (Tex. Crim. App. 2002); see also In the Matter of C.R.,
995 S.W.2d 778.  The parental notification statute requires strict compliance.  However,
we do not believe  that the necessity for strict compliance precludes our consideration of
the totality of the circumstances or of the reasonableness of the efforts to notify the
parents.  We conclude these considerations are within the meaning of the word "promptly"
as used in Section 52.02(b).
 Here, the parental notification responsibility was delegated by Detective Page to the
C.I.S.D. police officer.  We recognize that delegation of the parental notification
responsibility to another officer may be necessary, and in fact may result in faster parental
notification; but once the notification requirement is delegated to another officer, that
officer must comply with the requirements of Section 52.02(b).  See generally Horton v.
State, 2002 WL 1071631, at *3 (Tex. App.--Austin May 31, 2002, no pet. h.) (allowing
arresting officer to delegate duty of parental notice to another officer.).
 We conclude, considering the reasonable speed exercised under the circumstances
of this case, the parental notification here was prompt. We view the evidence in a light
most favorable to the trial court's ruling when, as here, there are no findings of fact.  See
In the Matter of R.J.H., 45 Tex. Sup. Ct. J. 732, 2001 WL 1873054, at *3.  Before being
taken into custody by Detective Page, J.B.J. "confessed to what she asked."  The juvenile
then gave the school officer his residence number. JBJ told the officer his mother was not
at home.  The officer repeatedly tried to call the mother.  When the mother still had not
arrived home, the officer then called the father at work.  Contact was made at that point
with a parent -- approximately one hour and a half after JBJ was taken into custody.  No
evidence suggests the attempts to notify the child's parents were less than good faith
efforts.  No claim is made here of a violation of constitutional rights or of a violation of
some other statutory provision.  It is undisputed that the confession was taken in
compliance with the requirements of Section 51.095, which governs the admissibility of
a statement of a child.  See Tex. Fam. Code § 51.095 (Vernon Supp. 2002).  Considering
the totality of the circumstances in this case and applying the law to the facts, we conclude
no violation of Section 52.02(b) occurred.  
	Appellant's issue is overruled. The order adjudicating JBJ as having engaged in
delinquent conduct is affirmed.
	AFFIRMED.
							__________________________________
								DAVID B. GAULTNEY
									   Justice

Submitted on June 25, 2002
Opinion Delivered September 26, 2002
Before Walker, C.J., Burgess, and Gaultney, J.J.

Publish




 
CONCURRING OPINION

	I concur in the result, but respectfully disagree with the majority's analysis.  The
majority's analysis is strained in two aspects:  the determination that the parental
notification was promptly made, as required by the statute, and the use of the "totality of
the circumstances" construct in making that determination.
THE PROMPTNESS ISSUE

The majority states:
	Before being taken into custody by Detective Page, JBJ "confessed to what
she asked."  The juvenile then gave the school officer his residence number. 
JBJ told the officer his mother was not at home.  The officer repeatedly tried
to call the mother.  When the mother still had not arrived home, the officer
then called the father at work.  Contact was made at that point with a parent
-- approximately one hour and a half after JBJ was taken into custody.

The majority then concludes:  "No evidence suggests the attempts to notify the child's
parents were less than good faith efforts."  I realize the concept of "good faith" is
somewhat subjective, but I find the evidence shows, clearly and convincingly, the absence
of good faith.  After being told by the juvenile that his mother was not home, the school
officer attempted six calls to the mother, over an hour's time, before she called the father's
work number.  On that first attempt, she reached a secretary and the father returned the
call in five to ten minutes.  Assuming, for the sake of argument, it was reasonable for the
school officer to suspect that JBJ was being deceitful in saying his mother was not home;
then it was reasonable to call the number.  However, when the mother did not answer, was
it reasonable to call five additional times before calling the father?  I think not. 
	The majority states the factors enumerated in Vann v. State, No. 14-01-00544-CR,
2002 WL 1462901, at *2 (Tex. App.--Houston [14th Dist.] June 27, 2002, no pet. h.), are
relevant considerations.  I agree.  Below is comparison of the factors and the
corresponding action in this case:
			Factor							Action
(1) the length of time in custody before notification 			Six calls over 60 -
90   minutes

(2) whether notification occurred after police obtained a 		Yes
     statement

(3) the ease in ultimately contacting a parent				Two calls over 10
minutes	

(4) what the police did during delay					Obtained confession

	These factors, separately or together, do not, in my view, suggest promptness.  (2) 
They suggest the opposite:  unreasonable delay.  The majority is correct when they
acknowledge the parental notification statute requires strict compliance.  The actions in this
case do not constitute strict compliance.  I would hold the notification of JBJ's parents was
not prompt and therefore not in compliance with the statute.
THE TOTALITY OF THE CIRCUMSTANCES CONSTRUCT

	The majority utilizes the totality of the circumstances construct in determining
whether a violation of the notification statute occurred.  No other Texas court has utilized
this construct in this manner.  If voluntariness of the confession were the issue, then the
totality of the circumstances would be considered in making that determination.  In re
R.J.H., 79 S.W.3d 1 (Tex. 2002).  This appeal does not challenge the voluntariness of the
confession; therefore the totality of the circumstances construct is applied inappropriately. 
THE CONCURRENCE

	Even with a determination that the notification was not prompt, the judgment must
still be affirmed.  The Court of Criminal Appeals has concluded that before a juvenile's
confession can be excluded, there must be a casual connection between the Family Code
violation and the making of the statement.  Pham v. State, 72 S.W.3d 346 (Tex. Crim.
App. 2002); Gonzales v. State, 67 S.W.3d 910, 912 (Tex. Crim. App. 2002).  There is
no evidence of such a casual connection.  Therefore, the trial judge was correct in denying
the motion to suppress.




                                                                                    DON BURGESS

                                                                                          Justice

Concurrence Delivered
September 26, 2002
Publish




1. Section 51.09 of the Texas Family Code sets forth the requirements for obtaining
a waiver of rights by a juvenile, and the section requires waiver be made by the child and
an attorney for the child.  See Tex. Fam. Code Ann § 51.09 (Vernon Supp. 2002). 
Section 51.095 provides for the admissibility of statements "[n]otwithstanding Section
51.09," and does not require the presence or joinder of a parent or attorney.  See Tex.
Fam. Code Ann. § 51.095 (Vernon Supp. 2002).  The U.S. Supreme Court has held that
under proper circumstances a juvenile may waive constitutional rights without an attorney. 
See Fare v. Michael C., 442 U.S. 707, 727-28, 99 S.Ct. 2560, 61 L.Ed. 2d 197 (1979). 
However, the lack of the presence of a parent has been considered an important factor in
determining whether a child's confession was made intelligently, knowingly, and
voluntarily in at least one Texas case.  See E.A.W. v. State, 547 S.W.2d 63, 64-65 (Tex.
Civ. App.--Waco 1977, no writ).  And we note the Texas Family Code entitles a juvenile
to have a parent present in the juvenile processing office.  See Tex. Fam. Code §
52.025(c) (Vernon Supp. 2002).  However, we do not address these issues in this case as
they are not raised or briefed by the parties.
2. But as a general, common sense matter, what is promptness?  If we tell our
teenagers to promptly call home when they change locations while visiting friends, would
we accept them being at a location for an hour before calling us.  Absolutely NOT.  Would
we accept the excuse that they called our office six times before calling home?  Absolutely
NOT.  

