*1 403 S.W.2d сertiorari denied 385 U.S. Alton Appellant, 217; CHARLES, Bowles Texas, Cir.,
v. F.2d 734 v. Beto, Cir., (1966); Crawford v. The STATE Texas, Appellee. (1967). F.2d 156 No. 40608. It is insisted that on error was committed Appeals of Texas. Court of Criminal ground that the trial court failed Oct. purpose limit the for which the evi- state’s dence of purported attempt to Rehearing On Dee. escape was admitted. Rehearing 7,1968. Denied Second Feb. appellant concedes Holden’s testimony attempt escape was ad-
missible guilt. Cawley issue of
State, Tex.Cr.App., 340; 310 S.W.2d State,
Hutchins Tex.Cr.App., 360 S.W.2d
But, urges the error he is that the court to limit failing jury’s consideration resulted in a fundamental
denial of substantive procedural due
process law.
Assuming deciding that without charge appro
a limiting would have been
priate, any objection absence of
requested prop charge contention is not
erly Further, before us for review. charge pre
failure to so under the record deprive
sented did of due
process. ground
Another presented of error
is that the was denied substantive procedural process due when of law
the state offered evidence that he com robbery
mitted anotehr offense
charged in this case. record,
From the question
state’s examination subsequent
witness assumed a Snead date robbery as the date of the offense
charged. ap- When Snead was asked
pellant if date could be an error
replied: “He asked me guess and I objections
knew.” No at the were made testimony
time complained now of was perceived.
adduced. No error is
The judgment is affirmed. *2 Anderson, Watson, Jr.,
R. Paul P. W. Marshall, appeal only, appellant. on for Allen, Marshall, Atty., Charles A. Dist. Austin, Douglas, Atty., and Leon B. State’s for the State.
OPINION DICE, Judge. murder; punishment,
The offense dеath. Roe, sixty- a deceased, Judge Andrew caretaker property
six-year-old retired lake warden, Lake near Caddo lived game morning of County. On Harrison found body was his dead March home. rear of his at the lying on a sidewalk a shot- in the chest shot He had been mur- been apparent he had gun, it was dered. ensued, the investigation boy Negro
appellant, eighteen-year-old brought school, grade at in the eleventh Attorney Charles District to the office of 11, 1966, morning March Allen Attorney Allen interrogation. District for and, at such proceeded appellant to talk time, investi- him he under advised before gation. taken Appellant was then Stauts, who ad- the Peace G. Justice J. by Art. rights prescribed vised him of his Pro- 15.17 the 1965 Code of Criminal cedure, to retain which included his request coun- appointment counsel of Ap- sel to remain silent. and the pellant was also advised of At polygraph to take a examination. time he a test. consented take filed charges No were and he released. voluntarily ac-
On March Little to companied Shivers Officers poly- taking purpose Dallas graph examination. Illinois, gave given, appellant
After the
and Escobedo v. State
test was
Allen
He
Attorney
a statement
District
shall advised affirmatively af- shows that he was and of accusation right right and his therewith, to remain silent fidavit filed recited counsel, request specifically to counsel. Such is retain signed. un- confession he executed appointment if of counsel counsel, and of able to obtain record, that the con Under we find He shall examining have an trial. fession was not obtained violation person that he is arrested also inform prescribed Supreme Court the rules required to a statement make *4 Arizona, U.S. in Miranda v. 384 State of may be by him that statement made 1602, 694, 436, wherein 86 S.Ct. 16 L.Ed.2d magistrate shall against him. The used in Gideon holdings the court summarized its time person allow аrrested reasonable Wainwright and v. State Escobedo opportunity counsel to consult Illinois, ground of and overrule the first bail person shall admit arrested to error. if allowed law.” appellant The state that was concedes was holding that the confession Our not taken before in Dallas on magistrate obtained, legally having issue and no rights enu- March and warned of the arrest, dispos legality made as merated in Art. that such 15.17 insists appellant’s subse contention es unnecessary was in the fact view of quent weapon finding of the murder in Har- he was taken before a photographs in introduction evidence of County rison March 11 and warned showing reenactment 15.17, Art. supra. under in was of the “fruits crime violation Wong poisonous tree” doctrine discussed agree position. We with the state’s 471, States, Sun v. United 407, 441, 9 L.Ed.2d and such contention 38.22, requires only supra, Art. is overruled. In it should this connection provided receive the warning accused pointed out that made no such supra, time” in Art. “at some objection to offered evidence when was com making This confession. the trial. case, plied instant days not, lapse the cir error, of six did under ap- remaining ground cumstances, warning. vitiate such erred in re- pellant insists the court reference fusing grant when a mistrial Although under ar- was not a polygraph test 11, March subject rest on he was the Ranger by the state. Elliott questioning investigation in the and the case time. properly given him at that that, ex- The on redirect record reflects at- amination of officer the district transpired: torney, following by appellant No issue raised confession, voluntary as to nature of “Q. you many persons how Do know Denno, requirement of in this сase? investigations submitted Yes, already A. sir. We had carried independent find court make an poly- purpose two to Dallas for the admitting the con on the issue ing graph tests. applicable. fession in evidence parte Roper, Tex.Cr.App., object Ex S.W.2d “MR. WATSON: We any polygraph introduction of test— mention, Judge, or the and ask for a record, From the granted mistrial to be here for the rea- the reference to taking polygraph test any purpose- son it is not admissible for related to other people and not the appellant. This would not constitute reversible error “THE thought I he was talk- COURT: under the rule announced in Peterson v. ing about the others. State, 157 Tex.Cr.R. 247 S.W.2d No, sir, “MR. WATSON: said S.W.2d by appellant. cited polygraph he carried two Dallas for a ground of error is overruled. test, object and we introduction or polygraph judgment test is affirmed. case, injection itof into case any way. DISSENTING OPINION “THE COURT: I will sustain the ob- jection to that. ONION, Judge. And, “MR. we ask that WATSON: Appellant’s trial commenced on August
a mistrial
granted
this case.
30, 1966, after the
effective
(June
date
“THE
I
COURT:
will overrule that
1966) of the decision of the United States
motion.
Supreme Court in Miranda v. State of Ari
*5
zona,
384 U.S.
86 S.Ct.
feel, your
“MR. WATSON: We
694. See
Jersey,
New
Honor,
that
like
a
carrying
skunk
Johnson
915
over,
in-custody
is in-
presumed
be
where
But
valid waiver will not
volved,
room
the contention
there is no
simply from the
the accused
silence of
fact
is waived
individual
simply
privilege
if the
warnings
given
or
from
eventually
questions
gives
in-
some
or
some
was in fact
answers
a confession
Carnley
invoking his
made
formation on his
A
own
obtained.
statement
884,
Cochran,
interrogated.”
remain silent when
U.S.
S.Ct.
applicable here:
(1962),
Miranda decision. high 18-year-old Negro indigent Here an to “requested” go appellant While it that the student was school his home from given Dallas 150 miles as set forth in Article over county in a 15.17, peace officers supra, days prior six Karnack with two (6) to the con- city at the fession, strange patrol There warning required by as well as the car. Safety Department of Public person Article 38.22 of the whom the office prior contact with appellant who had no given,8 simply confession was not this does he was appear police test. What took a lie detector from this record re test informed in connection with results told record, thereafter appointed tained or but he counsel that this in- flected sur appellant, Subsequently cluded the to consult counsel arrested. officers, prior with to and during interrogation if he enforcement law rounded Further, friends, so statement gave desired. showing parents there is no out non-police offi complained Two affirmatively waived of. record now confession, signing privilege against to counsel and his cers witnessed and stated rights were whom testified self-incrimination after his one of given being any warnings fully explained. appel- recall It is true could not length of exact requested arrival. The appear lant does not coun- after his sel, confession is a where assistance of counsel It is shown requisite appear in the protection constitutional record.9 Dallas wеre and the officers privilege accused’s Fifth Amendment Rights rights, Under “Waiver these some tive” waiver see affirmative Jurisprudence, rejection Miranda,” seemingly Proof required, American Facts, 19, p. tricks, threats, cajolings Yol. obtain waiver forbidden.” statutory of former While supra) (now Article it- 7.Neither the record nor the confession Article 727 *8 given appellant, appears the district the to have been self that reflects the warnings attorney, person con- given, the to whom that were indicated in the given, in the way lawyer some conflict was he did not want a fession that testimony the forgo privilege against to whether as decided to self- his attorney incrimination; understanding^ the advised -that he district right rejected knowledge counsel as of as to his the offer with the Dallas disputed potential This in the confession. the quences ramifications and conse- flected judge the trial not resolved fact con- was decision. The the issue following hearing typed-in phrase on the voluntariness the fession included a “voluntarily” giving is not was statement statement. of an sufficient and of itself to constitute testimony Compare the authori- Footnote 9. “Whatever affirmative waiver. accused, rights by an an No. 4. For excellent discussion of ties as to waiver interrogation lengthy in- proof necessary proof the fact of for of an “affirma- attorney quartet comprise when the district arrived from the of cases that the Mi- prior Austin 9 and to the between 10 a. m. randa The decision. record of case at polygraph Appellant’s bar, test. like “quartet,” statement those of the does not given afternoon, some the exact physical patent time evince overt coercion or psychological time not It that the ploys, revealed. is observed in this connection part vital ap Supreme of the warning given to note that Court said: pellant upon by and relied the State cases, not find de- might “In these orally imparted (6) days to appellant six been invol- to have fendants’ statements earlier,10 given satisfy primarily to concern untary in Our traditional terms. regulation Department Texas of Pub protect pre- adequate safeguards for Safety lic operation to the polygraph is, rights Fifth Amendment cious tests. As earlier noted appellant was course, slightest. not lessened in the never taken before a in Dallas cases, each of these defendant County following his arrest violation of atmosphere and into an unfamiliar thrust 14.06,V.A.C.C.P., Article nor the rec police interroga- through run menacing ord reflect that he was taken before a potentiality procedures. tion The magistrate after his return to Harrison apparent compulsion forcefully is County.11a ” * ** Miranda, p. at Further, it is not shown that it was made p. p. at at S.Ct. 713. clear fact that mere circumstances, the Under these he had taken a polygraph test or atmosphere said: “This carries its own questions answered some or volunteered badge intimidation.” some statements deprive did not him of the right to refrain from answering plain The Miranda made it inquiries until had consulted at- interviewing agent must exercise his torney and thereafter ques- consented to judgment whether an indi- determining tioned.12 counsel, vidual but the waives readily
The
dem-
above-described facts
constitutional basis of that
makes the
onstrate
at bar to
similarity
necеssarily high.
of the case
for waiver
standard
p.
important,
communicado incarceration
state-
the court
before a
“More
said:
strong
background
person
ment
is
is
evidence
whatever
validly
rights.
interrogated
accused did not
waive his
at the time
interrogation
indispensable
In these circumstances
the fact
to over
eventually
pressures
individual
made a
its
to insure that
come
with the
consistent
conclusion that
individual knows he is free
exercise
interrogation
compelling
privilege
point
(Em
influence of the
at
in time.”
finally
Miranda,
phasis supplied)
forced
to do so.”
p. 476,
p.
384 U.S. at
at
11.
Footnote No. 1.
See
p.
action did not with the rule of Jack- following Miranda in words: Denno, v. that the trial conclu- son court’s holding spelled “Our will be out with sion, least, voluntariness, must, ap- as to specificity in the pages some follow pear from the record with unmistakable prosecu- briefly but stated it is this: clarity. See Georgia, Sims v. State of statements, ex- may tion not use whethеr L.Ed.2d 593.13 culpatory inculpatory, stemming from above, For the I reasons cannot stated custodial defendant agree with' the conclusions in the proce- use unless demonstrates the opinion requirements of Miranda safeguards dural effective to secure met, have been express findings or that By privilege against self-incrimination. were not as there was no issue of question- interrogation, mean custodial voluntariness raised. ing initiated law enforcement officers respectfully I dissent. person custody after a has been taken into deprived
or otherwise freedom of any significant way. action in As DISSENTING OPINION procedural safeguards employed, to be fully de- MORRISON, unless other means are Judge. effective persons vised to accused their inform join I portion my brother silence and to a continuous assure Onion’s dissent which he concludes that opportunity it, following to exercise requirements holding of the of the required. any measures Prior Supreme Court of the United in Mi- States questioning, person must be warned Arizona, randa v. State of supra, have not silent, that he has a to remain been met. any he may does make be used him, as evidence and that he has presence attorney, a right OPINION ON appointed. APPELLANT’S either retained The defend- MOTION may
FOR ant waive effectuation of these REHEARING rights, provided the waiver is made volun- WOODLEY, Presiding Judge. tarily, If knowingly intelligently. however, any indicates manner Appellant’s motion for rehearing urges stage process of the that he wishes that we set aside this conviction on the speak- attorney to consult with an ground that of Miranda v. ing questioning. there can Like- be no Arizona, supra, State of were not met. wise, if the and indi- individual alone As we holding understand the Su- manner not wish cates that he does preme Miranda, Court in the specific warn- interrogated, police may to be ings dissenting referred to in Judge Onion’s question him. mere fact that be employed must other questions “unless have answered some or volun- fully effective means are to inform devised teered statements some own does Normally, the failure of the trial court’s Ct. See Sims findings appear Georgia, supra. as to voluntariness State of In the case clarity bar, however, the record with unmistakable there was also a violation of necessarily require (Article 38.22(b) new trial V.A. state statute. hearing provided by C.C.P.) rather Denno, pp. 393-396, 378 U.S. at S. *11 deprive the refrain aloud the written confession which showed him of inquiries warnings opin- in quoted Judge un- the Dice’s answering
from way attorney again in til with an and ion. His attention was hе has consulted after he had questioned.” be to counsel thereafter consents to directed orally confessed. that The view of Statutes, proc- due The Texas not the quoted in Dice’s Judge the Texas Statutes Constitution, required ess clause that im opinion, after and under the enacted showing the written confession opinion in Es pact Court’s by exception being appellant, an signed supra, supply Illinois, cobedo State of he that in with said confession connection in this and the facts effective means such of facts or circumstances “statement such case, undisputed, which are reflect true, which conduce are found to employed. means were finding as the guilt, establish his in the defense lawyers specializing Even property, the instru- secreted or stolen greeted the Miranda cases who of criminal he the offense was ment with which states as “Isn’t such exclamations decision with ** (Art. 38.22(a) committed wonderful,” exchange agree would not C.C.P.196S) providing Statutes others Texas by the testimony state introduced ac- an only protection objection appel- without shows by process clause the due cused afforded he was signed lant made and confession States. Constitution of the United by taken the scene officers to opin- Dice’s quoted Judge The statutes appellant (both crime and to home of by the warnings, one ion two which, interestingly, town were person to and another community in a wooded of “Uncertain” confes- is made. The
whom confession Lake, deep area on banks of Caddo signed writing and must be reduced to sion Texas, sight the care- within East and must show and the written confession heard taker’s house wherе shot was given. both had promptly used in searchlight and a it.) attempt to ascertain who fired fur- undisputed this case facts of support for our conclusion nish further Appellant’s called as a defense father was deprived consti- appellant was not of his testified and cross-examination witness on counsel right to the assistance of tutional objection: without interrogation. “Q. present on You were at home bed cooperated Appellant with officers year, night of March 17th this person that for the conducting the search Alton, myself when Sheriff Roe, exception, Judge “with the shot house, your came to others truth” telling the course, he was not you? weren’t ques- evening in about activities Yes, “A. sir. tion. “Q. say you your What did Alton having been advised of his
After and, killing Judge wife Roe ? if obtain about unable to obtain counsel counsel, request appointment coun- home, you brought all “A. After polygraph he to take sel and had consented Alton, Mr. where was asked custody test, for sev- think, Shivers, my I told wife days. eral outside, if he was and she asked him him, anything wrong there was with confession signed the written
Before he ‘no, nothing he rights as re- said there wasn’t warned again him, in a wrong just read and he quired Texas Statutes see admitting little wanted to the court did not err in she in evi- trouble/ him, in, they voluntary brought and he him and dence his confession. *12 what told him to tell his mother Denno, supra, point As to had did. hearing admissibility out that at the “Q. your He that he killed of the told wife confession the were called witnesses Roe, and
Judge by appellant’s, sup- didn’t he? examined counsel in port appellant of his contention that should sir, Yes, “A. sho’ did. magistrate been taken before a and “re-warned” in “Q. get the Dallas because And, gun did he out of given by ? give closet and it to the Sheriff Marshall was not “after arrest” and was not ar- Yes, “A. sir. interrogated rested until he was in Dallas. “Q. you why Did ask him the World point We further out there no thing? he did such a disputed material fact issue as admis- Yes, sir, sho’ did. “A. sibility confession, appellant’s con- being
tention that the showing confession the warnings given was “void on its face.” there, “Q. was that gun right That your ? house on March 17th point Also we out that this court has not provision held that Yes, 38.22(b) Art. “A. sir. (1965), provided V.A.C.C.P. “Q. gun got that Alton out Is that court findings, enter an stating order Sheriff, gave the of the closet and mandatory and we decline hold. to so the Sheriff and told event, In required by such is not Jack- Judge one he killed Roe with? Denno, supra. son v. Yes, “A. sir.” penalty When this death joins conviction a score and more by of others affirmed this fully are judges The of this court court which are now in the pending fedеral duty protect rights aware of their courts, we have rights utmost faith that the binding effect of new the accused and of the appellant as well the rights society by the concepts process announced of due protected will Supreme Court, and the Ex Supreme Court of the United States. so, doing will not fail take into considera- Tex.Cr.App., parte Young, 418 S.W.2d tion the fact that the Texas Statutes afford greater procedural even safeguards than lay set aside conviction To required by any those of .its decisions con- Arizona, su- blame on Miranda v. State struing process the due clause of Con- language: pra, give would no effect to its stitution of the United States. de- fully effective means “unless other Appellant’s rehearing motion for is over- their persons inform accused vised to ruled. continuous assure a оf silence and to *** ”; it, opportunity to exercise concept the mean- expand the new would DISSENTING OPINION ON by the Su- process due announced ing of APPELLANT’S MOTION FOR appellant confessed preme Court after RE-HEARING Roe, and do Judge he was the one shot who subject so ONION, Judge. Court.
view the majority simply refuses come to grips with the fact remain convinced that this record We does not and that reflect affirmatively denied constitutional waived decision, fully the Miranda nor were as ef- privilege self-in- Re- fective. 1967 amendments Articles his statement. crimination 38.22, V.A.C.C.P., provide though fully 15.17 and peated warnings, even com- warnings comparable Miranda Ar- decision, are no plying with Miranda 38.22, supra, require- goes ticle now includes unless the State avail ments a waiver. knowing, intelli- “voluntary, shows gent” waiver. original po- attempting to sustain their sition, points majоrity an admission out original opinion
In its *13 guilt of himself. require offered mention of the absolutely no waiver record, they apparent holding overlook the of is ments of Miranda said: “Under Supreme. Haynes the United States Court was not obtained we find that the confession 503, Washington, of 83 v. State 373 U.S. prescribed by the of the in violation rules 513, 1336, 10 L.Ed.2d where the Court Ari S.Ct. Supreme Miranda v. of Court in State 1602, zona, 436, said: 16 L.Ed. U.S. 86 384 S.Ct. 694, its summarized wherein the Court
2d do, reaching “In the conclusion which we Es Wainwright and holdings in v. Gideon we not of in- unmindful substantial the first Illinois, and overrule cobedo v. dependent to demon- tending ground of error.” guilt petitioner. As was strate the of the 534, Richmond, Rogers said in v. 365 U.S. re-hearing, reference no In its 760, 541, 735, 740, 5 L.Ed.2d 81 S.Ct. made to above statement. is [766]: position its majority appears to shift “ ‘Indeed, many the cases in which of waiver, again, of without discussion of the Due Process Clause command “fully upon places other means its reliance compelled con- has us reverse state requirements. effective” as Miranda involving the use confessions victions of methods, by impermissible inde- obtained reading the Texas stat- Even a casual of pendent left little corroborating evidence that such stat- referred to demonstrate utes defendant doubt of the truth what the up of of do come to the standard utes verification, therefore, Despite had are, confessed. course, product to be the is, without confessions were found This fully effective. of constitutionally impermissible methods regard additional essential in their inducement.’ quirement waiver. Such of an affirmative ap- in effect at time Texas statutes course, express sug- “Of neither nor require any pellant’s waiv- did not gest the ultimate regard a viеw with statutes, effect How such Texas er. here; petitioner guilt or innocence of statement, appellant’s afford the time of trial jury decide on new is for a procedural than safeguards greater even infirmity, free of constitutional decision any United States liberty to order.” process clauses construing due Further, Denno, ma- 378 U.S. as claimed v. Federal Constitution Jackson 368, 908, 1774, 12 comprehension of this 84 the Court jority beyond the S.Ct. : said writer. grasp, fails “It is now axiomatic a defendant still
What Leg- deprived process due quick realize. The criminal case Legislature was founded, in in ef- if of law his conviction is recognized that statutes islature statement, upon involuntary con- part, or in time whole fect fession, the truth or they may regard have been when without enlightened as confession, Rich- enacted, falsity Rogers v. did not meet mоnd, 534, 735, S.Ct. 5 L.Ed. stated, For the particu- reasons and more though ample 2d and even larly there is the reasons set in my original out dis- sup evidence aside from senting the confession opinion, vigorously respect- I port People the conviction. Malinski v. fully dissent to the overruling appel- York, New State of 324 U.S. 65 lant’s motion for re-hearing. 1029; S.Ct. 89 L.Ed. Stroble v. State MORRISON, J., joins in California, dissent. 872; Payne L.Ed. of Arkan v. State
sas,
975.” Denno, As to supra, the ma-
jority
makes the assertion without
rea-
soning
provisions
38.22,
Article
Alton Oliver ANDERSON,
Jr., Appellant,
(b), V.A.C.C.P.,
(now
Article
2),
requires
Section
the court to en-
*14
ter an order stating
findings
after a
The STATE of Texas, Appellee.
hearing
admissibility
confes-
No. 40838.
sion,
mandatory.
is not
history
Appeals
Court of Criminal
of Texas.
very wording
clearly
statute itself
Dec.
indicate otherwise.1 Even if there
nowas
Rehearing
Denied Feb.
all,
statute
supra,
Denno,
quires
that the trial
court’s
must
conclusion
Rehearing
Second
Denied March
appear from the record with unmistakable
clarity. See Sims v.
of Georgia,
Supreme Georgia Court of position took the
the majority now takes and found a bottom- pit.
less further that the feels penalty this death conviction should not
be set aside this Court because so do deprive
would the United States opportunity
Court of an to review con-
viction and the effectiveness of the Texas
statutes repealed now since as a substitute requirements.
for Miranda review,
Since there is no such automatic
let hope us indigent appellant that this will
have available give funds
Court on the opportunity. Potomac that 38.22(b), Y.A.C.C.P.1965, pertaining
1. Article in ef to such appellant’s trial, jury fect time of reads: matter submitted to the jury “If the confession or statement has been shall be that unless the instructed voluntarily beyond found to have been believes a reasonable doubt held admissible as a matter of law or statement was such confession volun hearing tarily made, jury fact the court in a in the ab not consider shall jury, sence of he shall enter an or such purpose or confession for stating findings der which shall be evidence obtained as nor among papers (Emphasis supplied) filed cause result thereof.” jury. Only not exhibited there