*1 GARCIA, Appellant, Gustavo Julian Texas, Appellee.
The STATE of
No. 71417. Texas,
Court of Appeals Criminal
En Banc.
Dec.
Opinion Rehearing after Grant 27, 1996.
March *7 pumped gas, Strasser, appellant’s wife appellant. Plano. While Wylie, L. Michael Vargas entered the store appellant and O’Connell, Atty., A. Dist. and Randall Tom liquor shotgun at the store. used same Waddill, Blake, Mark Rusch and David J. clerk, telephone talking on the who was Attfs, McKinney, Hut- Dist. Robert Asst. her call the girlfriend, asked with his Austin, tash, Atty., for State. State’s room, The clerk taken a back police.. and shot the back
placed on his knees Vargas appellant contends the head. While OPINION clerk, finger- presented the State shot the PER CURIAM. again Vargas print which indicated n capital murder. Appellant convicted car shot beer to the while carried 19.03(a)(2). jury §Ann. Tex.Penal Code Vargas ar- were Appellant clerk.' statutory punish- affirmatively answered the store. rested at the convenience judge ment and the trial sentenced issues liquor prosecution is for The instant to death. Tex.Code Crim.Proe. a written Appellant executed store murder. 2(b) (e). Appeal arts. Ann. offense, which, in concerning statement this (h). Appel- this automatic. Id. at Court is part, provides: error, seventy points including lant raises sufficiency challenges to the of the' evidence A LI- & I ROBBED CHRIS VARGAS guilt/innocence punish- at both the QUOR I KILLED THE & STORE However, stages ment of trial. because we LIQUOR THE STORE WAS CLERK. point forty-two,
sustain of error we address A 7-11 AT PLANO BEHIND STORE only of error as well as & AVE K. PKWY
challenges sufficiency of the evidence. n n n n n n LIQUOR THE WE WAITED IN STORE
I. LOT UNTIL THE CUSTOM- PARKING SUFFICIENCY OF THE EVIDENCE I& ERS ALL LEFT. BOTH CHRIS AT GUILT/INNOCENCE I LIQUOR THE & WENT INTO STORE The evidence at established that A 20 SHOT- PULLED GA. SAWED-OFF 9, 1990, appellant December and his co-de- I THE HAD THE GUN ON CLERK. fendant, Christopher Vargas, a li- entered THE CLERK GIVE ME MONEY OUT quor store in Plano. was armed THE OF CASH REGISTER.... shot, single twenty gauge,
with a sawed-off
shotgun
Ap-
and carried extra ammunition.
pellant
ordered the store clerk to retrieve
I
THE
THE
SHOT
CLERK WITH
money
register
Vargas
from the cash
while
THE CLERK STARTED
SHOTGUN.
took
their
beer to
car.
*8
AT ME &
A CHAIR
THREW
COMING
I
HE RAN
AT ME & THEN
OUTSIDE.
Appellant
clerk into a small
ordered the
THE
& SHOT
LOADED
SHOTGUN
Appellant
room and
his
shot
knees.
then
CLERK
THE
THE
AGAIN OUTSIDE
the clerk in the abdomen. The clerk man-
THE
HAD JUMPED
STORE.
CLERK
feet,
get
at
aged to
to his
a chair
threw
IN
A
& WAS
SOME
OVER
FENCE
appellant
escaped,
running
and
around
I
THE 2ND
GRASS
SHOT HIM
WHEN
building
a
reload-
and over
fence.
TIME.
ed,
clerk,
pursued the
and
him in the
shot
By
authorities
back of the head.
the time
trial,
at
Bobby
he
At
Flores testified
scene,
Vargas
appellant
at the
arrived
night
liquor
store
Vargas’ house on the
departed.
had
clerk later died from
appellant and Var-
murder. Flores testified
shotgun wounds.
with beer
gas left the house and returned
later,
money.
appellant,
and a lot of
When
Approximately one month
from,
wife,
money came
Vargas parked at
asked where the beer and
his common law
store,
a
in
went into
asked
gas pumps
a
store
stated he
convenience
(3)
beer,
money,
the clerk for the
took the
shot
right
lawyer
he has the
to have a
present
prior
the clerk and left.
him
and during
to advise
to
any questioning;
In point
sixty-
of error number
(4)
employ lawyer,
is
to
he
unable
a
eight, appellant contends the
is in
evidence
lawyer
right
appointed
has the
to
a
have
to
committed,
attempt
sufficient to show he
prior
any
during
ques-
advise him
to and
robbery.
ed to commit a
To review the
tioning; and
evidence,
sufficiency of the
we
all of
consider
(5)
right
he has the
to terminate
light
the evidence in the
most favorable to
time;
any
at
interview
any
the verdict to
ration
determine whether
al
trier
fact could have found the essential
(b)
accused, prior
during
to and
beyond
elements
the offense
a reasonable
statement,
making
knowingly,
intel-
307,
Virginia,
doubt. Jackson
U.S.
ligently,
voluntarily
waived the
2781,
(1979); and,
S.Ct.
II. against I statement make will be used me trial; my at THE WRITTEN STATEMENT (2) Any I statement make will be used A. court; against as me in forty-two error con- (3) lawyer I right have the to have judge admitting tends the trial erred present prior during to advise me to and concerning liquor written statement store questioning; Specifically, appellant murder. contends the (4) lawyer, to employ If I am unable I comply written statement did not with Tex. right lawyer appointed have to have 2(b). 38.22, § Code Crim.Proc.Ann. art. Art. (without me) prior me cost advise 38.22, § provides: during my questioning; See. No written statement made (4) I have the [sic] terminate an accused a result of custodial interro- the interview time. gation is admissible as evidence proceeding him criminal it is unless shown on the that: statement face of I page have read each of this statement (a) accused, making prior consisting page(s), omitted] each [# person statement ... from received *9 page my signature, of which bears warning
whom the statement is made a corrections, initials, my if any and I bear that: certify contained herein facts (1) he has the to remain silent and certify true and correct. I further that I any not make all statement at and that request no have made the advice or against may statement he makes be used presence lawyer during before or trial; him at his statement, part of this nor at time
(2) any may request I statement he makes be before it was finished did court; stopped. used as him in this statement be I also declare
379 2(a). 38.22, But, § rights art. prompted that I not told what to enumerated (Tex. State, say citing Penry v. 691 636 in this statement. S.W.2d State, Hardesty Cr.App.1985), [Time, signature lines omitted.] date con (Tex.Cr.App.1984), the State S.W.2d Clearly, warnings form contained paragraph final is in substantial tends the 2(a). 38.22, However, required by ap- § art. 2(b). 38.22, § compliance with art. The pellant the statement was inadmis- contends Penry Hardesty is on State’s reliance 2(b) 38.22, § it did sible under art. because case considered the misplaced. each face, show, on its of each of not the waiver admissibility a written statement which 38.22, rights contained within the art. 2(a) 38.22, § art. provided on its face all the 2(a) warnings. agree. § We art. Under only statutory warnings, not the exact 38.22, 2(b) § the written statement must warnings language. Noting that all the re knowing, intelligent its show on face 38.22, 2(a) quired by appeared § on the art. voluntary rights waiver of each of the of art. statement, language face of and that the 2(b) 38.22, 2(a). 38.22, § § Art. is clear and statute, conveyed meaning of the exact unambiguous, Legislature and “the is consti- substantially the written we held statements tutionally expect will [we] entitled 2(a). 38.22, § Penry, 691 complied with art. faithfully specific follow the text that was and, 643; Hardesty, at 667 S.W.2d adopted.”1 Boykin v. 818 S.W.2d 135. We considered such situation be non-compliance “technical with the statute.” appellant’s The State contends waiver (Tex. Eddlemon rights he ini was demonstrated when (citing Cr.App.1979) Bubany, The Texas Con warning tialed each on the statement. Some New in the Statute: Wine fession supported by the trial State’s contention Bottle, Same Old Tex.Tech.L.Rev. judge’s findings of fact he overruled when (1978)). suppress motion to the state never addressed whether sub- We have ordinarily ment. While we will not disturb satisfy 38.22, compliance art. stantial will by factual determinations the trial made 2(b). § And we need not address the issue (Tex. judge, White S.W.2d 809 today. paragraph The final on the instant Cr.App.1989), judge’s we hold the trial find express statement is not waiver of the ings supported in the instant case are not rights language on form and the reflected judge’s findings The trial the record. (or convey knowing, intelligent not does change readily apparent can not what is Further, required by waiver the statute. lacking) more appropriately, from the face each of the paragraph final does address appel of written statement. We hold that 38.22, lant, rights be art. by initialing required to waived under warning each reflected 2(b). form, § the written affirma The instant written statement statement did not tively clearly non-compliance more than “technical waive contained within best, warnings. only with the statute.” At initials indicated he read and understood those 38.22, 2(b), § plain language of art.
warnings. interrogated The detective who that, Legislature, requires drafted [appellant] he “had read testified may of an accused before written statement rights” those and then told him “if he un itself, admissible, the statement on its them, I derstood them wanted him to initial face, the defendant received the must show added.) (Emphasis which he did.” statutory warnings art. set out in 2(a) and, knowingly, intelligently, § para- final that he
The State next contends the
rights. Tex.
voluntarily
form can be
waived those
graph on the written statement
2(b).
38.22, art.
This
interpreted
concedes Code Crim.Proc.Ann.
as waiver. The State
mandatory
requirement enacted
our
paragraph
not contain the
is a
the final
does
Fifth
Legislature
all
the defendant’s
word
and does not address
address
“waiver”
*10
exception
Boykin,
only
the
the written statement.2 2(b) § were available but not used. The deprive appellant nature of the was error B. statutory afforded art. Having judge the determined erred 2(a) § ignore Legislative protec- the statement, admitting appellant’s written we 2(b) 38.22, § voluntary tions of art. to ensure must determine whether the error was harm- Further, statements. more than half the rule, less. The error harmless codified at argument State’s was consumed direct 81(b)(2), Tex.R.App.P. requires un- reversal statement, appellant’s references written appellate “beyond less the court determines provided or details the statement. Clear- a error reasonable doubt the made no ly, emphasized by the was statement the pun- contribution to the conviction or to the State. ishment.” Id. In Harris probable We the next consider collateral (Tex.Cr.App.1989), noted the implications probable error and the appellate pro- court should not focus on the weight juror place upon would the state- Instead, priety of the outcome of trial. the noted, previously ment. As the written appellate the court should be concerned statement established each element neces- integrity process the leading the to the sary appellant capital to convict murder. punishment. Consequently, conviction and See, 19.03(a)(2). § Tex.Penal Aim. Code appellate court should consider the fol- both appellant statement indicates and Var- lowing conducting six factors when a harm gas liquor County; robbed store in Collin analysis: appellant shotgun; carried a sawed-off error; 1. The source of the and, clerk; shot the when the error; 2. The nature of the ran, him, reloaded, appellant pursued clerk 3. Whether or to what extent it was em- Further, again. and shot the clerk the state- State; phasized by the provided ment some corroboration for probable implications; 4. Its testimony; testimony Flores’ which was im- weight juror 5. proba- peached How much would and undermined on cross-examina- and, bly error; circumstances, place upon Clearly, tion.3 these it under espouses arguments testimony appellant’s 2. The State two other for the 3. Flores’ was similar to first, However, testify allowance of the confessions. it statement. Flores did not until properly claims that the were after confessions admit- written statement before Indeed, jury. jailer police ted under of a Tex.R.Crim.Evid. 1004 three officers one recording videotapes lost since the audio of testified between the admission of However, questionable. pertains this rule statement and Flores. recordings, simply badly lost not those testimony Vargas’ was at Flores’ .indicated he Further, upon reviewing videotapes made. evening house He of December (which trial) were not introduced at we noted appel- stated he drank at least two beers before reasonably them to be audible. Vargas go something” “to lant and left sell ... return, argument buy Upon they The State’s second is that the confes- more beer. their were in possession money. sions should have been allowed under Tex.Code of beer and a lot of When However, 38.22, 3(c). money § Crim.Proc.Ann. art. Flores asked where beer and came from, store, argument State’s without he merit because stated went into while car, sought Vargas State to admit the instant statement as a waited in the asked the clerk beer, 38.22(2)(b). money, written Art. shot clerk statement under art. took and left. cross-examination, 3(c) only admissibility 38.22 On admitted did addresses Flores sign language Var- oral or statement. remember the exact words *11 732, (Tex.Cr.App.1991). Point jury appel- S.W.2d very probable upon relied is the forty-two is sustained. in error their deliberations lant’s written statement and verdict. III.
Finally,
must
whether declar-
we
consider
encourage the
ing
error harmless would
the
THE
OF
EVIDENCE
SUFFICIENCY
In
impunity.
it with
our
repeat
State to
AT PUNISHMENT
factor,
that the
of this
we note
consideration
may
appellant
retried
Because
unsigned type-writ-
also
record
contains
again
offense,
may
and the State
the instant
appellant. This
prepared for
ten statement
we must address
penalty,
death
seek the
state-
virtually
identical
the
statement
seventy
points
sixty-nine and
where
of error
appellant
subject
signed by
which the
ment
is insuffi
contends the evidence
unsigned state-
point of error. The
of this
an
support
jury’s
the
affirmative
cient to
rights
express
of the
ment contains an
waiver
statutory punishment
issues.
the
swers to
art.
in Tex.Code Crim.Proc.Ann.
set forth
(Tex.
State,
59,
See,
v.
863 S.W.2d
Wilson
2(a).
88.22, §
The record does not state how
State,
Cr.App.1993);
912 S.W.2d
Jenkins
prepared,
unsigned
the
statement came to be
State, 758
(Tex.Cr.App.1993); Felder v.
given
opportunity
the
whether
and,
(Tex.Cr.App.1988);
it,
why
signed by
not
sign
it was
2(b).
37.071, §
art.
Tex.Code Crim.Proc.Ann.
However,
unsigned
appellant.
state-
sufficiency
reviewing
the
the
Again, when
This
ment was not admitted into evidence.4
evidence,
all of the evidence in
we consider
unsigned statement makes it clear that the
light
to the verdict
the
most favorable
Department was aware of the
Plano Police
fact
any rational trier of
determine whether
2(b)
38.22,
§
requirement
in art.
answered,
affirmatively
beyond a
could have
statement,
face,
its
the “ac-
demonstrate
doubt,
statutory punishment
reasonable
cused,
during
making
prior to
307, 99
Virginia, 443 U.S.
issues. Jackson
statement,
intelligently, and
knowingly,
vol-
(1979).
con
We
voke his
because
crimes,
agreed
extend his
Ann. art.
but later
additional
*12
finding. By
admission,
appellant’s own
at the time of the
of
commission
the
Vargas
liquor
offense;
and
waited at the
until
store
there were no
Appellant
customers.
carried
and,
evidence;
psychiatric
7.
shotgun
a sawed-off
and additional ammuni-
8. character evidence.
tion. This
appellant
evidence indicates
Id.,
planned
prepared
and
deadly
to use
force.
the offense
the use of a sawed-off shot
retrieving money
After
reg-
from the cash
gun
appellant’s propensity
demonstrate
to-
ister, appellant ordered the clerk to
back
appellant
ward violence. While
did not act
knees,
appellant
room
his
shot the
alone,
support
the evidence does not
a deter-
clerk in the chest.5 When the clerk thereaf-
mination that he
under the domination of
was
managed
escape, appellant
ter
reloaded
anything,
his co-defendant.
If
the evidence
clerk,
pursued
weapon,
his
the
him
shot
just
indicates
opposite.
appel-
the
We find
Finally,
the back of
head.
appellant
lant’s actions to be deliberate and calculated.
Bobby
told
Flores he killed the clerk
avoid
years
eighteen
age
was
of
at the
later identification. We
find
a rational
time of the instant
pre-
offense. The State
juror could have affirmatively
this
answered
appellant
sented evidence that
committed
Wilson,
statutory punishment
issue.
burglaries
juvenile
several
as a
and was a
sixty-
S.W.2d at 67.
of
Point
error number
disciplinary problem in school. Evidence
nine is overruled.
presented
appellant
was also
created
seventy,
of error
appellant
jail
problems
awaiting
while
Al-
trial.
sup
contends the
evidence
insufficient to
though
evidence
conflicted
to whether
port
jury’s
affirmative answer to the
appellant
or not
was intoxicated at
time
issue;
statutory
second
punishment
offense, appellant
of the instant
history
had a
probability
there
no
appellant
would
presented psy-
of alcohol abuse. Both sides
commit criminal
of
acts
violence that would
regarding
chiatric evidence
the probability
a continuing
society.
constitute
threat
commit
would
criminal acts of
Tex.Code Crim.Proc.Ann.
art.
expected,
violence in the future. As
2(b)(1).
In Keeton v.
der duress or the participation domination another co-defendant’s the instant panic While jury accept reject 5. claims that he shot in a 6. The was free to or all credibility after a woman walked into store evidence because the of that and wit- solely evidence was within Ha their domain. happening, subsequent nessed what was ac- (Tex.Cr.App. vard v. tions belie this statement. 1989). February and, rehearing granted on offense; history of alcohol evidence, judgment of the Considering affirm' the we We now abuse. all the proceed will address juror have found court and a reasonable could conclude *13 seventy points of error. appellant would commit probability criminal would consti- acts of violence that society. Point of continuing threat of Facts
tute Statement seventy number is overruled. error on at The trial established evidence Christopher December IV. store, Beverage liquor Vargas entered a art. Tex.Code Crim.Proc.Ann. Because Warehouse, city Appellant of Plano. in the 2(b) 38.22, § requires that no written state- single gauge .20 shot armed with a was by admitted made the defendant be ment additional shells shotgun and had sawed-off unless, face, the state- into on its Appellant the possession. his ordered in knowing, intelligent, and vol- contains a ment money clerk, Turski, give Craig him the untary of the set forth art. waiver time, register. At the same from the cash 38.22, 2(a), point § appellant’s sustain put it in Vargas store and took beer from the forty-two. be- error Unable to determine in the car. A female customer walked their yond a that this made reasonable doubt error store, immediately left. appellant, and saw or conviction no contribution range in Appellant close the shot Turski at 81(b)(2), punishment, we are Tex.R.App.P. store, pur- Turski fled outside the abdomen. judgment this constrained reverse Appellant reloaded by appellant. then sued trial court. remand case the in the back of shotgun and shot Turski the customer, Donna De- The female the head. CLINTON, J., in the result. concurs Sawtelle, the subsequently returned to lozier CAMPBELL, McCORMICK, P.J., and Finding the store store with her husband. MEYERS, JJ., WHITE and dissent. deserted, Turski was they police. called hospital, transported to the found was MOTION FOR REHEARING gunshot wounds. died from where he later MANSFIELD, Judge. a.m., January 1991 at about 12:30 On girlfriend Vargas, appellant Garcia, appellant, was con- Gustavo Julian Loe) (Sheila a Texaco stopped at Phanae capital intentional- victed murder —murder gas, pumped in Plano. While Loe station ly committing in the committed course Vargas entered station appellant and robbery1 Tex- attempting to commit —under shotgun to kill gauge .20 used with the same 19.03(a)(2)(1990). jury as Penal Code Martin, clerk, Gregory on was Turski. The “future answered “deliberateness” and girlfriend. As he saw phone dangerousness” special (special issues issues enter, thought he he informed her he them two) one and under Texas Code of Criminal call her to and asked was about to be robbed 37.071(b) (1990) in the affir- Procedure art. taken into a back police. Martin was (mitiga- special issue mative and the third range in at room and shot blank tion) negative, punishment in the was the scene. He died at back of the head. at in accordance with Texas assessed death 37.071(e) Code of Criminal Procedure art. Vargas shot Martin. Appellant claimed (1990).2 trial, however, indi- at introduced Evidence car Vargas carrying beer to their was appeal made to this Court cated Automatic was (as robbery) appel- which, 21, 1994, while did the earlier reversed on December addition, shotgun clerk. lant shot the judgment of the trial court and remanded proximity near the freezer close motion was found cause for a new trial. State’s the various sections capital 2. All references to indicted for the murder was Texas Procedure and the Code of Criminal Texas Craig Turski. of the date of to those in effect as Penal Code are the offense. capture. the time of completed at Two The statement was at a.m. 9:05 experts firearms testified at trial that January 1991. Each page signed shotgun found the scene of mur- Martin’s appellant and two witnesses. The statement weapon der the same used Turski’s was taken Det. David Wilson the Plano murder. Department. Police girlfriend, Alerted police Martin’s top At the first page the state- Vargas arrived at appellant, the scene to find appears following: ment present, found, Loe Vargas still I, Garcia, undersigned Julian Gustavo unarmed, standing body. Martin’s over He *14 years age, having am 18 on been born 9- just claimed to have entered the store and at_I 27-72 live at now 804 N. lying Appellant found Martin there. was Tennessee, McKinney, I Tx. been have hiding found in the freezer area close duly warned and advised Det. David shotgun where the found. was Wilson, person who has identified himself Appellant transported was to the Plano Depart- as an office the Plano Police Department. Police He “Mi- was read his ment, that: warnings repeatedly. randa” He subse- (1) I right GG[] have the to remain silent confessed, quently orally writing, both and in any and not make statement at all and to the murders of both TursM and Martin. any I statement will make be used videotaped, sepa- His confessions were and a against me my at trial.
rate written prepared confession was each offense. (2) Any GG[] statement I make will be against used as evidence me in court.
Appellant’s regarding written statement Mlling entirety of TursM in its reads (3) I right GG[] have have a law- follows: yer present prior to advise me to an writing my Ap- Det. Wilson is statement. during questioning; prox. date, today’s 3-4 weeks from Chris (4) If I to employ GG[] am unable Vargas liquor & I robbed a store & I killed lawyer, right lawyer I have the to have a liquor the clerk. The store was behind a (without me) appointed cost to to advise 7-11 at Pkwy. store Plano I & Ave. K. prior during my questioning; me to and driving Sheila’s Chev. Monza. We and liquor parking waited in the store lot until (4) right I GG[] [sic] have the to termi- the customers all I left. Both Chris & nate time. the interview pulled ga. shotgun a 20 sawed-off on the I give money clerk. had the me clerk warnings Before each the numbered out of register the cash & it was about appear warnings the initials “G.G.” These grabbing up Chris was beer. $500. Chris repeated page each of the statement pull went up outside the car to the front appear and the initials each “G.G.” before I go door. had the clerk into little room part warnings. register get cash next & I had him Finally, page, at the bottom of each imme- customer, on his A knees. a white woman diately appellant’s signature, appears above walked the store & saw me she& following: panicked walked back out. I then I shotgun. shot clerk with the The clerk I page have read each of this statement coming started at me & threw a chair at consisting page(s), page each of which I my signature, corrections, me then he ran outside. loaded bears shotgun initials, again & my shot the clerk outside the I certify bear that the facts store. jumped The clerk had over the herein I contained are true and correct. grass certify fence & in some when I shot further I request that have made no him the I presence lawyer 2nd time. then ran the car & for the advice or of a my I we drove off. Sheila during part told common- before or of this state- robbery ment, law wife about the after we it. at any did nor time it fin- before was request End —G.G. ished did I this statement Appellant’s I. Statement Sub- I I not told Written stopped. also declare that was Require- stantially Complies with say prompted what to in this statement. 2(b). of Art. Sec. ments trial, acquaintance appellant, Bob- At forty-two points of error numbers by Flores, Vargas’ testified he was at house appel- through fifty-one, appellant asserts night of the TursM murder. Flores testi- confession did not meet lant’s written Vargas left the house fied that Pro- Texas of Criminal requirements of Code subsequently returned beer and a 38.22, 2(b), and its admission cedure article money. Flores asked where lot also asserts thus erroneous. Appellant in was got money. beer and store, taken confession was went into a took the written response stated he right of his to effective assistance money, shot the clerk and left. violation beer and both the Texas and United counsel under Constitutions, in violation of his States Appellant’s Points of Error under both consti- self-incrimination seventy points Appellant has raised of er- process and in violation of his due tutions *15 ror, sixty-seven original in his brief and three rights under the United Constitution. States supplemental original in his first brief. On points of error collec- We will address these submission, and this court addressed over- tively. appellant’s point sixty- ruled of error number article Texas Code Criminal Procedure eight, in which he contends the evidence 2(a) 2(b) 38.22, entirety as § in and their during to insufficient show Turski was killed follows: robbery attempted robbery alleged in as made the See. 2. No written statement also the indictment. This Court addressed interroga- a result of custodial accused as appellant’s points of error and overruled against him tion as evidence sixty-nine is admissible seventy numbers in which he any proceeding in it criminal unless support avers insufficient to the evidence is on that: shown the statement July’s spe- affirmative as to the answers face of (a) accused, 37.071(b). prior making the state- to cial issues. Tex.Code Crim.Proe. ment, magistrate from a either received disposition of points Our of error numbers warning provided in Article 15.17 sixty-eight, seventy sixty-nine and is not dis- person this code or received from the puted by parties rehearing on and need warning whom the statement is made not be readdressed. that: previously This the trial Court held that (1) right silent and he has the to remain judge admitting appellant’s in written erred any all that not make statement at statement as that statement was found to be may any he makes be used statement compliance not in with Tex.Code Crim.Proe. trial; at against him his 2(b). 38.22, § Specifically, art. held that we (2) may any statement he makes required the statement failed to contain lan- court; against him used demonstrating knowing- guage (3) lawyer right to he has the have ly, voluntarily intelligently and waived the present prior him to and dur- to advise rights described in Crim.Proe. Tex.Code any ing questioning; 2(a) 38.22, § and which are delineated (4) employ lawyer, Furthermore, if is unable to he he page each of the statement. lawyer appointed have a has held that the error was not harmless 81(b)(2). during prior him to and App.Proe. to advise under Tex.Rule questioning; and for the reversing appellant’s conviction (5) right to he has the terminate the Court sustained above reason time; interview at forty-two. According- of error number (b) accused, prior during ly, point of to and we will address error statement, knowingly, intel- making of the forty-two points of number and related error rights forty-three ligently voluntarily waived through fifty-one first. numbers literally.” Boykin, prescribed by out in the warning set Camacho v. citing Sub- (a) section of this section. S.W.2d 431 (Tex.Cr.App.1989); (Tex.Cr. Smith v. 789 S.W.2d added.) (Emphasis App.1990) and Faulk v. Appellant’s voluntary written statement was admitted top as State’s exhibit 3. At the Boykin compels us, case, present in the page appears warnings required each complies determine the written statement 2(a); by § warnings statutory mirror the Legislature’s with the expressed intent language identically except almost it 2(b): § appellant knowingly, intelligently, did (instead statement he makes will states 2(a) voluntarily rights? § waive his “may”) be used him at trial. On page, provided, each in boxes the initials GG First, initialed, in the appear part warnings. next to each (a appropriate spaces page on each total of Finally, times) at the bottom each page, close fifteen was informed toas his proximity appellant’s signature, appears rights it can be inferred he under language. additional rights, stood provided each his 2(a). Second, § appellant signed him under contends, effect, the written page, signature being adjacent each statement is not admissible because it does language additional which reinforces the in requirements not meet the of article escapable conclusion that he knew and un 2(b). Alternatively, appellant contends the 2(a) Third, rights. §his prior derstood written statement is inadmissible because he statement, making hypnosis was under or was intoxicated or *16 rights as to under Miranda v. informed his by promises was induced to confess of lenien- Arizona, 436, 384 U.S. 86 S.Ct. 16 cy by made the officer who took his state- (1966). L.Ed.2d ment. beyond dispute appellant It is his received Clearly, the written statement contains the 2(a) warnings, Section they being placed at 38.22, 2(a). warnings required § Article top of page the each of his statement. The Court, however, This has never ruled what appearance of his initials before each the language, any, required additional if is to be warnings five is evidence that he received part included as of a written statement them; them and that he read and understood 38.22, 2(b). § to comply order with Article appellant does not contend otherwise. The 2(b) 2(a), § § provide Unlike does not appearing language appel- additional next to guidelines language might as to which signature lant’s is evidence of reiteration part included as of a written statement that rights he understood his and knew he what knowing, intelligent would constitute a and doing gave when Fur- he his statement. voluntary waiver the individual of his thermore, language clearly the additional is 2(a) rights. knowing, voluntary evidence and intelli- State, Boykin v. gent right 818 S.W.2d waiver of his to consult counsel held, (Tex.Cr.App.1991), during giving “When we before or the of his statement (Sections 4476-15(b), 2(a)(3) interpret 2(a)(4)) statutes such as Art. right and and of his 2(a)(1) Sec. we seek to to giving effectuate the ‘collec terminate the of his statement at (Section 2(a)(5)). purpose legislators tive’ intent Finally, of the who time the indi- Thus, legislation.... enacted initialing the if paragraphs by appel- the vidual meaning text, statutory pertaining read lant his when to to remain silent using the established canons of construction and to the likelihood that statement he relating text, plain court, such should have been made would be used him in legislators it, to who on we voted ordi when taken into at language context with the narily give plain meaning.... effect to page signa- the bottom of each next to his application ture, plain where of a statute’s lan knowingly, is evidence that he volun- guage consequences tarily would intelligently protections lead absurd and waived 2(a)(1) Legislature possibly not appellant by could have afforded Sections intended, 2(a)(2). apply language we should not statement, his confession Appellant avers agree appellant’s while
We voluntarily made because he was not comply Sec was sufficient to with Article hypnosis. The record 2(b), or under clarity on intoxicated tion no means a model of is support his he was intoxicated claim clearly preferable practice is does not point. The this Furthermore, even he statement, at the time confessed. unambigu to meet a written the time he intoxicated at 2(b), ously requirements of Section not, confessed, in and of fact alone adja following language, near or contain the itself, in to render his confession sufficient giving signature of the individual cent to the State, voluntary. v. 754 S.W.2d Nichols voluntarily knowingly, “I the statement: hearing, trial At intelligently rights described waived the was evidence had court found there during making of this above before drinking prior the time of his arrest been Penry See 691 S.W.2d statement.” confession, but he was not intoxicated (Tex.Crim.App.1985) and Cannon of his arrest and confession. the time (Tex.Crim.App. 691 S.W.2d not under the influence of court found was however, that, 1985). persuaded, areWe so to render his to such an extent alcohol did, call, though on the face close involuntary. sup hearing At a confession statement, voluntary knowingly, volun his evidence, sole press the trial court 2(a) tarily intelligently his waive Section weight credibility of the judge rights comply a manner sufficient finding may trial court’s evidence and the legislature’s it intent when enacted Sec appeal a clear abuse be disturbed on absent 2(b). tion of discretion. Alvarado judge, following hearing on (Tex.Cr.App.1993). Appellant never suppress motion to the written intoxicated he confess testified he was when confession, concluded, findings of fact ed; only produced support of law, appellant and conclusions of evidenced screening is a medical appellant’s assertion understanding of his and waiver completed at the time of form by plac- thereof the face of the statement appeared to be under arrest that he *17 by warnings ing his initials each of the drugs. Detective Wil influence of alcohol appear on the face his written confession. appear to appellant did not son testified accordingly appellant court found waived Accordingly, did court intoxicated. 2(a). rights his under The court also finding appellant in not abuse its discretion orally rights being found he waived his his con as to render was not intoxicated so after Miranda, his su- informed of under involuntary. fession pra, and prior giving to his written state- claim he was under Appellant’s ment. hypnosis at time of his confession is Depart held testimony by
We have
that factual determinations
Police
Plano
based on
by
hearing
made
the trial court at a
Meeks that Detective Wilson
ment Detective
confession)
(the
suppress
appellant’s
to
not be
motion
evidence shall
who took
officer
findings
hypnotist.
if
not
appeal
Appellant
disturbed on
those
is a
does
trained
State,
however,
expert testimo
by
produce
Urbano v.
evidence or
supported
the record.
hypnosis at
time he
(Tex.Cr.App.1992);
ny
114
Johnson
he
under
837 S.W.2d
that was
State,
he did
(Tex.CrApp.1990).
272
Detective Wilson testified
v.
803 S.W.2d
confessed.
State,
fails
hypnotize appellant. Appellant
Calloway
also
743
645 not
See
S.W.2d
part
on the
no
dis-
coercive conduct
(Tex.Cr.App.1988). We find
abuse of
show
evidence,
and,
confes
by
Appellant
police
absent such
the trial court.
makes
cretion
respect
said to
been taken
arguments
appel-
sion cannot be
have
the same
with
his federal due
Gregory
such manner so
to violate
confession to the murder of
lant’s
(admitted
Connelly,
rights.
479
punishment);
process
find
Colorado
at
Martin
515, 520,
93
L.Ed.2d
given
S.Ct.
unpersuasive for the reasons
U.S.
them
Alvarado,
(1986);
supra, at
The trial
forty-two
Points of error numbers
above.
not
its discretion
conelud-
forty-three
court did
abuse
are overruled.
mg appellant
hypnotized
help
was not
if
appellant
gave
the time
he
information Var-
gave
he
his confession.
gas’
involvement
other crimes.
alleges
also
his state
(Tex.Cr.
State,
Dykes
involuntary
improperly
ment was
as he was
that,
App.1983)we
police
held
where a
officer
by promises
leniency
induced
confess
general
help
made a
statement he would
police.
promise
made
A
made
appellant
appellant
him,
cooperated
if
with
may
law enforcement officer
render
confes
voluntary
confession was
and not
involuntary
it
positive,
sion
if was
made or
promise
leniency
the result of a
or a
apparent
sanctioned
someone with
author
lighter sentence.
In Sorola v.
ity,
ofwas
some benefit to the defendant and
1984)
(Tex.App.
S.W.2d 809
Antonio
—San
was of such a
likely
character as would
cause
police
the court held the
fact
mere
that the
a person
speak
untruthfully. Freeman v.
appellant
officer told
he would inform the
State, 723
(Tex.Cr.App.1986);
S.W.2d 727
Ja
attorney
cooperation
district
as to his
or lack
(Tex.Cr.App.
cobs v.
benefit was to influence speak untruthfully, appellate court must promise appellant not Detective Wilson did look to whether circumstances charged capital he would not be with murder promise made the defendant “inclined to ad Vargas, pulled Chris mit a crime he didn’t commit.” Sossamm v. only trigger, that it a possibility. Detec- tive did specific prom- Wilson not make only try “help that he would him
During hearing on the admis ises— out” or would “talk to the D.A.”—if confession, sibility Detective Vargas’ Wilson furnished him information on in- testified as to his conversations with appellant. volvement in other crimes. Q. [Appellant’s a fair Counsel] Is it char- The trial court found Detective Wilson’s you acterization that him told statements were not made the course you promises, while can’t make plea negotiations appellant; with nor was he it, that if it’s like he’s telling that he promised anything confessing or tricked into pull trigger, didn’t that Chris shot will. that Detec- The court found clerk, possibility that there’s a questions tive Wilson’s comments and were he charged capital wouldn’t be getting appellant aimed at to tell the truth. murder, but would be tried for *18 supports finding, record court’s aggravated robbery? show of fails to abuse A. I [Detective Wilson] That’s what said. by discretion. Factual determinations
(Vol. 993.) 12, p. hearing trial court made at a on a motion to Q. say? you did What suppress not evidence should be disturbed on A. I told him if anything he knew appeal supported by the record. Alvara- robberies, [Vargas] any about Chris do, Johnson, supra; supra. it, shootings he talked to me about I’d do I help whatever could to him Finally, appellant sepa fails to brief out. rately to his contentions that he is entitled (Vol. 1011.) 12, p. relief both under the Texas and the United Any point States constitutions. of error con Q. you you’d Did tell him to talk the D.A. tending a violation of Texas Constitution you and see work what could out? separately setting supporting and not forth A. I told him I’d talk to the D.A. arguments inadequately and authorities is (Vol. 12, 1011.) briefed will not be addressed. McCam p. videotape State, Wilson, bridge (Tex.Cr.App. v. 712 499 interview shows Detective least S.W.2d times, 330, 1986); State, four said he would do what could to Dinkins v. 894 S.W.2d 350
389
State,
State,
v.
oped
Staley
also
887
(Tex.Cr.App.1995);
at trial. See
v.
799
Goodwin
885,
Riley
719,
(Tex.Cr.App.1994);
v.
894
(Tex.Cr.App.1990).3
723-725
S.W.2d
S.W.2d
State,
290,
(Tex.Cr.App.1993);
889
301
S.W.2d
forty-
points of error numbers
Appellant’s
719,
Illinois,
112 S.Ct.
Morgan v.
504 U.S.
through fifty-one
four
are overruled.
(1992).
2222,
In
v.
feetive assistance of counsel under the Sixth Points of error numbers six and seven Amendment the U.S. Constitution and Art. are overruled. §I by 10 of Texas denying the Constitution Appellant point avers in of error
him opportunity the to voir Kieke. dire eight number the trial court erred in granting challenge the State’s for cause to During venireper- voir dire of the venireperson Venireperson Collins. Collins Kieke, son the State challenges made four jury questionnaire stated he did not cause, for three of which by were overruled penalty. response believe in the death In the trial court. The State then asked Kieke questions both from State hypothetical question a respect spe with counsel, testified Collins he would answer the (provocation). cial question issue three The special way in such a issues as to avoid objection of appellant. allowed over the imposition penalty. death question negative, Kieke answered subject essentially stating properly Collins was to the she State’s could never find that challenge cause killing robbery of a for not because his views victim the robber capital on punishment clearly but he was a reasonable because something reaction to special stated might victim he would answer issues so provoke have done him. prevent imposition. as to its Wainwright v. response despite Kieke did not alter her Witt, supra; Staley, supra; attempts Holland v. to rehabilitate her on State, (Tex.Cr.App.1988); issue. The trial S.W.2d court then sustained the State, Smith v. (Tex.Cr.App. S.W.2d challenge State’s for cause. 1987). Finding no abuse of discretion We have held on several occasions that court, appellant’s point overrule 35.16(b)(3) Art. allows challenge the State to eight. error number venireperson cause a who indicates he or nine, White, ap error number she is biased the defendant. pellant the trial erred in supra; contends court ex Flores 871 S.W.2d cusing venireperson for cause Gallo. (Tex.Cr.App.1993); Guerra v. record opposed indicates Gallo the death Kieke’s penalty experiences past and testified his
response clearly indicated she could not army general and veteran find a combat would during robbery murder committed prevent being impartial him from provocation, as a fair response reasonable juror. thus indicating against appellant bias respect to special issue three. record Gallo he indicated could return verdict of supports ruling of the trial court and guilty they prove “if beyond a reasonable fails show abuse of discre doubt, your there ain’t no doubt in mind that Jacobs, Indeed, tion. supra, See at 402. During committed the crime.” voir entire of voir record dire of Kieke —some dire, initially Gallo testified he could not an-
four vacillating hour’s worth —shows a veni- special swer the three first issues such a reperson will great and we accord deference way imposition as to result the death to the court in decision the trial such Later, penalty. he could indicated answer Mooney circumstances. special facts. issues based How- 693 (Tex.Cr.App.1991). ever, question in response to a asked court, special answer Gallo stated he would fails to cite authorities or issue three in the affirmative as he would arguments make substantive with re- always mitigating find there to be sufficient spect to either his federal or Texas constitu- Whereupon, granted evidence. the court tional claims of denial of effective assistance challenge State’s for cause. resulting of counsel from the trial court’s *20 concerning venireperson supports action judge’s Kieke. The record the trial find- Dinkins, McCambridge, Gallo, supra, ing Based on su- due to his on the death views pra, Appellate penalty, and Rule of Texas Procedure would be follow the law unable to 74(f), we as inadequate- respect special overrule these claims the to issues. We have ly briefed. ruling held that a trial on such mat- court’s
391 12, August general voir on dire only the record tend the when ters should be reversed ease, Jacobs, concerning the questions 1991. No of shows a clear abuse discretion. etc., doubt, State, were 402; proof, reasonable burden of v. supra, at Davis jurors by State, the prospective to the 211, addressed (Tex.Cr.App.1989); Briddle v. 216 questions court, No appellant. the State or (Tex.Cr.App.1987), cert. de 742 379 S.W.2d why fifteen 643, 102 the 986,109 asked to determine L.Ed.2d were nied U.S. S.Ct. 488 Witt, general voir dire. (1987). present Wainwright could not also v. See jury. actually served on Holland, supra. One of the fifteen supra; Staley, supra; testimony entirety in When viewed its Gallo’s contemplat as that term is As no voir dire support trial deci is sufficient court’s 35.17(2) actually place took on ed under art. challenge grant for cause. sion State’s August appellant and fails show nine is Point of error number overruled. way by in what did was harmed he un right to a shuffle place, appellant’s take avers, point error Appellant in Procedure, art. der Code of Criminal Texas ten, improperly ex number the trial court Finally, the trial 35.11 was not violated. Wycoff. venireperson Wy- cused for cause failing in writs of court did err issue that, religious eoff testified due to or State, S.W.2d attachment. Jackson personal penally, beliefs the death (Tex.Cr.App.1988); Porter special in such a could not answer issues S.W.2d way imposition death so as to allow Appellant’s point error number eleven always penalty. He testified that he would overruled. special in the answer issue three affirmative appellant
unless
testified he committed the
twelve,
points of
numbers
error
In
eyewitnesses
murder or unless at least two
fourteen,
and
contends
thirteen
the murder.
testified
committed
by conducting voir dire of
trial court erred
White,
held,
supra,
previously
We
in
following
venirepersons
groups
small
properly
trial court
sustained the State’s
panel
general voir
the entire
dire
juror
prospective
challenge for cause
voir
con
prior to individual
dire.
who stated she could not convict the defen
process
his due
this action violated
tends
capital
eyewitness
dant of
murder absent
rights under
the United States and
both
testimony.
See also Caldwell
818 Texas Constitutions.
790, 791,
(Tex.Cr.App.1991)
35.17(2) of
Texas
of Crim-
Article
Code
(Tex.Cr.
Barnard v.
393
Court,
Supreme
States
persons
five
as
United
County appointed
of Collin
Partida,
482, 97
430
in
v.
U.S.
January
Castaneda
grand jury commissioners for the
(1977)
1272,
(no
498
established
51 L.Ed.2d
than five commissioners S.Ct.
1991 Term
more
19.01(a)),
determining
equal
if an
three-part
for
test
may
appointed pursuant to art.
be
the
occurred in
selec
protection violation has
they
that
were not
was no evidence
there
19.01(a)
on
grand jury. The burden rests
to
tion of a
qualified under art.
serve.
“(2)
held,
defendant,
...
per-
to
twenty
the
the Court
no
that the
court found
evidence
underrepresented
jurors
quali-
group is
not
demonstrate the
grand
as
were
sons selected
proportion
group
of
in
by comparing the
the
to
as
art. 19.08. The
fied
serve
such under
proportion
to
called
population
the
the
no
of racial discrimina-
total
court found
evidence
period of time.”
significant
respect
grand
of
to
over a
tion with
to selection
serve
Castaneda,
494,
97
at 1280.
S.Ct.
jurors.
that,
allegation
an
of
We have held
absent
present
to
evi
Appellant failed
injury resulting
fraud or
from
selection of
Hispanics in
of
Col
percentage
dence of the
grand jurors, minor
from
deviations
County.
no
as
lin
He offered
evidence
statutory procedure do
rise to a level
not
jury
grand
that
composition of the
racial
State,
Gentry
requiring
770
reversal.
him,
twenty
except
two of the
that
indicted
(Tex.Cr.App.1988); Martinez v.
780
S.W.2d
Furthermore,
grand jurors
white.
he
were
State,
180, 114
874
134 Tex.Crim.
S.W.2d
dispari
produce
has
failed
Becker,
(App.1938); Ex
459
442
parte
S.W.2d
ty
percentage of residents
between the
Appellant
not
(Tex.Cr.App.1970).
does
al
County
Hispanic
per
that
Collin
process
lege any fraud in the
used to select
centage of
summoned for service
residents
grand jurors
man
nor does
show that the
County
jurors
are His
grand
in Collin
that
grand jury
in
ner which the
was selected was
panic. Appellant
satisfy
fails to
the second
injurious
rights. Appellant fails
to his
part
set forth Castaneda. We
test
evidence,
support,
that
with
his assertion
appellant’s point of error number
overrule
grand jury
there
six
were
commissioners
twenty-three.
statutory
violation of the
maximum of five.
twenty-
of error number
findings
general
As a
rule the
of the trial
four, appellant contends he was denied his
pretrial hearing
court in a
are not disturbed
present
right
at certain
under art. 33.03 to be
appeal
by
showing
on
absent a
August
proceedings held on
On
the trial court abused its discretion. Lucas
jurors
day
prospective
were
about ten
State,
(Tex.Cr.App.1989);
35
qualified
instructions from the
and received
(Tex.Cr.App.
Russell v.
with the selection of the occurring presence ceedings without their twenty-two jury. Point of error number Subsequent on record. and so indicated overruled. ly, quash State filed motion to motion, hearing appel At the venire. it correctly asserts objection his to it. The trial lant indicated equal a violation the U.S. Constitution’s complied wishes and court try a defen protection clause for State motion. denied state’s grand dant under indictment issued not, may defendant jury persons his or color We have held from which race actions, Ap- create reversible error. Hernan own have been excluded the State. case, affirmatively Texas, present pellant, in the dez 347 U.S. S.Ct. August present to be at the (1954); L.Ed. Muniz v. 672 S.W.2d waived proceedings, a confrontation clause-based *23 T.B., 127, 1419, right granted 114 under Texas Code of Criminal ex rel. 511 U.S. 128 S.Ct. (1994). Procedure 33.03. We have held that this L.Ed.2d 89 denied, right, subject even to harmless equal protec- not make an does State, analysis. error McMahon v. 582 Batson, Powers, McCollum, claim tion and (Tex.Cr.App.1978), S.W.2d 786 cert. denied equal protection J.E.B. are cases. In and 919, 238,
444 100 62 U.S. S.Ct. L.Ed.2d 175 event, clearly the record demonstrates (1978). State, also See Weber peremptory the State exercised its chal- 394, 1992). (Tex.App. Ap 396 —Beaumont in lenges racially a neutral manner. pellant right pres was denied to be Furthermore, object ent —he waived it. he venire, quash ed to to the State’s motion the Prospective A. Juror Holmes only method (Points which effects Twenty-Five Error
August
proceedings
21
could have been elimi
Through Thirty)
holdings
nated.
in Curtis v.
519
Our
juror questionnaire, venireperson
In her
Beasley
(Tex.Cr.App.1975),
S.W.2d 883
never,
Holmes stated “I could
under
(Tex.Cr.App.1982)
B.
Diaz
Juror
they
clearly
were
demonstrate
voir dire
great
expressed
re-
Prospective Juror Diaz
that the State
to the State and
not favorable
ap-
impose
penalty
luctance to
the death
having absolutely
very good
had
reasons —
pellant
appellant’s youth.
tes-
because of
He
want-
nothing
with their race —for not
to do
very
that he
to a
tified
would hold
State
jury.
exercising
its
ing either on the
during
high
proof
punishment
burden of
*24
Diaz,
challenges to Holmes and
peremptory
phase
he
of the trial. Diaz stated
would
that
merely acting
a manner
the State was
proof
mitigation
place the burden of
as to
on
system encour-
peremptory challenge
the
the
and that
the burden would be
State
juries
of
that are devoid
ages
selection
—the
beyond
the
a
“treated
same as
reasonable
markedly partial
are
to
of members who
Finally,
doubt.”
Diaz testified that
life
Illinois, 493 U.S.
either side. See Holland v.
(without
prison
parole)
appropriate
was an
(1990).
474,
803,
110
Q.
Judge, so the record is
[Prosecutor]:
finding.
part
of
court in so
Fur
on
clear,
making
finding
is
Court
thermore, appellant fails to show the State’s
my explanations
racially
that
are
neu-
racially-neutral
given
justify
explanations
to
tral?
challenges
peremptory
were mere
these two
A.
[The Court]: It is.
ly
pretextural.
or were
See
sham
legitimate
record
shows the State had
Williams, supra,
impartiality
venireper-
as
concerns
to
Appellant’s points of error numbers twen-
Appellant
sons Diaz and
fails to
Holmes.
through thirty-six
overruled.4
ty-five
are
any purposeful
show
discrimination on the
Indeed,
thirty-seven
part
points
numbers
of the State.
does not
error
through forty-one, appellant
prima
showing
facie
contends
make
State’s
challenges
challenges
racially
very
peremptory
peremptory
were
motivat
exercise
Sixth,
ed,
Eighth and
required
to
violates the
which
is
do.
State
Wheatfall
to the
Consti-
(Tex.Cr.App.1994), Fourteenth Amendments
U.S.
—
denied,
I,
10,13
U.S. -,
742, 130
§§
as Article
cert.
tution as well
115 S.Ct.
(1995).
venireperson’s
and that Article
Each
re-
the Texas Constitution
L.Ed.2d
authority
support
position
to
that a differ
Supreme
4. The United States
Court’s decision
I,
-,
Elem,
Article
ent
would be indicated under
Purkett v.
- U.S.
115 S.Ct.
result
Constitution,
(1995), although
§§
or 19 of the Texas
charge in jury guilt/innocenee to the the complained-of jury the in include words the trial, phrase in phase including of the the charge, determining the a test for whether may knowledge “intent or acts inferred charge jury requires is set error reversal or spoken.” done words was re State forth in Almanza v. S.W.2d 157 quired, capital in order to convict of murder, beyond prove doubt reasonable charge subject “If error in was the the the that the murder in was committed the course court, timely objection in trial of a the then robbery attempted robbery. aof or Tex.Pe required reversal error is ‘calculated 19.03(a)(2). nal Code defendant,’ injure of the which in robbery The trial court defined its no more than must be some means there charge thusly: jury person to the “A com- Al- harm to from error.” accused manza, robbery committing degree mits if in the course of at 171. “... actual [T]he theft, hereinafter, as assayed light defined and with intent harm must be in of the entire charge, evidence, property, jury to obtain or maintain control of the the state of the includ- intentionally knowingly bodily ing weight proba- contested causes issues and evidence, injury to nor argument another.” Neither the State tive of counsel and appellant objected portion to this of the other relevant revealed information charge; object trial nor did either to the the record of the trial whole.” Alman- as za, “knowingly.” court’s definition of at 171. respect objection por- provocation
No
was made to
other
charge
guilt/in-
shooting
Turski
the back
jury
given
subsequently
of the
at the
Mr.
tion
jury
phase. An
weapon.
examination
reloading
nocence
head
of the
after
charge
properly
court
shows
fifty-third point of
Appellant’s
error
charged
jury on
of rob-
the definitions
overruled.
intentionally,
bery, knowingly,
reasonable
(Transcript,
capital
vol.
doubt
murder.
fifty-four
points
of error numbers
1048-1059.)
appel-
pp.
The evidence
appellant contends various
through fifty-six,
videotaped
guilt
including
lant’s
written
—
in the
were made
the trial court
errors
overwhelming. Accordingly,
confessions —is
mitigation issue to the
of the
submission
Almanza,
based on
hold
error
follow
jury. The trial court submitted the
including
jury charge
at the
the words
Issue Three:
ing
jury
Special
phase
appellant ob-
guilVinnocence
to which
“Whether, taking into
all of the
consideration
beyond
jects is harmless
a reasonable doubt.
evidence, including the
circumstances
fifty-two
Appellant’s point
error number
offense, the
character and back
defendant’s
is overruled.
culpability
personal
ground,
moral
the trial court
avers
defendant,
mitigating
there is a sufficient
include,
failing
charge
in its
to the
erred
circumstance or circumstances
warrant
requested
jury
punishment phase,
at the
imprisonment
of life
rather
sentence
*26
provocation.
Article
submission
imposed.”
than a death sentence be
37.071(b)(3)provides
the trial
shall
that
court
language
cur-
The
is that which is
above
provocation
jury
the
to
submit
issue
the
37.071(e);
partic-
Article
rently found in
by
“In order
raise
raised
the evidence.
to
in
section
not
effect at the time of
ular
was
provocation,
issue
there
evi
the
must be
in
at
appellant’s trial. Article 37.071
effect
just prior
dence of the
conduct
to
deceased’s
require
jury
the
in-
time did
be
to
death
that evidence must be sufficient
mitigating
to
in
structed
consider
evidence
State,
provocation.”
be considered
Lucas v.
assessing punishment.
35,
(Tex.Cr.App.1989);
65
Her
State,
(Tex.Cr.App.
v.
643
nandez
S.W.2d 397
jury
Supreme
Court has held
the
1982).
permitted
mitigating
to
must be
consider
evidence.
Appellant’s own
states
262,
written confession
Texas,
96
Jur
ele
v.
428 U.S.
he forced Mr. Turski onto his knees in a back
2950,
(1976); Eddings
Article 37.071
be unconstitutional as
Appellant’s points
fifty-
of error numbers
plied
adequately
it failed to
because
instruct
fifty-six
through
four
are overruled.
jmy
mitigating
consider his
evidence
contends,
answering
special
points
of er
issues.
fifty-seven, fifty-eight
ror
fifty-nine,
held
We have
is not
Article 37.071
phase
punishment
trial court erred
failing
provi
unconstitutional for
contain
denying
special requested jury
his three
in
jury’s
sion that directs and instructs the
con
Appellant submitted three re
structions.
mitigating
presented
sideration of
quested special jury
regarding
instructions
punishment phase
at the
as such evidence
evidence, i.e.,
mitigating
appellant’s troubled
given
jury through
could
effect
family history, appellant’s drug
ap
use
special issues submitted
Gosch v.
to them.
pellant’s history of alcoholism. Evidence was
399 you juror must consider. Can which a mitigation evidence raised dur sideration jail as a miti- good record ing special consideration of the consider a trial in its State, gating 858 430 circumstance? issues. v. S.W.2d Gunter State, (Tex.Cr.App.1993); Nobles v. appellant’s motion The trial denied court (Tex.Cr.App.1992); Butler v. S.W.2d 503 objected to the court’s appellant timely State, (Tex.Cr.App.1994). S.W.2d venirepersons ruling. Of the sixteen accordingly Appellant was entitled to opportunity appellant was denied which special requiring jury to con instructions above, appel listed questions to ask the four use, drug sider alcoholism challenges as to peremptory lant exercised family mitigating circum background as excused cause eight. Another five were stances. challenges by peremptory exercised fifty- Appellant’s points of error numbers venirepersons, Kem- the State. Three of seven, fifty-nine fifty-eight are overruled. mett, ultimately Pridgen Young, served jury. Appellant cannot show on sixty points of error numbers venireperson who was respect error with through sixty-five (argued collectively by ap panel. excused from the Collins pellant), appellant avers that trial court’s (Tex.Cr.App.1976); S.W.2d 368 Simon question permit refusal to six they venirepersons teen as to whether could as mitigating certain evidence cir is limited consider His claim of error thus to his appellant’s rights being prevented examining venireper- cumstances violated under from Kemmett, Pridgen both and United Young the Texas States Constitu as to sons tions. feelings regarding good evidence of their intoxication, record, jail voluntary alcohol or permitted appellant to ask trial court family addiction, drug and troubled back- venireperson Canup venireperson if the could ground mitigating circumstances. youthful age a mitigating to be cir- consider Appellant began inquire cumstance. then questioning A trial court’s restriction venireperson as to whether or not the venirepersons under an is reviewed abuse venireperson could consider other factual Caldwell, swpra; discretion standard. Wool object- mitigating circumstances. The State ridge (Tex.Cr.App ed. moved the Court to ask the .1992). Questions require pro that would following questions: venireperson the four jurors spective themselves as to to commit *28 they in might how resolve factual issues provides voluntary 1. that intoxi- The law State, Harkey v. 785 improper. case does not rise the level cation which to 1990). (Tex.App 876 insanity S.W.2d temporary mitigating a . —Austin juror a circumstance which must con- (Tex.Cr.App.1994), State, 344 881 S.W.2d Coleman you voluntary consider in- sider. Can — denied, U.S. -, 115 t. cer which does not rise to the toxication 763, (1995), a capital L.Ed.2d 660 S.Ct. 130 temporary insanity miti- legal a [sic] case, sought several to ask venire- gating circumstance? they could consider persons as to whether a provides 2. The law that troubled fami- family history good appellant’s troubled background mitigating a circum- ly jail mitigating circumstances that conduct as juror which a must consider. stance penalty. call a lesser The trial would for you family troubled consider back- Can objection court the State’s to the sustained mitigating ground as circumstance? juror to question trying to commit provides 3. law that alcoholism or (his family considering history) troubled that mitigating circum- drug addiction is Coleman, mitigating as a circumstance. juror consider. stance which must court not the trial did 350. We held drug you consider alcoholism or Can refusing ap to its in allow abuse discretion mitigating as a circumstance? addiction pecu on facts pellant questions to ask based “Moreover, the to the on trial. Finally, provides good liar case the law consider all the venireperson she would mitigating circumstance said jail record is a 400 answering special sixty through in
evidence
issues
Points of error numbers
six-
instructions;
ty-five
follow the trial court’s
the law
are overruled.
require
give any
does not
a veniremember to
in
Appellant,
point of error num
specified weight
particular piece
to a
of evi
sixty-six,
ber
the trial court
contends
erred
Coleman,
Allridge
dence.”
at 351. See also
in overruling
challenge for cause
State,
146,
762 S.W.2d
163-64
venireperson
to
Yoast. The voir dire of veni-
(Tex.Cr.App.1988),
denied,
1040,
cert.
U.S.
S.Ct.
reperson Yoast was extensive and covered
1176,
(1988); White, supra;
venirepersons to “commit themselves” to following questions: son Yoast the two mitigating consider such evidence as circum- Furthermore, appellant Q. you stances. ... I [Prosecutor] fails of- discussed with Kemmet, venirepersons general portion fer dire voir this Pridgen objectionable Young or this were idea of the difference be- expressed any inability unwillingness or tween deliberateness and intentional. Now, answering consider all of willing the evidence I’m to bet that before special any inability unwilling- you or that if issues came into this courtroom anybody you’d ness to follow the trial court’s instructions. had have defined asked difference, Additionally, appellant provided opportu- any, the two—the would appellant’s youth, slight? nities to discuss troubled have been Is that a fair state- family history, alcohol/drug ment? character mitigating during use as circumstances indi- A. Yes. [Yoast] during subpanel vidual voir dire and voir dire Q. every expectation ... We have respect opportuni-
with to Kemmet. Similar trial that the term intentional conduct provided respect Pridgen ties were fact, will, you so that be defined Young. Appellant, assuming arguendo you starting give will some not, inapplicable, that Coleman is has based you proceed suggest from. I would record, on the shown error and we are person is that a that definition required accept allegations of error not intentionally who acts with a con- acts supported by the record. Beck v. *29 objective scious or desire to cause the S.W.2d 786 right? result. All Finally, while contends he is en- Okay. A. titled to relief under both the U.S. and Texas Q. there, key being words conscious Constitutions, appellant sepa- fails to brief objective you agree or desire. Do rately his state and federal constitutional ar- point- with me that it of would be kind guments, argu- and fails to offer substantive you less for the law to ask the same each, analysis required by ments and question twice? 74(f) Appellate Texas Rule of Procedure and A. Yeah. Thus, McCambridge, supra points me, then, Q. Okay. contending you agree error a violation of the Texas Do with inadequately certainly Constitution are briefed and that it stands to reason that Dinkins, supra; question conduct need not be addressed. about deliberate Goodwin, McCambridge, supra; supra asking there is seems to be whether you helpful Do have simply been in the least? something more than intention- questions? al conduct? you. A. Yes. it has. Thank I feel
A. Yes. venireperson Yoast sever- asked venireperson shows that Yoast record concerning intentional and delib- questions al understood, on his answers to the based erate. questions, a above that there is difference Now, in Q. [Appellant] Okay. that case between intentional and deliberate conduct. premeditation or what you where have 515-516, pp. venireperson On Yoast was calling premeditation, I we’ve been question asked an on this issue. additional mean, I, you did in Mr. I think what Q. Now, I’ve talked in terms of [State] example use some Blake’s premeditation gave you I and an ex- up premeditation to come with what ample general voir dire about you Isn’t that called deliberateness. you walking you the door out and see true? boss, your might shake his hand. You A. Possible. Maybe consider that intentional. not. premeditation, Q. you But if take out that you him Whereas see across the room just any difference? there’s well, decide, you going go I’m and Apparently, yes. A. Okay. and shake his over there hand. Q. You that? agree with might consider that You deliberate as A. Yes. Maybe not. opposed to intentional. It useful to think of seems the deliber- challenge for Appellant, cause to after choosing ation in terms of between denied, venireperson Yoast was exercised his options, person that if a has at least (fifteenth) peremptory challenge final it,
put
thought
that amount of
into
if Yoast was excused.
to a choice
that amounts
between vari-
rulings
have
the trial court’s
We
held that
options,
ous
then it would seem fair to
respect
challenge
venireperson
to a
to a
suggest
displays
that that
or demon-
light
all of
must be
the an
reviewed
type
certain
[a]
strates
deliberation.
venireperson
given by
during
voir
swers
just
example,
you’ve got
maybe
For
Mooney
supra.
dire.
We have also
murder,
store,
somebody walks into the
challenge
question
held that the
of whether
points
you, give
your
gun
money,
me
wrongfully
for cause was
denied
bam,
might
out. You
walks
consider
subject
court is
to an abuse
discretion
intentional; you might consider that delib-
standard.
sixty-sixth point of error is overruled. Appellant claims is his written statement
not admissible because it does not show sixty-sev In of error number “knowingly, intelligently and its face he en, appellant avers trial court erred in voluntarily” rights waived the enumerated 38.22(2)(a). permitting the state to conduct in-court art. Tex.Code Crim.Proc.Ann. Vargas, presence identification of in the majority disagrees, holding The that article ease-in-ehief, jury. During it requirements the State’s 38.22’s waiver were met based pro called as a witness and' language” Shawn Robinson upon certain “additional on the posed identify Vargas statement, him to have presumably the lan- face objection, jury’s presence, guage pages over set forth on 384-85 of the ma- Vargas brought jority’s immediately which was overruled. was opinion appearing shackles, jail into the courtroom in dressed in appellant’s signature. Majority op. above clothes, guarded by County two Collin clarify I 386. write to what “additional deputy sheriffs. language” it is and how satisfies the waiver emphasize requirement and also to the man- appellant’s objection, alleged the in- datory requirement. nature of the waiver Vargas prejudicial, court identification of provides Article 38.22 that a statement of However, unnecessary. ap- irrelevant and against him an accused is not admissible pellant Vargas pres- himself mentioned (1) unless the statement shows that he was arrested, thereby making ent when he was (a) rights of the listed in informed Subsection his identification relevant and admissible un- (2) intelligently, knowingly, that he der Texas Rules of Criminal Evidence 401 voluntarily rights.1 Warning waived those and 402. separate components. and waiver are As Furthermore, appellant any fails to cite this Court stated Clark authority supporting his contention that the (Tex.Crim.App.1982), “the error, Therefore, any, is error. reversible sufficiency warnings required by of the Mi- nothing preserved is for our review. and Art. and the randa voluntariness McCambridge, supra; Overton v. protected by rights of the waiver of the those S.W.2d 556 warnings separate are two distinct and re- quirements be met for a confes- which must sixty-seven Point of error number over- Further, sion to be admissible.” article 38.22 ruled. explicitly requires that these two matters be Al- judgment of the trial court is affirmed. shown “on the face of the statement.” (2) may provides entirety: any 1. Article in its statement he makes be used as 38.22 court; against him in Sec. 2. No written statement made an ac- (3) right lawyer present he has the to have a interrogation cused as a result of custodial prior during any question- to advise him to and against any admissible as evidence him in ing; proceeding criminal unless it is shown on the (4) employ lawyer, if he is unable to he has face of the statement that: right lawyer appointed to have a to advise accused, (a) prior making the state- during any prior questioning; him to and ment, magistrate either received from a (5) right to terminate the he has the inter- warning provided in Article 15.17 of this code time; view at person or received from the to whom the state- accused, (b) during prior to and warning ment is made a that: statement, knowingly, making (1)he intelli- has the to remain silent and not gently, voluntarily waived the set make statement at all and that state- warning prescribed may out in the Subsection him at his ment he makes trial; be used *31 (a) of this section. placement specific in must be and that he read them. The though requiring what them statement, does warnings top page, on the article 88.22 at the of the before shown of the any specific statement, as to requirements appel- not set forth that appellant’s evidence warning and a how statement should reflect warnings making his before lant received waiver. warning re- This statement. satisfies (a). sig- Appellant’s quirement of Subsection top Appellant’s statement is denoted at of evi- at the bottom the statement nature The as “VOLUNTARY STATEMENT.” everything contained approval dences duly that “was statement states appel- final that thereon. The clause states following mat- and advised” of the warned request presence of the advice or ters, tracking nearly language lant did verbatim (a): attorney or ask statement be that from subsection Reading this clause in connection stopped. (1) right I have to remain silent warnings at state- top any any not make statement at all and ment, knowingly that apparent it is against I me statement make will be used trial; rights attorney to an and to re- my waived his at “Volun- main silent.2 statement is titled (2) Any I used as statement make will be appel- and the tary signature Statement” court; against me in evidence signature “giving as the lant is labeled of one (3) right lawyer pres- I have the a to have voluntary statement.” All of these matters prior during ques- ent to advise me to and appellant’s knowing, intelligent tioning; voluntary compare waiver. See and Cannon (4) employ lawyer, If I am unable I (Tex.Crim.App. right lawyer appointed have the have (statement 1985) “Voluntary titled State me) (without prior cost to advise me stating that rights ment” and were “volun- during my questioning; tarily complied waiv[ed]” with subsection (4) I have the [sic] to terminate (b)). out, points prac As the Court the best interview at time statement, express for an in the tice would be by appellant. Each of these initialled language of article the accused following The statement closes with the during the “prior making to and of the state clause: ment, knowingly, intelligently, and voluntari page I have read each of this statement ly rights.” See [above described] waived the consisting pages, page of 2 of which each (Tex. Penny v. corrections, my signature, bears Crim.App.1985) (approving paragraph of last initials, my certify I bear and I have statement, which “I further af written read request for presence made no the advice or knowingly, vol intelligently firm that I lawyer during any part of a before or untarily rights prior to and waived above this statement nor at time before it statement.”). making of during the this did I request was finished that this state- However, a statement that does not so ex stopped. I I ment be declare that was also provide necessarily is not inadmissi plicitly prompted say in this not told or what to case, a look at In this common sense ble. statement. reveals it the statement satisfies clause, Following signed the statement is requirements of article 38.22. by appellant. signature ap- Under line voluntary “Signature person giving pears majority points also that the trial out statement.” adequate found waiver of court rights on the face of statement based Appellant’s initialling of each of the five warnings appellant’s initialling at upon matters evidences that he was informed Although any- the final can be used clause does not state That statements thing being "right” appellant; about the statement used as evidence is not a him at a trial trial, against appellant “right” rather, warned, that is not it is a fact that should (b) appel- requires be waived. Subsection Appellant’s reflects that he of. statement warning ] the out in the lant prescribed set "waive! properly informed of that fact. added) (a)." (emphasis Subsection *32 top majority statement at all. It also includes an admoni- the statement. While any may against disapprove finding, I tion that statement be used does not of this would part, in initialling warnings the defendant court. This latter like emphasize that of the 2(a)(2), identify right in does not a not that Sec. does evidence waiver. susceptible to waiver a defendant. The comments, opin- I concur in the With these whether state- issue thus becomes majority join judgment ion of the ment on its face that he waived his shows the Court. “right silent and not make to remain statement at all.” MEYERS, J., joins. Appellant’s written statement on its shows KELLER, Judge, concurring. (a) fully appellant face that: informed of My understanding appellant’s claim un- (b) silent, right to remain he acknowl- forty-two der of error differs somewhat right edged (appellant that he had this ini- appears majority’s from what to me to be the (c) warnings), tialed the he thereafter did issue, it, understanding. perceive I The as waiver, not silent. This shows actual remain rights appellant not whether waived the set it it on the face of the statement.1 shows 2(a), out in Art. 38.22 See. but whether his conjunction The of these three circumstances statement shows on its face that he did so. requirements thus meets the of Art. 38.22. a waiver
The directive that statement show rights requires on its face a discussion of the question The next is whether the state- 2(a). under listed Sec. appellant ment shows on its face that waived right lawyer, his to have a and to have one 2(b) requires “rights Sec. waiver of the set necessary. if appointed his written state- (a).” 2(a), out in ... howev- Subsection Sec. ment, appellant that he “made no declares er, designates only four five matters request presence advice or of a law- for the (2) rights. that section as Subsection states: yer during any part of state- before or “Any may I statement make be used as statement shows ment.” Since the written in court.” me Unlike the appellant that he had a that was informed subsections, rights which listed the other right lawyer right lawyer to have a to a explicitly designated “rights,” the mat- establishes, appointed, the above statement (2) right ter listed in subsection is not a statement, on the face of the defendant; is, anything, right it rights. waived these susceptible belonging to the State. It is not reason, to waiver a defendant. For this question final is whether the state- 2(b) specifically requires and because Sec. ment shows on its face waived 2(a), only “rights” waiver Sec. Art. right to terminate the interview. The require 38.22 does not a waiver associated written statement shows that (2). with subsection right. in- informed His statement question explicit I turn to the of whether cludes an affirmation that he did now request stopped at appellant’s statement shows on its face a that the statement be (1), rights time before he was finished. This fact estab- waiver of the listed subsections (cid:127) (5). (1) (3), (4), explains requirements of Art. 38.22 Subsection lishes (5). regard right to remain silent and not make were met with to subsection counsel, Supreme upon Supreme though, has held dissent Court cases Court relies that, proposition post-wam- for the that an accused’s can be clear- "in at least some cases waiver (i.e., waiver) ing explicit silence lack of combined ly the actions and words of the inferred from enough establish Butler, with a confession are not person interrogated.” North Carolina v. deal waiver. But the cases cited the dissent 369, 373, 441 U.S. 99 S.Ct. right waiver of the to counsel. The fact that (1979). In to draw that infer- L.Ed.2d 286 ence, order being person speaks told that he has a after importance suggests of evi- the Court is, speak right as a matter of common not to (1) understanding by the accused of dence of sense, right directly probative waiver of the (2) indicating a course of conduct silent, person fact that a remain whereas the components present Both exist in the waiver. speaks being right after told that he has a case. Even in the area of counsel is not. *33 Ibid. its enactment.2 Where in the at the time foregoing, I concur light In of the of unambiguous, the is clear and the statute judgment of the Court. to mean must be understood Legislature WHITE, J., McCORMICK, P.J., join and it is not for the expressed, it what has 42 and disposition of error from such a statute. to add or subtract courts join judgment Court. otherwise 473, State, (Quoting v. 808 S.W.2d Coit Ibid. ap Only (Tex.Cr.App.1991)). where 475 BAIRD, Judge, dissenting. plain language would plication of a statute’s the trial original submission we held On result, Legisla which the to an absurd lead admitting appellant’s written judge erred intended, should possibly not have ture could it failed to meet the statu- statement because the literal text of the statute. depart we from tory requirements of Tex.Code Crim.Proe. Legislature presume the further Ibid. We 2(b). majority 38.22, Today, § Ann. art. statutory language to intended for all the finds prior holding and now reverses our Consequently, we meaning and effect. have knowingly, intelligently and volun- appellant just statute not an isolat interpret the entire 2(a) 38.22, rights. § I tarily art. waived his State, Dillehey v. 815 S.W.2d ed section. Judge Judge agree with Overstreet and, 623, (Tex.Cr.App.1991); Tex.Gov’t point is treatment of this errone- Mansfield’s mind, § this in we Ann. 311.021. With Code ous, separately Judge write to address but 38.22, § 2. upon interpret art. are called concurring opinion I believe is Keller’s which equally erroneous.1 II.
I.
436,
Arizona,
In
v.
384 U.S.
Miranda
duty
judiciary
interpret
It is the
(1966),
1602,
the Su-
1. On submission added.) opinion reversed the sis of the Court which However, Maloney’s position supported Judge is not judgment has of the trial court. Cannon, paused Although to note Cannon. change of heart and offers his concurrence had "Voluntary State- was labeled the statement ment,” explain present position. Today, Judge finding our com- that was not reason Maloney argues: Instead, 38.22, 2(b). pliance § we re- with art. appellant did ... The final clause states that showed, upon the fact that the statement lied presence request of an attor- not the advice or 38.22, face, warnings required by art. its stopped. ney or ask that the statement 2(a) immediately was the fol- thereafter Reading this clause in connection with lowing waiver: statement, warnings top it is at the continuing rights rights which The above appellant rights apparent waived his to an stage pro- urged by me at can be silent, knowledge attorney and to remain with voluntarily hereby waive ceedings, do and I rights what those are. The statement as to person rights give to the ... these signature “Voluntary and the titled Statement" being made the follow- whom this statement is signature one is labeled as the ing statement.... voluntary these "giving statement." All language compliance with This evinced Ibid. knowing, intelligent "Voluntary matters evidence the mere label of art. voluntary compliance Cannon, Sub- waiver in Judge 691 S.W.2d at Statement.” (b). compare See and intentionally section a-fee- Maloney Cannon misstates Cannon in (state- (Tex.Cr.App.1985) justify his result. ble effort stating "Voluntary titled Statement” ment supplied indi- "voluntarily complied emphasis is unless otherwise rights 2. All were waived” (b)). cated. with subsection pro- Legislature amended art. 38.22 which III.
vides: Judge Keller concludes that rights in- waived his Miranda because the Sec. 2. No written statement made stant statement establishes on its face that interroga- accused as a result of custodial was advised of his art. under
tion
him
is admissible
*34
2(a).
38.22,
Judge
§
Keller states:
proceeding
criminal
unless it
is
Appellant’s
shown on the
the statement
that:
written statement shows on
face of
(a) appellant
fully
its face that:
in-
(a)
accused, prior making
the state-
silent, (b)
right
formed of the
to remain
he
ment,
magistrate
either received from a
acknowledged
right
(ap-
he had this
warning provided
in Article 15.17 of
(c)
pellant
warnings),
initialed
he
person
this code or received from the
thereafter did not remain silent. This
warning
whom the
is made a
statement
waiver,
shows actual
and it shows it on the
that:
conjunction
face of the statement. The
(1)
right
he has the
to remain silent and
these three circumstances thus meets the
not make
statement at all and that
requirement Art. 38.22.
may
against
he makes
be used
statement
Ante,
(Keller,
concurring).
at 404-405
J.
trial;
him at his
contrary
This “circumstantial” conclusion is
(2) any
may
statement he makes
be
plain language
of the statute and
both
court;
used as evidence
him in
Supreme
precedent.
United States
Court
(3)
right
lawyer
he has the
to have a
A.
present
prior
during
him
to advise
to and
38.22,
requirement of art.
any questioning;
The waiver
vides that these
ligently
Art.
rights;
ment.”
first,
making
section
set out in the
The statute has two
they
ligently,
tioning; and
has
advise
(b)
(4)
38.22,
[*]
are “shown on the
and, second,
if he is unable to
Art.
him
(a)
right
accused,
§
the accused be advised of his
[*]
voluntarily
2(a)
prior
38.22, §
voluntarily
this section.
to have
safeguards
warning prescribed by
statement,
[*]
prior
to and
that he
procedural safeguards:
(b).
2.
waive those
employ lawyer,
lawyer appointed
to and
[*]
face of
waived the
during any ques-
are satisfied
knowingly,
The statute
knowingly,
Custodial
[*]
during
the state-
rights.
rights
state-
intel-
intel-
[*]
Sub-
only
pro-
Miranda,
where the Court made it clear that waiver
would
§
tually obtained.
after
2(b)
S.Ct.
Carnley v.
applicable here:
simply from the silence of the accused
...
thing
impermissible.
Presuming
dence which
offered counsel but
derstandingly
fact
[A]
was added in
there must be
warnings
884,
that a
384 U.S.
less is
valid waiver will not be
presumed:
Cochran,
waiver
not waiver.
confession
show, that an accused was
[8
rejected
at
A
The record
L.Ed.2d
statement we made in
475,
response
given
an
from a silent record is
intelligently and un-
allegation
lice have any incarcerated, all began any and a second at and was still not make statement against me interrogation from a statement was I make will be used which statement trial, attempt trial; my At the defendant’s obtained. the fruits of the second interro- suppress (2) I be used Any make will statement gation appealed. appeal and he On failed court; against me as evidence on the vol- Supreme Arizona Court focused (3) lawyer have a right I have and held that untariness of the confession during prior to and present to advise me voluntarily confessed because the defendant questioning; right voluntarily to coun- he had waived (4) lawyer, I employ If I am unable sel.4 lawyer appointed right to have have the me) (without prior to to advise me cost Supreme Court re-
The United States during my questioning; versed, holding Supreme Arizona Court Id., Edwards, 206, together.” by merging them P.2d 72 be blurred 122 Ariz. 4. State (1979). at 494. U.S. at 105 S.Ct. holding in Smith v. Court reaffirmed this
5. The of the instant Judge treatment Mansfield's Illinois, U.S. 105 S.Ct. 83 L.Ed.2d treat- as the erroneous of error is the same (1984), stating: and waiver are “Invocation Supreme in Edwards. Court inquiries, ment of the Arizona entirely and the two must not distinct (5) rights knowingly, intelligently I to terminate the and that he have voluntarily Anything interview at time. waived them. less in-
renders the statement inadmissible. To terpret ignore this statute otherwise is to its page I have read of this each statement plain Today, majority language. of this consisting page(s), each [#’s omitted] palatable in order to reach a result is Court page my signature, of which bears willing presume knowing, intelligent, corrections, initials, my I bear 2(a) 38.22, voluntary § waiver of the certify that the facts contained herein are merely from the fact a statement was certify I I true and correct. further eventually interpretation This ren- obtained. request have made no for the advice or meaningless ders art. 38.22 and contradicts presence lawyer during any of a before Miranda. statement, part of this nor at time comments, join Judge these I Over- With request it I before was finished did dissenting opinion. street’s stopped. this statement be I also declare prompted I that was not told or what to OVERSTREET, J., joins opinion. say in this statement. Appellant’s appear initials on the statement OVERSTREET, Judge, dissenting. 2(a) trial, rights. next to the art. At *36 forty-two, appel- In of error number interrogated appellant the detective who tes- lant trial court in contends the erred [appellant] rights” tified “had he read those admitting into evidence a n writtenstatement and then told “if he understood accused, of the it did not meet the because them, I him them wanted to initial which he requirements of Texas of Criminal Pro- Code may Although did.” the instant statement 38.22, 2, pro- § cedure Article 38.22. Article be read to establish that was noti- vides: 2(a) 38.22, § rights, fied of his art. nowhere made an Sec. No written statement statement, on the face of the or in evidence interroga- accused as a result of custodial presented any at is there indication against is him tion admissible as evidence appellant knowingly, intelligently volun- any proceeding in it is criminal unless tarily rights. waived those statement that: shown on the face of the Additionally, the record includes an un- (a) accused, prior making the the state- signed typewritten prepared statement ment, magistrate received from a either appellant’s signature. unsigned This state- warning provided in Article 15.17 of the face, waiver, express ment contains the on its person the this code or received from appellant’s right to remain silent. The warning whom the statement is made a unsigned record does not indicate the how that: prepared, ap- statement came to be whether (1) right he has the to remain silent and it, pellant sign given opportunity the any not make at all and that statement why signed by appellant. it was not How- may against statement he makes be used ever, may the Plano Police De- assume trial; him at his partment was aware of the need for a waiver obviously comply had the wherewithal to (2) any may be used statement he makes statute, with the but failed to do so. court; against him in as evidence (3) right lawyer pres- he has the to have Accordingly, not the instant case does prior during any ent to advise him to and present an inferential waiver of the art. 2(a) questioning; 38.22, § rights.
(4) lawyer, employ if he is unable to IV. right lawyer appointed to has the to have a prior during any ques- him advise to and provides plain language of art. 38.22 tioning; and admissible, in a custodial order to be (b) accused, during the prior face that to and statement must show on its 2(a) 38.22, statement, knowingly, intel- making § art. of the accused was advised rights Boykin v. ligently, voluntarily waived (Tex.Cr.App.1991), that when the warning prescribed in the sub- we held
set out (a) unambigu language a statute clear and section of this section. is ous, constitutionally Legislature enti “the at trial that once The evidence revealed faithfully expect that [we] tled to will follow arrested, appellant to the Plano was taken It adopted.” specific text that was Department, his Miranda Police where plain language only when the statute warnings Subsequently, read to were him. to an result that we should would lead absurd orally confessed both and writ- language literally. apply statutory murder, ing the instant as well as language of Article Unquestionably, page At top murder.1 extraneous 2(b) unambiguous. 38.22, § is both clear which written statement Consequently, order for an accused’s contained, following ap- information evidence, to be admitted into statement peared: 38.22, out in police must follow the law as set duly I have been warned and advised is on the and ensure evidence of waiver detective], person [the who has identified face of the document. as an officer of Plano Police himself question, reviewing After the statement that: Department, there is no doubt that this statement did (1) right I have the silent and to remain 38.22, requirements meet all of the of article not make statement at all and 2(a) 2(a), § § since enumerated against I make will me statement be used on the present face of statement. trial; my problem arises the fact that from (2) I Any statement used make will be 2(b) § requirements of of this same article court; me in undoubtedly not met. Article were (3) lawyer I have the to have a 2(b) knowingly, mandates that the accused *37 present prior during to advise me to and voluntarily rights, intelligently, and waive his questioning; this waiver be on the face of and that must (4) lawyer, I am unable to I employ If that statement to the statement order for lawyer appointed have the to have a Despite the ma be admissible evidence. (without me) prior cost to to me to jority’s holding, advise no evidence on there is during my questioning; appellant face of this statement that waived the interview (4) [*] [sic] I have the right [*] at any [*] time. [*] to terminate [*] [*] judge his give suppress, rights. due deference who overruled and found that The majority suggests to appellant’s initialing findings of the trial motion that page rights, I have read each this statement a waiver of those of of the constituted consisting pages, Although generally of it that we rights. [number omitted] is true my findings page signature, each of which not the factual of the trial bears do disturb (Tex. initials, my any judge, and corrections bear White certify judge’s I that Cr.App.1989), the facts contained this case the find ings supported by are true and I further not the record. While herein correct. certify request appellant that I have no that did initial each of the made it is true erroneously presence lawyer warnings, majority be- the advice of a inter rights. during prets of this state- action as a of these part fore or waiver ment, can only nor at it was reasonable inference that time before The appellant request I this state- from this is that was finished did drawn action way in no stopped. rights. I that I of his This act ment be also declare made aware say in prompted not told or what to he also waived these demonstrates language of rights, since there is no waiver this statement. videotaped, Appellant’s but 1. oral confession was trial. tape was never admitted into evidence anywhere protection him
present on the statement for the citizen and not the government. to initial. majority I think Because that the failed to majority recognize leg- The refuses to explicitly follow the law as it is set out in express protect rights islature’s intent to respectfully I
Article dissent for the Instead, majority of citizens. embarks following majority reasons. The holds that away on an effort to whittle at the of rights, because informed of his join I citizens accused. refuse them it can be that he understood these inferred this blatant effort. The state’s motion for Next, rights. logical. major- Such is rehearing should be overruled and this ity appellant signed holds that because each original Court’s decisions should be affirmed. page, inescapable such conclu- reinforces knew, understood, sion that he and waived BAIRD, J., joins. rights.
Finally, majority they holds that find 2(b)
§ require specific language does not but, appear on a
waiver written confession 2(a) § requires
rather evidence waiver (for
rights. majority The then decides to use time) totality
the first of the circum-
stances test to determine whether knowingly, intelligently, voluntarily MALONE, Appellant, L.D. 2(a) rights § waived his a manner consis- 2(b). tent with Texas, Appellee. The STATE only inescapable conclusion is that the majority goes great length uphold No. 328-95. clear, unequivocal language violation of the Texas, Appeals majority apply Court of Criminal a statute. The refuses to En Banc. language clear of unless it is shown on the majority fads to statement. face Feb. evidence, written or testimonial conclusively under- shows rights. enough and waived It is not stood *38 majority
to show that he received them. The
suggests it is an undue burden on law provide
enforcement officials
understanding waiver other than in-
ference. I offer that it is not difficult for the taking
official statement to in- written writing provision
clude rights
understands and waives his or at least
testify said he understood and
waived. majority
In a last ditch effort the would
have us affirm the trial court’s decision of giving
admission based on deference to the they finding, when court’s themselves
were based on inferences. Such conclusion understood and waived his
rights logically cannot be drawn from the or the trial court. The
record before us prophylactic be re- and should standpoint protection of
viewed from the