Opinion
No. 1605-04
Filed: October 5, 2005.
On State's Petition for Discretionary Review from the Second Court of Appeals Tarrant County.
I agree with the Court that "[t]he term `agency' denotes a consensual relationship which exists between two persons where one of them is acting for or on behalf of the other," and I agree that the CPS worker did not qualify as an agent of law enforcement. However, I disagree with the Court's formulation of the agency test as "acting in tandem" with law enforcement. Acting "in tandem with" suggests a broader meaning than "acting for or on behalf of" and might serve to sweep within the Court's holding situations that are not true examples of agency. To avoid confusion, I would eschew the "in tandem" language and stick with the traditional definition of agency.
Court's op. at 12.
I also disagree with the Court's suggestion that the defendant's perceptions have anything to do with the question of agency status. Rather, the defendant's perceptions are relevant to the issue of custodial interrogation. In support of its suggestion, the Court cites State v. Loyd, a Louisiana case, for the proposition that Miranda was not violated when the defendant was unaware of the status of a government informant. But as the Court's quotation shows, Loyd held that the informant's conduct did not constitute custodial interrogation. In fact, Loyd presciently anticipated what the Supreme Court would later hold in Illinois v. Perkins: that Miranda does not bar unwarned statements made to undercover law enforcement agents. The reason for this is that, when the defendant is unaware of the law enforcement agent's status, he is not subjected to the coercive pressures that transform a conversation into "custodial interrogation."
See State v. Loyd, 425 So.2d 710, 716 (La. 1982).
Court's op. at 15 n. 33 (quoting Loyd, supra).
Illinois v. Perkins, 496 U.S. 292, 297 (1990).
Id.
But agency status is a separate matter, as is well illustrated by the Supreme Court decision in Massiah v. United States. In Massiah, the defendant was unaware that the informant was an agent of law enforcement, but because the defendant's Sixth Amendment right to counsel had attached, statements deliberately elicited by that informant were inadmissible. We have recently addressed the question of agency status in the Sixth Amendment context and explained that an informant was not a government agent when the informant had no agreement with and was not acting under instructions from a government official. The factor that distinguishes Perkins from Massiah, making the defendant's perceptions relevant to whether he suffered a constitutional violation, is that "custodial interrogation" matters in the Fifth Amendment Miranda context but not in the Sixth Amendment right to counsel context. Both contexts do require that the statements be elicited by a law enforcement agent, but with agency status being determined by the alleged agent's actual relationship with law enforcement, not by the defendant's perceptions.
377 U.S. 201 (1964).
Id.; Perkins, 496 U.S. at 299 (distinguishing Massiah).
Manns v. State, 122 S.W.3d 171, 183-184 (Tex.Crim.App. 2003)
With these comments, I concur in the Court's judgment.