*1 796 statute, 358, presented jurors any person “Under the Art. C.C.P.
array of or juror. other grand way 19.27, In no shall V.A.C.C.P.], as a and the con- Art. [now qualifications legali- to and objections the thereof, it is an ac- struction clear that grand jury Any the be heard. ty of challenge the having opportunity cused the jail county confined in in shall person array jurors, person grand of or request brought into court to be upon impanelment, at the time of thereon challenge.” make such who do so has the fails to waived interpreted to This statute has been the in- challenge by quash so motion to challenged be at array that the must State, mean Tyson v. 171 dictment.” S.W.2d Valdez v. 408 opportunity, the first 496, 498.7 109, ordinarily means when which S.W.2d The is ground of error overruled. jury Challenge is at grand impaneled. the The the is af- judgment of trial court impossible is as early date sometimes this firmed. grand the offense occurs after the when challenge impaneled. When on im- jury is array is not the can be
panelment possible, the quash in a indict
attacked motion parte trial commences. Ex
ment before
Covin,
If the
has so, he impaneled is and does not do
when it challenge it at a later date. Ar
may not 479. mentrout v. 135 S.W.2d OCHOA, Appellant, Felix Garcia early Appellant was arrested v. 23, 1976. He morning hours of December Texas, Appellee. The of STATE counsel pauper’s affidavit filed for him on December 28. appointed No. 55669. impaneled him was jury that indicted grand Texas, Appeals Court of Criminal of 11, challenge No was January 1977. on En Banc. array that time. made to the at January murder on capital indicted for was 8, Nov. 1978. Thus, custody, repre in appellant was 12. Rehearing State’s Motion for En Banc aware, counsel,6 by the time sented 13, Denied Dec. 1978. was jury impaneled, grand scrutiny. object its He failed to be of at that challenge grand jury time but in a months later motion
did so several
quash. beyond question by appel- “It relatives of is that under the Due was retained 6- Counsel attorney. appointed an the court had Process of the Fourteenth Amend- lant after Clause completely may from the record clear reasonable It is ment Louisiana attach time January 6th whether he retained federal consti- limitations to assertion of 12th, during particularly, counsel oral rights. but statements of More tutional may State probable argument date. make 6th the more require prompt assertion one, therefore, Appellant, had at least challenge discriminatory practices in the two, ample attorneys probably lenge time to chal- 97, jury. make-up grand of a U.S. at 76 [350 impaneled. array it was when procedural principle ‘No S.Ct. 158at is 162]. this more familiar to Court than that a con- Supreme also held that this right may Court has 7. The be stitutional forfeited criminal may by failure to be assert matter timely challenge as well as civil cases timely the failure to make ’ ” jury. grand In Michel rights. of assertion Louisiana, 91, 76 S.Ct. U.S. at 76 S.Ct. at [350 163] (1955), addressing issue waiver L.Ed. 83 in Estelle, (5th See Dumont v. F.2d 793 also statute similar to context a Louisiana 1975). Cir. 19.27, stated: Article Court *2 initially ap The State contends that ground error, pellant has waived this in his since own behalf at trial substantially and testified to the same facts as Where a contained statement. defendant testifies own behalf and *3 the testimony admits the truth of to which objected, he he previously right waives his to claim that he was the intro harmed objection. duction of such evidence over his Martinec, D. Joseph F. and Hector Fabela However, he has not his waived Austin, appellant. for rebutting claim if he evi harm introduces Cuero, Cheatham, Atty., L. Dist. Wiley attempt meet, destroy dence in or for the State. explain against evidence him. the offered (Tex.Cr. Jackson v. App.1977); Nicholas 502 S.W.2d (Tex.Cr.App.1973). OPINION testimony, appellant In his chal lenged accuracy of the several statements BROWN, Commissioner. confession, stating in the they that were a appeal is an from conviction for This false he did them. and that not make Appellant of murder. capital the offense deceased, shooting While he admitted the the murder of a York- was convicted for interjected testimony his he a claim of self officer, who was police acting town defense, seeking to explain thus his state peace ap- at the time capacity as officer ments in the confession. He also contra 18, 1976, the shot him. October pellant On relating dicted in the confession statements special to the issues jury answered “Yes” to the in which and the sequence appellant 37.071, Article Vernon’s submitted under Thus, guns. appears deceased drew their it Ann.C.C.P., punishment was as- and the appellant ground that has not waived this at death. sessed error. that the trial Appellant now contends 1976, appellant July On left a bar appellant’s written allowing erred in court his Cuero and drove toward home in York- into at introduced evidence statement be town. Another driver called the Yorktown hearing appellant’s the trial. After a police reported appellant and trial court entered suppress, motion weaving back and forth on the road. The was voluntarily findings that the confession deceased, officer, police Yorktown re- knowingly appellant and that given, report, appellant’s sponding stopped voluntarily his to counsel and car and to see his license. asked driver’s right against self-incrimination. and license, When handed the the deceased stat- court therefore determined appellant ed that he was to take trial, At statement was admissible. refused, police and station. jury relative to charge instructed got in his car and drove off. The back admissibility concerning of confes- law driveway deceased followed 38.22, Article Ver- with in accordance sions home, pulled where his car Ochoa Ann.C.C.P. non’s driveway appellant’s. Appel- behind got lant out of his car started towards confession Appellant argues requirements of The deceased out of his got house. also in violation of obtained ear, Arizona, apparently gun. Appel- drew his 384 U.S. 86 S.Ct. Miranda v. upon seeing lant the de- (1966), and that it thus 1602,16 L.Ed.2d ceased’s against gun got him at back into his car used should not have been reached the seat his own under trial. pistol. Appellant “Q loaded further testified Other than the occa- [Prosecution] deceased, hitting that he shot at the sion when you testified that at first fell, twice. The deceased with gun his own the defendant was undecided about him. Appellant get beside told his father to the lawyer, did he ever ask help, police and the arrived a few minutes get a lawyer for him or anything of later. nature further? scene, Appellant was at the arrested No, “A sir. [Adams] m., p. about 11:30 at which time he was given warnings by his Miranda Sheriff J. R. “Q
Adams. He was then Did he make any request handcuffed and tak- for an at- jail, arriving en to the Cuero at about 1:00 torney other than when he said that a. m. He was taken magistrate before a first, he was undecided there at where he was read his Miranda he might might not want a law- *4 rights. Justice of Ley the Peace Albert yer? that he explained rights these to No, sir, “A he did not. appellant, appellant and that stated that he rights understood signed paper. his a “Q Adams, Mr. you did testi- [Defense] point, At this sequence exact earlier, fy not, you did that at the
events becomes somewhat confusing. How- beginning ever, nearly ascertain, interrogation as as he this Court can appellant was then taken did make interroga- to an some statement about a Post, tion room. Robert the County lawyer, Attor- about wanting to talk to a ney, testified that he spoke appellant to lawyer? rights.
advised him of his He stated that Yes, sir, “A he did. [Adams] appellant did not wish to talk to him at this time, appellant and he felt like was not telling anything so he left. Apparent- “Q Do I understand that [Prosecution] ly, other present unidentified officers were he was undecided at time on during period and off this short of time. whether he wanted one or not? Appellant testified that he requested an “A He did not make a formal [Adams] attorney during this interrogation, although request for a lawyer or say I don’t appellant Post denies that did so while he want to talk you; to I want to see a present. first, no, lawyer sir.” Appellant jail was then taken to his cell. Then, trial, at the the following testimo- m., At about 3:30 a. Adams appellant ny was heard: from his cell and took him to the interroga- “Q Well, didn’t [appellant] [Defense] tion room. Adams testified that he actually wanting mention to talk to appellant read his rights. Appel- Miranda lawyer you? a point lant testified that at this he told Yes, sir, “A he did when we [Adams] thought
Adams that he talk should to an first went into the room. He said attorney answering any before questions or that he probably ought to talk to a signing anything. At the hearing on the lawyer suppress, something motion to Adams testified: this effect or sign didn’t want to anything until he [appellant] “A He said that [Adams] lawyer, talked to a if I recall correct- would talk with me. ly. He then something “Q request He did not an at- [Defense] effect, ‘Well, I will you, talk to but I torney? don’t want sign anything.’ “A I think that he had made some men- “Q And that might possibly get tion as to he want to wasn’t notice to talk an attorney. press He didn’t this man lawyer?
the issue.
No, sir,
“A
he did not insist
lawyer
on a
at that time.
.
.
recognized
specifically
can be
unless
appellant made
right after
Apparently,
we
warnings
after the
delineate
gave
lawyer,
Adams
statement about
given.
[Emphasis
been
began
have
cigarettes and
added.]”
coffee and
families, horses
appellant about
talking to
emphasized that once a de-
The Court
about
they had talked
children. After
that he want-
any way
fendant indicated in
minutes,
to 45
for about 30
other matters
attorney interrogation must cease
ed an
Ad-
talking about the murder.
they began
further stated that
altogether.
Court
and intent
purpose
that his
ams admitted
change
a defendant could
his mind
while
children and
discussing
problems,
marital
counsel, if he
right
once he invoked his
calm
appellant was to
matters with
other
continues,
interrogation
does so and the
side,”
good
“get
him and to
and relax
to demonstrate
heavy
State bears a
burden
to make a state-
get appellant
and to thus
knowingly
intelli-
that the defendant
m., appellant signed a
At 6:20 a.
ment.
gently
waived his
to counsel.
Adams.
prepared
statement
language in Miranda
We read this
himself, but
the confession
not read
did
literally; where a defendant
indicates
these
it to him. On
rather had Adams read
he desires to invoke his
any way that
facts,
ruled the confession
the trial court
counsel, interrogation must cease.
admissible.1
sup-
is
reading
literal
of Miranda
Such
that,
the facts
from
We conclude
Mosley, 423
ported by Michigan v.
heavy
met the
shown,
has not
the State
321, 325,
(1975). In
2. There is no
that Adams was continu-
from the
as Adams admitted his
ing interrogation by
here,
ap-
interrogation.
his conversation with
were
it is
See Brewer v.
pellant.
long
Williams,
1232,
So
as the officer’s statements are
430 U.S.
97 S.Ct.
51
designed
incriminating
(1977).
to elicit
statements
L.Ed.2d 424
802
Well,
turned
just
“A.
I
didn’t know.
I
Heretofore,
the doctrine of curative ad-
and,
know, I
facing
you
around
missibility
may
accused
not com-
—that
I
around
house and when turned
plain of the admission
illegally
obtained
him,
gun.
he had a
I looked
seen
evidence where he testifies to substantially
had
Do
“Q.
gun.
saw that he
You
the same
proven
facts
by
challenged
you mean in his holster or
been consistently
evidence —has
followed
hand?
See,
g.,
State,
this Court.
e.
v.
Cameron
it
his hand.
“A. He had
in
530
(Tex.Cr.App.1975);
S.W.2d 841
v.
Lovell
you
next?
“Q.
right. What did
do
All
State, 525
(Tex.Cr.App.1975);
511
S.W.2d
me.
going to kill
thought
“A.
he was
I
State,
v.Wood
523
(Tex.Cr.App.
S.W.2d 248
my
my
car and
just
I
went in
1975);
State,
v.
Melton
examination.
State, 475
797 (Tex.Cr.App.1972).
S.W.2d
ha-
police
been
fession that
local
had
him,
complained about
that he had
rassing
Tex.Cr.R.
McLaughlin
In
he had
police,
chief of
this to the
(1928),
first used
this Court
to do
chief he “didn’t want
warned
“meet,
explain”
phrase
destroy
testified,
anything to them.”
where no waiver
describe those situations
however,
did not
case, however,
It
from
occurs.
is clear
who
forced to harm
officers
want to be
where the accused
the truthful-
admits
harassing
were
him.
objects
to which he
he has
ness
evidence
remaining alleged discrepancy
error in the admission of such
con-
merely a matter of semantics.
In this
evidence.
nection,
record reflects:
words,
Well,
“Q.
except
in
other
Later
cases also indicate
waiver of
said that
it is
place
you
where
admitting illegally
the error
obtained
you
your gun
getting
error about
evidence occurs if
accused admits the
gun
the officer had his
out before
facts
though
existence of those
even
he is
out and that about that
didn’t
“explain”
attempting to
the circumstances
to do
to the officer
anything
want
surrounding those facts.
In Parker v.
Is
you talked to Mr. Nobles about.
712 (Tex.Cr.App.1964),
384 S.W.2d
the rest of the statement
true
*7
the
was
for a
stopped
defendant
traffic
correct?
arresting
violation. The
officer observed
correct;
Well,
no,
“A.
it is not
those —
two
capsules
barbiturate
in the defendant’s
in my
not
words.
hand as the
for
defendant searched
his driv-
correct,
“Q.
right. What
is not
All
trial,
er’s license. At
the defendant
testi-
get
straight.
then? Let’s
capsules
fied that he
have the
did
he
says
the man said
“A.
It
there that
hand but claimed
he noticed them on
never
going
take me in. He
was
to
picked
up
the floor of his van
had
them
he
to
me in.
going
me was
take
told
stopped.
to
immediately prior
being
He
him.
go
I
with
He said
had
they
stated that he did
know what
“Q. Well,
be-
is the difference
what
Nevertheless,
contained.
he
convicted
go
you having to
with
tween
possession of a dangerous drug.
for
On
Just
the
taking you
and him
in?
appeal, we held that
the defendant had
it,
are
he
is that what
way
said
error
the admission of
talking about?
he
capsules because
had admitted that
Right.”
“A.
possessed
despite
case,
attempt
had
them
In the
instant
complains
“explain away”
possession.
such
of the admission of the confession even
though he later
on
testified
direct examina-
State,
(Tex.
Lester v.
In