*1
shuffle,
made
State,
Appellant’s motion
(Tex.Cr.App.1975);
Alexander v.
qualified
members
after
court
(Tex.Cr.App.1975).
not abuse its discretion a mis- purposes For of Art. we trial on motion. Under its own Illinois v. hold the voir dire examination of the Somerville, necessity” panel “manifest until jury not commence all of does also, State, Durrough panel existed. have jury See members of the been (Tex.Cr.App.1981). jurors S.W.2d shown to serve as Appellant’s qualified be ground are seated in the court- of error overruled. cause and room. After it has been determined
The judgment is affirmed. trial judge persons which will make court en Before the banc. up the jury panel from which will come jury that will hear the persons those seated in the have been OPINION ON APPELLANT’S MOTION courtroom, person if the accused then REHEARING FOR motion, orally makes a either or in writ- DAVIS, Judge. W.C. ing, for a names shuffle of the panel, jury members of the such motion original appellant’s On submission con- timely have made. will deemed to viction for murder was affirmed. We held Yanez, supra, at 69. judge justified ordering the trial necessity” mistrial due to “manifest after rehearing Appellant’s de- motion for erroneously he had overruled appellant’s nied. motion jury to shuffle the names of the panel proceeded jury, to select em-
panel and swear them. motion
rehearing appellant agrees now that “[i]f have
automatic reversal followed a would empowered conviction the trial court was necessity’ under the of ‘manifest doctrine upon to order a mistrial its own motion and DUNN, Tommy Wayne Appellant, objection.” However, Appellant’s over he contends that his motion to shuffle was
timely filed so no automatic reversal would Texas, Appellee. The STATE of overruling followed the motion. No. 248-84. Thus, ordering of argues, a mistrial necessity.” was not a “manifest Texas, Appeals Court Criminal En Banc. panel reflects that a The record exemp prospective jurors was seated and 26, 1985. June inquired byof qualifications tions and remaining panel trial A list of the judge. up upon members drawn and shuffled Appellant
order of
court.
made
then
judge
shuffle.1 The
motion to
trial
jury
Subsequently,
denied the motion.
by the
was selected and sworn
court.
shuffle,
timely
(Tex.Cr.App.1983);
S.W.2d
Smith v.
1. An
is entitled to a
if
accused
State,
requested,
regardless
judge’s
(Tex.Cr.App.1983);
a trial’s
sua
Davis
Mike for Holmes, Jr., Atty. John B. Dist. & Win- Cochran, Jr., Ray ston Fuchs E. & Joe Magliolo, Houston, Dist. Attys., Asst. Rob- Huttash, Austin, Atty., ert State’s for State.
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW CAMPBELL, Judge. appeal
This is an from a conviction of Code, murder. See V.T.C.A. Penal See. 19.02(a)(1). pun- The trial court assessed years ishment at 99 confinement in the Corrections, Department Texas after bench trial. appeal Ap-
On Court of direct the Waco peals unpublished opinion rejected in an appellant’s court contentions that trial admitting appellant’s erred in written con- that the had fession into evidence and showing failed its burden of to sustain given knowingly confession voluntarily. 10- See Dunn v. No. 83-100-CR, January delivered 1984. petition granted appellant’s We discretionary review in order to determine closely appear what to be two interwoven (a) of an accused issues: pursuant to v. Arizona1 to have Miranda present during interroga-, custodial party than may by tion invoked other Arizona, L.Ed.2d 694 Miranda accused; (b) Schultz, and whether the failure of day. business for the who law notify enforcement officials to the ac- previously represented appellant and his counsel, cused that who has been retained matter, inwife a commercial called attor- party parties, a third and is close at Schneider, ney specialist, a criminal law hand, negates knowing voluntary and asked accompany Schneider to him to nature of the pres- waiver of the police department. According to pursuant ence of counsel to Miranda and Schneider, he immediately phoned Detec- progeny? its We will reverse the court of police headquarters tive Dunn at around appeals. p.m. 10:15 and told Dunn that he “didn’t [appellant] A brief recitation of the want them to talk to I facts of the case while necessary. day following On the I his was there and would be there a few death, father’s testimony, was contacted minutes.” In Detective requested Detective Kent who that he phone Dunn did not recall the details of the come to the Department Houston Police conversation as recounted Schneider. *4 business, closing after work. After his attorneys The two arrived at the homi- appellant appeared police headquarters at shortly p.m. cide office before 11:00 and p.m. around 6:00 and was informed immediately talked to Detective Cook who Kent that he was a in his father’s jail “pass” issued them appellant. to see given murder. He was then an oral Mi- Upon going jail presenting to the area and warning. ap- randa The evidence shows pass, attorneys ap- told that were mid-thirties, pellant high was his pellant jail. phoned was not in Schultz graduate junior college school with some appellant’s to if wife see she had heard credits, and a businessman. Kent testified appellant from or determined his where- he appellant would not have allowed to abouts, while Schneider returned to the police headquarters partici- leave until he homicide office where Lt. Zoch said that pated lineup, in a which occurred around appellant adjacent being was in room p.m. lineup completed 6:30 The was short- questioned. rejoined Schultz Schneider ly p.m., appellant 7:00 before returned office, they the homicide demanded the Kent, to the homicide office with he where right appellant. request to When given warning was a second oral refused, attorneys requested Zoch was Following under Miranda. three hours of if he appellant they inform were outside questioning Dunn, by Kent and Detective request desired their assistance. This was began type appellant’s three-page Kent attorneys proposed also denied. The then p.m. confession at 10:35 on October appellant given business Schultz’s read, appellant 1981. After corrected and card, do. which Zoch refused to document, initialed the he read and initialed warning printed top a third phoned Miranda at Zoch had Assistant District At- signed of his confession and torney inquire confession Holleman to at 12:17a.m. on October 14th. At the time attorneys right appellant. had a to see confession, signed appellant his un- was appellant Holleman advised Zoch that if prevented officers aware had waived his to counsel the attor- lawyers contacting from him two while he interrupt neys did not have the being questioned. questioning appellant. and talk to Zoch that he informed Schneider Schultz attorneys The had not arrived at request having after denying their headquarters Ap- on their own initiative. Attorney’s the District “checked it out with at pellant’s wife contacted Schultz phoned office.” Holleman and Schneider p.m. requested 13th and 10:00 on October requested police officers to that he advise go police headquarters that he to locate appellant they give appel- tell there or were represent her his interests. husband card, attorney’s lant business but learning became concerned after She effort to appellant’s employees Holleman refused. In a last-ditch one of that he had phone gone police headquarters closing appellant, after contact used Schneider confession, chief, his appellant signed telegrams Detec- time to send Dunn, judicial had not been initiated appellant, proceedings Zoch and to but the tive Appellant The arrest and subse- telegrams against never him. mere were delivered. person do not con- signed quent questioning confession at 12:17a.m. on Octo- of a his 14th, pro- attorneys ber allowed to stitute a sufficient formalization of appellant trigger requirement of approximately ceedings 12:30 a.m. The the Sixth Amendment. counsel under allow Zoch testified he refused to assistance of Amendment Sixth attorneys ap- contact because until or play into “at counsel does come legal pellant had not asked for adversary proceed- judicial after the time warnings, being after Miranda (the ings ac- been initiated attorneys] and “I would not allow [the cused), charge, by way of formal ‘whether investigation interfere with indictment, hearing, informa- preliminary following point.” portion of Zoch’s ” tion, arraignment.’ v. Illi See Moore summarizes his reason cross-examination nois, 54 L.Ed.2d 434 U.S. 98 S.Ct. requests: refusing attorneys’ Williams, Brewer “Q. So, now, you mean in- what do 1232, 1239, 387, 398, 51 L.Ed.2d investigation? terfere in the (1977), Illinois, quoting Kirby Well, “A. Detective Kent was conduct- 1881-83, [appellant]. ing an interview 411, 417, (1972); Tarpley v. L.Ed.2d [Appellant] had advised Cir.1983). Thus, Estelle, (5th F.2d 157 cooperating. And rights and was government “the has com only it is when *5 point no at that we saw reason prosecute” that the defend mitted itself to boat, Now, speak. upset so to counsel, Tarpley v. Es ant is entitled gentleman wanting was —he 162, telle, under the Sixth Amend talking. talking freely He was Dobbs, v. ment. also United States See willingly, point I no and saw Cir.1983); 84, (8th 711 F.2d 85 United stopping investigation at that Franklin, 1183, 704 F.2d 1189 States v. point. Guido, (10th Cir.1983); v. United States “Q. thought if perhaps, You he had (2d Cir.1983); 675, Logan v. 704 F.2d 676 opportunity to consult (4th Cir.1981), 1007, Shealy, F.2d 1012 660 lawyer, might that he break off the 1435, denied, 942, 102 S.Ct. cert. statement, is that correct? (1982); 71 653 States L.Ed.2d yes, sir, “A. That that’s correct.” (N.D.Ohio 993, F.Supp. 996 Traficant, is— 558 1983). Appellant unsuccessfully suppress tried pre-trial hearing.
his confession at a
case,
“judicial pro
no
In the instant
appeals
The court of
found: “Miranda
any kind had
instituted
ceeding” of
been
inferentially
expressly
require
does not
police against appellant, thus no viable
accused,
has
police to
who
inform
has been demon
Amendment claim
Sixth
warning,
that le-
the basic Miranda
strated.
gal
present
at the
counsel
him,
any
trying
to contact
before
waiv-
CLAIM
FIFTH AMENDMENT
rights
er of his
under the Fifth Amendment
intelligently
knowingly
can be deemed
FIFTH
OF
I.
INVOCATION
made.”
RIGHTS
AMENDMENT
additionally contends that the
Appellant
CLAIM
SIXTH AMENDMENT
in conflict
court
rendered a decision
below
ad-
alia,
jurisdictions
contends,
inter
with other
Appellant
party
other
dressed the issue whether
right to counsel
that his
Amendment
Sixth
right to
may
than
invoke
of his confes
a defendant
by the admission
was violated
Miranda, viz:
Weber
counsel under
into
the instant
sion
evidence.
566
(Del.1983);
Matthews,
(La.1982);
II.
AND
KNOWING
(2d Cir.1981); see United States
F.2d 478
FIFTH
WAIVER OF
Cir.1977).
899,
(1st
Monti,
F.2d
904
v.
AMENDMENT RIGHTS
the burden of
that
is axiomatic
related,
distinctly differ
Closely
yet
It
government
establishing
“is on
ent,
issue
waiver
first Fifth Amendment
from the
heavy
and is a
one.”
suspect,
police
United States
assistance to the
and the
201,
Montgomery,
(1st
714 F.2d
203-204
intentionally
negligently
or
fail to inform
Cir.1983).
question
“The
is not one of
suspect
fact,
any
of that
then
state-
form, but rather
defendant
ment
obtained after the
themselves
knowingly
fact
voluntarily
waived
attorney’s
know of the
efforts to assist the
rights delineated in the Miranda case.”
suspect,
any
any
evidence derived from
Butler,
369,
North Carolina v.
statement,
such
is not
any
admissible on
373,
1755, 1757,
actually present
police
seeking
a
2. The defendant in Burbine is
Burbine v.
ing
presented
rev'd,
(1st Cir.),
1984),
grant
the waiver issue
in this case
6) Attorney returned to the Schneider voluntary. knowing and counsel was homicide informed that so, division proper not role of Were being questioned in an ad- appellant was meanly dimin- defense counsel would be room; jacent more If officers with a ished. custody in their were than warm
7) Lt. attorneys informed Zoch frustrating engage in dissi- permitted to they by appellant’s hired wife impunity, they have would mulation they asked represent appellant; Zoch than to resist to be more human presence; appellant inform of their suspect and his temptation to mislead the declined; they requested Zoch Zoch Moran, F.2d cards; Burbine v. Zoch counsel.” give appellant their business Cir.1985). (1st declined; at 187 again 8) attorney in- An district assistant previously found that Although we attorneys officers that structed homicide voluntarily, gave his confession appellant allowed access appellant would not be totality of the facts above we find from (appellant) re- unless he appellant did and circumstances assistance; quested their intelligent knowing waiver make an attorney and that to consult an 9) attempted, by Attorney Schneider in violation of was obtained his confession telephone, telegrams send to the United States chief, the Fifth Amendment appel- connected with all detectives *9 I, straight Constitution and Art. the Tex- jacket,” Sec. of “constitutional sans quite surveys as properly Constitution. Court rules and re- quirements jurisdictions. laid in down other judgment appeals The of the court of is majority purports the for reversed and cause is remanded a The to resort to a con- new trial. sideration of “the balance of interest be- society’s
tween needs for reasonable law P.J., ONION, and W.C. DAVIS and against as enforcement the accused’s WHITE, JJ., dissent. privilege to remain silent and to assert his self-incrimination,”1 having CLINTON, Judge, concurring. gleaned balancing that kind of test from determining go way which to re- Burbine, the Rhode Island court in apparently solve first im- question the of (R.I.Supr.1982). A.2d at 29 How- pression Court, in this the ever, what it actually pick does is to appellant knowingly facts of case the among jurisdictions. choose other rights, waived his Fifth Amendment the it declines “the of appellant Thus invitation reject any proposition Court should not be- adopt either the rule or the Weber New required by Supreme cause the not Court. agree ready York rule.” I not we are for rule in The fact of the matter is that no However, ought Weber rule latter. any way Supreme “mandated Court rejected out of hand. Unlike except in Miranda” —save and “safe- majority unstructured examination guards” established therein. says totality the Court must make-a of it Supreme Court made clear intend- lawyer circumstances test—when actu- minimal, “safeguards” ed Miranda to be station, here, ally present at the as viz: pre- rule has a Weber desirable feature of dictability and may for that reason well way in no
“Our decision creates consti- prove participants be more straightjacket workable tutional which will handi- justice criminal system. cap reform, nor sound efforts at is it intended have that effect. encour- We Nevertheless, believing that the instant age Congress the States to continue opinion will not be the last word on this increasingly their search for ef- laudable impression of first this Court and matter rights ways protecting fective finding agreeing with the eventual promoting while efficient individual at Court that the confession issue was se- enforcement of our criminal laws. How- appellant violation of cured ever, proce- we are other unless shown I, Article the Constitution of under § at dures which are least as effective Texas, (but judgment I join persons apprising accused of their opinion) not the of the Court.2 in assuring to silence and a continuous it, opportunity following to exercise TEAGUE, Judge, concurring. safeguards must be observed”. majority opin- I the result concur Miranda, 384 U.S. at reaches, did ion “that not make knowing
Therefore, Supreme intelligent while the Court dis- waiver of his safeguards consult an and that claimed the notion that its must was obtained in violation of the meant “that each confession lawyer’ present all States Con- a ‘station times Fifth Amendment the United house I, 10 of prisoners,” simple truth is stitution and Art. Sec. the Texas advise Constitution,” reluctantly provide free to should it but do so be- that a State is one there Accordingly, working cause is much mischief what the be thus advised. yet emphasis to decide 1. All is mine unless otherwise indi- 2. Since Court has here, presented presume question I would not cated. provide an Fifth answer under the Amendment. Constitution of the States.
571
states,
appellant’s signature to
majority opinion
why
which is
I Dunn had obtained
confession,
must write.
informed
his written
Kent then
attorneys
appellant
there
that
were two
said:
It has been
speak
him.
who wanted to
with
Counsel
system
preserving
No
worth
should have
then,
time,
appellant
com-
and
for the first
permitted
to
that if an accused is
to
fear
each other.
municated with
a
he
lawyer,
consult with
will become
of,
exercise,
of self-
aware
[his
fear,
“if
had an
[appellant]
Zoch’s
that
If the exercise of consti-
incrimination].
then
opportunity
[counsel],
to consult with
tutional
will thwart
effective-
he,
[giving
[appellant], might
off
break
enforcement,
system
ness of a
of law
them,
statement,”
well
police,]
something very wrong
is
then there
with
years ago
thirty-five
founded
over
because
system.
Goldberg,
that
Justice
Escobe
concurring opinion
he filed
that
Illinois,
84
do v.
Indiana,
49, 59,
Watts
1758, 1764,
L.Ed.2d
1347, 1357,
(1949),
L.Ed. 1801
Justice
about,
is
is all
And that what this case
Jackson
the United
States
system
justice
whether our criminal
is so
following
Court made the
observation:
that
fear that if an accused
weak
we must
bring
lawyer
peril
To
in a
a real
means
lawyer
permitted
is
he
consult with
because,
our
solution of the crime
under
of,
exercise,
might become aware
his sole
adversary system, he deems that
If
system
of self-incrimination.
our
duty
guilty
protect
is to
then,
client—
weak,
Goldberg
is that
as Justice
said
capacity
he
innocent—and that
such a
twenty years ago,
see
over
there
society
duty
help
whatever
owes no
very
something
wrong
our criminal
with
problem.
this con-
solve its crime
Under
justice system.
lawyer
ception
procedure, any
of criminal
The record of this cause
that
reflects
tell
in no
worth his salt will
house,
in his
while
office at the
terms make no statement
uncertain
one
which housed
of the offices of the
any
circumstances.
under
Tommy Wayne
division in
homicide
which
Dunn, appellant,
being interroga-
was then
questions
that are
this Court
before
Dunn,
Kent
by
ted
C.W.
and W.T.
Lieuten-
highly important to the
for resolution are
Zoch,
J.
the supervis-
ant Norman
who was
this
namely,
citizens
Dunn,
ing
officer
Kent and
told Carl
counsel,
give
is then lawful-
Court will
who
Schultz, III,
Stanley
“Ted”
Theobold
ly
present,
right to com-
physically
Schneider,
attorneys
two
who had been dis-
person
an accused
who
municate with
patched
by appellant’s
to the station house
by
police, and is
being
then
detained
wife,
process
“that we were in the
of con-
right to
police custody; does the accused’s
I
ducting
investigation
and that would
necessarily
right of
counsel
include the
[appellant]
them to
that
not allow
when
counsel
access
the accused
to have
[appellant] had not
time because
asked for
custody
by
being
he is
detained
and in the
I
lawyer ...
would not allow them to
police;
of state
and will the actions
investigation
interfere with the
agents,
to communi-
preventing
counsel
point.” Zoch
testified
also
accused, prevent
a waiver
cate with the
“thought
perhaps,
[appellant]
if
right to
of his
the assistance
accused
[counsel],
opportunity
to consult with
becoming
counsel from
effective.
them,
might
[giving
that he
break off
police,] a
but,
statement.”
if all
simple questions,
These are not
affirma-
are
this Court in the
answered
And,
permit
Zoch didn’t
see or
tive,
right of
give meaning
such will
until after a
communicate
of coun-
to have the assistance
accused
confession had
obtained from
written
custody
being
de-
sel when he is
immediately
him. The record reflects that
interrogation,
police.
but after Kent and tained
after the
Matthews,
(Ill.Supr.1982);
Long
Supreme Court of the
ago, the
Illinois,
States,
(La.Supr.1982);
408 So.2d
Escobedo
*11
(Ore.
1758,
59,
P.2d 272
478,
purpose is to elicit a confession—our as established right to counsel and his sary system begins operate, and ... rule, A.2d, This at 686. Miranda ...” permitted to consult with accused must be however, qualification: “To not without lawyer.” rule, attorney effectively invoke at the present himself must right to the assist- has the If the accused interrogation and have or other site he has been accused of counsel when ance limita- the ambit and fide within bona wrong, and is criminal committing a Responsi- of Professional of the Code tions police, which custody of the then in the suspect’s out as the bility to hold himself right to the does this disputes, no one 2-104).” (686). (see DR 2-103 and right of include the of counsel assistance so, understandably cause, and In this to the accused? have access counsel to the fact not take issue with does in this cause. burning question That is the the lawful affirmative, Schneider both Schultz in the should be answered It and hold house at the station reservations, qualifications, any without appellant. as counsel however, out themselves an- majority, The conditions. negative. question swers the major- viewpoint, which minority so, it errs. doing I believe under presently adopts, but which ity of the Unit- Supreme Court courts, scrutiny by the state majority of our sister A Burbine, 451 A.2d States, v. ed see State question however, have answered Burbine aff’d sub.nom. (R.I.Supr.1982), 457 22 v. See the affirmative. Weber (1984), rev’d Moran, F.Supp. Smith, People (Del.Supr.1983); A.2d (1st Cir. Moran, F.2d 178 442 N.E.2d Burbine 179, 66 Ill.Dec. 93 Ill.2d Burbine, ently supreme all the other state courts that 1985), see Moran granted, cert. — -, 85 L.Ed.2d have considered the issue. In all of those cases, bar, warnings “Does like the one at question Miranda (1985), to consider duly given, damaging were the Fifth Amendment’s Self-Incrimination admissions made, confes of three require suppression and there was no hint of threats or Clause Miranda sions, proper made after phyiscal each coercion. And all of those cases rights, three waivers warnings and valid the courts held that the failure to inform a attorney requested solely custody attorney because that his or an misleading infor the defendant was him seeking retained for the tele over officer mation him vitiated his waiver of his Fifth *12 inter no further there would be phone that right Amendment to assistance of counsel night and de rogation of defendant F.2d, questioning.” at his 753 at 186. The attorney’s informed of the not fendant was pointed further in First Circuit out Burbine call?”, the do holds that telephone Moran, supra, v. that “Fuentes was a close accused, duty to inform any have not state,” narrowly favoring the and also has re custody and who in their who is Fuentes, pointed attorney out that the in ceived his warning, Miranda that counsel is “half-hearted, supra, only made a feckless” physically present and wants to assist the accused, effort to be of service to the and accused. lastly held that the conduct did sink to the trickery. cause level of appear which only other state courts
The
minority viewpoint are
the
subscribe
difficult,
above, it is
Thus,
light
the
of
Carolina,
Nebraska,
North
those
how
to understand
impossible,
if not
590,
Johns,
177
Ohio,
185 Neb.
v.
see State
district
the federal
state that
majority can
(Neb.Supr.1970),
v.
State
N.W.2d 580
Moran, supra,
Fuentes v.
decision of
court
(N.C.
365,
Smith,
241
674
N.C.
S.E.2d
294
Furthermore,
it is also
“persuasive.”
is
From the
informing
it should be obvious that
of his counsel’s
agents
*13
but for the
the
availability
actions
State’s
in
effectively denying
while
his
cause,
preventing
(would
this
in
Schultz and
only)
reasonable access
communicating
appel-
Schneider from
promote
with
those ‘evils’ inherent in the inter-
lant, appellant
guid-
would have
rogation process
which Miranda con-
“[t]he
ing
being
demned,”
Burbine,
hand of counsel” when
he was
interrogated by
police.
J.,
the
and cf.
(Murray,
dissenting
See
opinion), but
Alabama,
45,
Powell
system jus-
would also amount to “our
of
55,
leges attorneys of who are officers of the protected opinions be Addressing concurring courts with zealous care of I Judge Judge Teague, undue which find the infractions a nature Clinton and prisoners they unsatisfactory precisely are deny calculated to whom rule” be- “Weber rigorously it is structured. Predict- cause aside, advantage requir-
ability I see no “actually ing lawyer present at a police every instance. station” Given balancing test the ma- unstructured suspect’s right remain jority opinion, a might compel to counsel silent and his him to inform that “his” him from trying to contact another state trying or is him at telephone contact [applicable a different substation move the where the place attempts in order to place thwart him. to locate See Foster v. outsiders ], 507 (Tex.Cr.App.1984) 677 S.W.2d
etc. pre-
Rigid advantage rules have carry disadvantage dictability but also manipulation. being subject prefer I enough grant only relief not test broad in all the instant but other cases compelling, regardless equally physi- Thus, join I opinion cal circumstances. majority. *14 FANN, Appellant, Edward Frank Dallas, appellant. Gray, Edward for Texas, Appellee. The STATE Wade, Atty., Henry Dist. and John D. No. 65785. Nation, LeNoir, Hugh & Martin Lucas Texas, Appeals Court of Criminal Dallas, Huttash, Attys,, Asst. Dist. Robert En Banc. Atty., Austin, for the State. State’s July
OPINION
McCORMICK,Judge. kidnapping
Appellant convicted of years’ of five and sentenced to a term confinement. error, grounds appellant ar-
In two insufficient gues evidence is kidnapping in sustain conviction