*1 SANCHEZ, Guadalupe Petitioner- O. Appellant, Director, De BETO, Texas Corrections, Respondent- partment of No. 71-2059. Tex., Norton, Corpus Christi, Gary for States Court petitioner-appellant. Circuit. Fifth Martin, Atty. Gen. Crawford C. 2,Oct. 1972. Austin, Tex., Sullivan, Tex., A. Dunklin respondent-appellee. BELL, AINSWORTH Before Judges.
GODBOLD, Circuit Judge: GODBOLD,Circuit Guadalupe Sanchez 0. of murder with malice
was convicted sentenced court and Texas state of Criminal Court death. Having exhausted Appeals affirmed.1 remedies, he filed his state petition for writ District hearing, corpus after of habeas point we which was denied. give the is the failure need discuss Ari Miranda v. mandated 16 L. zona, requires failure Ed.2d 694 of the writ. denial reverse the us to custodial. was though the confession Even date before the weeks five decided, June applies because 13, 1966, decision April 10, commenced trial Sanchez’s decision. date 1967, well after Jersey, Johnson v. New 1772, L.Ed.2d 882 years arrest old when 18was According testi merits trial ed. exam mony only expert who had mentally ined and tested I.Q. intelli tarded, and an of 73 had popu gence lower level in the 5% lation, ability understand and the 12 to reason a child jailer slightly higher. placed His (Tex. S.W.2d intelligence. average Cr.App.1970). said he testimony by expert brief- who Other ly but did not test him observed Sanchez *2 any p. by Between about 10:30 m. statement him be against magistrate 3, early May 1966, of used The and afternoon him. 4, person shall warned over and allow the arrested Sanchez was reason- peace, opportunity again by justice a able of the time and to consult a over — justice officer, person police counsel and another of shall admit the ar- then by by warning peace, rested to a from a bail if allowed the polygraph operator law. given before the That section had been enacted in re- polygraph commenced.3 examination sponse Illinois, to Escobedo v. polygraph oper confessed to the 1758, ator. (1964).4 Article 15.17 did not meet the requirement subject- that the individual warnings The form of numerous interrogation ed to must be warned that since, is in each understandable instance right he has the at the (except warning the brief informal and of or an retained police officer) they followed ex- appointed. warnings of In none actly provi- or with minor variation the right. of informed this On Au- 15.17, sions of Art. Vernon’s Ann.Tex. gust 28, 1967, Art. 15.17 was amended C.C.P. then in force: requirement: so as to add this “[The arresting 15.17 Duties magistrate of officer inform in shall clear lan- magistrate and guage person of arrested] ... right his present to an have In each case enumerated in this during any peace interview with officers Code, making person the arrest attorneys representing or the state. immediately person shall take the ar- ” 5 . magistrate rested before some requirement critical in this case county where was arrested. begins itself, styled magistrate person shall inform the prerequisite “absolute to interro against arrested of the him accusation gation” that “an individual held for in any therewith, and of filed affidavit terrogation clearly informed right counsel, of his to retain of his right that he lawyer has a consult with right appointment request of lawyer and to with him counsel if he is unable to obtain coun- during interrogation.” U.S. sel, right and his to have an exam- 86 S.Ct. at L.Ed.2d at ining trial. He shall also inform the
person arrested that is recognized he not re- bar aft- quired to make a statement down, and er Miranda came that Art. 15.17 given 3. One or language per- dur- shall clear inform in ing polygraph examination, against but son the accusation arrested of whether any these were before or after in- him affidavit and of filed there- criminating with, right counsel, statements were elicited is of his to retain silent, unclear. right right his to remain attorney present any to have an 4. Charles v. pence 424 S.W.2d interview officers attor- (Tex.Cr.App.1967), neys representing state, of his any time, interview at terminate request appointment indigent of counsel if he and cannot counsel, The entire text of amended Art. of his 15.17 and to have examining is: trial. He shall in- also arresting person “Art. 15.17 Duties form the arrested that he officer is not magistrate required a statement to make and that Code, In each case enumerated this statement made person making against magistrate the arrest shall with- used him. The shall unnecessary delay person person out take the allow the arrested reasonable opportunity arrested or taken have him some time and consult counsel magistrate county person where and shall admit arrested accused was arrested. bail if law.” allowed newly- None reaches the not meet the standard which Miran- in effect did as then da our standards. own unbroken of deci- line constitutional articulated require. sions Special State Committee It [the warning The Miranda Revision must effec- of Texas Bar tively convey recom- to the accused that Procedure] Code Criminal government-furnished entitled Article be amended mends that *3 specifically here and If counsel now. the words to set forth so as subject “warning” are construction that must that a brought will give counsel be available in such accused future, has not been require- Miranda in conform to the order to Although obeyed. no talis- Supreme there is ments the United States Miranda, heraldic manic or abracadabra in case. Court decision fulfilled, counsel offer of must be Bowner, Recommended Morrison & firm, not one of clarion and Changes Procedure, 29 Code Criminal impressionism. mere 1055 The Tex Tex.Bar J. supra, States, Lathers United at 535 legislature responded in v. as 1967 (emphasis supplied). See Onion amended Art. 15.17. dissenting in 424 Charles S.W. v. as here [In Windsor] denied, (1967), 922 cert. U. 2d 392 speak advised 940, 88 20 1401 S. (1968): S.Ct. attorney, consult with an but was not “he entitled to
advised that
presence
of an
retained or
15.17],
in effect at
How [former
interrogations.”
appointed,
statement,
appellant’s
the time of the
in
did
held Windsor that this
not
We
greater
procedural
even
[s]
the Miranda criteria for admissi-
meet
safeguards
States
United
than
Similarly,
compliance
bility.
lack
construing
Supreme Court decision
ap-
with the standards Miranda
process
Federal
due
clauses
parent here.
majori-
claimed
Constitution as
States, supra,
v.
at
Chambers United
456
beyond
comprehension
ty
of this
original).
(emphasis
writer.
upon cases
The state relies
from the
majority still
fails
What
Circuit which have held the
Second
Legislature
grasp,
quick
quirements of Miranda satisfied under
Legislature recognized
realize. The
although
there
circumstances
is no
that
in effect
the time
statutes
that the
evidence
accused
told
statement, enlightened
appellant’s
of
ney,
an attor
they
enacted,
have been when
an inference can be drawn
that
requirements of
did not meet
Cusumano,
429
v.
effect.
decision,
fully
(2d Cir.),
denied,
cert.
400 U.
F.2d
effective.
S.
carefully
Lamia,
(1970);
This
circuit has
429 F.
United States
Fendley
(2d Cir.),
Mimnda command.
v. United 2d 373
States,
(5th
1967);
cases taken so narrow a view Chambers, of Windsor. Neither Lathers upon nor Atwell relies the “affirmative argument. misleading” judgment of the District Court is reversed and the cause is remanded with grant discharging directions to petitioner the writ custody from unless the state elects, within a reasonable time to set Court, retry the District him on the indictment.
ON PETITION FOR REHEARING
AND PETITION FOR RE-
HEARING EN BANC PER CURIAM. Rehearing
The Petition for is denied panel and no member of this regular active service on the Court having requested polled that the Court be rehearing (Rule banc, en 35 Federal Appellate Procedure; Rules Local 12) Fifth Circuit Rule the Petition for Rehearing En Banc is denied. HOOVER, Petitioner-Appellant, Sam BETO, Director, Texas De partment Corrections, Respondent-
No. 29587.
Fifth Circuit.
Aug.
Certiorari Denied Dec.
See