Jones v. State

Quintin JONES, Phillippe Appellant, STATE Texas.

No. Texas, Appeals

Court of Criminal

En Banc. 5, 2003.

Nov. 2(g).1 appeal

§ Direct this Court 2(h). § Appellant automatic. Art. 37.071 points raises sixteen We affirm. error. 1. Miranda violation claim. error, point his first admitting claims the trial court erred punishment into evidence at a written con fession in connection an extra taken Appellant neous offense. claims that taken in of Mi statement was violation randa he was not v. Arizona2 because rights written informed of his until the pursuant prepared appel statement was lant’s oral statements and agree. it. sign about We A. at the guilt-innocence The evidence stage. summary

We with a of the evi- begin eighty- appellant’s dence. The victim was three-year-old great-aunt, Berthena IV, Worth, Pearson, Bryant. Despite her income of less than David A. Fort for month, Bryant occasionally made a appellant. $500.00 including people, small to various loans Mallin, Faulkner, F. Charles M. Helena recording a appellant, kept ledger and she Worth, Dist. Matthew Attys., Asst. Fort Sep- repayments. and their On loans Austin, Paul, Attorney, State’s for state. sister, 10, 1999, Bryant tember told her appel- Mattie that she had refused Long, day. earlier in the request lant’s for loan uneasy Long Bryant testified that seemed OPINION appellant. about her conversation with COCHRAN, J., the opinion delivered body was dis- morning, Bryant’s The next Court, MEYERS, PRICE, joined by A by neighbors. covered in her home HOLCOMB, and HERVEY JJ. recovered bloody, baseball bat was broken located Bryant’s in car was Appellant February convicted scene. was purse her house and her capital half mile from 2001 of murder. Tex. Penal Code 19.03(a). in car. jury’s § and wallet found Pursuant were Ann. Konzelman, examiner, testi- in Dan issues set medical special answers forth bruising fied to of defensive Procedure Article the existence Texas Code Criminal 2(b) 37.071, 2(e), Bryant’s and arms. Konzelman judge §§ the trial on wrists abrasions, Bryant’s also described various appellant to death. Art. 37.071 sentenced indicated, L.Ed.2d 694 2. 384 Unless this and all fu- U.S. otherwise (1966). Articles refer to the Texas ture references to Code of Procedure. Criminal fractures, object bruises, parking Appellant in does not which included a lot. blade, of the Gates statement. broken collarbone and shoulder two to the admission ribs, fractured and a at the base fracture concerning ex- B. The written statement

of the skull. admitted at traneous murders Appellant outstanding for arrested stage. 'punishment possession traffic warrants and of a for at the Appellant’s complaint is directed day that controlled substance on the same of statements he made to Texas in admission Bryant’s body was discovered. While days Lane Akin nine or ten later Ranger custody, appellant questioned twice implicated in he himself in two ex- which Bryant’s about murder Ann Detective introduced at traneous murders place Gates. The first took interview punishment phase of his trial. Texas day ap- he was arrested. Gates read Miranda, at the Ranger Richard Johnson testified pellant when she suppression hearing investigated that he noticed that had no reaction to Bryant’s Appellant the homicides of Marc Sanders and Clark the news of death. Peoples. Peoples’ bodies gave any Sanders’ denying a statement involvement Trinity were both found in the River Bryant’s murder and an alibi. claiming June, County Wise the first week day, being The next after informed of his appellant’s 1999. Based on a lead from rights again, appellant accompanied Gates Jones, Akin sister Keisha Johnson and ob- to various in an locations effort to corrobo- appellant’s warrant day rate his That took a tained a search alibi. same residence, early executed in the polygraph examination. which was 22,1999. morning September hours of appellant’s When information did' alibi polygraph during not check out and the indicated Akin left that search to meet Jail, deception, appellant appellant County Gates interviewed a with at the Tarrant again appellant County second time. Gates read with a Tarrant together Sheriffs rights, appellant agreed deputy, early morning. his Miranda in the hours of the them, appellant gave appellant waive and Akin he inves- second informed that was (the statement”). tigating written statement “Gates the murders of Sanders and Peo- In the appellant ples. Appellant having Gates statement stated admitted known victims, that in personality” any he had “another named but denied involvement appellant James who lived in his head. He stated their murders. Akin then asked if Akin living say “they” (meaning that James had started in his head what he would told him that age investigators) since ten or eleven when he was mo- and his fellow good Appel- they already appellant’s lested his brother and cousin. had talked to Roosa, friend, Bryant’s Ricky lant that “Red” and that Red stated James went to money. Bryant appellant some After them was the “bad house steal had told that mur- guy,” primarily responsible let him in and could find her for the James not orally purse, appellant point, appellant lost his ders. At that ad- stated James in murders. temper hitting Bryant and started with a mitted his involvement the two that, appellant and described de- kept by bat she the door. After As confessed offense, purse in of the Akin wrote down “ver- Bryant’s James found and left tails appellant on a statement Bryant’s Appellant car. stated there was batim” what said form, transcribing and Bryant’s purse. Appellant asking questions in then $80.00 they along. went The en- bought drugs went to a friend’s house and the answers as car tire interview lasted about an hour-and-a- money. Bryant’s with the He later left out, points As appellant story, half. When finished his the State the failure to up, comply got appellant, during Akin down next to with Miranda a custodial sat interrogation legal rights ap- necessarily went over does not taint all and Elstad, subsequent peared top form. confessions. In written 18-year-old implicated Akin defendant was Then and read the state- together family ment of a friend’s home burglary corrected mistakes, revisions, $150,000 initialed which worth art and furnish- signed ings Two officers were Appellant’s the statement at the bottom. were taken.6 local statement”) (the dispatched “Akin to the defendant’s home with written statement They appears opinion. in the to this an arrest found the defen- Appendix warrant. They dant partially dressed his room. accompany asked him to dress and them C. The to Mirandize appellant failure room. officers asked living One him led interrogating to consti- before step mother to into the defendant’s tutional in the admission his error they kitchen where he informed her that written statement at trial. had a warrant for her son’s arrest for the Appellant that Akin’s argues failure other burglary neighbor’s of a home. The him of at the rights inform outset of officer with the in the waited defendant Fifth interrogation violated his Amend- living room. The officer remained who as rights protected by ment Miranda and living with the in the room later defendant this violation was harmless. testified: that, argues though appellant even State I sat Mr. I asked down with Elstad and was not warned until after he made his why him if aware of Detective he was statement, Elstad,3 Oregon v. oral under myself there to talk McAllister and appellant’s receipt required warn- no, no idea He stated he had him. Akin ings signing before statement I him if why asked we were there. then voluntary rendered it and admissible. Gross, person by he the name of knew a did, also added yes, and he said Miranda, the United States Su robbery that there he heard in preme unequivocal holding Court was point And I at the house. at that Gross accused, custody, an in that held must be in- I he was told Mr. Elstad that felt warnings to given required “prior 4 that, he at me and volved in and looked A to do questioning.” failure so results stated, Yes, I was there.’7 any in forfeiture of the use of statement police After was taken to the sta- during interrogation by obtained that Elstad rights, tion and of his prosecution during its case-in-chief.5 advised Miranda 1285, 298, against government’s 470 U.S. use of an unwarned 3. 84 L.Ed.2d (1985). statement, 222 Supreme held that Court later non-Mirandized, voluntary a but otherwise Throughout opinion the Court 4. its Miranda testify- impeach to be used statement could emphasized importance giving the re- credibility. ing v. New defendant’s Harris of, quired "prior warnings "at the outset” or York, 225-26, 643, 222, 28 S.Ct. 401 U.S. 91 to,” any interrogation to ensure subse- (1971). L.Ed.2d 1 quent voluntary. statements would be Mi- randa, 445, 457, 465, 468, 474, 384 U.S. at 300, 470 S.Ct. 6. U.S. at 105 1285. 478, 86 S.Ct. 1602. 444, Although 5. Id. at S.Ct. 1602. Mi- 301, 7. Id. at 105 S.Ct. 1285. prohibition spoke randa itself of a broad does not so taint the offi- cise his free will indicated he wanted to visit with in- gave voluntary a full statement de- a later process cers. He then scribing burglary.8 involvement in the The his will not be effective.11 formed waiver trial, suppress the oral later, At Elstad moved to prop- whether the inquiry relevant (“I there”) and the written statement was voluntarily erly warned statement statement, the oral statement claiming finder any inquiry, in “As such made. at his response questioning made in surrounding cir- examine the of fact must bag” the cat out of the house “let police and the entire course cumstances tainted the later written confession as suspect respect conduct poisonous “fruit of the tree.”9 of’ a subse- the voluntariness evaluating Supreme held that statement.12 quent Court warned made while Elstad’s unwarned statement Examining surrounding “the cir the al suppressed,

at his home must be police and the entire course cumstances violation leged “fruit” of a noncoercive respect [appellant] eval conduct with suppressed if it might not be appellant’s uating the voluntariness” of give A failure Miranda voluntarily.10 statement, place the we cannot written any warnings where there has not been category as Akin statement the same actual coercion or circumstances calculated at issue in Elstad.13 suspect’s ability to exer- the written statement to undermine the 301-302, rights stage proceeding at one criminal 8. Id. at 105 S.Ct. 1285. right, serving apply quite different it to 302, at 9. Id. S.Ct. stage”); purposes, at another quite different 367, Hill, 125, 233 N.E.2d People v. 39 Ill.2d 308, 10. Id. at 105 S.Ct. 1285. offense; officer, (1968) (same de same response "delayed” to offi made a fendant Id. 105 S.Ct. 1285. Maguire United question); v. cer’s initial Cir.1968) (three States, (9th 396 F.2d 12. Id. officer); offense, days; different United same (7th Springer, v. 460 F.2d States stress 13. Both the State and the concurrence offense; Cir.1972) (same agent; FBI same appellant had been the number of times 2nd warnings, 1st were oral and same but magis- by warned Officer Gates and a neutral Diamond, written); Biddy 516 F.2d concerning rights in rela- trate his Miranda (5th Cir.1975) (12 lapse day of time did Bryant to tion to the murder of Ms. show original destroy Miranda again by Ranger effectiveness of be warned he did not need to by was warned concerning rights when defendant in relation to the Akin earlier, released, officers had Peeples. It is true officers murder of Sanders and same home, not, passage multiple defendant at her mere of time” does contacts with "the itself, prior to her hus automatically obviate Miranda later made a statement and she they warnings. after of officers at station band in front warnings); her of their earlier reminded very by are The cases cited the concurrence State, 583, Ala.App. 324 So.2d v. 56 Johnson to, might dispositive appropriate well be denied, 407, 298, (Crim.), cert. 295 Ala. 302 of, interrogation by the been this issue had officer, (same (1975) same 324 So.2d 305 Bryant’s Gates about Ms. murder. Officer offense, warnings given three about 332, reminder Bagley, parte 509 S.W.2d 335 See Ex 318, Gilreath, earlier); Ariz. days State v. 107 (same (Tex.Crim.App.1974) gave multi- A.D.A. offense, 385, (same (1971) ap 386 P.2d 487 warnings; questioning one ple all concerned officers, repeat States, no need to parently same offense); v. United 380 F.2d Gorman warnings given 12 to 36 hours earlier because 158, (1st Cir.1967) (repetition Miranda 164 might the offi alert no "circumstances which requesting consent to search warnings before fully may not be aware that an accused cers unnecessary we no reason in because "see State, 360, rights”); v. 268 Ind. Jackson precedent automatically to borrow a of his policy or 223, (1978) (stating that de- 225 375 N.E.2d procedure adapted to one set of constitutional Elstad, custody or a desire to avoid what would statement the unwarned oral inadvertently. The Su- police procedure was elicited almost appear alarming to be an stop in noted that the brief preme Court the officers had informed the sus- before purpose living room was not the mother about his arrest.15 pect’s notify suspect, but was to interrogating contrast, in the circumstances By suspect’s mother of the reason for least, reflect, very case at the instant that suggested also arrest.14 Court by law enforce misunderstanding serious Miranda warnings give the failure to ment, in appellant was not about whether either the result of confu- may have been of the dictates of Miranda.16 custody, in suspect yet but sion about whether the Here, Ranger Akin was not of in 516 F.2d at 122. was not the result fendant’s statement warnings originally, any terrogation, if were re who had or at but the same officer “[e]ven time, warnings warnings were sufficient in quired, appellant the earlier Miranda later recognition light defendant's clear of the Ranger questioning him. Akin was before right his to remain silent. He conditioned entirely questioning appellant about an differ- prosecu upon presence statement offense, appel- for which ent not the offense tor, right showing to remain he knew of his There is no evi- lant had been Mirandized. silent, waiving right”); State v. and was that appellant Ranger Akin ever asked dence that 490, 1978) Russell, (Iowa 261 N.W.2d 492-93 anyone if had been warned or else (statements in ambulance and three made officers, he remembered by other whether hospital deputy after days later in admissible warnings, or in- and wished to waive those defendant twice at arrest had Mirandized that, Ranger in his voke them. Akin testified scene, defen and different officer reminded mind, in "discussion interview” a custodial warnings and defendant dant of those earlier requires interrogation which not a custodial waive he remembered and wished to stated passage warnings. While the mere Miranda 311, them); Brown, State v. 601 S.W.2d dissipate necessarily time would officers, offense, (same (Mo.App.1980) same warnings, there is no of Miranda effectiveness rights given days three earli after reminder of and those similarity case factual between this er, gave rights and state defendant waived that, totality of the which have held under 926, ment); Blanchey, 75 State v. Wash.2d circumstances, question police in conduct offense, 841, (1969) (same prior 454 P.2d of Miranda. complied tenets with the basic officials, warnings by fresh warn Canadian detectives, by into con ings state but woven 315, Elstad, 105 S.Ct. 1285. 470 U.S. at 14. versation, that he defendant told detectives statement); gave rights understood his 1285; 315-16, also id. S.Ct. see Id. at State, Roger 17 P.3d v. Nev. (expressing concern 105 S.Ct. 1285 offense, (2001) (same officer second 431-33 judg- made law enforcement for errors already been warned and knew defendant had custody admin- ing suspect or in whether she had been warned defendant told officer warnings). istering proper Miranda State, before); Mitchell v. 982 P.2d offense, (same officer reminded (Wyo.1999) he did not think Ranger Akin testified given by hospitalized defendant of pur- "interrogating” appellant for he was hours earlier and be another officer several ready warnings until he was poses of Miranda when defendant said gan to summarize them sign written statement appellant to to ask talk); willing De and was he remembered which orally made had State, (Del. 655 A.2d 1195-96 Jesus already "verba- Ranger transcribed Akin had officers, offense, 1995) (same same six-minute Ranger Akin testified Specifically, tim.” interview). break prior state- to the appellant "was Mirandized phrased the issue in the Fifth Circuit As initials, ments, reading as signing, him before Biddy v. Diamond: words, exactly given is those he is question legal is whether The critical not finished—(cid:127) right_ The document was police sufficiently activity of the overall it, signed and he initialed wasn’t finished until concerning requirements comports point, he was advised of yes sir. At that warnings to the con- the Miranda insulate attorney asked if rights.” appellant’s against suppression. When duct and admissions rights The waiver to Elstad where Further, intent of Miranda.17 in contrast Akin state in connection with place given at statement took initial unwarned constitutionally light valid ment was not home and the warned the defendant’s and entire course of the circumstances given transporting after statement was police conduct. station, police the un defendant to the in this case warned and warned statements giving argues The State nearly given during were undifferentiat had ver- his Miranda warnings after he event, taking place the same single ed immediately before bally confessed but uninterrupted and continuous room as an was consti- the written statement signing Akin process. The written statement under this Court’s tutionally adequate un literally transcription appellant’s and All- v. Dowthitt opinions State18 Dowthitt, Appellant here, did warned oral statements. ridge v. State.19 as fi after he not make a second statement admission of a objected to the defendant received his Miranda nally warnings; required he made in which statement the inter- simply signed given the written statement not before warnings were dictated to Akin before he was before the defen- rogation he had but were Elstad here and declare apply To statement.20 We signed warned. dant written claim, stating that rejected Akin statement admissible virtue of the defendant’s not ‘ob- required a written statement is the late admonishment “[b]ecause admissible) (because until it is not warnings spirit would undermine the tained’ interrogates part because "second confession normally a sus- sion in that was how he the first” and pect, Ranger replied, came almost on the heels of Akin "I don’t think that talking interroga- interrogation was clear to you what are about is an custodial nature of Gonzalez-DeLeon, statement, officers); taking States v. a matter of United tion. That’s (W.D.Tex.1998) interrogation.” colloquy F.Supp.2d 928-29 not an contin- suspect’s post- (holding inapplicable to ued: Elstad inter where authorities Miranda statements Q: talking you to When sat down and started rogated suspect and elicited in over an hour rights [appellant], you did read his Miranda advising criminating before sus statements point? to him at that Seibert, pect rights); State v. 93 S.W.3d point, A: Not at that no sir. (Mo.2002) (holding inap Elstad 705-707 Q: Why you point? didn't do that at that intentionally refrained plicable where officers conversation, justWe went into and then A: warnings giving until admis from Miranda went into discussion interview about the and warned obtained and unwarned sion murder, point prior at to fin- and then part contin portions of one of interview statement, ishing this he was advised of his - -, granted, U.S. process), uous cert. rights from this form. (2003); 2091, 155 L.Ed.2d 1059 Q: prior Why you it I understand. didn’t do State, (Fla. So.2d 575-78 Ramirez questioning? you started to the time 1999) part (holding applicable in Elstad not we really A: I didn’t see the need to since police suspect questioned at juvenile because right prior completing this did it here incriminating be gave station and statements statement. suspect receiving and when fore however, Miranda, indisputably requires a warned, attempted to mini finally officers agent give appropriate law enforcement rights downplay significance of mize legal warnings any questioning or “dis- before as lever suspect’s previous statements used interview,” merely prior sign- cussion rights). age compel him to waive ing all the custodial a written statement after interrogation complete. 384 U.S. (Tex.Crim.App.1996). S.W.2d 244 18. 457, 465, 468, 474, 478, 86 1602. S.Ct. (Tex.Crim.App.1988). 762 S.W.2d 146 Carter, 17.See United States v. 884 F.2d (8th Cir.1989) (stating Elstad was Dowthitt, S.W.2d at 258. post-Miranda inapplicable to written confes 776 County incarcerated in the Tarrant signed, giving required warnings

it is was signs the accused the statement suspicion capital before under for murder Jail statutory requirements.”21 meets transported part to another when alone; Dowthitt was based on Article 38.22 in jail early of the hours of the morn- solely this Court’s discussion centered Akin ing Ranger to meet and another offi- interpretation the defendant’s of the stat- (approxi- cer. He was taken to a small explicitly ute and the federal “assum[ed] 12’) x interview to meet mately 8' room Miranda in requirements constitutional him with two officers who informed Allridge, upon by were met.”22 relied they investigating the Sanders and Dowthitt, solely Court also based Peoples After five or ten min- murders. The discussion of Arti- on Article 38.22.23 utes, Akin what he would asked apply cle 38.22 in those cases does not to a “they” by appellant’s if told think had been claim that a defendant’s federal constitu- had the good friend “Red” tional Miranda rights have been violated. “primary responsibility” and was the “bad This was a guy” the two murders. argues The State also that a defen police environment. “interrogation” classic “in necessarily custody” solely dant is not circumstances, appellant was Under these questioned because he while incarcerat of Miranda clearly custody purposes ed. The State cites cases from several Thus, Akin gave when he statement.25 jurisdictions which have held that there statement, Akin taken in violation of change must be a in the inmate’s sur Amendment, not have the Fifth should roundings imposition or an added on his punishment phase of before he is “in cus been admitted at the freedom movement for Miranda Appellant appellant’s trial.26 tody” purposes.24 reliable”); added). (emphasis inherently United States 21. Id. ment —is 253, F.Supp. Schipani, 257-58 315 (E.D.N.Y.1970) (discussing distinctions be concluding "[t]he 22. Id. at 259. Amendments and tween Fourth and Fifth present in the case were both excluding concluding the use at ”[d]ecisions constitutionally statutorily adequate,” the sentencing in viola of confessions obtained Court’s reference to the constitution- Dowthitt persua not tion of the Fifth Amendment are adequacy warnings pertained al to the aff'd, precedents”), sive Amendment Fourth conducting person defendant's claim that the Cir.1970); (2d see also Estelle v. 435 F.2d 26 person interrogation must be the same 1866, 454, 469, Smith, 68 451 U.S. gives warnings. who the Miranda Id. at 258. (1981) (holding testimony L.Ed.2d 359 psychiatrist about unwarned court-ordered Allridge, at 762 S.W.2d by defendant violated made to him statements inadmissible Fifth Amendment and were Cooper, 24. See United States v. 800 F.2d dangerousness); sentencing on issue of future Walker, (4th Cir.1986); Cervantes v. Bail, (9th Cir. F.2d Pens v. (9th Cir.1978). 426-27 F.2d 1990) to ex (holding confessions unwarned violated Fifth Amendment traneous crimes State, 25. See Cooks v. 844 S.W.2d sentencing phase to were inadmissible at (Tex.Crim.App.1992) (stating "[c]learly, while during court- where elicited enhance sentence Jail, County appel- incarcerated in the Dallas incarcer psychiatric treatment while ordered ” custody’ purposes). lant was ‘in for Miranda ated); Dept, see Del Vecchio v. Illinois but Corrections, (7th Cir.1994) (stat 31 F.3d 1363 Tejada, apply at sen ing exclusionary States v. 956 F.2d 26. See United rule would Cir.1992) (2nd (noting "physical assuming tencing hearing, even confession Miranda, no of the Fourth because evidence seized in violation taken in violation of purpose involuntary served where confession Amendment—unlike an confes deterrent introduced). years Amend fourteen before sion taken in violation of the Fifth taken

777 trial, murder punishment stage capital D. error harm- of a This constitutional was beyond less a reasonable doubt. the issue not whether did or is Peoples not and did commit the Sanders ap final question whether Instead, special are murders. the issues pellant the was harmed constitutional 1) n violation.27Reversal is predictive appel- normative: would required we unless future probably lant commit criminal acts determine, doubt, beyond can a reasonable of violence that would constitute continu- suppress that the failure to the Akin state 2) whether, ing society; threat tak- jury’s ment did contribute to the ver to evidence, phase.28 dict at If into all of the sentencing ing the there is consideration likelihood that the error ma mitigating reasonable there are circum- sufficient deliberations, terially jury’s affected the a life sentence stances warrant rather the error was not harmless.29 The review The harmless than a death sentence.31 “ “calculate, ing as nearly court should as respect ‘promotes public error rule possible, probable impact the of error the focusing on the process by the criminal light jury the other evi underlying of the trial rather than fairness 30 dence.” presence im- virtually on the inevitable of Thus, upon material we focus error.’”32 upon probable impact focus the We impact might error had that this have of this upon admission statement had of upon jurors’ consideration those punishment phase. Had the Akin special issues. capital statement concerned murder charged offense for which or In conducting analysis this in the

had it during guilt- been admitted error, context of a Miranda we must stage, innocence this Court hard- would be “judge light of the error in magnitude pressed it indeed find harmless error. However, of the evidence as a whole to determine the fact that the statement degree prejudice defendant only during punishment stage offered analysis because, does our resulting affect at the from that error.”33 256, 44.2(a); State, Satterwhite, 27. P. see Cain 32. U.S. at v. 947 486 108 S.Ct. Tex.R.App. 262, Arsdall, (Tex.Crim.App.1997). (quoting S.W.2d 264 1792 v. Van 475 Delaware 673, 1431, 681, U.S. 106 S.Ct. 89 L.Ed.2d Satterwhite, (1986)). 18, Supreme 674 California, Chapman 28. See v. 386 U.S. 24, 824, (1967) (un- evaluation of Court noted that "the the con- 705 87 S.Ct. 17 L.Ed.2d sequences sentencing an error in the analysis, reviewing der error constitutional phase may capital court of a case be more difficult must reverse unless it is de- "able to that is clare because of the discretion to the [the error] a belief was harmless 258, doubt”); beyond 108 S.Ct. sentencer.” Id. at 1792. reasonable Satterwhite v. 258, Court, Texas, 249, 1792, Nonetheless, we, Supreme 486 U.S. like the S.Ct. (1988) (applying Chapman reviewing L.Ed.2d 284 harm- "can an believe that courts make intelligent less standard to admission judgment” error of unwarned about whether the er- psychiatrist punishment stage statement to roneous admission of a statement taken in trial). capital murder might defendant’s violation Miranda have affected a capital sentencing stage. See id. State, (Tex.Crim.App.2001), McCarthy 29. 65 S.W.3d v. denied, Polanco, t. 536 U.S. 33. United v. 93 F.3d 562- States cer (2002). 153 L.Ed.2d 862 (9th Cir.1996) S.Ct. (analyzing Miranda-Elstad finding because error it harmless of "sub- prove Id. stantial other evidence” same within the fact as that contained defendant’s statement). 37.071, 2(b)(1) improperly §§ See Crim. Proc. art. admitted Milton TexCode 372-73, 2(e)(1). Wainwright, 407 U.S. & left) Therefore, appellant before Williams we must assess with juror place upon probable weight spots would brownish gone but there were dark improperly statement. To do admitted carpets appeared on the and walls that to this, independent proof of we assess the A criminologist be blood. for the DPS appellant’s participation in the extraneous Lab testified that tests confirmed Crime appel murders.34 The State established walls, of human on the the existence blood in the and Peo lant’s involvement Sanders and the cushions in carpet, and on under ples by indepen murders several sources residence. appellant’s the couch at statement, including of Akin dent County with the David Walker Wise Williams, Jones, testimony of Keisha John Department they that Sheriff’s testified Finn, expert the defense Dr. and the several months of in- had few leads after Dr. expert, State’s Price. Peoples and mur- vestigating Sanders appellant that John Williams testified The first lead came when Keisha ders. mother, had dated Williams’ Paula Free- Jones, sister, appellant’s pro- told her own man, years old since Williams was nine officer, arrest, after her brother’s bation appellant and that had lived with them for appellant something” that “knew about the years. several testified that one Williams Peoples murder of and Sanders. After work, appel- mother was at day, while his Keisha, speaking began pre- with Walker him a friend’s house go lant told to to Ricky paring an arrest warrant for “Red” appellant might something because “do Roosa, Akin and Johnson Rangers and go jail that have to for.” bad he would appellant’s warrant obtained a search and his little brother went to Williams residence. neighbor’s away. house a block When for the defense. house, Paula Freeman testified appellant to his Williams returned (who appellant had lived Ricky had been She stated that she and and “Red” Roosa 2174, (1972) (admission only pre- the evidence remains not sufficient 33 L.Ed.2d 1 be- support overwhelming statement was harmless error the verdict but so as Mirandized yond the over- a reasonable doubt because of guilt beyond a establish the of the accused whelming guilt); evidence of the defendant’s doubt; harmless because reasonable error Lane, Savory ex rel. v. 832 F.2d United States overwhelming); physical was other evidence 1011, (7th Cir.1987) (concluding that 1019-20 Hawk, (S.D.N.Y. Boyd F.Supp. 448 v. 965 testimony by Fifth admission of barred 1997) (stating that constitutional error "[a] light Amendment was harmless “[i]n if a arising evidence is harmless from use of case, relatively strong state’s otherwise guilty jury same ver would have reached the evidence, of tainted and the lack limited use additional, hearing unconsti dict without had”); probative value the tainted evidence evidence”). tutionally obtained Franzen, (7th F.2d 796 Gorham v. confession, Cir.1985) (stating ”[w]here that Owen, See, F.2d e.g., v. Harrison voluntary, for fail- otherwise is inadmissible (7th Cir.1982) (citing and Schne- Milton comply procedural re- ure to the strict improperly stating that defendant's ble and Miranda, quirements is not re- reversal when admitted statements were harmless record, if, quired on the facts in the the court other, evidence, whose truth was admissible beyond doubt that its can find a reasonable and was unchallenged, proved the same facts harmless”; finding error use at trial was "entirely with the defendant's consistent” "extensive harmless because there was other Estelle, statements); Germany 639 F.2d v. implicat- physical evidence and testimonial (admission (5th Cir.1981) murder); Harryman ing” telle, Es- defendant in of Miranda statement obtained violation Cir.1980) (5th (when 616 F.2d light admissible or other harmless error determining of non-Miran- whether admission harmless, not con- and fact that statement did evidence reviewing court statements dized defenses). whether, statement, tradict either of defendant's must decide absent that jury. grand testified Keisha together years. for about three or four before although originally testified she told appellant’s wrong- that all of that She testified rangers was forced to sit Red’s fault and that Sanders doing was they the couch watch while killed influenced Red.35She stat- and heavily Peoples, from trying stay away ed she later learned Freeman trouble, in the car from out of had remained gang Sanders appellant got him after Peo- have done if not for went out and anything would not also testified appel- ples influence. testified was killed. Keisha that Red’s She that children, she told the rang- lant affectionate with her she was mistaken when was really person [j]ust appellant was that he and good “a ers that told her Red [who] wrong way,” money, went and the had the murders for she asked committed explained jury jewelry, his life. and crack. She that spare to On cross-examina- tion, appellant things that took these Freeman testified found and Red after she murders, appellant’s and that was not carpet blood stains on the walls but original Finally, her the State house. She stated that when she came intent. estab- stains, she appel- through home and saw the called lished Keisha’s cross-examination fight appellant lant told her he had been in that had told her that Sanders who Peoples appellant’s in his friend. The next time she saw and arrived at house car, appellant, money placed and and Red appellant he wanted leave town. that in Peoples’ bodies a car Sanders’ and after sister, Jones, Keisha Appellant’s was they were murdered.36 also called the defense. On cross-ex- amination, what appellant testimony appel- Keisha stated that Keisha Jones’ had talked to her “somewhat” about the lant had told her about the double murder mirrored, murders, Peoples fully Sanders and and that was admissible and to a she, turn, extent, large in had talked to statement probation appellant’s her written both, Akin. Rangers appellant officer and Akin and In admitted his Johnson murders, participation yet about he had said. in mini- what Keisha testified both, appellant appellant talking that told her that he mized his role. In own in and the Peoples living room when Red said Red was the main actor actual both, In Peoples came from behind and hit killer of Peoples with a Sanders. Peoples hit in barbell. Red then threatened stated that Red both, that In help appel- if he did not “finish what he the head with a barbell. started,” in he would hurt and her lant stated the victims arrived a car Freeman that transport son. Keisha admitted that she had not which used to bodies away threat when her from residence after the gave appellant’s mentioned Red’s she 1) police testimony to the but murders. added: statement did when she Keisha’s precisely appellant’s ligatures 35. This is the tenor dence. Both victims had around Ranger statement to Akin. their necks and one also had a head wound. Spotswood Dr. testified that she con- Sheila Captain David Walker with the Tarrant autopsy. Peoples’ ducted She described Peo- Department County that Sheriff’s testified injuries ples’ and stated that cause of in detail gray belonging they located a Altima to Peo- Peoples’ death was homicidal violence. au- ples’ girlfriend. A search of re- the Altima Spots- topsy photographs admitted. were presence of human blood stains on vealed injuries also Sanders’ wood testified about the backseat. autopsy photos and his were admitted. Sand- Peoples’ Photographs of Sanders’ and re- also homicidal vio- ers’ cause of death was mains —when their bodies discovered lence. Trinity evi- River—were admitted into to Price that he felt explicit against that an threat lant admitted worse Red made 2) police appellant; initially killing ap- that she told he and about Sanders because was forced to sit on the couch Sanders pellant were childhood friends. 3) murder; Peoples’ and watch summary, jury appel- knew of initially police appellant’s she told through lant’s involvement the murders robbery. Red’s motive for the murders was Akin multiple sources unrelated to the Akin Although appellant’s statement Although the Akin statement statement.37 added more detail to the events surround- fills in details not included some murder, appellant’s volun- ing the double evidence, appellant’s participation in other tary, noncustodial statements to his sister through the murders is established well unequivocal constitute an admission of Despite other witnesses and evidence. participation Peoples’ and Sanders’ the statement contained some fact deaths. prejudicial reported by evidence not other psychologist Dr. The defense also called sources,38 carry the statement did not the Finn had interviewed and Raymond who in weight might normally a confession bear appellant. acknowledged evaluated Finn light weight of the volume and of the other participation in and appellant’s Sanders against appellant on the future evidence Peoples agreed appel- and murders Indeed, dangerousness issue. it was es- lant’s behavior in those murders was ma- guilt stage appellant tablished at the nipulative “to some extent.” elderly by beating brutally killed his aunt in called several witnesses State bat. Evidence showed her with baseball Price, rebuttal, including Dr. Randall Bryant appellant regarded Ms. as psychologist, who had clinical and forensic that she had treated him favorite aunt and appellant. interviewed and evaluated Nonetheless, kindly years. over the he psychopath’s about a view of Price testified whatever mon- killed her so he could steal right wrong appellant’s and and discussed purse purchase drugs. in her to ey she had ac- accept responsibility failure to for his the evidence introduced at addition to stronger as one of the traits of a tions trial, guilt phase or innocence the appellant’s psychopath. pointed He to offered considerable evidence at the State James, blaming ego, of his alter for stage. Appellant was con- punishment Bryant’s blaming death and his of Red juvenile, of offenses as a victed several Peoples’ Price also Sanders’ and deaths. teachers, pos- an of two including assault appellant did a “double denial testified that on handgun, of a and an assault session Price that responsibility” of when he told her hair. by setting another student fire to aunt if wouldn’t have killed his “James by appellant, of teachers assaulted One help him kill and Red hadn’t made Sanders Turner, appellant’s Mark described resis- told Price that he Peoples.” Appellant teachers’ efforts to restrain tance to the with Red because of his go along chose to just crazy, “[appellant going was] him: it was Red’s get drugs, desire to but that ... punching biting snarling and Peoples. Appel- just kill idea to Sanders Polanco, to Wainwright, Savory murders because Red threatened with the 37. See Milton v. Franzen, Lane, Harryman, Harri- Gorham v. and her son. Keisha’s hurt Paula Freeman Owen, Germany, supra, all note 33. son v. appellant not suggests that did version also but plan the murders with Red beforehand primary between Keisha’s 38. The difference along Red had killed went with Red once testimony Akin was Kei- and the statement Peoples. along went sha’s insistence little bring It five Red told me to a belt tie like the Tasmanian Devil.” took of re- I a braided leather belt out police male teachers and a officer to Boo. took Boo appellant. Appellant pants. handcuff Red tied little with my strain and little help school. me to move allowed return belt. Red told little Boo sight. Boo out of We moved of Substantial evidence was introduced Marc [Sanders] into the back room.... membership in Hoova appellant’s Red hit him came the house and Crips appellant’s gang. Photographs head Red was mad with barbell. many gang-related tattoos were admitted time long give took Marc a because it police A into evidence. Fort officer Worth kept hitting Mare until he up. Red experience department’s police pushed a[nd] Red took the barbell fell. gang length unit testified at about neck. He told against it down Marc’s significance appellant’s tattoos. gang up tie bring something me to to Marc nearly as He described all of tattoos I him a brought with. white extension Crips Five referring gang to the Deuces or up. tied him chord We [sic]. Thus, Crips gang. the Hoova even with- murders, out two extraneous the evi- Appellant stated that after both men were murder, multiple dence of a brutal as- dead, helped put Red their bodies into saults, gang membership supports Peoples’ Red where car and told jury’s appellant conclusion that was a dispose to drive the car to of bodies future and circum- danger mitigating that this a river. statement contains While life stances did not warrant a sentence. that were not otherwise testi- some details below, by fied to witnesses as set out other look also to of erro- We the content facts mitigating it contains a wealth of neously ap- Although admitted statement. appellant’s role mur- about double pellant participation admitted his in the believed, If it limits ders. diminishes and two extraneous murders in the Akin State- appellant’s participation evidence of other ment, replete statement self- that was with sup- It also the extraneous-murders. serving “Red” Ricky assertions of how theory ports the basic defensive primary appellant Roosa was the actor and bad punishment stage that it was Red’s simply did what Red told him to do. appellant path influence that set down the murders, discussing ap- When the actual ego’s murder of his aunt. toward alter pellant stated: Chapman Peoples] analysis, may we also [Clark When little Boo walked Under in, Red, him, Boo, Ricky, hit little with a extent to which the error was consider the closing hit three ar- emphasized by barbell. He him more than the State.39 to times. He the Akin hollering. guments, Little Boo was the State referred prosecutor to me him The first ad- grab fell the floor. Red told statement twice. I of the statement and hold him. held little Boo down dressed the voluntariness pointed him hands. to other sources evidence while Red choked with his and information as that supplying Red little Boo harder the same hitting started hyped Red was from this shit. contained in the statement: harder. guilt] from fail- Chapman, draw inferences of

39. See 386 U.S. at could ex (stating petitioners testify”); to United States to ure of comment on defendant’s failure Lane, (holding Savory testify 832 F.2d at not be harmless when reí. could deemed because state’s "prosecutor’s argument judge’s Miranda harmless trial error case, strong as state’s as well jury continuously to the and re- otherwise instruction evidence). jury relatively use the tainted peatedly impressed jury limited [the that statement, The issue of voluntariness is before because what says he you Ricky me, again. you issue voluntariness of Roosa asked do know statement, anyone money. the defendant’s and I want to And that’s where it begins. you_I put address that head-on with

together every piece here of evidence Although we find this to reference you many that will show how times the erroneously-admitted statement somewhat specifically defendant was Mi- troubling, response it was a to the defense warnings.... randa And no than fewer closing argument concerning appellant’s two, one, three, four, five, six, seven role in minor the double murder and more from September 11 September times (“And of a rhetorical flourish that’s where go 21st did the defendant have someone begins”) any disparagement it than over his adult with him. I theory. defensive point, imagine qualified, at that Further, by the Akin statement no them give somebody else. I would appellant’s means belittled mitiga- overall imagine he by knew them heart then. proposition tion case—which rested on the But let’s or say one two or three of that suffered from a dissociative you you decide that don’t way like the mental disorder manifested in a second Akin Ranger took the For statement. personality called “James.” Defense wit- that, you those of you who decide know Jones, Freeman, nesses Keisha Paula [appellant] everything admitted presence Finn Dr. each about testified you testimony Keisha. And have her on ego, of appellant’s alter James. James issue, too. So one shouldn’t aunt, only but appellant’s was made to kill hang you up at come you all. Whether Red kill Sand- help because had that, yes, down the side was a it Peoples. ers and Neither at nor on trial waiver, knowing six, op- he had seven there appeal appellant argue does portunities to hear those he before dispute had, fact, any participat- that he or, no, to talked the wasn’t Ranger; it Peoples. ed in the murder of Sanders and voluntary, you and want to off on go find that were no im- We there collateral say. what Keisha had to plications, to de- appellant’s detrimental fense, taking that stemmed from or the prosecutor pointed The second Akin to the itself.40 admission of the Akin statement as refuting statement evidence notion the surprised appellant that was Red when Thus, jury the we cannot conclude that Peoples: killed weight placed any particular would have well, says, upon And counsel for the defense the deliberat- Akin statement when issues, surprise given it awas to this defendant that ing special punishment on the Roosa, Red kill Ricky going or was to of other ad- quantity quality Well, Peoples. you Clark his their supports know missible evidence which statement, I you findings.41 ask to look at his (conclud- Germany, 40. See 639 F.2d at 1303 no mission of defendant's statement "had ef- fect, effect, ing erroneously that admitted statement much the con- less an adverse on defense”; peti- did defendant not "contradict either of duct of admission of [defendant’s] defenses,” thus, tioner’s “when faced non-Mirandized statement did not affect theo- overwhelming defense). untainted evidence ... and ry of peripheral impact incriminating of state- petitioner’s strength Harrington California, ment on of asserted 41. See U.S. defenses,” harmless); (1969) Harryman, error 23 L.Ed.2d 284 (noting (any judgment F.2d at 877 n. 15 that ad- erroneous as to the harmfulness consti- confident, any he had not formed beyond are a reasonable ski stated We as an audience doubt, opinions about Sanders that the erroneous admission and did not believe member or a witness materially Akin did not contrib- statement way biased one or the other. would be jury’s finding ute to the there is a information, appellant of this On the basis probability that would commit or, discharge court to Guminski asked the criminal acts of violence that would consti- alternatively, grant a mistrial. continuing society.42 tute a threat We options parties court to brief the asked that, Akin are also had the state- confident Upon reconvening, ap- over the weekend. erroneously ment not admitted into been of- pellant that no evidence be proposed evidence, is there no reasonable likelihood Appellant also fered about Sanders’ son. might an affir- jury have returned question be Gu- asked that he allowed to mitigation special mative answer to the Appel- bias. possible minski to determine issue. only by asserting lant that the concluded emphasize that a confes- We defendant’s real The court remedy a mistrial. generally likely profound a sion to have mistrial, grant- denied his motion a but impact jury, especially on a at the guilt ed his addi- request call Guminski for Nonetheless, stage trial.43 questioning. tional 'partic- evidence and circumstances in this had Guminski testified that Sanders case, Akin ular the admission of the state- supervisor been at the Colonial Coun- his punishment stage during ment try they Club. He stated that harmless beyond reasonable doubt. work, but did not have friendly terms Point of error one is overruled. relationship, that he had not had social past year- in the any contact with Sanders concerning jurors. II. Claims that he had and-a-half. Guminski testified concerning discharge A Claim aof knowing a “a of uneasiness” about little bit juror. if potential witness and further stated error, point In his second had he were to learn that suffered Sanders by refusing claims the trial court erred loss, probably some he would have type appellant’s grant upon motion for mistrial him than he would empathy more toward knew, juror learning that a and would be stranger. Appellant renewed toward a by knowing, affected the father of the vic- alternative, and, mistrial in the motion for tim of an presented extraneous murder at “impaired.” that Guminski was asserted punishment. During guilt or innocence requests, The denied his and Gumin- court trial, phase juror of David Guminski re- Guminski ex- questioned ski was further. Sanders, ported recognized that he Ed of plained his as the result uneasiness courtroom, present who was as a he worrying that had overlooked Sanders’ former coworker. was the father also Sanders name on the witness list. He testified Sanders, im- of Mark but was not he he could be although Guminski that believed partial, help aware of connection to case. he could not “but think a little Sanders’ chambers, leak empathy going court in Gumin- bit of to out Addressing the Wainwright, reviewing v. 407 U.S. at 372- tutional error must be based on the 42. See Milton 2174; Florida, 405 reading S.Ct. Schneble court’s “own of the record and on 429-32, 92 U.S. at S.Ct. 1056. probable impact have what seem to been the on the minds of [inadmissible evidence] McCarthy, average jury”). 65 S.W.3d at 56. an Appellant re-urged [Sanders’] favor.” party his claim or excuse a option for the motion for only appropriate mistrial as the chosen.46 Point of error two is overruled. remedy. alternative, however, ap- As an pellant requested that be ex- Guminski concerning B. Claim the definition of The granted appellant’s cused. court al- “criminal acts violence. ” of request ternative and excused Guminski. point error, his third of Appellant now claims on appeal trial court by instructing claims the erred remedy of discharge inappropriate be- juror prospective a that the definition of cause bias is not a disability under Article “criminal acts of violence” includes 36.29(b). During threat of violence. appellant’s .voir Appellant’s point complains of of error juror, dire prospective following of a trial court’s failure grant motion exchange occurred: not, however, Appellant for mistrial. does I out point [Defense counsel]. want to present any argument authority in sup- or thing. one talking other We are not port his claim that the mistrial should is, says about—it the probability would granted. have been Appellant has there- commit he criminal acts It of violence. adequately

fore failed to this brief mistrial say, does not with threats of violence. Tex.R.App. 38.1(h). issue. P. say, get It doesn’t would It fights.

Appellant’s said, argument and authori commit vio- would criminal acts of are all ties directed his contention lence. That means a criminal in- toward act the trial court’s are discharge Guminski volves violence. Common words inappropriate your Al and un- understanding. under Article 36.29. use You though appellant argued it say at times before derstand does not a threat trial court discharge under Article or was there It violence misconduct. inappropriate, 36.29 would be he nonethe has to be a criminal act of violence. proposed discharge less as an alternative I Judge, going [Prosecutor]. am to ob- to mistrial at least three times. Because ject. object I I am be- going think appellant requested discharge as an speech, cause I think act does include mistrial, estopped alternative to nowis certainly may a threat of be violence complaining Appellant from about it.44 act criminal under the law. option had the at trial contending objec- The trial court sustained the State’s appropriate mistrial was the sole legal and tion, upon motion the State remedy, and he could declined to have juror disregard, instruct the court support or suggest any By alternatives. juror: instructed the proposing estopped alternatives he is from complaining on appeal judge about will be of vio- jury looking acts having accepted one of them.45 Parties lence inasmuch as a involves threat choices, conduct, are often faced with difficult but it could be an act of violence facing a tough dilemma not create a on what depending jury does the decides. State, State, Prystash v. v. 70 S.W.3d See Benson 496 S.W.2d 44.Cf. (Tex.Crim.App.1973) (stating "[ajppellant (Tex.Crim.App.1999) (holding that because complain be heard to the cannot now because requested defendant deletion of issue from for”). granted court him what he asked jury charge, complain- estopped he was from ing appeal). about its absence on State, Ripkowski 46. See S.W.3d (Tex.Crim.App.2001). disqualifica- simply marked the jurors had objected the court’s instruc- Appellant to juror the on the front of they tion claimed tion, was not a crimi- arguing a threat affirmation signing the cards without The court overruled nal act of violence. claimed veracity the swearing to objection. appellant’s this Appellant claimed disqualification. reminding After the ven- properly provisions, procedure statutory violated “looking ireperson jury that the would be attachment, a sought he a writ of violence,” of the remainder of the at acts the to allow time to summon continuance would in the clarified that it be instruction jurors, quashing and a prospective absent the a jury discretion of to decide whether panel. of affected and, so, if whether threat involves conduct then an act of violence. it would constitute a meth provides Article 35.01 ju with lan This instruction is consistent absent for attachment for od writ of mandatory, trial court not guage “directory, of the issue. The did rors. It is of giving governmental err in the instruction. Point of misconduct in the absence venire, failure to error three is overruled. in summoning error grant not reversible attachments concerning denial C. Claims units To injury.”47 of of appellant unless shows jurors, prospective attachment for showing injury, appellant of must make continuance, to quash or motion an he was to take demonstrate that forced panel. “objectionable juror”: juror, in error, An in the sense objectionable point appellant In his fourth connec- term is used in this which the the trial in his denying claims court erred tion, against such “one whom means requir- for attachment application writs of likely challenge exists as would cause for appearance prospective jurors ing the impartiality competency or his affect his disqualifications submitted purported who in cards, trial.”48 juror contrary jury on unsworn procedures. point In selection of error points place in Appellant to the five, appellant claims the trial court erred jurors he identified two record where his denying motion for continuance allegedly but who were who were seated time for provide process service for However, appel “objectionable.” because In sought-for writs of attachment. any point then or now lant did not six, point of error claims the trial support allegation of his evidence in denying quash court erred his motion to cause, jurors challengeable these jury panel alleged due to the noncom- show he has to meet his burden of failed pliance procedures. jury selection challenge- ing accept two was forced points together. briefs Appellant these four, five, jurors.49 Points of error able and six are overruled. the venire Several members of mailed Ap- juror claiming disqualifications. cards III. and search issues. Arrest complained allowing mail-in pellant about error, point seventh exemptions pointing disqualifications, by admitting claims trial court erred prospective that some of mail-in out State, 49.Id.; Dowthitt, 844 S.W.2d also Cooks v. at 251. see 931 S.W.2d (Tex.Crim.App.1992) (applying Ste- State, juror” al- "objectionable to phenson test for v. Stephenson 494 S.W.2d 48. procedures). leged injury selection (Tex.Crim.App.1973). error during pursuant evidence seized Municipal arrest Judge Court Larry to an allegedly illegal arrest Ap- warrant. Reed signed testified he capias the pellant argues Judge Reed, Larry pro calling appellant’s warrants for fine who capias pro issued the traffic war- fine arrest pay due to his to failure the fines upon rants appellant’s which arrest was imposed for traffic various offenses. He based, probable did not have cause be- explained that he reviewed the file in each cause he personal lacked knowledge that case. Each complaint file contained a and the paid. fines were not judgment. judgment Each ap stated that provides

Article 45.045 for the pellant offense, was found of the guilty set issuance of capias pro a for a defen assessed, forth the fine amount of fine dant’s “if arrest defendant is provided Judge the due date. Reed testi custody judgment when the is rendered or reviewing fied that judgment after each to if the satisfy defendant to judg fails numbers, verify dates if the file con ment according its terms.” While a notation, receipt, tained no or documenta capias judgment is issued a after has been stating tion from the clerk the fine defendant, against rendered it must paid, assessed had been he would then still be supported by probable cause.50 determine the of the amount increased fine But judgment against because a a defen and issue the capias pro Judge Reed fine. dant signifies finding a beyond a reason further testified that had been a munici able doubt has that he committed the pal judge years for four over and had offense, charged we have held in the con attorney worked a city as for fourteen text of parole a that a judgment violation years prior Judge Reed testified that. coupled finding by with a the court that that he approximately reviews 600 to 800 there is a “reason to believe” that appear files week for failure to or failure defendant has violated conditions of his satisfy traffic offense judgment parole will probable constitute sufficient cases pro and that the standard this was cause to support parole the issuance of a cedure in all violation such cases. warrant.51 While a traffic viola tor, parolee, subject unlike a is not to a experience in years Given his judgment term imposing imprison procedures municipal of the court and his ment, the judgment establishing the traffic knowledge reliability sys- as to the violation carries nonetheless considerable office, tem and of the clerk’s operation weight validity because it is based Judge adequate Reed determina- made an upon a finding beyond a reasonable doubt. tion that reason to there was a believe the Thus, violation, a judgment a traffic judgments appel- had not satisfied been together finding the court that lant’s cases. The trial court did not abuse the defendant failed to satisfy has its concluding probable its discretion in terms, comprise will probable sufficient cause support cause to existed to issue the arrest warrant. capias issuance pro Point of error overruled. seven is fine.52 Sharp parole See pursuant S.W.2d arrest valid violation State. 1984). (Tex.Crim.App. warrant where based on "reason to issued believe” defendant violated conditions of had State, (Tex. 51. Garrett v. 791 S.W.2d cause). parole probable rather than Crim.App.1990) (holding parol that because ees rights per are not afforded same as id.Cf. crime, merely suspected committing sons error, appellant error, point ninth of point appellant In his eighth In his of admitting court erred in claims the trial admitting in claims the trial court erred Ap- from residence. evidence seized as a result of the the evidence obtained illegal the search was pellant argues that Hyundai in illegal search of the allegedly to con- pursuant conducted because it was immediately a passenger which he was appellant third-party sent from a who Appellant argues his arrest. that before of authority to allow a search claims lacked the not Hyundai the search of was made appellant’s personal effects. pursuant to a lawful or a valid need arrest safety. for officer house Freeman the Paula owned sup testified at the searched. Freeman previous in established We was her pression hearing appellant that arrest, that un point appellant’s of error her he lived with boyfriend and that had warrant, regardless legal. der And of couple of Freeman years. off-and-on for a justified the search was a need whether that, day on the after Ms. testified safety, appellant for has failed to officer murder, she to let Bryant’s agreed legitimate, that he reason establish had house, knew officers and she search in expectation privacy of the car.53 able appellant’s they searching that Hyundai, driving Paula Freeman was Specifically, testi clothes and shoes. she appellant hiding floorboard looking for fied the officers were that in ap the backseat when Officer Serra matching description she herself clothes proached Appel the car gas at a station. appellant had them of clothes suggests standing lant has contest Ms. night Bryant’s wore on of murder. based the search on the fact that he had she Freeman understood stated previously received traffic tickets while Free be seized if found. items would Hyundai. driving the But of laun appellant’s she did man testified that permission fered no evidence that he had she sometimes dry at her house instances, drive the car those that he The officers appellant’s wore clothes. any permission had continued drive the clothing and a appellant’s seized of some car, had any or that he interest possessory appellant and Red Roosa. photograph of it. The fact had driven previous car on occasions does person validly may A third that he any per establish had continued “equal when he has consent to search so, ownership do mission to had an or a property use equal control and of car, Further, possessory authority interest in the or otherwise searched.”55 “common expectation privacy proper a reasonable mutual had derives from the use ownership ty, not or lack thereof.”56 eight it.54 Point of is overruled. error Flores, State, (Tex. pectation S.W.2d at privacy); S.W.2d 53. Flores legality Crim.App.1993) (stating (holding when to es- 719-20 that defendant failed issue, is in defendant bears burden search standing registered to his tablish in vehicle rights privacy were vio proving that his own defen- there was no evidence mother where lated). car). right in or to use dant interest had State, Hughes v. 24 S.W.3d 54. See State, (Tex. 93 S.W.3d 55. Welch v. (Tex.Crim.App.) (holding that defendant as Crim.App.2002). standing car passenger in did not have complain of evidence of search in absence 56. Id. possessory showing interest or reasonable ex- 788

Freeman shared mutual use of her Ginny Veniremember testi Smith with fied a criminal act house such that she had that of violence meant “murder or ... a violent authority grant [such to crime as] consent to a search of rape stabbing.” by When asked de Appellant the entire house. not does dis- fense counsel whether a threat to kill pute authority Freeman’s to consent enough someone would be or whether a house; instead, of her search he claims she “mere threat” would be sufficient to consti authority had no to consent to seizure society, tute a threat to Smith that stated personal of his effects found there. But Appellant it challenge would. moved to the officers did not need Freeman’s con- ground Smith a did on threat seize sent to evidence of a crime found violence, an amount to act of such scope within of a lawful The search.57 a definition decreased the State’s burden trial court did admitting not err in proof. of The trial court the chal denied evidence. Point of error nine overruled. lenge. A might reasonably threat be viewed as Challenges IV. for cause and excusal something accomplished by that could be venirepersons. instance, acts or For a threat of words. ten, point error claims by brandishing can be made or violence court by overruling the trial erred a chal- weapon.59 a can be displaying Threats lenge venireperson for cause against a who profound impact a coercive and have on a mere threat of to be a viewed violence person they to whom are directed.60 act of point criminal violence. In of error Thus, attach permitted a Smith twelve, appellant claims trial court reasonable, commonly accepted meaning to in denying appellant’s challenge erred for the term “criminal act and the of violence” against prospective cause a on juror trial court acted "within its discretion ground juror that the “crimi- would define appellant’s challenge against her. denying nal property act violence” as a including Venireperson Perkey tes William crime with no attendant violence. during tified voir dire counsel by defense phrase act of vio that, view, “criminal property in his crime like legisla lence” has not Appel been defined theft criminal act is a of violence. Therefore, jurors presumed ture. are suggest lant this Court seems meaning attach common or understand rule that bright-line should establish ing to the terms.58 criminal acts of property offenses are not 731, 740, 64, State, sion); Cupp, 57. See v. 394 U.S. 89 S.W.2d 67-68 Michel v. 834 Frazier (1969) (holding 1992) S.Ct. L.Ed.2d 684 (holding (Tex.App.-Dallas threat with personal could officers seize effects of defen- criminally shotgun re rendered defendant bag which were dant found in a duffle defen- sponsible party robbery). as aggravated person shared dant with third and which person were evidence of a crime third when ("coercion” 1.07(a)(9) § 60.See Pen.Code Tex. gave bag). valid consent to search "threat, defined Penal Code however as State, communicated”); see also Whiteside State, (Tex. 58. Ladd v. 3 S.W.3d 572-73 401-403 115 Tex.Crim. S.W.2d State, Crim.App.1999); Garcia v. 887 S.W.2d (1930) (op. reh’g) (recognizing homicide (Tex.Crim.App.1994). may pursuant be committed to threats State, (Tex. 59. Huddleston v. S.W.2d they gestures intimidation and where cause Crim.App.1983) (concluding carrying leapt be so from victim to terrorized that she knife 3-inch blade was sufficient to show window). deadly kidnaping provi threat force under service from venireperson’s excuse ing a the law does not define violence. Because reason, pres- outside the violence,” Perkey pre- of for an economic “criminal acts attach his counsel. Sum- the term and and sumed to understand ence of Thus, meaning.61 the trial submit- venireperson to it a common Sean Cerone moned deny- he be asking court did not abuse its discretion to the court ted a letter appellant’s challenge against for cause ing January jury duty on from excused ten and twelve Perkey. Points of error he dates that suggesting other and overruled. are could serve: juror response to a is in This letter appellant’s point eleventh of er In 21 to December I on summons received trial court erred

ror he contends that the January juror Thursday as a serve challenge against for cause denying his for to be excused requesting 2001. I am appellant claims would venireperson a who I am a to the fact that that date due automatically special the first issue answer setting and private practice in a dentist unless the defendant was in the affirmative pa- my cover available to have no one Venireperson incapacitated. physically relatively With that appointments. tient during Woolsey initially testified Hollis notice, day full of already have a I short that once the by voir dire defense counsel day and cannot patients scheduled that mur guilty capital found of defendant was diffi- extreme reschedule them without der, person to be a he would consider and hardship to both them culty and Woolsey testified that continuing threat. to com- very willing I would be myself. negative answer the issue in the he would fu- in the near jury summons mit to a physically incapacitat if the defendant was pa-my arrange I better ture when can in a wheel way being ed in some such as and care responsibilities scheduling tient and being years chair or “60 old diabetic.” I be out. while would my patients for by whether When asked defense counsel physically the defendant would have to be approxi- generally schedules My office “proba incapacitated, Woolsey responded out, may suggest I so mately 8 weeks However, explained bly.” when the State 6, 2001, 30, 2001, as April or March automatically could not answer that he my arrange properly I can dates when only in the affirmative based on that issue adequate to allow office schedule have to consid finding guilt, but would your appreciate I my patients. care evidence, Woolsey agreed all of the er Please re- in his matter. understanding would do so. ply- to listen to Woolsey’s agreement Given the trial court provides that Article 35.03 answering spe- all the evidence before excuses and determine then hear “shall issue, its trial court did not abuse cial if juror, serving as for not offered challenge denying appellant’s discretion sufficient, the the excuse court deems eleven is over- Point of error for cause.62 juror postpone or discharge the shall court ruled. specified to a date juror’s service statutory restriction error, the court.” appel- point

In thirteenth his pro- provides that appellant relies by grant- which trial court erred lant claims the Garrett, at 859. 851 S.W.2d may Venirepersons decide for themselves finding to a what evidence would amount danger- of future beyond a reasonable doubt State, 851 S.W.2d See Garrett ousness. (Tex.Crim.App.1993). spective juror may imposition not be excused for “an cious of the death penalty. economic presence reason” without complaints Identical have been addressed approval parties.63 of both rejected by this Appellant Court.66 no arguments concerning makes new this Cerone did not ask to be ex claim. Point of error fourteen is over- cused because he needed the income from ruled. patients days; on those rather his let ter scheduling problem error, describes a due point ap his fifteenth the short notice. This is apparent pellant from penalty claims Texas death suggestion of other dates on which he Eighth statute violates the Amendment as would be willing to serve that would Penry v. Johnson (Penry interpreted allow in II),67 him enough arrange time to his schedule. mitigation because the instruction postponement jury The of jurors. service because signals” Appel sends “mixed of pre-existing scheduling conflicts is lant argues statutory mitigation not that person’s the same as a claim that he can instruction his case suffers from juror serve as a because he would lose sending same constitutional flaw of income as a result of that signals” service.64 The “mixed as the court-made nullifi trial court did not abuse its discretion in in Penry II cation instruction submitted concluding that Cerone’s letter was not statutory mitigation because the issue is asking to be excused for an “economic proof. Except unclear as to the burden of reason.”65 Point of error thirteen is over flatly asserting mitigation that the is ruled. sue sends signals” “mixed because it is proof,” appel “unclear as to the burden of concerning V. Claims the constitution- lant explain way does not in what this ality penalty of the Texas death apparent lack of clarity constitutes a statute. like that at issüe in Penry signal” “mixed error, II. In light In his point appel- fourteenth previous holdings of our that lant claims the Texas death penalty mitigation statute issue is not unconstitutional Eighth violates the Amendment assign proof, because it for its failure to a burden of jury allows the any too much discretion and has not convinced us of con lacks minimal guidelines standards and stitutional error fifteen is flaw. Point of necessary to avoid an arbitrary capri- overruled. job, 62.110(c). individuals have resulted in loss of would § Tex. Gov’t Code salaries, wages, compensation, suffer loss of See, State, 218, e.g., Ott v. 627 225- S.W.2d burden, ing of other economic financial or 1981, (trial (Tex.App.-Fort pet.ref'd) 28 Worth consequences), grounds, overruled on other judge pro had discretion to excuse fourteen State, Bigby (Tex.Crim.App. v. 892 S.W.2d 864 spective jurors scheduling because of business 1994). conflicts; noting jury service is "[w]hile essential, people vital and ... some called for State, 385, (Tex. 66. Moore v. 999 S.W.2d 408 notice, jury service relatively simply on short State, Crim.App.1999); Pondexter v. 942 serving have problems insurmountable in a 577, 1996). (Tex.Crim.App. S.W.2d 587 particular recognized by week that must be judge”). the trial 67. 532 U.S. L.Ed.2d (2001). State, opinion We refer to the Court’s as 65. See v. White 591 S.W.2d “Penry confusing II" it with the (Tex.Crim.App.1979) (concluding job-re oavoid Penry Lynaugh, opinion Court's v. by prospective ju lated excuses offered five earlier rors were not for "economic reasons” in 492 U.S. S.Ct. 106 L.Ed.2d ab (1989). showing jury sence of service for these “pre- error, penalty beyond increase the point of

In his sixteenth Arti- statutory maximum.” Under penalty death claims the Texas scribed maxi- 37.071, statutory process require “prescribed violates the due cle statute are no Amendment There ments of the Fourteenth is fixed at death. mum” finding proof jury A implicitly placing the burden statutory enhancements. jury requiring than that a have the appellant rather does not mitigation issue on the appellant on that finding against penalty beyond make a increasing the potential of Appel maximum, beyond a reasonable doubt. issue rather statutory prescribed that, New Apprendi under argues pre- lant reducing the potential for it has the unconstitu Jersey,68 the Texas scheme is to a sentence statutory maximum scribed finding jury failing require tional for error six- Point of imprisonment. life are a reasonable doubt that there beyond teen is overruled. that would mitigation no circumstances is af- the trial court judgment Thus, appellant

warrant a life sentence. firmed. claims, proof would be the burden prove beyond a reasonable State KEASLER, P.J., KELLER, joined by do mitigating that the circumstances doubt J., concurring opinion. filed a not warrant a life sentence. JOHNSON, J., J., WOMACK, joined by Article inapplicable Apprendi dissenting opinion. applies findings to fact filed a Apprendi 37.071. (2000). L.Ed.2d

68. 530 U.S.

APPENDIX Warnings given KELLER, P.J., I. before oral concurring filed a interrogation were sufficient KEASLER, opinion joined. in which J. The issue A. one, point With I regard error Miranda,1 would find that there was no given Miranda warnings Appellant was five he made the violation. different times before Arizona, (1966). 1. 384 U.S. 16 Miranda v. L.Ed.2d 694 six to warnings given also found that he now contends is inadmissible: statement (1) would have satisfied by eight hours earlier September on 11th Detective Gates (2) interview, In Septem- of Miranda.4 connection initial on dictates before an (3) discussion, cited some out-of-state by magistrate, September on our we ber 12th a Miranda accompa- proposition by 12th before cases for Gates unlimited “are not to be accorded warnings nied him to various locations to corrobo- (4) alibi, were also not September perpetuity” 12th or but efficacy rate his later on (5) Gates, by the mere automatically extinguished on by for a interview second cited two out-of- September Appel- passage a of time.5 We by magistrate. 19th that Mi- Akin, proposition for the Ranger of which state cases lant’s statement effec- randa just days warnings may be considered complains, given he now was two later, days two or three September given 21st. There is a tive for statements only passing previous also cited a Texas threshold issue addressed later.6 We of time with Article 15.177 admonish- by passage dealing the Court: whether case warnings warnings proposition caused these five sets of to lose for the ments may effectively given If ef- cover a confession they their effectiveness. were still appellant gave days when later.8 fective his statement six Akin, then there was no Miranda viola- jurisdictions C. Other Supreme tion. the United States While particular has never addressed this seen, Court only not the may As be Texas is issue, issue this Court has discussed the after Mi- state to discuss the issue. Soon before, said, once and this and similar issues decided, randa the First Circuit States, have been addressed in numerous federal Gorman United that automati- and state courts. suspect to be warned on cally requiring a multiple occasions misunderstands authority

B. Texas purpose for which the warn- trivializes ings given: are Bagley, Ex Parte In suspect the Miranda Miranda by think that given warnings arresting offi- do [W]e thresh- prescription, give a formulated to magistrate.2 Subsequent cers and fifth and sixth amend- polygraph warnings old before time rights at the earliest critical complained exam and before the of state- ment ment, ought or proceeding, criminal must completely but it was not clear when mechanistically duplicated subsequent warnings these were ade- to be advisability indicate the ultimately de- circumstances quate.3 Although this Court search. the first immediately pre- requesting second warning cided that advocacy of an automatic second- place, we ceding adequate, the statement was States, Maguire F.2d 327 (Tex.Crim.App.1974). v. United S.W.2d Cir.1968), denied, (9th 393 U.S. rt. ce Id. at 335-336. (1969)). L.Ed.2d 792 S.Ct. 4. Id. at 337. Maguire). (citing Springer and 6. Id. Hop (comparing v.

5. Id. at 337 United States 15.17, Criminal Pro- Cir.1970), 7. Texas Code of Article kins, (5th de ni 433 F.2d 1041 cert. cedure. 1013, 1252, ed, 28 401 U.S. 91 S.Ct. (1971) Spring States v. L.Ed.2d 550 to United denied, er, (7th Cir.), Bagley, (citing Charles v. 509 S.W.2d 338 8. F.2d 1344 cert. 409 460 State, 873, 205, (1972) (Tex.Crim.App.1967)). 424 909 S.W.2d U.S. 93 S.Ct. 34 L.Ed.2d 125 796 warning, which was Hammond’s

warning system misunderstands Officer adequate to meet the Miranda clearly warnings by downgrades required the standards, days before the came three Miranda. Their purpose was not to add Tur- by Agent interrogation police procedures perfunctory a ritual to thus, by warning given if the nage; even procedural safeguards but to a be set insufficient, the Turnage was their persons right “to inform accused apprised he had not been could not claim opportunity of silence and to assure an of the Miranda warnings.13 to exercise it.”9 Springer, suspect the States v. United In year, Supreme The next the Illinois Court 16 and orally Mirandized May on Hill, People followed Gorman’s lead. In May 18.14 warnings on given written police suspect a questioned detective the believed Though the Seventh Circuit multiple during peri- three hour times it wrote adequate, be warnings to written suspect the first od.10 The was warned on uphold precedent “there is not re- warnings occasion but those were if had been no even there confession” during subsequent newed interviews.11 warnings May 18.15 court held that “once Miranda’s man- longer that even courts have held Some complied date was with at the threshold of warnings and periods between questioning necessary it was not if the defendant permissible are statement repeat warnings beginning at the In warnings. if he recalls the is asked adopt an each successive interview. To Diamond, passed Biddy v. days twelve second-warning system automatic would the initial Miranda warnings between police perfunctory to add a ritual be Before the question.16 the statement procedures providing rather than statement, in her that resulted questioning procedural safeguards meaningful set of if remembered suspect asked she 12 envisioned Miranda.” answered affirmative- rights, her and she sure, response between To be the time intervals In her affirmative ly.17 light of short, in Hill exer- previously successive interviews had and the fact that she apply counsel, come to Fifth Circuit but other courts would right cised her Miranda warnings principle longer to much time intervals. held that the earlier States, v. Wain- Maguire v. United effective.18 Martin In the Ninth remained be- wright, held that Miranda week-long interval warnings re- there was a Circuit and the sus- tween Miranda statement made mained effective that it The court found pect’s statement.19 days three later: 158, (1st Cir.1967). id. 9. 380 F.2d 164 Cir.1975), 367, 369, 118, (5th 125, cert. 233 N.E.2d cert. 16. 516 F.2d

10. 39 Ill.2d 1724, 950, denied, denied, 96 S.Ct. 88 S.Ct. 425 U.S. 392 U.S. (1976). (1968). L.Ed.2d 194 L.Ed.2d 1394 11. Id. 17. Id. 131-132, (citing

12. Id. at 233 N.E.2d 18. Id. Gorman). (11th Cir.1985), modi 770 F.2d Cir.1986), (11th fied, 13. 396 F.2d at 331. cert. de 781 F.2d 185 nied, 93 L.Ed.2d U.S. (1986). 281 14.460 F.2d at 1353.

797 indicated, light in of suspect warnings was sufficient that lier were sufficient immediately subsequent recognition before the inter- clear of his defendant’s view, rights.20 that he still right understood his silent.27 The Iowa Su- remain preme Court has held that Miranda Similar results can be found in cases warnings remained effective for a state- from various state courts. The Alabama days warnings ment three after the made has found Mi- Appeals Court Criminal suspect given, were where the acknowl- randa warnings remain effective after edged that he had been advised of his days, an interval of three or four at least appeals In rights.28 a Missouri court of suspect affirmatively where the indicated case, the defendant had been advised of that he rights.21 was still aware of his his Miranda rights on two consecutive addressing requirements constitutional later, days.29 days Two the defendant Illinois,22 under Escobedo v. the Arizona made a statement to the same detectives to Miranda Supreme analogized Court but without further administration of Mi- cases and held that an Escobedo warning randa warnings.30 The court held that silent) (right to remain did not need to be warnings unnecessary.31 new repeated interrogations that occurred Supreme Missouri Court has since cited thirty-six twelve and hours later.23 In an proposition “[t]he this case for the case, Indiana the defendant had been ad- lapse receipt mere time between his Miranda rights vised once in Octo- Miranda and the of in- warnings giving November, ber and times in three but culpatory require does statements January, at urging girlfriend, of his of the statements.”32 In a exclusion he told authorities he would make a state- case, Washington the defendant if was ad- prosecutor ment came within twen- vised of his Miranda came, rights ty minutes.24 The Canada.33 prosecutor later, days Four he interrogated the defendant made statement.25 No Mi- Although warnings were administered that Seattle.34 randa Supreme warnings, time.26 The Indiana these were wo- Court held that the statement was not the result of ven into the conversation.35 The Wash- were, interrogation, but even if it ington Supreme ear- Court held that it would Russell, 490, 20. Id. at 930-931. 28. v. 261 N.W.2d 492-495 State (Iowa 1978). State, 583, Ala.App. 21. Johnson 56 324 298, (Crim.), denied, So.2d 302 cert. 295 Ala. Brown, 311, (Mo. 29. State v. 601 S.W.2d 314 407, (1975). 324 305 So.2d E.D.1980). App. 478, 1758, 22. 378 U.S. 84 S.Ct. 12 L.Ed.2d 30. Id. (1964). 977 31. Id. Gilreath, 318,

23. State v. 107 Ariz. 487 P.2d 385, denied, 921, (1971), cert. 406 U.S. Groves, 82, (Mo. State v. 646 S.W.2d 32. 1781, (1972). S.Ct. 32 L.Ed.2d 121 1983). State, 360, 24. Jackson v. 268 Ind. 375 N.E.2d Blanchey, 33. State v. 75 Wash.2d (1978). denied, (1969), P.2d cert. 396 U.S. (1970). 24 L.Ed.2d 688 25. Id. 34. Id. Id. 27.Id. Id.

798 In Ro- warnings not the passage decide whether Seattle vitiated the of time.41 were sufficient because the defendant had ger, warnings given days the were twelve been admonished Canada and his con- before statement at issue.42 The Ne- versation indicated that was still aware jurisdic- court vada observed other rights.36 of his upheld tions have statements that occurred week, day, a a or even two weeks after the confronting longer While not time these administration of Miranda warnings.43 periods, courts other state have cited some Nevertheless, de- proceeded the court of the for the proposition above cases liberation, long time interval due to suspect always need not of be re-advised totality his Miranda considering involved.44 After rights.37 while there are And circumstances, cases all the fact stretching way including back to when decided, Miranda there are recent suspect indicated she that the remembered cases discussing issue as well. In held rights, her the court understood 1995, the Ninth Circuit Ma- reaffirmed not to be re- warnings that the did need guire’s lapse holding that a in time did not peated.45 vitiate Miranda necessarily warnings.38 There are in which courts have instances That year, Supreme same the Delaware warnings ef- Miranda held that lost their balancing Court uphold used a test to In passage fectiveness with the of time. admission a confession given of short J.D.H., Parte Ex Supreme the Alabama interval after Miranda

time warnings.39 that Miranda held warnings Court Citing a of earlier number cases from oth- sixteen given not effective a confession jurisdictions, Supreme Wy- er of Court “a line days recognized later46 The court oming “The passage held 1999: mere of cases” from state’s Court of Crimi- a Miranda compromise time does not that once Miranda Appeals “holding nal warning, reject- and courts have generally the defen- warnings been have per requiring ed se rule automatic re- knowing, intelligent, dant has amade following delay.”40 advisement a time waiver, repeat 2001, voluntary a failure to Supreme joined Court of Nevada preclude jurisdictions warnings automatically will holding the chorus of Miranda automatically inculpatory are not admission an state- 1180, State, 36. Id. 39. DeJesus v. 655 A.2d 1195-1196 (Del.1995). 1176, Dugger, Herring 37. v. 528 So.2d 1178 (Fla. State, 698, 1988); v. Watson 227 Ga. 182 State, 717, (Wyo. 40. Mitchell P.2d 722 v. 982 446, (1971); Boyle, S.E.2d 448 207 State v. 1999). 849, 833, (1971); Kan. 486 P.2d 855-856 Peterson, 525, (Me. State v. 366 A.2d 528 428, 138, State, Roger v. 17 P.3d 41. 117 Nev. 1976); State, 1241, v. Moreno 504 P.2d (2001). 431-433 (Okla.Crim.App.1972); Commonwealth Abrams, 295, 902, 904-905 443 Pa. A.2d 42. Id. 432. 683, (1971); Cydzik, 60 State v. Wis.2d 421, (1973). N.W.2d 426-427 Id. at 43. 431-432. Pena, People Territory 38. Guam v. Id. at 432. (9th Cir.1995); F.3d 769-770 see also Andaverde, United States v. 64 F.3d (9th denied, Id. at Cir.1995), 432-433. cert. 516 U.S. 134 L.Ed.2d 199 (1996). (Ala.2001). 46. 797 So.2d Supreme merit.”47 The distin- taken twelve hours after the Court confession “[i]n administration of Miranda guished by observing those cases warnings.56 lapse none of those cases did the exceed a Pennsylvania Acknowledging earlier cases days few without at least a reminder of the holding always that an need not be accused warnings.”48 Miranda rights, of his the reinformed balancing court set forth a five-factor test Doe, Commonwealth v. In suspect, the determining previously given when Friday, on a made some comments after lose their warnings effectiveness.57 being given his Miranda Af- warnings.49 court would consider: being evening ter asked later that whether (1) between the last Mi- further, lapse cooperate suspect he wished to the time the randa warnings asked for time to think and the accused’s state- about it.50 On (2) police and, ment; Monday, interruptions continuity detective returned in the (3) Miranda giving without warnings, interrogation; asked whether there suspect if he ready cooperate change location between the suspect again further.51 The where the last Miranda asked for place warnings it, think more time to about the detec- but given place and the where the (4) tive launched into protec- a discussion of made; accused’s statement was custody suspect, tive and told the “We gave whether the same officer who get would at least like to gun back.”52 interroga- also conducted the response statement, In suspect to that statement; resulting tion in the accused’s (5) told they already the detective that had whether the statement elicited gun, as it they was the same one had complained during interrogation taken from an individual arrested for an- significantly differed from other state- robbery.53 other The Massachusetts Mi- preceded by ments which had been Appeals Court of suspect’s held that the randa warnings.58 reply should suppressed have been be- inadmissible, In holding the confession cause the failed to give detective a new set lapse court found that the time of twelve of Miranda warnings.54 The court found relatively long, hours was that the confes- that the earlier warnings were ineffective in a building sion occurred the same but lapse due to the of time and “the defen- (warnings different room administered expression dant’s of his wish for more time large homicide division office while state- deciding cooperate.”55 before whether to room), given ment interrogation small Wideman, Commonwealth v. securing officer confession was dif- Pennsylvania Supreme giving warnings, Court invalidated a ferent than the officer 47. Id. 54. Mat311.

48. Id. Although 55. Id. this decision is from an inter- court, appellate mediate it has been cited 308, Mass.App.Ct. 49. 37 636 N.E.2d Supreme ap- the Massachusetts Court with (1994). Rankins, proval. Commonwealth v. 429 Mass. (1999). 709 N.E.2d 50. Id. (1975). 56. 460 Pa. 334 A.2d 51. Id. 57. Id. at 598 Id. 53.Id. Id. materially

and the later D. statements were Evaluation different from earlier statements im- may be seen from the above discus- As mediately the warnings.59 after sion, jurisdictions indicated numerous have Finally, year, earlier this the West Vir- Miranda not be ad- warnings need ginia Supreme Court invalidated a con- immediately ministered before the state- days fession taken seven after the admin- distinguishes ment at issue. The Court istration of Miranda warnings.60 The some, that, in the these cases on the basis Miranda given warnings defendant was second, not in- interrogation did unwarned September three times on but others, officer, separate. in volve a while 9, 1999, interrogated was on September a the did not involve interrogation second any without further The warnings. court separate these are consid- offense. While jurisdictions discussed from cases other erations, various point the the in which a significant there was interval totality of the circum- used a courts have warnings between the and the confes- just in which these are analysis, stances upheld sion—both those that the confes- these By treating weighed. factors to be and sion those that did not.61 The court dispositive, the Court seems factors as potential- it “harmonized” what saw to be reject of the circumstances totality the ly contradictory by cases a applying simi- employed by other courts. While analysis lar, slightly but balancing different test this there are factual differences between Pennsylvania: from the in one articulated cited, in case of the facts and those some following totality-of-the [T]he circum- compare favorably this the others. case stances should be criteria considered: (1) the of the time between the length tak- upheld cases statements Some have giving of first warnings subse- one en time after substantial interval —in (2) quent interrogation; whether case, day two as long as two weeks. warnings subsequent interroga- and the period significantly shorter in this case is tion were or given the same different than cases in the statement some which (3) places; whether the were although was And found to be admissible. given and the subsequent interrogation a dif- by the interrogation was conducted conducted or same different offi- law to a different person (belonging ferent (4) cers; extent which the subse- was the statement agency), enforcement quent any pre- statement differed from appel- facility at taken at the same which statements; (5) apparent vious lant one his earlier given was at least intellectual and emotional state of the com- Miranda warnings. While suspect.62 different plained-of involved statement im- made lapse The court then decided that events than earlier statements Miranda days significant enough mediately warnings, after there seven was time alone, “as period public that it a matter is no reason to suffered believe have policy Virginia,” any West to from emotional that would sufficient state re-administration of Miranda impaired understanding earlier- require Moreover, warnings.63 given warnings. appellant had 59. Id. at 62. at 799. Id. DeWeese,

60. State v. W.Va. Id. (2003). S.E.2d

61.Id. 797-798. present case already distinguishes been warned on five different occa- The court (1) continuously sions and had been held in- from Elstad on two bases: Elstad custody County at the Tarrant Jail from mitigating circumstances surround- volved warnings. the first time he was those ing taking of the first statement If appellant forgotten had about the earlier (the present are not here first statement warnings, the magistrate’s admonishments inadvertently,” was obtained “almost there on the 19th served as a reminder. More- good giving warnings were motives for not over, warning, given by that latest a neu- time, at the and there some confusion party significant tral interval after the suspect custody), over whether the was in prior interrogations complete, should (2) present single, case involves a any have disabused of notion interrogation. continuous Neither of these applied that Miranda warnings only to the requires factors us to find a Miranda vio- earlier statements. lation. Finally, we should consider the fact that warned, again, once before A. Law signed

he his if written statement. Even problem with the first factor the One is sufficient, warnings by these were not suggestion police that a officer’s motive themselves, to render the written confes- purpose determining matters for the of a admissible, they sion certainly reflect on Considering subjec- Miranda violation. totality appel- the If circumstances. contrary tive motivations runs to the Su- surprised lant was warnings, these he preme objective spoken could Court’s use of tests for up have then. But he did determining not. He could even the existence of sign have refused to Miranda vio- despite Moreover, the statement his oral answers— holding lations.66 Elstad’s does such a refusal has occurred before.64 That appear depend upon to the motivations signed he the statement is further indica- of the officers involved or even on whether tion that rights he knew what his the Miranda violation was a of ob- result when he chose to participate further Rather, jective mitigating circumstances. interrogation. purposes the decision centers on the prophylactic Miranda’s rule.67 rule

II. Warnings given signing before broadly Fifth sweeps more than the of the written statement were provide pro- Amendment itself to effective sufficient against tection coercion.68 While violation presumption the rule creates of com- I would also hold im- warnings that the pulsion purposes admitting for the evi- mediately preceding appellant’s signing of chief, prosecution’s dence in the case in written statement rendered the state- Elstad,65 Oregon ment admissible under v. such a violation does not mean that actual State, 544, (1994)(a police subjective 64. See Henderson v. 962 S.W.2d officer's belief denied, (Tex.Crim.App.1997), cert. custody determining about is irrelevant to 978, U.S. 119 S.Ct. 142 L.Ed.2d 357 Miranda). applicability of (1998). Elstad, 306-307, 67. 470 U.S. at 105 S.Ct. 65. U.S. 105 S.Ct. 84 L.Ed.2d (1985). Stansbury California, 66. See 511 U.S. Id. 323-325, 128 L.Ed.2d 293 confession, result, then

compulsion police As a obtain a it is has occurred.69 Supreme unwilling up, police suspect typed Court has been hand the presumption compulsion -just pen signature, extend this his before and— declining police other to extend it his signs he advise him of contexts— —the impeachment, physical the discovery of ev- rights pro- ask him to Miranda (“fruits”), taking idence or the of subse- ceed.73 quent, properly warned statements.70 correctly holding If interpreted any improper “The absence of or coercion Elstad, in this then the Miranda tactics undercuts the twin rationales— any taint.74 dissipated case “automatically” trustworthiness deterrence —for a interpre- And there is reason to believe his warned, broader rule. Once suspect correct, pertained as it tation was at least free to in deciding exercise own volition necessity state- of a break between

whether or not to make a statement to the question, discussing ments. Consequently, “[i]t authorities.”71 is an Court said: unwarranted extension of Miranda to hold have Of courts that considered simple that a failure to administer confession properly warned whether unaccompanied warnings, by any actual pre- it was suppressed because must be coercion other or circumstances calculated clearly vol- but by ceded an unwarned suspect’s ability to undermine the to exer- admission, ex- majority have untary will, cise his so the investigato- free taints that recognized plicitly implicitly or ry process voluntary that a subsequent in requirement of a Westover's break is and informed waiver ineffective for some inapposite.75 is the stream of events period.”72 indeterminate As to whether It is con- might Elstad is in like the in be there applicable argued cases one Elstad, case, be trary in that could certainly language this Justice Brennan in- thought postulated just rejecting so. He a seen as an Justice Brennan’s such being terpretation holding. scenario one El- as he was afraid of the Court’s permit: as a re- holding might stad’s would what have intended been says, sponse passage, this Court police practice One that courts have fre- rea- only distorts the “Justice Brennan not quently involves the encountered with- decision, our but soning holding of holding of Miranda until worse, prosecutors trial courts invites interrogation end of Specifi- an session. if state- But even do the same.”76 cally, police suspect escort a into a is room, hypothetical and, ment in Justice Brennan’s explain- him down without sit admissible, it automatically not is ing rights neither his Fifth Amendment or ob- taining knowing voluntary per The Court indicated a waiver se inadmissible. instead, case-by-case approach rights, interrogate him those about used, being activity. his criminal If the should be the focus suspected 74. 105 69. Id. Id. at S.Ct. 1285. 307-309,

70. Id. 1285. at S.Ct. 75. Id. at 105 S.Ct. 1285. S.Ct. 71. Id. at 1285. (Court's 76. n. S.Ct. 1285 Id. at 318 Id. at 1285. opinion). 329, 330, (Brennan, Id. at S.Ct. dissenting). J. whether the post-warning given statement is vol- before—five times before the oral untary: issue, interrogation by two of those magistrates, neutral and the most recent have, however,

A ap- handful of courts being magistrate just from a neutral two plied precedents relating our to confes- days interrogation. before the Under sions obtained under coercive circum- circumstances, these the trial could court involving wholly stances situations reasonably have inferred admissions, voluntary requiring pas- warnings given blindsided sage or time break in events before at the end of oral interrogation. second, fully warned statement can be warnings should be deemed effective for deemed voluntary. Far from establish- purposes. Miranda rule, ing rigid we direct courts to avoid one; there no presuming is warrant for III. Conclusion suspect’s coercive effect where the initial Appellant Miranda warn- statement, inculpatory though technical- ings times before the oral Miranda,, interroga- ly in violation of was volun- —five signed tion and once before he his written tary. whether, inquiry The relevant If fact, purpose statement. of Miranda is the second statement was also to ensure the voluntariness of confessions voluntarily any made. As in such inqui- by ensuring that the accused is aware of ry, the finder of fact must examine the rights, purpose was fulfilled surrounding circumstances and the en- present case. tire police course of conduct with re- spect suspect to the in evaluating the I judgment concur the Court’s as to

voluntariness of his statements. The point join of error one and the remainder suspect fact that a speak chooses to opinion. of the Court’s being is, after rights informed of his course, WOMACK, J., highly probative.77 dissenting opinion filed a JOHNSON, J., joined. in which And although the Court in our case cites cases holding inapplicable Elstad to a con- all respect With the Members of the interrogation, otherwise, tinuous other courts Court who I have have decided would contrary.78 conclude, held to the doubt, beyond a reasonable that the constitutional violation in admit-

B. Evaluation ting appellant’s confessions to two ad- regardless But of whether a punishment break be- ditional murders at the stage necessary tween statements is capital for Elstad of this trial did not contribute to apply, is there one notable distinction in jury’s capital punishment. verdict for this case: warnings Miranda had been I appellant’s point, would sustain the first 318, rule; (emphasis Id. at 105 S.Ct. totality add- randa under of the circum ed). test, suspect stances no violation where opportunity an to take a break after 315, Esquilin, 78. United States v. 208 F.3d Miranda but she administered (1st Cir.2000)(time lapse 319-321 between in so). not do See also did Davis v. United terrogations only relevant if initial statement States, 1163, (D.C.App.1998), 724 A.2d 1169-1170 coerced); actually People v. Mendoza-Rodri denied, rt. 528 U.S. ce (Colo.1990)(continu guez, 790 P.2d (2000)(recognizing 145 L.Ed.2d 678 interrogation subject analysis); ous to Elstad require Elstad did not break between state Fleetwood, State v. 824 A.2d 1066-1070 ments). (N.H.2003)(analyzing apply federal cases in ing protective counterpart more state to Mi judgment guilt,

affirm the remand

this punishment hearing. case for new MIZELL, Jr., Appellant,

Charles W.

The STATE of Texas.

No. 2444-01. Texas,

Court Appeals of Criminal

En Banc.

Nov. Antonio, Burnham,

Anne San More Appellant Kevin District Yeary, Patrick Assistant Paul, Antonio, Attorney, Matthew San Austin, Attorney, for State. State’s

Case Details

Case Name: Jones v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 5, 2003

Citation: 119 S.W.3d 766

Docket Number: 74060

Court Abbreviation: Tex. Crim. App.