Page 76 - Juvenile Practice is not Child's Play

X.

Statement not taken in accordance with § 51.095

F.L. was eventually brought before a magistrate and given a warning of his constitutional and statutory
rights, but only after giving an oral confession and statements to the police. First and foremost, the statement is
flawed on its face and was not signed by F.L.. And while a magistrate is not required to inform the child of the possible

punishment range, when a proffered punishment range is incorrect, the resulting statement must be excluded. See
Diaz v. State, 61 S.W.3d 525 (Tex. App.—San Antonio 2001, no pet.)

Furthermore, the magistrate unreasonably took F.L.’s statement in the presence of an officer in violation of Tex. Fam.
Code Ann. § 51.095(a)(1)(B)(i) and made no inquiry into whether or not F.L. understood his rights. Given the non-
violent nature of F.L.’s offense and his compliant demeanor, there was no need for the officer’s presence.
Furthermore, the continued presence of the officer only continued the coercive nature of the statement. This is

especially evident given that once a faulty confession is given, the impact of a subsequent warning is much weaker
than it would have been absent a prior confession. See R.C.S. v. State, 546 S.W.2d 939 (Tex. Civ. App.—San Antonio
1977, no writ). Even a warning by a “neutral and detached” magistrate and a determination of voluntary waiver is

questionable if the magistrate has no knowledge of a prior illegal statement. Id.

Additionally, though a magistrate is not required to test the child or obtain acknowledgements of each warning, there

must be a modicum of effort to support the magistrate’s finding that the child understood his right. Cf. Carter v. State,
650 S.W.2d 843, 850 (Tex. App—Houston[14th Dist.] 1982), aff’d, 650 S.W.2d 793 (Tex. Crim. App. 1983) (“[It is]
impossible for [a] magistrate to be fully convinced that [a child] understood the nature and extent of the statement if

there is not an examination or inquiry”).

X.
Statements Given At Police Station (Mirandized) – Custody

F.L. was in custody when he was taken from school, handcuffed and transported to the police station for

questioning. There should be no dispute that F.L. was in custody when he was formally arrested and transported to
the Police Department. “’The ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.’” Yarborough, 541 U.S. at 662 (quoting California v. Beheler,
463 U.S. 1121).