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Michael Herring v. the State of Texas

April 10, 2013

MICHAEL HERRING, APPELLANT
v.
THE STATE OF TEXAS



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

The opinion of the court was delivered by: Johnson, J

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

OPINION

Appellant was 16 years old when he was arrested for, and charged with, aggravated robbery. Because he was a juvenile,*fn1 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.*fn2 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 ...


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