

 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0285-12




MICHAEL HERRING, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS

BOWIE COUNTY




	Johnson, J., delivered the opinion of the Court in which Keller, P.J., and 
Price, Womack, Keasler, Hervey, Cochran, and Alcalá, JJ., joined.  Meyers,  J.,
did not participate.

O P I N I O N

	Appellant was 16 years old when he was arrested for, and charged with, aggravated robbery. 
Because he was a juvenile, (1) he was given his Miranda warnings by a magistrate pursuant to Texas
Family Code section 51.095(a)(1)(A).  There is conflicting testimony in the record as to whether two
armed police officers were present when appellant was given these warnings.  After the warnings,
appellant was questioned by two police officers, and he confessed to the charged robbery, as well
as other robberies and burglaries.  The confession was reduced to writing by one of the officers, and
appellant signed it.  At trial, appellant filed a motion to suppress the signed statement, and argued
that, inter alia, the statement was taken in violation of Section 51.095 because armed law-enforcement officers were present when he was given the magistrate's warnings.  The motion was
denied, and a jury found appellant guilty, sentencing him to 20 years' confinement.  Appellant
appealed and asserted that the trial court erred in denying the motion to suppress.
	The court of appeals affirmed appellant's conviction.  Appellant filed a petition for
discretionary review in this Court, raising one issue: whether Section 51.095(a)(1)(A) permits law-enforcement officers to be present when a juvenile is initially read his rights. (2)  Because Section
51.095(a)(1)(A) does not prohibit the presence of law-enforcement officers, we affirm.
I. Facts
	On May 24, 2010, the complainant and three of his friends were robbed in Texarkana by
three people, one of whom brandished an AK-47 assault rifle.  Later that night, a Texas Department
of Public Safety patrolman saw a vehicle approaching him with its headlights off.  The vehicle's
headlights went on, and then off, and then on again.  The officer followed the vehicle into a parking
lot and saw the two rear-seat passengers, one of whom was appellant, exit the vehicle, place an
object wrapped in a white cloth behind the vehicle's back tire, and walk away.  The officer picked
up the object and saw that it was an AK-47.  He ran after appellant and caught him, then handcuffed
appellant and placed him in the patrol car.  The officer questioned appellant about the vehicle's other
occupants, whom appellant identified.  The officer found women's jewelry and a cell phone on
appellant.  The phone was later identified as belonging to a recently robbed Hooks resident.
	Appellant was arrested and taken to the Hooks Police Department, a juvenile processing
center.  A magistrate read him Miranda warnings, and he was then interrogated by police officers. 
After an hour and a half, appellant was taken to the juvenile detention center in Texarkana, where
he was put into the custody of a juvenile officer, who transported him to the juvenile detention center
in Marshall, Harrison County.  Two Texarkana police officers were dispatched to Marshall to obtain
a statement from appellant.
	The two Texarkana officers took appellant to the office of Justice of the Peace Kenneth
Alford.  Alford read the Miranda warnings to appellant, which according to Alford, appellant
understood and voluntarily waived his rights.  At the later suppression hearing, Alford stated that he
was alone in his office when he administered the warnings to appellant, but one of the Texarkana
officers stated that both the officers were present for the warnings.
	After the magistrate read the warnings to him, appellant was interrogated by the officers. 
One officer asked most of the questions, while the other typed appellant's statement.  Appellant's
statement was given to Alford, who, according to his testimony at the suppression hearing, reviewed
it with appellant outside the presence of the officers, and appellant signed it voluntarily.  In the
signed statement, appellant admits to taking part in the charged robbery, as well as other robberies
and burglaries.
	Appellant moved to suppress the signed statement at trial, but the motion was denied. 
Appellant was found guilty and appealed.  Relying on Diaz v. State, 61 S.W.3d 525, 527 (Tex.
App.--San Antonio 2001, no pet.), which stated in dicta that "[n]o law enforcement personnel are
allowed to be present during the [magistrate's] warnings . . .," appellant argued that the statement
should have been suppressed because it was obtained in violation of Section 51.095(a)(1)(A).  The
court of appeals disagreed, holding instead that "[t]here is no requirement anywhere in § 51.095
mandating that the magistrate be alone with the juvenile at the time the warnings are given." 
Herring v. State, 359 S.W.3d 275, 280 (Tex. App.--Texarkana 2012, pet. granted).  Appellant filed
a petition for discretionary review in this Court to resolve the apparent conflict between the courts
of appeals.
II.  Analysis
	At issue are various subsections of Texas Family Code section 51.095.
§ 51.095 Admissibility of a Statement of a Child
     (a) Notwithstanding Section 51.09, the statement of a child is admissible in
evidence in any future proceeding concerning the matter about which the statement
was given if:
	(1) the statement is made in writing under a circumstance described by 			Subsection (d) and:
	    (A) the statement shows that the child has at some time before the making
of the statement received from a magistrate a warning that:
	        (i) the child may remain silent and not make any statement at all and
		that any statement that the child makes may be used in evidence
against the child;
			         (ii) the child has the right to have an attorney present to advise the child
either prior to any questioning or during the questioning;
			        (iii) if the child is unable to employ an attorney, the child has the right
to have an attorney appointed to counsel with the child before or
during any interviews with peace officers or attorneys representing
the state;
	         (iv) the child has the right to terminate the interview at any time;
	    (B) and:
			      (i) the statement must be signed in the presence of a magistrate by the
child with no law enforcement officer or prosecuting attorney present,
except that a magistrate may require a bailiff or a law enforcement
officer if a bailiff is not available to be present if the magistrate
determines that the presence of the bailiff or law enforcement officer
is necessary for the personal safety of the magistrate or other court
personnel, provided that the bailiff or law enforcement officer may
not carry a weapon in the presence of the child; and
			        (ii) the magistrate must be fully convinced that the child understands the
nature and contents of the statement and that the child is signing the
same voluntarily, and if a statement is taken, the magistrate must sign
a written statement verifying the foregoing requisites have been met;
	    (C) the child knowingly, intelligently, and voluntarily waives these rights
before and during the making of the statement and signs the statement in the
presence of a magistrate; and
	   (D) the magistrate certifies that the magistrate has examined the child
independent of any law enforcement officer or prosecuting attorney, except
as required to ensure the personal safety of the magistrate or other court
personnel, and has determined that the child understands the nature and
contents of the statement and has knowingly, intelligently, and voluntarily
waived these rights; . . ..

	Section 51.095(a)(1) delineates what is required before a juvenile's written statement may
be admitted as evidence.  Subsection 51.095(a)(1)(A) requires that the statement show "that the child
has at some time before the making of the statement received from a magistrate" the statutory
warnings set out in subsections 51.095(a)(1)(A)(i)-(iv).  Subsection 51.095(a)(1)(B)(i) requires that
"the statement [] be signed in the presence of a magistrate by the child with no law enforcement
officer or prosecuting attorney present . . .."  Subsection 51.095(a)(1)(D) instructs the magistrate to
determine that the juvenile understands the contents of the statement and that the juvenile has
knowingly, intelligently, and voluntarily waived his rights.  This section also requires the magistrate
to certify that "the magistrate has examined the child independent of any law enforcement officer
or prosecuting attorney . . . and has determined that the child understands the nature and contents of
the statement and has knowingly, intelligently, and voluntarily waived these rights[.]"  At issue in
this case is whether Subsection 51.095(a)(1)(A) likewise prohibits the presence of law enforcement
when the magistrate gives the warnings to the juvenile.
	All that Subsection 51.095(a)(1)(A) requires is that a magistrate read the juvenile the
statutory warnings enumerated in Section 51.095(a)(1)(A)(i)-(iv).  There is no explicit requirement
in this section that the magistrate be alone with the juvenile or that law-enforcement officers not be
present.  In contrast, Subsections 51.095(a)(1)(B)(i) and 51.095(a)(1)(D) expressly prohibit the
presence of law-enforcement officers, unless it is required for the safety of court personnel. 
Appellant urges us to import the express prohibition of the presence of law-enforcement officers in
Subsections 51.095(a)(1)(B)(i) and 51.095(a)(1)(D) into Subsection 51.095(a)(1)(A).  We decline
to do so.
	Appellant concedes that Subsection 51.095(a)(1)(A) is silent as to the presence of law-enforcement officers.  Appellant also correctly states that, in Diaz, the Fourth Court of Appeals made
"clear that no law-enforcement officers are allowed to be present during any of the warnings."  See
Diaz, 61 S.W.3d at 527.  However, the issue in Diaz was not the presence of law-enforcement
officers, but misstatements by the magistrate about the maximum range of punishment.  While the
court of appeals did state that no officers may be present during the warnings, it cited only generally
to Section 51.095 without discussion or analysis as to why that could be true.  See id.   Neither Diaz
nor appellant offers convincing analysis as to why our interpretation should stray from the text of
the statute.  See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ("Where the statute
is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and
it is not for the courts to add or subtract from such a statute.")
	Appellant also proposes general policy reasons why the Diaz approach "complies with the
purpose of the Juvenile Justice Code," but appellant's argument "is nevertheless one of policy, not
of statutory construction."  See Tyra v. State, 897 S.W.2d 796, 799 (Tex. Crim. App. 1995).
III. Conclusion
	Because Texas Family Code subsection 51.095(a)(1)(A) does not explicitly prohibit the
presence of law-enforcement officers when a magistrate reads the required statutory rights to a
juvenile, while other subsections of Section 51.095 expressly forbid the presence of law-enforcement
officers during other kinds of proceedings, we hold that, by omitting such a prohibition in Subsection
51.095(a)(1)(A), the legislature expressed its intent that such a prohibition should not apply to the
reading of the statutory warnings. (3)  We affirm the judgment of the court of appeals.

Delivered:  April 10, 2013
Publish
1.   Appellant was later certified to stand trial as an adult.
2.   As stated in appellant's petition for discretionary review, "Although Texas Family Code Section
51.095(a)(1)(A) is silent as to whether law enforcement may be present when a juvenile is initially read his rights,
Diaz v. State calls this statutory silence into question.  Clarification is needed on this point, as Appellant's confession
would not have been admissible under the Diaz analysis."

3.   We leave open the question of whether a magistrate may choose to exclude law-enforcement officers
from the reading of the statutory warnings.
