*1 рleading error was raised in the trial court appeals, the court of this impropriety
was the basis for the re- appeals’ court
versal of this cause. The court did not points
reach the two by Wining- addressed
er, both of challenged which the constitu-
tionality of the statute in question.
By error, reversing unassigned on this appeals erroneously
court of elevated a
pleading defect to the status of fundamen
tal error. Fire and Cas American General (Tex.
ualty
Weinberg,
Co. v.
1982). holding contrary This to Tex.R. holding in Wein
Civ.P. 90 this Court’s Therefore,
berg. for writ of application and, granted hearing
error is without oral
arguments, judgment of the court of re
appeals is reversed and this cause is disposi
manded to the court of appeals points properly presented
tion of of error
thereto. Tex.R.Civ.P. WILKERSON, Appellant,
Claude Lee Texas, Appellee.
The STATE of
No. 68937. Texas, Appeals
Court of Criminal
En Banc.
May
Rehearing July Denied 20 and 14, 1983.
Sept.
785 Laird, Stanley G. Schneider and Jules Houston, for appellant. Holmes, Jr.,
John G. Atty., Dist. Winston Cochran, Jr., Bax, E. Don Stricklin and Dick Huttash, Asst. Dist. Attys., Robert State’s Houston, Walker, Atty., and Alfred Asst. Austin, State’s for the Atty., State. OPINION CLINTON, Judge.
This is an appeal from a conviction for capital murder in which punishment was assessed at death. disposition
Because of our error, seventh ground of recita- detailed tion of the constituting facts the offense is ground obviated.1 That of error contends the trial court erred in admitting appel- lant’s inculpatory statement “which was in- voluntarily obtained in violation of Fifth, Sixth and Fоurteenth Amendments to the Constitution of the United States and I, Article Sections 10 and 19 of the Consti- tution of the of Texas.” trial, Prior to filed a motion to suppress grounds his written statement on conforming allegation. above hearing trial court conducted a on the mo- tion, at the conclusion of which he dictated fact, findings conclusions of law and sup- decision to overrule motion to press. Appellant again raised the issue dur- ing trial on the merits and requested its jury, request submission to the which Appellant sufficiency ment; force, threats, (2) promises does not contest no or other support jury’s (3) evidence to applied; verdict of undue influence was “guilty.” actually “had access or conversed with or was by” counseled the retained of his Paraphrased, findings times;” (4) the salient of fact are: choice “at all the statement (1) appellant given repeated warnings by freely voluntarily “was made and therefore officers, magistrate law enforcement and an admissible finders of for consideration attorney prior assistant district to his state- fact.” denied.3 The urged anything, divulge issue was also on mo- not care to it.”5 he did tion for new testify. trial. Appellant ultimately decided to Hinton him of his and on two warned The material facts are not in dispute. interrupted occasions testimo- arrested without a warrant grand ny consult with outside 24, 1978, Tuesday, apparently *3 Af- answering jury questions. room before he because driving been observed the the ter for two hours before testifying car of one of who persons three had been grand appellant was “released.” jury, reported missing preceding the and day appeared to have been victims of a Thursday, Hin- day, next At robbery. p.m., 3:00 the approximately message left telephone appellant ton a for Honorable a Fred received call from appellant to call returned the him. When Fantich, Pat missing the wife of one of the afternoon, appar- call the Hinton early persons, who appellant advised him wanted ently they he wanted to so told him meet to talk to legal representation. him about Hinton, According appellant could talk. to Dailey proceeded Robbery to the Division of “indicated he wantеd to talk further [but] the Police Building Administration where any he said not have transportation.” he did spoke he retained by appel- and was Appellant to of se- complained also Hinton lant. pain having vere an arm he was due to injury Hinton which had become infected. At approximately p.m., 8:00 appellant arranged appellant to have admitted was escorted Joe by Detective Williams to Center, telling Medical private Rosewood the courtroom Municipal Judge of Rose- the he to take owner-physician “wanted Saucillo, mary he was where warned of his precautions to him.” Hinton’s rec- protect rights;4 appellant acknowledged his under- appellant ollection was that was admittеd standing. He given copy was a under an name.6 called written assumed warning which also had a line Dailey, hospital his Mr. through attorney, struck from portion dealing with telephone and the five spoke by two Appellant’s bail. was waiting for interim, day. more In the Hin- him on his times Robbery return to Division. Dailey, ton Dis- arranged to meet Assistant The next morning, Wednesday, January trict Don and a Lieuten- Attorney Stricklin a.m., at 8:00 attorney Dailey met hospital ant in the Fulbright at the late at the lant then later city jail, that morn- evening. ing, they met grand jury in the of anteroom he at the Annex, According Dailey, the Harris to arrived County along with Court hospital Assistant and Attorney approximately District Mike Hinton a for Appellant, appellant approximately and Detective Bealе. consulted with accord- Hinton, Stricklin, ing Jerry to Detective apprehensive; was afraid and minutes when he did not “if Carpenter (who assigned want to he knew was to the D.A.’s testify objection disappear- ruling 3. The trial court’s benefit of what he knew about requested charge respect, appellant addition to the ances. he was not the focus He told ground investigation forms the basis of sixth of and not in fear of to “be any past dealings prosecution” drug error. or the like, though immunity from the “there is no perjury.” part warning, appellant offense 4. As a told: was “You have been accused of the offense why ap- on crossexamination about 6.Quizzed robbery kidnapping.” emphasis [All County Hospi- pellant not admitted supplied throughout thе writer of this tal, Taub, Ben Hinton insisted did not know he opinion unless otherwise indicated.] dealing with kind of situation Detective conceded there insuf- Williams continued indicate because charge appellant ficient evidence to with these talking fear for one reason for not was his offenses, only enough to “accuse” him. safety. be Hinton felt would own private hospital. 5. Hinton he talked more testified that secure couple trying un- of hours was admitted for a record reflects persuade give grand jury der own name. Division) room, lengthy con- Robbery Di- reentered the another vision apparently Fulbright— Dailey asked versation after which occurred Lieutenant — entered appellant’s room. started Stricklin pri- everyone аgain; to leave he consulted with appellant conversation “about cars” Dailey, vately According with appellant. and “asked how moved around.” [him] interroga- he stopped “questioning According Dailey’s testimony elicited on three tion” two or times “before Stricklin, direct examination Prosecutor time Hin- pushed further.” The third gave “And he an answer entered, Carpenter ton and Detective weren’t satisfied with. Because felt hours, two conversation for about lasted then, it vague. was kind of you got And and, according Dailey, rather specific about whether used “It lead contained seemed to nowhere and Dan Fantich’s Mercedes. he denied point no real substance. at some that, rather vehemently. And and hе *4 finally got Claude Wilkerson around began have rapid to heated and discus- telling say that he to Mike Hinton wished sions about —around the car. And he did cooperate no more and no further not want answer at all. And or the Po- Attorney’s the District Office got finally you up and ‘I said will wait Department investigation lice con- until Mike gets here.’ And I [Hinton] cerning disappearance of three ” probably good ‘That’s idea.’ people.”8 Everyone Dailey appellant’s but left room. terminated; point The interview at that Hinton, Mike agreed all witnesses Hinton “I know hope told developed a degree rapport of with what him he doing,” and advised appellant, arrived at the hospital approx- was under for and would be perjury9 arrest imately Carpenter Hinton and custody left in of the The officers. appellant’s room, entered in the pres- prosecutors Carpenter left.10 Detective ence Dailey, of Hinton began pleasant con- pulled up bed and chair versation. But eventually, according to began some talk.” “small Dailey,7 “Hinton broke the news to Mr. Dailey point, testified at this Wilkerson, ... that he he knew felt “I want Carpenter told that I didn’t Jerry prove could that Wilkerson had lied four I any interrogation. And didn’t more times before the Jury day Grand be- [the That any want more conversations. he ... file on could them. fore] he didn’t Wilkerson had told me that he, Hinton, give would Wilkerson * * * So, anything. want to say a chance up to make for That he it. would whole time I felt like and I [appellant] not file charges if Wilkerson would control situation. come clean and tell him [had knew been] stop it and we any And we could time Fantich’s disappearance.” This con- did, hospital] versation two times. left the approximately lasted 30 minutes [When Attorney’s District Office conclusion, and at felt like Dailey its if asked [the could Police under- speak Department] with his and Houston client alone for a mo- question- ment. stood was to be no more [there ing my of client].” Hinton, According “gen- uinely trying feeling make a of left the “as Dailey hospital decision whether stated he talk with lawyer” authorities.” When Hinton satisfied as I be as a defense could been, be, Though testimony Dailey, charges filed of Hinton and 9. No ever would Carpentеr sequence as to the of against appellant perjury. the conversa- for night, tions between Hinton and detail, minor conflicts in substance those testimony Dailey Mr. Hinton’s was “then undisputed. conversations parted ways hospital, thinking and I from the just going just not talk to that Claude was to — 8. Hinton also testified stated he did anybody.” anymore. not want talk left these in- Carpenter that his instructions “would when be honored adhered to.” structions.
Carpenter ap- suppress testified that he had read The record of the motion pellant placed when he was under hearing is silent as whereabouts arrest, and had 12 hours. subsequent called for a uniformed offi- for the cer to custody appellant. Carpenter take Fri- record reflects that on was asked: mes- Dailey received a day morning, Fred “Q: Dailey you anything Did Mr. tell had been scheduled sage hearing that a presence his client’s as to whether setting day purpose 9:00 a.m. that for willing or not make his client was appellant. a “material witness” bond a statement or to talk? would be late Dailey say called to
A: Yes. I believe it was in Mr. Wilker- the hear- was told it did not matter because presence son’s at —near the end of 11:00 a.m. ing had been rescheduled for period of time before he was contacted morning, Dailey Later in the arrested. Mr. made it Dailey “No, told, it again, and was by phone court known that he didn’t want us to So, p.m., at 1:30.” at 1:30 will be held question talk to him or courtroom, found no went to the more about this case. present. one connected with the case was that the Q: judge whether or not of the court told you ques- just Bureau had tioned the defendant about the case D.A.’s *5 over Dailey and, waiting you or talked with him after Mr. for “they called left? there.”
A: I I him. did. made a statement to arrival, testified, proba- “I On his Q: What was people that statement? bly receptionist asked the where and the involved with Wilkerson Claude A: I told him that I understood that * * * all, I they were.11 officers and where Mr. us talk to Dailey didn’t want to him. And if I could see probably asked question regard him or him in to asked for that he had not they announced this case. I told him I wanted cross-examination, Dailey ex- me.” On to know that if he wanted failure to “demand” to see plained his tell talk to me about the casе and client thus: truth, me the it was his deci- nobody sion and else’s. run-ins, I kind of “I have had same police. am sure have had with you Q: anything Did else? say an absolute have been told that it’s not Not response. A: after his wants client, that if a client to see a see, be allowed to see me that he would concerning certain rules governed by Q: What response? was his [sic] so, jails police administration. A: He indicated he did not want said, ‘He and the asked to see him [sic] talk about it.’’ where it you,’ that’s has not asked to see arrived, Carpen- When a uniformed officer stopped.” though appellant ter instructed him that However, Dailey testified: arrest, patient was under he was a in the times dur- several people so when he was released from thе “I asked various hospital, him. had seen ing It the afternoon if hospital, city jail. he was to be taken to * * * I me. asked to see a.m. on And if he had approximately Friday, 2:00 Yes, sir, McMaster, secretary he did. for the A: 11. Catherine Division, Special testified in this vein as And did do that? Q: No, sir, who follows: not know I did not. I did A: Mr. ever ask to make his client Did was.” “Q: arrangements to see his client? was told ‘No.’ That “ready he had not asked had said he was Appellant made. see me.” tell the truth.” Musick and Detective Beale office, appellant took to Stricklin’s where Meanwhile, Detective Musick Earl ar- appellant story robbery, kidnap- told the rived Robbery at the of the Division Hous- the basis of ping and murder which forms ton Department, Police approximately 2:00 Musiсk had tell p.m. appellant conviction. appellant encountered custody of a read appel- Detective Burkham. Musick the Musick then story again. into a with appel- conversation” lant After Mu- and the waivers. “enter[ed] lant who “told wanted to tell read, sick with [him] do not want to consult “You the truth about That he incident. a lawyer making before this statement wanted to talk Pat Fantich before he silent,” appellant do not want to remain would began tell the truth.” Musick effec- “Hold it a minute. I want talk to tuating request. Mike was allowed to Hinton.” Mike speak repeated Hinton testified at 3:00 Musick p.m., Hinton. he “received word” —he could not remem- he understood. warnings; said ber from whom or by what means —that Musick then took to Catherine аppellant “wanted to talk again.” to [him] McMaster’s order to have his state- office Hinton, According to already he had made ment typed. typing begun had when arrangements for appellant’s attorney to be restroom; to use the Mu- asked at the Special Crimes Bureau.12 Evidently sick down escorted him the hall. Hinton had brought to the D.A.’s later, At approximately as spoke office.13 Hinton appellant’s attorney, Dailey, Fred walked only five minutes. Appellant expressed his down a corridor Crimes Bu- fear for safety of Pat Fantich and her reau, appellant, accompanied he confronted children and apparently advised Hinton he Musick, ap- Detective Earl decided talk on the condition he proached opposite from an di- the corner could first talk Pat personally with Fantich. rection, de- Dailey’s a water fountain. Appellant was allowed a thirty minute scription exchange: taped interview14 with Mrs. Fantich at *6 which interrupted time were “I how I by greeted Detec- don’t recall him. There tive Musick who asked him what decision might he been some of shock degree According Hinton, person hearing. was we never There was no had communicating was appellant’s attorney charges with fíled formal on the defendant at that day, But, primary previously. and who “had the function time not been rath- of and had communicating avenue, perjury with er Claude Wilkerson’s attor- than exercise a we ney thought hap- right until he waived his still didn’t what to have an attor- know —we ney.” pened disap- going was and what on in pearance of the three. We decided utilize the material witness explain appellant’s Asked to of the basis bond. was never And And that formalized. custody, Hinton testified: my testimony custody will be that he was “There was a discussion between the de- point, as a witness. At we felt material possibility fendant and his counsel about enough in that J that he had information was But, aggravated perjury of an indictment. very again, to turn reluctant him loose had not been filed on. we what the was as to didn’t know answer So, brought up my at the time he was disappearance of the three. We had office, taking avenue, instead of after some indication his involvement.” my with consultation Mr. Vance аnd col- testimony It is clear from this that there was league, Stricklin, Mr. it was decided not to custody legal appellant’s no basis for file on criminal offense. And we perjury State bind: if indictment was in a requested Judge had time from Moore to agreement was filed with not to present justify evidence and to and ask the charge told be him if he the truth would bro- Court to set a material witness bond. ken; set, appellant were would walk if a bond my And Mr. Wilkerson and conversation telling free what he without knew. Spe- with Mr. Wilkerson in the office got cial was before we to the material trial, 14.By misplaced the time of State had hearing. developed witness as bond it tape. never It was found. 790 meeting
involved in
way.
him that
I
or after the time judicial proceedings have
know I asked if he was doing what he
been
against
initiated
him ‘whether by
[]
wanted
‘No,
to. And he replied,
not real- way
charge,
of formal
preliminary hearing,
ly.’
said,
And I
‘Then stop it.’ And he
indictment,
information,
or
said, ‘No, I have to.
I have to do it.’
arraignment’ ”16—and the Fifth Amend-
said, ‘Well, then,
And I
are
right
ment
“present during
have counsel
really saying is, you
doing
what you
”17
custodial
identified Mi-
interrogation
by
want to do but you don’t like it?’ and he
Arizona,
436,
randa v.
U.S.
S.Ct.
* * *
said, ‘Yeah, I guess
so.’
1602,
(1966),
Musick and returned to Cather- ine McMaster’s the instant offense. office where his statement writing reduced to and edited and appears It clear that the nearest signed. lant came to having “judicial proceed- Dailey saw appellant once more that ings him,” initiated against having been night at approximately 8:00 p.m. Dailey offense, “formally charged” with an had been given a copy appellant’s state- when he was arrested on the “accusation” ment, inquired and he giv- 24, of “kidnapping robbеry” January on it; ing appellant replied: “I had to do it grand then held until he testified before the it, may not understand but I had to jury day. undisputed the next It is do it.” was assisted counsel at all times during period.
Fifth or
Right?
Sixth Amendment
From the time he was
released
Janu-
Supreme
The
Court of the United
ary 25 until he implicated himself in the
States has in
years
recent
clarified a dis
offense on
tinction
between the Sixth Amendment
ante,
charged
n.
anything,
assistance of
see
counsel —“that a
person is entitled to
help
fact,
of a
lawyer
was in
being illegally
held
15.Detective Musick recalled the encounter as
rest
the conversation
related
follows:
Fred,
Crimes,
told him that he was in
*7
Special
“Fred asked Claude if he was sure that he did
had been in
Crimes and would be
said,
not want
chаnged
talk to him and Claude
available if he
his mind and wanted
‘Yes.’
any point
going
to talk
himto
at
that he was
Fred asked Claude if he knew what he was
go
ahead and remain there at
doing.
said, yes,
Claude
he did. He asked
Crimes.”
Claude,
you doing
you
‘Are
what
want to do?’
said,
guess anyone
Claude then
‘I do not
Williams,
387, 398,
16. Brewer
430 U.S.
97
v.
give
confession,
you
would want
a
1232, 1239,
(1977), quoting
S.Ct.
791
Moreover, the
State.18
record
clеar that his Fifth and Fourteenth Amend
discloses
clarity that
the authorities
no real
present during
had
to have counsel
right
ment
appellant’s
sense of
the
involvement in
of-
had
interrogation
been assert
custodial
fense,
that,
possible
and in fact believed it
to our inquiry.
ed at
time relevant
the
though
it,
knowledge
not
he was
State,
542 (Tex.Cr.App.
v.
612
Stone
S.W.2d
actually involved at all.
v.
Cf. Escobedo
1981).
Illinois,
478,
1758,
378
84
12
S.Ct.
U.S.
U.S.,
(1964);
L.Ed.2d 977
and Massiah v.
Waiver
201,
1199,
377 U.S.
84
Thus,
(1979);
State,
v.
we need
L.Ed.2d 286
and Faulder
not decide whether
lant’s representation
(Tex.Cr.App.1980)
611
641
by counsel at
time
S.W.2d
when adversary
(Opinion proceedings
yet
Rehearing).
had not
State’s Motion
commenced,
Thus,
question
alone activated
turns on
of waiver
Sixth
Fourteenth
right
Amendment
assist-
its
bur-
“heavy
whether
State has met
counsel,19
ance of
abundantly
“knowing
bеcause it is
establishing
den” of
and intelli-
* * *
Indeed,
appellant sought
suppression
representation
Whether
without more
grounds,
good
triggers
confession on Fourth Amendment
is a
deal
counsel
alleging
product
illegal
Supreme
likely
it was a
deten
of this
less
Court is
clear....
tion,
State,
hold,
(Tex.
see Green v.
law enforcement
S.W.2d
to so
least when
Cr.App.1981),
simplified,
lawyer deceitfully
our task would be
officers treat
the defense
but,
though
disdainfully.”
[Emphasis original]
ne
raised
trial court and
[cita-
glected
KAMISAR,
judge
findings,
the trial
YALE
Brewer
tions
omitted]
Williams,
pursued
Fourth
claim
Is
Amendment
has not been
Massiah and Miranda: What
In-
*8
appeal.
Matter?,
terrogation?
When
in
Does It
PO-
AND CONFES-
LICE INTERROGATION
142,
(1980).
n. 6
SIONS
“In both
Massiah
Williams
chal-
lenged statements were
obtained at
time
judicial proceedings
finding
when
had been initiated
20. The
trial court’s
that
“had
against
already
actually
the accused and he had
with or was coun
access or
conversed
however,
fairly clear,
attorney
by”
obtained
It is
counsel.
of his choice
seled
retained
adversary pro-
times,”
support
the commencement of
in the record
“at all
finds no
ceedings
right
alone
counsel.
activates
before us.
gent relinquishment
waiv-
questions
presumption
or abandonment of a
raises no.
”
right
privilege,
known
or
a matter which
er.’
depends
‘upon
particular
each case
at 641. And the Court in Ed-
611 S.W.2d
facts and circumstances
surrounding
analysis by observing
wards concluded that
case, including the background, experience
“statement,
that Edwards’
made without
and сonduct of the
v.
accused.’
Johnson
counsel,
access to
did not
having had
Zerbst,
458, 464,
1019,
304 U.S.
58 S.Ct.
”
amount to a valid waiver....
1023,
(1938)
given a
part
failure on the
of the accused
his coincidental
characterizing
abridged, by
specifically request
attorney’s
an
as-
the water
attorney by
with his
meeting
interrogation
sistance or that
cease in the
which broke
“happy
as a
accident”
case, or,
fountain
language
exact
of that
for that
all;
Arguing matter,
likewise,
“in favor of the State.”
the mere fact
appellant’s knowing
‘that
conversation illustrated
appellant answered the officers’
understanding
questioning was not
there is neither evidence
State’s
We note that
again
attorney,
in his absence.
lant
nor
to commence
“refused” to summon
evidence his
instructed
police
Innis, supra; McCrory
inter-
“call
in” should the
start to
22. Rhode Island v.
rogate
again. Clearly, Dailey
State,
(Tex.Cr.App.1982).
relied on the
“A.
... Our
J.C.
lant)
myself
was not about
McCORMICK,Judge, dissenting.
It was
elements of the crime.
I agree with the
majority
appellant
feelings
that he had
personal
did invoke his
Miranda
to have coun-
deci-
thoughts
and fears and
present
sel
interrogation.
Stone
having
was
to make at
sions that he
State,
“Q. having were face-to-face reasons, I For the above dissent.
conversation with him? CAMPBELL, DAVIS, MILLER and W.C. JJ., “A. join Yes. dissent.