IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-0018-22 & PD-0019-22

THE STATE OF TEXAS

v.

SEBASTIAN TORRES, Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

HIDALGO COUNTY

NEWELL, J., filed a concurring opinion.

I agree with the court of appeals that the statement at issue in

this case should have been suppressed. However, I disagree with the

interpretation of the statute that the Court relies on to justify the same

conclusion. The Court fails to adequately address the State’s textual

argument, and ultimately avoids a much simpler resolution of this

case. Rather than interpret the ambiguous phrase “uses the
Torres Concurring — 2

procedure” in the statute to essentially mean “starts the procedure,” I

would focus instead on where the “procedure” at issue broke down.

The problem in this case is that the officers failed to bring the juvenile

and the recording of the juvenile’s statement back to the magistrate

judge despite the judge’s recorded request. This violation of the

Family Code requires suppression under Article 38.23 of the Code of

Criminal Procedure under the facts of this case without regard to

whether the magistrate merely started or completely used the

“procedure.”1

As alluded to above, the Court does not adequately address the

State’s position that a magistrate does not “use” a procedure by

merely initiating it. There is textual support for this position in the

operative sentence at issue in Family Code § 51.095(f).2 That statute

targets the magistrate’s determination that the juvenile has given a

statement voluntarily. This determination necessarily comes at the

end of the “procedure” at issue, providing support for the State’s

argument that the statute requires use of the entire procedure not just

1 See Gonzales v. State, 67 S.W.3d 910, 913 (Tex. Crim. App. 2002) (recognizing that 

Article 38.23(a) provides the proper mechanism for excluding evidence in violation of the 

Family Code) (citing Baptist Vie Le v. State, 993 S.W.2d 650, 656 n. 14 (Tex. Crim. App. 

1999)); see also Comer v. State, 776 S.W.2d 191, 196 (Tex. Crim. App. 1986) (holding that 

evidence obtained in violation of the Family Code should have been suppressed pursuant to 

Article 38.23(a)).

2 Tex. Fam. Code Ann. § 51.095(f).
Torres Concurring — 3

the beginning. Indeed, the statute was obviously designed to exclude

a juvenile’s involuntary statement after a magistrate determines that

the statement was involuntary even though the statute was written

more broadly than necessary to accomplish that goal.

Further, this voluntariness determination seems to be the textual

focus of the statute given that other parts of the procedure can be

skipped. For example, even though the magistrate may request that

the recording of the statement be returned to him after it is made

there is no requirement that the magistrate actually view it.

3 And,

under the text of the statute, the magistrate is not required to speak

with the juvenile to make a voluntariness determination.4 The text of

§ 51.095(f) only requires the magistrate make a voluntariness

determination and reduce it to writing after the juvenile and his

recorded statement are brought back to the magistrate.5 Again, this

supports the State’s contention that the “procedure” referred to in the

text of the statute necessarily includes a voluntariness determination,

not merely a request to start the process to make one.

3 See id. 

4 Id. (“The magistrate may then view the recording with the child or have the child view the 

recording to enable the magistrate to determine whether the child’s statements were given 

voluntarily.”).

5 Id.
Torres Concurring — 4

Interpreting the phrase “uses the procedure” to mean “starting

the procedure” has unintended consequences as well. This

interpretation means that once a magistrate makes the request, the

magistrate loses discretion despite the discretionary nature of the

statute. As the court of appeals held below, “[o]nce the magistrate

decides to follow the procedure, the statute explicitly makes

admissibility conditional on the magistrate’s finding of voluntariness.”6

This means that an otherwise voluntary statement must be excluded

even in situations where the magistrate changes his or her mind about

“using the procedure.”

Rather than interpret an ambiguous phrase in the statute to

place the burden on the magistrate to ensure that his or her lawful

orders are carried out, I would focus instead on the real breakdown in

procedure in this case. There is no question that § 51.095(f) required

the officers in this case to return the juvenile and the recording of the

juvenile’s statement to the magistrate after the officers had taken the

juvenile’s statement. This violation of the Family Code can be

addressed through resort to a different Family Code provision.

6 State v. Torres, 639 S.W.3d 791, 799 (Tex. App.—Corpus Christi 2021).
Torres Concurring — 5

Family Code § 51.17 provides that Chapter 38 of the Code of

Criminal Procedure applies in a judicial proceeding under this title.7

We have held that Article 38.23 can apply to violations of the Family

Code in juvenile cases when the text of the statute does not provide

an independent exclusionary basis.8 Though § 51.095(f) provides an

independent basis for exclusion when a magistrate “uses the

procedure” outlined in that section, it does not provide a basis for

exclusion when the magistrate does not use the procedure. Under

those circumstances, Article 38.23 would necessarily apply. Applying

Article 38.23 in this case justifies the trial court’s order suppressing

the juvenile’s statement.9

With these thoughts, I concur in the Court’s judgment.

Filed: April 19, 2023

Publish

7 Tex. Fam. Code Ann. § 51.17(c).

8 Gonzales, 67 S.W.3d at 912-13 (recognizing that § 52.02(b) of the Family Code does not 

contain an independent exclusionary mechanism but that a statement taken in violation of §

52.02(b) could be excluded under Article 38.23(a) if there is a causal connection between 

the violation and the statement). 

9 Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990) (a trial judge’s decision 

regarding the suppression of evidence will be upheld if correct on any theory of law 

applicable to the case).