Vasquez v. State

*46 CLINTON, Judge,

dissenting.

In the Houston (1st) Court of Appeals appellant presented two points of error arising out of what he contended is an illegal warrantless arrest in that it is not authorized by Article 14.04, V.A.C.C.P. Vasquez v. State, 663 S.W.2d 16 , at 18 and 22 (Tex.App.—Houston [1st] 1983).

The Houston Court believed his contention “presumes that when a minor is taken into custody without a warrant that Article 14.04[, supra.] is applicable to the detention rather than Section 52.01 of the [Family Code].” Id., at 22. For its part, the majority here flatly holds that Article 14.04 “does not apply to the warrantless ‘arrest’ of a juvenile offender.” Slip Opinion, at 10. Neither is correct, in my judgment.

In the trial court, having been certified as an adult and transferred to a district court for trial, appellant objected as an adult to admission in evidence of fruits of an illegal arrest in a criminal action on an indictment for capital murder. V.T.C.A. Family Code, § 54.02(h) provides that after being transferred the child “shall be dealt with as an adult and in accordance with the Code of Criminal Procedure, 1965,” and that such “transfer of custody is an arrest.” Neither the Houston Court nor the majority opinion here ever satisfactorily explains how it is that a certified child and an adult are not similarly situated upon being indicted for a penal offense. In Steele, Delinquent Children and Children in Need of Supervision, 13 Tex.Tech.L.Rev. 1145 (1982), also cited in the majority opinion, legislative intent is plainly stated, viz:

“ ‘Pursuant to the laws of arrest’ in subsection (a)(2) means that a child may be taken into custody under the same circumstances that a law enforcement officer is authorized to arrest an adult. _ Subsection (a)(3) is intended to authorize taking a child into custody for noncriminal CINS if these same bases are met.

* * * * * *

Subsection (b) is ... designed to shelter the child from the stigmatizing effects of an arrest, while providing him with the legal protections that surround the arrest of adults. These include the right to exclude evidence seized pursuant to an unlawful arrest. ...”

Id., at 1188-1189. (All emphasis is mine throughout unless otherwise noted.)

Although § 54.02(a)(3) provides that a juvenile court may waive its exclusive original jurisdiction and transfer a child to district court for criminal proceedings if “after full investigation and hearing” it determines existence of a prescribed reason “requires criminal proceedings,” the courts have held that a transfer hearing is “like a grand jury proceeding and, therefore, is not the proper forum to litigate [such issues as] legal admissibility of a confession” or hearsay evidence “because it is not the function of a transfer proceeding to determine guilt.” Steele, op cit, at 1218-1219.

Thus a child may not complain of an illegal arrest until he stands accused as an adult in district court. When he does then and there, the majority says his complaint will be decided under its own construction of his former status as a juvenile rather than his certified status as a adult.

Without its construction there would be no equal protection question raised. Since he has become similarly situated with any adult offender, it seems to me there is great “difficulty in perceiving a rational basis” for denying a certified adult equal rights of an adult under the law. The purported rationalization offered by the majority at 43 is woefully lacking in demonstrating there is one to justify stripping a certified adult of the protection afforded by Article 14.04 from a warrantless arrest that is vouchsafed to every adult citizen.

I dissent.

TEAGUE, J., joins this opinion.