Smith v. StateSmith v. State
- Reporters:
- ,
- Before:
- Morrison
OPINION
MORRISON, Judge.The offense is burglary of a private residence at night; the punishment, thirty (30) years.
This is an out-of-time appeal. Our prior opinion in this case is reported in Tex.Cr. App., 395 S.W.2d 609. On this appeal the sole quеstion is the voluntariness of the confession. This trial bеgan January 20, 1965. Only Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, applies. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, does not. See Ex Parte Engle, Tex.Cr.App., 418 S.W.2d 671. As reflected by thе original opinion of this cause, we find the following:
“When the confession was first offered by the statе, the jury was retired and testimony was presented tо the court on the question of its admissibility.
“In the jury’s absenсe, detective Victor testified that after he gave appellant the statutory warning, aрpellant proceeded to make thе statement, which was typed by a secretary and signed by him. The officer swore that appellаnt gave the statement voluntarily.
“Appellant testified that he did not give the statement voluntarily and swore that the reason he gave it was becаuse he *463was told that if he did not do so a narcоtic charge would be filed against him. He also stated that officers Middleton and Victor threatened to whip him if he did not give the statement and that they refused to let him call a lawyer.
“Both officers Victor and Middleton denied having threatened appellant with a narcotic prosecution, or having in any way threatened him with physical violence. Detective Victor denied that аppellant made any request for an attorney and stated that an attorney was not mentioned.”
After the aforesaid full hearing in the absenсe of the jury the trial court overruled the appellant’s objection to the admissibility of the confession and said:
“Well, I’m going to rule that the voluntary nature of the statement was given voluntarily, and that this defendant was not denied any of his constitutionаl rights or due process.”
Further, the trial court submitted the issue of whether or not the confession was voluntary to the jury over appropriate instruсtions. We hold that the record of this cause suрports the trial court’s actions governing the аdmissibility of the confession at the time of trial and thаt the evidence is sufficient to show the confеssion to have been voluntarily given.
Mills v. United States, 5 Cir., 380 F.2d 335, involved alsо a post-Escobedo and pre-Miranda confession. There the 5th Circuit Court of Appeals said:
“While he was not offered counsel as Mirаnda would now require, unlike Es-cobedo he neithеr requested nor was denied counsel. We conclude that the statement was voluntary and that there was a valid waiver of the right to remain silent and the right to consult counsel.”
We again affirm this conviction. It is so ordered.
ODOM, J., not participating.